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 twelfth 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
In the penultimate post of this series, we turn to one of the most fundamental aspects of the Commission, the aspect that acts as its point of departure from all other international legal institutions: the Commission’s extensive external relationships. To that end, this post explains who the Commission engages with, why, and what the implications of those interactions are for the Commission’s authority and independence.
No institution exists in a vacuum, and the Commission is no exception. But unlike other institutions, the Commission’s institutional relationships span the full spectrum of actors in international law. The Commission exists within a dense web of relationships—with Governments, the General Assembly, and a range of other international bodies and scholarly institutions—that collectively shape how its work unfolds and how its final products are received.
The Role of the Secretariat
Although the Commission is composed of independent experts, its work would be impossible without institutional support provided by the UN Secretariat. Indeed, when writing the Commission’s Statute, the drafters foresaw the need for external assistance: Article 14 requires that the Secretary-General, “as far as possible”, make staff and facilities available to the Commission for it to fulfill its mandate.
In practice, this assistance is provided by the Codification Division of the Office of Legal Affairs (OLA), which serves as the Secretariat of the Commission. The Codification Division’s responsibilities are extensive. It provides the agenda and keeps records of the Commission’s sessions, prepares drafts of reports to the Commission, assists Special Rapporteurs and Working Groups with preparing the commentary to draft provisions, conducts substantive research to facilitate the Commission’s work, and publishes important material related to that work (e.g., studies and surveys prepared for the Commission; collections of laws, decrees, and treaty provisions; and relevant arbitral awards).
The UN Secretariat also plays a supporting role in maintaining the information flow between the Commission and the General Assembly. The Secretary-General forwards to Commission members the relevant resolutions of the General Assembly and the reports and summary records of the Sixth Committee’s meetings concerning the Commission’s work. The Secretariat also circulates—and publishes on the Commission’s website—the chapters of the Commission’s report containing the summary of its work; the specific issues on which government views would be particularly useful (Chapters II and III); and the text of draft articles adopted at each session, shortly after the session concludes but before the report is issued. Additionally, the Secretariat produces the topical summary of the Sixth Committee’s consideration of the Commission’s Annual Report as part of the Commission’s documentation for each session.
Relationship with the General Assembly
As discussed in the first post of this series, the General Assembly created the Commission to fulfill its mandate under UN Charter Article 13(1)—i.e., initiate studies and make recommendations for the progressive development and codification of international law. Accordingly, the Commission exists as a permanent subsidiary organ of the United Nations General Assembly.
However, the Commission does not possess independent legislative authority: its mandate is derivative and advisory only. To that end, the Commission prepares draft texts, studies, and commentaries for submission to the General Assembly, but it is ultimately the States’ responsibility to transform those texts into binding sources of international law.
The General Assembly and the Commission maintain a close working relationship with each other. The Commission generally reports directly to a subdivision of the General Assembly—the General AssemblySixth (Legal) Committee, which is responsible for considering legal questions[1]—which in turn reports to the General Assembly Plenary (the “General Assembly” that most people know and refer to, where world leaders deliver speeches from September to December each year).
The General Assembly plays a vital role in all stages of the Commission’s work:
- Topic selection: the General Assembly has requested the Commission undertake or continue to study certain topics.
- Initial and later stages:
- The Commission, at each of its sessions, takes the General Assembly’s recommendations, and the observations made during their sessions, into consideration.
- It has also invited the Commission to present comments regarding outstanding substantive issues related to the draft articles.
- End stage: the General Assembly has—
- Decided to consider and adopt draft conventions prepared by the Commission.
- Decided to convene diplomatic conferences to study and adopt draft conventions prepared by the Commission.
- Rejected, or deferred action, on certain drafts and recommendations provided by the Commission.
- Referred a draft back to the Commission for reconsideration and redrafting.
- Prioritization: the General Assembly has requested the Commission give priority to certain topics from those already on its long-term programme of work.
Crucially, even though the Commission formally operates within the General Assembly’s institutional framework, it is accorded a substantial degree of operational autonomy. The Sixth Committee has never issued precise instructions to the Commission regarding the form or content of its provisional drafts, and it generally refrains from revising the Commission’s final drafts prior to the conclusion of the codification process.
