Prof Phoebe Okowa accepts her award, discusses the work of the International Law Commission

Legitimacy in the work of the International Law Commission

Honourable Mr. Gitobu Imanyara and the entire team at The Platform, the Dean of Strathmore Law School, Dr. Peter Kwenjera, it is a huge honour and a privilege to be awarded this year’s C.B. Madan Prize. I am delighted to see so many friends and members of my family in the audience. As always it is always good to be home especially on this particular happy occasion.

C.B. Madan was not just one of this country’s finest lawyers but a living embodiment of the incontrovertible truth that our strength lies in our diversity.

Born into a Kenyan Asian family, he served as a lawyer through a very tumultuous period in our national history, First as a champion for  the cause of independence and later as Chief Justice in a one-party state.

He was in fact one of many Kenya Asian lawyers who made a remarkable contribution to our constitutional journey- Professor Yash Ghai and Senior Counsel Pheroze Norwojee are two of the most well known to the current generation of lawyers.

 In those difficult years that preceded our transition to multi- party democracy, his judgments  were seminal, for their unflinching commitment to integrity of the judiciary, fairness and the resolute manner in which he dealt with attempts to pervert the cause of justice-

I am particularly reminded here of  Republic V. Shah (1986), a case that involved a man sentenced to two years for theft but who ended up spending 499 days of his sentence on bail pending appeal-the appeal judgment being serially postponed-  there was a whiff of suggestion that the delay was a deliberate and corrupt attempt to keep him out of jail. 

In cancelling the bail and committing the man to prison, Justice Madan was resolute in his affirmation of the principle of equality before the law. We and future generations of lawyers shall forever be in his debt for his service to our country.

The topic of my lecture today is legitimacy in the work of the international law Commission. There is of course an element of personal indulgence here;

as many of you know I was elected to the International law Commission just over a year ago and started my five-year term in January  this year.  

Legitimacy is of course an overarching  theme in the ILC as a project but I was motivated also by the realization that many aspects of the commission’s project are difficult to defend in terms of legal or political acceptability- it is still very much a work in progress especially in relation to questions of gender representation.  

Also, in the charged political climate in which we live, it seems sensible to stick to the workings of an arcane technical body of lawyers which few are likely to disagree with.

What is the Commission?

The Commission was set up as a subsidiary organ of the general assembly in 1949 with the  mandate in the words of its statute to codify and progressively develop the law.

At the San Francisco Conference, the emphasis on codification and progressive development was  intended to strike a balance between stability and change. The need for certainty had to be balanced by the need for law to be able to adapt to the technological, political or changed economic circumstances that will inevitably arise in the practice of states.  

But since the Commission was a technical body of lawyers with no political mandate and in most cases no expertise other than the law, any processes of codification and progressive development had to respect the law declaring techniques in international law- codification had to be backed by state practice and opini juris. Just as in national legal systems, law commissions can advise governments, but they cannot change the law because they lack the necessary democratic mandate to do so

The suggestion that the texts produced by the commission could be made binding on states after the approval or endorsement of the Security Council was decisively rejected at San Francisco.

Second, it follows that the Commission lacks the mandate to overhaul de novo accepted legal structures within international law- Again from the travaux preparatoires , it is clear that this was regarded as a necessary democratic limit in relation to an organ that lacks political legitimacy

The inherentlimitations of the Commission’s power were brought to the fore when it attempted to introduce a distinct penal regime in the context of its long project on State Responsibility, under which states could be held criminally responsible for serious violations of certain rules of international law such as systemic environmental pollution; serious violations of human rights norms and the prohibition of aggression.

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Apart from huge conceptual difficulties on how to operationalize the concept of state criminality, there were concerns too that this was a radically new idea that had no basis in the received content of      state responsibility as based on a delict, civil wrong.

The Penal provision appeared as draft Article 19 of the Commission’s articles on state responsibility and received a cool reception when the articles on responsibility were presented to member states of the United Nations.  Underlying this was the inherent assumption that only political organs directly accountable to their populations could initiate a radical overhaul of legal structures and not lawyers however eminent or qualified.

As a logical consequence of the democratic legitimacy  argument,  it follows that there is nothing to stop the Commission from a radical overhaul of the law if asked to do so by UN bodieswith a political mandate. 

In fact the records of the meeting of the 1947 committee that oversaw the setting up of the Commission indicates that mandate of the commission is not necessarily limited to codification and progressive development but may extend to a radical overhaul of the law if required , including law making abinitio.  

Thus soon after it was set up, the Commission was asked by the GA of the United Nations to take on a special assignments and produce a draft code on the Rights and Duties of States; This in end proved difficult on account of lack of consensus on the criteria of statehood and recognition of governments.

