The Functions of the International Law Commission: Identifying Existing Law or Proposing New Law?

Abstract

The question in the title of this article was suggested by the organizers of the International Law Commission’s seventieth anniversary seminar. Before addressing the question, that is looking at the codification and development of international law, it is necessary to reflect on a broader issue relating to the functions of the Commission at a time marked by the plurality of actors on the international stage, their growing interdependence and the fact that these processes called globalization “seem to be beyond the control of even the most economically and militarily powerful States”.1 International lawmaking is clearly no longer the exclusive competence of States,2 but the Commission continues to emphasize the primary role of States. Furthermore, it must be recognized that State consent is not a single given act; it is part of a complex process of interactions. Placed within the new context of lawmaking, this view of State consent as a process accepts in some manner the plurality of actors and their influence on States. The question of the content and purpose of the International Law Commission’s functions, i.e., of the role of the Commission today, has to be reviewed within this new context of international lawmaking and the results of this review should consistently be taken into account.