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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Introduction, Ch.1 Foundation of international law, Codification of International Law

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 15 December 2018

Subject(s):
Codification

Codification of International Law

Politis, Les nouvelles tendances du droit international (1927), pp 193–229 Maresh, La codification du droit international (1932) Crocker, AJ, 18 (1924), pp 38–55 Scott, ibid, pp 260–80 Baker, BY, 5 (1924), pp 38–65 de Visscher, Hag R (1925), i, pp 329–452 (p. 97) Garner, Developments, pp 708–74, and AJ, 19 (1925), pp 327–333 Root, ibid, pp 675–84 Hudson, ibid, 20 (1926), pp 655–69 Bellot, JCL, 3rd series, 8 (1926), pp 137–41 Niemeyer, ZI, 37 (1926), pp 1–10 Alvarez, Annuaire, 35, i (1929), pp 1–113, and (the same article), RI (Paris), 4 (1929), pp 179–263, and 8 (1931), pp 7–85, and Méthodes de la codification du droit international public (1947) Saavedra Lamas, RI (Paris), 7 (1931), pp 26–106 Brierly, BY, 12 (1931), pp 1–12 Garner, Hag R, 35 (1931), i, pp 676–93 Cosentini, RG, 42 (1935), pp 411–30 Hurst, Grotius Society, 32 (1946), pp 135–53 Jennings, BY, 24 (1947), pp 301–29 Liang, AJ, 42 (1948), pp 66–97 and in Hag R, 73 (1948), ii, pp 411–527 International Law Association Report, 47 (1950), pp 64–121. See also § 29, n 4, on the Codification Conference of 1930 UN Secretariat Memorandum A/AC/10/5 (1947) (printed in AJ, 41 (1947), p 29) Cheng, Current Legal Problems, 5 (1952), pp 251–73 McNair, The Development of International Justice (1954), pp 14–31 H Lauterpacht, AJ, 49 (1955), pp 16–43 Johnson, BY, 35 (1959), pp 1–33 Alfaro, Hag R, 97 (1959), ii, pp 131–60 Rosenne, BY, 36 (1960), pp 104–73 Briggs, The International Law Commission (1965), and Hag R, 126 (1969), i, pp 242–316 Ago, Recueil d’études de droit international en hommage à Guggenheim (1968), pp 93–131 Baxter, ibid, pp 146–66 Dhokalia, The Codification of Public International Law (1970) Marek, ZöV, 31 (1971), pp 489–520 Thirlway, International Customary Law and Codification (1972) de Visscher in Transnational Law in a Changing Society (eds Friedmann, Henkin, Lissitzyn, 1972), pp 17–33 Weissberg, ICLQ, 24 (1975), pp 460–524 Ramcharan, The International Law Commission (1977) Pathak, Indian JIL, 17 (1977), pp 1–20, 137–78 The Work of the International Law Commission (UN Publications, 3rd ed, 1980) Villiger, Customary International Law and Treaties (1985), pp 63–137 Review of the Multilateral Treaty-Making Process (UN Legislative Series, ST/LEG/SERIES B/21 (1985)), pp 91–112, 268–313 Sinclair, The International Law Commission (1987) Ago, RG, 92 (1988), pp 539–76.

§ 24  Movement in favour of codification

The lack of precision and elaboration which is found in some parts of international law and the large part played by custom in its development created a movement for its codification.1 That movement was early strengthened by the desire to put at the disposal of international tribunals a body of ascertained and agreed rules and thus, it was thought, to stimulate the willingness of states to submit disputes to judicial determination.

The idea of a codification of international law in its totality was first suggested by Bentham at the end of the 18th century.2 A similar project was made by the French Convention which resolved in 1792 to proclaim a Declaration of the Rights of Nations as a pendant to the Declaration of the Rights of Mankind of (p. 98) 1789, and the Abbé Grégoire was charged with the drafting of such a declaration. In 1795 he produced a draft of 21 articles, which, however, was rejected by the Convention, and the matter was dropped.3 After the middle of the 19th century attempts to draw up codes of international law increased notably, although these were still a matter of private endeavour rather than governmental action.4 In 1873 the Institute of International Law was founded at Ghent in Belgium. This association of jurists of many nations meets periodically, and has produced a number of drafts concerning various parts of international law.5 In 1873 was founded the Association for the Reform and Codification of the Law of Nations, which also meets periodically and which now styles itself the International Law Association. Even after governments began to undertake major activities in the field of codification at the turn of the century,6 private work has continued to (p. 99) play an important part in the elaboration and systematisation of nearly all aspects of international law, based on careful research into the practice of states.7

§ 25  Work of the first Hague Peace Conference

At the end of the 19th century, in 1899, the so-called Peace Conference at The Hague, convened on the personal initiative of the Emperor Nicholas II of Russia, showed that parts of international law might be codified.1 In addition to three declarations of minor value, and the convention concerning the adaptation of the Geneva Convention to naval warfare, this conference succeeded in producing two important conventions which may well be called codes — namely, first, the Convention for the Pacific Settlement of International Disputes, and, second, the Convention with respect to the Laws and Customs of War on Land.2

§ 26  Work of the second Hague Peace Conference

The second Hague Peace Conference of 19071 produced no less than 13 conventions,2 some of which are codifications of parts of maritime law. Three of the 13 conventions, namely, that for the pacific settlement of international disputes, that concerning the laws and customs of war on land, and that concerning the adaptation of the principles of the Geneva Convention to maritime war, took the place of three corresponding conventions of the first Hague Peace Conference. But the other ten conventions were new. Apart from the conventions on the limitation of the employment of force for the recovery of contract debts3 and the opening of hostilities,4 they were devoted to the regulation of rules of warfare and neutrality in war on land and sea.5

(p. 100) § 27  Codification in the period after the First World War

In the domain of the law of war the period after the First World War produced in 1929 general conventions on the treatment of prisoners of war1 and sick and wounded2 and, in 1925, on the use of poisonous and asphyxiating gases.3 In the law of peace that period produced important partial codification through general instruments like the Covenant of the League of Nations, the Statute of the Permanent Court of International Justice,4 the General Act of the Pacific Settlement of International Disputes of 1928,5 and the General Treaty for the Renunciation of War.6 Some of the major multilateral treaties of this period concerning air navigation7 and inland8 and maritime navigation,9 and a great number of conventions of a scientific, economic, and humanitarian character, including the imposing series of conventions concluded under the aegis of the International Labour Organisation,10 contained elements of codification, although not primarily codification treaties in the usual sense.