The Commission was also asked to undertake the codification of offences against the peace and security of mankind. The project lasted over 40 years and formed the basis for the crimes included in the Rome statute of the International criminal Court.

similarly the Economic and Social Council tasked the Commission with the preparation of a draft convention on the crime of Genocide- In fact it is widely acceptedthat the initiative for special assignment is not limited to the GA or sixth committee  but could extend to Specialized agencies.

Overarching concerns about democratic legitimacy have also influenced the Commission’s working methods. In preparation of its documents, the Commission is also required to consult and consider the views of political actors. Under Article 17, the Commission is required to circulate a questionnaire on its work to States on the feasibility of the topic  and collate information on instances of state practice bearing on the topic.

Under Article 25 the Commission has the power to consult with UN Organs

And under Article 26, it has a power to consult with international or national organizations

Of course, the Commission has struggled to interest Governments in its work and in general it has received limited response from Governments on questionnaires circulated about its work. Yet to be successful the commission needs the political endorsement by Governments. Many Governments cite lack of capacity in their foreign ministries as the major reason for non-engagement with the Commission’s projects. This is an area which needs much work on States especially those in the Global South can be supported to take a more active interest in the work of the Commission.

Legitimacy and the imperial history of international law

Legitimacy of codification in work of the commission also had to contend with International law’s imperial history.

For much of its history International law was an essentially imperial project with rules developed to serve the imperial interests of European countries . It had provided the intellectual justification for colonialism, foreign military occupation, and slavery to name a few.  Its developed rules on expropriation of foreign property and the much lauded mare liberum (freedom of the sea) had been designed and developed to perfect the needs of European imperialism.

It comes as no surprise that in the early years, the codification of international law had to confront the inevitable argument that any  process of codification would simply entrench European hegemony by not being sufficiently sensitive to the needs of States who were not  regarded as fully formed members of the international community at the time the rules were being developed.  The Soviet Union for many years maintained that only treaties could be the true basis of obligation founded as it were on state consent.

Any process of codification thus has had to accommodate- Soviet and subsequently Russian disdain for processes of codification of customary law and its declared preference for the convention as the only true process of gauging state consent. For the Soviet Union and many states in the global south, codification was seen as an instrument in the hands of the Anglo-American bloc for legalising imperialism in international relations.

It is for this reason that in the practice of the Commission the boundaries between codification and progressive development have been largely permeable. Thus in relation to many of the rules arising out of the processes of decolonisation, such as succession to treaties, maritime entitlement and  state responsibility, the Commission has had to be sensitive to the fact that what was being presented as custom was a codification of practice which many of the new states emerging from the processes of decolonisation had in fact not taken part in .   Codification and progressive development therefore had to reflect the new political realities occurring after 1945.

Geographical representation as a manifestation of legitimacy

For a body to be legitimate it must be inclusive and representative. Perhaps the most entrenched attempts to make the commission legitimate lies in the inflexible rules governing its composition.

The statute has been amended several times to ensure regional balance with the result that the Commission as a whole is representative but diversity in gender terms (about which I will say more later) remains a serious problem.

The original membership of 15 has been progressively expanded to the present number of 34 to accommodate the varying needs of political and geographical representation as new states emerged after the processes of decolonisation. 

Under article 3-5 of its statute, the Commission is required to ensure that its composition respect the main forms of civilisation and political groupings. The main groupings are Africa; Asia, Latin America, and the Caribbean; Eastern Europe and Western European group (a disparate geographical group that includes Australia and New Zealand; Israel and the United States

• Geographical distribution does not always ensure balance and truly inclusive body- small states don’t stand a chance of getting a member elected.  
• P5 always have a member, although in the most recent elections the United States failed to get their member elected.
• The Horse trading of votes has increasingly dominated ILC elections- small states lacking the necessary political connections generally don’t stand a chance however eminently qualified their nominees are.
• Nomination by States was intended to provide the necessary political oversight in relation to a body that would serve the needs of states.
• Yet it was also important that members be free of political influence and that they are not beholden to any sectional interests.
• Thus members of the Commission, although nominated by governments serve in their individual capacity and are not accountable to any political constituency
• Many members of the Commission are former diplomats giving the commission the necessary political gravitas to make its projects acceptable to states.
• However, there is also a feeling that political considerations should be of secondary importance and that technical competence in matters of international law should be the overriding consideration.

