The Usage of Lex Ferenda in International Law

The purpose of this article is to identify more clearly the term “lex ferenda”, or “the law which is being sought to establish” and its antithesis “lex lata”. The research originates from two questions. First, is the term “lex ferenda” used by scholars only as academic terminology, or is it employed also by States, Courts, and the United Nations International Law Commission (ILC) for practical or diplomatic purposes? Second, what is the relationship between “progressive development of international law and its codification” and “lex lata and lex ferenda”? The article analyzes scholars’ teaching, the practice of States, domestic and international jurisprudence.