Cogan: The Decline of 'Drafts"

Jacob Katz Cogan (Univ. of Cincinnati - Law) has posted The Decline of 'Drafts' (International Organizations Law Review, Vol. 11, no. 1, p. 1, 2014). Here's the abstract:

Once, not too long ago, the word ‘draft’ was an important, if taken-for-granted, term in the practice of the International Law Commission (‘Commission’). Employed by both the Commission and the United Nations General Assembly, the word acted as a marker, distinguishing the texts produced by the Commission, which were assigned that term, from those instruments based on the Commission’s work that were subsequently adopted by states through treaty negotiations. Today, the use of the word ‘draft’ is in decline: the Commission is producing more and more products that are no longer labeled with that term; and even when the Commission still attaches that description to its completed work, the Assembly, after receiving the Commission’s completed ‘drafts’, is dropping the word when it subsequently refers to those texts in its resolutions.

The decline of ‘drafts’ is a constitutive change. It has turned the International Law Commission into the finalizer of international legal texts (not just their originator), replacing the collective law-making by states that once occurred in diplomatic conferences. And it has encouraged non-State actors (particularly tribunals) to pass judgment on the legal value and binding nature of the Commission’s work, again bypassing states and their role in perfecting international legal acts. Those who follow this novel practice and omit the word ‘draft’ — whether they are academics, attorneys, or diplomats — are effectively endorsing these shifts in international law-making (and the assumptions that underlie them), wittingly or not. Though these constitutional changes are consonant with the times, they are worth identifying as a first step toward appreciating and evaluating their consequences.