The International Law Commission’s Seventy-Sixth (2025) Session: The Negative Impact of the United Nations’ Fiscal Crisis on The Codification and Progressive Development of International Law

The existing universal international treaties regulating space activities of States do not cover the whole system of relations between subjects of space activities. On the other hand, a wide range of “missing” legal norms are sealed in numerous “soft law” documents related to different aspects of space exploration. Thus, the system of legally binding instruments of international space law (hereinafter — ISL) needs to be supplemented, and the existing system of “soft law” norms needs to be more precisely formulated, made free of collisions and systematized. Codification, as renown method of progressive development of international law, is able to solve the task. However, to this day there is no consensus among the leading space powers on the methods and instruments for ISL development. Broad coalition of States is required to reach consensus on a global level. A power with indisputable authority in the field of space exploration shall be the center and “driving force” of the coalition. The Russian Federation, as the first space power, is one of the most likely candidates for this “role”. The following are results of the corresponding study on the problem of ISL development based on universal international treaties, consisting of three main parts. In the first part of the study, the areas of legal uncertainty and lack of legal regulation of space activities are analyzed. Based on the analysis, a classification of current directions of development of legal regulation in the field of space exploration is proposed. In the second part of the study, difficulties in reaching consensus on the most problematic legal aspects of space activities regulation are discussed. In particular, a qualitative and quantitative analysis of performance of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) over the past 60 years has been carried out. Features and trends of the subcommittee’s operations in the periods from 1963 to 1996 and from 1996 to 2023 have been identified based on results of the analysis. In addition, a review of the Subcommittee working papers was conducted in order to identify the factors, which hinder consensus of States on key issues of the COPUOS agenda. These factors appeared to be mainly political in nature, and there are no legal barriers to improving the regulatory framework of International Space Law. In the third part of the study, a doctrinal analysis of the methods of legal norms systematization was carried out. Conclusion on objective advantages of codification in comparison with other methods of systematization of Space Law norms was made, and expediency of drafting universal articles on space activities regulation by the UN International Law Commission was emphasized. As a first step, a framework of a universal codifying legal act is proposed.

The International Law Commission was established in 1947 to assist the General Assembly of the United Nations in carrying out its mandate under Article 13(1)(a) of the Charter of the United Nations to undertake studies in the progressive development of international law and its codification. This the Commission does in conjunction with the representatives of governments in the Sixth (Legal) Committee of the General Assembly, which is the main committee of the Assembly in which the annual report of the Commission is traditionally considered. Such division of labour can be described, in general terms, as the Commission being the ‘law-proposer’, in the sense that the authority of the Commission is essentially recommendatory in nature. The General Assembly, in turn, is the ‘law-maker’, in that the decision to take action on a recommendation by the Commission is essentially a political process undertaken by States in the Assembly (on the basis of the recommendation of the Sixth Committee). The present article will examine aspects of how such process operates in practice. It considers how the ever-evolving understanding of the concepts of progressive development and codification of international law, together with a greater receptiveness to formats other than draft articles intended to serve as the basis of treaties, has led to a subtle shift in balance of the relationship of the Commission with the Sixth Committee. Consideration is also given to the range of options open to the Sixth Committee, in light of its contemporary practice, upon receiving a finalized text or instrument, with accompanying recommendation, from the Commission.

