CYIL vol. 14 (2023)

CYIL 14 (2023) THREE QUARTERS OF A CENTURY OF THE UN INTERNATIONAL LAW COMMISSION… Commission intended for clarifying problems of wider significance, such as “conclusions” on a better understanding, identification, and application of customary international law, its nature and role. 22 Or to contribute to better understanding of general principles of law ( principes généraux de droit ) as a formal source of general international law (in the context of Article 38(1)(c) of the ICJ Statute), in modern international law. 23 This new approach of the Commission also included “conclusions” on the extremely interesting and important topic to define jus cogens and its place and role in international law. 24 It should not be overlooked that in this same period the Commission also prepared draft articles for some international conventions, which were supposed to codify international law concerning several important matters, such as inter alia transboundary underground water resources, 25 protection of persons in the event of disasters, 26 the effects of armed conflicts on international treaties, 27 the responsibility of international organizations, 28 and the expulsion of aliens. 29 However, in the last two decades or more, none of the draft conventions prepared by the Commission have received a serious substantive consideration in the General Assembly or at an especially convened international conference of States with the purpose of elaboration of drafts prepared in the Commission and finalize them for the ratification by States. The work of the Commission thus became more a part of the doctrine of international law than a real contribution to codification and progressive development of international law. Whether this was the consequence of less of an interest of States in the results of the Commission’s works and its codification drafts or perhaps the consequence of the selection of inappropriate, not sufficiently current topics for States which the Commission has chosen and dealt with in the last couple of decades, let’s leave this as an unanswered question. The Commission definitely made an extremely important contribution to the development and understanding of international law during this period. Even if the “principles”, “conclusions”, and “guidelines” are not formally legally binding, it is often clear from them what the Commission already considers to be legally binding customary international law or it considers that should be progressively developed as international law. The use of “shall”, “should”, “will”, or “would” in draft “principles”, “conclusions”, or “guidelines” enables the Commission to indicate the differences between the norms of lex lata and norms de lege ferenda . Thus, the Commission actually, by the authority of an independent, highly specialized UN body, tasked with the codification and progressive development of international law, has an impact on the views of States, as well as the decision-making of international courts and arbitrations on what might already be international law de lege lata and what is not yet. Thus, the views of the Commission, presented as principles or conclusions or guiding rules can be in 22 In 2018, the Commission adopted Conclusions on Identification of Customary International Law, see ILC Report, A/73/10, paras. 53–66. 23 The Commission is still considering the issue of general principles of law; see work of the Commission at its 73rd Session (2022) A/CN4L.971. 24 The Commission concluded by considering the issue of jus cogens in international law at the 73rd session (2022), by adoption of Conclusions on Peremptory Norms of General International Law ( jus cogens ); see A/CN4/ L,960/ Add, 1. 25 Articles on the Law of Transboundary Aquifers; see text in The Work…, vol. II. p. 443. 26 Articles on Protection of Persons in the Event of Disasters; see text in The Work…, vol. II, p. 523 id. 27 Articles on the Effects of Armed Conflicts on Treaties; see text in The Work…. vol. II, p. 510 id. 28 Articles on the Responsibility of International Organizations; see text in The Work… vol. II. p. 429 id. 29 Articles on the Expulsion of Aliens, text see in The Work…, vol. II, p. 515 id.

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