Notable progress in codification was made in this period by means of regional codification on the American continent.11 The Sixth Pan-American Conference held in 1928 adopted seven codifying conventions on the status of aliens, treaties, diplomatic officers, consular agents, maritime neutrality, asylum, and the duties and rights of states in the event of civil strife.12 The Seventh Pan-American (p. 101) Conference in 1933 adopted five further conventions, on the nationality of women, nationality, extradition, political asylum, and rights and duties of states.13

§ 28  Codification under the League of Nations

To stress what they believed to be the close connection between the judicial settlement of international disputes and codification, the Committee of Jurists, who in 1920 drafted the Statute of the Permanent Court of International Justice, adopted a resolution urging the calling of an international conference charged with reconciling divergent views on particular topics of international law and the consideration of those which were not adequately regulated.1 In 1924 the Council of the League of Nations appointed a committee of 16 jurists to report on the codification of international law. The Committee was not instructed to prepare codes, but to report to the Council on the questions which it regarded as ripe for codification, and how their codification could best be achieved. The Committee then considered a number of reports prepared by its sub-committees on various topics, examined the replies of the governments on these reports, and in April 1927 reported to the Council that the following seven topics were ripe for codification: (1) nationality; (2) territorial waters; (3) responsibility of states for damage done in their territory to the person or property of foreigners; (4) diplomatic privileges and immunities; (5) procedure of international conferences and procedure (p. 102) for the conclusion and drafting of treaties; (6) piracy; (7) exploitation of the products of the sea.2

In 1927 the Assembly decided that a conference should be held at The Hague for codifying the subjects mentioned under (1), (2), and (3). The Council then instructed a preparatory committee to consider and recommend to the Council what action it should take in execution of the Assembly’s Resolution. The Committee examined the replies made by the governments to questions covering the principal topics of the three proposed subjects of codification and drew up bases of discussion for the use of the Conference. (The replies of the governments, the bases of discussion and the Committee’s final report are printed in three separate volumes.)3

§ 29  The Hague Codification Conference of 1930

The first Conference on the Progressive Codification of International Law was held at The Hague from 13 March to 12 April 1930. It resolved itself into three committees for each of the three chosen topics. As the result of the work of the First Committee the Conference adopted: (a) a Convention concerning Certain Questions relating to the Conflict of Nationality Laws; (b) a Protocol relating to Military Obligations in certain cases of Double Nationality; (c) a Protocol relating to a Certain Case of Statelessness; and (d) a Special Protocol concerning Statelessness.1 These treaties, although falling short of a comprehensive codification of international aspects of nationality, covered important questions and have subsequently been ratified by a number of states, including Great Britain.2 With regard to territorial waters, the Conference was unable to adopt a convention as no agreement could be reached on the question of the breadth of territorial waters and the problem of a ‘contiguous zone’ adjacent thereto. There was, however, some measure of agreement (p. 103) on such questions as the legal status of territorial waters, including the right of innocent passage, and the base line for measuring the territorial waters. The views of the Conference on these matters were embodied in a Report submitted by the Second Committee of the Conference.3 With regard to state responsibility, the Conference disclosed complete disagreement on the question, inter alia, of responsibility for the treatment of aliens in cases in which there is no discrimination against the aliens as compared with the nationals of the state.4

Those participating in the Hague Conference of 1930 apparently assumed that it was to be the first of a series of conferences for pursuing the work of codification under the auspices of the League. For the Conference adopted detailed recommendations concerning the methods of preparation and of summoning of future conferences.5 In 1930, the Eleventh Assembly reaffirmed the great interest of the League in the work of codification and invited the observations of member states concerning the recommendations of the Conference.6 These observations were on the whole not unfavourable7 to continuing the task of codification, but the Twelfth Assembly, while deciding in principle to continue that work, laid down elaborate details governing the future procedure in the matter.8 Their main effect was to transfer the formal initiative from the League and its organs to the members of the League and thus to lessen the chances of codification in the near future.

§ 30  The International Law Commission

Article 13 of the Charter of the United Nations lays down that the General Assembly shall initiate studies and make recommendations for the purpose, inter alia, ‘of encouraging the progressive development of international law and its codification’.1 The General (p. 104) Assembly decided, in 1947, to set up an International Law Commission charged with the task of codifying and developing international law.2

At the same time the Assembly adopted a statute of the Commission, defining its functions and regulating the periodic election of its members by the General Assembly. The Statute provides that the Commission shall consist of 343 members who shall be persons of recognised competence in international law. The whole Commission is elected at the same time, for a five-year period. The Statute also lays down that there shall be assured in the Commission as a whole the ‘representation of the main forms of civilisation and of the principal legal systems’.4 The Commission, which was first elected in 1948, meets yearly. It possesses no permanent organs of its own,5 although it is provided with supporting services by the Secretariat of the United Nations.6 By setting up the International (p. 105) Law Commission the General Assembly has not exhausted its powers under Article 13 of the Charter; for example, it acted under that article in setting up a Special Committee on Principles of International Law concerning Friendly Relations and Cooperation among States, and in adopting a Declaration on those Principles.7

At its first session, in 1949, the Commission drew up a provisional list of 14 topics selected for codification.8 Since then it has added additional topics (or sub-divisions of topics) to its work programme, either on its own initiative or at the request of the General Assembly. On each of those original 14 topics (numbered (1)–(14) in the list below), and on the more substantial topics subsequently added to the Commission’s work programme, the outcome has been as follows:

  1. (1)  Recognition of states and governments: the Commission has not begun work on this topic.9

  2. (2)  Succession of states and governments:10 the Commission decided to divide the item into three aspects, namely succession (a) in respect of treaties, (b) in respect of matters other than treaties, and (c) in respect of membership of international organisations. Priority was given to the first, and in 1978 a convention was adopted on the basis of draft articles prepared by the Commission.11 On the second aspect a convention was adopted in 1983 on the basis of further draft articles prepared by the Commission.12 For the time being it has left aside the third aspect.

  3. (3)  Jurisdictional immunities of states and their property: the Commission has this subject under active consideration.

  4. (4)  Jurisdiction with regard to crimes committed outside national territory: the Commission has not begun work on this topic.

  5. (p. 106) (5)  Regime of the high seas and (6) Regime of territorial waters: on the basis of draft articles prepared by the Commission, the Geneva Law of the Sea Conference 1958 adopted conventions on the high seas, on fishing and conservation of the living resources of the high seas, on the continental shelf, and on the territorial sea and contiguous zone.13

  6. (7)  Nationality, including statelessness: the Commission considered this topic to include two other items subsequently referred to it, namely the nationality of married women and the elimination of statelessness, and in 1951 initiated work on the whole subject.14 Its work on statelessness led to two draft Conventions15 on the basis of which a Convention on the Reduction of Statelessness was concluded in 1961,16 but as regards other aspects of nationality the Commission refused to deal with the nationality of married women separately from the broad subject of nationality, including statelessness, on which it decided in 1954 to defer further action.17

  7. (8)  Treatment of aliens: the Commission has not begun work on this topic.

  8. (9)  Right of asylum: the Commission has not begun work on this subject either. In 1977 it concluded18 that the topic did not appear to require active consideration in the near future, particularly in view of the holding of a UN Conference on Territorial Asylum in 197719 with the possibility of a further conference being convened later, and in view of the decision of the General Assembly, in GA Res 3497 (XXX) (1975), to give further consideration to the question of diplomatic asylum.20

  9. (10)  Law of treaties: on the basis of draft articles prepared by the Commission, the Vienna Convention on the Law of Treaties was concluded in 1969;21 see also items (21), (22), (28), and (29) below.

