INTRODUCTION encourage the “progressive development of international law and

INTRODUCTION

“The transition from the establishment of
international order by the hegemonic power of one State, or a few States, to
the full establishment of the international rule of law is a still-continuing
process.”1

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The United Nations is
considered a contemporary body in the history of international law, which far
predates this particular institution and its predecessor, the League of
Nations. The eminent jurist Hugo Grotius, widely known as the “father of
international law”, was among the first persons to lay down certain norms
that ought to guide the conduct of states. He based his writings on the need
for an international legal system after the horrific deaths which resulted from
the religious conflicts in the Thirty Years War, and the Treaty of Westphalia,
which ended this war in 1648, is considered to be a starting point for this new
legal system, governing the actions of states.2

The international legal
order, however, is decentralized in nature, and unlike the legal systems of
various states, it does not have a single body to determine laws and rules.3
The United Nations is one such body that, through its various organs and
committees, plays a role in determining the law of nations. Organizations such
as this derive their law-making powers from their mandates, which are, often,
quite broad. The Charter
of the United Nations, vide Article 13(1) (a), imposes an obligation on the
General Assembly to encourage the “progressive
development of international law and its codification”.4
The authority of the General Assembly to establish international law, however,
is not an entirely uncontroversial subject and it has been argued by various
jurists that although the body has great force as a political institution,
since its pronouncements are not legally binding, this does not lead to the
creation of law, since the members of the United Nations might be voting in
favour of a resolution for motives other than to abide by the laws expressed in
them.5
This contention of reinforced by the fact that a majority of states present at
the San Francisco Conference of 1945, during the drafting of the Charter, had
voted against the proposal that the General Assembly should have the competence
to create binding legal rules.6 Its
powers were limited to discussing and recommending principles of international
law.7

However, there are
certain circumstances in which the United Nations is competent to create laws. The first
would be the creation of customary law, wherein the resolutions of the General
Assembly and the speeches made by the representatives of various states therein
can establish opinio juris.8 However, the General assembly can also
contribute to the creation of customary international law in a more direct
fashion by providing guidelines to regulate an area of practice lacking formal
laws, thereby creating an “instant
custom”.9U1 
The latter
is evidenced in the development of the law of the seaU2 ,
which shall be discussed at a later point in this paper.

At this juncture, it is important to take note of
two important organs of the United Nations: the Sixth Committee of the General
Assembly, which deals with legal matters in the agenda of the United Nations10, and the International Law
Commission (ILC). The ILC was formed in 1947 by the General Assembly as a means
of discharging its obligation to encourage the development of international law
under Article 13(1)(a) of the UN Charter. The ILC’s mandate obligates it to
progressively develop and codify the principles of international law, and its
reports are discussed at the Sixth Committee of the General Assembly.

This paper considers the role of the General Assembly and
the ILC in the progressive development of international law. Part I considers
the meaning of the term “progressive development” and seeks to
determine the difference, if any, between codification and the former. Part II
focuses on a specific area of development in international law – the law of the
sea. This paper examines the contribution of both organs in the development of
this area of law in this Part.

 

 

 

 

 

 

PART – I: PROGRESSIVE DEVELOPMENT AND CODIFICATION

It was opined by the eminent jurist Manfred Lachs that
the progressive development and codification of international law were not, as
propounded by narrow theories, mutually exclusive in nature; rather, they
merged.11

Article 15 of the Statute of the International Law
Commission created a formal distinction between these two terms. It stated that
the term ‘progressive development of international law’ was defined, “for convenience”, as the
preparation of conventions on unregulated subject-matters, whereas the term
‘codification’ implied a “precise
formulation and systematization” of rules in which State practice
already exists.12 The use of the phrase “for convenience” clearly implies
that the Statute recognized the commonalities between both processes –
development and codification.13 Its authors understood that these
processes were intrinsically linked considering that it was inevitable that
while codifying principles of international law, the Commission would also have
to fill in lacunae in the law, which amounted to a development of the law.14

Furthermore, this distinction has not worked in practice.
Both the subject-matters and the procedure used to deal with them have always
implied a certain overlapping of progressive development and codification. This
is because almost no matter taken up by the ILC is ever entirely new and always
implies a level of codification. Conversely, all codification requires some
development of the law because the nature of customary law itself is such that
there are always minor uncertainties.15

To illustrate the above-mentioned
proposition, the Commission noted that that whilst preparing rules for the Law of the Sea, although
it had attempted to divide the rules into either of the two categories, in
practice, it had failed to do so. This is because there had been differences of
opinion as to whether a particular issue was sufficiently developed or not, and
several of the provisions adopted by the Commission in this regard, based on
‘recognized principles of international law’, could not be placed in one
category, to the exclusion of the other.16
This practice of the ILC can also be seen in its commentaries to the Draft Articles on
“Diplomatic Intercourse and Immunities” (1958), “Succession of
States in respect of Treaties” (1974), and “Most-favored nation
clause” (1978), among others.17

Hence, it is clear that although a technical distinction
may be drawn between “progressive development” and
“codification” of international law, in practice, this distinction
has not been applied and both processes are concomitant aspects of each other.

