Wednesday, May 28, 2008

Bellinger: Remarks at the International Law Commission's 60th Anniversary Commemoration

John B. Bellinger, Legal Adviser to the U.S. Secretary of State, gave the following remarks on May 19th at a special commemorative event celebrating the sixtieth anniversary of the International Law Commission:

Good afternoon. I am delighted to participate in this commemoration of the 60th Anniversary of the International Law Commission. I am particularly pleased to be a co-speaker on this panel with Professor Galicki. The topic presents us with an important opportunity to assess the “state of the union,” so to speak, between governments and the Commission, sixty years after States decided it was in their interests to establish the Commission.

During its first 25 years – a period sometimes called the ILC’s “Golden Age” – the Commission worked closely with governments to produce a number of seminal treaties. Indeed, the Commission’s productivity during these years was striking; its work included the 1958 Geneva Conventions on the High Seas and related law of the sea topics; the Convention on the Reduction of Statelessness; the Vienna Convention on the Law of Treaties; and the Vienna Conventions on Diplomatic and Consular Relations. By and large, the Commission’s work in this period was animated by the purpose and vision States had for the Commission some sixty years ago.

As a result of its work, the ILC has had significant influence over the years, not least in domestic and international judicial decision-making. It is notable, for example, that United States federal courts have relied on the Commission’s work in more than 50 published cases, including cases involving claims of diplomatic immunity and jurisdiction over vessels on the high seas. In the area of maritime boundary issues, the ILC’s work has on occasion been dispositive in U.S. courts – in particular in line of cases before the U.S. Supreme Court involving disputes between the US Government and various U.S. states over control of submerged lands off the coastline. The disputes turned on the definition of “inland waters” under a U.S. domestic law known as the Submerged Lands Act. After finding that the Act left it to the courts to supply an appropriate definition, the Supreme Court concluded that the meaning of “inland waters” “should conform to the Convention on the Territorial Sea and the Contiguous Zone.” In other words, the Court found that the meaning of U.S. domestic law should reflect the international law standard established by the ILC-produced treaty. The Convention, the Court later noted, was the “culmination of long years of work by the International Law Commission.” And in subsequent cases applying the term “inland waters” in the Submerged Lands Act, the Court looked not to the Act itself to inform its decision, but to the Convention and to relevant ILC reports, drafts, and commentaries.

Compared to its productive early period, it is somewhat less clear what the ILC’s core mission is or should be today. Michael Wood alluded to this in his introduction; he noted that in some sense, the ILC has been a victim of its own early success. There was significant reflection on this issue on the occasion of the 50th anniversary, particularly regarding the selection of appropriate topics for the Commission’s work. But I want to suggest that a productive relationship between governments and the ILC is equally important to the relevance and continuing vitality of the Commission’s work in the future.

The title of this panel suggests a certain skepticism that the relationship between the ILC and governments is all that it should be. And there is the sense that governments and the ILC are not paying as serious attention to each other as they used to. There are several possible reasons for this. One may simply be that many of the classic topics initially envisioned by Hersch Lauterpacht, the international jurist who drafted the Commission’s initial plan of work, were successfully completed early on. Another may be that the demands on governments and Legal Advisers today allow less time for reflection on progressive development than was the case some decades ago. Resources are scarce to meet governments’ ever more pressing responsibilities. Still, I think improving the quality of its interaction with states should be a key priority for the ILC. It may be the most important way the Commission can maintain relevance and legitimacy in the future.

Successful interaction between governments and the ILC has several benefits. First, it serves to ensure the work of the ILC is practical, that it addresses real problems in inter-state relations. Second, it facilitates solutions to those problems that are informed by, or grounded in, actual State practice. And third, cooperation with governments will tend to promote acceptance of the ILC’s work by States; the more States view themselves as participating with the ILC in developing international law, the more likely they are to view the ILC’s work as relevant and useful.

The fundamental structure and channels of State-ILC interaction were laid out in the original ILC Statute in Articles 16-18 and haven’t been significantly updated since. As you know, the Statute provides for regular, staged interaction — or at least that the Commission must seek government views at various benchmarks along the way.

The present state of interaction presents several issues that both the Commission and governments should consider. I want to mention four. First is that interaction and cooperation necessarily require communication between the ILC and States on matters related to the Commission’s work. That’s a basic point, but an important one. One difficulty for the ILC is the fact that governments can’t be compelled to give their views or share State practice. In fact, there may be reasons why in some cases they’re affirmatively reluctant to do so. This can be a burden on the Commission, and puts the ILC at a special disadvantage in an era when treaties are much more likely to be developed by States acting under the auspices of specialized agencies or other international organizations than they are to emanate from the ILC. In this regard, States should consider being more responsive, and not limiting themselves to the passive role of merely answering ILC requests. States should view the Commission’s work in a positive and active way, and they should see the Commission as an important potential instrument for the attainment of their mutual objectives and look for ways in which the ILC can make practical contributions. This means being pro-active in advising the Commission, even if only informally, as to what topics and projects would serve their needs and interests, rather than simply waiting for the Commission to set the agenda.

