by Evelyn Ma
I’ve just returned from the annual ASIL meeting in Washington D.C., which coincided with the Jessup International Moot Court Competition. The Hyatt Regency Hotel where both conferences were held was bustling with international lawyers, jurists, students and scholars, many of whom juggled their schedules to take in programs at both venues.
The first full day of programs on Thursday, April 9th provided one of the more memorable events entitled “The Stagnation of International Law”. The panel discussion was moderated by Kal Raustiala from UCLA with panelists Ayelet Berman from the Graduate Institute of International and Development Studies of Geneva, Dinah Shelton and Edward Swaine from George Washington University, and Ingo Venzke from the University of Amsterdam.
The moderator began the session by noting that the number of multilateral treaties has declined since 2000. He asked if this phenomenon signifies stagnation of international law. Professor Shelton noted that stagnation only applies to multilateral treaty making. Other panelists noted that bilateral treaties, informal law and normative documents signed by parties with no formal treaty-making powers were on the rise. The decrease in the number of multilateral treaties concluded, however, as noted by the panelists, does not take into consideration the number of provisions concluded in individual treaties, their relative importance, as well as the number of parties entering into each treaty. A discussion followed as to whether the rise of soft law would replace multilateral treaty law-making.
Causes proposed by the panelists to account for the decline of multilateral treaty-making include both internal and external factors. Domestic pressure, more players in the international law system, and few remaining unincorporated customs were issues discussed by the panelists. Professor Shelton noted that in the international environmental law regime, the change of environmental standards has accelerated dramatically and some issues are not mature yet (while some, too mature) for judicial adjudication and is thus best decided on a case by case basis. Professor Venzke noted that another cause for the decline in multilateral treaties was a decline in hegemony, of the United States in particular, as in the field of international economic law. Professor Shelton also talked about the cost and effort in the process of concluding a multilateral treaty. There will still be a need for more global standards in economic and technological areas, but non-binding agreements will come to be preferred. The need for flexibility and the uncertainty of obtaining domestic approval will continue to disfavor multilateral treaty-making.