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Reflections on lex ferenda*

Published online by Cambridge University Press:  07 July 2009

Hugh Thirlway
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Extract

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.

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Articles
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Netherlands Yearbook of International Law , Volume 32 , December 2001 , pp. 3 - 26
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Copyright © T.M.C. Asser Press 2001

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References

1. de la, À propos‘lex ferenda’, Mélanges offerts à Paul Reuter: Le droit international: unité et diversité, Paris, 1981Google Scholar: reprinted in Virally, M., Le droit international en devenir (Geneva, IUHEI 1990) p. 213.CrossRefGoogle Scholar

2. ICJ Rep. (1970) p. 78, para. 25.

3. Ibid., p. 78, para. 24, emphasis added.

4. Ibid., p. 84, para. 35; cf., also ibid., p. 92, para. 47.

5. Cf., Fitzmaurice's dissent in the case of Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), ICJ Rep. (1971) p. 224, para. 8 in fine.

6. In his dissenting opinion in the case concerning Legality of the Threat or Use of Nuclear Weapons, Judge Schwebel emphasized how important it is ‘not to confuse the international law we have with the international law we need’: ICJ Rep. (1996) p. 311. It follows that the distinction is equally important in the teaching of international law; thus Jennings: ‘[H]owever difficult it may be to draw the line in a particular matter between the lege lata and proposal de lege ferenda, and however much the line may be difficult to identify at a given moment precisely because it is shifting, it is vital that the existence of that boundary should always be insisted on in the teaching of international law…’; ‘Teachings and Teaching in International Law’, in Makarczyk, J., ed., Essays in International Law in Honour of Judge Manfred Lachs (The Hague, M. Nijhoff 1984) p. 128.Google Scholar

7. Op. cit. n. 1, at p. 222.

8. Salmon, J.J.A., ‘Quelques observations sur les lacunes en droit international public’, Revue belge de droit international (1967) pp. 440–458.Google Scholar

9. Op. cit. n. 8, at p. 449.

10. In particular by Prof. Bos, M., A Methodology of International Law (Amsterdam, North Holland 1984) p. 301.Google Scholar

11. In Hohfeldian terminology, the respondent state would be said to have a privilege to act as it did. The Barcelona Traction case, mentioned above, is a clear example: Belgium could not recover because the right of the national state of the shareholders to sue was not recognized in international law, but that was not a lacuna, but itself a rule – a rule of non-recovery.

12. Op. cit. n. 1, at p. 217.

13. The same situation may theoretically arise in customary law (cf., Salmon, op. cit. n. 8, at pp. 447–448); but while the existence of a special or local custom may mean that different rules apply in different places, it is perhaps less likely that the special customary rule will have such merits in comparison with the general rule as to justify the special rule being regarded as ferenda.

14. ICJ Rep. (1969) pp. 41 et seq., paras. 70 et seq.

15. ICJ Rep. (1996) pp. 254–255, para. 70.

16. Abi-Saab, G., ‘Éloge du “droit assourdi”: quelques réflexions sur le rôle de la soft law en droit international contemporain’, in Rigaux, F., Nouveaux itineraires en droit – Hommage à François Rigaux (Brussels, Bruylant 1993) pp. 61–62.Google Scholar

17. Klabbers, J., ‘The Redundancy of Soft Law’, 65 Nordic JIL (1996) p. 167Google Scholar, defines soft law as ‘those instruments which are to be considered as giving rise to legal effects, but do not (or not yet, perhaps) amount to real law’ (emphasis added). The meaning, however, seems to be that soft law may harden with time, which is not the same as saying that it is to be regarded as lex ferenda.

18. Cf., O'Connell, D. P., International Law (London, Stevens 1970) 2nd edn., Vol. 1, pp. 19–20Google Scholar, where the author comments on the difficulty of deciding ‘at what moment a practice de lege ferenda has become a custom de lege lata,’, thus recognizing the validity of the distinction, only to observe on the following page that the positivist international lawyer ‘is compelled to distinguish sharply, and improperly’, between lex ferenda and lex lata. Again, on p. 29, he suggests that ‘the distinction may not … be very sharp’; the meaning is that it is not easy to be sure on which side of the line a given alleged rule falls; but the distinction is perfectly sharp, in the sense that on one side of the division are binding rules, and on the other mere suggestions or non-binding practices.

19. Cf., the statement by the Chamber in the Gulf of Maine case of a ‘fundamental norm’ applicable to all maritime delimitations, but derived from state practice in (essentially) continental shelf delimitations, in order to get over the difficulty posed by the absence of state practice in the field of the ‘single maritime boundary’ (applicable to the seabed and the superjacent waters) ICJ Rep. (1984) pp. 299–300, para. 112.

