Fatigue as a Diagnostic of Power and Practice

It is becoming increasingly difficult to write about the United States and international law without retracing a familiar pattern. Acts that once demanded sustained legal explanation now appear as routine gestures of disengagement, announced with minimal justification and absorbed with diminishing surprise. That fatigue is not incidental. It reflects a deeper shift in how international law is approached by powerful states, with institutional engagement increasingly treated as contingent rather than constitutive of legal order. What previously appeared as legal disagreement expressed within institutions now takes the form of administrative exit from them.

The White House memorandum of 7 January 2026 announcing withdrawal from multiple international organizations, conventions, and treaties includes the instruction to end United States participation in the International Law Commission. This decision warrants careful attention for its symbolism, its legal meaning within the United Nations system, and its practical implications for the Commission’s work in its 2026 session. Taken together, these dimensions situate the withdrawal not just as an isolated administrative choice but as an intervention into the infrastructure through which international law is articulated, stabilised, and transmitted.

The United States and the ILC

Since the establishment of the International Law Commission in 1947, the United States has been a sustained participant in its institutional and intellectual life. Although members of the Commission serve in their individual capacity, the ILC has always operated within an ecosystem of state involvement that extends beyond formal membership. States shape the Commission’s work through nominations, written submissions on draft texts, and engagement in Sixth Committee debates on its annual reports. Over time, this ecology of participation has shaped both the direction of and reception to the Commission’s programme of work.

The ILC’s membership history reflects a continuous American presence, beginning with Manley O. Hudson, who served as Chair at the Commission’s first session in 1949, and continuing through figures such as Herbert W. Briggs, Richard D. Kearney, Stephen M. Schwebel, Stephen C. McCaffrey, Robert Rosenstock, and more recently Sean Murphy. Across these periods, United States members frequently occupied roles closely connected to the Commission’s lawmaking function, including appointment as Special Rapporteurs on major codification projects. This pattern matters because the Special Rapporteur system remains the primary mechanism through which the Commission structures and advances its substantive work.

This influence is especially visible in the ILC’s decades long engagement with international watercourses. Kearney, Schwebel, McCaffrey, and Rosenstock served sequentially as Special Rapporteurs on the law of the non navigational uses of international watercourses, producing reports that progressively identified principles, articulated obligations, and refined normative language. These reports fed directly into the drafting process culminating in the 1997 Convention, as synthesised in the United Nations’ Audiovisual Library of International Law dossier on international watercourses. Influence here was exercised cumulatively through sustained engagement rather than episodic intervention.

A similar dynamic is evident in the Commission’s more recent work on crimes against humanity. Murphy’s role as Special Rapporteur shaped a draft convention project that later moved into the General Assembly, anchored in the Commission’s work and accompanied by rounds of state comment. The United States participated in this process while the draft articles still remain in formation. In both contexts, engagement with the ILC allowed influence over doctrinal architecture before concepts hardened through treaty negotiation.

Institutional Meaning Within the UN Charter Framework

The legal meaning of withdrawal from the International Law Commission must be understood within the institutional structure of the United Nations. The ILC is a body created by the General Assembly, established pursuant to the Charter’s mandate to promote the progressive development and codification of international law. That legal basis is set out in Article 13 of the UN Charter, which assigns the General Assembly responsibility for initiating studies and making recommendations in this field.

Commission members are elected by the General Assembly from candidates nominated by governments. The Statute of the International Law Commission anchors the Commission’s existence and mandate in Charter authority, independent of the level of engagement of any single state. The ILC is therefore not an organization from which states can withdraw in a treaty sense. Its institutional existence does not depend on consent or participation by particular members of the United Nations.

In practical terms, this withdrawal entails ending nominations of candidates for election, discontinuing written submissions on draft texts, and stepping back from Sixth Committee debates that receive and shape the Commission’s outputs. These practices are not peripheral. They are the principal channels through which states influence codification and progressive development. The White House memorandum is accordingly best understood as an instruction to cease participation and support within an existing institutional framework, rather than as an act altering the Commission’s formal status.

Shifts in Influence and Deliberative Balance in 2026

The ILC’s programme of work for its 2026 session includes topics that go to the structure and operation of international law, including immunity of State officials from foreign criminal jurisdiction, succession of States in respect of State responsibility, general principles of law, non-legally binding international agreements, due diligence, and dispute settlement involving international organizations. These subjects concern the allocation of authority, the scope of obligation, and the mechanisms through which international law is interpreted and applied.

The Commission’s work on these topics will continue within established procedures. The institutional context in which deliberation occurs will, however, be altered. The absence of the United States will be felt in nomination processes that shape the Commission’s composition over time, in the circulation of written comments during drafting stages, and in Sixth Committee debates that determine how the Commission’s outputs are received and taken forward. The practical significance lies in the cumulative effect of these absences rather than any immediate disruption.

Influence within the ILC is rarely exercised through singular interventions. It accrues through repeated engagement across draft Report cycles, draft iterations, and debates. Withdrawal therefore produces a gradual reweighting of deliberative influence.

Affect and the ILC

From a TWAIL and feminist perspective attentive to affect and institutional design, the United States’ withdrawal sharpens the visibility of the International Law Commission’s continuing importance. For many Global South states, the ILC has functioned as a forum in which legal authority is mediated through collective expertise, deliberation, and textual discipline. Its procedures bind powerful and weaker states alike into shared processes of justification, creating conditions for engagement that are less volatile than bilateral diplomacy and less exclusionary than adjudication.

The affective significance of a major power stepping away from this space lies in how it alters perceptions of mediated constraint and exposes the fragility of institutional commitments. The Commission’s slow and technical modes of work absorb political volatility by translating it into text, process, and iteration.

This moment therefore invites closer attention to the Commission’s texts, practices, and silences as sites through which Global South concerns have been articulated, negotiated, and at times insulated from volatility in great power legal posture. Far from than signalling exhaustion, the withdrawal underscores the continued relevance of institutions that structure disagreement and manage asymmetry through procedure. There could be more opportunity now for other states to step up their own ILC participation. Reading the ILC carefully, in this context, becomes a way of tracing how international law continues to be made even as some actors increasingly seek to stand apart from its institutions.