The International Law Commission’s ‘mission creep’: taking the science out of the law’s progressive development

If you wish to participate in this (remote) seminar, RSVP is necessary. Please complete the form*  by noon Wednesday 2 December and prior to the seminar, you will be sent a link to join. *Anyone registering after the deadline will be unable to participate.

The idea that jurists have a vocational duty to progressively develop the law finds its way upon international law chiefly via the mission statement of the In-ternational Law Commission. Mandated by States to progressively develop international law, the Commission nowadays does not fulfil its mandate successfully and has thus placed its authority and legacy on the line. Arguably, this is so because it perceives progressive development as an appurtenance of codification and treats it in an unscientific way; as a lex ferenda exercise in legislation, a purely political decision irreducible to meaningful legal analysis. The paper challenges this dominant perception and maintains that progressive development is a legal exercise with self-standing importance elaborated through a particular methodology. The ILC’s established practice not to distinguish between codification and progressive development has generated a confusion as to its role in the international legal order and has resulted in a ‘mission creep’. In this way, the Commission performs a function that is reserved for States in international law and States in turn show an increasing distrust towards the Commission’s work. Given also the tendency of courts to uncritically rely on the ILC’s work, the normative ramifications of this ‘mission creep’ can be significant. Finally, the paper calls for a revival of the forgotten discussion around the ILC’s capacity to effectively develop international law, if the Commission wishes to adapt to the exigencies of contemporary law-making.