• The eminent international jurist, Hersch Lauterpacht was however of the view that legal competence and political gravitas should be o paramount importance. He said:

• An organ which is concerned not only with the restatement of existing law but also with its change and development, qualifications of statesmanship  and experience may count for less than expert knowledge

• However a significant number of members are serving diplomats, including foreign ministers raising concerns about the Commissions perceived neutrality when most its members are politicians in disguise and in some cases even serving as members of their country’s delegations to the sixth committee.
• My predecessor on the Commission, Mr Amos Wako was of course Kenya’s attorney during his first two terms in the commission.

Legitimacy and the choice of projects

What kind of projects are most suited for the commission?

There are those who argue that members of the commission are elected for their generalist knowledge of international law as opposed to specialist technical expertise. That as a result the commission as a whole is best suited to handle constitutional questions of international such as criminal jurisdiction; immunities or peremptory norms; law of treaties.

That because members of the commission lack a political mandate and are  not accountable to any constituency, the Commission as a whole is Unsuited for projects that are  overtly political  and in respect of which there is insufficient political agreement. Here are some examples frequently cited.

• The French jurist Alain Pellet has remarked that the Commission is not the place to launch a major initiative on a Comprehensive ban on Nuclear weapons.
• Criminality of aggression
• Recognition of governments / criteria of states- Both topics were however placed on the commission’s agenda as far back as 1949. There is increasing consensus that State’s that the law in this area is now sufficiently developed for it to be taken up as a topic for codification.
• Highly unsuited for issues that involve technical matters such as Law of the sea 1958 conventions – four conventions not successful. Matter later resolved at a diplomatic conference.
• Most important and consequential matter is climate change- sea level rise- Does the commission have a role to play or should this complex matter be left to other bodies?
• Is the Commission the appropriate place to initiate a major treaty on how to respond to Global pandemics or should this be left to bodies with political mandate such as the WHO?

Legitimacy and the gender question in the composition of the Commission

Can a body that is almost exclusively composed of men be regarded as legitimate?

I thought I should save the most troubling question- the gender question until the very end because the sense of injustice that has been so callously ignored for more that 70 years is deeply frustrating.  Here are some raw statistics to frame the issues.  I am very grateful to an article by Dr Lorenzo Gradoni (Still losing: A short History of Women in Elections and By-Elections) for the UN International Law Commission (EJIL Talk November 25, 2021) for the statistics provided below:

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When the new members took office in January there will have been since 1949 10 women members against 238 members.

In the current Quinquennium of the 34 members elected in November 2021 only 5  are women members but five is also the single largest number of women who will have served in the Commission at any one time.  An academic writer recently suggested that at the current rate, the world will be fully decarbonized before the number get to even 30.  

To be elected women first have to be nominated and the record of nominations is equally disturbing of the nominations received since 1949, only 27 have been women as opposed to 785 men- that’s right only 3.4 percent have been women.  And even when nominated women’s chances of being elected or re-elected are considerably lower than that of men.  

The first women were elected in 2001 and since then only 8 more have been elected Of course the ILC is by no means unique but it is telling that it lags considerably behind the ICJ and institution whose record on inclusivity was until recently just as bad but now at least 25 percent of the Court’s members are women. When I was elected became the first woman to be elected and only the second to have nominated by an African State. In 1996 Zambia nominated an ably qualified women lawyer Beatrice Kamuwanga, she ended up coming second last and with one of the lowest percentages of votes of any candidate in an ILC election. 

By elections to feel seats on the resignation or death have also largely been dominated by men though here it is the existing members of the commission who vote and States as represented in the UN General Assembly

. For instance all 58 casual vacancies have been filled by men

• Why is the lack of gender representation so entrenched? 

–            Three possible reasons:

1. First may be attributed to the Ubiquitous male lens through which success and competence is viewed in public life making men the natural choice in Public appointments.

2. Lack of women of sufficient seniority to take leadership roles- our generation of women lawyers at the university of Nairobi were taught exclusively by men. And it is true that women in our region have never been particularly interested in international law. Moreover, States prefer to elect members who are not just academic lawyers but those who have undertaken advisory work for governments. Yet much of this advisory work including as counsel before the international court are given to men. Only 2 percent of women have appeared as counsel before the international court.

3. Most national systems lack of open and transparent systems of nomination, making it difficult to have a wide pool of candidates including women.

4. The ILC itself needs to develop progressive and inclusive procedures for the conduct of by.

5. We need more men too to take on the question of Equity in the nomination of candidates.

6. There is always the option to a mend the statute to reflect gender parity as an indispensable requirement like in the ICC-. However, amending the ILC Statute is not going to be easy as it is a part of the UN Charter and will be subject to the inherent difficulties that face those who Charter itself amended to reflect modern political realities.