The non-conventional instruments of the united nations’ international law commission: Success or failure of codification? [LES INSTRUMENTS NON CONVENTIONNELS DE LA COMMISSION DU DROIT INTERNATIONAL DES NATIONS UNIES: SUCCES OU ECHEC DE LA CODIFICATION?]

One remarkable trend in the recent work of codification of the UN International Law Commission is the adoption of nonbinding instruments, such as draft directives, principles or guidelines. On this score, scholars suggest that the treaty, as a tool traditionally used for the codification of international law, has been definitively supplanted in the practice of the Commission. This article suggests that non-binding instruments cannot become the exclusive means available to the ILC for performing its tasks. Non-binding instruments can play a prominent role when the aim of the Commission is that of clarifying technical aspects of international law or that of supplementing already consolidated rules of international law. However, when the problem at stake is the progressive development of substantive rules of international law in a certain field, the legal certainty offered by codification treaties, as well as by the expression of the consent of States to be bound, can hardly be side-stepped.