INTRODUCTION. The UN Charter entrusts the General Assembly with the obligation to “initiate studies and make recommendations” to promote the progressive development of international law and its codification. This mandate is primarily implemented through cooperation of States within the UN International Law Commission (ILC). Beyond the ILC’s work, the significance of scholarly research in international law – whether individual or collective – remains debated, including the very validity of the term “unofficial codification of international law”. This article explores the practical impact of legal scholarship on the evolution of contemporary international law, particularly in light of the UN Charter’s reference to the “teachings of the most highly qualified publicists”.MATERIALS AND METHODS. The article calls attention to the relevant provisions of the UN Charter (including such its integral component as the Statute of the International Court of Justice), and to the ILC documents, and to scholarly works on general international law, which cover its codification, progressive development and historical dimensions–by both domestic and foreign experts. Methodologically, it employs general scientific approaches (analysis, synthesis) and specialized legal methods, notably comparative legal analysis.RESEARCH RESULTS. The UN Charter notion “the teachings of the most highly qualified publicists” means a special part of the broader concept – “the science of international law”. Merely addressing a particular topic of international law is not enough for qualifying its results as one of the “teachings” in the sense of article 38 of the Statute of the International Court of justice; a sort of key characteristics of such a “teaching” are suggested: the scholarly (academic) nature of a publication on the results of such international law research; taking into account the system of international law (that is, results of the research are not to be a fragmented presentation of a position regarding a specific issue of international law in isolation from its overall system); the professional achievements of the author of a publication in the area of international law, their recognition within the international scholarly community. The notion “the teachings of the most highly qualified publicists”, as it is used in the UN Charter and in its Commentaries, refers first of all to theoretical contributions on issues of international law that are produced by scholars, either individually or collectively; the term does not mean a document of a State.DICUSSION AND CONCLUSIONS. The literature on international law demonstrates a variety of opinions relating to the role of legal research in the development of international law and its systematization, including different opinions as to the relation between the term “the science of international law” and the “teachings of the most highly qualified publicists”, as provided in Art. 38 of the ICJ Statute. What is suggested in foreign legal publications is, in particular, a positive description of the list of international lawyers whose works were already cited by the ICJ. The authors of this paper take a more critical approach, identifying that in this list the majority are scholars from the USA and Western Europe. In contrast, no doctrinal contributions of scholars from Russia or China, or from Africa or Latin America were cited by the ICJ. Such underrepresentation of legal research done in countries and regions noted above does not mean that international laws scholarship is less developed in these regions that in the USA and Western Europe. Rather the dominance of Anglo-Saxon legal scholarship in the ICJ practice is facilitated by other factors, including political ones, as indicated in this paper.

On the occasion of the 130th anniversary of the birth of Academician V. M.Koretsky his activity at the United Nations is highlighted, which covers the period 1946–1970 in its structures of the codification and progressive development of international law. These are bodies like the General Assembly, the Committee on Progressive Development of International Law and Its Codification, the International Law Commission, the Human Rights Commission and its Editorial committee for the preparation of the draft of the Universal Declaration of Human Rights. His participation in a number of international conferences held within the UN and also his work as a Judge of the UN International Court of Justice (1961–1970) are shown. The life path of the Scholar and the role in the creation of the Institute of State and Law of the National Academy of Sciences of Ukraine, which rightly bears his name, are traced. The comparison of the largest in the history of international relations codification and progressive development of international law, which carried out in conditions of raising legal awareness of the peoples in connection with the end of World War II and the creation of the United Nations, with the current period of instability in international relations threatening the peoples of World War III is made. The current state of international relations is characterized by the decline of authority of international law and the erosion of the international legal order established by the UN Charter as a consequence of the crisis of the liberal economy and related globalization of international relations

The International Law Commission (ILC) in its 70 illustrious years has been credited with its acclaimed pivotal role in the progressive development of international law and its codification. However, given that the principle of consensus underpins the progressive development of international law and its codification, how much of this process has involved and incorporated the perspectives and needs of Small and Developing States? In the immediate aftermath of commemorating the 70th Anniversary of the ILC, this paper measures the level of participation by Small and Developing Sates and examines the future role of the ILC through the lens of its relationship with the Sixth Committee of the United Nations General Assembly. It asserts that the envisioned symbiosis and optimal actualization of the extensive engagement principle in the progressively development of international law and its codification is being inhibited by the current working relationship between the ILC and the Sixth Committee, coupled with the lack of resources and capacity on the part of Small and Developing States.

