The International Law Commission plays an important role in codifying and progressively developing international law. It was established by the UN General Assembly in 1947 to initiate studies and make recommendations to encourage the development of international law. The Commission comprises experts in international law who focus on codifying established rules of state practice and developing new rules to address issues not yet regulated by international law. Some of the Commission's most important works include the Vienna Conventions on treaties and diplomatic relations. The Commission engages in consultation and seeks to balance codification with progressive development to ensure its products reflect the needs of the international community.

1. The International Law Commission plays an important role in the codification and
progressive development of international law.
Discuss. (10 marks)
The International Law Commission was established by the General Assembly, in
1947. According to Article 13 (1) (a) of the Charter of the United Nations, the International
Law Commission is to "initiate studies and make recommendations for the purpose of
encouraging the progressive development of international law and its codification".1 The
commission is an expert body, comprises of "persons of recognized competence in
international law", they are people who are familiar with international law. Commission
focuses on the codification and progressive development of international law.2
According the to the Statutes of the international law that was taken in 1947,
"codification" is a term composed "precise formulation and systematization of the law in
those areas where the rules have already been extensively covered by State practice,
precedent and doctrine". "Progressive development" is then defined as "drafts of projects of
Conventions on issues that are not covered yet by international law or has not developed into
the practice of States"3
The forefather of the codification movement is Jeremy Bentham. He was a lawyer,
philosopher and social activist. He had a strong believed in the importance of positive law
where he quote “to be without a code is to be without justice”. In his perspective, a complete,
written code would remove legal gaps and inconsistencies and make the law accessible to all.
Bentham’s efforts in codification has extended to the international sphere. In regards to this,
he hoped that a set of written rules could end war and preserve peace. 4
1
International Law Commission. (2018) <http://legal.un.org/ilc/> accessed on 20 November 2018
2
UN Documentation: International Law. (2018) < https://research.un.org/en/docs/law/ga>accessed on 20
November 2018
3
The Statute of the International Law Commission. United Nations Audiovisual Library of International Law,
(2014)
4
Christiane, A. (2018). 70 Years of the International Law Commission: Drawing a Balance for the Future
<https://www.ejiltalk.org/70-years-of-the-international-law-commission-drawing-a-balance-for-the-future/>
accessed on 20 November 2018

2. Some of the codifications works are the Hague Conference 1930 and on international
law commission, also the Vienna Convention on the Law of Treaties and the Vienna
Conventions on Diplomatic and Consular Relations.5 The Hague Conference was on the
topics of nationality, territorial waters and State responsibility. The exercise proved that with
draft conventions and negotiating texts, shorter time was used to cover the many complex
issues on the agenda. Codification transcribed customary law into written agreements which
requires the progressive development of new rules, to fill gaps and resolve conflicts.6 The
Conference had produced some general recommendations to improve the codification
process, in regards to the importance of preparing draft conventions prior to convening a
diplomatic conference.7
The Vienna Convention 1969 on the Law of Treaties and the 2001 articles was on
State responsibility for internationally wrongful acts. The Commission also laid out the
foundation of the current regime on the law of the sea, the 1956 articles concerning the law of
the sea formed the basis of the first Conference on the Law of the Sea in Geneva in 1958, a
process that has set the stage for the subsequent negotiation and adoption of the 1982 United
Nations Convention on the Law of the Sea.8 The Hague and Vienna Convention on the Law
of Treaties, are among the most important ever concluded by commission through the
codification process.9
There are quite number of individual writers that has used the codification process in
their work regarding international law namely Alfons Von Domin Petrushevecz, Prof. Francis
Liber and Dudley Feild. In 1861, an Australian jurist Alfons Von Domin Petrushevecz had
published his code entitled Precis d'un code de droi international which shows the possibility
of codification of international law. Next, in 1863, Professor Francis Liber of the Columbia
University Law School, New York, had drafted the law of War in a body of rules, which the
United States published as "instructions for the Government of Armies of the United States
on the field". The rules were applied in the U.S. civil war and also formed the basis of the
5
Annemarieke, V. (2014). Codification <http://www.oxfordbibliographies.com/view/document/obo-
9780199796953/obo-9780199796953-0079.xml> accessed on 20 November 2018
6
Note at 5
7
Christiane, A. (2018). 70 Years of the International Law Commission: Drawing a Balance for the Future
<https://www.ejiltalk.org/70-years-of-the-international-law-commission-drawing-a-balance-for-the-future/>
accessesd on 20 November 2018
8
Note at 7
9
Gabcikovo/Nagymaros Project. ICJ, Judgment of 25 September 1997 Rep. 1997, p. 7.

3. Hague Regulations. Last but not least, Dudley Feild had published a "draft outlines of
International Code" in 1872.10
One of the most precious aspect of the codification process is the constant co-
operation between the "expert level" and the "political level". This is where lawyers and
politicians worked together in the making of law. However in this process, each level has its
own role where the politicians fix the aims of the law, while the experts propose it.11
Codification also guarantees a diversified regional composition and avoids the
weaknesses noticeable. For example, in the composition of the Human Rights Committee, the
co-operation with the Sixth Committee was far from idea. Both political and expert levels are
in constant dialogue. The process was seen slow but in spite of that the methods of work has
been improving during the last few years, and they guarantee a serene and in-depth
examination of the problem. Despite that, the Commission still believes that when necessary,
the process can be quick and efficient. 12
Apart from codification, another objective of the Commission is “the promotion of the
progressive development of international law in international laws codification. Article 13(1)(a)
of the Charter of the United Nations bestows the responsibility for the codification and
progressive development of international law on the General Assembly. By Resolution 174
(II) of 21 November 1947, the General Assembly established the International Law
Commission to fulfil this function. Chapter 2 of the Statute of the International Law
Commission, entitled “Functions of the International Law Commission”, commences with an
article describing, for the purposes of the Statute, “progressive development of international
law” and “codification of international law” in Article 15. “Progressive development” means
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.
10
Codification of International Law<https://www.srdlawnotes.com/2017/11/codification-of-international-
law.html> accessed on 20 November 2018
11
Alain, P. (2016) Between Codification and Progressive Development of the
Law: Sorne Reflections from the ILC<http://pellet.actu.com/wp-content/uploads/2016/02/PELLET-2004-
Between-codification-and-progressive-development-of-the-law-some-reflections-from-the-ILC.pdf> accessed
on 20 November 2018
12
Note at 9

