COLLOQUIUM ON DEVELOPMENT, CODIFICATION OF INTERNATIONAL LAW BEGINS TWO-DAY SESSION AT HEADQUARTERS

Press Release
L/2842

COLLOQUIUM ON DEVELOPMENT, CODIFICATION OF INTERNATIONAL LAW BEGINS TWO-DAY SESSION AT HEADQUARTERS

The need for the International Law Commission to focus on drafting legal texts which were likely to be adopted by the General Assembly and to limit the number of issues it considered at each session was stressed this morning, as the United Nations Colloquium on the Progressive Development and Codification of International Law began a two-day session at Headquarters. The Colloquium is being held to commemorate the Commission's fiftieth anniversary.

Participants applauded the Commission's contribution to international law, but stressed that it had no independent lawmaking ability, being subject to the mandate given it by Member States. While some said that a very broad agenda slowed down the Commission's work, others felt that it should provide guiding principles in the spheres of international law. The view was also expressed that the Commission might wish to look into the law involved in such contemporary issues as combating terrorism and international sanctions.

In an opening statement, General Assembly President Hennadiy Udovenko (Ukraine) said that no institution had played a greater role in the progressive development and codification of international law through the elaboration of written texts than the Commission. Its draft articles had been transformed into major global conventions, establishing rules in such important fields as diplomatic and consular relations, the law of treaties, State succession, and the non-navigational uses of international watercourses.

Hans Corell, the United Nations Legal Counsel, said a key feature of the Colloquium was its informality, with participants serving in their personal capacities. It was hoped that its mixed group of policy-makers, practitioners and academic experts would generate innovative and practical ideas to strengthen the Commission and enhance its ability to make an effective and positive contribution.

Presentations on an overview of the international lawmaking process and the role of the Commission were then made by the following panellists: Hisashi Owada, Permanent Representative of Japan to the United Nations; Professor Georges Abi-Saab of the Institut universitaire des hautes études

internationales, Geneva; and Professor Yuri M. Kolosov of the Moscow State Institute of International Relations.

A second panel discussion, on major complexities encountered in contemporary international lawmaking, heard statements from these panellists: Peter Tomka, Chairman of the Sixth Committee (Legal); and Professor Francisco Orrego Vicuna of the University of Chile. The moderator for the morning session was Alain Pellet, Chairman of the International Law Commission.

Following the Colloquium's opening meeting, a working luncheon was to be held, with a keynote speech to be delivered by the President of the International Court of Justice, Stephen Schwebel.

The Colloquium will meet again at 3 p.m. today to consider the selection of topics for codification and progressive development by the Commission, as well as its working methods and its role in shaping international law.

Statements

HENNADIY UDOVENKO (Ukraine), President of the General Assembly, said the proliferation of bodies for the elaboration of judicial instruments within the United Nations had demonstrated the vitality of international juridical activity and the need to strengthen the rule of law in world affairs. Together, they had been instrumental in bringing about one of the most important developments in international law during the past half century -- its progressive development and codification through the elaboration of relevant written texts. In that process, no institution had played a greater role than the International Law Commission. The Commission was one of the principal United Nations arms for discharging responsibilities aimed at promoting international law as a fundamental instrument for the maintenance of international peace and security and the enhancement of cooperation among nations.

He noted that the Commission had produced a number of draft articles, setting forth basic rules in key areas of international law. Its draft articles had, in turn, been transformed into major global conventions, establishing rules in such important fields as diplomatic and consular relations and immunities, the law of treaties, special missions, relations between States and international organizations, the succession of States, the law of the sea, and the non-navigational uses of international watercourses. Some of those conventions, such as those dealing with diplomatic and consular relations and the law governing the making, application and termination of treaties, might claim the distinction of being fundamental for modern international behaviour. Without them, international relations would simply not be conducted in the same way as they were today.

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He commended the Commission on its work on the draft code on crimes against peace and security of mankind and the draft statute of the international criminal court, as well as for its activities relating to the draft articles on State responsibility. Of great significance was the Commission's contribution to the stabilization and further development of customary international law. Conventions adopted on the basis of the Commission's draft articles had many times been cited by the International Court of Justice as authoritative evidence of the current state of customary law. That had sometimes occurred even before those conventions had entered into force. The Commission's work had helped contribute to the formation of new rules of customary law.

While paying credit to the Commission's achievements, he said it would be extremely useful if the Colloquium's attention was focused on identifying ways and means for the Commission to fully exploit its potential. Its functioning must be improved and effectiveness increased. The General Assembly had asked the Commission to review its working procedures and to report the results to it.

HANS CORELL, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, said a key feature of the Colloquium was its informality, with participants serving in their personal capacity. He stressed that the Colloquium was not a meeting of the Sixth Committee (Legal) and that what participants said should not be understood to be attributable to any State, organization or institution.

The Colloquium brought together a mixed group of policy-makers, practitioners, participants in international lawmaking and experts from the academic world, he said. It was hoped that it would be possible to generate innovative and practical ideas for strengthening the International Law Commission and enhancing its capacity to make an effective and positive contribution to the progressive development and codification of international law.

