International Law Commission - Essay Example

The role and work of the international law commission: Origins of International Law movements: The concept of developing international law by bringing forth already accepted rules or through the design of new rules has a long history in international affairs. Prominent intellectual of the last century Jeremy Bentham proposed a system that would allow “codification of the whole of international law, though in a utopian spirit” (Lee, 546). Since then, many attempts have been made to achieve a comprehensive code of international law, with the help of various governments across the world. The prime motivating factor for world institutions to make progress with the codification movement arises from the belief that by having a framework of written laws and regulations, international disputes and conflicts could be resolved without resorting to force. Moreover, the torchbearers of the movement believed that “by filling existing gaps in the law, as well as by giving precision to abstract general principles whose practical application is not settled” (Lee, 546). This international law movement can be traced back to the early years of the nineteenth century – the Congress of Vienna (1814-1815) being a good example. During those times though, the emphasis was on making provisions pertaining to water sharing agreements, abolition of slavery, etc. The culmination of these efforts was the historically significant Powers of the Treaty of Paris of 1814. Since those days, the international law movement had advanced to application in other areas. The following passage describes its evolution over the last two centuries: “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.” (Lee, 546) A key achievement by the commission: Now, with the growing presence of United Nations agencies in many developmental and relief operations across the world, the nature and scope of the International Law Commission (which by the way comes under the purview of the United Nations) has changed very much. For example, the International Law Commission recently completed its work on water resources management issues. This has come at a time when political tension between geographical neighbors is on the increase due to a lack of sound water sharing agreements. This latest work of the commission helps clarify the law and hence helps in promoting and consolidating harmonious relations between states in their use of common water sources (McCaffrey, 307). UNILC’s internal democratic structure: Moreover, since the end of the cold war, the UN has had greater freedom in going about meeting its objectives. The internal structure of the UN has also changed since then to represent all states. For instance, “At present the five powers with vetoes on the Security Council are interpreting that job more widely than ever before. The UN is ready to intervene on a growing number of issues, from nuclear proliferation to civil wars. The rule that what governments do to their own people is their own affair--witness the Kurds in Iraq--is no longer sacrosanct. The idea that what harms democracy and human rights also threatens peace is gaining ground. The UNILC is to be credited for this radical change in international justice” (Lee, 547) Yet the world we live in today does not always provide suitable punishments for breaches in international law. It can “exhort, it can boycott and blockade (or ask governments to) and it can go to war (or bless an alliance of its members)”. But from being inert to adopting a forceful approach, there is a more practical middle path that requires exploration. The UNILC has found success in filling this gap and intends to take it further in the future. The UNILC and human rights: As to laws, there are several treaties that nations have made to discipline their own actions. For example, “the Universal Declaration of Human Rights, the genocide convention, the Hague convention on the laws of war, the Geneva protocol against the use of chemical and bacteriological weapons” are all made possible due to voluntary participation by member countries, although there are occasional lapses and breaches of agreements by member states. This is certainly progressive, when viewed in the context of the last century that saw two world wars that resulted in the loss of several millions lives. As to jurisdiction, “it is commonly agreed that for the nastiest crimes--slavery, genocide, gross breaches of the laws of war--any state can bring charges against an offending government”. For these actions, in lawyers terminology, “jurisdiction is universal”, which means that any nation has the right to bring a charge against another offending nation. Such improvements in the conduct of international affairs should be credited to the UNILC and its liaising agencies (Graefrath, 596). The UNILC is also a better model in dealing with human rights issues. For example, “Being international, it can better avoid the appearance of partiality. It already has an international court at The Hague, whose authority and self-confidence are growing. Its 15 judges, nominated for nine years by the Security Council and confirmed by the General Assembly, are picked to reflect the variety of the worlds legal systems. At present the court deals only with non-criminal disputes between states, but its job could be extended to handle criminal breaches of international law. Early on at least, only states could ask for a case to be heard”. (McCaffrey, 304) No system of justice ever rises as a perfect functioning organization. Western Europe has a “human-rights system where a court can, and frequently does, oblige governments to change their minds”. Some states were reluctant to obey its dictates. But slowly they realized the advantage of submitting to international law. The world may not ever see a “fully developed criminal court”. But it can take move in that direction and UNILC is a step in the right direction (Paolillo, 82). The working groups of UNILC: The Commission has employed working groups, also known as “subcommittees, study groups or consultative groups, on particular topics”. These temporarily instantiated subsidiaries have been established by the UNILC for a broad range of purposes that with different requirements. The UNILC has also formed several working groups on new issues confronting international law. It has also appointing a Special Rapporteur to undertake an initial assessment of the work and to help “define the scope and direction of work” that includes:       (a)    “Recognition of States and Governments;       (b)     Succession of States and Governments;       (c)     Jurisdictional immunities of States and their property;       (d)     Jurisdiction with regard to crimes committed outside national territory;       (e)     Regime of the high seas;       (f)      Regime of territorial waters; [78]         (g)     Nationality, including statelessness;       (h)     Treatment of aliens;       (i)      Right of asylum;       (j)      Law of treaties;       (k)     Diplomatic intercourse and immunities;       (l)      Consular intercourse and immunities;”       (m)    State responsibility;  and (n) Arbitral procedure. (Paolillo, 80) The Commission has also conceived and implemented working groups after appointing a Special Rapporteur to deal with particular issues as well as to create momentum for future projects on those issues. These can be very broad in scope and can include “arbitral procedure; State responsibility; relations between States and international