The International Law Commission and Politics: Taking the Science Out of International Law’s Progressive Development

Abstract

Abstract The idea that jurists have a vocational duty to progressively develop the law finds its way in international law chiefly via the mission statement of the United Nations’ International Law Commission (ILC). Mandated by states to codify and progressively develop international law, the ILC’s modern practice has merged these two distinct exercises. The Commission utilizes a common working procedure for the elaboration of both and appears to perceive progressive development as an appurtenance of codification. What is more, progressive development has often been equated by the ILC with lex ferenda propositions and policy considerations. It is little wonder then that the ILC has never attempted to meaningfully analyse this aspect of its mandate. This article examines progressive development from a methodological standpoint and maintains that it is an exercise with self-standing importance. It argues that there are two ways to understand the ILC’s mandate to progressively develop the law: either as ‘progressive development stricto sensu’ or as ‘legislation’. The difference between the two is methodological; ‘progressive development stricto sensu’ is elaborated via an inductive methodology and principally justified by legal considerations. On the other side, in the case of ‘legislation’, provisions are principally justified by policy considerations and, hence, imbued with uncertainty regarding their methodological foundations. The article suggests that ‘progressive development stricto sensu’ falls squarely within the ILC’s legal mandate, while this will be the case with respect to ‘legislation’ only when the ILC is conscious of the question it sets out to answer and the requisite methodology that it employs to do so. To this end, the article lays down some basic methodological principles that the ILC should adhere to when engaging with topics of work where political considerations play a significant role in the development of the law. Finally, it calls for a revival of the forgotten discussion regarding the ILC’s capacity to develop international law.