20. ICJ Rep. (1969) pp. 46–47, para. 85.

21. Fisheries Jurisdiction, ICJ Rep. (1974) p. 33, para. 78; p. 202, para. 69.

22. Frontier Dispute, ICJ Rep. (1986) pp. 567–568, para. 28; see also ibid., p. 633, para. 149.

23. Note also the rejection by the International Tribunal for the Law of the Sea, in the M/V Saiga (No. 2) case, of any assimilation with the rule in the Nottebohm case, which would, had it been adopted, have imposed a strong inducement to states to comply with the rule.

24. This category would also include, it is suggested, progressive development designed to ‘tidy up’ existing rules of law, by filling lacunae or eliminating anomalies, on the basis of ideas of convenience rather than of justice.

25. The present writer has urged this view elsewhere: Thirlway, H.W.A., International Customary Law and Codification (Leiden, Sijthoff 1972) pp. 53–54Google Scholar; ‘The Law and Procedure of the International Court of Justice, Part Two’, 61 BYIL (1990) pp. 42–43Google Scholar. For a contrary view, cf., Haggenmacher, P., ‘La doctrine des deux éléments du droit coutumier dans la pratique de la Cour internationale’, 90 Revue générale de droit international public (1986) pp. 5–125, at p. 110, n. 334.Google Scholar

26. Virally, loc. cit. n. 1, at p. 213.

27. Le droit nécessaire procède immédiatement de la nature; cette mère commune des hommes recommande l'observation du droit des gens volontaire, en consideration de l'état où les nations se trouvent les unes avec les autres, et pour le bien de leurs affaires.’ Vattel, , Preface to Le droit des gens, ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains, (1758).Google Scholar

28. Cf., the very interesting appeal by Judge Weeramantry, in his dissent in the case of Legality of the Threat or Use of Nuclear Weapons, to Hart's concept of the ‘minimum content of Natural Law’: ICJ Rep. (1996) pp. 520–521, quoting Hart, H.L.A., The Concept of Law (Oxford, Clarendon 1961) pp. 188–189Google Scholar (see idem, 2nd edn. (1994) pp. 192–193).

29. In this sense, cf., Dominice, C., ‘Le grand retour du droit naturel en droit des gens’, in Mélanges en l'honneur de Jacques-Michel Grossen (Basle, Helbing & Lichtenhahn 1992) p. 401.Google Scholar

30. ‘Is Law a System of Rules?’, in Dworkin, R.M., The Philosophy of Law (Oxford, Oxford University Press 1977) p. 38.Google Scholar

31. McDougal, M.S., ‘International Law, Power and Policy: A Contemporary Conception’, 82 Recueil des cours (1953) p. 144.Google Scholar

32. Higgins, R., Problems and Process: International Law and How We Use It (Oxford, Clarendon Press 1994) p. 1.Google Scholar

33. Ibid., at p. 10.

34. If the law is to be applied by a tribunal, it must, it is submitted, consist of rules. A curious deduction from this is the view of Bin Cheng that the system of law applicable to a state varies according as that state has or has not accepted the compulsory jurisdiction of a tribunal, in particular the ICJ: see International Law Association, Report of the 51st Conference (Tokyo, 1964) pp. 43–44Google Scholar, quoted (apparently with approval) in the separate opinion of Judge Kooijmans, Fisheries Jurisdiction (Spain v. Canada), ICJ Rep. (1998) p. 494.

35. Koskenniemi, M., From Apology to Utopia (Helsinki, Lakimiesliiton Kustannus 1989) p. 178Google Scholar, commenting on Boyle, F.A., World Politics and International Law (Durham, Duke University Press 1985).Google Scholar

36. This is not to say that in the law-as-process system, if we have correctly understood it, all considerations are of equal weight: in the international decision-making process what a more traditional lawyer would regard as lex lata would have more weight than considerations which that observer would have called lex ferenda.

37. Thus Higgins: ‘law as rules requires the application of outdated and inappropriate norms’:op. cit. n. 32, at p. 10.

38. The dissenting, and to a lesser extent the separate, opinions of Members of the Court are a rich field for assertions that what the Court has regarded as lex ferenda and therefore left aside is in fact the applicable lex lata.

39. ICJ Rep. (1966) p. 34, para. 49; cf., also the joint dissenting opinion of Judges Spender and Fitzmaurice at the previous stage of the case, ICJ Rep. (1962) p. 466..

