Between Philosophy and Anxiety? The Early International Law Commission, Treaty Conflict and the Project of International Law

The early International Law Commission does not occupy a heroic role in our imaginations. Its work draws tepid praise, if any, and is evaluated simply in terms of its successes or not in codifying and progressively developing international law. This article calls attention to the more subtle project of strengthening international law which guided the Commission’s work. It argues that this project was informed by an appreciation of the politics of international law and was founded on liberal and constructivist assumptions. To illuminate this project, it examines the Commission’s work on treaty conflict in the course of drafting the Vienna Convention on the Law of Treaties. The Commission, the article points out, stands apart from much mainstream commentary in giving active consideration to the most intractable forms of treaty conflict: conflicts between treaties with non-identical parties and deliberately created treaty conflicts. Its response to such conflicts, in the form of the much-criticised Article 30, reveals the combination of philosophy, anxiety, politics and strategy that shaped international law at the start of the modern post-war era.