About the Commission
Organization, programme and methods of work
Relationship with Governments
Governments have an important role in every stage of the Commission’s work on the progressive development of international law and its codification. Individually, they may refer a proposal or draft convention to the Commission for consideration, furnish information at the outset of the Commission’s work and comment upon its drafts as the work proceeds. Collectively, they decide sometimes upon the initiation or priority of the work and always upon its outcome.
Direct relationship with Governments
The Statute provides for the consideration by the Commission of proposals and draft multilateral conventions submitted directly by Members of the United Nations (article 17, paragraph 1).1 In practice, the Commission has never received such a proposal or draft directly from a Member State but rather indirectly from the General Assembly, usually following its consideration in the Sixth Committee.
The Statute of the Commission also contains provisions designed to give Governments an opportunity to make their views known at every stage of the Commission’s work. At the outset of its work, the Commission is required: (a) to circulate a questionnaire to Governments, inviting them to supply data and information relevant to items included in its plan of work for progressive development (article 16 (c)); or (b) to address to Governments a detailed request to furnish the texts of laws, decrees, judicial decisions, treaties, diplomatic correspondence and other documents relevant to the topic being studied for codification (article 19, paragraph 2). The Commission is also required to invite or request Governments to submit comments on the Commission’s document containing the initial draft as well as appropriate explanations, supporting material and information supplied by Governments (article 16 (g) to (h) and article 21). Finally, the Commission is required to take into consideration such comments in preparing the final draft and explanatory report (articles 16 (i) and 22).
The Commission has noted the fundamental and basic role that materials, comments and observations submitted by Governments play in the codification methods of the Commission. The interaction between the Commission, a permanent body of legal experts serving in their personal capacity, and Governments, through a variety of means including the submission of materials and written comments and observations, is at the core of the system created by the General Assembly for the promotion, with the assistance of the Commission, of the progressive development of international law and its codification.2
The Commission has indicated its concern that, in practice, the data and comments submitted by Governments in relation to particular topics have in some cases tended to be limited in quantity.3 The Commission has attempted to make the questionnaires sent to Governments more “user-friendly” by indicating clearly what is requested and why.4 In 1958, the Commission stated in its report that it “felt little doubt that its work tended to suffer because of defects in the process of obtaining and dealing with the comments of Governments”, and accordingly it decided to give Governments more time to prepare their comments.5 The General Assembly has repeatedly noted that consulting with national organizations and individual experts concerned with international law may assist Governments in considering whether to make comments and observations on drafts submitted by the Commission and formulating their comments and observations.6 The written comments have been supplemented by the comments made during the annual debates in the Sixth Committee on the Commission’s reports to the General Assembly.7
After the Commission has submitted its final draft to the General Assembly on a topic, the Assembly normally requests comments of Governments on that draft. Such comments are considered by the General Assembly’s Sixth Committee in connection with further consideration of the topic before the convening of the diplomatic conference or in connection with the elaboration of the convention by the General Assembly itself (e.g., special missions, prevention and punishment of crimes against diplomatic agents and other internationally protected persons, and the law of the non-navigational uses of international watercourses), or by the diplomatic conference called upon to draw up the convention on the topic concerned. Occasionally, Governments have also been invited to submit amendments to the Commission’s draft articles before the opening of the diplomatic conference (e.g., consular intercourse and immunities, and law of treaties). Those amendments are subsequently referred to the conference.
Relationship with the General Assembly
The General Assembly, usually on the recommendation of its Sixth Committee, has requested the Commission to study or to continue to study a number of topics, or to give priority to certain topics from among those already selected by the Commission itself; has rejected, or deferred action in respect of, certain drafts and recommendations of the Commission; has referred a draft back to the Commission for reconsideration and redrafting; has invited the Commission to present comments regarding outstanding substantive issues related to the draft articles; has decided to convoke diplomatic conferences to study and adopt draft conventions prepared by the Commission; and has decided to consider and adopt draft conventions prepared by the Commission.8 These collective decisions have sometimes been preceded by, or have given rise to, discussions on the appropriate role of the Assembly and its Sixth Committee in relation to the work of the Commission. These debates and a number of resolutions resulting from them have gradually formed a general pattern of working relationships between the two bodies.
