Codification and Progressive Development

Multilateral Treatymaking Process-U.N. Review

By its resolution 32/48, adopted December 8, 1977, the United Nations General Assembly requested the Secretary-General to prepare a report on the techniques and procedures used in the elaboration of multilateral treaties, invited Governments and the International Law Commission to submit observations on the subject for inclusion in the report, and requested those specialized agencies and other interested organizations active in preparing and studying multilateral treaties, as well as the United Nations Institute for Training and Research, upon request, to lend any necessary assistance.

The United States comment addressed the importance of multilateral treatymaking in the codification and progressive development of international law, and also examined the three areas in the multilateral treatymaking process itself: (1) preparation of draft texts, including a discussion of the role and operating procedures of both the International Law Commission and the United Nations Commission on International Trade Law; (2) the international legislative process; and (3) the stage in which States agree to become parties to conventions. The introduction and the first part of the United States comment follow:

(footnotes renumbered from U.N. text)

1. The Government of the United States strongly supports the growth of a more effective system of international law. The principal contemporary means of enacting international law is the multilateral treaty. Accordingly, the mechanics of that means are necessarily important. Its processes merit study, and its imperfections require the consideration and action of the international community.

2. The statements made in the United Nations General Assembly on the introduction of this item by the representative of Australia and others (A/C.6/32/SR.46-50) point to certain problems which have developed over the years, which may impede the full

utilization of the multilateral treatymaking process as a means of developing the content and efficacy of international law. While there may be differences of opinion among members as to which problems loom largest, there should be no such differences about the desirability of enhancing the efficiency of the process. Nor should the recognition that problems exist and that the process inevitably is susceptible of improvement becloud the fact that attainments in the codification and progressive development of international law during the last 30 years are substantial. In view of the deep differences of policy and even ideology that divide many States, those attainments appear the more impressive. At the same time, those differences impose limits on what further advances may be achieved at any rate, in the short run-respecting both the substance and procedures of international law.

3. The corpus of work of the International Law Commission, which stands at the center of United Nations codification processes, is impressive in quantity and quality. That judgment applies as well, in its specialized sphere, to the United Nations Commission on International Trade Law. Care must be taken lest any efforts at improvement in the processes of multilateral treatymaking result in a system less effective than that pursued by the International Law Commission and by UNCITRAL.

4. Moreover, it must be borne in mind that at least some of the obstacles to the more expeditious and effective operation of the multilateral treaty-making process lie not in the area of identification and solution of problems of law and policy and the preparation of texts but rather in what might be called the absorptive capacity of States. The sparsity and slowness of comments of States on treaty drafts, the state of preparation of delegations to committees and conferences of plenipotentiaries, the frequent requests to defer the convening of conferences because of the press of other business, and the length of time that States take to ratify treaties-when they ratify them at all-suggest that the problems may lie at least as much in the ability of States to absorb treaties and to participate in their preparation as in the capacity of existing or future mechanisms to elaborate them.

I. PREPARATION OF TEXTS

6. The United Nations has followed a variety of methods in preparing drafts of treaties. The two primary bodies that have been entrusted with the task are the International Law Commission, whose mandate is broad and fundamental, and the United Nations Commission on International Trade Law, whose mandate is much narrower but important in its sphere. Use has also been made of committees of the General Assembly and the Economic and Social Council and ad hoc committees of States and of individual experts. Each approach has had its successes. In the United Nations era, there have also been significant forums for multilateral treatymaking outside of the United Nations ambit, among them the Organization of American States, the Council of Europe, and the conferences for the revision of the Geneva Conventions

convened by the International Committee of the Red Cross and the Government of Switzerland.

7. While the United States recognizes the advantages of each forum in particular circumstances, experience appears to indicate that, as a rule, the preferred United Nations method is to have the initial drafting of treaty texts done by the International Law Commission (or UNCITRAL in the field of international trade and related commercial areas). The capacity of the International Law Commission is of course limited, though it may be capable of expansion; in any event, it should be exploited in full.

8. With the benefit of hindsight, it may well be that reference to the International Law Commission of the law of the sea issues in the late 1960s would have materially expedited matters. While certain basic political and economic issues might have had to have been thrashed out in a larger forum before remission of a draft treaty to a conference of plenipotentiaries, many problems might have been settled more expeditiously and the issues which needed political disposition clarified by the preparation of a basic, comprehensive text at an earlier stage than proved to be the case. The comparative experiences of the International Law Commission in the 1950s and of the First and Second United Nations Conferences on the Law of the Sea so suggest. Nor should the capacity of the International Law Commission to negotiate accommodation of differences of policy be underestimated; the process of codification inevitably demands that capacity, which is enhanced in the Commission's case by participation in its work of some members of political and diplomatic experience who hold or have held senior official positions.