4. The same chapter then sets out separate procedures for progressive development of
international law. It further distinguishes between (i) cases where the General Assembly
refers to the Commission a proposal for the progressive development of international law;
and (ii) cases where proposals and draft multilateral conventions are submitted by Members
of the United Nations, principal organs other than the General Assembly, specialized
agencies, or official bodies established by intergovernmental agreement to encourage the
progressive development of international law and its codification.
By adopting the progressive approach in developing international laws, the ILC had
subsequently worked and enacted international law and treaties that is parallel and reflects
what the law of that period of time should be. Take for example of child labor practice. Prior
to its abolishment of the practice, it is not considered to be detrimental to the targeted
workforce. As the movements of human rights evolved, society sees child labor as
detrimental acts thus countries started to ban such practices. Subsequently, international laws
followed suit by also banning such practice internationally in the name of human rights. This
shows the example of how the progressiveness of international law looks like. It should be
made to follow and reflects the whims and ever-changing norms in international society.
Another exempli gratia would be the existence and ratifications of treaties. Treaties were
usually made parallel with what the society needs and demanded from the law at certain
period of time. Treaties such as WPPO, Berne Conventions and ICERD reflects how
international is made to be progressive and parallel with the demand of the current
international society.
The International Law Commission also needed to consult its targeted audience as to
the law that they want to enact. Chapter 3 makes provision for the Commission to consult
widely, with any United Nations organ, and with any international or national organizations,
official or non-official as provided in Articles 25 and 26. Articles 16 and 21 also refer to
consultations with scientific institutions and individual experts in formulating anything that
could possibly need their opinions. For instance, when treaties that would ban nuclear bombs
and some dangerous inhumane weapons in wars, UN bodies such as NATO had consulted the
experts on such subject as to what and how can they control the subject matters.. This trend
towards greater consultation seems likely to continue, especially as the Commission takes up
new emerging topics. The Commission has recently held consultations with outside experts
on such topics as Shared natural resources, Responsibility of international organizations, and

5. Protection of persons in the event of disasters. For an instrument drafted in 1947, the Statute
displays a remarkable openness to consultations, both with Governments and with non-
governmental bodies and experts.
Nevertheless, such tasks of making sure that the international is progressive is
monitored by the International Law Commission (ILC) under UN Charter. Article 1,
reflecting Article 13, paragraph 1(a), of the UN Charter, provides that the object of the
Commission is the promotion of the progressive development of international law and its
codification. It further provides that the Commission shall concern itself primarily with
public international law, but is not precluded from entering the field of private international
law. The Commission has not in fact concerned itself with private international law, except
incidentally as part of its consideration of questions of public international law. This
provision shows that although international should be made progressively, the commission
should not infringe too much into state’s affairs and their municipal laws.
As a conclusion, the International Law Commission (ILC) is mandated to encourage
the progressive development of international law and its codification. The progressive
development of international law encompasses the drafting of legal rules in fields that have
not yet been regulated by international law or sufficiently addressed in State practice. In
contrast, the codification of international law refers to the more precise formulation and
systematization of rules of international law on subjects that have already been extensively
covered by State practice, precedent and doctrine. The products of the Commission continue
to impact, for better or for worse, the development of international law. At the same time, the
topics surveyed should also show that the Commission itself is often divided, suggesting that
its products are not always beyond scrutiny. It is thus important that international lawyers and
states actively engage with the work of the Commission to ensure that its products truly
reflect the views and aspirations of the community that it serves.

6. REFERENCE
Treaties
● The Statute of the International Law Commission.(2014) United Nations Audiovisual
Library of International Law.
Case
● Gabcikovo/Nagymaros Project. ICJ, Judgment of 25 September 1997 Rep. 1997, p. 7.
Internet
● International Law Commission. (2018) <http://legal.un.org/ilc/> accessed on 20
November 2018
● UN Documentation: International Law. (2018)
<https://research.un.org/en/docs/law/ga> accessed on 20 November 2018
● Christiane, A. (2018). 70 Years of the International Law Commission: Drawing a
Balance for the Future <https://www.ejiltalk.org/70-years-of-the-international-law-
commission-drawing-a-balance-for-the-future/>accessed on 20 November 2018
● Annemarieke, V. (2014). Codification
<http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-
9780199796953-0079.xml> accessed on 20 November 2018
● Codification of International Law
<https://www.srdlawnotes.com/2017/11/codification-of-international-law.html>
accessed on 20 November 2018
● Alain, P. (2016) Between Codification and Progressive Development of the Law:
Some Reflections from the ILC <http://pellet.actu.com/wp-
content/uploads/2016/02/PELLET-2004-Between-codification-and-progressive-
development-of-the-law-some-reflections-from-the-ILC.pdf> accessed on 20
November 2018