PART I – SETTING THE SCENE
1.4 Applicable legal sources
1.4.5 The ILC’s outputs as a source of international law
Outputs produced by the ILC are usually considered to be a “subsidiary means for the determination of rules of law” pursuant to article 38 (1) (d) of the ICJ’s Statute.94 This section considers the validity of this assertion, particularly in light of the status of the Commission within the UN system.
As noted above in this Chapter, an attempt of the ILC to deal with the issue of shared oil and gas resources has ended in failure.95 Efforts made by the ILC to establish general rules governing other fields of international law, including the law of State responsibility, were more successful. This thesis examines a number of final outputs produced by the ILC that have direct relevance to the topic, particularly to the second research question identified in Chapter 1.2. For example, it takes into account the draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA),96 draft Articles on the Responsibility of International Organizations (ARIO)97 and draft Articles on Prevention of Transboundary Harm from Hazardous Activities (AP).98 This Chapter earlier referred to the ILC’s draft conclusions on Identification of Customary International Law.99
1.4.5.1 The ILC’s mandate
In 1947, two years after the foundation of the UN, the UNGA adopted a resolution establishing the ILC as a permanent subsidiary organ.100
92 ICJ’s Statute, art. 38 (1) (d).
93 See Bibliography, which includes the literature.
94 See, for example, I. Brownlie, Principles of Public International Law, Oxford University Press, 2003, 6th edition, p. 24; D. D. Caron, “The ILC Articles on State Responsibility: the Paradoxical Relationship between Form and Authority”, American Journal of International Law, 2002, vol. 96 (4), p. 867; M. Peil, “Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the International Court of Justice”, Cambridge Journal of International and Comparative Law, 2012, vol. 1 (3), pp. 148–149.
95 Supra note 11.
96 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third Session, UNGAOR, UN Doc. A/56/10, 2001.
97 Draft Articles on the Responsibility of International Organizations, Report of the ILC on the Work of its Sixty-third Session, UNGAOR, UN Doc. A/66/10, 2011.
98 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Report of the ILC on the Work of its Fifty-third Session, UNGAOR, UN Doc. A/56/10, 2001.
99 Supra note 61.
100 Establishment of an International Law Commission, UNGA Resolution 174 (II) of 21 November 1947.
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The ILC’s Statute defines its goals as promoting the progressive development and codification of international law.101 Formally, the ILC’s Statute considers these goals to be distinct and thereby treats them differently. While codification means “the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine”, progressive development is defined as “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States”.102 Furthermore, the ILC’s Statute underscores the distinction between codification and progressive development by establishing different procedural rules for performing these tasks.
Since such a distinction has proven to be elusive in practice, the ILC has proceeded on the basis of a consolidated procedure for codification and progressive development.
Once the work on a particular topic is completed, the ILC submits its developed materials to the UNGA with a recommendation on what (if any) future actions concerning the texts should be taken. Article 23 of the ILC’s Statute provides the Commission with four options. The ILC may propose to the UNGA to: (a) take no action; (b) take note of or adopt the report by resolution; (c) recommend the completed draft to Member States with a view to the conclusion of a convention; or (d) convene a diplomatic conference to conclude such a convention.
Ultimately, the UNGA has the final word on the fate of the Commission’s final documents.
1.4.5.2 The form of the ILC’s final outputs and their authority
Throughout its history, the final outputs of the ILC were mainly packaged as ‘draft articles’.103 Indeed, many sources considered in this thesis take the form of draft articles.104 As alluded to earlier, the UNGA makes a decision concerning an outcome of the ILC’s work by taking into consideration a recommendation of the ILC. Thus, any further actions in respect of the completed draft articles initially depend on the ILC’s recommendation submitted to the UNGA.
101 Statute of the International Law Commission, adopted by UNGA Resolution 174 (II) of 21 November 1947 and amended by UNGA Resolutions 485 (V) of 12 December 1950, 984 (X) of 3 December 1955, 985 (X) of 3 December 1955 and 36/39 of 18 November 1981, the current version available at http://legal.un.org/docs/?path=../ilc/texts/instruments/english/statute/statute.pdf&lang=EF (last accessed January 2019).
