International Law Commission

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The International Law Commission was established by the UN General Assembly, in 1947, to undertake the mandate of the Assembly, under
UN General Assembly article 13 (1) (a) of the Charter of the United Nations to "initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification".

Object of the Commission

Article 1, paragraph 1, of the Statute of the International Law Commission provides that the “Commission shall have for its object the promotion of the progressive development of international law and its codification”. Article 15 of the statute makes a distinction “for convenience” between progressive development as meaning “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” and codification as meaning “the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine”. In practice, the Commission’s work on a topic usually involves some aspects of the progressive development as well as the codification of international law, with the balance between the two varying depending on the particular topic.

Although the drafters of the statute envisaged that somewhat different methods would be used in regard to progressive development, on the one hand, and codification, on the other, they thought it desirable to entrust both tasks to a single commission. Furthermore, they did not favour proposals for the setting up of separate commissions for public, for private and for international criminal law. Thus article 1, paragraph 2, of the statute states that the Commission “shall concern itself primarily with public international law, but is not precluded from entering the field of private international law”.

For more than sixty years, however, the Commission has worked almost exclusively in the field of public international law. In 1996, the Commission noted that in recent years it had not entered the field of private international law, except incidentally and in the course of work on subjects of public international law; moreover, it seemed unlikely that the Commission would be called upon to do so having regard to the work of bodies such as the United Nations Commission on International Trade Law (UNCITRAL) and the Hague Conference on Private International Law.

The Commission has worked extensively in the field of international criminal law, beginning with the formulation of the Nürnberg principles and the consideration of the question of international criminal jurisdiction at its first session, in 1949, which culminated in the completion of the draft Statute for an International Criminal Court at its forty-sixth session, in 19944, and the draft Code of Crimes against the Peace and Security of Mankind at its forty-eighth session, in 19965. At its sixty-seventh session, in 2014, the Commission adopted the final report on the topic “the obligation to extradite or prosecute (aut dedere aut judicare)”. At the same session, the Commission decided to include the topic “Crimes against humanity” in its programme of work.

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