The International Law Commission at Its 70th Anniversary: Its Role in International Law and Its Impact on U.S. Jurisprudence
13 Florida International University Law Review 1203 (2019)
24 Pages Posted: 17 Sep 2019
Date Written: September 9, 2019
It is the International Law Commission’s (“ILC”) “birthday” celebration, and one is expected to bring presents to such events. As an international law scholar and an outsider to the institution, my best presents are hopefully constructive comments in the nature of analysis, critique, suggestions, and positive statements of encouragement. Such comments aim to be informative, practical, and helpful. By necessity, all of them depend on one’s perspective, the role that one perceives a lawyer should have in society, one’s observational standpoint, one’s jurisprudence, etc. Most of our perspectives derive from a positivist framework. Even if we assume the role of a problem-solver, as in the respected New Haven Approach to law, we still need to deal with the practical needs of the legal environment. The application of law often entails—and even requires—at least some of the concerns and analytical tools of positivism. Legislation and other decision-making processes generally, however, are different and not wholly amenable to such an approach; that is where New Haven displays its greatest strength. From this perspective, we take stock of the “birthday kid” and its accomplishments—the ILC. It is a creature of the states and a part of the optimistic San Francisco construct of the world community after the cataclysm of World War II. It was more the beginning of something than the culmination of various antecedents, and it has subsequently made a greater number of inroads than the few discernible paths leading to its creation. In what follows, I will first make some observations on the history of the ILC’s twofold institutional mandate. Second, I will present the results of empirical research on the direct and indirect impact of the ILC on U.S. jurisprudence and legal scholarship. Lastly, I will furnish the reader with an assessment of the ILC’s current challenges in fulfilling its mandate to codify and “progressively develop” international law and some recommendations to address them.
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