In an era marked by geopolitical fragmentation and open challenges to international norms, the relevance of international law is often questioned. Yet it is precisely under such conditions that international law is most significant. To that end, understanding the institutions that interpret and articulate international law—particularly in moments of strain—is essential. One such institution is the United Nations International Law Commission (ILC), which occupies a unique position in the international legal order.
This post is the fourth in a multi-part series connected to my work as an adjunct professor at American University, Washington College of Law, where I am teaching an upper-level practicum on the ILC. The aim of this series is to make the institutional role, working methods, and legal significance of the ILC more accessible to readers beyond the classroom.
As always, if there’s something you’d like to see added, clarified, or explored further, I’m happy to hear from you!
Introduction
After establishing the historical context, mandate, and structure of the International Law Commission (ILC) in the series’ first three posts, the next step is to establish the Commission’s process of consideration (its so-called “working methods”).
When observers encounter the outputs of the Commission, it is easy to focus on the substance of the rules themselves. Less visible, but just as important, is how those rules come into being. The Commission’s methods are the product of both expertise and careful judgment, rather than chance or mere bureaucracy. They reflect decades of institutional practice aimed at balancing expertise, deliberation, and political legitimacy within the United Nations system.
A Structured, Multi-Stage Process
The Commission’s work unfolds through a multi-stage, structured process carefully calibrated to create a final product that reflects the views of the international community as a whole.
The first two steps are largely procedural. In Step 1, the Commission adds a topic to its long-term programme of work. In Step 2, it decides to place the topic on the agenda for the forthcoming Commission session.[1] Although it does not always exercise this option, the Commission may, between these two steps, establish a subcommittee or working group to undertake preliminary foundational work that will inform its later substantive consideration.
Step 3 marks the beginning of the Commission’s substantive engagement with the topic. This phase itself proceeds in several stages: a preliminary stage, a so-called “first reading”, a short break to allow governments to submit comments on the work produced during first reading, and a so-called “second reading”. This architecture is deliberate. It slows the pace of norm articulation—creating space for reflection, revision, and engagement with States before texts are finalized.
The Preliminary Stage
The preliminary stage is very much what it sounds. During this stage, the Commission conducts the basic groundwork that needs to be established before in-depth discussion on the topic can begin. A key element of this stage is the appointment of a Special Rapporteur, who is responsible for framing the legal issues, methodologies, and assumptions that guide subsequent debate. It is also during this stage that the Commission formulates its plan of work for how to address the topic (see ILC Statute, Article 19(1)).
This stage may also involve requesting information on relevant practice from governments and / or international organizations (see ILC Statute, Article 19(2)); or conducting research projects, studies, surveys, and compilations (usually carried out by the UN Secretariat on behalf of the Special Rapporteur). As an example of the latter, in the “Subsidiary means for the determination of rules of international law”[2] topic, the initial stages of the Commission’s work involved the completion of two studies, one identifying the “elements in the previous work of the International Law Commission that could be particularly relevant to the topic” and the other identifying elements in “the case law of international courts and tribunals, and other bodies, which would be particularly relevant for its future work on the topic”. These two reports—both of which were written by the UN Office of Legal Affairs, Codification Division—helped the Special Rapporteur understand how subsidiary sources of international law are used in practice, laying the groundwork for the formulation of rules to identify these sources.
During this early stage, States may submit comments, often reflecting on the topic’s importance, offering guidance on how the Commission should approach its work, or suggesting issues for consideration. States may also provide input during the UN General Assembly Sixth Committee sessions dedicated to discussing the outcomes of the most recent ILC sessions.
First Reading: Creating Draft Provisions
Once the groundwork for the Commission’s substantive consideration is complete, it moves into the most visible phase of its work: drafting. The core component of the first-reading stage is the creation of draft provisions—whether in the form of draft articles, principles, conclusions, or guidelines (which I will explain further in the next blog post).
During this stage, the Special Rapporteur prepares an initial draft of what will become the Commission’s final work, hereafter referred to as the “draft provisions.” These draft provisions are first included in the Special Rapporteur’s report for the relevant session (which is circulated to Commission members a few months in advance of the session).[3] The Special Rapporteur will also create so-called “commentaries” explaining the proposed draft provisions (which I will also explain further in the next blog post).
