1 The term ‘multilateral treaty’ is used here to refer to international agreements between states open to global membership. The article does not assess the role played by regional or other forms of sub-global agreements.

2 See UN Treaty Collection, Multilateral Treaties Deposited with the Secretary General (counting only new multilateral treaties and not including amendments, protocols or annexes to existing multilateral agreements). The quantitative slowdown in multilateral law-making since the early 2000s is well documented in J. Pauwelyn, R. A. Wessel and J. Wouters, ‘When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking’, (2014) 25 European Journal of International Law 733, at 733.

3 There is an extensive literature on the decline of the rules-based world order. For a particularly comprehensive analysis see J. P. Trachtman, The Future of International Law. Global Government (2014)

4 G. S. Corn, ‘Regulating Hostilities in Non-International Armed Conflicts: Thoughts on Bridging the Divide between the Tadić Aspiration and Conflict Realities’, (2015) 91 International Law Studies 281, at 321.

5 See, e.g., S. Hobe, ‘The Impact of New Developments on International Space Law (New Actors, Commercialisation, Privatisation, Increase in the Number of “Space-faring Nations”)’, (2010) 15 Uniform Law Review 2010 869, at 874–5.

6 The last treaty concluded by the Sixth Committee was the International Convention for the Suppression of Acts of Nuclear Terrorism (adopted 13 April 2005, entered into force 7 July 2007).

7 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (adopted 3 October 2018, not yet in force); 2012 Cape Town Agreement of 2012 on the Implementation of the Provisions of the 1993 Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977 (adopted 11 October 2012, not yet in force); 2009 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (adopted 22 November 2009, entered into force 5 June 2016).

8 1982 UN Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 3. See International Seabed Authority, ‘Mining Code’, available at www.isa.org.jm/mining-code.

9 See UN BBNJ, ‘Intergovernmental Conference on an international legally binding instrument under the UN Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’, available at www.un.org/bbnj/.

10 See, e.g., steps taken to establish a global, legally binding treaty to combat marine plastic pollution. The effort is described in some detail in WWF Press Release, ‘Momentum building behind global treaty to combat marine plastic pollution’, 23 October 2019, available at wwf.panda.org/wwf_news/press_releases/?354810/Momentum-building-behind-global-treaty-to-combat-marine-plastic-pollution.

11 This is not to say that treaties with a limited membership cannot have real legal significance. Arnold N. Pronto has correctly stated that ‘… the idea that low ratification of a treaty would be detrimental to its legal effect as a matter of general international law misses the point that law-making treaties do not necessarily need universal adherence to be deemed as such’, see A. N. Pronto, ‘Some Thoughts on the Making of International Law’, (2008) 19 EJIL 601, at 611. While this is true, it is submitted here that a treaty with a limited membership, stemming from negotiations boycotted by key or even most states will rarely have much global regulatory value.

12 Pauwelyn, Wessel and Wouters, supra note 2.

13 There is a rich and diverse literature on the definition and scope of soft law, as well as its implications for the development of international law; see, e.g., A. Cassese, International Law (2005), 196.

14 It falls outside the purview of this article to pursue the topic of ‘fragmentation’, a term denoting the material and procedural disunity between various subfields of international law; see, e.g., A. Peters, ‘The refinement of international law: From fragmentation to regime interaction and politicization’, (2017) 15 EJIL 671. That said, there is a clear link between ‘fragmentation’ in the classical sense and the current topic of assessing systemic variations in multilateral law-making between different disciplines of international law.

15 Ibid.

16 Corn, supra note 4. See also R. Kolb, Advanced Introduction to International Humanitarian Law (2014), 32.

17 A. Haque, ‘Whose Armed Conflict? Which Law of Armed Conflict?’, Just Security, 4 October 2016.

18 For analysis see, e.g., L. Hill-Cawthorne, Detention in Non-International Armed Conflict (2014).

19 J. Pejic, ‘Strengthening compliance with IHL: The ICRC-Swiss initiative’, (2016) 98 IRRC 315, at 316–17.

20 ICRC Report, ‘Strengthening legal protection for victims of armed conflicts’, October 2011.

21 Ibid., para. 24.

22 Ibid.

23 The 31st RCNC Conference, ‘Resolution 1–Strengthening legal protection for victims of armed conflicts’, Doc. No: 31IC/15/R1, para. 6.

