¹ Included among those elected was Sean Murphy, the U.S. nominee. Thus, once again, the Commission will include a U.S. member. The previous U.S. member, Michael Matheson, served from 2003 to 2006.

² Under the Commission’s statute, election of the complete Commission takes place every five years, with each five-year term being referred to as a “quinquennium.” See Statute of the International Law Commission, Art. 10, GA Res. 174(11), UN Doc. A/519 (1947) [hereinafter ILC Statute]. The Commission’s documents cited in this article are generally available on the Commission’s website, http://www.un.org/law/ilc/.

³ See generally International Law Commission, Report on the Work of Its Sixty-third Session, UN GAOR, 66th Sess., Supp. No. 10, UN Doc. A/66/10 (2011) [hereinafter 2011 Report].

⁴ Draft Articles on the Law of Transboundary Aquifers, para. 53, in Report of the International Law Commission on the Work of Its Sixtieth Session, UN GAOR, 63d Sess., Supp. No. 10, UN Doc. A/63/10 (2008).

⁵ Draft Articles on the Responsibility of International Organizations, para. 87, in 2011 Report, supra note 3.

⁶ Draft Articles on the Effects of Armed Conflicts on Treaties, para. 100, in 2011 Report, supra note 3.

⁷ Guide to Practice on Reservations to Treaties, paras. 75-76, in 2011 Report, supra note 3 [hereinafter Guide to Practice].

⁸ During the years that he was a Commission member, Michael Matheson provided a regular account of the Commission’s work in the pages of this Journal. See Matheson, Michael J. & Bidder, Sara, The Fifiy-fifih Session of the International Law Commission, 98 AJIL 317 (2004)CrossRefGoogle Scholar; Matheson, Michael J., The Fifty-sixth Session of the Internationalisait) Commission, 99 AJIL 211 (2005)CrossRefGoogle Scholar; Matheson, Michael J., The Fifty-seventh Session of the International Law Commission, 100 AJIL 416 (2006)CrossRefGoogle Scholar; Matheson, Michael J., The Fifty-eighth Session of theInternational’Law Commission, 101 AJIL 407 (2007)Google Scholar.

⁹ ILC Statute, supra note 2, Art. 17(1).

¹⁰ See Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 UST 1606, 516 UNTS 205; Convention on the High Seas, Apr. 29, 1958, 13 UST 2312, 450 UNTS 11; Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 17 UST 138, 559 UNTS 285; Convention on the Continental Shelf, Apr. 29, 1958, 15 UST 471, 499 UNTS 311.

¹¹ See Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95; Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261.

¹² Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, 8 ILM 679 [hereinafter 1969 Vienna Convention].

¹³ Draft Articles on Responsibility of States for Internationally Wrongful Acts, paras. 30-77, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (2001).

¹⁴ See the Commission’s recommendation to the General Assembly in respect of the Draft Articles on the Responsibility of International Organizations, supra note 5, para. 85.

¹⁵ ILC Statute, supra note 2, Art. 15.

¹⁶ Jennings, R. Y., Recent Developments in the International Law Commission: Its Region to the Sources of International Law, 13 Int’l & Comp. L. Q. 385, 386 (1964)Google Scholar.

¹⁷ Id.; see also McRae, Donald, The International Law Commission: Codification and Progressive Development After Forty Years, 1987 Can. Y. B. Int’l L. 355 Google Scholar.

¹⁸ Draft Articles on the Law of Transboundary Aquifers, supra note 4, Arts. 4-5.

¹⁹ Id., Art. 6.

²⁰ Id., Art. 7.

²¹ Id., Art. 8.

²² Id., Art. 15.

²³ McCaffrey, Stephen C., The International Law Commission Adopts Draft Articles on Transboundary Aquifers, 103 AJIL 272, 283 (2009)CrossRefGoogle Scholar.

²⁴ McCaffrey, Stephen C., The International Law Commission ‘s Flawed Draft Articles on the Law of Transboundary Aquifers: The Way Forward, 36 Water Int’l 566, 570 (2011)Google Scholar.

²⁵ Guarani Aquifer Agreement, Aug. 2, 2010 (concluded in Portuguese and Spanish). An unofficial translation of the text is available at http://www.internationalwaterlaw.org/documents/regionaldocs/Guarani_Aquifer_Agreement-English.pdf.

²⁶ See generally Draft Articles on the Effects of Armed Conflicts on Treaties, supra note 6.

