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The International Law Commission Re-Examined

Published online by Cambridge University Press:  28 March 2017

Luke T. Lee
Luke T. Lee*
Affiliation:
New York Office, Duke University, Rule of Law Research Center
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Extract

Commenting on the International Law Commission m the eighth year of its existence, Professor Julius Stone urged the conversion of the Commission

from a body of learned lawyers preparing draft codes for Governments, which either do not want any code or want a code with different provisions, into an International Law Research Center for the basic problems arising in the more dynamic, changeful, and disrupted segments of international law. … [T]he International Law Commission is not destined to solve or transform the basic problems of international law and society in pursuance of its present mandate. Not even its staunchest protagonists can give to the continuance of this present mandate much more than a token, time-marking value pending the appearance of a different world situation.

Type
Research Article
Information
American Journal of International Law , Volume 59 , Issue 3 , July 1965 , pp. 545 - 569
Copyright
Copyright © American Society of International Law 1965

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References

1 The International Law Commission was established in pursuance of U.N. General Assembly Res. 174(11) of Nov. 21, 1947, General Assembly, 2d Sess., Official Records, Resolutions 105 (1947). It held its first session in New York in 1949.

2 Stone, ‘ ‘ On the Vocation of the International Law Commission,'’ 57 Columbia Law Rev. 16, 48-49 (1957). See also the suggestion of the McNair Report of 1947 that any attempt at codification should be preceded by an unofficial Restatement of existing rules of law(Constatalion). Direct attempts to obtain codification by governments would not only be doomed to failure, but also would have the harmful effect of checking the growth of customary rules of international law and unsettling well-established rules. See Report of the (London) Committee on the Development and Formulation of International Law, adopted by the Executive Council on May 3, 1947, for Presentation to the Prague Conference in September, 1947; text in International Law Association, Report of the Forty-Second Conference, Annex I, at 82-111 (1947). See also Sir Arnold McNair's statement at the Prague Conference,ibid, at 65. A similar view was taken by Sir Cecil Hurst in his “Plea for the Codification of International Law on New Lines,“ read to the Grotius Society of London on Oct. 16, 1946. See 1949 Grotius Society Transactions 135-153, particularly 149 ff. (1949).

3 See 2 U.N. Conference on the Law of the Sea, Official Records (A/CONF.13/38) (Feb. 24-April 27, 1958). For the Convention on the Territorial Sea and the Contiguous Zone (A/CONF.13/L.52), see p. 132; for the Convention on the High Seas (A/ CONF.13/L.53 and Corr. 1), see p. 135; for the Convention on Fishing and Conservation of the Living Resources of the High Seas (A/CONF.13/L.54, and Add. 1), see p. 139; and for the Convention on the Continental Shelf (A/CONF.13/L.55), see p. 142. The Final Act and the Conventions are also reprinted in 52 A.J.I.L. 830 (1958).

4 See U.N. Conference on the Elimination or Reduction of Future Statelessness, Convention on the Reduction of Statelessness, U.N. Doc. A/CONF.9/15 (Aug. 29, 1961).

5 See 2 TJ.N. Conference on Diplomatic Intercourse and Immunities, Official Records, (A/CONF.20/14/Add.1) (March 2-April 14, 1961); 55 A.J.I.L. 1064 (1961).

6 See 2 U.N. Conference on Consular Relations, Official Records (A/CONF.25/16/ Add.1) (March 4-April 22, 1963); 57 A.J.LL. 995 (1963).

7 See note 106 below.

8 See Milan Bartoś, Special Rapporteur, Report on Special Missions (TJ.N. Doc. A/CN.4/166, p. 1) (April, 1964).

9 At the 16th Session of the International Law Commission, Mr. Abdullah El-Erian, Special Rapporteur, distributed a suggested list of questions as basis of discussion for the definition of the scope and mode of treatment. See U.N. Doc. A/CN.4/L.104 (Juue 25, 1964). See also U.N. Docs. A/CN.4/161, A/CN.4/L.103.

