Progressing international law: Penelope Ridings discusses the role of the UN International Law Commission and its relevance to New Zealand.

AuthorRidings, Penelope

The United Nations International Law Commission (ILC) has another New Zealander among its members. I was elected to the ILC in November 2021 and will serve a fiveyear term commencing in 2023. This is the first time in 20 years that a New Zealander has been elected a member of the ILC. The previous New Zealand members were Professor Quentin Quentin-Baxter, who served from 1972 until his untimely death in 1984 and Bill Mansfield, who served from 2002 to 2006.

The ILC is a United Nations body composed of international legal experts who serve in their private capacity and advise governments on principles and rules of international law, but about which little is known. The contribution of New Zealanders to the commission has received scant attention even in international legal circles. New Zealanders bring a unique perspective to the commission which can serve to enhance the international rule of law.

The ILC is composed of 34 independent experts with 'recognised competence' in international law who represent the different geographical regions of the world. The election of all members of the commission is held every five years in the UN General Assembly. States nominate candidates for election in five geographical regions, with a specific number of members elected in each group. Although members are representative of the geographical scope of the international legal community, I will be one of only ten women who have ever served on the International Law Commission in its 75-year history.

New Zealand--in an historical anomaly--is in the 'Western and Other European' (WEOG) electoral group. A New Zealand candidate is, therefore, up against candidates from Europe and North America. In 2021 there were eleven candidates from the WEOG for eight seats. The candidates with the most number of votes in each group are elected.

International competition

The election is in effect an international competition where not only the expertise of the candidate but also lobbying is crucial for success. I was fortunate to be co-nominated by Australia, Canada and Sierra Leone, for whose support I was very grateful. All the candidates in the WEOG electoral group were of an extremely high calibre. It was a great honour not only to be nominated as New Zealand's candidate but also to be elected to the commission. This was due in no small measure to the efforts of the New Zealand government, including the prime minister, minister of foreign affairs, chief executive of MFAT and all the staff of the ministry who worked tirelessly to get me elected.

The ILC was established at the same time as the United Nations, 75 years ago. It is referenced in the UN Charter and according to the ILC Statute has as its purpose the 'progressive development of international law and its codification'. It makes recommendations to states through the Sixth (Legal) Committee of the UN General Assembly on what international law is, and what it should be. However, this does not mean that it advises governments through the UN General Assembly on what state actions are or are not consistent with international law. That is the role of government international legal advisers, a role I have been privileged to hold. Rather the ILC is more of an international legal think tank, which largely sets its own agenda, but with the input of states.

Much like a national law commission, the ILC undertakes studies on discrete topics and provides recommendations to the UN General Assembly. According to its statute, the ILC has a structured process whereby the leader of a topic, or special rapporteur, produces successive reports, which are discussed in plenary among all ILC members. Specific legal conclusions are agreed by the ILC through a drafting committee process and feedback from states is sought. This iterative process takes time, not least because members of the ILC work on a part time basis. The ILC meets for eleven weeks a year in two sessions held in the European summer, usually in Geneva. A topic will, therefore, take at least five years to conclude and often much longer.

The decision as to which topics the ILC will pursue is significant, with long-lasting effects. This is especially the case as only about seven topics are considered by the ILC at any one time. The ILC should, therefore, concentrate on high priority topics. While the ILC may be guided by the views of states, it tends to initiate its own programme of work. The balance between the views and interests of individual ILC members and the needs of states is not always optimal. The initiation of topics is also complicated because much important international legal work has already been undertaken in previous decades.

Assembly reliance

The ILC makes recommendations to the UN...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT