Abstract
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.
Highlights
We shouldn’t necessarily be concerned when international lawmaking is a victim of its own success
It may be a normal symptom of a properly functioning international legal framework—as much a cause for celebration among international lawyers as for concern
The apparent paradox of the successful multilateral treaty: up to a point, the older the treaty—the more that has changed since its negotiation and conclusion—the less likely it is to be updated through international lawmaking on the same level
Summary
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 be a normal symptom of a properly functioning international legal framework—as much a cause for celebration among international lawyers as for concern. The passage of time frequently brings technological advances that enable activities not expressly contemplated by the treaty This in turn prompts questions about how “old” treaties apply to “new” capabilities and activities[1] as well as calls from some corners for international lawmaking to answer these questions. Published online 8 May 2014. 1 Harold Hongju Koh, Legal Advisor for U.S Dep’t of State, International Law in Cyberspace, USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012)
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