24 ICRC report, ‘Detention in non-international armed conflict: The ICRC’s work on strengthening legal protection’, 21 April 2014. For a broader analysis see K. Dörmann and T. Rodenhäuser, ‘Contemporary Challenges for International Humanitarian Law’, in J. Crawford et al. (eds.), The International Legal Order: Current Needs and Possible Responses (2017), 677, at 687.

25 The 32nd RCNC Conference, ‘Resolution 1– Strengthening international humanitarian law protecting persons deprived of their liberty Doc. No: 32IC/15/R1, para. 8.

26 ICRC Press release, ‘No agreement by States on mechanism to strengthen compliance with rules of war’ (‘[a]fter four years of extensive consultations, States have been unable to agree on a new mechanism proposed by the ICRC and the government of Switzerland to strengthen compliance with international humanitarian law’), 10 December 2015, available at www.icrc.org/en/document/no-agreement-states-mechanism-strengthen-compliance-rules-war; ICRC Article, ‘Strengthening IHL protecting persons deprived of their liberty in relation to armed conflict (‘[d]espite strong levels of State engagement, it was not possible to find agreement on modalities of work and a provisional work plan … [f]ollowing the Formal Meeting, the ICRC is reflecting on the best way to continue efforts to strengthen the protection of persons deprived of their liberty in relation to armed conflict.’), 1 April 2017, available at www.icrc.org/en/document/detention-non-international-armed-conflict-icrcs-work-strengthening-legal-protection-0#.

27 T. Chengeta, ‘What Level of Human Control Over Autonomous Weapon Systems is Required by International Law?’, EJIL:Talk!, 17 May 2018, available at www.ejiltalk.org/what-level-of-human-control-over-autonomous-weapon-systems-is-required-by-international-law/.

28 The Fifth Review Conference of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW), Decision 1, UN Doc. CCW/CONF.V/10, 16 December 2016.

29 M. Wareham and S. Goose, ‘The Growing International Movement Against Killer Robots’, Human Rights Watch, 5 January 2017, available at www.hrw.org/news/2017/01/05/growing-international-movement-against-killer-robots.

30 See, e.g., Report of the 2017 Group of Governmental Experts on Lethal Autonomous Weapons Systems, (LAWS), UN Doc. CCW/GGE.1/2017/3, 22 December 2017, Annex II, para. 7.

31 See Wareham and Goose, supra note 29 (‘the process is now seen as aiming low and going slow’).

32 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (adopted 10 October 1980, entered into force 2 December 1983), 1342 UNTS 137.

33 See ‘Proposal for a mandate to negotiate a legally-binding instrument that addresses the humanitarian concerns posed by cluster munitions’, UN Doc. CCW/CONF.III/WP.1, 25 October 2006.

34 The Convention on Cluster Munitions (adopted 30 May 2008, entered into force 1 August 2010) 2688 UNTS 39. A draft protocol VI on cluster munitions under the CCW has, at least temporarily, been rejected; see F. Zughni, ‘Cluster Munition Protocol Fails’, Arms Control Association, available at www.armscontrol.org/act/2011-12/cluster-munitions-protocol-fails. The draft protocol has been heavily criticized for establishing a substantially lower standard than the CCM and the likelihood of agreement seems slim, see G. Nystuen, ‘CCW Draft Protocol VI on Cluster Munitions – A Step Backwards’, (2011) 5 FICHL Policy Brief Series.