  10. (11)  Diplomatic intercourse and immunities: on the basis of draft articles prepared by the Commission the Vienna Convention on Diplomatic Relations was concluded in 1961;22 and see also items (24) and (31) below.

  11. (12)  Consular intercourse and immunities: on the basis of draft articles prepared by the Commission, the Vienna Convention on Consular Relations was concluded in 1963.23

  12. (13)  (p. 107) State responsibility: the Commission has this subject under active consideration.24

  13. (14)  Arbitral procedure: in 1958 the Commission adopted Model Rules of Arbitral Procedure, which were ‘taken note of’ by the General Assembly.25

  14. (15)  Rights and duties of states: in 1949 the Commission formulated a Declaration of Rights and Duties of States.26

  15. (16)  The Nuremberg principles were formulated by the Commission in 1950.27

  16. (17)  International criminal jurisdiction: the Commission discussed reports by its Special Rapporteur on this topic in 1950,28 but further consideration was deferred.29

  17. (18)  Availability of evidence of customary international law: in 1950 the Commission considered ways and means of making such evidence more readily available, and submitted a report on the matter to the General Assembly.30

  18. (19)  Offences against the peace and security of mankind: the Commission formulated a code on such offences in 1954,31 and deferred further consideration of the matter in 1957.32 With the completion of work on the definition of aggression (see the next item) the Commission suggested that it might look again at its draft code.33 The General Assembly, after seeking comments on the draft from member states,34 in 1981 requested the Commission to re-examine the subject, and the Commission now has it under active consideration.35

  19. (20)  Definition of aggression: the Commission considered this in 1951 as part of its consideration of the previously mentioned item.36 Although its 1954 formulation of a code of offences against the peace and security of mankind included the offence of any act or threat of aggression, this did (p. 108) not include a definition of aggression. The Commission deferred further consideration of the matter in 1957.37

  20. (21)  Reservations to multilateral conventions: the Commission completed a special report on this subject in 1951.38

  21. (22)  Participation in general multilateral treaties concluded under the auspices of the League of Nations: the Commission submitted a report on this subject to the General Assembly in 1963.39

  22. (23)  Special Missions: on the basis of draft articles prepared by the Commission, a Convention on Special Missions was adopted by the General Assembly in 1969.40

  23. (24)  Prevention and punishment of crimes against internationally protected persons, including diplomatic agents: on the basis of draft articles prepared by the Commission a convention on this matter was adopted by the General Assembly in 1973.41

  24. (25)  Relations between states and inter-governmental organisations: in 1966 the Commission divided the subject into two parts, namely (a) the relations between states and inter-governmental organisations, and (b) the status, privileges and immunities of international organisations, their officials, experts and other persons engaged in their activities not being representatives of states. On the first part that Commission completed its work in 1971 by adopting draft articles which formed the basis for a convention drawn up at Vienna in 1975.42 The Commission now has the second part of the topic under active consideration.

  25. (26)  Most-favoured nation clauses: the Commission approved final draft articles in 1978, but no substantive action has yet been taken on them.43

  26. (27)  Historic waters and bays: the Commission decided in 1967 that the time was not yet ripe to proceed actively with this subject.44 In 1977 the (p. 109) Commission considered it better to await the outcome of the Third UN Conference on the Law of the Sea.45

  27. (28)  Treaties concluded between states and international organisations or between two or more international organisations: on the basis of draft articles prepared by the Commission a convention on this subject was concluded at Vienna in 1986.46

  28. (29)  Review of the multilateral treaty process: in 1979 the Commission transmitted its observations on this matter to the Secretary-General of the United Nations for inclusion in his report prepared pursuant to General Assembly Resolution 32/48.47

  29. (30)  Non-navigational uses of international water courses: the Commission has this topic under active consideration.

  30. (31)  International liability for injurious consequences arising out of acts not prohibited by international law: under active consideration.

  31. (32)  Status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier: the Commission approved final draft articles in 1989, and the General Assembly has still to decide what action to take on them.48

The Commission’s methods of work are based on the provisions of Articles 16–23 of its Statute. Generally speaking, for any particular topic, the Commission’s method comprises:

‘the formulation by the Commission of a plan of work on the topic concerned, the appointment of a Special Rapporteur, the request for data and information from Governments and for research projects, studies, surveys and compilations from the Secretariat, the discussion of the reports submitted by the Special Rapporteur of the Commission at plenary meetings and of the proposed draft articles in plenary and within a Drafting Committee established by the Commission, the elaboration of draft articles with commentaries and their submission to Governments for observations, the revision of provisional draft articles in the light of the written and oral observations from Governments and the submission of final drafts with recommendations to the General Assembly.’49

But the Commission has applied this method flexibly, making adjustments to it that the specific features of the topic concerned demand. In addition, when entrusted with special tasks, the Commission has adopted special methods of work suitable thereto.50

The International Law Commission is empowered by Article 26 of its Statute51 to consult with any international or national organisation, official or non-official, on any subject entrusted to it; and paragraph 4 of that Article recognises the advisability of consultation by the Commission with intergovernmental organisations whose task is the codification of international law. The Commission has established cooperative relationships with the Arab Commission (p. 110) for International Law, the Asian-African Legal Consultative Committee, the European Committee for Legal Cooperation, and the Inter-American Juridical Committee.

The 14 major52 conventions concluded on the basis of the work of the International Law Commission by 31 December 1989, 10 of which were by then in force, constitute a major contribution to the development of a significant portion of international law. For that alone the work of the Commission can be regarded as successful. But it would be wrong to assess the achievement of the International Law Commission solely in terms of the number and scope of conventions concluded as a result of its work. By the scholarly and realistic way in which it has studied the topics on its agenda its work has had an effect on the rules of customary international law quite apart from the direct effects which the various conventions may have inter partes, and even if no convention is eventually concluded or before it enters into force.53 More generally, it has contributed greatly to the development of the law and to an increase in the respect in which it is generally held by members of the international community.

§ 31  Codification and development of international law

The distinction between codification and development of international law has been adopted both in the Charter of the United Nations and in the Statute of the International Law Commission. In the latter the expression ‘progressive development of international law’ is used — for convenience — for ‘the formulation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States’. The expression ‘codification of international law’ is used — similarly ‘for convenience’ — as meaning ‘the more precise formulation and systematization of international law in fields where there already has been extensive State practice, precedent and doctrine’.1 However, the theoretical value of the distinction is limited and its practical application insignificant. The Statute of the Commission provides for different procedures for these two kinds of activity, but such differentiation of procedure has proved unworkable and has been disregarded in practice. Subjects — such as the limit of territorial waters2 — on which there is ‘extensive state practice, precedent and doctrine’ are often so controversial that nothing but a legislative innovation, by way of a formulation of new rules, can meet the exigencies of the case. Moreover, it may happen that with regard to the subjects, which are of some rarity, where there is apparently full agreement in existing practice and doctrine, circumstances may call for a modification of the existing rule. Conversely, principles relating to topics of distinct novelty — such as the regime of the continental shelf3 — can be formulated by way of ‘development’ only by taking into account, and to that extent ‘codifying’, an established principle of international law. Thus the regime of the continental shelf, as formulated by the Commission, was based on the full (p. 111) recognition and preservation, subject to reasonable modifications, of the principle of the freedom of the seas.4 In fact, the usefulness and justification of the entire process of codification, in its wider sense, must, as a rule, depend upon the combination, in relation to the same subject, of the processes of restatement of existing principles with the formulation of new principles. It is desirable that in each case the codifying agency should leave no doubt as to the proportion in which rules formulated by it amount to a statement of the existing law or a change thereof.

