Codification of Environmental Law and the International Law Commission: Injurious Consequences Re-visited

The International Law Commission (ILC) was established in 1947 with the object of promoting ‘the progressive development of international law and its codification’. While ILC does not ‘make’ international law, it has become a significant part of the subtle process by which international law both changes and comes into being. However, a recent study of the Commission shows that the very subtlety of its approach may have precluded the Commission from contributing in a more overtly creative way to the development of those new and important areas of international law which have emerged since 1945. The displacement of the Commission by other law-making bodies is most evident in the development of international environmental law. The ILC has played no part in creating what might be called the architecture of this subject: sustainable development, global environmental responsibility, transboundary risk management, and environmental rights. This chapter reviews the Commission's contribution to this new and important subject and determines the lessons that can be drawn for its future evolution as a law-making body.