Thirty expert guests from academic and research institutions from around the world had been invited to participate in the Colloquium, to serve as a catalyst for the discussions, he said. Thirteen of the experts had also prepared "idea papers" and would serve as panellists, presenting their proposals for strengthening the Commission in the various aspects of its work.

A half-hour video of the Colloquium's proceedings would be produced to help promote wider knowledge of international law and better understanding of its progressive development and codification, he said. It was also intended to publish the proceedings, together with the full texts prepared for the event. Funding for the Colloquium was provided by the Governments of Austria, Cyprus, Finland, Germany, Ireland, Japan, Norway, Peru, Republic of Korea, South Africa, Sweden, Switzerland and the United Kingdom, as well as by the

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Holy See. Two foundations -- the Rita Hauser Foundation and the Fritz-Thyssen Stiftung (the latter through the good offices of the Institut fur internationales Recht, Volkerrecht, of the University of Munich) -- also helped meet the costs.

Discussion on International Lawmaking Process

HISASHI OWADA, Permanent Representative of Japan to the United Nations and Adjunct Professor of International Law at Columbia University, said there were a number of challenges facing the International Law Commission that made its work difficult. Among them was the lack of coordination between the Commission and the General Assembly, which had led to a decreasing number of drafts being adopted by the Assembly. Without sufficient guidance from the Assembly, the Commission's draft treaties did not necessarily respond to the needs of the international community.

There were also a number of politically important treaties prepared by organs other than the Commission, he said. One example was the Law of the Sea: although the Commission provided the original draft for the first conference on the law of the sea, it was excluded from the beginning of the drafting process. The same phenomenon was observed with regard to treaties relating to outer space, human rights and environmental issues. Because the Commission was composed of legal scholars, there was a tendency not to regard it as the appropriate legislative organ to consider those highly political subjects.

GEORGES ABI-SAAB, Professor of International Law at the Institut universitaire des hautes études internationales, Geneva, drew attention to the output or final products of the international lawmaking process. He said that while neither the sceptics nor the partisans of the Commission had expected it to be very productive, its products, at least in the first 25 years, had exceeded all expectations. One of the disadvantages of codification of international law by treaties was the double regime that ensued. Hopefully, that duality would disappear through universal accessibility.

YURI M. KOLOSOV, Chair of International Law at Moscow State Institute of International Relations, said that in addition to the International Law Commission, a number of specialized agencies of the United Nations had also been involved in the lawmaking process. While those various bodies had expertise in very specific spheres, the Commission should have a much broader vision. It should concentrate on some multisectoral topics, so that their rules might be applied to most spheres of international relations. Those topics could include the problem of sources of international law, as well as the issue of subjects and actors of international law.

The Commission might also wish to look into several areas of international law that have developed new dimensions during the past several

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decades, he said. Among them were such topics as international cooperation, combating terrorism, the right to international solidarity of peoples, international sanctions, and the territorial integrity of States.

One of the most important goals of international lawmaking since its very inception had been the creation of an international enforcement mechanism. While that mechanism had been absent for centuries, the world community was finally moving towards accepting an international enforcement body. Along with the Commission's other work, that body would contribute to creating the norms and principles of international law, which was the best way to ensure peaceful relations between States.

In the floor discussion following the opening statements by the panellists, suggestions were made regarding reform of United Nations legislative activities and the work of the Commission. The question was also raised as to whether texts emanating from the Sixth Committee could have legal value in the eyes of the Commission.

Mr. ABI-SAAB said he did not see why texts approved by the General Assembly should not be treated in the same way as similar texts prepared by the Commission, depending on their context.

The view was also expressed that the Commission needed to be involved in such issues as the expansion of environmental law. The Commission should develop dialogue with other bodies and keep abreast of other legal developments, some participants said. They also said that the Commission should be more visible in the overall United Nations system and act as some sort of legal adviser.

The challenge for the Commission in the increasing volume of work on the development of international law should be to improve its output without sacrificing the quality of its work, some participants said. Another participant said there should be a way to reconcile the international community's expectations of the Commission. On one hand, it was said that the Commission was not coming up with instant laws; on the other, it was being said that the Commission was not contributing to the long-term stability of international law.

Mr. ABI-SAAD said that he did not mean to imply in earlier comments that it was enough to have a draft law on the table which would automatically become law later on. However, draft laws did provide a valuable resource for judges, who were often looking for such resources on which to base their decisions. If they had an instrument that had been considered and accepted, they would hang onto it like a lifeboat in a huge storm in the middle of the sea. Once a draft law was adopted and came into force, even the most powerful of countries had great trouble getting around it or getting it revised. Those laws did wield a lot of power.

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Another participant said that when the United Nations was formed, it was decided that it should not have legislative power. The role of the Commission should be precisely defined. It should be clear that the Commission did not work independently from governments, but worked hand in hand with them.

MR. OWADA said the Commission had done a marvellous job in the codification and development of international law. Assigning other impossible tasks and expectations to it would not help its work. The Commission was not always the right body to handle a particular issue; subjects were sometimes rightly handed to other agencies or bodies.