Over the course of their decades-long relationship, the General Assembly and the Commission have changed their working methods and reports, respectively, to facilitate a more productive working relationship. For example, starting in 2003, the General Assembly designated the first week in which the report of the Commission is discussed in the Sixth Committee as “International Law Week” and Member States are encouraged to have their legal advisors present during that week (see A/RES/58/77).
The General Assembly also periodically discusses the appropriate role of the General Assembly Plenary and General Assembly Sixth (Legal) Committee in relation to the Commission’s work, which has resulted in a series of resolutions forming a general pattern of work between the two bodies. This has included, among other things, a request by the Sixth Committee that the Commission provide more clarity on specific issues. For instance, when the Commission decides to develop non-binding provisions, the Commission should clearly explain why that decision was made; and the Commission should also explain its decisions on the taxonomy of its products, particularly when drafting “guidelines” and “principles”.
Annual Meetings
Although not required to by its Statute, the Commission has always submitted a report to the General Assembly outlining the work completed during that year’s session. The Commission’s Chair introduces this report to the Sixth Committee and attends the meetings during which it is considered. When resources allow, the Special Rapporteur may also attend the meetings during which their report is considered (see A/RES/44/35). Both the Chair and the Special Rapporteur may also (i) make observations during those meetings in response to State comments, and (ii) meet informally with States’ delegations outside the official meetings.
Since 2004, Special Rapporteurs who are present in New York have informally consulted with Sixth Committee delegates on pressing issues emerging from the Commission’s work. This practice reflects an effort to close the gap between the Commission’s annual sessions in Geneva and the Sixth Committee’s annual debates in New York. It also underscores a broader institutional truth that is applicable beyond just the Commission: often, the most consequential exchanges in international law occur outside the formal record.
Occasionally, Commission members may also simultaneously serve as representatives of their State in the Sixth Committee. However, this practice is widely viewed as problematic because it infringes on the Commission’s institutional independence and objectivity. A member sitting in the Commission in their personal capacity as an independent legal expert cannot, without some cognitive and institutional tension, simultaneously represent the legal position of their government in the same body that oversees the Commission’s work. Nevertheless, the practice is a widely accepted feature of the Commission’s institutional reality—one that has never been formally prohibited, and which reflects the inherent difficulty of drawing a clean line between legal expertise and State identity in a body whose members are, after all, nominated and elected by the very governments they are expected to transcend.
Process of Consideration
When considering the Commission’s work, the General Assembly and the Commission follow a clear, well-established institutional structure. First, the Commission presents its Annual Report to the General Assembly Sixth (Legal) Committee, summarizing its work, draft provisions, and recommendations for that year’s session. The Sixth Committee then debates the report, hears statements from States, and often adopts resolutions responding to the Commission’s work.
Next, the Sixth Committee submits a report to the General Assembly Plenary that contains a summary of its deliberations, including any relevant documentation and one or more draft resolutions for the General Assembly Plenary to adopt.
Afterwards, the Plenary considers and adopts a resolution on the Commission’s report—typically as recommended by the Sixth Committee without change—setting out any recommendations or instructions with respect to the Commission’s ongoing work. When appropriate, the Plenary may also adopt a separate resolution or decision concerning a particular topic related to the Commission’s work.
This reporting relationship is critical. Aside from direct comments submitted to the Commission, the Sixth Committee debates are the only other way States may comment on draft articles and conclusions, signal support or resistance to proposed legal formulations, and push back on the Commission’s methodological choices—ultimately deciding the fate of the Commission’s outputs.[2] Indeed, the Commission’s work does not gain normative legal weight at a single moment of formal adoption; it accumulates that weight gradually, through sustained engagement with States across multiple reporting cycles.
The Final Stages
Through its resolutions, the General Assembly plays an active role in establishing and improving the dialogue between the Commission and Governments—translating the Commission’s technical legal work into a broader intergovernmental conversation. The Sixth Committee’s report to the Plenary, which contains a summary of its consideration of the Commission’s work, is published in the Official Records of the General Assembly for each session, ensuring a degree of public transparency in this process.
