}
Select Page

Codification means putting laws or rules into a systematic code. The codification process may consist of taking judicial decisions or legislative acts and converting them into codified law. This process does not necessarily create a new law, it simply orders the existing law, usually by subject, in a code. This list of authority sources is not exhaustive. However, this is an example of the diversified and mixed sources from which the Commission`s products can derive their authority. The importance of this development is that it can have a subtle but profound transformative effect on the identity and work of the Commission. The wealth of sources of authority continues to give the Commission the opportunity to act more autonomously in its codification work, detached from the political influence of States, in order to cooperate more closely with other actors in a globalised world. In some cases, the International Law Commission has attempted to direct its work towards other actors in the international community, not necessarily only states. That applied to the Commission`s draft articles on responsibility of international organizations. While the concept of codification in international law is based on national analogies, the nature and limits of codification are controversial both in international jurisprudence and in practice. The subject is not only of theoretical interest. On the contrary, as international practice has shown, the choice of an institutional philosophy for codification profoundly defines and restricts the real work of this codification institution. Indeed, competing ideas of codification have different implications for their nature, working methods and limitations.24 Sometimes the tension between different codification concepts can even thwart the work of the codification institution.

The success or failure of codification efforts may depend on the ability of the codifier to develop an appropriate institutional approach to codification.25 Some of the tasks may include reaching agreement on an issue that is not yet governed by international law or in respect of which the law is not yet highly developed or formulated in State practice. Other tasks, on the other hand, could include the more precise formulation and systematization of the law in areas where there have been many State practices, precedents and doctrines. For the sake of simplicity, the Committee referred to the first type of task as “progressive development” and the second type of task as “codification”. 64 Today, international law is undergoing profound structural changes, as are codification projects and thus the role of the International Law Commission. The Commission`s codification work is by nature legislative in nature. The International Law Commission is increasingly using progressive development as a tactic to draft new laws and to remain concerned and relevant. The Commission plays a dual role in the international legislative process – as registrar and legislator. It is assumed that the International Law Commission works with renewed institutional confidence as an autonomous legislator. The increasing diversity of the form of its products reflects the Commission`s evolution towards the role of a more autonomous legislator.

In law, codification is the process of collecting and reformulating the law of a jurisdiction in certain areas, usually by theme, and forms a legal code, i.e. a codex (book) of law. The idea of codifying international law has its intellectual roots in the pioneering work of Jeremy Bentham, who not only coined the term international law, but also advocated an international code. The codification project took place in the second half of the 19th century. 7 While the Hague Conferences of 1899 and 1907 have often been described as crucial for the codification of international law 8 Conscious and sustained codification efforts have begun at the intergovernmental level. however, it was not until the 1920s, under the auspices of the League of Nations.9 A decisive step towards institutionalized codification was the establishment of the International Law Commission by General Assembly resolution 174(ii) of 21 November 1947, a permanent institution of experts with general competence to codify and progressively develop international law. Thirdly, the codification of international law was conceived as an instrument of social reform and social progress. In the absence of centralized legislation at the international level, codification has been widely appreciated as a form of substitution for international legislation. As former US Secretary of State Elihu Root said: “What is now being asked for and what we mean when we talk about the codification of international law is the creation of rights. 17 Robert Jennings considered that “codification itself is a method of progressive development of the law”.18 The lengthy debate in the Committee did not lead to a definitive or generally accepted concept of codification.

There was no general agreement in the committee on the nature of codification in the strict sense. The tension between the “legislative” and “registration” conceptions was recognized by the Committee. As Professor de Visscher noted, “if one looks at the conditions of the Assembly`s resolution, one could say that codification seemed to be the most feasible task in the narrow sense and the most desirable in the broad sense.” 45 This anticipated the debate on the criterion of maturity of codification in the context of the International Law Commission. In the meantime, the dynamic and mixed nature of codification has also been recognized by the Committee. As de Visscher noted, “codification, even in the narrow sense, has always involved a particular legislative element.” 46 At a time of global social change, the Commission is increasingly called upon to work creatively and progressively. The Commission often has to move the law forward instead of just registering it. The recent work of the International Law Commission has shown that the concept of codification is evolving through the reformulation of existing law towards codification through the formulation and legislation of new rights. This is reflected in the fact that the International Law Commission is increasingly relying on its mandate to promote the progressive development of international law when undertaking new work.

The International Law Commission is increasingly playing the role of an autonomous legislator. This section provides a theoretical account of the legislative role of the International Law Commission. In 1924, at the initiative of the Swedish Government, the League of Nations established the Committee of Experts on the Progressive Codification of International Law (hereinafter the “Committee”) to identify questions of international law that were “desirable and feasible” for codification.33 The Committee, composed of 17 members representing “the most important forms of civilization and the most important legal systems in the world”, 34 were judges of the Permanent International Court of Justice, government legal advisers, professors, diplomats and practitioners. From 1925 to 1928, the committee held four meetings to discuss appropriate approaches and possible topics for codification. It was the first time that the codification of international law had been officially carried out under the auspices of an international organization. Although the actual results of codification efforts are often welcomed with regret, the institutional experience gained in the League of Nations Committee remains of great importance. Article 13 of the Charter of the United Nations on the codification of international law has its origin in a proposal by the Chinese government to the Dumbarton Oaks Conference in its second phase, which proposed that “the General Assembly be entrusted with the task of undertaking studies and making recommendations for the elaboration and revision of the rules and principles of international law”.50 China, having experienced the injustice of unequal treaties and the impotence of the League of Nations, great hopes have been placed in international law and the future that the United Nations could bring for a just world order. In Committee II/2 of the San Francesco Conference, there was a long discussion on the concepts of `codification`, `development` and `revision`. .