Discussion on Complexities in International Lawmaking

FRANCISCO ORREGO VICUNA, Professor of International Law at the University of Chile, said the new task for the International Law Commission should be the systematic identification of basic principles, refining their meaning and extent. There should be an accompanying restatement of international law. The Commission should guide the normative system. The codification and progressive development of international law in a decentralized society required guiding principles. The Commission should not attempt to solve every issue, but concentrate on principles, so as to avoid a comprehensive treatment which would result in a slowed pace of work. Such an approach was time-consuming and rigid.

The Commission should be associated with the United Nations legislative process, with its role limited to classic and specialized areas of international law, he said. It should anticipate the needs of the international community, providing rules for legal emergencies. It should tackle new topics and revise old ones. It should adopt broader concepts of codification and choose topics for its work more freely. It should have an interpretative function with respect to issues before the Security Council, for example. It should be able to provide a legal opinion if requested, and provide certification of international law. The Commission should develop close cooperation with intergovernmental and private bodies.

He called for a recomposition of the Commission. Not all its members should be elected by the General Assembly; some should be appointed by learned institutions and non-governmental organizations, including business groups, he said.

PETER TOMKA, Chairman of the Sixth Committee, said the Committee was far from the only body involved in the drafting of legal conventions. Conventions on the topic of human rights, for example, had been under the competence of the Third Committee (Social, Humanitarian and Cultural), while disarmament law had been relegated to the First Committee (Disarmament and International Security). The law of outer space was also out of the reach of the Sixth Committee. While there had been criticism over the fragmentation of lawmaking

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at the United Nations, that plurality was the intention of the United Nations and Member States.

However, in deciding which body should draft a convention on a particular topic, the importance of the convention should not be the determining factor, he said. Instead, the General Assembly should allocate topics based on their nature and which body was better suited to address it.

Addressing the criticism that the Commission was too slow in preparing draft conventions, he said that in recent decades the production of conventions had taken considerably longer. In the 1970s, the Commission's agenda became overburdened to a point where it had no time to consider all its topics. There had also been an increase in the number of members on the Commission, which had slowed down its work. Also, in the mid-1970s, States had asked that more time be allotted for the submission of comments and observations on issues, so that it now took more than a year to receive responses, and States often submitted no response at all.

He said the Commission could adequately consider three to four topics during one of its 12-week sessions. An agenda any larger than that resulted in a piecemeal approach that allowed insufficient attention for the topics. Items on the agenda should be kept down to a reasonable number, with the goal of creating a final draft on two topics during each session of the Commission.

In the floor discussion which followed, participants cited the need for the Commission to be a focal point for a descriptive overview of contemporary international law not formulated by the Commission itself. The need for better coordination by the Commission with other relevant bodies to reduce the complexities in international lawmaking was also stressed.

One of its members said the Commission had lost its rather comfortable position of being almost a monopolistic entity in the progressive development and codification of international law. A considerable number of other international bodies and institutions had appeared, which were actively participating in that process. The Commission should develop appropriate forms of cooperation with those other lawmaking bodies.

A suggestion was made that the Commission should reconcile the various legal systems. Another participant asked whether Commission members represented States or were independent.

ALAIN PELLET, Chairman of the International Law Commission and moderator of the panel, said Commission members were independent and behaved as such. It was important that they should spread the idea that they were indeed independent. He could guarantee in all good conscience that Commission members behaved independently, even during consideration of issues dear to the countries from which they came.

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Some participants raised the issue of the Commission's workload, suggesting that it should concentrate on a few subject items at a time. The Commission would get feedback from the Sixth Committee if it presented fewer issues for comment. It was important that its reports be made more digestible, they said.

While codification of international law was the responsibility of the Commission, the development of international law was left to Member States, one participant said. The determination of which subjects should be considered by the Commission should be reserved for States. The Commission could suggest to the General Assembly that a topic needed consideration, but that did not mean the Commission could make the Assembly assign its responsibility for that issue.

Mr. TOMKA said that in the progressive development of international law, the initiative should be with States. The Commission could effectively work on a topic only when it had been given the mandate to do so by the Assembly. However, sometimes the mandate was given and the Commission worked for years on a draft, but States decided to shelve it despite the Commission's recommendations. States sometimes said that it was better not to codify law on that subject, to leave it as a gray area. In order for the Commission to avoid needless work, it should often decide to stop work when it was evident that the draft would eventually be shelved by States for political or other reasons.

Mr. VICUNA said the Commission should not become a tribunal or a body that would replace the International Court of Justice. Nevertheless, it could aid many other bodies in legal matters. He also suggested that new actors, such as businesses with international interests, should be invited to participate in the consideration of some international legal issues.

Mr. PELLET said the international community's expectations of the Commission were often too great. While it was entrusted with the codification and development of international law, its job was not to revolutionize the law. It could only go as far as Member States allowed it in developing law; it could not create major upheavals in the field. The Commission could develop law, but radical changes in international law was the responsibility of political forums.

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