10 For present status, see p. 557 below.

11 For present status, see p. 557 below.

12 Thus, the 1954-1955 Annual Report of the Secretary General to the General Assembly (U.N. General Assembly, 10th Sess., Official Records, Supp. No. 1, at xiii (1955)), stated: ” … the reluctance of Governments to submit their controversies to judicial settlement stems in part from the fragmentary and uncertain character of much of international law as it now exists. Where wide margins of uncertainty remain in the law, the tendency to seek a political settlement even in cases where questions of law lie at the heart of the dispute is understandable.“ See also Bloomfield, “Law, Politics and International Disputes,” 516 Int. Conciliation 257, 283-285; Sohn, “The Bole of International Institutions as Conflict-Ad justice Agencies,” 28 U. Chicago Law Rev. 205, 216-217 (1961). That uncertainty in the rules of international law has discouraged states from submitting disputes to the International Court of Justice may be seen in the deliberations in two recent international conferences. At the 1963 U.N. Conference on Consular Relations in Vienna, the United States submitted a proposal to add a disputes clause in the form of Art. 72 (U.N. Doc. A/CONF.25/C.1/L.70): “Any dispute arising from the interpretation or application of this Convention shall be submitted at the request of either of the parties to the International Court of Justice unless an alternative method of settlement is agreed upon.“ The Indian Delegation, however, opposed it because of the weaknesses in the present Court system, among which were mentioned the insufficiency and uncertainty of the rules of international law for the purpose of dealing with all the situations arising between states (1 U.N. Conference on Consular Relations, Official Records, at 87-88 (Vienna, March 4-April 22, 1963); A/CONF.25/SE.21, at 2-4 (April 22, 1963)). In the end, a 20-nation joint proposal for an optional protocol (U.N. Doc. A/CONF. 25/L.46 and Corr. 1) was adopted in the place of a disputes clause. Again, at the Mexico City Conference of the U.N. Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States (Aug. 27-Oct. 2, 1964), Principle (b)—the principle that states shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered—failed of consensus because of, among other things, the disagreement between the Westrn Powers, which favoured final referral of disputes to the International Court of Justice, preferably endowed with compulsory jurisdiction, should other means of pacific settlement fail, and the Communist and non-aligned states, which by and large stressed the primacy of direct negotiation in view of the uncertainty about the scope and content of international law. See Report of the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, submitted by the Rapporteur, Mr. Hans Blix (Sweden), in U.N. Doc. A/5746, at 101-102 (Nov. 16, 1964).

13 There is no denying the fact that a major contribution of the codification of international law is to make its rules more evident. Art. 24 of the Statute of the International Law Commission provides: “The Commission shall consider ways and means for making the evidence of customary international law more readily available, such as the collection and publication of documents concerning State practice and of the decisions of national and international courts on questions of international law, and shall make a report to the General Assembly on this matter.“ See the Secretariat working paper, U.N. Doc. A/CN.4/W.9; Judge Hudson's working paper and Comments thereon, U.N. Docs. A/CN.4/16 and Add. 1, A/CN.4/27; and Ways and Means of Making the Evidence of Customary International Law More Readily Available (U.N. Pub. Sales No. 1949. V. 6).

14 The membership of the Commission was enlarged from 15 to 21 in 1956 and again to 25 in 1961 in order to reflect the increased membership and altered composition in the General Assembly through the admission of many newly emergent nations. See U.N. General Assembly Bes. 1103 (XI) of Dec. 18, 1956 (General Assembly, 11th Sess., Official Records, Supp. No. 17, at 53 (A/3572); and 1647 (XVI) of Nov. 6, 1961,ibid., 16th Sess., Supp. No. 17, at 61 (A/5100). Members from the new nations, however, have not, on the whole, fully used this opportunity to advantage. One such member, for example, did not even attend the Commission for two sessions, and then, in 1964, made only a couple of appearances while he was simultaneously attending the U.N. Conference on Trade and Development in Geneva. for a general comment on the role of the new nations in the codification of international law, see Briggs, “The Work of the International Law Commission,” 17 JAG Journal (Judge Advocate General of the Navy) 58-59 (1963).

