Necessary Voices, Missed Opportunities?: Strengthening The Engagement Of Global South States With The Work Of The International Law Commission

Monday, 30th October 2023, 15:00 – 17:00 EST, United Nations Headquarters, Room E, New York

The Center for International Law and Policy in Africa (CILPA), in collaboration with the Permanent Missions of Mexico and Sierra Leone to the United Nations in New York, invited State delegations to an interactive dialogue on Strengthening the Engagement of Global South States with the Work of the International Law Commission on the margins of the International Law Week in New York, on Monday, 30th October 2023, starting at 3:00 PM in Room E.

The International Law Commission (“the Commission”) was established by the United Nations General Assembly, in 1947, to assist the General Assembly with its mandate under Article 13 (1) (a) of the Charter of the United Nations to “initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification.”

Under the Statute of the Commission, governments play an important role in every stage of the Commission’s work codifying and progressively developing international law. Individually, they may refer a proposal or draft convention to the Commission for consideration, furnish information at the outset of the Commission’s work and comment upon its drafts as the work proceeds. Collectively, they decide upon the initiation or priority of work and always upon its outcome.

From its inception, the Commission, though a body of independent legal experts, was to be an institution that supports the work of governments in creating a rules-based international legal system. The legitimacy of its projects very much depended on inputs from governments. This was to be achieved through exchange of views between States and the Commission, including through written comments which are requested and furnished when topics reach a certain stage. The UN General Assembly, in its annual resolution, has emphasized the importance of the written comments submitted by governments in response to the Commission’s requests on particular topics as an indispensable part of the dialogue between the Commission and UN Member States.

The Commission has indicated its concern that, in practice, the data and comments submitted by governments in relation to its topics have tended to be limited in quantity. Unfortunately, while the scenario varies from topic to topic, as a general matter, present before the Commission are the comments and observations of primarily larger developed States from the Global North with limited comments and observations from countries in the Global South, and the African, Asia-Pacific and Latin American and Caribbean regions.

The importance of State comments and observations, as well as diversity of the points of view underlying these comments, is critical to the work of the Commission and the broader legitimacy of its projects. The various Commission topics should be of great interest to all Global South States, and without their substantive input, international law risks being developed from a relatively narrow perspective that may not fully account for their experiences and practices. Yet, the strength of international law, and compliance with its rules, norms, and standards, stems mainly from its character as a universal body of law that seeks to put on equal footing all States and regions of the world. Contributing to the codification and progressive development of international law requires greater Global South engagement which is often inhibited by lack of capacity and other structural challenges, ranging from the size of their New York missions to lack of expertise and a focus on other more pressing priorities.

This interactive dialogue was an opportunity for delegates from Africa, Asia, Latin America, and the Caribbean alongside ILC members to explore how to strengthen the engagement of small and developing States with the work of the Commission. The discussion examined present and future topics of the Commission and the different impacts that inputs from States at each stage of this cycle can have upon the Commission’s work. Questions addressed included: Are there commonalities in the obstacles that Global South States and ILC members face in their engagement with the Sixth Committee, the Commission and international law? What practical ways and means are there to enhance the contributions of Global South States and their legal experts in the codification and progressive development of a rules-based international law system for the benefit of all States and the international community as a whole? What, for its part, can the ILC do to benefit from more comments from the Global South States?