There is now considerable experience of codification: the Hague Conference of 1930, the very important work of the International Law Commission since 1945, and also certain measures of codification adopted on an American5 or European6 basis. In the light of this experience certain conclusions may be drawn as to its desirability and prospects. First, the Hague Conference of 1930 showed that different methods may be required for codification conceived of as a systematisation and unification of agreed principles and for codification regarded as agreement on hitherto divergent views and practices, and that, in particular, the securing of agreement on existing differences is primarily a matter of policy and cannot well be settled by conferences of legal experts. In this respect the experience of the International Law Commission has proved different; by its composition and methods of work it has been able to deal in a generally satisfactory way with questions of policy which have inevitably arisen in the course of formulating legal rules. Secondly, so long as international conferences were governed by the rule of unanimity,7 there was a danger that (p. 112) attempts to reach agreement in the form of codified rules might result in reducing the value of the rules eventually agreed upon. The product of codification could thus to that extent retard instead of advance the progress of international law.8 Article 9.2 of the Vienna Convention on the Law of Treaties marks a notable advance in this respect in that it prescribes as the normal rule a two-thirds majority for the adoption of the text of a treaty at an international conference, unless the states attending it decide otherwise.9 The rigidity of the rule of unanimity has similarly been diminished by the practice of concluding treaties within the framework of an international organisation which reaches decisions by less than unanimity: this is particularly important in the case of treaties adopted by the General Assembly of the United Nations.10 Thirdly, there is the danger that, given the cautious attitude of governments, attempts at codification may in many cases emphasise differences in cases where agreement was hitherto supposed to exist.11 Fourthly, it appears that, in so far as codification implies uniform regulation, its scope must necessarily be limited for the reason that in many cases the diversity of interests and conditions render uniformity difficult or undesirable. Fifthly, the Hague Conference showed that even with regard to generally non-controversial matters the work of codification requires lengthy preparation and discussion which cannot always usefully take place in the hurried atmosphere of an international conference. Thus the programme of the Hague Conference in 1930 was probably too ambitious inasmuch as it attempted within the space of one month to codify three important branches of international law. In marked contrast to the experience of the Hague Conference is the full preparation of draft articles by the International Law Commission, their prior study by governments and the ample time devoted to the ensuing conferences; these factors have undoubtedly contributed to the general success of codification conferences since 1945.12

There is now little likelihood of states abandoning the task of introducing, through general conventions, uniformity and certainty in those branches of (p. 113) international law which are sufficiently developed for that purpose. It is true that the absence of codified rules has not seriously impeded the work of the International Court of Justice or of other tribunals, and that, on the contrary, their work has shown that international law may be developed indirectly and given a degree of certainty through decisions of international tribunals.13 But there is no doubt that the codification of suitable portions of international law may add both to its clarity and authority and, to a smaller extent, to the willingness of states to submit disputes to obligatory judicial or arbitral settlement.14 The danger of failure, or even of retrogression, in consequence of the operation of the unanimity rule is being circumvented by the adoption of conventions by, usually, a two-thirds majority of the states represented at the Conference. The procedures by which the codification of international law is at present being achieved are generally such as to secure that the resulting conventions are both politically acceptable and scientifically sound. The International Law Commission is composed of lawyers of high repute, and their background and the manner of their selection should generally ensure that they are fully aware of prevailing international political realities.15 The extensive consultation with governments on the draft articles prepared by the Commission and the role of the Sixth Committee of the General Assembly in relation to the work of the Commission tend to make it less likely that the final result of the Commission’s labours is wholly unacceptable to the generality of states. The scope of conventions adopted, even if only by a two-thirds majority vote, after such preparatory procedures have been followed is likely to become enlarged as the result of subsequent accessions. The very fact of their continued validity among large groups of states cannot fail to exercise considerable influence, quite apart from the possibility of the convention giving rise to rules of customary international law.16

While the International Law Commission plays a very important part in the codification of international law, its role is not exclusive. Treaties which, even if not expressly designated as codification treaties, nevertheless have the effect of (p. 114) codifying significant parts of international law may be concluded by groups of states, whether acting within the framework of an international organisation (particularly the United Nations) or on a regional basis or through an ad hoc conference. Thus the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States,17 and the International Covenants on Economic Social and Cultural Rights and on Civil and Political Rights18 adopted by the United Nations General Assembly can properly be regarded as instruments of codification. There is in fact no clear borderline between a codification convention19 and what may be regarded as an ordinary multilateral treaty. While codification tends in the direction of law-making, the consensual element in the acceptance of its results remains strong; conversely a multilateral treaty, while predominantly contractual in nature and origin, may nevertheless prescribe general rules governing in a systematic manner a matter of concern to all states. Nor, furthermore, does codification necessarily imply the conclusion of a treaty. A resolution of an international organisation may involve the codification of a branch of the law; and although formal codification incorporating its results as part of positive international law is desirable, a systematic restatement of the law by an authoritative body may in certain cases constitute a valuable form of codification.

§ 32  The revision of international law

The primary object of codification and development of international law as envisaged in Article 13 of the Charter is to give clear expression to those branches of international law with regard to which there is already either a common measure of agreement or a sufficient amount of practice to warrant attempts at improvement. From the codification and development of international law thus conceived there must be distinguished the deliberate revision and change of existing law with a view to adapting it to changed conditions. The distinction, however, is no longer clear-cut: not only is the process of codification in practice inseparable from a measure of progressive development of the law, but it may involve — as negotiations within the framework of the Third United Nations Law of the Sea Conference demonstrated — conscious attempts to make radical changes to existing law. Nevertheless, there is no machinery of international legislation1 for effecting changes of this nature against the dissent of a minority of interested states.2 The establishment of such machinery would amount, to a substantial degree, to setting up an international legislature.3 That development is not one which governments are at (p. 115) present prepared to accept. Its realisation requires further abandonment of the principle of unanimity4 and far-reaching changes in the matter of equality of voting and representation.(p. 116)

Footnotes:

‘Codification’ has at least two distinct meanings: (1) the process of translating into statutes or conventions customary law and the rules arising from the decisions of tribunals with little or no alteration of the law; this is equivalent to what the English lawyer means when referring to a consolidating statute, such as the Sale of Goods Act 1893; (2) the process of securing, by means of general conventions, agreement among states upon certain topics of international law, these conventions being based upon existing international law, both customary and conventional, but modified so as to reconcile conflicting views and render agreement possible. See Brierly, BY, 12 (1931), pp 1–6, and Politis, Les Nouvelles Tendances du droit international (Eng trans, 1928), p 70. In relation to international law the two aspects are in practice inseparable; furthermore, there is no clear borderline between codes and ordinary multilateral conventions: see § 31.