70 Years of the International Law Commission, Its Future Role in the Changing Landscape of International Law and the Small-Developing States Nexus

Since the 1990s, the International Law Commission has increasingly produced soft law, such as principles and draft conclusions, in addition to hard law like draft treaty articles This essay explores the implications of the International Law Commission’s transition toward a greater emphasis on soft law. Soft law is an effective vehicle for the International Law Commission’s mission of codification and progressive development of international law; the International Law Commission’s involvement increases the clarity and accessibility of international law norms and promotes a dynamic, synergistic relationship between hard law and soft law that contributes to the effective evolution of international law. Likewise, the International Law Commission is well-structured to produce soft law by virtue of its expertise, work processes, and robust engagement with states in the Sixth Committee of the United Nations General Assembly. Furthermore, the International Law Commission’s soft law has in fact been influential on an audience of diverse global legal actors, including the International Court of Justice and other international courts and tribunals, treaty bodies, states, and scholars. In order to build on its existing soft law influence, the International Law Commission should acknowledge its vast global audience and tailor its processes and practices to better reach these communities.

Analysis Of States’ Comments On International Law Commission’s Reports On Jus Cogens In Sixth Committee Of United Nations General Assembly

The International Law Commission (ILC), an independent expert body of the United Nations General Assembly, is entrusted with assisting States with the promotion of the progressive development of international law and its codification. As part of this, under the Statute of the ILC adopted in 1947, the ILC identifies topics on critical issues of international law that may warrant further study. Members of the ILC submit proposals for consideration within the context of the ILC’s Working Group on Long-term Program of Work. The requirements are that the topic should: (a) reflect the needs of States in respect of the progressive development of international law and its codification; (b) be sufficiently advanced in stage in terms of State practice to permit progressive development and codification; and (c) be concrete and feasible for progressive development and codification. This topic proposal, prepared by Prof. Charles C. Jalloh, in his capacity as a member of the ILC, was approved by the ILC in 2018. This means that there was consensus that the topic fulfills the criteria for addition to the long-term program of work. The paper proposes a study related to universal criminal jurisdiction. The topic was notified to States as an annex to the Report of the International Law Commission on the work of its Seventieth Session (2018).

The European Union (EU) has, since 1975, been making statements concerning the work of the United Nations International Law Commission (ILC), joining other international organisations in contributing to the ILC’s work of codification and progressive development of international law. But what principles and processes govern this engagement, from an EU and an international law perspective, and what purpose can we discern from the EU’s continued engagement with the ILC? This article draws on EU statements and on interviews with EU officials and ILC members to answer this question and to sketch out a picture of nearly fifty years of EU engagement with the ILC. It focuses on the spaces where this engagement takes place and the actors that shape it. In doing so, the article travels between Geneva, Brussels and New York to explore the significance of this engagement for the ILC’s work, in general, and for an organisation such as the EU, in specific. It argues that this engagement remains a mutually beneficial affair: it accords the EU with a unique forum to advocate for a codification of international law in line with the EU’s own rules, values, and interests, and provides the ILC with relevant information on developments within the EU’s legal order and the practice of its member States.

The International Law Commission (ILC) is tasked with the codification and progressive development of international law. Recently, the ILC submitted to the United Nations General Assembly (UNGA) in its 73rd session ‘Draft Conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens)’. The report holds significance as the concept of the jus cogens has been shrouded in mystery since its inception in the Vienna Convention on the Law of Treaties (VCLT) in 1969. The Draft Conclusion 23 (non-exhaustive list) identifies eight norms (annex) fulfilling the requirement of jus cogens. The ILC clearly states that “…the inclusion of the list in the annex in no way precludes the existence of other norms that may have a peremptory character or the emergence of other norms in the future having that character.”[1] Thus leaving space for the inclusion of fresh norms through subsequent studies. Nonetheless, the ILC provided the techniques to identify peremptory norms under Draft Conclusions 4 to 9. Through this article, the author argues that the prohibition of piracy has matured into a jus cogens norm. This is done by applying the techniques formulated by the ILC in its recent report. Although there are several writings on the prohibition of piracy as customary international law, it has received scant attention in the context of the jus cogens, and the author intends to fill this lacuna. This study assumes relevance as States increasingly adopt domestic legislation to combat piracy.