In Part – II, this
paper will examine the contribution of the UN General Assembly and the ILC to
the progressive development of the Law of the Sea, keeping in mind the
inter-relationship between these two processes.

PART – II: LAW OF THE SEA

This Part examines the contribution of the General
Assembly and the ILC in the progressive development and codification of the law
of the sea and its various facets, such as the regime of the high seas and the
regime of the territorial seas. It examines the manner in which this
subject-matter was dealt with in the ILC and its development in the General
Assembly, beginning in 1949, up till the adoption of the landmark Convention on
the Law of the SeaU3 .

The traditional
conception of the law of the sea views customary international law as its
primary source.18
Early authority on this subject-matter can be gleaned from the decisions of
various national courts, such as the US Supreme Court in the Paquete Habana case, the Lotus case, and the Scotia.U4 

However, considering the problems
associated with customary international law in technical fields, it soon became
apparent that the law of the seas was an issue that was required to be
codified, and in the process, progressively developed.  Early efforts in this respect were undertaken
by the various organs of the League of Nations, with this being succeeded by
the efforts of the United Nations. U5 

At its first meeting in
1949, the ILC, which was
the body that had been formulated for the progressive development and
codification of international law, chose the regime of the high seas and that of the
territorial seas U6 as subjects that were suitable for codification.19
The Commission treated this subject-matter as one of high priority, and it was
given consideration at several successive sessions, beginning in 1949. The Commission considered
various issues, such as the continental shelf, contiguous zones, delimitation of the
territorial sea, fisheries and conservation of the living resources of the seasU7 .20 The Draft Articles formulated on these
issues codified the relevant customary law on this subject. However, these
Articles also dealt with several technical aspects to these issues that had not
been considered in the customs prevalent for this subject-matter, by consulting with
experts with regard to the same. This was the case, for example, with regard to
the delimitation
of the territorial sea of two adjacent StatesU8 .21 Hence, it is clear, that despite the
ILC’s formal distinction between the processes of codification and progressive
development, these processes were entangled, as stated in Part-I of this paper,
during the proposed codification of the law of the sea. Such entanglement
sprung from an essential need to fill the lacunae in the law, possible only
through a progressive development of the law.

The consolidated draft
articles on the law of the sea were compiled by the ILC in its Eighth Session
in 1956. They consisted of seventy-three Articles and the commentaries to such
Articles. Whilst submitted
this draft to the General Assembly, the ILC recommended that the former convene
an international conference to discuss the developments in the law of the sea,
with regard to the draft articles.22

These draft articles resulted in the constitution of the
First Conference of the Law of the Sea in 1958 by the Sixth Committee of the
General Assembly.23 The aim of this conference, as stated
by the General Assembly, was to examine the law of the sea with regard to
various aspects of the issue – “not
only the legal but also of the technical, biological, economic, and political…”,
and to codify the results of such examination into international conventions.24
The Conference was attended by 86 countries and resulted in the adoption of
four conventions and an optional protocol, encompassing the various facets of
the law of the sea – the territorial sea and the contiguous zone25, fishing26,
the high seas27,
and the continental shelf.28

There are two factors
of note here. Firstly, by
an analysis of the mandate of the Conference stated above, it is evident that
the General Assembly had declined to look at the law of the sea from a purely
legal perspective; rather, it examined the matter holistically, taking into
account the various externalities that influenced the development of the law in
this respect.29
However, although the Assembly had ensured that the draft Articles developed by
the ILC were a single document, the Conference itself failed to produce a
single Convention containing the breadth of the law of the sea, as it had
desired and aimed to achieve.30
This was done in order to ensure that a wide range of States would adopt at
least one or more of the Conventions, as it was unlikely that a single
Convention would be adopted by a large number of states.31

Although the First Conference did result in some amount of consensus,
there remain certain unresolved issues, namely those regarding fishing rights
and the width of the territorial seas.32 U9 These were sought to be resolved in the
Second Conference, constituted vide a resolution of the UN General Assembly.33 This Second Conference occurred from
March to April, 1960, and aimed at resolving the issues noted above. It was,
however, unsuccessful, failing to reach any substantive conclusions on the
controversial issues it had sought to resolve.34

