The ILC’s New Way of Codifying International Law, the Motives Behind It, and the Interpretive Approach Best Suited to It

This chapter looks at the International Law Commission’s changed approach in codifying and developing international law. Increasingly, the ILC’s work has not aimed at codifying international treaties, as in the first fifty years of its activity (1949–2000), but rather at drafting guidelines, or articles which would not end up discussed in a conference to become binding treaties. This method of codification is based on the customary nature of the guidelines and articles, and relies on the extended network of judges and arbitrators that will potentially make use of them. It is mainly through the domestic and international judiciary that these written guidelines and articles become legally relevant and eventually crystallise into binding rules. The chapter reflects on the importance of the historical context of the proliferation of courts and tribunals in promoting this different endeavour, and, in conclusion, points out the central role of the practice underlying the rules, rather than the Vienna Convention rules on the interpretation of treaties, as the essential point of reference in interpreting them.