Between Codification and Legislation: a Role for the International Law Commission as an Autonomous Law-Maker

Abstract

The United Nations International Law Commission, an institution entrusted with the responsibility to codify and progressively develop international law,1 continues to play a pivotal role in the international legal process. Challenges and doubts notwithstanding,2 the Commission has proved itself as a pertinent contributor to the international lawmaking process over the course of the past seventy years. The past decade has witnessed the reinvigoration of the International Law Commission, both institutionally and intellectually. In terms of its legislative functions, the Commission has been actively expanding its working territory. The Commission has not only continued to address traditional topics primarily in public international law, in accordance with paragraph 2 of article 1 of its statute,3 such as customary international law, the law of treaties, and jus cogens, but also started considering more specialized fields of international law, as seen in the agenda items “Protection of atmosphere”, “Protection of the environment in relation to armed conflicts”, “Crimes against humanity” and others.4 The International Law Commission is imbued with a renewed confidence to take up topics “that reflect new developments in international law and pressing concerns of the international community as a whole”.5 The intellectual reinvigoration of the Commission has also led to the diversity in the forms of the final products of the Commission. The Commission