35 J. Abramson, ‘CCW Considers Limits on Cluster Munitions’, Arms Control Association, available at www.armscontrol.org/act/2008-10/ccw-considers-limits-cluster-munitions.

36 Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017, not yet in force).

37 D. Joyner, ‘The Treaty on the Prohibition of Nuclear Weapons’, EJIL:Talk!, 26 July 2017, available at www.ejiltalk.org/the-treaty-on-the-prohibition-of-nuclear-weapons/.

38 M. Pedrazzi, ‘The Treaty on the Prohibition of Nuclear Weapons: A Promise, a Threat or a Flop?’, (2018) 27 Italian Yearbook of International Law 215, at 216.

39 Joyner, supra note 37.

40 Nuclear Threat Initiative, ‘Treaty on the Prohibition of Nuclear Weapons’, 16 April 2021, available at www.nti.org/learn/treaties-and-regimes/treaty-on-the-prohibition-of-nuclear-weapons/.

41 Pedrazzi, supra note 38 (‘the entry into force of the TPNW, if and whenever it will take place, will not produce any direct consequences for nuclear disarmament, as it is foreseeable that no nuclear-weapon state will accede to the Treaty in the near future’).

42 ICRC Article, ‘Briefing by ICRC President to UN Security Council on “The promotion and strengthening of the rule of law in the maintenance of international peace and security”’, 13 August 2019, available at www.icrc.org/en/document/geneva-conventions-are-all-us.

43 Ibid.

44 Ibid.

45 See, e.g., the 2010 National Security Strategy of the United Kingdom (‘cyber security has been assessed as one of the highest priority national security risks to the UK’) and the 2010 National Security Strategy of the United States (‘[cyber threats] is one of the most serious national security, public safety and economic challenges we face as a nation’).

46 See illustrative speech by Michelle Bachelet, UN High Commissioner for Human Rights, ‘Human rights in the digital age - Can they make a difference?’, OHCHR, 17 October 2019, available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25158&LangID=E.

47 Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, Doc. No: A/68/98 (‘[i]nternational law, and in particular the Charter of the UN, is applicable and is essential to maintaining peace and stability and promoting an open, secure, peaceful and accessible ICT environment’), 24 June 2013.

48 2018 General Assembly Resolution, UN Doc. A/RES/73/27.

49 N. Achten, ‘New U.N. Debate on Cybersecurity in the Context of International Security’, Lawfare, 30 September 2019, available at www.lawfareblog.com/new-un-debate-cybersecurity-context-international-security.

50 Ibid.

51 For analysis see, e.g., K. Mačák, ‘From Cyber Norms to Cyber Rules: Re-engaging States as Law-makers’, (2017) 30 LJIL 877.

52 See, e.g., speech by Joseph Cannataci, Special Rapporteur on the Right to Privacy, 6 May 2018 (‘It is my strong view that an instrument of some form is necessary … The latter solution [an international multilateral treaty] would go some way towards creating a clear and comprehensive legal framework on privacy and surveillance in cyberspace’). Proposals for new binding rules have received little traction amongst states, available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22858&LangID=E; see, e.g., S. Talmon, ‘No need for legal instrument on electronic surveillance and privacy’, GPIL - German Practice in International Law, 5 June 2018, available at gpil.jura.uni-bonn.de/2018/06/no-need-legal-instrument-electronic-surveillance-privacy/.

53 1988 International Telecommunication Regulations (adopted 9 December 1988, entered into force 1 July 1990), Doc. No: WATTC-8. As of 1 January 2020, 190 countries have acceded to the treaty.

54 U. J. Orji, International Telecommunications Law and Policy (2018), 91.

55 For a detailed analysis see ibid., at 95–112. It is worth noting that discussions about reforming the Internet had transpired for many years prior to WCIT-2012. In 2003, China, with the support of many developing countries, proposed to create and International Internet Organization and adopting an ‘internet treaty’, see Fidler, infra note 57.

