Challenges of Codification for the International Law Commission in a Changing Landscape of International Law

As is wellknown, efforts to systematically codify and develop international law have a long tradition, starting with Jeremy Bentham in 1789,1 and continued by numerous academic institutions, conferences and committees.2 The founders of the United Nations, in 1945, mandated the General Assembly to “initiate studies and make recommendations for the purpose [...] of encouraging the progressive development of international law and its codification”.3 Two years later, the General Assembly delegated this task to a body of independent experts, the International Law Commission.4 Today, this Commission can look back on – and continues to produce – an impressive body of work, covering most areas of international law. It is only natural that the Commission’s work would evolve with the legal system it operates in. Over the past 70 years, international law has undergone fundamental changes: it accommodated the tension of the Cold War, the emergence of newly independent States, and the establishment of a global economic order. Since the end of the 20th century, there has been an unprecedented expansion of international law, with a focus on international organizations, human rights, and the environment. The International Law Commission has adapted to these changes, for example by increasingly venturing into specialized areas of international law5 and elaborating “soft” instruments rather than draft treaties.6