INTERNATIONAL LAW COMMISSION ASKED TO DO TOO MUCH, STATE SPEAKERS AT INTERNATIONAL LAW COLLOQUIUM
Press Release
L/2844
INTERNATIONAL LAW COMMISSION ASKED TO DO TOO MUCH, STATE SPEAKERS AT INTERNATIONAL LAW COLLOQUIUM
19971028 Say Commission Can Develop, Not Revolutionize International Law; Panels Address Selection of Codification Topics, Shaping of International LawThe International Law Commission was asked to do too much, creating expectations that it could not live up to, said some participants this afternoon, during the second session of the United Nations Colloquium on the Progressive Development and Codification of International Law.
While the Commission was assigned the duty of progressive development and codification of international law, it could not be a body that revolutionized international law, speakers said. Further, it was unfair to accuse the Commission of being too cautious in developing international law, as it was working within the boundaries as set by Member States and could not tackle topics beyond its competence.
The Colloquium's discussion this afternoon was directed through two panels, dealing with: the selection of topics for codification by the Commission; and the Commission's work and the shaping of international law. The panellists for the first topic were: Christopher W. Pinto, Secretary- General, Iran-United States Claims Tribunal; Maurice Kamto, a professor at the Institute of International Relations of Cameroon, University of Yaoundé; and M.K. Nawaz, a research consultant at the India University, Bangalore. The second panel consisted of: Sir Kenneth Keith, Judge of the New Zealand Court of Appeal; and Huikang Huang, a professor at the Wu Han University, China.
The afternoon session was moderated by Carlos Calero-Rodrigues of Brazil, a former member of the International Law Commission.
The Colloquium will continue at 10 a.m. Wednesday, 29 October, with a discussion on two topics: enhancing the Commission's relationship with other lawmaking bodies and making international law more relevant and readily available. The Colloquium is being held to commemorate the fiftieth anniversary of the International Law Commission.
Discussion on Selection of Topics for Codification
CHRISTOPHER W. PINTO, Secretary-General of the Iran-United States Claims Tribunal, said that qualified women should be elected to the Commission, whose members should voluntarily agree to limit their membership to two full terms. He stressed the need for the Commission to be involved in more issues outside its annual sessions. It should extend and intensify its collaboration with scientific associations, research bodies and universities and with individuals -- the end-users of the law. The Commission could consider direct communication with national and international institutions through the Internet.
He also suggested that the Commission should intensify its intersessional activities and also consider establishing a number of working groups. It should have a permanent working group to review the implementation and effectiveness of multilateral treaties. A review published annually would report on adherence to such treaties. A second working group could gather current information on all multilateral treaty-making activities. The group should aim at bringing to light possible duplication of efforts; call attention to interrelated studies or initiatives of relevance to current treaty negotiations; identify inconsistencies in emerging treaty provisions and recording lacunae which might need to be studied with a view to coverage on a priority basis.
A third working group would focus on fundamental studies, gathering material and carrying out in-depth studies concerning implementation and effectiveness of all international law, evaluating its impact or lack thereof on the quality of life of individuals, he said. The group would consider ways of dealing with the problems associated with the creation and implementation of international law.
The Commission should be equipped to maintain its leadership position in the progressive development and codification of international law, he continued.
MAURICE KAMTO, Professor in the Institute of International Relations of Cameroon at the University of Yaoundé, said the General Assembly was the principal organ in the selection of topics the Commission could address. The Commission, however, did have the latitude to select topics that could be a candidate for codification. While the Commission had departed from topics that involved the progressive development of international law, criticism that the Commission had been too cautious in recent year was exaggerated. The Commission could not tackle topics that were beyond its competence, and some topics were better left to other bodies. The Convention on the Law of the Sea, for example, was better left to a diplomatic conference than to the Commission because of political considerations.
On the Commission's methods of work, he said the Commission should not reduce its work load. The General Assembly should make the effort to allow an
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adequate amount of time for the Commission to complete what the Assembly wanted it to do. By limiting its time for work, the Assembly was reducing the Commission's effectiveness.
M.K. NAWAZ, Research Consultant at India University's National Law School in Bangalore, said the Commission had been given the task of the progressive development of international law. That did not mean revolutionary development. However, the Commission did need to concentrate more on development if it was going to be effective in the twenty-first century. In order to move forward, it needed a vision of what international law was going to be in the next century.
In addition to that futuristic orientation, he said, the Commission also needed to stress humanism in the consideration of law. Its work should be far more oriented to people's needs than to States' interests. Sometimes human interests and needs might transcend a State's interests.
With those points in mind, he suggested topics that should be considered by the Commission. They included the mass exodus of people facing imminent threats of death and/or starvation, an issue that was likely to gain greater prominence in the years to come. The time was ripe for the codification and progressive development of law on that topic. The Commission should also take up the topic of the elimination of corruption in international commercial transactions. The liberalization of world trade and economic policies in the third world had added new impetus to the need for international law in that area.
In the discussion that followed, some participants suggested topics for consideration by the Commission, such as the principle of good neighbourliness, and the legal consequences of national legislation on other countries. Flexibility in the Commission's work methods and selection of subjects were also called for.
