The International Law Commission and Change: Not Tracing but Facing It

Abstract

International law is undergoing profound transformations. This affirmation has become a commonplace nowadays, but as most commonplaces, it reflects reality. But then again, the reality underlying commonplaces tends to be more complex than what the latter is able to tell us on its own, and this complexity can only be grasped through differentiation. This is also the case when one tries to understand what international law’s transformations are actually about. In an initial step, one has to differentiate between changes in and of international law. In the first case, we are in the presence of international law’s contents and how they evolve over time. The second concerns the changing ways in which contents are made. Changes in the law do not transform a legal system into something else, at least not from a formal, systemic point of view. Debates about the increasing juridification of international affairs are about changes in the law. As Hans Kelsen already observed, there are no fixed material boundaries to international law because it can deal with any subjectmatter States agree to regulate on the international plane.2 The International Law Commission is a privileged witness of the genesis, transformation, and decay of international legal materials due to its place within the United Nations Organization, the assistance it receives from the United Nations Office of Legal Affairs, the institutionalized communication with States, especially through the channel of the General Assembly’s Sixth Committee,3 the legitimacy it enjoys because of its multiregional