1. There has been placed on the Agenda, at the Second Session of the General Assembly of the United Nations, the question of implementing in a constructive and practical manner the obligation of the General Assembly, under Clause 1(a) of Article 13 of the Charter to:
initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification.
2. There are few references to international law in the Charter apart from the above-quoted provision. In particular, there are none which could be construed as conferring on the General Assembly legislative power stricto sensu in the field of international law. Indeed, all attempts at San Francisco to con-fer upon the Assembly in specific terms power to revise the rules and principles of international law were abortive. In the Preamble to the Charter, it is stated that the Peoples of the United Nations are determined, inter alia "to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained". In Article I, it is stated that the Purposes of the United Nations include the bringing about "by peaceful means, and in accordance with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace". In general, however, both in the Dumbarton Oaks Proposals (in which the expression "international Law" does not appear at all) and the Charter itself, political and security, rather than juridical, interests predominate. It is open to doubt, however, that world peace can be maintained indefinitely in the absence of a system of international order based upon law. It would seem essential indeed, that all steps possible under the Charter be taken in order to strengthen the authority of law in international affairs.
3. (a) A division of the Legal Department of the Secretariat has been established, under the direction of Dr. Yuen-Le Liang, "for the Development of International Law". The programme of the Division as reported by the Secretary-General consists of:
(i) making studies concerning the promotion of international legislation in the form of multilateral conventions;
(ii) examining the possibilities of resuming the process of codification of international law and assisting in promoting conferences on the codification of international law in the future;
(iii) undertaking research in the work of public and private bodies and serving as a centre of information concerning matters offering possibilities of codification. Also, within the framework of the activities of the United Nations itself, the Division will analyze and record legal principles practised by the principal organs of the United Nations in applying the provisions of the Charter.
(b) No doubt the above-mentioned Division has done useful preliminary work in the field. It is questionable, however, whether the Secretariat itself should be primarily charged with such a comprehensive, continuous and highly specialized responsibility: its dimensions and importance would suggest that it be regarded as something other than a routine function for the Legal Department of the Secretariat. At the other extreme, the project might be undertaken by an international organization established as a specialized agency of the United Nations; however, not only would this be unduly cum-brous, but such an organization would not be identified sufficiently closely with the General Assembly, the body primarily charged. A via media would seem to be indicated.
(c) The most effective and appropriate way of discharging this long-term obligation would appear to be through the establishment, by resolution of the General Assembly, of a subsidiary organ to be known as "The International Law Commission". The Commission might be composed of one representative, fully qualified in the field of international law, from each of fifteen states to be elected by the General Assembly. Following the analogy of the Inter-national Court, the states first elected by the Assembly might appoint representatives as follows: five states for three years; five states for six years; five states for nine years. After the first election, the respective terms could be determined by lot drawn by the Secretary-General. Subsequent elections, as they fell due, would be for nine-year terms. Such a body would not be too unwieldy for effective work, yet it would be representative of the principal systems of law currently in operation. Close liaison would, of course, have to be maintained with the Legal Department of the Secretariat, from which presumably some personnel would be drawn by the Secretary-General in providing suitable administrative staff for the Commission.
4. (a) One function of the International Law Commission would be to investigate and report to the Assembly on the existing agencies concerned with the codification of international law, with a view to making recommendations for the correlation of the work of such agencies with the work of the Com-mission. It is understood that some preliminary investigations in this field have already been undertaken by the Legal Department.
(b) A prime function of the Commission would, of course, be the development of a long-term plan for the codification of international law. The codification, it is thought, might properly take the form of a Restatement, corresponding to that undertaken by the American Law Institute in respect of United States law, which would proceed progressively and according to the aforementioned plan. As particular Sections of the Restatement were completed, they would be submitted by the Commission to the General Assembly of the United Nations for adoption, by a two-thirds vote of the General Assembly, as declaratory of contemporary international law.
(c) This, of course, would not be tantamount to legislation. At the same time, there would seem to be no doubt that such a Restatement would have great weight as a declaration of the recognized principles of international law, that it would receive a large measure of acceptance as an authoritative code and that it would go far toward strengthening the importance of international law, both in the conduct of international affairs and in the settlement of international disputes. Law, of course, depends ultimately on its acceptance by those to whom it is addressed, and there have been instances in the past where international agreements have been recognized as authoritative codes of international law, even by states not party thereto.
(d) The Restatement proposal would have certain obvious advantages over the traditional method of codifying international law by the negotiation of multilateral conventions—It would not purport to affect only the participating states. It would not be affected by failures or delays in the depositing of ratifications, approvals or acceptances. Not only, however, would procedure by Restatement be more expeditious but, as a quasi-legislative device, it might point the way to further advances in the direction of international legislation.
(e) The Canadian Bar Association's Committee on Legal Problems of International Organization for the Maintenance of Peace, Toronto, August, 1944, recommended that "there should be undertaken a codification of the general rules of international law by such body as may be agreed upon". This recommendation did not specify the means by which codification would be effected; however, the present proposal would conform therewith.
(f) It would appear, indeed, that, under the Charter, this is as far as the General Assembly could go in the direction of quasi-legislation. It might be desirable, in the long run, by an appropriate amendment to the Charter, to invest the General Assembly with power by a two-thirds vote, and with the concurrence of the Security Council, to exercise legislative power to codify and even to modify the general rules of international law and to enact new rules of international law. This course was strongly recommended by an unofficial meeting of North American jurists held in April, 1944. (A copy of Proposal 7 is attached hereto)†. However, judging from the experience at Dumbarton Oaks and San Francisco, which resulted in the formulation of the Charter in its present limited terms, it is doubted whether any useful purpose would be served by recommending a specific amendment of such a nature at the forthcoming Second Session. The ultimate attainment of legislative power by the General Assembly in the field of international law is no doubt an ultimate goal which should be borne constantly in mind. Nevertheless, it would seem more sensible for the Canadian delegation to content itself, at the present stage, with sponsoring the proposals outlined above as constituting a practical step-in the right direction.
5. A further function of the Commission, to be undertaken pari passu with the Restatement, would be the initiation and examination of proposals for the progressive development or improvement of international law with a view to preparing, in the form of draft conventions or otherwise, specific proposals for the consideration of the General Assembly. The observations contained in the immediately preceding paragraph respecting codification are, of course, entirely applicable here. However, proposals for the development of international law differ in kind from proposals for the codification of inter-national law. Presumably, in the field of international law reform, unless the terms of the Charter are broadened, the Commission would, in practice, be limited to the preparation of draft conventions (corresponding in form to the draft Convention on Immunities and Privileges for the United Nations) which would be submitted to the General Assembly for approval and presented to individual states for approval, acceptance or ratification in accordance with their respective constitutional procedures.
6. The Commission might, in addition, be empowered to examine and report upon any question of a legal nature submitted to it by the General Assembly or the Legal Committee of the General Assembly. Routine legal advice to the Organization and its components would, of course, remain the primary responsibility of the Legal Department of the Secretariat.
7. The Canadian Delegation should not proceed to the Second Session committed irrevocably to the foregoing specific proposals. The principal end should be to ensure that this basic problem is dealt with at the Session in a practical constructive manner; detailed problems affecting the mechanics of implementation could be dealt with in Committee as they arise. It is, how-ever, felt that there would be more likelihood of effective attention being paid to the problem, if definitive proposals were put before the Assembly.