Although the Statute of the Commission is silent on the matter, the Commission from its first session has submitted to the General Assembly a report on the work done at each of its sessions. The well-established practice of annually considering the Commission’s reports in the Sixth Committee has facilitated the development of the existing relationship between the General Assembly and the Commission. The Chairman of the Commission introduces its report in the Sixth Committee and attends the meetings during which the report is considered. The Commission also designates a Special Rapporteur to attend the Sixth Committee under the terms of paragraph 5 of General Assembly resolution 44/35 of 4 December 1989. The Chairman and the Special Rapporteur may make observations during the meetings in response to the comments of delegations and may also meet informally with delegations. Every year several members of the Commission are also designated by their States to serve on the Sixth Committee as representatives. A number of individuals who have been elected to membership in the Commission have at some time represented their States in the Sixth Committee.9
The Commission has made changes with respect to the preparation and content of its report to facilitate a more structured and focused debate in the Sixth Committee. In 1992, the Commission adopted guidelines on the preparation and content of its report which provide, inter alia, as follows: (a) efforts should continue to avoid excessively long reports; (b) the report should include a chapter providing, in a summary form, a general view of the work of the session to which the report refers, including a list of questions on which the Commission would find the views of the Sixth Committee particularly helpful; (c) parts of the report indicating previous work on each topic should continue to be as brief as possible; (d) the summary of debates should be more compact, giving emphasis to trends of opinions rather than to individual views unless such an individual view was a reservation to a decision taken by the Commission; and (e) the presentation of fragmentary results that can not be properly assessed by the Sixth Committee without additional elements should be a summary, with the indication that the matter will be more fully presented in a future report.10 The Commission has requested the Secretariat to circulate the chapters of the report containing a summary of the Commission’s work and the specific issues on which views from Governments would be particularly useful (Chapters II and III, respectively) as well as the text of draft articles adopted at each session shortly after the end of the session before the report is issued.11
The Sixth Committee has also attempted to improve its own method of consideration of the Commission’s report in order to provide effective guidance for the Commission regarding its work, for example, by: (a) indicating the dates when the Commission’s annual report will be considered in the Sixth Committee at the next session of the General Assembly;12 (b) providing for the consideration of the report in late October to give delegates time to examine carefully and prepare statements on the report which is issued in September;13 (c) inviting the Commission, when circumstances so warrant, to request a Special Rapporteur to attend the session of the General Assembly during the discussion of the respective topic;14 (d) encouraging the holding of informal discussions between the members of the Sixth Committee and those members of the Commission attending the session of the General Assembly;15 and (e) structuring the debates on the report in such a manner that conditions are provided for concentrated attention to each of the main topics dealt with in the report.16 The Sixth Committee has also made suggestions regarding the length and content of the Commission’s reports to the General Assembly, including shortening the report and focusing on points requiring comments by Governments.17 The General Assembly recommended the continuation of efforts to improve the ways in which the report of the Commission is considered in the Sixth Committee, with a view to providing effective guidance for the Commission in its work.18
The Sixth Committee, following its consideration of the Commission’s report,19 submits a report to the General Assembly which contains a summary of its consideration of the agenda item, including the relevant documentation, as well as one or more draft resolutions recommended for adoption by the General Assembly. The General Assembly considers and adopts a resolution on the report of the Commission, usually as recommended by the Sixth Committee without change, indicating any recommendations or instructions that it may have with respect to the Commission’s work, both substantive and procedural. The General Assembly may also adopt a separate resolution or decision, again based on the recommendation of the Sixth Committee, with respect to a particular topic relating to the Commission’s work when appropriate.20
The Sixth Committee has indicated broad policy guidelines when assigning topics to the Commission or when giving priority to some topics, and has exercised its judgement as to action in regard to the Commission’s final drafts and recommendations. This policy supervision by the Sixth Committee, however, has tended to be exercised with great restraint. The fact that the Commission is a subsidiary organ of the General Assembly has not prevented wide acceptance in the Sixth Committee of the view that the Commission should have a substantial degree of autonomy and that it should not be subject to detailed directives from the Assembly.21 At the same time, the Commission, at each of its sessions, takes fully into consideration the recommendations addressed to it by the General Assembly and the observations made in the Sixth Committee in connection with the Commission’s work in general or its specific drafts.