States are allowed (and in fact encouraged) to submit comments on the work of the Commission during this stage. However, considering time and resource constraints, many States do not take advantage of this right.
During the Commission’s session, Commission members provide comments on the Special Rapporteur’s report during their plenary speeches. The drafting committee then refines the draft provisions based on these speeches (also called “interventions”), as well as any comments submitted by States. The drafting committee will then approve the provisional draft provisions and send the draft provisions (along with the Special Rapporteur’s commentaries) back to the plenary for provisional adoption.
Crucially, once that provisional adoption is complete (which usually occurs during the last week of the Commission’s session), the Commission issues the provisional draft with commentaries as a Commission document and submits this to the UN General Assembly and States for their written observations.
At this stage, the Commission is not seeking finality. Instead, this stage is intended to expose the tentative formulations to scrutiny—both internal (from Commission members) and external (from States). The adoption of draft texts on first reading signals that the Commission has reached a provisional consensus, but not that the law has been settled.
Between Readings: Dialogue with States
The period between first and second readings is one of the Commission’s most distinctive features. As noted above, after first reading, the Commission sends the proposed draft provisions to the UN General Assembly Sixth Committee and the UN Secretariat, who in turn send it to all of the States with the specific purpose that States comment on the Commission’s work. To ensure that as many States as possible can comment on the draft, the Commission will pause its work on the topic until States have enough time to substantially comment on the draft. In practice, this means the specific topic is often left off the agenda for at least one session (though it remains on the Commission’s long-term programme of work), typically providing States about 1 year to complete their review.[4]
Written observations from governments may include in-depth analysis of the Commission’s work, political objections to components of the draft provisions (or the work as a whole), or simply signal discomfort with emerging norms. While their influence varies by topic, these submissions serve as a reality check on the Commission’s work. The Commission is not bound to accept State views, but it cannot ignore them without cost. Responsiveness—measured, reasoned, and selective—is essential to maintaining the credibility and persuasive authority of the final product.
This inter-reading consultation period also distinguishes the Commission from other actors engaged in the codification of international law. Unlike private scholarly bodies (e.g., the Institut de Droit International or the International Law Association), the Commission’s process is deliberately structured to incorporate State input before finalization. In this way, it reflects the Commission’s dual character: an expert body whose members serve in their individual capacities, yet one embedded within an intergovernmental framework. State reactions frequently illuminate whether draft formulations reflect existing practice, disrupt long-standing assumptions, and / or move the law into the realm of progressive development.
Second Reading and the Search for Consensus
Second reading is the moment of consolidation. At this stage, the Special Rapporteur examines the comments submitted by States, international organizations, and other entities following first reading, as well as observations made during debates in the UN General Assembly’s Sixth Committee. The Special Rapporteur then presents a further report to the Commission recommending any appropriate revisions to the draft provisions, together with explanations for the proposed changes.
The procedure for considering draft provisions on second reading largely mirrors that of first reading. The Special Rapporteur proposes revised formulations in their report for the session; Commission members comment on those formulations in plenary; and the drafting committee refines the text in light of both the plenary debate and the written comments submitted by States. Once the drafting committee completes its work, it adopts provisional draft provisions and returns them—along with revised commentaries prepared by the Special Rapporteur—to the plenary for adoption.
There are, however, two important distinctions between first and second reading. First, second reading is specifically oriented toward revising the draft in response to States’ written and oral observations. Although debate among Commission members may still shape the text, most changes are prompted by States’ comments. Second, unlike at first reading, the Commission generally strives to reach consensus at second reading, resorting to a vote only when necessary due to time constraints or persistent disagreement.
Conclusion of the Commission’s Work
The Commission’s work concludes its work by adopting the final product “on second reading”. Following this vote, the Commission transmits the final product to the General Assembly, accompanied by detailed commentaries prepared by the Special Rapporteur and a recommendation regarding any further action.
According to Article 23(1) of the Statute, the Commission may recommend the General Assembly:
(1) take no action the report having already been published;
(2) take note of or adopt the report by resolution;
(3) recommend the draft to States with a view to the conclusion of a convention; or
(4) convoke a conference to conclude a convention.
