CYIL vol. 14 (2023)

ERNEST PETRIČ CYIL 14 (2023) fact considered as a kind of subsidiary source of international law in the sense of Article 38(2) of the Statute of the ICJ. It also should not be ignored that if the Commission, on the basis of its research of the practice of States, proposes articles of a future international treaty which should codify certain international legal issues, but sufficient ratifications by States do not occur, this might indicate that States do not share the view that such international customary law already exists. If codification of the Commission’s proposal of draft articles does not occur, this means that the majority of States are not (yet) ready to accept what the Commission proposes for codification to be binding international law. The Commission’s formally non-binding “conclusions”, “principles”, or “guidelines” however indicate, is what the Commission, by its authority as a UN expert body and by its composition that includes top international lawyers from all major modern legal systems around the world, from academic circles and from legal practice, already considers to be either legally binding or not yet legally binding. Consequently, the impact of Commission’s “inclusions”, “principles”, and “guidelines” should not be overseen when dealing with an international legal problem. What has been said above does not mean that the Commission does not face challenges in its current and even more in its future activity. 30 The first problem is definitely the deficient relationship with States. In the period between 1945 and 2000, States showed interest and initiative concerning the work of the Commission, in the selection of topics, in the considerations of the Commission’s drafts and reports, and especially in the application of its proposals and draft articles of future conventions, which later came into being as important instruments of international law. As we have already mentioned, the interest of States later declined, or at least it is less evident. In the 6 th Committee of the UN General Assembly, States often consider and comment on drafts of the Commission, its reports, and other proposals rather formally than in depth and substantially. States often respond to concrete questions by the Commission insufficiently. Usually, it is the responsiveness of only a few dozens of States and only exceptionally over a quarter of the UN Member States. It is also, as a rule, a fact that only a circle of European countries, members of the WEOG and EE, and the permanent members of the Security Council are responsive. The responsiveness of the States of some other regional groups and of smaller States in particular, whose interests are those supposed to be particularly protected by international law, is rare. In particular, there are virtually no proposals or suggestions from States for new topics that should be considered by the Commission in terms of codification and progressive development of international law. And, as has already been said, for a quarter of a century there have been practically no endeavours of States to take steps towards the codification of any of the Commission’s proposals, either within the framework of the GA of the UN or by convening a codification conference of States. 30 On the work of the Commission, see The Work… ibid., especially pp. 7–89; PETRIČ, E., International Law Commission between de lege lata and de lege ferenda, in: Drenik, S., Sancin, V., Jazbec, M. (eds.), Collection of scientific discussions on the 60th anniversary of the United Nations Commission on International Law , Ljubljana 2008, pp. 11–19; PETRIČ, E., Some Remarks on Future Challenges for the International Law Commission, in: Seventy years of the International Law Commission: Drawing a Balance for the Future , Leiden/Boston 2021, pp. 66–74; PELLET, A., The ILC Adrift? Some Reflexions from Inside, in: Challenges of Contemporary International Law and International Relations – Liber Amicorum Ernest Petrič , Nova Gorica 2011, pp. 299–313; PERERA, A.R., The Role and Contribution of the ILC in Meeting Challenges of Contemporary International Law and International Relations, ibid. pp. 313–327.

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