Some participants called for a study on reservations expressed by States to conventions or draft texts adopted by the Commission or on why a number of such texts had not been endorsed or adhered to by States. They said the Commission should work quickly on subjects that had been clearly identified. There should also be a study on the kind of end-products of the Commission's work envisaged by States.
There was a suggestion that the Commission should reflect on the themes of the first International Peace Conference held in 1899 and to contribute to discussions on those themes during the centennial commemoration of the Conference in 1999.
Responding to the comments, Mr. PINTO, Secretary-General of the Iran- United States Claims Tribunal, said the Commission could adopt topics which
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could be viewed as primary laws, such as legal consequences of domestic laws. The subject of the new international economic order was now relevant and could be considered by the Commission. There should be a secretariat body to select topics for the Commission and another to study its working methods. The Fifth Committee (Administrative and Budgetary) should examine the cost of such bodies.
CARLOS CALERO-RODRIGUES, of Brazil, a former member of the Commission and moderator of the panel discussion, however, said that the Commission itself should decide on the topics it should consider. Its members should be present at all times at its meetings. Perhaps two categories of members could be created -- one group could attend all meetings, and the rest present for decision-making. The Commission should continue reviewing of its work methods.
Mr. NAWAZ, of India University in Bangalore, said the Commission should not work in isolation from other bodies. There was a lot to be said about examining national legislations which had extra-territorial implications. The issue should be studied because of the growing powers of multinational corporations.
Discussion on Shaping of International Law
Sir KENNETH KEITH, Judge of the New Zealand Court of Appeal, said that powers that were once in the hands of governments and princes were now in private hands. It was a new world, which required a new, normative international law. To meet that need, the Commission should concentrate not only on development and codification, but also on the promotion of international cooperation in the economic, social and cultural fields.
During his experience in law, he had noticed an increasing range of activity that was governed by international law, he continued. A great range of topics that were once thought to be purely domestic were now under the realm of international law. In New Zealand, a case in which international laws applied came up every one or two months. With that in mind, the Commission should consider the fundamental character of international law and, in general, the way it perceives it roles.
In that regard, he added, the Commission should consider other forms through which it could influence international law, outside of creating binding conventions. It should look more to model laws, declarations and restatements that could have a positive effect on the behaviour of States. The subject of unilateral acts of States, for example, might be a good candidate for a declaration, instead of a binding text.
HUIKANG HUANG, Professor of International Law at Wu Han University, China, said there were three questions about the Commission's work that needed
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to be considered: what had been accomplished by the Commission? what was the major problem with its work? and what could be done to improve and enhance that work?
The contributions of the Commission should be fully recognized and highlighted, he said. The Commission had been criticized too much, in light of its commendable work over the last half century. The Commission had played a very important role in codification and had made contributions to the progressive development of international law, with just one example being the topic of treaty law. Even unfinished texts of the Commission had an effect on the behaviour of States. He added, however, that there was a key problem -- very few States had formally adopted the Commission's draft texts. Often, even signatory States to a convention did not follow the convention's mandates. To address that problem, the General Assembly should conduct an overall survey of the Commission's work. That work should be examined with the goal of discovering why States, especially those in the third world, were reluctant to participate in many of the Commission's conventions.
In the floor discussion that followed, participants suggested that a study be done on why draft conventions proposed by the Commission were not popular. There were also questions about whether the Commission was competent to give an advisory legal opinion on cases that could best be handled by the International Court of Justice.
A participant suggested that "stillborn" conventions of the Commission -- those that had not been accepted by States -- should be replaced and more thought should be given to avoiding work on drafts that had no universal appeal. The orientation of the Commission's work should be carefully determined. However, he added, guidelines by the Sixth Committee on such matters had not been useful. He suggested the involvement of experts from the International Law Association.
Some other participants said provisions of the so-called stillborn instruments had been invoked to resolve disputes among States. The conventions could serve a useful purpose in the future. For example, many participants could not have envisioned that certain conventions initiated by the Commission would result in current universal law.
There were observations that codification of international law should be viewed from a historical perspective. The General Assembly was blamed for increasing the workload of the Commission. Participants also said the Commission should focus on few items and its new special rapporteurs should be given time to settle into their assignments. A former member of the Commission said it had been examining its work methods and agenda which had led to considerable improvements. Suggestions of a crisis in the affairs of the Commission were exaggerated, he said.
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In response, Mr. KAMTO, of the University of Yaoundé, said there were certain subjects which lent themselves to easier codification, in the form of normative guidelines.
HANS CORELL, Under-Secretary-General for Legal Affairs and the United Nations Legal Counsel, said that every convention had its own dynamics. There were many ratifications of conventions when political interest was high and the subject matter was in the mainstream. The General Assembly had, last May, adopted the Convention on International Watercourses following a major effort by the Commission. The various regional bodies should consider the problem of non-acceptance of some of the Commission's draft texts.
Mr. HUIKANG, of Wu Han University, said States were key players in the development of international law and should do more to help the Commission in its work.
Sir KENNETH KEITH called for technical assistance for small States in the preparation of legislation.
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