organizations (first part of the topic and second part of the topic); draft code of offences against the peace and security of mankind; international liability for injurious consequences arising out of acts not prohibited by international law (the topic as a whole, prevention aspect of the topic and liability aspect of the topic); unilateral acts of States; nationality in relation to the succession of States; diplomatic protection; responsibility of international organizations; and shared natural resources.” (Paolillo, 79) Whatever be the mandate of each working group, it is always accountable and subordinate to the broader goals of the UNILC. This ensures that the founding objectives of the commission are catered to as well as helps lay down the parameters of any study, to revise and, if need be, to update old proposals, and finally to make a final judgment on the effectiveness of the work. The UNILC adopts a systematic approach to selecting its topics of work. As per its comprehensive Statute documents, the UNILC will consider any proposal “for the progressive development of international law”, but only if referred by the General Assembly or if presented by participating nation-states in the UN. Sometimes proposals are considered if they originate from the key agencies of the UN apart from the General Assembly, such as “specialized agencies or official bodies established by intergovernmental agreements to encourage the progressive development and codification of international law”. When it comes to actual codification, the UNILC is required to perform a comprehensive analysis of the entire international law canon in order to choose the most relevant topics. On top of that, the UNILC can recommend to the General Assembly that it feels requires immediate judicial attention (Graefrath, 597). Assessing the Commission’s Work: The commission is constantly on the lookout for improving its processes and working frameworks. So, in order to identify areas of improvement, the commission carries out critical studies periodically. Two most prominent one are the one by the UN Institute for Training and Research and another one by Professor B.G. Ramcharan. However, there have been criticisms that such critical analyses are not done frequently enough. But for what they are worth, these studies revealed some important facts regarding the international law, especially with respect to “outer space, human rights law, international humanitarian law, environmental law and international economic law” (McCaffrey, 312). Nevertheless, the UNILC needs to adopt more dynamic work models and need to carry out more introspective projects on its own efficacy and efficiency as well as its ability to achieve goals. The two studies mentioned above made some constructive recommendations for the overall improvement of the functioning of the commission. They suggest, 1. that the Commissions session be split into a four-week winter session and an eight-week summer session; 2. that the Commission work in chambers or subcommittees; 3. that it become a full-time body or at least have full-time rapporteurs; 4. that support by the Secretariat and the Commissions access to research facilities be increased; 5. that the agenda be condensed so that not every item is dealt with each year and items that are no longer important to governments are deleted; and 6. that the Commissions output be varied to include restatements, model rules and reports, in addition to conventions. (Graefrath, 595) So, what this shows is that the UNILC is never shy of looking in the mirror and trying to rectify its flaws. The only grievance could be the frequency of such clean-up projects, which some analysts consider to be very important for the commission to be an effective international mediating forum (McCaffrey, 314). On the other hand, the Commission’s work in the fields of diplomatic and consular law achieved better success and recognition. The commission’s work in the area of international oceanic waters being the most appreciated one. According to one UN legal counselor, “This topic was considered by the Commission at its 1957 and 1958 sessions, the General Assembly decided to convene an international conference on the recommended of the Commission. The conference, held in April 1961, led to the adoption of the Vienna Convention on Diplomatic Relations, an Optional Protocol concerning Acquisition of Nationality, and an Optional Protocol concerning Compulsory Settlement of Disputes arising from the Application or Interpretation of the Convention” (Graefrath, 595). Upcoming Legislative programs of the Commission: With its impressive track record in aiding international peace and harmony, the Commission is set to achieve more legal milestones in the future. The Commission takes cognizance of the fact that its standards are dipping in certain key areas, as noted by the UNITAR report of 1981. For example, according to this study, “The commission was the Commissions declining to assert its competence over the developing law of outer space that set the stage for the proliferation of more ad hoc bodies. Once launched, the tendency expanded to include even some of the areas which had customarily been considered to be within the domain of the Commission. Two examples are the creation of the committee on the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction, and the establishment of the Ad Hoc Committee on the Drafting of an International Convention against the Taking of Hostages”. (Lee, 547) The immediate task for the UNILC would be to address these shortcomings so that it can regain its once high standards. Other assignments would include formulating legal guidelines pertaining to extraterrestrial space (as in satellite orbits, etc). This area assumes special significance given the rapid advancements in space and telecommunications technology. The commission also needs to follow up on its UN Conference on Trade and Development (UNCTAD) efforts, which alongside UNESCO has remained politically tense, as the industrial world and the emerging markets of the third world vie with each other for economic advantage (McCaffrey, 301). Conclusion: Hence, from the discussion above, we can infer that the UNILC has had a key role to play in the development of international law. It could even be asserted that the criticisms elicited by the Commission’s work are only toward improving its functioning and there is hardly any criticism condemning its programs or questioning its ethical integrity. So far as the perception in certain quarters about the apparent decrease in the significance of the Commission in the context of a uni-polar world (dominated by the only superpower, the United States), it can only be said that such a view would be premature. The Commission had brought about significant changes in international relations since its inception and has an even bigger role to play in the face of the proliferation nuclear weapons and religious fundamentalism. Works Cited: B Graefrath, “The International Law Commission Tomorrow: Improving its Organization and Methods of Work” 85 AJIL 595 (1991). Felipe Paolillo, An Over-View of the International Law-Making Process and the Role of the International Law Commission, in Making Better International Law 79 (1998). Luke T Lee, “International Law Commission Re-examined”, 59 AJIL 545 (1965). McCaffrey, Stephen C. "An assessment of the work of the International Law Commission." Natural Resources Journal 36.n2 (Spring 1996): 297-318. 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