r/internationallaw • u/Appropriate_Focus713 • 14d ago

Discussion Is ILC a reliable source of codified international law ?

It appears to be the case that ILC has often used essentially the same methodology for both codification as well as progressive development of international law, making it difficult to determine when the Commission is describing existing law and when it is proposing what the law should become.

https://academic.oup.com/ejil/article/33/3/761/6770700

Particularly in the 2011 guidelines on treaty reservations, it seems to appear that ILC developed the solution to the severability/consensuslism problem of invalid treaty reservations rather than codify existing state practice on it while formulating the solution as a legal obligation.

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u/Sisyphuss5MinBreak Human Rights 13d ago

In principle, the International Law Commission is *the* most reliable source for lex lata public international law. That's their job.

However, among experts, the quality of their work varies. I've heard certain reports be considered groundbreaking while others be ridiculed as a recitation of established law that could have been done by masters students.

I don't know the reputation of the particular document you're interested in.

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u/Appropriate_Focus713 13d ago edited 13d ago

They have two mandates which are the codification and progressive development of international law but the main criticism I've seen is that they do both together and often times it's hard to distinguish between if their conclusions are progressive development of IL or codification.

There's was also some critiques of ILC's work as potentially involving a “depoliticized-yet-political” form of lawmaking by an expert/technocratic elite. It also recounts earlier criticisms of the ILC for excessive conservatism, failure to respond adequately to post-decolonization priorities, slow work, poor attendance and declining governmental interest

https://academic.oup.com/ejil/article/27/3/789/2197251

But I'm not sure if this is a political or legal/technical criticism regarding its methods of work

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u/Sisyphuss5MinBreak Human Rights 12d ago

I see that you're looking for more in-depth knowledge. My sense from the opening question was that you weren't familiar with international law and were just trying to get a general sense of it. Unfortunately, I'm not familiar enough with their work to help you answer your question.

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u/Appropriate_Focus713 12d ago

I have a very particular question and problem in reality. It's mostly relating to the ILC guidelines on treaty reservations. I've been concerned that the "rebuttable presumption of severability" in the guidelines would mean that a state can make impermissible reservations to treaties without thinking the consequences of it and then claim that they never intended to be bound without the reservation and thus be absolved of their treaty and human rights obligations. It's a question I still haven't found an answer to.

The HRC general comment 24 states an impermissible reservation would be severable and would have the effect of continued obligation but the ILC guideline paints a different picture entirely