ABSTRACT
Since the completion of major projects identified as appropriate for codification and progressive development in the early years of the International Law Commission (ILC or Commission), there have been suggestions that the ILC should undertake a task like that of law commissions at the national level, where they review the state of the law and propose changes. The theory and practice of the Commission widely differ on the matter. In theory, as per Article 15 of its Statute, the mandate of the Commission is limited to codification and progressive development. The question explored in the contribution is whether law reforms fall within this mandate or are within the domain of ‘policy,’ a matter that the Commission is inadept to undertake. The practice, however, is different. In recent times the Commission is predominantly working on topics, the output of which is mostly expository in nature. These outputs are termed as ‘conclusions,’ ‘principles’ or ‘guidelines.’ These terminologies hide the real nature of these topics, which, if not exclusively, tend to border on what could be understood as law reforms. Examples of such reforms could be found even in the traditional outputs of the Commission in the nature of ‘articles’ which are meant to form the basis of a future convention. The absence of any action by the General Assembly on texts of future conventions proposed by the Commission and the use of such texts in practice due to the proliferation of international courts and tribunals is also a trend toward reforms of international law. Most importantly, there are critical issues regarding the limits of the mandate of the Commission and the legitimacy of such reforms, irrespective of their normative characterisation, which may pose challenges to the role of the Commission and its relationship with States.