15 A cursory glance at 1 Yearbook of the International Law Commission (hereafter referred to as I.L.C. Yearbook), 1949, will reveal the prevalent use of the Commission as a forum for political and ideological battles by the Soviet member, Vladimir M. Koretsky (see,e.g., 56, 229-230, 232). He walked out of the first meeting of the 1950 session over the question of the Chinese representation in the Commission, and was never to return (see 1 I.L.C. Yearbook 1-2 (1950)). For two years there was no Soviet member at the Commission's meetings. It may be noted that Professor Jaroslav Zourek of Czechoslovakia, the other member from a Communist state, was absent from the Commission for three years and did not attend it until 1952 (see 1 I.L.C. Yearbook 9 (1952)). In that same year, Mr. Koretsky resigned on grounds of ill health, and his place was filled by ProfessorF. I. Kozhevnikov(ibid, at 2, 3). The Communist participation in the Commission's activities has reached a high-water mark since 1957, when ProfessorG. I. Tunkin of the Soviet Union and Professor M. Bartoś of Yugoslavia began their duties with the Commission, which coincided also with the submission of the first report on Consular Intercourse and Immunities by Professor Zourek, the Special Rapporteur. In that same year, a Soviet publication on international law admitted that ‘ ‘ on the whole, the codification of the norms of international law by the Commission shows a possibility of agreement between States belonging to different social systems, a possibility which is a condition precedent to peaceful coexistence.“ (Institute of Law, U.S.S.B. Academy of Sciences, Mezhdunarodnoe pravo [International Law] 20 (Kojevnikov ed., 1957), translated in Rosenne, “The International Law Commission, 1949-59,” 36 Brit. Yr. Bk. Int. Law 156 (I960).) This was in sharp contrast to its earlier issues in 1951 (p. 19) and 1955 (p. 32), in which codification of international law at the Commission was seen as a tool of the Anglo- American bloc to perpetuate imperialism.

16 Reproduced annually in this Journal under the heading, ‘ ‘ Official Documents,'' beginning with Vol. 44 (1950).

17 The most comprehensive treatment to date is given in Rosenne, note 15 above, at 104-173. See also Lauterpacht, “Codification and Development of International Law,” 49 A.J.I.L. 16-43 (1955); Stone, note 1 above, at 16-51; Jennings, “Recent Developments in the International Law Commission: Its Relation to the Sources of International Law,” 13 Int. and Comp. Law Q. 385-397 (1964).

18 U.N. Doc. A/AC.10/51, also A/331, in TJ.N. General Assembly, 2d Sess., Official Records, 6th Committee, p. 175 (1947); 41 A.J.I.L. Supp. 18 (1947).

19 Thus, in the report on the work of its Third Session, the International Law Commission requested that it be converted into a full-time body. (I.L.C. Report, 1951, U.N. General Assembly, 6th Sess., Official Records, Supp. No. 9, at 14-15 (A/1858)). This, however, was not supported by the Sixth Committee(ibid., 6th Sess., Annexes, Agenda Item 49, at 18 (A/2088)), and the General Assembly accordingly decided not to take any further action until further experience had been gained on the Commission's functioning. See U.N. General Assembly res. 600 (VI) of Jan. 31, 1952,ibid., 6th Sess., Supp. No. 20, at 85 (A/2119).

20 See, for example, Gardner, ‘ ‘ The Development of the Peace-keeping Capacity of the United Nations,” 1963 Proceedings, American Society of International Law 232; Dept. of State Press Release No. 229, at 9 (April 26, 1963). See also World Peace through the Rule of Law 219 (Working Paper for the First World Conference, June 30-July 6, 1963, Athens, Greece).

21 The above classification should be taken as one of approximation, since some legal advisers are also engaged in teaching, and several professors and the retired judge are also in private practice.

