In his recent article, Nico Krisch joins an increasing number of scholars who worry about the “turn toward nonconsensual structures” in international lawmaking. Although the article is primarily descriptive and does not set out to offer either a rigorous explanation or a normative assessment of this trend, Krisch does suggest that the trend “reflects the fact that the need for greater cooperation [at the global level] . . . is not always, or not even typically, satisfied by international law.” It also gives voice to the concern that the move to informal institutions “point[s] in the direction of more hierarchical forms of governance” that increasingly cater to a small number of powerful states, rather than to the traditional, broad, consent-based order.

In the mid-nineteenth century, the great anthropologist Henry Sumner Maine observed that legal systems tended to move over time from “status to contract” by which he meant that rights and duties were increasingly determined by consent rather than social or demographic factors. Maine’s thesis might have been applied to international law during the long era of high positivism, in which consent became the dominant principle after the Peace of Westphalia. Formal equality of states meant that formal treaties—”contract”—were the main mode of interaction. Even in the post-World War II era, consent played a major role, in part because the Security Council—the chief vehicle for legal exercise of “status”—was anemic. International organizations served as vehicles for the development of multilateral treaties of increasing scope and depth. Status and power were hidden rather than acknowledged elements of the system.

Sean Murphy’s report on the sixty-fifth session of the International Law Commission (ILC) describes and analyzes the Commission’s activities and decisions from last summer. He focuses his attention, as the Commission did, on the draft articles proposed by the Special Rapporteurs on the topics “immunity of state officials from criminal jurisdiction” and “the protection of persons in the event of disaster,” as well as the Special Rapporteur’s reported draft conclusions on the topic “subsequent agreements and subsequent practice in relation to the interpretation of treaties.” Consideration of these proposals took up a significant amount of the Commission’s time, and they will garner much commentary inside and outside governments, as befits their importance.

For most of its history, the International Law Commission has been in the business of producing draft articles. Yet, Sean Murphy’s coverage of the Commission’s sixty-fifth session reveals that the Commission has decisively turned away from this format. As Jacob Katz Cogan’s earlier post observes, the Commission is demonstrating a new-found preference for outputs that are explicitly non-binding and betray no aspiration to form the basis for multilateral treaties. The Commission’s embrace of alternative formats is a promising response to some of the risks and criticisms associated with producing draft articles. But it is also an incomplete response. To ensure that its work continues to be relevant, ambitious, and influential, the Commission must revise its working methods as well as its outputs. In particular, the Commission should develop procedures for engaging with and soliciting input from the non-state actors who are becoming an increasingly important audience for the Commission’s work.

Since the creation of the United Nations, the need for the Organization to enjoy immunity from the juris-diction of Member States has been widely recognized as necessary to achieve its important and far ranging purposes. However, it has also been understood that this immunity was not intended to shield the Organization from responsibility as a “good citizen” on the world stage to respond to justifiable claims against the Organization by third parties resulting from the activities or operations of the Organization. The United Nations has generally achieved these dual objectives, although two recent situations in the peacekeeping context have raised questions about whether it continues to do so, namely the cases involving the Mothers of Srebrenica and the Haiti Cholera victims.

A lawsuit pending in U.S. courts against the United Nations for its responsibility for Haiti’s cholera out-break is the largest challenge yet to the impunity of the organization, which has thus far refused to comply with its legal obligations to provide a settlement mechanism to the victims. With no such avenue of redress available to them, those affected by the epidemic have been left in the bizarre situation where in order to obtain justice they must file lawsuits against the United Nations, whose mandate is to defend the rule of law and promote human rights. If successful, the suit would improve accountability for the organization and underscore the need for it to comply with international law.