²⁷ See International Law Commission, Report on the Work of Its Fifty-seventh Session, para. 150, UN GAOR, 60th Sess., Supp. No. 10, UN Doc. A/60/10 (2005); see also International Law Commission, Report on the Work of Its Fifty-eighth Session, paras. 181-211, UN GAOR, 61st Sess., Supp. No. 10, UN Doc. A/61/10 (2006); Inter national Law Commission, Report on the Work of Its Fifty-ninth Session, paras. 269 -322, UN GAOR, 62d Sess., Supp. No. 10, UN Doc. A/62/10 (2007).

²⁸ See 2011 Report, supra note 3, paras. 100-01.

²⁴ For the final text of the Commission’s Guide to Practice on Reservations to Treaties, see 2011 Report, supra note 3, para. 75.

³⁰ See 1969 Vienna Convention, supra note 12; Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, Mar. 21, 1986, UN Doc. A/CONF. 129/15 (not yet in force). In the Commission’s work, these conventions are referred to collectively as the “Vienna Con ventions.”

³¹ Since the draft guidelines and commentaries contained in the 2011 Report could not be translated into all of the United Nations’ official languages in time for the Sixth Committee’s session in 2011, they will be considered at the General Assembly’s fall 2012 session.

³² Guide to Practice, supra note 7, Guideline 1.2.

³³ Id., Guideline 1.4.1.

³⁴ See Commentary to Guideline 1.4, para. 11, in International Law Commission, Report on the Work of Its Sixty-third Session, Addendum, UN GAOR, 66th Sess., Supp. No. 10, UN Doc. A/66/10/Add. 1 (2011).

³⁵ Id, paras. 12, 13.

³⁶ Guide to Practice, supra note 7, Guideline 1.4.2.

³⁷ For example, the United Kingdom “did not consider conditional interpretive declarations comparable to reservations.” Sixth Committee, Summary Record of the 17th Meeting, para. 106, UN GAOR, 64th Sess., UN Doc. A/C.6/64/SR. 17 (2010). see also Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly During Its Sixty-third Session, Prepared by the Secretariat, para. 16, UN GAOR, 63d Sess, UN Doc. A/CN.4/606 (2009), where it was noted that “ [d]oubts were expressed [during the discussion held in the Sixth Committee] about the category of conditional interpretative declarations that in fact constituted reservations and as such the reservations regime should apply to them.”

³⁸ For example, the United States expressed doubts about the relevance of the state practice that the Commission relied on concerning the collective acceptance of impermissible or invalid reservations to treaties. See International Law Commission, Reservations to Treaties: Comments and Observations Received from Governments, para. 85, UN Doc. A/CN.4/639 (2011).

³⁹ See Text of the Set of Draft Guidelines Constituting the Guide to Practice on Reservations to Treaties, para. 105, in International Law Commission, Report on the Work of Its Sixty-second Session, UN GAOR, 65th Sess., Supp. No. 10, UN Doc. A/65/10 (2010).

⁴⁰ Id.

⁴¹ For example, the representative for Germany expressed concern regarding the presumption that a reserving state, having made an invalid reservation, would become party to the treaty without the benefit of the reservation, unless it had clearly indicated that it did not wish to be bound in such a way. She noted that such a positive presumption did not appear to exist in case law or state practice and that it could not be accepted as a general rule with respect to all treaties. She also argued that this presumption might make some states reluctant to become parties to treaties. See Sixth Committee, Summary Record of the 19th Meeting, paras. 92-94, UN GAOR, 65th Sess., UN Doc. A/C.6/65/SR.19 (2010). The representative for the United States also opposed the inclusion of Guideline 4.5.2. and emphasized that assigning an obligation expressly not undertaken by a country was inconsistent with the fundamental principle of consent under the law of treaties. Furthermore, agreeing with Germany, the United States stated that the presumption regarding invalid reservations would be difficult to apply in practice and could undermine the stability of states’ obligations under treaties. See id., paras. 59-60.

⁴² Guide to Practice, supra note 7.

⁴³ See Commentary to Guideline 4.2.1, paras. 5, 6, in International Law Commission, Report on the Work of Its Sixty-third Session, Addendum, supra note 34.

⁴⁴ Id., para. 11.

⁴⁵ See, e.g., Alvarez, José E., International Organizations: Then and Now, 100 AJIL 324 (2006)CrossRefGoogle Scholar; see also Alvarez, José E., Governing the World: International Organizations as Lawmakers, 31 Suffolk Transnat’l L. Rev. 591, 612-14 (2007-08)Google Scholar; José E. Alvarez, International Organizations: Accountability or Responsibility?, Address at the Canadian Council of International Law Annual Conference on Responsibility of Individuals, States and Organizations (Oct. 27, 2006), at http://www.asil.org/aboutasil/documents/CCILspeech061102.pdf.