22 Thus, when Mr. Koretsky protested against the presence of Mr. Shuhsi Hsu in the Commission on the ground that he had ceased to represent the Chinese legal system and asked, instead, for an election of a representative of the Chinese People's Republic, the Chairman, Mr. Manley O. Hudson, read the following decision (2 I.L.C. Yearbook 1 (1950)): ” T h e members of the Commission were elected in 1948 to serve for three years. They do not represent states or governments; instead, they serve in a personal capacity as persons of “recognized competence in International L a w “ (article 2 of the Statute). Being a creation of the General Assembly, the Commission is not competent to challenge the latter's application of article 8 of the Statute. Nor can it declare a “casual vacancy” under article 11 in these circumstances. Mr. Koretsky's proposal is therefore out of order. This decision follows a precedent established by the Advisory Committee on Administrative and Budgetary Questions.“ The Chairman's decision was upheld by a vote of 10 to 1(ibid, at 2). See also the Preamble of Res. 174 (II).

23 See I.L.C. Statute, Art. 3. Although Art. 4 permits a Member of the United Nations to “nominate for election not more than four candidates, of whom two may be nationals of the nominating State and two nationals of other States,” in practice, the candidates are nominated by their own governments.

24 Rosenne, “Relations between Governments and the International Law Commission,“ an address delivered at the University of London on Nov. 6, 1963.

25 At its 10th Session, 1958, the Commission decided to formalize the institution of its Drafting Committee to which had been referred not only pure drafting points, but also points of substance which the Commission had been unable to resolve or which might give rise to unduly protracted discussion. See I.L.C. Report, 1958, U.N. General Assembly, 13th Sess., Official Records, Supp. No. 9 (A/3859) at 30; 53 A.J.I.L. 295 (1959).

26 it may be noted that in earlier sessions the Drafting Committee met less frequently but with longer hours—about 10 or 11 times per session and about 4 or 5 hours per I meeting. The change was due to the working of the law of diminishing returns.

27 A joint Canadian-United States proposal for a six-mile territorial sea coupled with ] an additional six-mile fishing zone was narrowly defeated at this conference by a vote | of 54 in favour, 28 against, and 5 abstentions, which lacked the necessary two-thirds' j majority. See Dean, “The Second Geneva Conference on the Law of the Sea,” 54 ! A.J.IJJ. 751 at 776 (1960); Lee, “Jurisdiction over Foreign Merchant Ships in the ?J Territorial Sea,” 55ibid. 77, note (1961).

28 See § 8 on Regeneration below.

29 see Report of the Sixth Committee, U.N. General Assembly, 6th Sess., Official Records, Annexes, Agenda Item 49, at 18 (A/2088) (1951).

30 Jennings, note 17 above, at 394.

31 See I.L.C. Report, 1964, TJ.N. Doc. A/5809, at 143 (Oct. 8, 1964); 59 A.J.I.L. 500 (1965).

32 The question whether the Commission should hold two daily sessions, instead of the present one session, was raised in 1952, when the Soviet member (Mr. Chechetkin) of the Advisory Committee on Administrative and Budgetary Questions drew attention to the fact that the International Law Commission had never sat for more than 3i£ hours a day and had averaged 3 hours daily during its 1951 session, which lasted 10% weeks. Deploring the fact that the Commission never met in afternoons, he said that no other organ of the United Nations worked at so slow a tempo. If the Commission could meet twice daily for only two days a week, the same amount of work could have been completed in a period of 8 weeks. Against this, however, was the view of the Philippine (Mr. Mendez), Brazilian (Mr. Machado), and French (Mr. Ganem) members, who stressed that the Commission's work could not be assessed in terms of statistics. Mr. Kerno, Assistant Secretary General in charge of the Legal Department, added that, while the Commission did not hold afternoon meetings, much work was being done then by subcommittees. See 14th Report of 1952 of the Advisory Committee on Administrative and Budgetary Questions, U.N. Doe. A/2073 (Jan. 24, 1952). It may be noted that the Commission has indeed resorted to two daily meetings towards the end of its sessions as a means of accelerating its work.