9. To take another example of the professionalism and relative expeditiousness of the International Law Commission, it proved able to complete the draft articles on the prevention and punishment of crimes against diplomatic agents and other protected persons1 in one session whereas the Ad Hoc Committee on the Drafting of an International Convention against Taking of Hostages has taken three sessions to bring a treaty draft almost to completion.2 Again, a recent plenipotentiary conference on asylum which did not have the advantage of a draft convention prepared by the Commission did not succeed in elaborating a convention (it was provided with a draft prepared by a specially convened committee of experts, which, however, did not have the benefit of the Commission's ripening processes). No criticism of the path actually followed in these or other cases is advanced; but it is suggested that, in the future, the unique professionalism and potential of the International Law Commission should be borne fully in mind in all cases. Where a subject has large legal content and is of broad interest to the international community, recourse to the Commission should be the first course to be considered.

10. At the same time, it is important that the current agenda of the International Law Commission not be overloaded, and that the Commission be afforded considerable discretion in the priority and pace which it attaches to various topics. The Commission-and the General Assembly in agenda advice to the Commission-should concentrate on subjects of substantial, practical importance. It is reassuring that the Commission has taken up the most substantial

and practical subjects of the law of the non-navigational uses of international watercourses and the jurisdictional immunities of States and their property. By the same token, it is not reassuring that the Commission has devoted the time it has to the subject of treaties concluded between States and international organizations or between two or more international organizations. Nor is it clear that the Commission will do well to address the subject of the immunities of the officials of international secretariats, in view of the greater significance of other subjects. It is equally important that, when the Commission is charged with subjects of large dimensions, it emphasize those aspects that pose real problems in the conduct of international affairs. It would, for example, be a most positive development if the continuing preoccupation of the Commission with the vital subject of State responsibility would focus on those aspects of it that are of moment in the affairs of States and their nationals.

11. As noted, it may not be assumed that the present international system as it is now fashioned and funded is capable of absorbing a markedly increased flow of draft conventions. It may be that, in order to do so, foreign ministries and national legislatures will have to devote larger resources to the international legislative process. That would require not a restructuring of the system but a modest reallocation of resources within it, a reallocation that may be overdue. As it is, how many foreign ministries have lawyers functionally and primarily assigned to dealing with the processes and product of the codification and progressive development of international law? Nevertheless, it would seem appropriate to consider whether there are adaptations that could be made by or to existing institutions to the end of enlarging the production and ratification of draft conventions.

A. International Law Commission

12. It is worth reiterating that the quality and quantity of output of the International Law Commission as well as its demonstrated ability to respond expeditiously in special circumstances are such as to require caution before taking any action which would adversely affect the functioning of its system. The process of progressive development and codification is a delicate one requiring the studied application of learning and judgment, as well as of political accommodation. It requires time for reflection both of experts and Governments. It requires opportunity for States to comment in the course of the process in order to maximize the likelihood that the final product will be generally acceptable and, indeed, in order for States to learn the intricacies of the subject matter as the process progresses so they do not face its subsequent phases with insufficient background to take the decisions required in a timely fashion. Accordingly, it may well be that the final conclusion of the examination of the multilateral treaty-making process, insofar as it concerns the International Law Commission, is that the International Law Commission substantially, as it stands and with its current methods of work, is the best system that can be devised at this juncture.

13. Before reaching that conclusion, however, it is believed that there are possibilities that might be examined which relate to such matters as the duration of the Commission's sessions and its methods of work.

1. Duration of Sessions

14. It is believed that the current 12-week session is the longest time period that is consistent with the nature of the Commission as a part-time entity made up of members elected in their personal, expert capacities. Quite apart from other professional demands upon them, it is not reasonable to anticipate that the Commission's members could be expected to devote more time to a body which does not serve as a source of income (the current "honorarium" of $1,000 for participation in a 12-week session is so minor as to be discounted). There is indeed a strong case, within the current length of the Commission's sessions, for giving its members a larger per diem and compensating its special rapporteurs more adequately, perhaps under contractual arrangements which are adjusted to the special rapporteur's charge and product.

15. Alternatively, there is room for considering whether the Commission should be converted into a full-time or quasi-full-time institution with adequate remuneration provided to the members, e.g., in the same manner and scale as Judges of the International Court of Justice. There can be no doubt that such a step would markedly facilitate the task of the Commission in producing a greater volume of work in a shorter period of time. It should be recalled that the report of the Committee on the Progressive Development of International Law and its Codification which proposed the creation of the Commission recommended that it be a full-time body. In 1947, when the General Assembly decided in favor of the current system (resolution 174 (II) of 21 November 1947), there was less certainty than there is today that the Commission was viable and could produce important work. In any reexamination of the desirability of such a step (which the United States raises rather than recommends) consideration should be given, in addition to the absorptive capacity of States, to the following questions that conversion of the Commission into a full-time body would pose: will there be a sufficient volume of work over a long period of time to justify such a step, can the quality of the membership of the Commission be maintained, and are States members willing to absorb the costs in terms of salaries of the members and the increased secretariat staff that would be required to service a full-time Commission? Would the useful relations of many Commission members with their Governments be sustainable if members were to become full-time officials responsible only to the organization? For its part, the United States is not prepared at this juncture to take a position on the relative advantages and disadvantages of a full-time International Law Commission. It would note, however, that what might be a desirable compromise between the current status and that of a full-time Commission would be for selected special rapporteurs to work full-time for the Commission during part or possibly all of their service as special rapporteur.