⁴⁶ Recently, in the debates of the United Nations’ Sixth Committee, the representative for the United Kingdom argued that the limited availability of pertinent state practice meant that the draft articles on the responsibility of international organizations should be interpreted as the progressive development, rather than the codification, of customary international law. See Sixth Committee, Summary Record of the 19th Meeting, paras. 9-12, UN GAOR, 66th Sess., UN Doc. A/C.6/66/SR.19 (2011). By contrast, the representative for China argued that adopting draft articles on the responsibility of international organizations would be an important step in the codification and development of international law in this area. See id., para. 17. The representative for the Netherlands emphasized the importance of having rules under which international organizations could be held accountable, and stated that the limited state practice in this area should not deter states from adopting a general set of rules similar to those on state responsibility. See id., paras. 25-27. The representative of Canada noted that it is difficult to specify suitable norms that would apply to all international organizations, especially given the size and nature of various international organizations, and that more consultation is needed with these organizations to improve upon the proposed draft articles. See id., para. 48.

⁴⁷ See generally International Law Commission, Responsibility of International Organizations: Comments and Observations Received from International Organizations, UN Doc. A/CN.4/637 (2011), in which several international organizations argued that the draft articles on the responsibility of international organizations should be understood as an exercise in the progressive development of international law, not its codification. See, e.g., International Law Commission, Responsibility of International Organizations: Comments and Observations Received from International Organizations, Addendum, paras. 1-6, UN Doc. A/CN.4/637/Add. 1 [hereinafter Addendum] (comments received from the United Nations).

⁴⁸ Draft Articles on Responsibility of States for Internationally Wrongful Acts, supra note 13.

⁴⁹ See Addendum, supra note 47, para. 1.

⁵⁰ See José E. Alvarez, Misadventures in Subjecthood, EJIL:TALK! (Sept. 29, 2010), at http://www.ejilt.alk.org/?s=Alvarez (“the ILC’s experts have opted to alter their normal ratio of codification vs. progressive development”).

⁵¹ Draft Articles on the Responsibility of International Organizations, supra note 5.

⁵² Id., para.5.

⁵³ Caron, David D., The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority, 96 AJIL 857, 861 (2002)CrossRefGoogle Scholar.

⁵⁴ See Addendum, supra note 47.

⁵⁵ For a listing of some of these activities, see the heading “Activities” on the Commission’s website (http://www.un.org/law/ilc/).

⁵⁶ See, e.g., Chusei Yamada (Special Rapporteur), Shared Natural Resources: First Report on Outlines, paras. 22-23, UN Doc. A/CN.4/533 (2003).

⁵⁷ Chusei Yamada (Special Rapporteur), Second Report on Shared Natural Resources: Transboundary Ground-waters, para. 1, UN Doc. A/CN.4/539 (2004).

⁵⁸ Chusei Yamada (Special Rapporteur), Third Report on Shared Natural Resources: Transboundary Ground-waters, para. 1, UN Doc. A/CN.4/551 (2005).

⁵⁹ Eduardo Valencia-Ospina (Special Rapporteur), Second Report on the Protection of Persons in the Event of Disasters, para. 12, UN Doc. A/CN.4/615 (2009); see also Eduardo Valencia-Ospina (Special Rapporteur), Preliminary Report on the Protection of Persons in the Event of Disasters, para. 7, UN Doc. A/CN. 4/598 (2008).

⁶⁰ See Third Report on Shared Natural Resources, supra note 58, para. 1.

⁶¹ See International Law Commission, Report on the Work of Its Sixty-first Session, para. 70, UN GAOR, 64th Sess., Supp. No. 10, UN Doc. A/64/10 (2009).

⁶² See id., para. 48, where it is noted that the Commission transmitted the draft articles to states and international organizations for comments and observations. See also id., para. 243, for a note by the Commission about its meeting with the legal advisers to international organizations.

⁶³ See 2011 Report, supra note 3, paras. 418-22.

⁶⁴ From time to time the Asian-African Legal Consultative Organization has communicated to the Commission its comments on topics on the Commission’s agenda.

⁶⁵ See, for example, Report of the International Law Commission on the Work of Its Sixty-first Session, supra note 61, para. 200, where it is noted that Commission members were given copies of a February 2009 report by Amnesty International entitled “International Law Commission: The Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare). “ See also Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation (2001); Amnesty International, Universal Jurisdiction: UN General Assembly Should Support This Essential International Justice Tool (2010). Amnesty International reports are available on its website, http://www.amnesty.org/en/library/.

⁶⁶ Tomuschat, Christian, The International Law Commission: An Outdated Institution?, 2006 Ger. Y. B. Int’l 77, 80Google Scholar.