56 Orji, supra note 54, at 108–12

57 D. P. Fidler, ‘Internet Governance and International Law: The Controversy Concerning Revision of the International Telecommunication Regulations’, ASIL, 7 February 2013, available at www.asil.org/insights/volume/17/issue/6/internet-governance-and-international-law-controversy-concerning-revision.

58 Ibid., at 114.

59 D. P. Fidler, ‘Cyberspace and Human Rights’, in N. Tsagourias and R. Buchan (eds.), Research Handbook on International Law and Cyberspace (2015), 94, at 111.

60 For analysis of the definitional issue as well as an account over various attempts at enacting a multilateral treaty on cybercrime see P. Kastner and F. Mégret, ‘International legal dimensions of cybercrime’, in N. Tsagourias and R. Buchan (eds.), Research Handbook on International Law and Cyberspace (2015), 190.

61 O. Daugherty, ‘UN to form cybercrime committee in move opposed by US, EU’, The Hill, 28 December 2019.

62 2011 Convention on Cybercrime (adopted 23 November 2011, entered into force 1 July 2004), ETS No. 185.

63 For an overview over Non-Members of the Council of Europe who have acceded to the treaty see Council of Europe, ‘Chart of signatures and ratifications of Treaty’, available at www.coe.int/en/web/conventions/full-list/-/conventions/treaty/185/signatures?p_auth=8N4oFqsP.

64 2019 General Assembly Resolution, UN Doc. A/74/247.

65 For details of the vote, see UN General Assembly Press Release, UN Doc. GA/12235. 27 December 2019.

66 Daugherty, supra note 61 (‘The resolution was approved over objections from both the European Union and the United States, citing fears that the language in the resolution will allow for crackdowns on expression’).

67 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force on 10 October 1967), 610 UNTS 205.

68 1967 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (adopted 19 December 1967, entered into force 3 December 1968), 672 UNTS 119; 1971 Convention on International Liability for Damage Caused by Space Objects (adopted 21 November 1971, entered into force 29 March 1972), 961 UNTS 187; 1975 Convention on Registration of Objects Launched into Outer Space (adopted 14 January 1975, entered into force 15 September 1075), 1023 UNTS 15; 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 5 December 1979, entered into force 18 December 1979), 1363 UNTS 3. has never found general acceptance.

69 For a comprehensive analysis see P. J. Blount, ‘Renovating space: The future of international space law’, (2011) 40 Denver Journal of International Law and Policy 515. Several newspaper outlets have also called for filling normative gaps in the modern space law framework; see, e.g., ‘The world should update its laws on outer space’, Financial Times, 27 December 2018.

70 Ibid.

71 For a broader analysis of the deficiencies in the international space law framework see M. Schladebach, ‘Fifty Years of Space Law: Basic Decisions and Future Challenges’, (2018) 41 Hastings International Law Review 245.

72 The Committee was established by UN General Assembly through 1959 Resolution No: 1472 (XIV).

73 S. Swaminathan, ‘The Applicability of Space Law Principles to Basic Space Science: An Update’, (2005) UNPSA 117.

74 Ibid.

75 J. S. Imburgia, ‘Space Debris and Its Threat to National Security: A Proposal for a Binding International Agreement to Clean Up the Junk’, (2011) 44 Vanderbilt Journal of Transnational Law 589, at 620.

76 1993 General Assembly Resolution, UN Doc. A/48/39.

77 Imburgia, supra note 75 (with further references).

78 The Guidelines were endorsed by the General Assembly in 2007 General Assembly Resolution, UN Doc. 62/217.

79 See, e.g., J. M. Beard, ‘Soft Law’s Failure on the Horizon: The International Code of Conduct for Outer Space Activities’, (2017) 38 University of Pennsylvania Journal of International Law 335, at 417.

80 See ‘Letter dated 12 February 2008 from the Permanent Representative of the Russian Federation and China to the Conference of Disarmament addressed to the Secretary General of the Conference transmitting the Russian and Chinese text of the Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT)’, UN Doc. CD/1839, 28 February 2008.

