Concluding Remarks

My thanks to the organizers of this conference in celebration of the Commission’s seventieth anniversary. The topic of this panel is an important one, as it goes to the heart of what the Commission has done in the past and will do in the future. Indeed, when I first joined the Commission in 2012, I often found myself asking, when a particular rule was under discussion, “are we trying to codify the law or progressively develop it?” I believed the answer to that question to be extremely important, as otherwise it was unclear on what terrain a discussion was taking place. There seemed little point in trying to persuade colleagues why a particular rule was not grounded in existing law if, in their view, that position was irrelevant to the task at hand. Through their papers, Yifeng Chen and Ineta Ziemele have provided important insights into the Commission’s mandate with respect to the progressive development and codification of international law, and its implementation of that mandate from its inception to the present. Yifeng Chen quite rightly reminds us of the aspirations for codification over the past century, the philosophy underlying the codification movement, and the distinction between codification and progressive development, all as a backdrop to asking important questions about the authority and legitimacy of the Commission. Ineta Ziemele argues that the international law landscape has changed since the inception of the Commission, raising serious questions about what should be the function of the Commission as it pursues its twin mandates. The real impact of the Commission is brought alive in her discussion of the engagement of the European Court of Human Rights with the work of the Commission, but that impact arguably can only be maintained if the Commission pursues a more activist approach to our “globalized world”, bringing into its thinking the views of disparate actors beyond just States. In my brief role as discussant of those papers, I would like to address some of the themes advanced within them principally by considering, from an “insider’s perspective”, two questions: (1) what factors push the balance within the Commission either in the direction of “codification” of international law or in the direction of “progressive development?”; and (2) what factors push the balance with respect to any given draft article (or other provision) in the direction of transparency by the Commission as to what it thinks it is doing (codification