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 eighth 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
Having explored the Commission’s historical context, mandate, structure, process of consideration, product forms, membership, and logistics in the series’ first seven posts, the next step is to turn to what the Commission actually works on: its programme of work”—i.e., the Commission’s roster of topics eligible for substantive consideration.
This post examines how topics get proposed, evaluated, and selected for inclusion in the so-called “long-term programme of work”; what criteria guide those decisions; what the Commission’s current programme of work looks like; and what happens when the Commission is asked to do something entirely outside its normal workflow.
Statutory Requirements vs. Reality
The Commission cannot simply decide one day to start working on a new topic. Instead, the Statute provides clear guidelines for how topics get added, but those rules come with an important caveat that I always flag for my students: they contain a relic of the past.
Under the Statute, proposals for the progressive development of international law can be referred to the Commission from several sources: the General Assembly (Article 16); or UN Member States, the other principal organs of the UN, and specialized agencies or official bodies established by intergovernmental agreements to encourage the progressive development and codification of international law (Article 17).
For codification, however, the process runs in the other direction. Under Article 18(1), the Commission must continually survey the field of international law to select topics for codification. Under Article 18(2), when the Commission believes codification of a particular topic is necessary and desirable, it may submit its recommendations to the General Assembly. Further, under Article 18(3), the Commission must give priority to any requests by the General Assembly to deal with a specific question.
As we can see, the relevant articles are separated out into different sets of rules for projects considered “progressive development” (see Statute, Articles 16 and 17) and “codification” (see Article 18). However, the distinction between Articles 16 and 17 on one side and Article 18 on the other has largely collapsed. The Commission’s work almost always involves elements of both codification and progressive development (see the second post in this series), and the procedural rules in Articles 16 through 18 now operate as a single unified framework rather than two parallel tracks. Thus, the statutory distinction between the two forms of work is a drafting relic more than a live operational constraint.
One further gap between text and practice is worth noting. Technically, the Commission can proceed with work on a topic before receiving General Assembly approval.[1] However, in practice, the Commission virtually never does. Instead, it typically waits for the Assembly to endorse, or at least comment on, a recommendation to add a topic to its programme of work before beginning its substantive consideration, thus treating Assembly engagement as a prerequisite even when the Statute does not strictly require it.
A Note on Private International Law
Before discussing what the Commission does work on, it is worth noting what the Commission generally does not work on: private international law.
Technically, the Commission’s Statute allows it to address both. Article 1(2) expressly provides that the Commission “shall concern itself primarily with public international law”—i.e., the rules governing relations between States—“but is not precluded from entering the field of private international law”—i.e., the rules that govern cross-border disputes between private parties (e.g., which country’s law govern a contract dispute between a French company and a Brazilian one).
However, from 1947 to 1996, the Commission rarely ventured into private international law territory, except where such issues arose incidentally in the context of a public international law topic. By 1996, the Commission effectively acknowledged this reality, noting that it seemed unlikely it would be called upon to work on private international law issues given the extensive mandates of bodies like the United Nations Commission on International Trade Law (UNCITRAL) and the Hague Conference on Private International Law, both of which are purpose-built for that domain. In effect, the Commission has left the field of private international law to those more specialized institutions.
Surveying the Landscape: From 1949 to Today
Before it can select specific topics, the Commission must have a sense of the broader landscape of international law—what has already been addressed, what remains underdeveloped, and what has emerged as new.
As mentioned above, Article 18(1) of the Statute requires the Commission “survey the whole field of international law with a view to selecting topics for codification”. Since its founding in 1949, however, the Commission has only conducted two of these surveys: once in 1949, based on a Secretariat memorandum entitled “Survey of international law in relation to the work of codification of the International Law Commission”; and once in 1968, based on a series of documents prepared by the Secretariat.
Then, in 1996, the Commission conducted a variation of an Article 18(1) survey: a comprehensive study of the extent to which progressive development and codification have played a role in the Commission’s work after nearly fifty years.[2] As part of that exercise, the Commission also mapped the broader landscape of public international law, organizing it into thirteen non-exhaustive fields that accounted for abandoned, completed, current, and potential future topics.[3] In doing so, this study assessed where the Commission had been, where it currently was, and where it might go.[4] Nearly two decades later, in 2014, the Commission asked the Secretariat to revisit the 1996 list and propose potential additions, accompanied by brief explanatory notes.[5]
Apart from surveys, the Commission also periodically reviews its long-term programme of work with the intent of bringing it up to date, taking into account General Assembly recommendations, the international community’s current needs, and the potential to discard topics that are no longer suitable for consideration. These periodic reviews reflect the Commission’s awareness that the landscape of international law is not static—new fields emerge, existing ones evolve, and the international community’s priorities shift.
