THE INTERNATIONAL LAW COMMISSION AT ABOUT 60

by STEPHEN VASCIANNIE

Sunday, June 28, 2009

Source: Jamaica Observer

The United Nations International Law Commission had its first elections for members in November 1948, and held its first session in April 1949. It may therefore be about 60 or 61 years old, depending on the date one chooses as the formal starting point.

The commission is a subsidiary body of the United Nations General Assembly, and its mandate, in keeping with Article 13(1)(a) of the United Nations Charter, is to work for the progressive development and codification of international law. Thus, at its meetings, held in Geneva in two sessions per year, members of the commission are called upon to consider particular international developments, and place them within the framework of international law.

Trinidad Cement

As the history of the International Law Commission demonstrates, the work of progressive development and codification of the law is of considerable practical significance. For example, one of the leading treaties in the world today, the Vienna Convention on the Law of Treaties (1969), sometimes referred to as "the treaty about treaties", was drafted by the International Law Commission, and now has at least 108 States Parties.

Numerous rules in this treaty now represent the international law that is binding on all states; and, generally speaking, if you want to understand fully the terms of any treaty, you would be well-advised to consult the rules of interpretation set out in the Vienna Convention on the Law of Treaties.

This is not just theory for academic use.

The Caribbean Court of Justice, in the first case under its Original Jurisdiction - Trinidad Cement Limited and TCL (Guyana) v. Guyana (2009) - was called upon to interpret the meaning of Article 222 of the Revised Treaty of Chaguaramas, pertaining to whether, and in what circumstances, a national company of Guyana may bring a case to the Court against the Government of Guyana.

Not surprisingly, in reaching its conclusion in this case, the Caribbean Court of Justice relied on the rules of interpretation set out in Article 31 of the Vienna Convention on the Law of Treaties, rules that had their origin in the work of the International Law Commission.

Similarly, in a series of cases, including the Case of the Territorial Dispute between the Libyan Arab Jamahiriya and Chad (1994) and the Maritime Delimitation and Territorial Questions Case (Qatar v. Bahrain) (1995), the International Court of Justice, based in The Hague, has expressly accepted that the commission's rules on treaty interpretation have the status of customary international law.

Montego Bay Convention

Nor should it be believed that the impact of the International Law Commission's work is confined to the law of treaties. Matters concerning the regulation of activities in the sea are now, generally speaking, governed by the 1982 Montego Bay Convention (or the Law of the Sea Convention), which was drawn up after years of negotiations among states at the Third United Nations Conference on the Law of the Sea (UNCLOS III).

What is not often appreciated, however, is that several parts of the Montego Bay Convention draw direct inspiration from three treaties on the law of the sea originally prepared by the International Law Commission. These treaties - the Convention on the Territorial Sea and Contiguous Zone, the Convention on the Continental Shelf and the Convention on the High Seas - provided the basis for many rules in the law of the sea from 1958 until they were overtaken by, or incorporated into, the rules in the Montego Bay Convention.

Particularly with reference to the Convention on the Territorial Sea and Contiguous Zone, and the Convention on the High Seas, the basic template created by the International Law Commission prevails in the law today. Thus, in the current discussions about piracy off the coast of Africa, or in the past debate about Caribbean Shiprider agreements with the United States of America, rules originating from the commission have been at issue.

Also, on one reading, the rules applied by the arbitral tribunal in the maritime delimitation case between Trinidad and Tobago and Barbados (the "Flying Fish Case") have their roots in the Convention on the Continental Shelf drafted by the commission.

The day-to-day significance of past work by the International Law Commission is further exemplified by the Vienna Convention on Diplomatic Relations (1961), which entered into force in 1964, and now has over 177 states parties. From time to time, when there are apparent instances of abuse of diplomatic privileges and immunities, lay persons will call for amendments to the terms of this treaty; but, in fairness, the current system concerning the treatment of diplomats has worked well throughout the world: these rules have protected diplomats from the vagaries of host country decisions, and have thereby facilitated lawful means of diplomatic exchange.

Current Work

But, to be sure, the International Law Commission cannot rest on its past achievements, and must tend to the progressive development and codification of new areas of international law. With this in mind, the following items, among others, are now on the agenda of the commission:

(a) the expulsion of aliens;
(b) protection of persons in the event of disasters;
(c) immunity of state officials from foreign criminal jurisdiction;
(d) the Most-Favoured-Nation clause;
(e) responsibility of international organisations;
(f) shared natural resources;
(g) the obligation to extradite or prosecute (aut dedere aut judicare);
(h) reservations to treaties; and
(i) treaties over time.

The work of the commission on some of these issues is far more advanced than on others. And it will be evident from the list that some will be of immediate relevance to Caribbean countries, while others may affect us only occasionally.

In the former category, the question of expulsion of aliens (in the context of Caribbean migration), the most-favoured-nation clause (in the context of the recent EPA arguments), and the protection of persons in disasters (in a region prone to hurricane damage), all seem to merit special, though not exclusive, attention.

Finally, in this brief overview, it should be noted that the International Law Commission comprises 34 lawyers drawn from all regions of the world, as recognised in the United Nations system. The equitable distribution of seats on the commission on the basis of geographical representation ensures that the different legal systems of the world are represented, and that divergent perspectives on different points of law are fully represented.

The members of the commission serve in their personal capacities, and are drawn from among practitioners, professors of law, and diplomats.

- Stephen Vasciannie, principal of the Norman Manley Law School, is a member of the United Nations Law Commission