See Bentham’s Works, viii (ed Bowring), p 537; Nys, LQR, 1 (1985), pp 226–31. See also Schwarzenberger, Jeremy Bentham and the Law (1948), pp 152–84 (a valuable assessment of Bentham’s contribution to international law).

See Rivier, i, p 40, where the full text of these articles is given. They do not contain a real code, but certain principles only. See also Redslob, Völkerrechtliche Ideen der französischen Revolution (1916).

It was not until 1861 that a real attempt was made to show the possibility of a codification. This was done by an Austrian jurist, Alfons von Domin-Petruschévecz, who published in that year at Leipzig a Précis d’un code de droit international. In 1863 Professor Francis Lieber, of the Columbia College, New York, drafted the Laws of War in a body of rules which the US published during the Civil War for the guidance of her army (see vol II of this work (7th ed), § 68(4); and see Scott, RI (Paris), 4 (1929), pp 393–408). In 1868 Bluntschli, the celebrated Swiss writer, published Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt. This draft code has been translated into the French, Greek, Spanish, and Russian languages. In 1872 the great Italian politician and jurist Mancini raised his voice in favour of codification of the Law of Nations in his able essay, Vocazione del nostra secolo per la riforma e codificazione del diritto delle genti. Likewise in 1872 appeared at New York David Dudley Field’s Draft Outlines of an International Code. In 1874 the Emperor Alexander II of Russia took the initiative in assembling an international conference at Brussels for the purpose of discussing a draft code of the Law of Nations concerning land warfare. At this conference jurists, diplomatists, and military men assembled as delegates of the invited states, and they agreed upon a body of 60 Articles under the name of the Declaration of Brussels. But these Articles have never been ratified. In 1880 the Institute of International Law published its Manuel des lois de la guerre sur terre. In 1887 Leone Levi published his International Law with Materials for a Code of International Law. In 1890 the Italian jurist Fiore published his Il diritto internazionale codificato e la sua sanzione giuridica, of which a fifth edition appeared in 1915. An English translation of the fifth edition appeared in 1916. In 1906 E Duplessix published his La Loi des nations: projet d’institution d’une autorité nationale, législative, administrative, judiciaire: projet de code de droit international public. In 1911 Jerome Internoscia published his New Code of International Law in English, French, and Italian. In the same year Epitacio Pessoa published his Projecto de codigo de direito internazionale publico (see Alvarez, La codification du droit international (1912), p 276(n)). In 1913 the Institute of International Law published its Manuel de la guerre maritime. See also, Alvarez, Exposé de motifs et Déclaration des grands principes du Droit international moderne (1936), and for comment thereon Redslob, Les Principes du droit des gens moderne (1937), passim, and Le Fur in Hag R, 54 (1935), iv, pp 132, 133. Much of the modern law of human rights finds its origin in H Lauterpacht’s An International Bill of Rights of Man (1945). See also the UN Secretariat’s Note of the Private Codification of Public International Law (1947), UN Doc A/AC 10/25.

The Institute normally meets annually or every other year, and publishes its proceedings in its Annuaire. On the work of the Institute in general see Charles de Visscher, the Institute’s Livre du Centenaire 1873–1973, pp 128–61, and Schachter, ibid, pp 403–51.

See the UN Secretariat’s Historical Survey of the Development of International Law and its Codification by International Conferences (1947), Doc A/AC 10/5.

Particular reference may be made here to a series of draft conventions prepared at the Harvard Law School in the mid-1930s under the direction of Professor Manley Hudson. The comment accompanying these draft conventions is based on comprehensive and painstaking research. These publications are enumerated in the List of Abbreviations at the beginning of this vol. The Harvard Law School has, since the Second World War, also produced a draft Convention on the International Responsibility of States for Injuries to Aliens (by Sohn and Baxter, AJ, 55 (1961), pp 545–84).

As to the codification of private international law, see § 1, n 11.

For a general account of the work of the Hague Conferences see Wehberg, Hag R, 37 (1931), iii, pp 533–664.

Shortly after the Hague Peace Conference of 1899, the USA published on 27 June 1900, a body of rules for the use of its navy under the title, The Laws and Usages of War at Sea — the so-called United States Naval War Code — which was drafted by Captain Charles H Stockton, of the US Navy. Although, on 4 February 1904, this code was by authority of the President of the US withdrawn, it provided the starting-point of a movement for codification of maritime international law.

For an enumeration of these conventions see vol ii (7th ed), § 68.

See § 408.

See vol II of this work (7th ed), § 94.

See vol II of this work (7th ed), § 68.

See vol II of this work (7th ed), §§ 126–132.

See vol II of this work (7th ed), §§ 119–124a.

See vol II of this work (7th ed), § 113.

See vol II of this work (7th ed), § 25ae.

See vol II of this work (7th ed), § 25aj.

See vol II of this work (7th ed), § 52i.

See 218ff.

See 175ff.

See 296ff.

10  See § 432; and see generally, on the part played by so-called law-making conventions, Hudson, Legislation, i (1931), pp xvii, and xviii; and v (1936), pp viii–x; AJ, 22 (1928), pp 330–49, and ibid, Suppl, pp 90–108; Rühland, System der völkerrechtlichen Kollektivverträge als Beitrag zur Kodification des Völkerrechts (1929). See also § 11, n 9.

11  As long ago as the Panama Congress of 1826 the movement for the codification of international law among the states of the New World became prominent. In 1906 the Pan-American Conference at Rio de Janeiro (at which the USA were represented) decided to establish a commission of jurists for the purpose of preparing codes both of public and of private international law for submission to a future conference. After the interruption caused by the First World War the task was actively resumed, with the close cooperation of the new American Institute of International Law founded in 1912, and in 1925 this Institute transmitted to the Pan-American Union the texts of 30 projects of conventions for a code of public international law (printed in AJ, Special Suppl, October 1926). These projects were considered at a meeting of an International Commission of American Jurists in Rio de Janeiro in April and May 1927, and 12 of them were adopted and recommended for consideration by a Sixth Pan-American Conference, which was held in January and February 1928. For the projects referred to, see AJ, 22 (1928), Special Suppl, January 1928. The Conference adopted, on 20 February 1928, the following seven codifying conventions: (1) on the status of aliens; (2) on treaties; (3) on diplomatic officers; (4) on consular agents; (5) on maritime neutrality; (6) on asylum; (7) on duties and rights of states in the event of civil strife. For the texts of these conventions see AJ, 22 (1928), Suppl, pp 124 et seq; Hudson, Legislation, iv, pp 2374–419. The Seventh Pan-American Conference adopted on 26 December 1933, the following conventions: (1) on the nationality of women; (2) on nationality; (3) on extradition; (4) on political asylum; (5) on rights and duties of states. See also § 31, n 5.

12  For the texts of these conventions, see AJ, 22 (1928), Suppl, pp 124ff; Hudson, Legislation, iv, pp 2374–419. A Protocol to the Convention on Duties and Rights of States in the event of Civil Strife was concluded in 1957.