33 See § 5 below.

34 U.N. General Assembly, 2d Sess., Official Records, 6th Committee, p. 184 (A/C. 6/137) (1947).

35 Ibid. 185 (A/C.6/138) (1947).

36 Ibid. 9-14 (1947).

37 Ibid. 15-16. See alsoibid. 188 (A/C.6/193) (1947).

38 Ibid. 194 (1947).

39 Ibid. On the other hand, there is also the view that the Commission, being composed of eminent international jurists, would not normally rely on Secretariat services of the same order as those which other U.N. bodies would customarily require. See the 14th Report of the Advisory Committee on Administrative and Budgetary Questions, U.N. Doc. A/2073, p. 2, par. 5 (Jan. 24, 1952). Against this, Mr. Kerno underscored the view expressed by many members of the Sixth Committee that the Commission should and could rely on more, rather than less, assistance from the Secretariat. See U.N. General Assembly, 6th Sess., Official Records, 5th Committee, pp. 323-324 (1951- 1952).

40 This becomes evident by examining the successive issues of the Yearbook of the International Law Commission. In the recent issues, only one study prepared by the Secretariat appears to fall under the category of research in depth: “Juridical Regime of Historic Waters, Including Historic Bays,” 2 I.L.C. Yearbook 1-26 (1962) (U.N. Doc. A/CN.4/143). Contrast this with the numerous substantive studies in the Check List of Documents of the First Session of the International law Commission,ibid. (1949) at 275-276; and with those in 2ibid. (1950), which alone contains memoranda prepared by the Secretariat on such diverse subjects as the Regime of the High Seas at 67-113 (U.N. Doc. A/CN.4/32); Arbitral Procedure at 157-180 (U.N. Doc. A/CN. 4/35); and Draft Code of Offences against the Peace and Security of Mankind at 278- 362 (U.N. Doc. A/CN.4/39).

41 Among those who had served in this capacity with distinction were Professors Leo Gross and D. H. N. Johnson.

42 Although such institutional collaboration got off to an inauspicious start with the Harvard Law School's preparation of a draft convention on the subject of international responsibility of states for injuries to aliens (text of the final draft is reproduced in Sohn and Baxter, “Responsibility of States for Injuries to the Economic Interests of Aliens,” 55 A.J.I.L. 548-584 (1961)), the failure may be attributed more properly to the difficulty and complexity of the subject matter in the face of two irreconcilable systems now co-existing in this world, than to any inherent impossibility of such collaboration. (For a general reaction to the Harvard draft by members of the International Law Commission, see 1 I.L.C. Yearbook 268-270, 276-283 (I960).) It suffices to recall the recommendation of the 1947 Committee of Seventeen: “That the Commission should be authorized to consult any national or international organization, official or non-official, on any matter entrusted to it, if and when it believes that such a procedure might aid in the attainment of its objectives.” U.N. Doc. A/AC.10/51; also U.N. General Assembly, 2d Sess., Official Records, 6th Committee, p. 181 (A/331) (1947).

43 U.N. Doc. A/CN.4/8B. 768, at 7 (July 20, 1964). This view appeared to reflect the sentiment of the entire membership of the Commission. See statements by Messrs. Bartoš, Castrén, Faredes, de Luna, and Sir Humphrey Waldock inibid, at 7-9. An improved documentation service would benefit particularly the newly emergent nations, many of whose universities could not afford a standing order for U.N. publications.

44 See, for example, the Report of the Sixth Committee, U.N. General Assembly, 11th Sess., Official Records, Annexes, Agenda Item 59 (A/3427) (1956).

45 See note 14 above.

46 See Ch. II of the Statute.

47 As early as 1947, the Committee of Seventeen recognized that, for the codification of international law, “ n o clear-cut distinction between the formulation of the law as it is and the law as it ought to be could be rigidly maintained in practice. It was pointed out that in any work of codification, the codifier inevitably has to fill in gaps and amend the law in the light of new developments.” See U.N. Doc. A/AC.10/51; also U.N. General Assembly, 2d Sess., Official Records, 6th Committee, p. 178 (A/331) (1947). See also Rosenne, note 15 above, at 142-144; Brierly, “The Future of Codification,“12 Brit. Tr. Bk. Int. Law 3 (1931); Jennings, note 17 above, at 386.

