The International Law Commission
, Cambridge, 1987;
The International Law Commission and the Future of International Law
(eds. M. R. An-
derson, A. E. Boyle, A. V. Lowe and C. Wickremasinghe), London, 1998;
International
Law on the Eve of the Twenty-first Century: Views from the International Law Commission
,
New York, 1997; S. Rosenne, ‘The International Law Commission 1949–59’, 36 BYIL,
1960, p. 104, and Rosenne, ‘Relations Between Governments and the International Law
Commission’, 19 YBWA, 1965, p. 183; B. Graefrath, ‘The International Law Commission
Tomorrow: Improving its Organisation and Methods of Work’, 85 AJIL, 1991, p. 597, and
R. P. Dhokalia,
The Codification of Public International Law
, Manchester, 1970.
120
i n t e r nat i o na l l aw
Many of the most important international conventions have grown
out of the Commission’s work. Having decided upon a topic, the Inter-
national Law Commission will prepare a draft. This is submitted to the
various states for their comments and is usually followed by an interna-
tional conference convened by the United Nations. Eventually a treaty
will emerge. This procedure was followed in such international conven-
tions as those on the Law of the Sea in 1958, Diplomatic Relations in
1961, Consular Relations in 1963, Special Missions in 1969 and the Law
of Treaties in 1969. Of course, this smooth operation does not invariably
occur, witness the many conferences at Caracas in 1974, and Geneva and
New York from 1975 to 1982, necessary to produce a new Convention on
the Law of the Sea.
Apart from preparing such drafts, the International Law Commission
also issues reports and studies, and has formulated such documents as the
Draft Declaration on Rights and Duties of States of 1949 and the Principles
of International Law recognised in the Charter of the Nuremberg Tribunal
and in the Judgment of the Tribunal of 1950. The Commission produced a
set of draft articles on the problems of jurisdictional immunities in 1991, a
draft statute for an international criminal court in 1994 and a set of draft
articles on state responsibility in 2001. The drafts of the ILC are often
referred to in the judgments of the International Court of Justice. Indeed,
in his speech to the UN General Assembly in 1997, President Schwebel
noted in referring to the decision in the
Gabˇc´ıkovo–Nagymaros Project
case
212
that the judgment:
is notable, moreover, because of the breadth and depth of the importance
given in it to the work product of the International Law Commission. The
Court’s Judgment not only draws on treaties concluded pursuant to the
Commission’s proceedings: those on the law of treaties, of State succession
in respect of treaties, and the law of international watercourses. It gives great
weight to some of the Commission’s
Draft
Articles on State Responsibility,
as did both Hungary and Slovakia. This is not wholly exceptional; it rather
illustrates the fact that just as the judgments and opinions of the Court have
influenced the work of the International Law Commission, so the work of
the Commission may influence that of the Court.
213
Thus, one can see that the International Law Commission is involved
in at least two of the major sources of law. Its drafts may form the bases of
212
ICJ Reports, 1997, p. 7; 116 ILR, p. 1.
213
See www.icj-cij.org/icjwww/ipresscom/SPEECHES/Ga1997e.htm.
s o u r c e s
121
international treaties which bind those states which have signed and rat-
ified them and which may continue to form part of general international
law, and its work is part of the whole range of state practice which can lead
to new rules of customary law. Its drafts, indeed, may constitute evidence
of custom, contribute to the corpus of usages which may create new law
and evidence the
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