⁶⁷ Article 16(e) of the ILC Statute, supra note 2, states: “The Secretary-General will provide, when necessary and within the limits of the budget, for the expenses of these consultations of experts[.]” For several years no funds have been made available to support the work of the special rapporteurs or otherwise support research by the Commission.

⁶⁸ The Commission’s work on fragmentation in international law also discloses a higher degree of engagement with outside scholars than is often found in the Commission’s work. See Fragmentation of International Law Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martri Koskenniemi, UN Doc. A/CN.4/L.682 & Corr. 1 (2006).

⁶⁹ For example, in 2008 many Commission members participated in a colloquium, “The Role of the International Law Commission,” organized by the University of Munich and the Humboldt University of Berlin on the occasion of the Commission’s sixtieth anniversary. The proceedings were subsequently published in Peace Through International Law: The Role of the International Law Commission (Georg Nolte ed., 2009). Similarly, several current and former Commission members participated in a conference, “The Relevance of the ILC in the 21st Century—What Should It Be Doing to Make a Contemporary Difference?,” heldon March 29, 2010, at George Washington University Law School. The program for that event, cosponsored by George Washington Law School and the Office of the Legal Adviser of the U.S. Department of State, is available at http://www.law.gwu.edu/Academics/FocusAreas/international/Pages/InternationalLawCommissionEvent.aspx.

⁷⁰ Report of the International Law Commission on the Work of Its Sixty-first Session, supra note 61, para. 243.

⁷¹ See the comments of the UNESCO representative speaking at the Sixth Committee’s twentieth meeting, October 26, 2011, on behalf of itself and fourteen other organizations. Sixth Committee, Summary Record of the 20th Meeting, paras. 92-93, UN GAOR, 66th Sess., UN Doc. A/C.6/66/SR.20 (2011).

⁷² Responsibility of International Organizations, supra note 47; Addendum, supra note 47.

⁷³ 2011 Report, supra note 3, paras. 370-87.

⁷⁴ International Law Commission, Report of the Commission to the General Assembly on the Work of Its Forty-ninth Session, para. 238, in [1997] 2 Y.B. Int’l L. Comm’n, UN Doc. A/52/10.

⁷⁵ Notwithstanding the somewhat elliptical title for this topic, it is primarily about subsequent practice in respect of treaties.

⁷⁶ See Eduardo Valencia-Ospina (Special Rapporteur), Preliminary Report, paras. 217-64, in International Law Commission, Report on the Work of Its Sixtieth Session, UN GAOR, 63d Sess., Supp. No. 10, UN Doc. A/63/10 (2008).

⁷⁷ Neither of the special rapporteuts for these topics is continuing on the Commission.

⁷⁸ In its report on its sixty-third session, the Commission addressed the following question to governments: “What crimes are, or should be, excluded from immunity ratione personae or immunity ratione materiae?” 2011 Report, supra note 3, para. 38.

⁷⁹ Fragmentation of International Law, supra note 68, paras. 233-51.

⁸⁰ 2011 Report, supra note 3, para. 365.

⁸¹ Id., Annex A, para. 4.

⁸² Pellet, Alain, The ILC Adrift’ Some Reflexions from Inside, in Challenges of Contemporary International Law and International Relations: Liber Amoricum in Honour of Ernest PetriČ 299, 309 (Pogančnik, Miha ed., 2011)Google Scholar.

⁸³ See Georg Nolte, “The Relevance of the ILC in the 21st Century—What Should It Be Doing to Make a Con temporary Difference?” (paper presented at the March 2010 conference of the same name held at George Washington University Law School, supra note 69) (on file with author). Nolte refers to this view, although he doubts whether it is so.

⁸⁴ Caron, supra note 53, at 859.

⁸⁵ Tomuschat, supra note 66, at 104-05.

⁸⁶ Nolte, supra note 83.

⁸⁷ Pellet, supra note 82, at 308.

⁸⁸ UN Secretary-General, Survey of International Law in Relation to the Work of Codification of the Inter national Law Commission: Preparatory Work Within the Purview of Article 18, Paragraph 1, of the International Law Commission, UN Doc. A/CN.4/1/Rev.1 (1949).

⁸⁹ For a discussion of the skepticism surrounding the notion of codification, see Caron, supra note 53, at 860-61.

⁹⁰ Pellet, supra note 82, at 301-03.

⁹¹ See 2011 Report, supra note 3, paras. 386-88.

⁹² Each year the Sixth Committee holds what is referred to as the “International Law Week,” when the Committee considers the Commission’s annual report and has an “interactive dialogue” with Commission members. The week also provides a forum for foreign affairs legal advisers.