48 Lauterpacht, note 17 above, at 16, 29.

49 See International Law Association, Report of the Forty-Second Conference, p. vi (1947).

50 See note 42 above.

51 See I.L.C. Report, 1962, U.N. General Assembly, 17th Sess., Official Records, Supp. No. 9 at 31 (A/5209); 57 A.J.I.L. 190 at 256 (1963).

52 I.L.C. Report, 1962, at 32; 57 A.J.I.L. 257 (1963).

53 U.N. Doc. A/CN.4/152; 58 A.J.I.L. 323 (1964).

54 See I.L.C. Report, 1963, XL N. General Assembly, 18th Sess., Official Records, Supp. No. 9 at 36 (A/5509); 58 A.J.I.L. 319 (1964).

55 I.L.C. Report, 1962, at 32; 57 A.J.I.L. 190 at 259 (1963).

56 U.N. Doc. A/CN.4/160; 58 A.J.I.L. 326 (1964).

57 See LL.C. Report, 1963, at 37; 58 A.J.I.L. 320 (1964).

58 See LL.C. Report, 1962, cited above, at 31-32.

59 Thus, reference was made to an eight-man committee established by the Commission to propose the program of work and order of priorities. See U.N. General Assembly, 17th Sess., Official Records, 3 Annexes, Agenda Item 76, par. 40, at 16 (1962). A small committee was planned to be appointed to study the problem of wider dissemination of the Commission's documents during the early part of the Seventeenth Session in 1965. See statement of the Chairman (Mr. Ago) in U.N. Doc. A/CN.4/SR. 768, at 7 (July 20, 1964); LL.C. Report, 1964, at 147; 59 A.J.I.L. 502 (1965).

60 U.N. Doc. A/5656.

61 U.N. General Assembly Res. 1962 (XVIII), Dec. 24, 1963, U. N. General Assembly, 18th Sess., Official Records, Supp. No. 15, at 15 (A/5515); 58 A.J.I.L. 477 (1964).

62 U.N. Doc. A/5671.

63 See U.N. General Assembly Res. 1815 (XVII), Dec. 18, 1962, U.N. General Assembly, 17th Bess., Official Records, Supp. No. 17, at 66 (A/5217).

64 See U.N. General Assembly Res. 1966 (XVIII), Dec. 16, 1963, U.N. General Assembly,* 18th Sess., Official Records, Supp. No. 15, at 70 (A/5515).

65 Ibid. See Report of the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, prepared by the Rapporteur (Mr. Hans Blix), U.N. Doc. A/5746 (Nov. 16, 1964) (hereafter cited as Report of the Special Committee).

66 U.N. Doc. A/5689.

67 See Report of the Special Committee 12, 14.

68 Ibid. at 9.

69 U N. Doc. A/5727.

70 By letter of Sept. 2, 1964, Cameroon informed the Secretary General that it would be unable to participate in the session of the Special Committee. See Report of the Special Committee 9.

71 See p. 547 above.

72 Report of the Special Committee 163. See also Drafting Committee, U.N. Doc. DC.7/Rev.1 (Sept. 29, 1964); approved by 26 votes to none, U.N. Doc. A/AC.119/SE. 39, at 7 (Oct. 2, 1964).

73 U.N. Doc. A/AC.119/5 (Sept. 8, 1964).

74 Initially, only the Rapporteur of the Special Committee was permitted to attend sessions of the Drafting Committee as an observer (Report of the Special Committee 14). At the 34th meeting, however, the decision was made to allow members of the Special Committee who were not members of the Drafting Committee to attend the meetings of that body as observers. U.N. Doc. A/AC.119/SR.34, at 8 (Sept. 29, 1964).

75 See p. 549 above.

76 See statements by the Lebanese, Ghanaian, Rumanian, Yugoslav, and Soviet delegates, U. N. Doc. A/AC.119/SB.43, at 12, 16 (Oct. 8, 1964).