The Sixth Committee, while carefully examining the Commission’s reports, has never given precise instructions regarding changes in the form or contents of the Commission’s provisional drafts and has refrained from modifying the final drafts submitted by the Commission before reaching the final stage of the codification process, normally the adoption of the corresponding codification convention. The eventual modification of a Commission’s final draft has been left to the body entrusted with the elaboration of the convention. On four occasions, with regard to the topics “Special missions”, “Question of the protection and inviolability of diplomatic agents and other persons entitled to special protection under international law”, “The law of the non-navigational uses of international watercourses” and “Jurisdictional immunities of States and their property”, the Sixth Committee itself was entrusted with the task of elaborating the conventions with a view to their adoption by the General Assembly. In the process of elaborating the conventions, the Sixth Committee acted mutatis mutandis as a codification conference, studying in detail each of the provisions of the draft articles prepared by the International Law Commission and amending some of them.22 The General Assembly subsequently adopted the texts of the Convention on Special Missions and of the Optional Protocol concerning the Compulsory Settlement of Disputes relating thereto, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, the Convention on the Law of Non-navigational Uses of International Watercourses, as well as the United Nations Convention on Jurisdictional Immunities of States and Their Property, as elaborated by the Sixth Committee (see volume II, annex V, sections 5, 7, 12, and 13, respectively).
The General Assembly frequently invites the Commission’s Special Rapporteur on a topic to attend as an expert consultant the proceedings of the body entrusted with the task of elaborating the corresponding codification convention.23 The international conferences which have finalized the Commission’s draft articles and adopted them as conventions have always paid tribute to the Commission for its efforts in the codification and progressive development of international law.
Through its resolutions, the General Assembly has also contributed to establishing and improving the dialogue between the Commission and Governments. The Secretary-General forwards to the Commission and makes available to its members, as appropriate, the relevant resolutions of the General Assembly, as well as the reports and the summary records of the meetings of the Sixth Committee relating to the Commission’s work. In addition, the Secretariat produces the topical summary of the Sixth Committee’s consideration of the report of the Commission as part of the Commission’s documentation for each session.
1 The procedure to be followed in such cases is set forth in article 17, paragraph 2, of the Statute.
2 See Yearbook of the International Law Commission, 1980, vol. II (Part Two), para. 191. The Commission has emphasized the importance of the written comments submitted by Governments in response to the Commission’s requests on particular topics as an indispensable part of the dialogue between the Commission and Governments. See Yearbook of the International Law Commission, 1999, vol. II (Part Two), para. 616.
3 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 180; and Yearbook of the International Law Commission, 1999, vol. II (Part Two), para. 617.
4 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 148 (d).
5 See Yearbook of the International Law Commission, 1958, vol. II, document A/3859, paras. 60 and 61.
6 See, for instance, General Assembly resolution 52/156 of 15 December 1997 and subsequent resolutions on the report of the International Law Commission.
7 Until 1979, the relevant reports of the Sixth Committee to the General Assembly contained a summary of the main trends of the discussion in that Committee of the reports of the International Law Commission. For practical reasons, the summary has, since 1980, been issued as part of the Commission’s documentation and entitled “topical summaries”.
