International Law Commission International Law Commission

Last update: July 31, 2017

About the Commission

Origin and background

Drafting and implementation of Article 13, paragraph 1, of the Charter of the United Nations

The Governments participating in the drafting of the Charter of the United Nations were overwhelmingly opposed to conferring on the United Nations legislative power to enact binding rules of international law. As a corollary, they also rejected proposals to confer on the General Assembly the power to impose certain general conventions on States by some form of majority vote. There was, however, strong support for conferring on the General Assembly the more limited powers of study and recommendation, which led to the adoption of the following provision in Article 13, paragraph 1:1

“1. The General Assembly shall initiate studies and make recommendations for the purpose of:

“a. … encouraging the progressive development of international law and its codification.”

During the second part of its first session, the General Assembly, on 11 December 1946, adopted resolution 94 (I) establishing the Committee on the Progressive Development of International Law and its Codification, sometimes known as the “Committee of Seventeen”. The Committee was directed to consider the procedures to be recommended for the discharge of the General Assembly’s responsibilities under Article 13, paragraph 1.

The Committee held thirty meetings from 12 May to 17 June 1947 and adopted a report recommending the establishment of an international law commission and setting forth provisions designed to serve as the basis for its statute.2

Several important questions of principle relating to the organization, scope, functions and methods of an international law commission were thoroughly discussed by the Committee. Some members of the Committee saw no marked distinction between the progressive development of international law and its codification. In both cases, they observed, it would be necessary to conclude international conventions before the results were binding on States. Most of the other members, however, thought that there were differences of a substantive nature between codification and progressive development, although there were divergences in the emphasis they placed on one or the other of the two concepts.3

As to the composition of an international law commission, the majority of the Committee favoured the idea that members should not be representatives of Governments but rather should serve in their individual capacities as persons of recognized competence in international law. While some members of the Committee stressed the scientific and non-political nature of the work to be performed by the proposed commission, the majority of the Committee took the view that the work of the commission should always be carried out in close cooperation with the political authorities of States and that actions in respect of the drafts prepared by the Commission should be decided upon by the General Assembly.

During the second session of the General Assembly, a large majority of the Sixth (Legal) Committee4 favoured the setting up of an international law commission, and a draft statute of the International Law Commission was prepared by a subcommittee of the Sixth Committee.5 On 21 November 1947, the General Assembly adopted resolution 174 (II), establishing the International Law Commission (ILC) and approving its statute. Since then, the statute has been amended by six further resolutions of the General Assembly, adopted partly on the initiative of the Commission and partly on that of Governments.6 The text of the statute, as it now stands, is reproduced in annex I.

In accordance with the relevant provisions of the statute (articles 3 to 10), the first elections to the International Law Commission took place on 3 November 1948, and the Commission opened the first of its annual sessions on 12 April 1949.

1 See Documents of the United Nations Conference on International Organization, San Francisco, 1945, vol. III, documents 1 and 2; vol. VIII, document 1151; and vol. IX, documents 203, 416, 507, 536, 571, 792, 795 and 848.

2 See Official Records of the General Assembly, Second Session, Sixth Committee, Annex 1.

3 See the discussion on the methods of work in relation to the progressive development and codification of international law.

4 The Sixth Committee is the main committee of the General Assembly of the United Nations which is entrusted with the consideration of legal issues. See rules of procedure of the General Assembly, rule 98 (document A/520/Rev.17). Relevant information and documentation may be found on the official web site of the Sixth Committee.

5 See Official Records of the General Assembly, Second Session, Sixth Committee, Annex 1g.

6 See General Assembly resolutions 485 (V) of 12 December 1950, 984 (X) and 985 (X) of 3 December 1955, 1103 (XI) of 18 December 1956, 1647 (XVI) of 6 November 1961 and 36/39 of 18 November 1981. The amendments relate to the expenses to be paid to the members of the Commission, the location of the Commission’s meetings, the extension of the term of office of Commission members, the size of the Commission as well as the regional distribution of its membership. In 1996, the Commission noted that its statute, which was drafted shortly after the end of the Second World War, had never been the subject of a thorough review and revision. The Commission concluded that, on the whole, the statute had been flexible enough to allow modifications in practice. At the same time, the Commission drew attention to some aspects of the statute which warranted review and revision as the Commission approached its fiftieth year. The Commission recommended that consideration be given to consolidating and updating the Commission’s statute to coincide with the fiftieth anniversary of the Commission in 1999. See Yearbook … 1996, vol. II (Part Two), paras. 147 (a), 148 (s) and 241–243.