The United Nations’ handling of the allegations that its peacekeepers in Haiti are responsible for the largest number of cholera cases and deaths in the world is a public relations as well as public health disaster. Even those likely to be skeptical of mono-causal accounts of mass torts or who see that case unsympathetically— as an incident where “ungrateful” nationals turn on their humanitarian benefactors—cannot possibly be content with how the United Nations has handled this crisis to date. How does one begin to justify a situation in which it takes the United Nations fifteen months to respond to credible allegations of malfeasance, perhaps even recklessness, with a two-sentence response from its top lawyer that asserts simply, without explanation, that the claims of thousands of victims are just “not receivable” because they implicate “political” or “policy” concerns? How can the United Nations expect anyone to sympathize with its position where, according to the United Nations’ own account of when it is liable for the actions of its peacekeepers, it seems to be saying that the United Nations is responsible only for the small torts of its agents (such as traffic accidents) but not for large ones that cause the deaths of 8,500 and counting?

The traditional treaty, conceived of as a contract between states, is in decline. Recent climate change negotiations have produced nonbinding instruments such as the Copenhagen and Cancun Accords; the financial crisis prompted governments to negotiate Basel III, a nonbinding framework for global banking regulation; the nonbinding Organisation for Economic Cooperation and Development’s Guidelines for Multinational Enterprises are developed countries’ primary rules governing the conduct of transnational businesses. Clouds loom on the horizon even in those areas in which the treaty’s prominence continues, such as investment and trade law. The World Trade Organization (WTO) has not reached a major agreement among its members since its founding twenty years ago, and some states have withdrawn from bilateral investment treaties or the Convention on the Settlement of Investment Disputes Between States and National of Other States (better known as the ICSID Convention).

Legal rules come and go. Methods of producing law may also flow and ebb. The authors of the call for papers in connection with this online Agora suggest that there is possible evidence that treaty as a method of producing international law is ebbing, and may be dying. I see no such evidence at present; rather, I argue here that the dying source of international law is not treaty but custom. In the more distant future, however, treaty, too, may become obsolete or at least less salient.

There are four categories of tools of international social cooperation: (i) international law produced through treaty (referred to herein simply as treaty); (ii) international law produced through custom, known as customary international law (CIL); (iii) international law produced through international organization decision-making (international legislation); and (iv) non-legal cooperative institutions (soft law). One of the signal characteristics of treaty is that no state is bound that has not explicitly and specifically consented. In order to sharpen the difference between treaty and international legislation, let us focus on international legislation produced by majority voting, which today is rare outside the European Union, but which may bind states without their specific consent.

As treaties decline, customary international law can be an important mechanism of international cooperation over the medium term. There are increasingly fewer treaties ratified by the United States, with a record-low number of five in 2009–2012, and fewer multilateral treaties adopted worldwide. Yet, the demand for global rules and standards has not abated. Thus, for many international questions where treaties are not available as a source of new rules, customary international law may serve as an interchangeable instrument of national policy.

When the United States terminated its seven-year occupation of Japan in 1954, it did so having signed a peace treaty. By contrast, the United States tried, unsuccessfully, to persuade Hamid Karzai to sign a Bilateral Security Agreement to accompany the drawdown of U.S. forces in Afghanistan. Even if Karzai had agreed to sign, the draft agreement bears much stronger resemblance to an alliance than to a peace treaty; it does not reference hostilities between the United States and Afghanistan, nor does it include any version of the term “peace treaty.”

The Arctic was one of the main theatres for strategic military confrontation during the Cold War between the blocs led by the United States and the Soviet Union. There was no place for multilateral cooperation, other than for very limited issue areas, such as the 1973 Agreement on Conservation of Polar Bears between the five states with polar bear populations. Yet, the warming of relations by the end of the Cold War changed all this. Inspired by Secretary-General Mikhail Gorbachev’s speech in 1987, in which the Soviet leader pro-posed various possible areas for Arctic cooperation, differing ideas for international cooperation were advanced. Canadians, in particular, were trying to advance international treaty-based general cooperation for the Arctic, but this never came to pass and it was eventually Finland who was able to broker soft-law collaboration between the Cold War rivals.

The title of this Agora and the first question it poses both ask whether treaties are in decline. With respect to multilateral treaties to which the United States is a party, the answer is a clear yes.

According to the U.S. State Department’s Treaties in Force database, the United States became a party to a record number of 105 multilateral treaties between 1990 and 1999. As set forth in Graph A below, during the period 2000–2009, the number of multilateral treaties the United States joined dropped to just 62, the lowest number since the 1960s. The preliminary data from the first part of this decade beginning in 2010 suggests that this downward trend continues, but it is still too early in the decade to draw any definitive conclusions.