8 The General Assembly has usually taken the action recommended by the Commission with respect to its final products on the various topics and special assignments with the exception of the draft articles on arbitral procedure (submitted by the Commission in 1953), most-favoured-nation clauses and status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier. In some cases, the General Assembly undertook further work on the text adopted by the Commission before taking the recommended action. For example, while the Commission, on transmitting the draft articles on jurisdictional immunities of States to the General Assembly, recommended the convening of a diplomatic conference to adopt the treaty, the Assembly established a Working Group of the Sixth Committee to consider several issues arising out of the draft articles. It was only following the resolution of those matters that a convention was adopted—by the Assembly itself (see Part III.A, section 22). The same recommendation was made by the Commission on transmitting the draft statute for an international criminal court. However, the General Assembly first established an Ad Hoc Committee, followed by a Preparatory Committee whose revised version of the draft statute was the text considered by the Rome Conference, in 1998 (see Part III.A, section 7(c)). The Commission has recognized that whether a particular set of draft articles is acceptable or appropriate for adoption at a given time is essentially a matter of policy for States. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 182. At the time of writing, a final decision by the General Assembly on the outcome of the following draft articles was still pending: the draft articles on responsibility of States for internationally wrongful acts (adopted by the Commission at its fifty-third session, in 2001), the draft articles on prevention of transboundary harm from hazardous activities (adopted by the Commission at its fifty-third session, in 2001), the draft articles on diplomatic protection (adopted by the Commission at its fifty-eighth session, in 2006); the draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities (adopted by the Commission at its fifty-eighth session, in 2006); the draft articles on the law of transboundary aquifers (adopted by the Commission at its sixtieth session, in 2008); the draft articles on the responsibility of international organizations (adopted by the Commission at its sixty-third session, in 2011); the draft articles on the effects of armed conflicts on treaties (adopted by the Commission at its sixty-third session, in 2011); and the Guide to Practice on Reservations to Treaties (adopted by the Commission at its sixty-third session, in 2011).
9 This practice has not met with approval by all. See, for example, the criticism expressed by the representative of the United Kingdom during the debate on the Commission’s report in the Sixth Committee, at the fifty-fourth session of the General Assembly, in 1999. Document A/C.6/54/SR.24, para.35 (“Confusing the roles of Commission member and [G]overnment representative had not ensured independence or objectivity ...”).
10 See Yearbook of the International Law Commission, 1992, vol. II (Part Two), para. 373. The Commission has extended its practice of highlighting the issues on which comment is specifically sought in a special chapter of its annual report to the General Assembly devoted to specific issues on which comments would be of particular interest to the Commission. See Yearbook of the International Law Commission, 1999, vol. II (Part Two), para. 614. This practice has been endorsed by the General Assembly which has requested the Commission to continue to pay special attention to indicating in its annual report for each topic, those specific issues, if any, on which expressions of views by Governments, either in the Sixth Committee or in written form, would be of particular interest in providing effective guidance for the Commission in its future work. See, for instance, General Assembly resolution 44/35 of 4 December 1989 and subsequent resolutions on the report of the International Law Commission.
11 See Yearbook of the International Law Commission, 1977, vol. II (Part Two), para. 130 and ibid., 2003, vol. II (Part Two), para. 445.. The relevant chapters are also posted on the Commission’s website shortly after the end of the session. In 1996, the Commission recommended that the issues on which comment is specifically sought from the Sixth Committee should be identified, if possible, before the adoption of draft articles on the point and these issues should be of a more general, “strategic” character rather than issues of drafting technique. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 148 (c) and 181. In 2003, the Commission further noted that Special Rapporteurs may wish to provide sufficient background and substantive elaboration to better assist Governments in developing their responses. See ibid., 2003, vol. II (Part Two), para. 446.