102 Ibid., art. 15.
103 Although draft articles are typical “products” of the ILC, the Commission has produced a number of ‘draft conventions’, ‘draft codes’, ‘draft principles’ and other documents. See J. Katz Cogan, “The Changing Form of the International Law Commissions’ Work”, in: R. Virzo and I. Ingravallo (eds), Evolutions in the Law of International Organizations, 2015, p. 276.
104 See Bibliography. Except for the draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, Report of the ILC on the Work of its Fifty-eighth Session, UNGAOR, UN Doc. A/61/10, 2006 (PAL), and Draft Conclusions on Identification of Customary International Law, supra note 61.
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For most of its history, the ILC reported the draft articles to the UNGA with a recommendation to elaborate a convention (either by the Assembly or by a conference convened by the UNGA) based on them.105 However, over the last 15 years, the ILC’s practice has shifted away from
‘legislative’ codification of international law in favor of ‘non-binding’ codification.106 The current trend of the Commission is, almost without exception, to not recommend that its draft articles be transformed into treaties in the near future.107
Among the draft articles examined in this thesis, only two were recommended by the ILC for drafting into a convention.108 In relation to other draft articles, the ILC recommended to the UNGA to “take note” of the draft articles in a resolution and to “consider, at a later stage, […]
the possibility of convening an international conference […] with a view to concluding a convention on the topic”.109 Except for the draft Articles on the Law of Non-navigational Uses of International Watercourses, no multilateral convention has yet arisen from other draft articles and principles.110 The UNGA has repeatedly taken note of the ARSIWA,111 AP and PAL,112 and ARIO.113 Consequently, this elicits the question of the authority of the draft articles adopted by the ILC.
As noted earlier in this section, draft articles completed by the ILC are traditionally considered to be a “subsidiary means for the determination of rules of law” in the sense of article 38 (1)
105 Katz Cogan, op. cit., pp. 277-278.
106 See in detail F. L. Bordin, “Reflections of Customary International Law: the Authority of Codification Conventions and ILC Draft Articles in International Law”, International and Comparative Law Quarterly, 2014, vol. 63 (3), pp. 538-546; L. R. Helfer and T. Meyer, “Evolution of Codification: A Principal-Agent Theory of the International Law Commission’s Influence”, Duke Law Scholl Public Law & Legal Theory Series, No. 2015-16, pp. 9-16; Katz Cogan, op. cit.
107 Katz Cogan, op. cit., p. 283.
108 There are the draft Articles on the Law of the Non-navigational Uses of International Watercourses, Report of the ILC on the Work of its Forty-sixth Session, UNGAOR, UN Doc. A/49/10, 1994, pp. 88-89, para. 219, and the AP, supra note 98, para. 94, p. 370.
109 As regards the ARSIWA, supra note 96, paras. 72-73, p. 42. The same approach was used when the ILC completed its projects on the ARIO, supra note 97, para. 85, p. 53, and the draft Articles on the Law of Transboundary Aquifers, Report of the ILC on the Work of its Sixtieth Session, UNGAOR, UN Doc. A/63/10, 2008, para. 49, p. 18. In the latter situation, the ILC additionally recommended “to States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers on the basis of the principles enunciated in these articles” (ibid., para. 49 (b)).
110 Watercourses Convention, supra note 53.
111 Responsibility of States for internationally wrongful acts, UNGA Resolutions: A/Res/56/83 of 12 December 2001; A/Res/59/35 of 2 December 2004; A/Res/62/61 of 6 December 2007; A/Res/65/19 of 6 December 2010;
A/Res/68/104 of 18 December 2013; and A/Res/71/133 of 13 December 2016.
112 Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm, UNGA Resolutions: A/Res/56/82 of 12 December 2001; A/Res/61/36 of 4 December 2006;
A/Res/68/114 of 16 December 2013; and A/Res/71/143 of 13 December 2016.