Once the General Assembly receives the Commission’s final product, the focus shifts from deliberation to institutional action. When the codification of a Commission project is underway, the General Assembly will typically invite the Commission’s Special Rapporteur on that topic to attend the proceedings of the body responsible for creating the convention, in the capacity of an “expert consultant.” This practice helps maintain continuity between the Commission’s work and the subsequent treaty-making process, ensuring that the drafters of the convention have easy access to the legal expertise behind the underlying text. It is also a meaningful gesture: it signals that the Commission’s expertise does not expire once the draft is transmitted to the General Assembly. Importantly, the Commission’s final drafts are typically modified by the codification convention itself—not by the General Assembly—which means the diplomatic conference, rather than the political oversight body, has the last substantive word on the text.
On occasion, the Sixth Committee has itself undertaken the task of negotiating the convention with a view toward adoption by the General Assembly. When this occurs, the Sixth Committee effectively acts mutatis mutandis as a codification conference, examining each draft provision in detail and amending those it finds wanting.
Regardless of the forum used for the codification process, historically, the international conferences that have finalized the Commission’s draft articles and adopted them as conventions have consistently recognized and paid tribute to the Commission’s contributions to the codification and progressive development process. This acknowledgment confirms that the Commission’s work, however it is ultimately transformed into a binding document, leaves a lasting imprint on the final product.
Relationship with Governments
At first glance, it might seem paradoxical that a body composed of independent legal experts—expressly not serving as government representatives—would maintain such an active, structured relationship with Governments. Yet this is precisely what sets the Commission apart from other international legal bodies (e.g., the Institut de Droit International, which operates entirely within the scholarly sphere).
Just like the General Assembly, Governments play a vital role in all stages of the Commission’s work:
- Topic selection: Governments can refer a proposal or draft convention to the Commission for consideration (see Statute, Article 17(1)-(2)).
- Initial stage: Governments may provide the Commission with relevant information to assist it in the early phases of its work (see Statute, Articles 16(c) and 19(2)).
- Later stage: Governments may comment on the Commission’s draft articles as the work develops (see Statute, Articles 16(g)–(h) and 21), and the Commission is required to take those comments into account when preparing the final draft and explanatory report (see Articles 16(i) and 22).
- End stage:
- When the Commission submits a final draft to the General Assembly, the Assembly solicits government comments on that draft. These comments are then considered by the Sixth Committee either before convening a diplomatic conference, while negotiating the convention themselves, or by the diplomatic conference called upon to draw up the Convention.
- Governments may also be invited to submit proposed amendments to the Commission’s draft articles before opening a diplomatic conference, which are subsequently referred to the conference.
- Prioritization: Governments may indicate that a particular topic is of special importance and that the Commission should prioritize its work accordingly.
This layered engagement reflects a deliberate institutional design. The Commission is an expert body, and its credibility depends on the independence of its legal analysis. However, the persuasive authority of its final products depends, in significant part, on whether States recognize themselves in those products—whether they see their practice, their concerns, and their perspectives reflected in the Commission’s work. Government engagement is the mechanism through which that recognition is built.
Another mechanism through which the Commission solicits State engagement is in the collection of information. For example, to ensure the Commission collects the information necessary to address a topic, the Commission sends questionnaires to Governments that clearly indicate what is requested and why, and provides them with ample time to prepare their comments. Since 1997, Chapter III of the Commission’s Annual Report has also been dedicated to identifying specific issues on which government commentary would be particularly valuable, with Governments typically given until a certain date the following year to submit their responses. The Special Rapporteur then takes those comments into account when preparing their next report.
Furthermore, these observations and comments are not necessarily limited to only the Government’s views. Indeed, in crafting their responses to the Commission’s information requests, Governments are encouraged—though not required—to consult with national organizations and individual experts in international law.