40. Judge Rosalyn Higgins, in the course of her onslaught on the ‘rule-based’ approach to international law, has suggested that the reference to ‘the limits of [the law's] own discipline’ is in fact a begging of the question (Higgins, op. cit. n. 32, at p. 5); however, moral or humanitarian principles are not excluded from application as law because they bear those labels, but because, or insofar as, they have not been embodied in treaty or customary practice.

41. ICJ Rep. (1969) p. 38, para. 62.

42. Ibid., p. 41, para. 69.

43. ICJ Rep. (1974) pp. 23–24, para. 53 (UK case); p. 192, para. 45 (FRG case).

44. ICJ.Rep. (1982) p. 21, para. 2; p. 37, para, 23.

45. Strictly speaking, of course, the trends could be both; but if they were applied as part of the treaty settlement, the question of what status they might otherwise have had would be moot.

46. ICJ Rep. (1982) p. 37, para. 23.

47. Ibid., at p. 38, para. 24.

48. ICJ Rep. (1999) p. 255, para. 71.

49. Ibid., para. 73.

50. Judge Guillaume in his separate opinion criticized the advisory opinion on the ground that the Court had ‘too often … allowed itself to be guided by considerations falling more within the sphere of natural law than of positive law, of lex ferenda rather than of lex lata’: ibid., at p. 287, para. 1.

51. South West Africa, Joint dissenting opinion, ICJ Rep. (1962) p. 540.

52. Ibid., at p. 468. Note the reference to placing ‘some of the parties’ in an altered position: the essence of the matter is injustice; if all parties agree to a revision of their rights, no question arises.

53. Cf., the finding of the ICJ upholding the practice of the Security Council whereby a resolution adopted over the abstention of a permanent Member was regarded as validly adopted, notwithstanding the terms of Art. 27, para. 3, of the Charter: Legal Consequences for States of the Continued Presence of South Africa in Namibia, ICJ Rep. (1971) p. 22, para. 22.

54. For a vigorous denunciation of an over-liberal approach to treaty interpretation, see the entertaining article of Fitzmaurice, G., ‘Vae victis: or woe to the negogiators: your treaty or our interpretation of it?’, 65 AJIL (1971) p. 373.CrossRefGoogle Scholar

55. Judgment of 27 June 2001, para. 101.

56. Ibid., para. 102.

57. As was later to be specifically provided for in Art. 33, para. 1, of the 1928 General Act for the Pacific Settlement of International Disputes.

58. The present writer has examined the LaGrand decision more fully in 72 BYIL (2001) (in press).

59. Thirlway, H.W.A., ‘The Law and Procedure of the International Court of Justice, 1960–1989; Part Three’, 62 BYIL (1991) p. 47.Google Scholar

60. Fitzmaurice, loc. cit. n. 54, at p. 373.

61. ICJ Rep. (1986) p. 135, para. 270.

62. Ibid., at p. 148, para. 292 (10).

63. Ibid., at p. 135, para. 270.

64. Thirlway, H.W.A., ‘The Law and Procedure of the International Court of Justice, Part Four’, 63 BYIL (1992) at pp. 53–54.Google Scholar

65. ICJ Rep. (1997) p. 73, para. 125.

66. Ibid., at p. 75, para. 129.

67. Ibid., at p. 76, paras. 132, 133.

68. Ibid., at p. 76, paras. 133, 134, emphasis added.

69. Quoted at ibid., at p. 12.

70. Ibid., at p. 77, para. 139.

71. Ibid., p. 83, para. 155(2)(B).

72. Judgment of 25 April 1978, ECHR Series A, No. 26.

73. Judgment of 7 July 1989, ECHR, Series A, No. 161, para. 102.

74. Loc. cit. n. 73, para. 104.

75. ‘[L]a sentence de la Cour mérite bien le titre d'arrêt de principe dans la mesure où les juges de Strasbourg ont, dans une avancée spectaculaire, tenu à réactualiser la qualification de la torture conformément à la doctrine du “droit vivant”’: Cohen-Jonathan, G., ‘Un arrêt de principe de la “nouvelle” Cour européenne des droits de l'homme: Selmouni c. France (28 July 1999)’, 104 Revue générale de droit international public (2000) at p. 183.Google Scholar

76. Judgment of 28 July 1999, ECHR Reports 1999-V. In the Loizidou case, cited in this decision, there is also reference to state practice (para. 79 of the Judgment), but merely as confirmatory of an interpretation arrived at on the basis that the Convention is a ‘living instrument’ (para. 71); this doctrine led to the rejection of an interpretation of the provisions as to reservations to acceptances of jurisdiction parallel to the established interpretation by the PCIJ and ICJ of their Statutes, notwithstanding the fact that the terms of the jurisdictional provision were identical in the three instruments concerned.