At this point, it is
important to take note of the politicalU10  events that were occurring on the
international sphere at this point. The advent of decolonization, which had led to the creation of
several new, developing states, led to demands that the law should be changed
to suit their specific interests as less-developed countries. These States
wanted a progressive development of the law in their favour, rather than a
simple codification of the existing customary law.35

Moreover, state practice had begun
to deviate from the Conventions that had been adopted in the First Conference. The
judgment of the ICJ in the Fisheries Jurisdiction case, for example, deviated
sharply from the Convention on the High Seas, by allowing a specified exclusive
fisheries zone and preferential fishing rights.36

By the time this
judgment was rendered, negotiations had already begun at the Third Conference
on the Law of the Sea, which had been convened by the General Assembly to deal
with a wide range of issues, such as, inter
alia, the breadth of the territorial sea, preferential fishing rights, and
the preservation of the marine environment.37

The Conference was
preceded by the Creation of the Committee on Peaceful Use of the Seabed in 1967, .03whose
mandate was to examine the state practice regarding the deep sea bed and the
ocean floor, analyze the various technological changes in this subject-matter
and provide practical recommendations to promote international cooperation in
the exploration and exploitation of the ocean floor.38
This Committee is important for one simple reason – it led to a shift, away
from the process of codification. This was because this Committee was faced by
considerations of rampant technological development, which the customary law
and previous conventions had not had to reckon with, and thus, this had left a
lacuna in the law. This could only be plugged by a progressive development of
the law on this subject-matter, thus, once again, leading to an entanglement of
the two processes.39

The Third Conference
was held on a recurrent basis, from 1973 to 1982, whereupon on its conclusion,
it resulted in the adoption of the landmark Convention on the Law of the SeaU11 . This Conference aimed at
formulating a “constitution of the
sea”, by overhauling previous attempts at codification, and adopting a
drastically different political and legislative approach.40
Since the aim of the Conference was to create a universality on this issue, the
focus remained on reaching  decision by
consensus, in order to ensure that no major group in the Conference would
refuse to adopt the resulting Convention.41

The Convention on the
Law of the Sea (LOS) was adopted on the 30th of April, 1982, with 130 States
voting in favour of the Convention, 4 against, and 17 abstaining. It must be
noted that the votes against and in abstention were largely from developed
countries, which stood in opposition to the deep sea mining regime propounded
in the LOS Convention.42

Although the Convention
failed at reaching absolute consensus, it remains a landmark document, for it
resulted in the formulation of a completely new method of creating treaties and
conventions, and it continues to be evidence of the intertwined nature of
codification and progressive development, and the vital role to be played by
the UN General Assembly and other organs of the UN in these processes.

CONCLUSION

The aim of progressive development is to make changes in
an already existing legal regime, so as to ensure that it stays in consonance
with the various political, social, economic, technological and scientific
developments that occur in this day and age.

Although it is true that the General Assembly is not a
body capable of making binding rules of international law, and was never
intended to be so, this organ of the United Nations has and continues to play a
vital role in developing our understanding of the law of nations and bringing
it up to par with the constant array of changes that occur in the 21st century.
In this respect, and in consideration of its mandate, the GA has played a vital
role in encouraging and fostering the development and codification of
international law. Although the paper has illustrated this
only in terms of the law of the sea, the reach of the General Assembly in these
matters has been widespread, ranging from the adoption of the Vienna Convention on the Law of Treaties
in 1961 and the International Convention for the Suppressing of Financing for
Terrorism to the establishment of the International Criminal Court vide the
Rome Statute.43

At this juncture, it is
important to note that although the efforts of the General Assembly have not
always been successful, or have been eventually overruled by new state
practice, as seen in the development of the law of the sea itself, it remains one
of the primary, and considering the global order of the 21st century, one of
the most important functions of the General Assembly to progressively develop
international law in consonance with the International Law Commission. It is,
therefore, imperative that this mandate of the General Assembly must be
broadened and exercised continuously, in order to create a more normative and
positivist system of international law, free from the vagaries of customary
law.

 

 

 

 

 

 

1 Sir Arthur Watts, The International Rule of Law, 36 German Yearbook of International Law 15
(1993).

2Kelly-Kate Pease, The Role of the United Nations in International
Law, 2011, available at https://www.americanbar.org/groups/public_education/publications/insights_on_law_andsociety/11/summer/the_role_of_the_unitednationsininternationallaw.html
(Last visited on October 5, 2017).

