Evolution of the International Law Commission: The Pursuit of Functional and Structural Balance
Habip ÜnyılmazThe International Law Commission (ILC) was established with the aim of promoting the codification and progressive development of international law. Over the years, it has prepared numerous important treaties that are now considered elemental texts of current international law. Thanks to its institutional relations and expertise, the ILC has become an important legal authority that is respected for its work methods and outputs. Throughout its 75 years of service, the ILC has continuously adapted to changes and satisfied expectations. It has strived to maintain a balance among the various needs, demands, and approaches. This study surveys how the ILC has balanced these factors under three themes by first examining the balance between the codification of international customary law and the progressive development of international law as a functional effort. The study also evaluates its trend of preparing soft law texts rather than hard law texts, as well as the reasons and consequences these have had for the ILC. Lastly, the study inspects the ILC’s structural balancing efforts with respect to the number of members and profiles of both the members and the officers. The study will use this analysis to demonstrate that the ILC as an organizational part of the United Nations is in a continuous endeavor for change and balance to maintain its acceptance and usefulness. As such, it remains an important institution in the development and promotion of international law.
Uluslararası Hukuk Komisyonunun Değişimi: İşlevsel ve Yapısal Denge Arayışı
Habip ÜnyılmazUluslararası hukukun tedvinini ve tedricî gelişimini desteklemek üzere kurulan Uluslararası Hukuk Komisyonu, günümüz uluslararası hukukunun temel metinleri arasında sayılabilecek pek çok önemli andlaşmayı hazırlamıştır. Komisyon, kurumsal bağını ve uzmanlığını kullanarak hem çalışma yöntemi hem de çıktıları itibar gören önemli bir hukuk otoritesi haline gelmiştir. Seksen yıla yaklaşan faaliyeti süresince Komisyonun yaşanan değişimlere uyum sağlamak ve beklentileri karşılamak adına farklı ihtiyaçlar, talepler veya yaklaşımlar arasında bir denge kurma gayreti içinde olduğu görülmektedir. Bu çalışmada sayılan bu etkenlerin tespit edilen üç tema uyarınca nasıl dengelendiği araştırılmıştır. Öncelikle Komisyonun işlevini ilgilendiren uluslararası teamül hukukunun tedvini ve uluslararası hukukun tedricî gelişimi arasında kurulmaya çalışılan denge incelenecektir. İkinci olarak yirmi birinci yüzyılda ağırlığını göstermeye başlayan bağlayıcı hukuk metinlerinden esnek hukuk kurallarını içeren metinlere doğru yönelimin Komisyon bakımından nedenleri ve sonuçları değerlendirilecektir. Nihayet kuruluşundan itibaren üye sayısı, üye dağılımı ve görevlileri bakımından Komisyonun yapısal değişimi örneklenecektir. Böylece Birleşmiş Milletlerin örgütsel bir parçası olarak Komisyonun hem kabul edilirliğini hem de faydasını sürdürmek adına sürekli olarak bir değişim ve denge gayreti içerisinde olduğu görülecektir. Komisyon bu suretle uluslararası hukukun gelişimindeki ve güçlenmesindeki önemli rolünü korumaktadır.
The International Law Commission (ILC) was established with the aim of promoting the codification and progressive development of international law. Over the years, it has prepared numerous important treaties, such as the 1961 Vienna Convention on Diplomatic Relations and the 1969 Vienna Convention on Law of Treaties. These conventions are now considered among the elemental texts of the current international legal system.
As a result of its institutional relations and expertise, the ILC has become an important legal authority that is respected for its work methods and outputs. As a subsidiary organ of the United Nations (UN) General Assembly, ILC members have increased over the years and been chosen from the candidates nominated exclusively by the governments of UN member states to assure that “the Commission as a whole representation of the main forms of civilization and of the principal legal systems” (Statue of the ILC art. 8). Meanwhile, the ILC has also developed well-operating work processes to ensure the necessary expertise in its outputs.
This study first examines the ILC’s work methods and structural formation to gain a sense of frequently used terms and concepts regarding the Commission and its outputs. Although the Statute of the ILC (UNGA Res. 174(II), 21 November 1947) provides a fundamental structure for its organization, work methods, and expected output, the ILC’s current operational procedures may not be immediately evident from this statute alone. Therefore, this study provides information based on official sources such as annual reports and yearbooks to reflect a concrete picture of the ILC’s current practices.
Throughout its 75 years of service, the ILC has continuously adapted to changes and satisfied expectations. It has strived to maintain a balance among the various needs, demands, and approaches concerning the ILC’s structural formation, mission, and forms of outputs it has produced.
The present study surveys how the ILC has balanced different factors under three themes, firstly by reviewing the balance between codification and progressive development as a repeating subject in the ILC’s activities. The difficulty in distinguishing these tasks has been apparent since the ILC’s beginning and it wasn’t able to maintain this for long. Currently, the ILC does not differentiate between these tasks, nor does it declare any qualification regarding its outputs purely on this distinction. What has prevailed is the first theme of the composite idea of these two concepts.
The second theme is about what form the ILC’s outputs take. Preparing soft law texts rather than hard law texts has been an obvious trend in the ILC’s works. With the turn of the century, most of the ILC’s outputs were not prepared for being converted into a convention, so the ILC recommend alternative ways of utilizing these texts. When looking at the reasons for this, the trend in changing expectations and diversifying topics comes to the forefront. A considerable percentage of fundamental fields in the international legal system has been codified, and states suffer from the so-called treaty fatigue. Thus, preparing new draft articles to be converted to treaties is not prominently listed among state expectations. Instead, the ILC has turned to different forms for elaborating upon its previous works in complimentary codification and has also preferred the best forms regarding the ripeness of the field for codification and progressive development. These new forms are relatively convenient to study or put on the work schedule with their soft effects due to the reduced opposition among states. However, to think of these changes in form as a decrease in the ILC’s authority or the quality of its work would be erroneous. Current studies and remarks do not indicate a decline in impact regarding the ILC or its outputs.
Lastly, the study inspects the structural balancing efforts with respect to the number of ILC members and profiles of both the members and the officers. Regional representation is the principal practice with regard to the ILC’s structure and work processes. Members are chosen from already defined regional groups in assigned numbers. In order to strengthen the rule of regional representation, the officers that establish the Bureau of the ILC are chosen on a rotating term. Thus, each post is held by each regional group for a normal term of office. Nonetheless, some problems exist regarding the ILC’s structure. The gender gap is obvious, and the number of Special Rapporteurs from specific regional groups and certain legal systems is also problematic.
Through this analysis, the study demonstrates that the ILC as an organizational part of the UN is in a continuous endeavor of change and balance to maintain its acceptance and usefulness. This reconciles the need for clear norms by way of codification and the necessity of adapting new regulative frames by way of progressive development. The ILC adapts to the changing grounds of international order and state preferences in order to accommodate new demands and provide the necessary normative guide. The ILC also strives to represent the differences of its constituents, albeit with some deficiencies. As such, the ILC remains an important institution in the development and promotion of international law.