81 M. Bourbonnière and R. J. Lee, ‘Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict’, (2007) 18 EJIL 873, at 888.

82 See Nuclear Threat Initiative, ‘Proposed Prevention of an Arms Race in Space (PAROS) Treaty’, 5 April 2021, available at www.nti.org/learn/treaties-and-regimes/proposed-prevention-arms-race-space-paros-treaty/.

83 Ibid.

84 N. R. F. Al-Rodha, Meta-Geopolitics in Outer Space (2012), 187.

85 EU statement, ‘Prevention of an Arms Race in Outer Space’, delivered at Conference on Disarmament, Geneva, 16 June 2017, available at eeas.europa.eu/headquarters/headquarters-homepage/28329/conference-disarmament-working-group-way-ahead-eu-statement-prevention-arms-race-outer-space_en.

86 B. Baseley-Walker, ‘Analyzing International Reactions to Soft Law Initiatives on Space Security’, in I. Marboe (ed.), Soft Law in Space: The Function of Non-binding Norms in International Space Law (2012).

87 Higgins et al., Openheim’s International Law: United Nations (2017), 946.

88 Ibid.

89 1961 Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964), 500 UNTS 96; 1969 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980), 1155 UNTS 331; 1999 Convention on the Safety of UN and Associated Personnel (adopted 9 December 1994, entered into force 15 January 1999) 2051 UNTS 363; 2002 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3; 2005 International Convention for the Suppression of Acts of Nuclear Terrorism (adopted 13 April 2005, entered into force 7 July 2005) 2445 UNTS 89.

90 See, e.g., S. Barriga and G. Kerschischnig, ‘The UN General Assembly Resolution on the Rule of Law Resolution: Ambition Meets Pragmatism’, (2010) 2 Hague Journal on the Rule of Law 253, at 256.

91 For analysis see, e.g., W. A. Schabas, ‘Prevention of Crimes Against Humanity’, (2018) 16 Journal of International Criminal Justice 705.

92 For a detailed analysis of the role and mandate of the ILC see Higgins et al., supra note 87, at 928.

93 2019 UN ‘Report of the International Law Commission Seventy-first session’, UN Doc. A/74/10, para. 42.

94 See UN Press Release, ‘Sixth Committee Continues International Law Commission Review, Debating Need for Treaty on Crimes against Humanity’, UN Doc. GA/L/3606, 29 October 2019; see also Statement by Marik A. String, Acting Legal Adviser U.S. Department of State, 29 October 2019, available at usun.usmission.gov/sixth-committee-debate-agenda-item-79-report-of-the-international-law-commission-on-the-work-of-its-71st-session/.

95 2019 General Assembly Resolution, UN Doc. A/RES/74/187.

96 2002 General Assembly Resolution, UN Doc. A/RES/56/83.

97 F. Paddeu, ‘To Convene or Not to Convene? The Future Status of the Articles on State Responsibility: Recent Developments’, (2018) 21 Max Planck Yearbook of United Nations Law 83, at 86.

98 Ibid., at 87.

99 2016 General Assembly Resolution, UN Doc. A/RES/71/133.

100 2019 General Assembly Resolution, UN Doc. A/RES/74/180.

101 See ‘Draft comprehensive convention on international terrorism’, Working document submitted by India, UN Doc. A/C. 6/55/1/, 28 August 2000. For an analysis of the sectorial UN counter-terrorism treaties see M. Marcinko, ‘The Evolution of UN Anti-Terrorist Conventions towards the Universal Treaty-Based Model of Combating Terrorism’, (2018) 6 GroJIL 59.

102 The current publicly available text of the draft CCIT can be found in ‘Measures to eliminate international terrorism. Report of the Working Group’, UN Doc. A/C.6/65/L.10, 3 November 2010.

