By Aniruddha Rajput*
Unlike the process of law making in domestic legal regimes, the process of law making in international law is decentralized and horizontal. There is no legislature in the international legal system. The General Assembly of the United Nations serves as a forum for deliberations by the entire membership of the United Nations and some of the activities there do contribute towards creation of a law. Yet its roles, functions and powers are not entirely comparable with a legislature at the domestic law level. Absence of a centralized legislature or a vertical system does not imply that there is no process of law making. The process of law making – unconventional as compared to domestic system is set out in Article 38 (1) of the Statute of the International Court of Justice. The sources of law specified therein: custom, treaty, general principles and subsidiary sources (judicial decisions and writings of publicists) specify the sources but do not discuss the legislative process in international law.
In the field of international law, there is a distinction between law making and law identification. Formally, the task of law making is performed by states. They are the primary actors of international law. Even if a law is created by an international organization, it is essentially created by its constituents: the states. It is undeniable that other actors in international law such as multinational corporations, NGOs, etc. influence the process of law making but they do not by themselves create the law. There is a distinction between impacting the process of law-making and actually making the law.
Despite the lack of a legislature and centralized procedure, the United Nations General Assembly and the institutions associated with it are important contributors towards the international legislative process. The international legislative process impacts the process of lawmaking although it does not make the law by itself. The international legislative process, on the face of it, seems to be simply collating pieces of evidence to support the claim that some law has developed in the field – they are themselves in their own way contributing towards the advancement of international law. The contribution of the International Law Commission is this process is crucial.
Article 13 (1) (a) states that it shall be the responsibility of the United National General Assembly to ensure progressive development and codification of international law. It says:
“Article 13 (1) The General Assembly shall initiate studies and make recommendations for the purpose of:
- a) promoting international co-operation in the political field and encouraging the progressive development of international law and its codification.”
Both the functions: progressive development and codification are crucial for international law. Both of them involve an element of codification i.e. putting down the legal provisions in words. Codification of laws introduces certainty as well as clarity about the state of the law. In a rule based system and an international community aspiring for peace and prosperity covering more and more areas of interaction between states in the sphere of codification is important.
Although the twin task of codification and progressive development has been relegated to the General Assembly, it is difficult to expect that the General Assembly would do the task by itself. The Sixth Committee of the General Assembly is entrusted with the function of deliberating international law The workload of the Sixth Committee is heavy and the process is cumbersome. The Sixth Committee is composed of all member states and each topic is deliberated thoroughly. All member states of the United Nations have a right to participate in the process. It is convenient if the task of codification is done by a smaller group rather than the entire General Assembly deliberating on each aspect of the issue at hand. The proceedings of the smaller group could then be put forth for the consideration of the General Assembly. The exercise of retrospective sanction is a faster process. Also, the Sixth Committee is comprised of legal representatives of Member States. The participants in the Sixth Committee are mostly legal experts yet expected to keep priorities of their state in mind while participating in the process. They are employed by their states. The proceedings may not be exclusively diplomatic or political but these considerations are important influential factors. It was felt necessary to have a group of independent experts that would sit separately, codify international law and then get back to the Sixth Committee. This expedites the process and having independent experts allows independent legal thinking to influence the process of codification. The International Law Commission performs this function. The International Law Commission codifies international law and thereafter reports back to the General Assembly. It is then for the General Assembly to either adopt, recognize or reject the codification or reports prepared by the ILC.
The International Law Commission was created by the United National General Assembly through the General Assembly Resolution 174 (11) dated 21 November 1957. The Commission was constituted for performing the crucial function of the General Assembly of progressive development and codification of international law under Article 13 (1) (a) of the UN Charter. The objective of the Commission is threefold: promotion of international law, progressive development of international law and codification of international law. The Commission primarily concerns itself with public international law but there is no restriction on it to enter the field of private international law.
