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Treaty Stasis

  • Brian Israel (a1)

Extract

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.

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References

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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).

2 Krasner, Stephen D., Structural Causes and Regime Consequences: Regimes as Intervening Variables, in International Law and International Relations 3, 3 (Simmons, Beth A. & Steinberg, Richard H. eds., 2007).

3 Koh, Harold Hongju, Address: Twenty-First-Century International Lawmaking, 101 GEO L.J. Online 1 (2012).

4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 610 UNTS 206.

5 Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., on its 5th Sess., July 12-Aug. 4, 1966, Sept. 12-16, 1966, UN Doc. A/AC.105/39 (Sept. 16, 1966).

6 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 672 UNTS 119.

7 Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 961 UNTS 187.

8 Convention on Registration of Objects Launched into Outer Space, Jan. 14, 1975, 1023 UNTS 15.

9 Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Status of International Agreements relating to activities in outer space as at 1, Jan. 2014, UN Doc. A/AC.105/C.2/2014/CRP.7 (Mar. 20, 2014).

10 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 1363 UNTS 3.

11 See Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., supra note 9.

12 Principles Relating to Remote Sensing of the Earth from Outer Space, GA Res. 41/65 (Dec. 3, 1986).

13 Principles Relevant to the Use of Nuclear Power Sources in Outer Space, GA Res. 47/68 (Feb. 23, 1993).

14 Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, UN Office for Outer Space Affairs (2010).

15 Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space, GA Res. 68/74 (Dec. 11, 2013).

16 Agreement between the U.S. and Other Governments Concerning Cooperation on the Civil International Space Station, Jan. 29, 1998.

17 Israel, Brian R., Help from Above: The Role of International Law in Facilitating the Use of Outer Space for Disaster Management, in The International Law of Disaster Relief (Caron, David D., Kelly, Michael J., and Telesetky, Anastasia eds., 2014).

18 Id.

19 See Principles Relating to Remote Sensing of the Earth from Outer Space, GA Res. 41/65 (Dec. 3, 1986).

20 See International Charter Space & Major Disasters.

21 Danilenko, Gennady M., Outer Space and the Multilateral Treaty-Making Process, 4 Berkeley Tech. L.J. 217 (1989).

22 Comm. On the Peaceful Uses of Outer Space, Legal Subcomm., Draft Report on its 53rd Session, Mar. 24-Apr. 4, 2014, paras. 23-27, UN Doc. A/AC.105/C.2/L/294 (Mar. 27, 2014).

23 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993 UNTS 243.

24 International Convention for the Prevention of Pollution from Ships (MARPOL), Nov. 2, 1973, 1340 UNTS 184.

25 International Convention for the Safety of Life at Sea (SOLAS), Nov. 1, 1974, 1184 UNTS 3.

26 See Israel, supra note 17.

* The views expressed are personal and do not necessarily represent those of the U.S. Government.

Treaty Stasis

  • Brian Israel (a1)

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