International Law Commission International Law Commission

Last update: July 31, 2017

About the Commission

Origin and background

Historical antecedents

The idea of developing international law through the restatement of existing rules or through the formulation of new rules is not of recent origin. In the last quarter of the eighteenth century Jeremy Bentham proposed a codification of the whole of international law, though in a utopian spirit.1 Since his time, numerous attempts at codification have been made by private individuals, by learned societies and by Governments.

Enthusiasm for the “codification movement” — the name sometimes given to such attempts — generally stems from the belief that written international law would remove the uncertainties of customary international law by filling existing gaps in the law, as well as by giving precision to abstract general principles whose practical application is not settled.

While it is true that only concrete texts accepted by Governments can directly constitute a body of written international law, private codification efforts, that is, the research and proposals put forward by various societies, institutions and individual authors, have also had a considerable effect on the development of international law. Particularly noteworthy are the various draft codes and proposals prepared by the Institut de Droit International, the International Law Association (both founded in 1873) and the Harvard Research in International Law (established in 1927), which have facilitated the work of various diplomatic conferences convened to adopt general multilateral conventions of a law-making nature.2

Intergovernmental regulation of legal questions of general and permanent interest may be said to have originated at the Congress of Vienna (1814–15), where provisions relating to the regime of international rivers, the abolition of the slave trade and the rank of diplomatic agents were adopted by the signatory Powers of the Treaty of Paris of 1814. Since then, international legal rules have been developed at diplomatic conferences on many other subjects, such as the laws of war on both land and sea, the pacific settlement of international disputes, the unification of private international law, the protection of intellectual property, the regulation of postal services and telecommunications, the regulation of maritime and aerial navigation and various other social and economic questions of international concern.3

Although many of these conventions were isolated events dealing with particular problems and in some cases applied only to certain geographic regions, a substantial number of them resulted from a sustained effort of Governments to develop international law by means of multilateral conventions at successive international conferences.

The protection of industrial property, for instance, has been the subject of successive conferences held since 1880, and the Paris Convention on the subject, first adopted on 20 March 1883, has been progressively revised six times and amended once.4 Similarly, the codification of international law contained in the four Geneva Conventions of 12 August 1949 regarding the protection of war victims and in the Protocols Additional to the Geneva Conventions of 8 June 1977 and 8 December 20055 is the direct descendant of the Geneva Red Cross Convention of 22 August 1864.6

The Hague Peace Conferences of 1899 and 1907, drawing upon the work and experience of preceding conferences on the laws of war and upon the previous practice of some Governments regarding the pacific settlement of international disputes, reached agreement on several important conventions and thus greatly stimulated the movement in favour of codifying international law. The Second Peace Conference of 1907, however, feeling the lack of adequate preparation for its deliberations, proposed that some two years before the probable date of the Third Peace Conference, a preparatory committee should be established “with the tasks of collecting the various proposals to be submitted to the conference, of ascertaining what subjects are ripe for embodiment in an international regulation, and of preparing a programme which the Governments should decide upon in sufficient time to enable it to be carefully examined by the countries interested”.7 Arrangements for the Third Peace Conference were being made when the First World War broke out.

1 In his Principles of International Law (written in the period 1786–1789), Bentham envisaged that an international code, which should be based on a detailed application of his principle of utility to the relations between nations, would not fail to provide a scheme for an everlasting peace. However, he made little effort to base his plans for such a code upon the existing law of nations.

2 See document A/AC.10/25, “Note on the private codification of public international law”.

3 See documents A/AC.10/5, “Historical survey of the development of international law and its codification by international conferences”; and A/AC.10/8, “Outline of the codification of international law in the inter-American system with special reference to the methods of codification”.

4 For the text of the Convention, see United Nations, Treaty Series, vol. 828, p. 107.

5 For the text of the Conventions, see United Nations, Treaty Series, vol. 75, p. 2. For the text of the Protocols, see ibid., vol. 1125, pp. 3 and 609 and vol. 2404, p. 261.

6 See Bevans, Treaties and Other International Agreements of the United States of America, 1776–1949, vol. 1, p. 7.

7 See the Final Act of the Peace Conference of 1907, in J. B. Scott, The Hague Peace Conferences of 1899 and 1907 (1909), vol. II, pp. 289–291.