In 1946, the UN General Assembly passed a resolution to set up a committee of legal experts to pass on recommendations to the UN Secretary General on the ways the General Assembly could proceed in the development of codification of international law. This Commission recommended that the UN sets up a permanent Commission with the same task. Thus in 1947 the UN set up the International Law Commission which has as its objectives the codification of international law as well as solving international legal problems [6] .
The International Law Commission prepares drafts, according to Section 20 of its Statute [7] , which are requested by the General Assembly or by government, by an inter-governmental organization or by a UN agency or on its own initiative. When the matter is brought to its attention by the General Assembly, one of its members sits with the Commission as a Special Rapporteur. In order to finalise a draft the Commission prepares a plan of work, receives written opinions and suggestions from the governments and then puts these together into a final draft. This final draft is submitted to the General Assembly for its final approval.
B.G. Ramcharan [8] describes the International Law Commission as the “vehicle for systematizing consolidating, up-dating, adapting, and expanding the law, and for giving an opportunity to the States […] to participate in this process”.
In The Work of the International Law Commission [9] any draft is given a “dual aspect”. On the one hand there is the codification of existing law as well as the “formulation of what the Commission considered to be desirable developments in the field.”
How effective are draft articles for George?
Although draft articles prepared by the International law Commission are a good indication of the general opinion on an issue in the international sphere (due to the opinions submitted by the States), these provisions are not binding. Therefore a provision in a Convention or a decision by the ICJ has more binding effect.
In fact the 1952 draft convention on arbitral procedure, although it was described as ‘unexceptionable’ and as ‘perfect’ from a technical point of view, it still was not accepted as the basis of a convention as the members of the General Assembly saw it as “over-ambitious” [10] .
Conventions concluded by the UN on the basis of drafts prepared by the ILC include the Vienna Convention on the Law of Treaties, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Vienna Convention on Succession of States in respect of State Property, Archives and Debts and others.
Drawing a comparison between the draft articles of one of the above and the actual Convention, one can easily see that most of the draft articles are adopted into the Convention word by word. I have carried out this exercise for the first twenty articles of the Vienna Convention on the Law of Treaties. In this comparison I have found that the substance of the articles has to a large extent been carried on into the Convention. Moreover the General Assembly introduced four other articles but removed only one whole article and two sub-articles. From this exercise I can conclude that the draft articles, before the Convention was enforced, were a very good indication of the opinio juris on the matter especially due to the fact that states give their opinion prior to the drawing up of a draft.
Therefore my advice to George would be that when he has to decide on a specific matter, first he should look into written legal provisions especially Conventions which have the most binding effect. If his findings are lacking he ought to see if the ILC has drawn up draft articles on the matter (since these are a codification of the unwritten customary law). Otherwise George has to look at the other sources of international law such as court decisions and the opinion of publicists on the matter as laid down in Article 38 of the Statute of the International Court of Justice.
A decision of the Supreme Court of one of the parties to the dispute
As the name indicates, the Supreme Court is the most important organ of the judiciary of the nation. However, within the international sphere, this position is taken up by the International Court of Justice. This does not reduce the importance of the Supreme Court, but its authority is merely superseded by a more senior court, which regulates conduct between states. Nevertheless, there is a theoretical issue which divides this are into two schools of thought: dualism and monism.
Dualist doctrine points to essential differences between international law and municipal law. This consists primarily in the fact that local legislation differs from international law in a fundamental way as international law regulates law between sovereign states whilst municipal law applies solely within a state and regulates the relationship between the citizens of a state and its executive. [11] This theory was espoused particularly by the German jurist Heinrich Triepel, who argued that in case of conflict between municipal and international law, a court would apply municipal law. [12]
On the other hand, monism was espoused by jurists who believed in the supremacy of international law even within the municipal sphere. International law is seen as the best available moderator of human affairs, and a logical condition of the legal existence of states. [13]
However, these theories were criticized on the basis that they hold conflicting views with the way that international courts ought to behave.
Nevertheless, a state cannot refrain from its international obligations citing municipal law, as provided in Article 27 of the Vienna Convention which states that ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. [14]
Municipal law is also relevant in international law as has been demonstrated in numerous cases. In fact, many instances in international law require concordance with municipal law to function correctly, such as in cases related to extradition and protection of human rights, as well as treaties.
Municipal law is important to such an extent that it can be used to determine cases in international tribunals. In the Serbian Loans Case [15] , the Permanent Court considered whether it had jurisdiction under its statute in a case where the point at issue was a question which had to be decided by the application of municipal law. It concluded that the duty of the Court was to exercise jurisdiction when two states agree to have recourse to the Court. The Court weighted the case and decided to apply Serbian law in this case.
The role of municipal law in international law was closely examined in the case concerning Certain German Interests in Polish Upper Silesia. [16] In this case, the Court observed that it was not called upon to interpret Polish law, but there was nothing to prevent the Court from judging whether Poland was acting in conformity with the Geneva Convention. Brownlie states that this statement indicates that municipal law can be considered as something which can create international responsibility. The general proposition is that international tribunals can take account of municipal laws only as facts to further discussion. [17]
Brownlie also states that in the practice of the International Court and other international tribunals the concept of ‘municipal law as mere facts’ had six distinct aspects [18] . These aspects are:
Municipal law may be evidence of a violation of a rule of treaty or a customary law
Judicial notice does not apply to matters of municipal law, as the international tribunal will require proof of the existence of municipal law
In accordance with the Serbian Loans case, interpretation of municipal law by national courts is binding on an international tribunal
Municipal law must be applicable to an extent within international tribunals
International tribunals cannot declare the invalidity of municipal law and respect domestic jurisdiction
International law may designate a system of domestic law as the applicable law [19]
Thus, given that in some cases international courts may apply municipal law, George must not discard totally the decisions of the Supreme Court, but must use it in order to help him with the case he is assigned to. Nevertheless, international law still supersedes municipal law, as provided in Article 27 of the Vienna Convention.