Law commission

What is the International Law Commission?

At University College London there is a self-icon, or the body of a deceased person, which has been preserved and displayed as if still alive. The man, Jeremy Bentham, died over 189 years ago. The figure was fashioned from his actual skeleton (the head is a wax model as a setback in the conservation process had made the original unsuitable for display) and dressed in the clothes he wore when alive. He sits upright with a cane and for years his severed head sat between his feet before being removed to be kept and stored separately.

Bentham, an 18th and 19th century English philosopher, jurist and social reformer, advocated the codification of international law. International law designates the set of rules and principles of action which are binding on civilized States in their relations with one another. Bentham believed that if international law were codified, it would help strengthen relations between states and serve as a vehicle for lasting peace. He also supported the need for an international court that would preside over disputes between states, thus settling disputes through judicial decisions instead of wars. It was Bentham who coined the term “international law”.

Recent events have shone the spotlight on the International Law Commission, or ILC. What is ILC? The United Nations Charter instructed the United Nations General Assembly “to undertake studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification”.

The term “progressive development of international law” is used for convenience. In general, this involves the elaboration of draft conventions or treaties on subjects which have not yet been regulated by international law, or whose law is not yet sufficiently developed in the practice of States. . The expression “codification of international law” is generally used to refer to the more precise formulation and systematization of the rules of international law.

To fulfill its dual mandate, the CDI brings together learned personalities in international law. A member of the ILC should be a recognized expert in international law and since he will be entrusted with a job that nations and governments will be asked to obey, and since he will hold the office as an individual and not as a as a government official — he must have seriousness and not just knowledge of the law. Gravitas is defined as seriousness and importance in a way that inspires feelings of respect and trust in others. Gravitas is the human quality that must necessarily accompany the post although it is not indicated in the black letters of the statute creating the ILC.

The ILC consists of 34 members who are elected by the UN General Assembly from a list of candidates nominated by UN member governments headquartered in New York. The terms of the current 34 members of the International Law Commission will expire at the end of 2022. According to the ILC’s website, “the election of members of the Commission for a term of five years beginning on 1 January 2023 will take place at the sixty -sixteenth session of the General Assembly (circa November 2021).” Eight nationals of Asia-Pacific States, including the Philippines, will be elected to the ILC.

An elected candidate serves on the ILC for five years and is eligible for re-election. In addition to a special allowance, he is entitled to travel expenses. The ILC is based at the European Office of the United Nations in Geneva where a monumental wooden structure called “Broken Chair” is installed. The monument is a protest against anti-personnel landmines; it has also become a symbol to honor victims of gun violence.

The ILC encourages the conclusion of treaties that would harmonize relations between sovereign states. It prepares a provisional list of subjects of international law which can be developed in international agreements. The CDI studies the proposals and drafts of multilateral treaties and selects the subjects to be codified. At the request of the General Assembly, it studies questions which contribute to the progressive development of international law. It also appoints a rapporteur who will coordinate with the governments. A rapporteur is simply a person chosen by a UN agency to report on an issue. As a representative of a UN agency, he cannot be arrested or detained in the exercise of his functions.

It was the CDI that submitted the draft Rome Statute to the General Assembly and after revisions and modifications; the General Assembly adopted it in 1998. The Rome Statute created the International Criminal Court and defined its jurisdiction.

The post-pandemic world will be different. It is for this reason that we need the United Nations and other UN agencies such as the International Law Commission to help us meet the challenges of an uncertain future.