13  For the texts of these conventions, see AJ, 28 (1934), Suppl, pp 61 et seq. The Conference also passed a resolution on methods of codification to be pursued in the future (ibid, p 55). The resolution proposed, inter alia, (a) the establishment of a permanent commission whose members were to serve both as experts and as official representatives of their governments with full powers to sign conventions, and (b) the elimination of codification from the agenda of future Pan-American conferences. For comment on the resolution, see Reeves, AJ, 28 (1934), pp 319–21. See also Borchard, AJ, 31 (1937), pp 471–73, and the same, ibid, 33 (1939), pp 268–82, on this work of the Committee of Experts created by the resolution of 1933. For the various conventions codifying, to some extent, the previous conventions as to pacific settlement and adopted by that Conference, see International Conciliation (Pamphlet No 238), March 1937. See Alvarez, La Codification du droit international (1912, a work which was considered in some detail by the Codification Commission of American Jurists in that year), La Codification del derecho international en América (1923), Le Nouveau droit international et sa codification en Amérique (1924), and RG (1913), pp 24–52 and 725–47; Rauchhaupt, Völkerrechtliche Eigenthümlichkeiten Amerikas (1924); Scott, AS Proceedings (1925), pp 14–48, AJ, 19 (1925), pp 333–37, ibid, 20 (1926), Suppl No 2, pp 284–95, and ibid, 21 (1927), pp 417–50; Revista de Derecho International, March 1925, special number; Brierly, BY, 7 (1926), pp 14–23. On American efforts to codify international law, see Léger, La codification du droit des gens et les conférences des juristes américains (1929); Urrutia, Hag R, 22 (1928), ii, pp 85–230; UN Secretariat’s Codification of International Law in the Inter-American System with Special Reference to Methods of Codification (1947), Doc A/AC 10/8. The Conference of American States at Lima adopted, on 21 December 1938, a resolution concerning the methods for the gradual and progressive codification of international law through a number of agencies: AJ, 34 (1940), Suppl, p 194; The International Conferences of American States. First Supplement, 1933–40 (1940), p 246. See also n 11; and § 31, n 5, for Inter-American measures of codification since 1945. See also literature cited at § 23, n 16, on ‘American International Law’.

Procès-Verbaux of the Meetings of the Committee, p 747.

For the Report of the Committee see Doc C/196/M/70/1927/V. As to topics (5) and (7) the Committee recommended a procedure more technical than an international conference. In June 1928 the Committee reported two more topics as being ripe for codification, namely, the legal position and functions of consuls and the competence of courts in regard to foreign states.

The Committee, after examining reports upon nationality of commercial corporations and their diplomatic protection, and the recognition of the legal personality of foreign commercial corporations, reported to the Council that these topics were ripe for regulation by international agreement, and might usefully be left to a conference upon private international law.

The Committee examined and reported as not being ripe for international regulation the following topics: criminal competence of states in respect of offences committed outside their territory; extradition; interpretation of the most-favoured nation clause. (The Committee also studied, and considered to be ripe for international regulation, the legal status of government ships employed in commerce; but, in view of the conferences which had already been held under the direction of the International Maritime Committee and the Convention prepared by that body (see § 565), recommended the Council to take no further action at that time.)

They are: vol I, Nationality: C/73/M/38/1929/V; vol II, Territorial Waters: C/74/M/39/1929/V; vol III, Responsibility of States, etc: C/75/M/69/1929/V. For an account of the preparatory work of the Conference up to 1930 see Hudson, AJ, 20 (1926), pp 656–69; Wickersham, AS Proceedings (1926), pp 121–35; Reeves, AJ, 21 (1927), pp 659–67, and 24 (1930), pp 52–7; McNair, Grotius Society, 13 (1928), pp 129–40.

As to all these see §§ 395 and 398.

The Convention and the three Protocols came into force in 1937 following upon the receipt of the tenth ratification.

See AJ, 24 (1930), Suppl, p 234.

See § 409. On the various aspects of the Hague Codification Conference of 1930, see Alvarez, Les Résultats de la 1ère Conférence de codification de droit international (1931); Reeves, AJ, 24 (1930), pp 52–7, 486–99; Hudson, ibid, pp 447–66; Flournoy, ibid, pp 467–85; Hackworth, ibid, pp 500–16; Borchard, ibid, pp 517–40; Hunter Miller, ibid, pp 674–93; Guerrero, RI (Paris), 4 (1930), pp 478–91; Niemeyer, ZI, 42 (1930), pp 1–26; Rolin, RI, 3rd series, 11 (1930), pp 581–99; Hunter Miller, AS Proceedings, 1930, pp 213–21; Borchard, ibid, pp 221–29; Hudson, ibid, pp 229–34; Rauchberg, ZöR, 10 (1931), pp 481–522. For the texts of the Final Act, the Convention on Nationality, the three protocols adopted by me Conference and the reports of the Committees on Nationality and Territorial Waters, see AJ, 24 (1930), Suppl, pp 169–258. See also Hudson, Legislation, v, pp 359–394; League Doc A/19/1931/V; C/351/M/145/1930/V (the Final Act).

For the preparatory documents, and records, of the Hague Conference see Rosenne, League of Nations: Committee of Experts for the Progressive Codification of International Law (1925–28) (2 vols 1972) and League of Nations Conference for the Codification of International Law (1930) (4 vols, 1975).

See the Final Act of the Conference: Doc C/351/M/145/1930/V, p 138; AJ, 24 (1930), Suppl, p 257.

Off J, Special Suppl, No 83, p 9.

See Docs A/12/1931/V/A12(a)/1931/V and A/12(b)/1931/V.

Off J, Special Suppl No 92, p 9. For comment see Hudson, AJ, 26 (1932), pp 137–43. And see Brierly, BY, 12 (1931), pp 1–12.

See Jessup, AJ, 39 (1945), pp 755–57. For the recommendations of the Inter-American Juridical Committee of October 1944 on the reorganisation of agencies engaged in the codification of international law see AJ 39 (1945), Suppl, pp 231–45.

GA Res 174 (II). The decision was adopted in pursuance of the recommendations of a committee composed of representatives of governments, which sat in June 1947. See Finch, AJ, 41 (1947), pp 611–16. See also the Resolutions of the International Law Association of 1947 based on the Report of a Committee of the Association under the chairmanship of Judge McNair, and emphasising the importance of a restatement — not amounting to official codification in the form of conventions — of selected portions of international law (Report of the Session of the International Law Association held in Prague in 1947).

On some aspects of the work of the Commission see Marx, Archiv des Völkerrechts, 1 (1948–49), pp 279 et seq; Parry, BY, 26 (1949), pp 508–28; Hertz, Friedenswarte, 52 (1953), pp 19–47. On the origins, organisation and functioning of the Commission see generally Pal, UN Rev, 9 (1962), No 9, pp 29 34; Rosenne, YB of World Affairs, 19 (1965), pp 183–98; Lee, AJ, 59 (1965), pp 183–98; Gotlieb, Can YBIL, 4 (1966), pp 64–80; and other works cited in the bibliography preceding § 24.