77 See statement by Mr. Stavropoulos, representative of the Secretary General,ibid. at 17.

78 The sending of observers from the Inter-American Juridical Committee, a permanent committee of the Pan American Union's Inter-American Council of Jurists, has been rather infrequent, the last being at the 12th Session, 1960, when Mr. Gómez Robledo was invited to address the Commission on the subject of state responsibility (see 1 I.L.C. Yearbook 264-266 (I960)). The Commission, on the other hand, sent Messrs. Yuen-li Liang and Eduardo Jiménez de Aréchaga to the 4th (1960) and 5th (1965) meetings of the Council as observers (see their reports in 2ibid, at 121-142 and A/CN.4/176 (March 16, 1965), respectively).

79 The Committee was originally founded on Nov. 15, 1956, as the Asian Legal Consultative Committee and constituted by the governments of Burma, Ceylon, India, Indonesia, Iraq, Japan, and Syria. Its purpose was to serve as an Advisory Body of Legal Experts to deal with problems that might be referred to it and to facilitate the exchange of views and information on matters of common concern between the participating countries. On April 19, 1958, it was broadened to include African countries and renamed the Asian-African Legal Consultative Committee. The Committee meets once a year by rotation in the countries participating. Art. 3 of its Statute specifically includes among its functions the examination of questions under consideration by the International Law Commission and the placing of the Committee's views before the Commission. See Asian-African Legal Consultative Committee, 4th Sess., pp. 3-4 (Tokyo, 1961) (issued by the Secretariat of the Asian-African Legal Consultative Committee, New Delhi, India). In 1964, the Commission was represented at the 6th Session of the Asian-African Legal Consultative Committee in Cairo, Feb.-March, 1964, by Mr. de Aréchaga, as observer. See his report in U.N. Doc. A/CN.4/172 (May 11, 1964). The Committee in turn sent an observer to the Commission in the person of Mr. Hafez Sabek.

80 See I.L.C. Report, 1964, at 146; 59 A.J.I.L. 502 (1965).

81 See Council of Europe News, March, 1960, p. 1; also Lee, Consular Law and Practice 323 (1961).

82 U.N. Doc. A/CONF.25/12 (April 23, 1963); 57 A.J.I.L. 995 (1963).

83 U.N. General Assembly, 16th Sess., Official Records, Supp. No. 9 (A/4843); 56 A.J.I.L. 276-356 (1962).

84 The Vienna Convention follows the approach of the International Law Commission by devoting only one article (Art. 5) to consular functions—a non-exhaustive enumeration of the principal consular functions. See G. E. do Nascimento e Silva, “The Vienna Conference on Consular Relations,” 13 Int. and Comp. Law Q. 1221 (1964).

85 Council of Europe, Exp/Consul (64)5, Strasbourg, March 4, 1964; Add. No. 1, CM (64) 215, Strasbourg, Nov. 5, 1964. A detailed discussion on the relationship between the Vienna Convention and the projected European Convention on Consular Functions will appear in this author's forthcoming volume on the Vienna Convention on Consular Relations.

86 U.N. General Assembly, 2d Sess., Official Records, 6th Committee, p. 175 (A/331) (1947); 41 A.J.I.L. Supp. 19 (1947).

87 U.N. General Assembly, 4th Sess., Official Records, 5th Committee, Annex 901 (A/C.5/347) (1949).

88 See U.N. Doc. A/C.5/347; also U.N. General Assembly, Official Records, 5th Committee, 1 Annex 91-92 (1949).

89 Art. 13; 42 A.J.I.L. Supp. at 3 (1948).

90 U.N. General Assembly, 5th Sess., Official Records, Annexes, Agenda Item 52, at 14 (A/1648) (1950). See also I.L.C. Report, 1957, U.N. General Assembly, 12th Sess., Official Records, Supp. No. 9 at 15 (A/3623); 52 A.J.I.L. 208 (1958).

91 U.N. Doc. A/3766.

92 Ibid.

93 Personal interview with Mr. Eduardo F. Espinar, Personnel Officer, European Office of the United Nations, Geneva, on May 15, 1964.

94 As in a certain East European country.

95 See Information Circular No. 83 of the Codification Division, U.N. Office of Legal Affairs.

96 The background and development of the League codification attempt was succinctly summarized in the 1947 McNair Report, reproduced in International Law Association, Report of the Forty-Second Conference, Annex I (1947).