The work which has been undertaken by the United Nations with regard to the encouragement of the progressive development and codification of international law finds its express origin in the duty given to the General Assembly by Article 13, paragraph 1 (a) of the Charter of the United Nations. It is therein laid down that: “ 1 . The General Assembly shall initiate studies and make recommendations for the purpose of: (a) promoting international cooperation in the political field and encouraging the progressive development of international law and its codification.” At the Conference held at San Francisco, April 25 to June 25, 1945, at which the Charter of the United Nations wasdrawn up, the measures that should be taken for “revitalizing and strengthening” international law, shaken in the course of a quarter of a century by the upheaval of two World Wars, were considered by Committee II/2 of the Conference.

The International Law Commission’s First Draft Convention on Crimes Against Humanity The UN General Assembly established the International Law Commission (“ILC”) in 1947 to assist States with the promotion of 1) the progressive development of international law and 2) its codification. The ILC’s first assignment from the General Assembly was to formulate the Nuremberg Principles, which affirmed the then radical idea that individuals can be held liable for certain international crimes at the international level. Since then, the ILC has played a seminal role in the development of modern international criminal law. In 2017, the ILC adopted on first reading a draft convention aimed at the prevention and punishment of crimes against humanity which it transmitted to States for comments. The draft treaty will help fill the present gap in the law of international crimes since States criminalized genocide in 1948 and war crimes in 1949, but missed the opportunity to do so for crimes against humanity. This Article examines the first reading text using the lens of the ILC’s two-pronged mandate. Part II explains how the ILC can take up new topics and the main reasons why it decided to propose a new crimes against humanity convention. Part III discusses positive features of the draft convention, highlighting key aspects of each of the Draft Articles. Part IV critiques the ILC draft treaty focusing on inconsistencies in the use of the ICC definition of the crime, immunities, amnesties, and the lack of a proposal on a treaty monitoring mechanism. The final part draws tentative conclusions. The author argues that, notwithstanding the formal distinction drawn by the ILC Statute between progressive development, on the one hand, and codification, on the other hand, the ILC’s approach to the crimes against humanity topic follows a well settled methodology of proposing draft treaties that are judged likely to be effective and broadly acceptable to States rather than focusing on which provisions reflect codification and which constitute progressive development of the law. It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law.

The entire professional life of Gerhard Hafner has been and still is inseparably linked to the recent history of codification and progressive development of international law. Gerhard Hafner's extraordinary contribution to the codification and progressive development of international law and his highly pro-active role as a member of the International Law Commission (ILC) have highlighted the value of this long-standing Austrian practice. Following from this and other positive experiences, one may conclude that academics, closely associated with the legal advisers' offices while fully making use of their academic freedom, creativity and research resources, seem to be the type of persons that can and should continue to fuel the engine of the ILC-related codification process. Keywords: Austrian approach; codification process; Gerhard Hafner; International Law Commission (ILC); international rule of law; United Nations

The article discusses the features of the application of paragraph 1 (b) of Art. 48 of the Draft Articles on State Responsibility, developed by the UN International Law Commission and taken into consideration by the UN General Assembly by its resolution 56/83 of December 12, 2001. The norm of this article enshrines the right of any state that is not a victim to call to international legal responsibility state that has committed a breach of an obligation owed to the international community as a whole. This rule contributes to the establishment in modern international law of the ancient Roman theory of actio popularis, according to which any citizen could file a claim in the public interest. The UN International Law Commission is considering paragraph 1 (b) of Art. 48 of the 2001 Draft Articles on State Responsibility as a result of the progressive development of International Law. This is manifested primarily in a new approach to the interpretation of concepts such as “the international community as a whole” and “obligation owed to the international community as a whole”. The article notes that the concept of "the international community as a whole" should no longer be considered as a community of sovereign states, since it already presupposes a more active participation in maintaining international legitimacy of all participants of international relations – subjects of international law. In addition, attention is drawn to the fact that the concept of “obligation owed to the international community as a whole” is a new category proposed by the International Law Commission as a part of the progressive development of the theory of erga omnes and jus cogens norms. The author compares these types of obligations and points out a number of problems that may arise while interpreting this concept in order to apply this rule in practice.