GA Res 36/39 (1981). When first established the Commission had 15 members (GA Res 174 (II) (1947)); this was later increased to 21 (GA Res 1103 (XI) (1956)), and then to 25 (GA Res 1674 (XVI) (1961)).

The Commission is now elected on the basis of an express geographical distribution of seats, as follows: nationals from African states — 8; Asian states — 7; East European states — 3; Latin-American states — 6; Western European and other states — 8; together with one African or East European national in rotation, and one Asian or Latin-American national in rotation. See GA Res 36/39 (1981). Before the adoption of that resolution the allocation of seats was governed by a series of understandings and gentleman’s agreements: see paras 4–6 of the Secretary-General’s Memorandum of 24 July 1981 (UN Doc A/36/371).

The Statute of the Commission provides that with regard to the final drafts proposed by it in the matter of codification (and, apparently also of development) the Commission may recommend to the General Assembly: (a) to take no action, the report having already been published; (b) to take note of or adopt the report by resolution; (c) to recommend the draft to members with a view to the conclusion of a convention; (d) to convoke a conference for the purpose of concluding a convention (Art 23). It is also laid down that whenever it deems it desirable, the General Assembly may refer drafts back to the Commission for reconsideration or redrafting. The effective fulfilment of these important and intricate tasks by the General Assembly must depend upon the existence — within, or in conjunction with, the General Assembly — of organs of a competence and permanence enabling them to cope with the legislative output of an ILC functioning on a scale commensurate with the tasks entrusted to it by the Charter. Similarly, any expansion of the work of the Commission in conformity with the object of the Charter must depend to a large extent upon the development, within the governments and foreign offices of the members of the United Nations, of requisite machinery for a detailed examination of the drafts of the Commission.

The Secretariat has also prepared extensive background material and studies to assist the ILC in its work, and also in preparation for conferences held to draw up conventions on the basis of draft articles prepared by the ILC. See also the collections of national laws on various topics under consideration by the ILC and published in the several volumes of the UN Legislative Series.

GA Res 1815 (XVII) (1962) and 2625 (XXV) (1975); see also § 105.

YBILC (1949), p 281. For a general review of the Commission’s programme of work up to 1970 see the Working Paper prepared by the UN Secretariat, Doc A/CN 4/230 of 7 April 1970.

The work of the Commission is surveyed in the annual reports of the Commission submitted to the General Assembly, and in YBILC. See also the following publications of the UN Secretariat: Historical Survey of the Development of International Law and its Codification by International Conferences (1947); Preparatory Study concerning a Draft Declaration on the Rights and Duties of States (1948); Survey of International Law in Relation to the Work of Codification of the International Law Commission (1949) (a document now known to be the work of H Lauterpacht: see YBILC (1960), i, p 52); Ways and Means of Making the Evidence of Customary International Law More Readily Available (1949); Historical Survey of the Question of International Criminal Jurisdiction (1949); The Charter and Judgment of the Nuremberg Tribunal (1949); Future Work in the Field of the Codification and Progressive Development of International Law (1962); Survey of International Law (1971). On the UN programme for the codification and progressive development of international law see Wyzner, AS Proceedings, 1962, pp 90–99.

See § 39, n 2.

10  The Commission decided in 1963 to give priority to state succession and to consider succession of governments for the time being only to the extent necessary to supplement the study of state succession.

11  Convention on Succession of States in Respect of Treaties 1978. See § 69.

12  Convention on Succession of States in Respect of State Property, Archives and Debts 1983. See § 70.

13  The conventions on these four subjects entered into force, respectively, in 1962, 1966, 1964 and 1964. See § 281.

14  YBILC (1951), ii, p 140.

15  YBILC (1954), ii, pp 143–7; GA Res 896 (IX) (1954).

16  The Convention entered into force in 1975. See § 398.

17  YBILC (1954), ii, p 149, para 39. See also the remarks of the Commission as to the nationality of married women, ibid (1952), ii, p 67, para 30. The General Assembly took note (GA Res 683 (VII) (1952)); eventually work on a Convention on the Nationality of Married Women was completed in the UN itself, and the Convention was adopted in GA Res 1040 (XI) (1957). See § 386.

18  YBILC (1977), ii, pt 2, p 129, para 109.

19  Pursuant to GA Res 3465 (XXX) (1975). See § 402.

20  See § 495.

21  The Convention entered into force in 1980. See § 581.

22  The Convention entered into force in 1964. See § 490.

23  The Convention entered into force in 1967. See § 536.

24  See § 145.

25  See YBILC (1958), ii, pp 83–8; GA Res 1262 (XIII) (1958). A Draft Convention on Arbitral Procedure was prepared by the Commission in 1953; see YBILC (1953), ii, pp 208–12, and GA Res 989 (X) (1955).

26  See GA Res 178 (II) (1947); YBILC (1949), pp 286–90; GA Res 375 (IV) (1949) and 596 (VI) (1951). See § 104.

27  See GA Res 177 (II) (1947); YBILC (1950), ii, pp 374–8; GA Res 485 (V) (1950). See vol II of this work (7th ed), § 582.

28  See GA Res 260B (III) (1948); YBILC (1950), ii, pp 1–23, 378–9.

29  GA Res 1187 (XII) (1957). See also Res 489 (V) (1950), Res 687 (VII) (1953), Res 898 (IX) (1954). See also § 148, n 27, including a further Report prepared by the ILC in 1990.

30  YBILC (1950), ii, pp 367–74.

31  YBILC (1954), ii, pp 149–52; and see vol II of this work (7th ed), § 582, and Johnson, ICLQ, 4 (1955), pp 445–68.

32  GA Res 1186 (XII) (1957).

33  YBILC (1977), ii, pt 2, p 130, para 111.

34  Res 33/97 (1978).

35  GA Res 36/106 (1981); YBILC (1982), ii, pt 2, p 121. See also Ferencz, AJ, 75 (1981), pp 674–9. See also § 148.

36  See YBILC (1951), ii, pp 131–7.

37  The task of defining aggression was considered by special committees set up by the General Assembly, which in 1974 approved a definition of aggression: Res 3314 (XXIX).

As regards the threat of aggression, and preparation of aggression, as possible crimes against the peace and security of mankind, see ILC, Report (40th session, 1988), paras 217–18, 224–8. As regards aggression itself, which the ILC included as such a crime in terms following those approved by the General Assembly, see draft Art 12 and commentary, ibid, para 280.

See generally on aggression, vol II of this work (7th ed), §§ 52fg–52l. See also Schwebel, Hag R, 136 (1972), ii, pp 419–95; Zourek, AFDI, 20 (1974), pp 9–30; Ferencz, Defining International Aggression (2 vols, 1975); Stone, AJ, 71 (1977), pp 224–46, and Conflict Through Consensus: United Nations Approaches to Aggression (1977); Broms, Hag R, 154 (1977), i, pp 305–97; Bruha, Die Definition der Aggression (1980); Röling in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 413–21.