113 Responsibility of international organizations, UNGA Resolutions: A/Res/66/100 of 9 December 2011;
A/Res/69/126 of 10 December 2014; and A/Res/72/122 of 7 December 2017. See also the UNGA Resolutions concerning the draft Articles on the Law of Transboundary Aquifers: for example, UNGA Res. A/Res/68/118 of 16 December 2013 and UNGA Res. A/Res/71/150 of 13 December 2016.
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(d) of the ICJ’s Statute.114 At first glance, this characterization seems to be logical. The Commission is composed of 34 members elected by the UNGA on account of their recognized expertise in the field of international law.115 Hence, the ILC’s draft articles should pertain to the “teaching of the most highly qualified publicists of the various nations”.116 This affirmation may nevertheless be called in question by virtue of the ILC’s legal status. As a UN organ, the work of the ILC has more authority than the work of those non-governmental professional associations that are also involved in the codification process, such as the International Law Association and the Institut de droit international.117 Thus, by this treatment of the ILC’s draft articles as scholarly writings, it is important to acknowledge that they thus occupy a higher standing within this category of sources of law.
However, by revisiting the distinction between progressive development of international law and its codification,118 it appears that a draft article, which falls under the latter category of codification, would amount to an international custom. The difficulty is that the ILC does not usually identify which provision falls into which of these categories.119 As mentioned above, the Commission is guided in its work by a “composite notion” of progressive development of international law and its codification.
International courts and tribunals have addressed this issue. For example, they have proclaimed that many provisions of the ARSIWA reflect customary international law.120 Nevertheless, as noted above in this Chapter, international judicial bodies often abstain from undertaking an examination of State practice and opinio juris. One possible explanation might be that these bodies trust the ILC’s extensive review of State practice and opinio juris.121 However, the ILC’s
114 Supra note 94.
115 ILC’s Statute, supra note 101, arts. 2 and 3.
116 Article 38 of the ICJ’s Statute lists judicial decisions and the teaching of the most highly qualified publicists of the various nations among subsidiary means for the determination of rules of law. See also Chapter 1.4.4.
117 Bordin, op. cit., pp. 558-559.
118 See Chapter 1.4.5.1 in this regard.
119 There are some exceptions. For example, in accordance with the commentary to the ARSIWA, draft article 48 (2) (b) has been incorporated as a measure of progressive development of law, commentary 12 to this draft article.
120 See, for example, Noble Ventures. Inc. v. Romania, Award, ICSID Case No. ARB/01/11, 12 October 2005, para. 69: “[w]hile [the ARSIWA] are not binding, they are widely regarded as a codification of customary international law”; Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the United Mexican States, Award, ICSID Case No. ARB (AF)/04/05, 21 November 2007, para. 116: “[the ARSIWA]
represent in part the “progressive development” of international law – pursuant to its UN mandate – and represent to a large extent a restatement of customary international law regarding secondary principles of state responsibility”; ITLOS’s Advisory Opinion of 2011, paras. 169 and 178. See also supra note 58.
121 S. Villalpando, “On the International Court of Justice and the Determination of Rules of Law”, Leiden Journal of International Law, 2013, vol. 26 (2), p. 247. Villalpando noted that “the Court’s finding that [the ILC’s draft articles’] provisions reflect customary international law is as brief and categorical as its own autonomous determinations of the rules of law, which apparently indicates an increasing trust placed by the Court on the Commission”.
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task is not limited to the codification of existing rules of customary international law. Talmon has noted that in the cases where the ICJ has found a draft article of the ILC to reflect customary international law, the Court did not enquire “whether the Commission was actually codifying international law or whether it was not perhaps progressively developing international law”.122 There are also cases where international courts and tribunals referred to the ILC’s draft articles without touching upon their customary status.123 Although the usage of the draft articles and principles can be criticized, it is worth emphasizing that another credible alternative does not exist, particularly in relation to the law of State responsibility. As a result, the draft articles and principles produced by the ILC apply as a de facto source of international law to an issue once it arises before a court or tribunal. Part III of this thesis looks at a number of the ILC’s draft articles and principles that are relevant when examining the second research question outlined earlier in this Chapter.124