The consensual structure of the international legal order, with its strong emphasis on the sovereign equality of states, has always been somewhat precarious. In different waves over the centuries, it has been attacked for its incongruence with the realities of inequality in international politics, for its tension with ideals of democracy and human rights, and for standing in the way of more effective problem solving in the international community. While surprisingly resilient in the face of such challenges, the consensual structure has seen renewed attacks in recent years. In the 1990s, those attacks were mainly “moral” in character. They were related to the liberal turn in international law, and some of them, under the banner of human rights, aimed at weakening principles of nonintervention and immunity. Others, starting from the idea of an emerging “international community,” questioned the prevailing contractual models of international law and emphasized the rise of norms and processes reflecting community values rather than individual state interests. Since the beginning of the new millennium, the focus has shifted, and attacks are more often framed in terms of effectiveness or global public goods. Classical international law is regarded as increasingly incapable of providing much-needed solutions for the challenges of a globalized world; as countries become ever more interdependent and vulnerable to global challenges, an order that safeguards states’ freedoms at the cost of common policies is often seen as anachronistic. According to this view, what is needed—and what we are likely to see—is a turn to nonconsensual lawmaking mechanisms, especially through powerful international institutions with majoritarian voting rules.

The International Law Commission held its sixty-fifth session in Geneva from May 6 to June 7, and from July 8 to August 9, 2013, under the chairmanship of Bernd H. Niehaus (Costa Rica). The Commission devoted most of the sixty-fifth session to discussing three topics: immunity of state officials from foreign criminal jurisdiction, subsequent agreements and subsequent practice in relation to the interpretation of treaties, and protection of persons in the event of disasters. Notably, the Commission provisionally adopted three draft articles and commentaries identifying three categories of senior governmental officials—heads of state, heads of government, and foreign ministers—as entitled to immunity ratione personae from foreign criminal jurisdiction for their public or private acts, an immunity that ceases once they leave office.