103 J. Pejic, ‘Armed Conflict and Terrorism: There is a (Big) Difference’, in A. M. S. De Frias, K. L. H. Samuel and N. D. White (eds.), Counter Terrorism – International Law and Practice (2012), 190.

104 Ibid.

105 Pejic, supra note 103, at 193.

106 2006 Report of the Group of Legal Experts on ensuring the accountability of UN staff and experts on

mission with respect to criminal acts committed in peacekeeping operations, UN Doc. GA/A60/980, 16 August 2006.

107 For a thorough analysis see E. F. Defeis, ‘U.N. Peacekeepers and Sexual Abuse and Exploitation: An End to

Impunity’, (2008) 7 Washington University Global Studies Law Review 185.

108 Ibid.

109 A few states, including Finland (on behalf of the Nordic states), Switzerland, and the United States have indicated that they remain open to discussing a new convention. See ‘Criminal accountability of UN officials and experts on mission: Report of the Secretary-General’, UN Doc. A/74/145, 15 July 2019. A Working Group, mandated to consider the prospects of a new convention, will be formed at the Committee’s seventy-fifth session. It is, however, highly unlikely that much will be achieved beyond the production of documents. See also USUN Statement, ‘Remarks at a Sixth Committee Meeting on Agenda Item 78: Criminal Accountability of UN Officials and Experts on Mission’, 6 October 2017, available at usun.usmission.gov/remarks-at-a-sixth-committee-meeting-on-agenda-item-78-criminal-accountability-of-united-nations-officials-and-experts-on-mission/.

110 F. Baylis, ‘The International Law Commission’s Soft Law Influence’, (2019) 13 FIU Law Review 1007, at 1008.

111 Ibid.

112 See, e.g., Z. Adangor and O. W. Arugu, ‘An Evaluation of the Rights and Duties of Coastal States Under the UN Convention on the Law of the Sea 1982’, (2018) 8 African Journal of Law & Criminology 65.

113 There is a rich literature on various kinds of shortcomings in UNCLOS; see, e.g., R. Barnes, ‘Fisheries and Biodiversity’, in M. Fitzmaurice, D. Ong and P Merkouris (eds.), Research Handbook on International Environmental Law (2010), 542; H. Harden-Davies, ‘Deep-sea genetic resources: new frontiers for science and stewardship in areas beyond national jurisdiction’, (2017) 137 Deep-Sea Research Part II: Topical Studies in Oceanography 504; S. Bateman, ‘UNCLOS and Its Limitations as the Foundation for a Regional Maritime Security Regime’, (2007) 19 Korean JDA Analysis 27.

114 The list is by no means exhaustive. A number of other binding law of the sea instruments have been concluded within the last two decades, notably within the IMO framework; see, e.g., 2009 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (adopted 15 May 2009, not yet in force); 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (adopted 13 February 2004, entered into force 8 September 2017), UN Reg. No: 55544; 2001 International Convention on the Control of Harmful Anti-fouling Systems on Ships (adopted 5 October 2001, entered into force 17 September 2008), Reg. No: 56215. While important, these instruments are primarily of technical nature and are not further accounted for here.

115 J. M. Kern, ‘Wreck Removal and the Nairobi Convention—a Movement Toward a Unified Framework?’, (2016) 3 Front. Mar. Sci, 25 February 2016, available at www.frontiersin.org/articles/10.3389/fmars.2016.00011/full; C. D. Michel, ‘Introductory Note to the Nairobi International Convention on the Removal of Wrecks’, (2007) 46 ILM 694, at 694.

116 See T. Masson-Zwaan, ‘Space Junk and the Law’, Leiden Law Blog, 28 May 2013, available at www.leidenlawblog.nl/articles/space-junk-and-the-law.

117 2001 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, adopted by the FAO Committee on Fisheries on 2 March 2001.

118 2006 Report of the Review Conference on the Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. A/CONF.210/2006/15, para 43.