97 Lauterpacht, “Codification and Development of International Law,” 49 A.J.I.L. 16, 42, note (1955).

98 see note 2 above. See also Stone, Legal Controls of International Conflict 21 (rev. ed., 1959). Professor Stone's view has remained unchanged through the years. Thus, in response to this author's query on the occasion of his presence at the meeting of the American Society of International Law on April 23, 1964, he cited as evidence of the insignificant accomplishments in the codification endeavour the failure of the Second Geneva Conference on the Law of the Sea in 1960 to delimit the width of the territorial sea and the relatively minor results in the codification of the diplomatic and consular laws at Vienna.

99 Honig, “Progress in the Codification of International Law,” 36 International Affairs 71 (1960).

100 De Visscher, Theory and Reality in Public International Law 147-148 (1957).

101 Hazard, “New Personalities to Create New Law,” 58 A.J.I.L. 95 (1964).

102 Bartoš, 1 Medjunarodno javno pravo 155-156 (1954); selected passages translated in Rosenne, “ The International Law Commission, 1949-59,” 36 Brit. Yr. Bk. Int. Law 156-157 (1960).

103 Rosenne,Ibid. at 161.

104 see p. 545 above.

105 See p. 546 above.

106 For the evolution of successive drafts, see the three reports by J. L. Brierly, Special Rapporteur, in U.N. Docs. A/CN.4/23, A/CN.4/43, and A/CN.4/54; two reports by H. Lauterpaeht, Special Rapporteur, in U.N. Docs. A/CN.4/63 and A/ON. 4/87 (and Corr. 1); five reports by Sir Gerald Fitzmaurice, Special Rapporteur, in U.N. Docs. A/CN.4/101, A/CN.4/107, A/CN.4/115 (and Corr. 1), A/CN.4/120, and A/CN.4/130; and four reports by Sir Humphrey Waldock, Special Rapporteur, in U.N. Docs. A/CN.4/144 and Add.1; A/CN.4/156 and Add.1-3; A/CN.4/167 and Add.1-3; and A/CN.4/177 and Add.1. In accordance with a request by the Commission at its 16th Session, A/CN.4/SE.774, pars. 72-73, the English, French and Spanish texts of all the draft articles on the Law of Treaties provisionally adopted by the Commission are now collected in one document, A/CN.4/L.107 (Jan. 7, 1965).

107 See Lissitzyn, ‘ ‘ Efforts to Codify or Restate the Law of Treaties,'’ 62 Columbia Law Rev. 1166 (1962). The following statistics may be of interest: A total of 728 treaties or international agreements were registered with the United Nations Secretariat during the year ended June 15, 1964—or an average of two a day. The figure for the period of Dec. 14, 1946-June 15, 1964 was 10,778. See Annual Report of the Secretary General on the Work of the Organization, June 16, 1963-June 15, 1964, U.N. General Assembly, 19th Sess., Official Records, Supp. No. 1, at 128 (1964). The above figures did not reflect the number of treaties or agreements actually concluded in the respective periods, since many of them were not registered or filed with the United Nations.

108 see Separate Opinion of Judge Jessup in the South West Africa Cases, [1962] I.C.J. Rep. 402-403. See also reference to the League codification work in the Court's decision of the Nottebohm Case, [1955]ibid, at 23.

109 Text in 50 Dept. of State Bulletin 979-985 (June 22, 1964); 3 I.L.M. 778 (19C4).

110 A detailed discussion of the relationship between the Vienna Convention and the United States-Soviet Consular Convention of 1964 will appear in this author's forthcoming volume on the Vienna Convention on Consular Relations.

111 Art. 36.

112 Personal interview with Dr. Abdul H. Tabibi, member of the International Law Commission, during its 16th Session (1964) in Geneva, Switzerland.

113 Personal interview with Ambassador Shabtai Rosenne, member of the International Law Commission, during its 16th Session (1964) in Geneva, Switzerland.

114 See Jennings, *’ The Progressive Development of International Law and Its Codification,” 24 Brit. Yr. Bk. Int. Law 301 at 329 (1947).