We shouldn’t necessarily be concerned when international lawmaking is a victim of its own success. A trend in a given domain of international governance in which multilateral treaty-making gives way to bilateral and non-binding alternatives does not itself signal a decline in the influence or efficacy of international law. It may in fact be a normal symptom of a properly functioning international legal framework—as much a cause for celebration among international lawyers as for concern.

I wish to offer some brief reflections on this Agora theme, The End of Treaties?, from the perspective of a lawyer responsible for engineering international cooperation. I say “engineering” because international lawyers in this role must carefully weigh design tradeoffs in selecting among potential cooperative mechanisms, not unlike an engineer weighing the tradeoffs between materials in designing to a performance and cost specification. Like architects, international lawyers must also be attuned to the social dimensions of the arrangements they craft, but should ultimately privilege function above the aesthetics of legal form. Ugly international cooperative arrangements may nevertheless perform beautifully.

International law is going through a period of change and, potentially, expansion. At a point in history during the past millennium, the main sources of inter-State law were custom and general principles of law recognized by civilized nations. This came to an end with the Westphalian era when an international order slowly began to establish and a treaty system was developed. Thus, such international law sources as custom and general principles of law gave way to an era of treaties: carefully designed instruments at the international level that codified every single aspect of agreements and transactions between nations. This phenomenon was not exclusive to the universal level; it also took place at a regional scale during the twentieth century, which saw the emergence of regional organizations and agreements that would enable the development of a reasonably stable international or regional society.

This piece is adapted from an address delivered to a conference sponsored by the Council of Europe and PluriCourts on The Long-Term Future of the European Court of Human Rights in Oslo, Norway on April 7, 2014.

This post addresses the successes and challenges for the European Court of Human Rights (ECtHR), as seen from the outside. It draws upon my co-authored research on human rights systems outside of Europe to explain how these systems have responded to some of the same challenges now facing the Council of Europe and the ECtHR. My main contention is that international human rights courts, wherever they are located, require sustained political and material support if they are to thrive and grow over time.

In its decision yesterday in Bond v. United States, the Supreme Court carefully avoided addressing either the constitutional scope of the treaty power or the scope of Congress’s constitutional authority to implement treaties under the Necessary and Proper Clause. The decision is nevertheless important in holding that a federalism-based clear statement requirement, which was originally developed in the context of purely domestic legislation, applies even to legislation implementing a treaty. It also signals more generally (as had earlier decisions such as Medellín v. Texas) that the Court will be attentive to federalism values even in cases involving foreign affairs. In this post, I will highlight both a process point in support of the Court’s clear statement approach and a potential drawback of that approach. I conclude with some miscellaneous observations about the decision.

Bond v. United States had long been anticipated as the case in which the Supreme Court would revisit Missouri v. Holland (1920) and limit Congress’s authority to implement treaties. In the event, the Court did nothing of the kind. Only three Justices would have recognized judicially enforceable limits on the Treaty Power (Thomas, joined by Scalia and Alito, concurring in the judgment), and only two would have adopted the crabbed reading of the Necessary and Proper Clause advocated by Professor Nicholas Rosenkranz (Scalia, joined by Thomas, concurring in the judgment).

As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.” This resolution betrays the Court’s ambivalence about the appropriate limits of the treaty power and about the Court’s own capacity to define those limits.

The joint 108th American Society of International Law (ASIL) Annual Meeting and 76th International Law Association (ILA) Biennial Conference was organized under the theme “The Effectiveness of International Law.” In conjunction with this theme, the ASIL Legal Theory Interest Group hosted a panel discussion exploring the theoretical dimensions of the concept of “effectiveness” as understood in international law. Panelists discussed three related questions:

1. (1) Is the effectiveness of international law an empirical question measured through evaluating compliance with international legal norms?

2. (2) What conceptions of effectiveness might exist beyond compliance? Could such conceptions be captured in theoretical or moral terms?

3. (3) Why is international law concerned with effectiveness at all?