3Miguel de Serpa Soares, UN70: The Contributions of the United
Nations to the Development of International Law, 40(1) The Fletcher Forum of World Affairs 99 (2016).

4 Charter of the United Nations,
October 24, 1945, 1 U.N.T.S. XVI, Art. 13(1)(a).

5 European Research Council, The UN General Assembly as a Law-Making Body,
available at https://www.federalism.eu/assets/2016/10/UN-Charter_The-UN-General-Assembly.pdf
(Last visited on October 5, 2017).  See also Stephen M. Schwebel, The Effect of Resolutions of the U.N.
General Assembly on Customary International Law, 73 Proceedings of the Annual Meeting (American Society of
International Law) 301 (April 1979).

6 United Nations, 1945: The San Francisco Conference,
available at http://www.un.org/en/sections/history-united-nations-charter/1945-san-francisco-conference/index.html
(Last visited on October 5, 2017).

7 Stephen M. Schwebel, supra note 4.

8 European Research Council, supra note 5.

9 Id.

10 Dag Hammarskjold Library, UN Documentation: International Law,
available at http://research.un.org/en/docs/law/ga (Last visited on October 5,
2017).

11 Tarun Jain, Codification and
Progressive Development of International Law, April 15, 2008, available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120849 (Last visited on October
5, 2017).

12 Statute of the International Law
Commission, G.A. Res. 174(II), Art. 15 (November 21, 1947).

13 E. Ustor, Progressive Development of International Law and the United Nations, 8
Acta Juridica 69, 90 (1966).

14 Id.

15 Alain Pellet, Between Codification and Progressive
Development of the Law: Some Reflections from the ILC, 6 International Law FORUM du droit
international 15 (2004).

16 E. Ustor, supra note 13.

17 Donald McRae, The Interrelationship
of Codification and Progressive Development in the work of the ILC,
available at http://www.jsil.jp/annual_documents/2012/Draft_paper.pdf (Last
visited on October 5, 2017).

18 James Harrison, Evolution of the Law of the Sea:
developments in law-making in the wake of the 1982 Law of the Sea Convention,
July 5, 2007 (unpublished Ph.D. dissertation, School of Law, University of
Edinburgh) (on file with author).

19 Office
of Legal Affairs, United Nations, The Work of the International Law Commission
Vol. I (8th ed., 2012) (‘Work of the ILC’).

20 Id.

21 Id.

22 James Harrison, supra note 18.

23 Briefing on the Sixth Committee of the United Nations General Assembly,
available at http://www.saintpeters.edu/guarini-institute/files/2013/01/Legal-Committee.pdf
(Last visited on October 5, 2017) (‘Sixth Committee’).

24 International Conference of
Plenipotentiaries to examine the Law of the Sea, G.A. Res. 1105 (XI) (February
21, 1957).

25 Convention on the Territorial
Sea and Contiguous Zone, April 29, 1958, 516 U.N.T.S. 205.

26 Convention on Fishing and Conservation
of the Living Resources of the High Seas, April 29, 1958, 559 U.N.T.S. 285.

27 Convention on the High Seas,
April 29, 1958, 450 U.N.T.S. 11.

28 Convention on the Continental
Shelf, April 29, 1958, 499 U.N.T.S. 311.

29 James Harrison, supra note 18.

30 Tullio Treves, 1958 Geneva Conventions on the Law of the
Sea, available at http://legal.un.org/avl/ha/gclos/gclos.html (Last visited
on October 5, 2017).

31 Id.

32 James Harrison, supra note 18.

33 Convening of a Second United
Nations conference on the Law of the Sea, G.A. Res. 1307 (XIII) (December 10,
1958).

34 American University, Washington
College of Law, Law of the Sea and the UN
Conventions, available at http://wcl.american.libguides.com/c.php?g=563260&p=3877789
(Last visited on October 5, 2017).

35 Alain Pellet, supra note 15.

36 Fisheries Jurisdiction Case
(Federal Republic of Germany v. Iceland), 1973 I.C.J. No. 56.

37 Reservation exclusively for
peaceful purposes of the sea-bed and the ocean floor, and the sub-soil thereof,
underlying the high seas of present national jurisdiction and use of their
resources in the interests of mankind, and convening of a conference on the law
of the sea, G.A. Res. 2750 C (XXV) (December 17, 1970).

38 James Harrison, supra note 18.

39 Id.

40 Marlene Dubow, The Third United Nations Conference on the
Law of the Sea: Questions of Equity for American Business, 4(1) Northwestern Journal of International Law
and Business 172 (1982).

41 James Harrison, supra note 18.

42 Work of the ILC, supra note 19.

43 Sixth Committee, supra note 23.

 

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