The In/Ex-clusiveness of International Law: Some Remarks from the Concluding Panel of the 17th Annual Conference of the European Society of International Law

Abstract

Looking into the history of international law, it can be said that it has moved from exclusiveness to inclusiveness. This is evident from the language of treaties that shifted from ‘We the civilized nations’ to ‘We, the member states’, ‘the States Parties to the present Convention’.1 However, the story of international law has continued to bounce between inclusiveness back to exclusiveness in our modern times. In international organizations’ terms, ‘consensus’ can be said to reflect the most inclusivity in adopting treaties and resolutions. Consensus means all states agree to adopt the instrument, albeit sometimes with a few reservations that differentiate between consensus and unanimity, the latter not allowing any reservation during the adoption of an instrument. Exclusivity can be traced in negotiations when some states negotiate an instrument, adopt it and request others to join it, such as some of the conventions adopted by the Council of Europe (CoE) and opened to ratification by other states. The CoE is an exclusive club of states that implemented the previously mentioned process in opening some of its instruments to ratification by other states that are not members of the CoE club. This can be considered as an attempt to seek inclusivity, yet it puts other states from outside the club at a disadvantage when they are faced with a ‘take it or leave it’ option about a treaty they did not negotiate.