The international law commission of the United Nations: Legal vacuum or microcosm of world politics?

Abstract

Classical realists and Utopian idealists have long disagreed over the nature of international law. While classical realists from E.H. Carr to Hans Morgenthau contend that law is the product of power realities in international relations, Utopian idealists reject such power explanations, focusing instead on the institutions that create international law. This study addresses that theoretic struggle by empirically examining the intervention of world politics in the debate process of the International Law Commission. A data base is created from the debate record of Law Commission members from 1983 to 1989. Content analysis is performed to test explicit hypotheses that examine the Utopian assumption of an apolitical Law Commission found in the Commission's Statute. The findings indicate that the Law Commission functions in a manner that is greatly constrained by global politics and power realities. The focus on institutions, prevalent in the literature, is misleading and fails to capture the essence of the debate process in the Commission. The strength of the findings underscores the necessity for students of international law to employ a more empirical, systematic methodology in their research.

Key words:

• United Nations
• International Law Commission