38  GA Res 478 (V) (1950); YBILC (1951), ii, pp 125–31; and see § 616, n 5.

39  GA Res 1766 (XVII) (1962); YBILC (1963), ii, pp 217–23. See also GA Res 1903 (XVIII) (1963), and 2021 (XX) (1965).

40  GA Res 2530 (XXIV) (1969). The Convention entered into force in 1985. See § 533.

41  GA Res 3166 (XXVIII) (1973). The Convention entered into force in 1977. See § 492.

42  Convention on the Representation of States in their Relations with International Organisations of a Universal Character 1975. See § 531, n 1.

43  YBILC (1978), ii, pt 2, ch II. The General Assembly has in effect repeatedly deferred action, while making a series of requests for comments on the Commission’s draft: see GA Res 33/139 (1978), 35/161 (1980), 36/111 (1981) and 40/65 (1985), and Decision 43/429 (1988). See § 669.

44  YBILC (1967), ii, p 369.

45  YBILC (1977), ii, pt 2, p 129, para 109.

46  See § 581.

47  See UN Doc A/35/312, Add 2.

48  ILC, Report (41st session, 1989), paras 17–72; GA Res 44/36. See also § 498.

49  YBILC (1977), ii, pt 2, p 130, para 113. See also n 5.

50  Ibid, p 131, paras 116–17.

51  See also Art 17.

52  See also § 32, n 14, as to certain optional protocols.

53  See §11, n 14.

Article 15.

See § 196.

See § 314ff.

See § 284.

American activity has been the work of the Inter-American Council of Jurists and its permanent body, the Inter-American Juridical Committee. Under Art 105 of the Charter of the OAS as amended by a protocol of 1967 (ILM, 6 (1967), p 341) the Inter-American Juridical Committee, one of the main organs of the OAS, is given the task, inter alia, ‘to promote the progressive development and the codification of international law’: the Inter-American Council of Jurists has now ceased to exist.

Conventions adopted since 1945 on an Inter-American basis which may be regarded as at least in part codificatory include the Conventions on the Political Rights of Women and the Civil Rights of Women concluded at the Ninth Inter-American Conference, 1948, the Convention on Diplomatic Asylum and the Convention on Territorial Asylum concluded at the Tenth Inter-American Conference, 1954, and the Inter-American Convention on Extradition 1981; note also the Inter-American draft Convention on Jurisdictional Immunity of States, adopted by the Inter-American Juridical Committee in 1983. In addition a number of studies and reports have been made relating to the codification of various aspects of international law. See generally the statements made by the representative of the Inter-American Juridical Committee to the International Law Commission, and recorded in the Commission’s annual Report to the General Assembly.

Activities of the Council of Europe in this field are coordinated by the European Committee on Legal Cooperation. Among the conventions concluded which involve a significant element of codification are the European Convention on Extradition 1967, the European Convention on Consular Functions 1967, and the European Convention on State Immunity 1972. In 1969 a Report on the Privileges and Immunities of International Organisations was considered by the Committee of Ministers: Res (69) 29. See generally on the legal programme of the Council of Europe, Simmonds, ICLQ, 13 (1964), pp 675–80; ICLQ, 14 (1965), pp 646–53; the relevant sections of the European Year Book; and the statements made by the representative of the European Committee on Legal Cooperation to the International Law Commission, and recorded in the Commission’s annual Report to the General Assembly.

On the voting procedure in international codification conferences from 1864 to 1930, see Sohn in Ius et Societas (ed Wilner, 1979), pp 278–96.

Even before the Hague Conference met, the Preparatory Committee which drafted the Bases of Discussion uttered a warning to that effect. See Doc C/73/M/38/1929/V. See generally, Baxter, Recueil d’études de droit international en hommage à Paul Guggenheim (1968), pp 146–66, and also Wolfke in Essays in International Law in Honour of Judge Manfred Lachs (ed Makarczyk, 1984).

The Commission itself needs only a simple majority for its decisions, since as a subsidiary organ of the General Assembly, and in the absence of any contrary decision, it is subject to the Rules of Procedure of the Assembly: see YBILC (1949), pp 10–11, and Rule 125 of the Assembly’s Rules of Procedure.

10  Eg the Convention on Special Missions, GA Res 2530 (XXIV) (1969), and (for treaties not based on the work of the ILC) the Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (see § 440).

11  This was evident, for example, in the failure of the 1958 and 1960 Geneva Conferences to agree upon the breadth of territorial waters; and in the results of the Mexico City Conference of 1964 of the UN Special Committee on Principles of International Law concerning Friendly Relations and Cooperation among States: of the four superficially self-evident principles of international law which were being studied — abstention from the threat or use of force, peaceful settlement of disputes, non-intervention in matters of domestic jurisdiction, and the sovereign equality of states — agreement was reached only on the last. Agreement on the other principles was eventually reached at a later session. See § 105.

12  On certain procedural aspects of such codification conferences see Limpert, Verfahren und Völkerrecht (1985).

13  See § 13.

14  Several of the conventions concluded on the basis of the work of the ILC have optional protocols on the compulsory settlement of disputes. These conventions include the four Conventions on the Law of the Sea (1958), the Convention on Diplomatic Relations (1961), the Convention on Consular Relations (1963), and the Convention on Special Missions (1969), and all of the optional protocols have entered into force. On the first six of these protocols, see Briggs, Recueil d’études de droit international en hommage à Paul Guggenheim (1968), pp 628–41. The Convention on the Law of Treaties (1969) contains, in Art 65, special provisions for the settlement of disputes.

15  These include the trend towards a new international legal order, reflecting the changing balance of states within the international community compared with that which existed during the formative years of much of contemporary international law. See García-Amador, AJ, 77 (1983), pp 286–95, and works cited at § 5, n 3, as to the attitude of ‘new’ states to existing international law. The Commission may have a part to play in this process. There is, however, a danger of the Commission becoming to too great a degree a body receptive to diplomatic and political trends at the expense of being a body composed of independent legal experts. The fact that it now has 34 members, expressly elected so that its composition reflects the principal geographical voting groups in the General Assembly (see § 30, n 4), and able to take its own decisions on the basis of a simple majority (see n 9), increases the risk of it becoming a body whose work may less readily command widespread support as a juridically sound basis for action by the international community.

16  See § 11.

17  See § 105.

18  See § 440.

19  On the nature and role of codification treaties generally see Geek, ZöV, 36 (1976), pp 96–144.

On the metaphorical use of that term, see § 11, n 9. See also § 16 as to the ‘law-making’ powers of international organisations.

On the existing and possible substitutes for international legislation, see H Lauterpacht, The Function of Law, pp 245–347. See also Sepúlveda, Germ YBIL, 33 (1990), pp 432–59. At present a treaty adopted and concluded by a majority of states will result in rules binding even the dissenting minority only indirectly, by virtue of those treaty rules acquiring the status of customary international law — a process which does not necessarily take very long: see § p 30.

This is not always realised by those who speak of the necessity of providing effective institutions of peaceful change as a condition of progress in other fields of international organisation.

See, however, on the development of consensus procedures, § 575, n 13.