The task of the International Law Commission is progressive development and codification of international law. Article 15 of the Statute of the International Law Commission defines the functions as follows:
“In the following articles the expression “progressive development of international law” is used for convenience as meaning 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. Similarly, the expression “codification of international law” is used for convenience as meaning the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine.”
The functions of progressive development and codification are are conflated. It is not possible to strictly segregate these functions.
The Commission therefore is not strictly codifying customary law but is also contributing towards its development. The importance of the work of the Commission is that the Commission receives comments from States on the areas that the Commission is codifying. This operates as a check of the actual status of law and what states think. This is important because the process of law making in international law emerges from the activities of the states. The process of taking inputs from the states in the process of drafting and codifying adds credibility of its work.
The Commission has made sterling contribution to the international legislative process. Its most vital contribution has been in the field of the law of the sea. The 1958 Convention on High Seas, Convention on Continental Shelf and Convention on Territorial Sea was based on the drafts prepared by the International Law Commission. The second most important area is codification of law of state responsibility. Likewise the ILC Draft Articles on Responsibility of International Organizations.The process of codification of the ILC Draft Articles on State Responsibility took a very long time. The codification process began in 1956 but underwent lot of transformations including changes in the scope of the subject. One of the criticisms of the Commission is the time taken on some subjects. It needs to be appreciated that some areas of law are complex as well as controversial. There have been occasions when the Commission has completed the tasks in a short span of time. The impact of the work of the Commission is manifest. Many international adjudicating bodies have cited the ILC Draft Articles on Responsibility of States for Wrongful Acts. The work of the Commission is frequently used in dispute resolution. It is also helpful for scholars working the areas where the Commission has already done some work or is in the process of doing work. The Commission is presently working on the identification of customary international law. This is a very important area from the practical as well as theoretical standpoint.
The International Law Commission is an important participant in the international legislative process. Its role and the subjects that it should codify are being discussed and rethought – including the need of such a body for the future. These debates will contribute towards improving the work and activities of the Commission and surely the institution will have a lot more to contribute in the future of the international legislative process because the interactions between states are rising. If interactions between states continue to increase newer areas get covered and state practice enhances thus providing fertile ground for codification. All that needs to be seen is how does the Commission understands the challenges and responds to them.
Presently, there is relatively less research and scholarship in this field. There is a need to understand the position and function of the International Law Commission in the set-up of the international legislative process in greater detail.
 See Menno T. Kamminga, ‘Multinational Corporations in International Law’ , Oxford Biographies, available at: http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0049.xml. UN Charter, available at: http://www.un.org/en/sections/un-charter/chapter-iv/index.html.
 Darft Articles on MFN were rejected but the report of the ILC on MFN is accepted.
 Article 1 (1), Statute of the International Law Commission, available at: http://legal.un.org/ilc/texts/instruments/english/statute/statute.pdf.
 Article 1 (2), ibid.
 The International Law Commission: Fifty Years After: An Evaluation: Proceedings of the Seminar held to commemorate the fiftieth anniversary of the International Law Commission, 21-22 April 1998, United Nations, New York, 2000.
 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, available at: http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.
 ILC Draft Articles on Responsibility of International Organizations, 2011 available at: http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_11_2011.pdf.
 For a history of the process at the International Law Commission see James Crawford, State Responsibility, Oxford Public International Law, available at: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1093.
(* Dr. Aniruddha Rajput is India’s Candidate for the United Nations International Law Commission. He practices in the Supreme Court of India and is presently the Additional Advocate General for State of Jharkhand in the Supreme Court. He practices primarily in the field of international law, constitutional law, commercial laws, arbitration and public procurement. He is currently a member of the 5th Haryana State Finance Commission constituted under Articles 243 I and Y of the Constitution of India. He researches and writes in the field of law of the sea, boundary disputes, use of force, international trade and foreign investment. His articles have appeared in journals published by Oxford and Cambridge University Press. He is currently working on a book to be published with Kluwer International. Email: email@example.com.)