13 In 2003, following an initiative by Sweden and Austria, the General Assembly designated the first week in which the report of the Commission is discussed in the Sixth Committee to be known as “International Law Week”, and encouraged Member States to consider being represented at the level of legal adviser during that week. See General Assembly resolution 58/77 of 9 December 2003 and subsequent resolutions.
14 General Assembly resolution 44/35 of 4 December 1989.
15 General Assembly resolution 55/152 of 12 December 2000 and subsequent resolutions. Each year since 2004, informal consultations have been held, at the annual meeting of the Sixth Committee, between the members of the Committee and those Special Rapporteurs of the Commission in attendance, to discuss issues arising out of the work of the Commission. The General Assembly has welcomed this so-called “enhanced dialogue” between the two bodies and called for its continuation. See General Assembly resolution 59/41 of 2 December 2004, and subsequent resolutions. A special event, held in Geneva in May 2008 to commemorate the sixtieth anniversary of the Commission, included several meetings, involving legal advisers of member States and other international law experts, focusing on the Commission’s cooperation with member States. See Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10), paras. 336–340.
16 Some of the changes have been instituted by the Sixth Committee based on the suggestions made by the Commission. See, for instance, Yearbook of the International Law Commission, 1977, vol. II (Part Two), paras. 127–129; ibid., 1988, vol. II (Part Two), paras. 581 and 582; and ibid., 1989, vol. II (Part Two), para. 742.
17 This was one of the recommendations made by the Ad Hoc Working Group of the Sixth Committee established at the forty-third session of the General Assembly, in 1988, to deal with the question of improving the ways in which the report of the Commission was considered in the Committee, with a view to providing effective guidance for the Commission in its work. The Working Group’s conclusions were summarized in the oral report of its Chairman to the Sixth Committee (see document A/C.6/43/SR.40, paras. 10–18). The relevant paragraphs of the summary record of the 40th meeting of the Sixth Committee are reproduced in the topical summary of the forty-third session of the General Assembly (see document A/CN.4/L.431, annex 2).
19 The report of the Sixth Committee on the agenda item relating to the report of the International Law Commission, which indicates the relevant documentation, is published in the Official Records of the General Assembly for each session. Relevant information may also be found on the web site of the Sixth Committee.
20 In some situations, a topic relating to the work of the Commission may be considered by the General Assembly as a separate agenda item and be the subject of a separate resolution or decision. For example, a topic on which the Commission has already submitted a final report to the General Assembly would not be covered in its subsequent annual reports to the General Assembly. Therefore, the consideration of this topic by the General Assembly would be provided for under a separate agenda item until the Assembly has concluded its consideration of the topic. In 2006, the General Assembly decided to include in the provisional agenda of its sixty-second session (2007) a single agenda item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm”, to consider two separate sets of draft articles developed by the Commission (the first on “prevention”, adopted in 2001, and the second on “liability” adopted in 2006). See General Assembly resolution 61/36 of 4 December 2006.
21 See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 18.
22 In a further instance, concerning the topic “Jurisdictional immunities of States and their property”, the Sixth Committee was involved in the task of elaborating a draft convention, initially through two Working Groups which were established to resolve several outstanding matters arising out of the Commission’s draft articles (see Part III.A., section 22). Subsequently, an Ad Hoc Committee was established by the General Assembly to finalize the text of the draft convention, the text of which was considered and submitted by the Sixth Committee to the General Assembly for adoption as the United Nations Convention on Jurisdictional Immunities of States and their property.
23 See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 93 and 98 (d). Commission members have, on occasion, also been active in the Sixth Committee’s consideration of the Commission’s work, albeit in their capacity as Government representatives. For example, the informal consultations on the draft articles on jurisdictional immunities of States and their property, held in the context of the Sixth Committee, as well as the first working group established by the Committee, were chaired by a sitting member of the Commission. The second working group, established by the Committee in 1999, and the Ad Hoc Committee established by the General Assembly in 2000 to finalize the draft convention, were also chaired by a member of the Commission.