Written comments, however, are only part of the picture. As discussed above, Governments also engage with the Commission’s work orally, through the annual debates of the General Assembly Sixth (Legal) Committee. Afterwards, the Special Rapporteur for each topic on the Commission’s active programme of work will often include detailed summaries of the relevant Sixth Committee debates in their subsequent reports, ensuring that State views expressed in New York are not lost by the time the Commission reconvenes in Geneva.
Relationship with Other Bodies
Beyond Governments and the General Assembly, the Commission maintains a range of relationships with other international institutions and expert bodies. These relationships are grounded in the Commission’s Statute:
- Article 16(e) permits the Commission to consult with scientific institutions and individual experts.
- Article 17 authorizes the Commission to consider proposals or draft conventions submitted by principal organs of the UN other than the General Assembly, specialized agencies, and official bodies established by intergovernmental agreement to codify and progressively develop international law.
- Article 25(1) authorizes the Commission to consult with any organ of the United Nations on any subjects within that organ’s competence.
- Article 25(2) requires that any Commission documents circulated to Governments must also be circulated to “such organs of the United Nations as are concerned”, which in turn can furnish any information or make any suggestions to the Commission.
- Article 26(1) allows the Commission to consult with any international or national organization, official or unofficial, on any subject entrusted to it if such a consultation would aid the Commission in performing its functions.
- Article 26(2) allows for the circulation of Commission documents to national and international organizations concerned with international law.
In practice, the Commission is involved in an ongoing process of consultations, exchange of views, and mutual information sharing with academic institutions and professors of international law. Indeed, many of the Commission members themselves are professors of international law with established relationships to academic institutions. They are also often members of scholarly institutions, such as the Institut de Droit International (IDI) and International Law Association (ILA).
Perhaps most importantly, the Commission maintains a close relationship with the International Court of Justice (ICJ). During each annual session, the ICJ President will traditionally give the Commission a presentation on the Court’s recent activities, after which Commission members have an opportunity to engage in an exchange of views with the President. Beyond these regular presentations, this relationship is reinforced by the significant number of ICJ judges who are former Commission members—an overlap that fosters coordination between the two institutions and helps explain why the Commission’s drafts and commentaries often find their way into the Court’s reasoning as evidence of international law.
The Commission also maintains working relationships with several regional bodies: the African Union Commission on International Law, the Asian-African Legal Consultative Organization, the European Committee on Legal Cooperation, the Committee of Legal Advisers on Public International Law, and the Inter-American Juridical Committee. Representatives from these organizations regularly present their recent activities to the Commission, after which the Commission members may engage in an exchange of views. The Commission is also often represented at the sessions and meetings of these bodies by one of its own members.
Conclusion
The Commission’s authority is not self-generated. It depends, in substantial part, on the relationships it maintains with the States whose practice forms the raw material of international law; with the General Assembly that provides its institutional home; and with the wider international legal community that scrutinizes and ultimately applies its work.
These external relationships are carefully structured through the Commission’s Statute, its working methods, and decades of institutional practice. Further, the external relationships balance two competing imperatives: openness to State input, which ensures the Commission’s products reflect the practice and expectations of the international community; and independence from State control, which ensures that those products are grounded in rigorous legal analysis rather than diplomatic compromise.
Navigating that tension is a permanent feature of the Commission’s institutional life. How it is navigated, and whether the balance holds, has direct implications for the legal authority of everything the Commission produces.
[1] Although the Sixth Committee is subdivision of the UN General Assembly Plenary, its membership is the same as the Plenary: all of the United Nations Member States are entitled to representation on the Sixth Committee as one of the main committees of the General Assembly. This is equally true for the other five General Assembly committees.
[2] As explained previously in this series, the General Assembly decides whether to convene diplomatic conferences, adopt conventions, or simply “take note” of the final product.
Course Materials
References
International Law Commission, https://legal.un.org/ilc/governments.shtml; https://legal.un.org/ilc/governments.shtml; https://legal.un.org/ilc/activs.shtml
Additional Reading
- Dire Tladi, The International Law Commission, the Institut, and States (2023).
- Arnold Pronto, The Reception by the Sixth Committee of the Output of the International Law Commission (2025).
Ginger Without Borders 
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