There is a certain paradoxical character about the concept of lex ferenda as an element of legal discussion, since the defining feature of lex ferenda is that, whatever else it may be, it is not part of positive law. Yet the term is at times found useful in doctrinal discussion; it was the subject of a penetrating essay, some 20 years ago, by the late Professor Michel Virally, and the time is perhaps ripe for its re-examination, in the light, in particular, of some more recent decisions of the International Court of Justice. Lex ferenda serves as a label for something which has at least conceptual existence, as a contrast or opposite to lex lata, the law that exists and obliges the subjects of law to adopt, or to refrain from, certain defined courses of conduct in certain defined circumstances. The term is not, however, a mere antithesis, in the sense of referring to something or everything that is not law: the force of the Latin gerund (‘delenda est Carthago’) is that the term refers to something that in some sense ought to be law, but is not. There are of course numerous possible ideas and rules which might be law, but of these many not only are not law, but are not even potential law, inasmuch as they would not be desirable as law, and would therefore not fall into the narrower, more precise, category of lex ferenda.

The conclusion and adoption of the Statute of a permanent International Criminal Court (hereafter ‘the Statute’) in Rome in July 1998 represented a turning point in the enforcement of legal norms regulating armed conflict. The establishment and functioning of the UN International Criminal Tribunals for the former Yugoslavia and Rwanda represented an important first step in this area, and the work of these tribunals will prove of considerable importance to the interpretation and application by the ICC of the body of substantive law that it will apply. However, the separate treaty basis of establishment of the ICC means that it is clearly not part of the UN Organization which consists of the six principal organs specified in Article 7(1) of the Charter and their subsidiary organs. As such there is a very clear distinction in institutional terms between the ICC and the ICTY/ICTR that were both established by the UN Security Council as UN subsidiary organs pursuant to Chapter VII of the Charter. This differing basis of establishment raises the key issue of the nature of the relationship between the ICC and the UN.

On Thursday 31 May 2001, the International Law Commission (ILC) adopted, by consensus, at the second reading, the draft articles on the responsibility of states for internationally wrongful acts. It has thus almost put an end to a saga which goes back more than seventy years to 1927 when a committee of experts constituted by the League of Nations decided to put the subject on the agenda of the Codification Conference of 1930, with very little success. As for the ILC, it put the subject on the agenda in 1955 before finally completing its investigation forty-six years and five Special Rapporteurs later.