The Long-Term Programme of Work
Drawing from the 1949 survey, the Commission created what it called the “long-term programme of work”: an initial list of topics considered ripe for consideration. This remains the foundational mechanism for managing the Commission’s roster of topics eligible for substantive consideration. Topics must be added to the long-term programme before they can be selected for substantive consideration at an upcoming session, and they can be subdivided, refined, or even removed from the list without ever having been the subject of serious examination.
In 1998, the Commission agreed upon four criteria to guide the selection of new topics for inclusion in its long-term programme of work:[6]
- The topic should reflect the needs of States in respect of the progressive development and codification of international law.
- The topic should be at a sufficiently advanced stage in terms of State practice to permit progressive development and codification.
- The topic should be concrete and feasible for progressive development and codification.
- The Commission should not restrict itself to traditional topics, but could also consider those that reflect new developments in international law and pressing concerns of the international community as a whole.
Since their adoption, these criteria have served as a gatekeeping framework, meaning that any proposal to add a topic to the long-term programme of work must affirmatively explain how the topic satisfies each of them.
How a Topic Moves from Idea to Active Consideration
Before the Commission can work on a topic, that topic has to earn its place. Since 1992, selection of topics for the long-term programme of work has been carried out by a structured procedure.
To add a topic, designated Commission members or the Secretariat[7] first prepare a short outline or explanatory summary covering the major issues raised by the topic; any applicable treaties, general principles, and relevant national legislation or judicial decisions; existing doctrine; the advantages and disadvantages of preparing a report, study, or draft convention; and a bibliography. This document is referred to as the “syllabus” for the particular topic.[8]
The syllabus is then considered by the Working Group on the Long-Term Programme of Work, which is established at the start of each Commission session by the Planning Group. The Chair of the Working Group provides annual oral progress reports to the Planning Group and, in the final year of the Commission’s five-year term, submits a written report containing its recommendations for topics to include in the long-term programme of work. The Planning Group considers and adopts that report, which is then passed to the Commission as a whole. The Commission considers and adopts the report in plenary session, and it is included in the Commission’s annual report to the General Assembly, with the topic syllabuses attached as annexes. At that point, a topic is formally part of the Commission’s long-term programme of work and eligible for selection for substantive consideration.
Importantly, however, being added to the long-term programme of work does not guarantee that a topic will ever reach the active programme, nor does the order in which topics are added reflect the order in which they will be taken up. Moving a topic from the long-term programme to the active programme requires a separate, affirmative decision by the Commission. And, as noted above, that decision may never come—topics that languish on the long-term programme without being selected for active consideration can be removed entirely during one of the Commission’s periodic reviews of its long-term programme of work.
The Current Long-Term Programme of Work
As of 2025, the Commission’s long-term programme of work consists of eleven topics:
- Ownership and protection of wrecks beyond the limits of national maritime jurisdiction
- Jurisdictional immunity of international organizations
- Protection of personal data in transborder flow of information
- Extraterritorial jurisdiction
- The fair and equitable treatment standard in international investment law
- Evidence before international courts and tribunals
- Universal criminal jurisdiction
- Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law
- The principle of non-intervention in international law
- Identification and legal consequences of obligations erga omnes in international law
- Legal aspects of accountability for crimes committed against United Nations personnel serving in peacekeeping operations
Reading through this list, a few things stand out. First, several topics reflect longstanding structural tensions in international law: jurisdictional immunity of international organizations, universal criminal jurisdiction, and the principle of non-intervention each touch on fundamental questions about sovereignty and accountability that have never been fully resolved. Second, others reflect distinctly contemporary concerns: data protection in transborder information flows, for example, was not a pressing legal issue when the Commission was founded in 1947 but has become one of the defining regulatory challenges of the digital age. Third, some topics—like reparation for gross human rights violations—directly engage the relationship between States and individuals, a domain that sits at the intersection of international human rights law, humanitarian law, and State responsibility. The list, in other words, is neither purely historical nor purely forward-looking; it reflects the Commission’s attempt to address both the enduring architecture of international law and its evolving frontiers.
