The Working Methods of the International Law Commission: Adherence to Methodology, Commentaries and Decision-Making

In the twentyfirst century, the International Law Commission has increasingly moved away from its “codification by convention” paradigm to the preparation of instruments that remain nonbinding.1 A combination of factors may encourage governments, national courts and international courts and tribunals to rely on the Commission’s nonbinding outputs.2 The Commission’s composition is geographically representative of the world’s legal systems; the Commission is institutionally required to interact with governments, whose comments find reflection in the Commission’s final output; and the quality of the Commission’s work addresses a frequent challenge that governments and national and international courts face: collecting and assessing State practice for the purpose of interpreting treaties or identifying rules of customary international law. This last aspect, the quality of the Commission’s work, is inextricably linked with its working methods. Today, the Commission faces numerous challenges that are different from those that existed at the time when the Commission was established. The number of States has almost tripled compared to 70 years ago. The Commission’s composition has been enlarged.3 More multilateral treaties have been concluded, covering many areas of international law. International courts and tribunals have proliferated and often apply rules of