On November 17, 2011, the UN General Assembly elected the members of the International Law Commission for the next five years. In the course of the quinquennium that was completed in August 2011 with the end of the sixty-third session, the Commission concluded four major topics on its agenda: the law of transboundary aquifers, the responsibility of international organizations, the effect of armed conflicts on treaties, and reservations to treaties. It was by any standard a substantial output. The beginning of a new quinquennium now provides an opportunity to assess what the Commission has achieved, to consider the way it operates, and to reflect on what lies ahead for it.

International law is no stranger to controversy in the U.S. court system. The Supreme Court’s occasional citations to international law and foreign laws have generated debate in Congress, academia, and civil society, and between the justices themselves. In 2004 and 2005, “Constitution Restoration Act” bills were introduced into both houses of Congress that would have, inter alia, subjected federal judges to impeachment for any citation to international or foreign law (other than the English common law) when interpreting the U.S. Constitution. Neither bill was adopted, but they attracted five senatorial cosponsors and thirty-four in the House of Representatives.

In Al-Skeini v. United Kingdom, decided on July 7, 2011, the Grand Chamber of the European Court of Human Rights in Strasbourg (the Court) found that the human rights obligations of the United Kingdom applied to its actions in Iraq and that the United Kingdom had violated Article 2 (right to life) of the European Convention on the Protection of Human Rights and Fundamental Freedoms (Convention or ECHR) by failing to investigate the circumstances of the deaths of the relatives of five of the six applicants. The case deals with the extraterritorial application in Iraq of the Convention, which is part of UK domestic law by virtue of the Human Rights Act, 1998, and involves the concepts of jurisdiction, effective control, and the scope of the right to life.

The International Court of Justice rendered four judgments in 2011: on April 1, a ruling on the respondent’s preliminary objections in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), upholding one objection and finding that the Court had no jurisdiction to entertain the application; on May 4, two rulings on Costa Rica’s and Honduras’s applications for permission to intervene in Territorial and Maritime Dispute (Nicaragua v. Colombia), rejecting both; and on December 5, a final decision on jurisdiction, admissibility, and the merits in Application of the Interim Accord of 13 September 1995 (Former Yugoslav Republic of Macedonia v. Greece), finding for the applicant. The Court also issued three orders in incidental proceedings: on March 8, one on Costa Rica’s request for the indication of provisional measures in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); on July 4, one on Greece’s application for permission to intervene as a nonparty in Jurisdictional Immunities of the State (Germany v. Italy); and on July 18, one on Cambodia’s request for the indication of provisional measures in Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand). The Court indicated provisional measures in response to both requests, and granted Greece permission to intervene.