Second, the composition of the Commission is critical. Here it is important to strike a good balance between academic experts on the one hand, and practitioners of international law with governmental experience on the other. The Commission benefits a great deal from the participation of those with real-world acquaintance with the needs and practice of governments, and practical experience in negotiating legal texts and accommodating divergent viewpoints. Commission membership has included foreign ministry legal advisers, ambassadors and other state officials, who have made unique contributions in ensuring results that are both competent and acceptable to states. A number of American legal experts have participated as members of the Commission over the years, and we believe this has been of mutual benefit to the Commission and to the United States. We look forward to the time when the Commission will once again have an American among its membership.

Third, the ILC’s work should focus on real-world problems and respond to the practical needs of states and their populations. One example of that kind of work is the recently-adopted principles on liability for transboundary harm. Those principles offer useful and practical guidance to states that, if used in national and regional arrangements, can translate into real benefit for the victims of transboundary environmental damage. Another example is the Commission’s current work on transboundary underground aquifers, which, if completed as a set of recommended guidelines, has a similar potential for practical benefit to the states and populations that have come to depend on these resources. For states struggling to cope with pressures on transboundary aquifers, the Commission is well-positioned to develop a set of flexible tools for using and protecting these resources. Likewise, the topic of “Responses to Natural Disasters” has definite practical potential. The loss of life resulting from the 2004 tsunami in Indonesia and other more recent natural disasters in Myanmar and elsewhere remind us of the real-world importance of mitigating the effects of such disasters. We hope the Commission will focus its study on areas of the law that provide practical mechanisms for, among other things, facilitating coordination among providers of necessary disaster assistance and improving the access of people and equipment to affected areas where agreed to by all parties.

Unfortunately, it is not always easy to be responsive to the practical needs of states. For example, during the earliest phases of its consideration of the topic of unilateral acts, the Commission struggled with theoretical formulations that did not accord well with the practice and understanding of states. Still, in due course, after a meticulous examination of relevant state practice and opinion in concrete cases, the Commission was able, under Alain Pellet’s guidance, to produce a more coherent and useful set of guiding principles.

A fourth and related issue is that the Commission should be careful to avoid taking up topics that are inherently political in character or that intrude on the jurisdiction of other bodies in the international system. In this regard, the Commission wisely decided not to take up the proposed topic of “collective security,” which could easily have impinged on the responsibilities of other UN bodies, and would likely have involved it in political disputes that could have undermined its credibility with states.

To bring about more productive interaction, the ILC might consider possible procedural adjustments.

For example, we might think about whether opportunities for feedback to the Commission should remain as formal as they are. Governments often complain that they’ve had little time before the annual Sixth Committee meeting, for example, to properly digest Commission reports released in September. Why not, then, consider opportunities for feedback on a rolling, less formal basis after Sixth Committee? Now, I don’t want to shock you here, but we might even make use of email. The Commission could establish email points of contact in Foreign Ministries who could be charged with providing follow-on comments as views develop, or could be tapped by Commissioners when they have questions about how a government might react to certain positions.

Another possibility is that the Commission could set aside time during its sessions in Geneva to invite state representatives and experts to come and present their views on specific proposals under consideration, both formally and informally. This would provide a fuller opportunity for interaction between states and ILC members than the Sixth committee debates, and in particular allow for fuller exchanges between government experts and the ILC members that are working on specific topics. It would also encourage Missions in Geneva to have at least one officer follow the Commission’s work more generally.

Additional measures could be put into effect to enhance transparency during Sixth Committee debates. Portugal suggested in 2005 that a verbatim record of interventions in electronic form provided by delegations to the Secretariat, instead of less precise summary records, would provide a simple way to enhance dialogue.

Finally, the ILC should continue to emphasize making its report as readable and accessible as possible. This is not easy in dealing with topics as complex as those with which the Commission deals but it is nonetheless an important goal.

It may be that these are not all workable suggestions for one reason or another, but I hope they prompt us to think further these issues. I am optimistic that by improving interaction between states and the ILC, the Commission can ensure that its work over the next 60 years continues to influence and shape the field of international law as it did over its first 60 — and perhaps in ways different from the great treaty development of the early years, but still, no less valuable.