The ILC Meets in NYC:  Gender Diversity and End Work Product Emerge as Regular Themes  

The International Law Commission, a group of 34 independent experts, charged with codifying and progressively developing international law is currently (and exceptionally) meeting at the UN in New York.

Amidst the substantive conversations on subsequent practice of treaties, customary international law, and jus cogens, there are two other themes that are coming up with some frequency.

First, the lack of gender diversity on the commission.  Second, the delay in developing the ILC’s work product into new treaties.

On gender diversity, the issue is a serious one.  In fact, a side event today is called “7 in 70”  that refers to 7 women in 70 years.   In its last elections, 4 women were elected to the ILC.  All were nominated from the European group.

While gender diversity has improved in many segments of the UN, the ILC remains seriously behind, and the Commissioners are concerned about it.   It is time to consider what new practices are required to improve diversity. For example, how can states open up their nomination process?  How can states ensure at the elections stage that that women are seriously considered?   As is well known, the ICC has an elections process designed to improve gender and other diversity on the bench, by a two list voting process.  As these photos show:  it has worked!

Compare this photo of the ILC members, and this photo of ICC judges.

Behind gender diversity is another consideration that a number of Commissioners have pointed out: although Art. 15 of the ILC Statute requires that its members be drawn from practice, academia and government, in reality, only individuals from well-funded organizations or institutions can make the unpaid 10-11 week commitment work.   The requirement to self-fund also has an impact on diversity, participation, and representation, particularly from developing countries.

A second theme of note is the fact that a major part of the work product envisioned for the ILC, namely the drafting of conventions, has slowed down.   The major recent projects of the ILC, such as State Responsibility, Responsibility of International Organizations, and Diplomatic Protection, have been replaced by the practice of writing draft articles (or conclusions) which are then taken note of by the General Assembly and recommended to Member States.  A number of countries, in particular Brazil, are heading the effort to move the Articles on State Responsibility, concluded in 2002, towards a treaty.  The idea is that the draft articles would serve as the basis of an eventual convention.  In addition, other issues could be discussion for addition, such as new articles on multiple breach or attribution.

From a law making process this issue is an interesting one:  states are asking what role the Commission should have in making law when it produces draft articles that are not turned into treaties, but then cited by courts as authoritative.   This issue of the paradox of form and authority was first raised by the late David Caron in 2002, when he noted the weight being given to draft articles.  Although many of the ASR are considered customary international law today, not all are, the most obvious example being the provisions on counter-measures.   If the ASR do become the subject of a new multilateral convention, it opens the way for other work product of the Commission, such as the Articles on Responsibility of IOs and the Articles on Diplomatic Protection to progress as well.