However, in practice, the Commission has recommended variations of these four options, depending on the nature of the adopted provisions. For example, after completing their work on the identification and legal consequences of preemptory norms (also called “jus cogens” norms), the Commission recommended the General Assembly take note of the Commission’s work, ensure its widest dissemination, and “commend” it to the attention of States and all those who may need to identify jus cogens norms and apply their legal consequences—a recommendation that does not fit squarely within any of the four actions contemplated in the Statute. By contrast, when the Commission completed its work on Crimes Against Humanity, it recommended “in conformity with article 23 of its statute . . . the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles”—a recommendation that aligns more closely with the fourth potential action, though it still does not fit perfectly within its terms.
When the Commission recommends that its final product be transformed into a treaty, responsibility then shifts to the General Assembly and/or States to carry that process forward, including by convening a diplomatic conference. This is currently the case with Crimes Against Humanity, which recently began a multi-year process to adopt a new treaty based on the Commission’s final product.
At the same time, the General Assembly or States may choose not to act on the Commission’s recommendation. For instance, after the Commission completed its work on State responsibility, it recommended the eventual creation of a treaty based off their final work. However, no such treaty has ever been created.
At this point, the Commission effectively regards its task as complete. Technically, however, this need not mark the end of its involvement. Article 23(2) of the Statute allows the General Assembly to refer drafts back to the Commission for reconsideration or redrafting. This mechanism has been invoked only rarely—most notably in relation to the draft articles on arbitral procedure and the draft articles on the jurisdictional immunities of States and their property—and both instances occurred decades ago. Whether States are likely to rely on this mechanism in the future remains uncertain.
Review of Working Methods
From time to time, the Commission reviews its methods of work in order to identify areas for improvement. This occurs either at the request of the General Assembly or on the Commission’s own initiative, often in light of comments and suggestions made in the Sixth Committee or within the Commission itself. The Commission has conducted reviews—some of which have resulted in changes to its methods of work—in 1958, 1968, 1975, 1978 and 1979, 1987, 1992, 1994 and 1995, 1996, 2011, and 2018, as well as through the establishment of a Working Group on methods of work for the 2017 to 2022 term. During the 2023 to 2027 term, the Commission reconstituted this Working Group to further examine and propose improvements to its working procedures. However, because the Working Group conducts its deliberations behind closed doors and has not yet released a public report on its discussions, there is no public visibility into any potential conclusions or proposed modifications.
Conclusion
The Commission’s process of consideration—incremental, consultative, and disciplined—enables its outputs to serve as reference points for courts, governments, and scholars alike. By deliberately creating a system that integrates both expert judgment and State input, the Commission produces work that reflects the views of the international community as a whole. It is this carefully structured architecture that situates the Commission in a distinct institutional position and confers a unique measure of authority on its final products within the international legal system.
[1] Notably, topics placed on the Commission’s long-term programme are not immediately added to the agenda for future sessions. In fact, some topics on the long-term programme of work never ultimately get added to the Commission’s agenda. For example, in the 2025 session, eight topics were on the long-term programme work but were not on the Commission’s agenda. See A/80/10, para. 449.
[2] This is the Commission’s project aimed at clarifying what constitutes a source of law under Article 38(1)(d) of the Statute of the International Court of Justice.
[3] See, for example, Second Report of the Special Rapporteur, Ms. Concepción Escobar Hernández (65th session of the ILC (2013)), A/CN.4/661, proposing the first reading version of draft articles 1 through 6 for “Immunity of State Officials from Foreign Criminal Jurisdiction”.
[4] For example, after the Commission adopts its First Reading of the draft conclusions on General Principles of Law in 2023, the topic was left off of the agenda during the Commission’s 2024 session to allow States time to consider the draft articles. Then, during the 2025 session, the topic returned to the Commission’s agenda.
Course Materials
References
International Law Commission: https://legal.un.org/ilc/ilcintro.shtml, https://legal.un.org/ilc/work.shtml, https://legal.un.org/ilc/methods.shtml
Additional Reading
Ginger Without Borders 
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