Special Assignments and Institutional Flexibility
Occasionally, the Commission is asked to carry out work that falls outside its ordinary programme of progressive development and codification. These “special assignments” typically arise from General Assembly requests and involve tasks that either do not fit neatly into the Commission’s usual workflow or require a more expedited treatment.
Historical examples include drafting the Statute for an International Criminal Court (now known as the “Rome Statute”) as part of the Commission’s broader work on the draft code of crimes against the peace and security of mankind,[9] and examining the question of defining aggression[10]—both of which had immediate political significance that called for a departure from the Commission’s usual practice.
For special assignments, the Commission has flexibility regarding its working methods. For example, the Commission may proceed without appointing a Special Rapporteur or holding separate first and second readings—and instead consider the matter as a whole or in a dedicated working group. Where this more streamlined approach is used, the final product is typically a set of conclusions submitted to the General Assembly without a specific recommendation for further action. Alternatively, the Commission may opt to follow its normal working methods, producing traditional final products such as draft articles with commentaries and associated recommendations for action by the General Assembly.
The existence of the special assignment mechanism reflects a broader truth about the Commission’s institutional role: it is not a rigid institution incapable of responding to the urgent needs of the international community. Indeed, when the international community faces an urgent legal challenge, the Commission can be called upon to respond—and, when it does, it has the flexibility to adapt its methods to the task at hand.
Conclusion
The Commission’s programme of work is, at its core, a map of international law’s most pressing issues. Topics do not simply appear on the Commission’s agenda because they are important; they must earn their place through a structured process of proposal, evaluation, and selection, guided by criteria designed to ensure that the Commission’s limited time and resources are directed toward work that is both legally necessary and practically achievable. And once a topic makes it onto the long-term programme, there is no guarantee it will ever go further; the Commission’s periodic reviews are a reminder that relevance, not just inclusion, is what ultimately determines whether a topic gets taken up.
What the current long-term programme of work reveals, read alongside the special assignment mechanism, is an institution that is more dynamic than it might initially appear. The Commission operates within a statutory framework that is, in places, outdated—the codification / progressive development distinction has largely dissolved in practice, and the procedural rules that once separated the two now function as a single system. But within that framework, the Commission has developed a sophisticated set of practices that allow it to respond to both the enduring needs of the international legal order and the urgent demands of a changing world. That combination of structure and flexibility is, ultimately, what has kept the Commission relevant across more than seven decades of work.
[1] See Yearbook … 1949, Report to the General Assembly, page 280, para. 12.
[2] See Yearbook … 1996, vol. II (Part Two), pages 97-98, paras. 246–248 and annex II.
[3] These were: (1) Sources of international law; (2) Subjects of international law; (3) Succession of States and other legal persons; (4) State jurisdiction / immunity from jurisdiction; (5) Law of international organizations; (6) Position of the individual in international law; (7) International criminal law; (8) Law of international spaces; (9) Law of international relations / responsibility; (10) Law of the environment; (11) Law of economic relations; (12) Law of armed conflicts / disarmament; and (13) Settlement of disputes. See Yearbook … 1996, vol. II (Part Two), page 133, annex II.
[4] The study also identified three new topics ripe for consideration: diplomatic protection, ownership and protection of wrecks beyond the limits of national maritime jurisdiction, and unilateral acts of States.
[5] See Yearbook … 2014, vol. II (Part Two), page 164, para. 271; A/CN.4/679 and Add.1.
[6] See Yearbook … 1997, vol. II (Part Two), pages 71-72, para. 238.
[7] Proposals by the Secretariat are in accordance with Statute, Article 17. One such example is the working paper prepared by the Secretariat as part of the 2014 review of the Commission’s work (see A/CN.4/679 and Add.1).
[8] See, for example, A/77/10, Annex I, the syllabus for “non-legally binding international agreements”.
[9] See “Draft code of crimes against the peace and security of mankind (Part II) — including the draft Statute for an international criminal court” .
[10] See “Question of defining aggression” .
Course Materials
References
International Law Commission, https://legal.un.org/ilc/programme.shtml; https://legal.un.org/ilc/reports/2025/english/chp12.pdf; https://legal.un.org/ilc/methods.shtml
Ginger Without Borders 
Leave a comment