119 See 2009 Report of the Technical Consultation to Draft a Legally-Binding Instrument on Port State Measures to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fishing’, FAO Fisheries Report No. 914.

120 See 2006 Review Conference Report, supra note 118, at 24, where existing non-binding standards are referred to as an argument for developing a legally binding instrument.

121 See the 2009 Report of the Technical Consultation, supra note 119. A list of the current parties to the PSMA is available at www.fao.org/port-state-measures/background/parties-psma/en/.

122 FAO Report, ‘Global Review of Safety at Sea in the Fisheries Sector’, Doc. No. FIAO/C1153, 2018 (‘fishing at sea is probably the most dangerous occupation in the world’).

123 1977 Torremolinos International Convention for the Safety of Fishing Vessels (adopted 2 April 1977, not yet in force), superseded by the 1993 Torremolinos Protocol (updated 2 April 1993, not yet in force).

124 The treaty will enter into force 12 months after at least 22 states, with an aggregate 3,600 fishing vessels of 24 metres in length and over operating on the high seas, have expressed their consent to be bound. To date, 14 countries have ratified the Agreement, aggregating 1,433 fishing vessels of 24m in length and over. In 2019 the IMO and Spain held a ministerial conference to promote the ratification of the Cape Town Agreement which resulted in 48 states pledging to join the agreement.

125 Pursuant to CAOFA Art. 10 the parties may invite other states with a ‘real interest’ to accede to the Agreement.

126 The Declaration, adopted 16 July 2015, is available at www.wto.org/english/tratop_e/rulesneg_e/fish_e/2015_oslo_declaration.pdf.

127 V. Schatz, A. Proelss and N. Liu, ‘The 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean: A Primer’, EJIL:Talk!, 26 October 2018, available at www.ejiltalk.org/the-2018-agreement-to-prevent-unregulated-high-seas-fisheries-in-the-central-arctic-ocean-a-primer/.

128 Art. 1(1) UNCLOS.

129 Art. 136 UNCLOS.

130 Arts. 156, 157 UNCLOS.

131 M. Lodge, ‘The Deep Seabed’, in D. Rothwell et al. (eds.), The Unclos Handbook of the Law of the Sea (2015), 226, at 244.

132 Ibid.

133 See ISA Draft regulations on exploitation of mineral resources in the Area, UN Doc. ISBA/25/C/WP.1, 22 March 2019.

134 See M. Lodge, Secretary-General of the Authority, ‘Regulating deep sea mining’, World Ocean Newsletter, 2 April 2019, available at www.isa.org.jm/index.php/opinion-pieces/regulation-key-sustainable-development-deep-seabed-mining-2-april-2019.

135 H. Shen, ‘The Next Step of Devising China’s Legal Regime for Deep Seabed Mining—The Environmental Regulation under China’s Deep Seabed Mining Law’, (2018) 46 Coastal Management, 210, at 211.

136 J. Childs, ‘Extraction in Four Dimensions: Time, Space and the Emerging Geo(-)politics of Deep-Sea Mining’, (2018) 25 Geopolitics 189. At the time of writing, there are 29 active mineral exploration projects in the Area, involving 22 different countries.

137 See Lodge, supra note 134.

138 2004 General Assembly Resolution, UN Doc. A/RES/59/24, para. 73.

139 Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, UN Doc. A/66/119 Annex, Section I “Recommendations”, para. 1b.

140 IDDRI Study, ‘The long and winding road: negotiating a treaty for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction’, Doc. No. 08/2018, 41.

141 Ibid.

142 Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, UN Doc. A/66/119, Annex, para. 1a.

143 IDDRI Study, supra note 140, at 43.

144 Letter dated 13 February 2015 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, UN Doc. A/69/780, Annex, para. 1e.

145 2015 General Assembly Resolution, A/69/292, para. 1; see also Letter dated 13 February 2015 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, Annex, Section I “Recommendations”, UN Doc. A/69/780, para 1(e).

146 2017 General Assembly Resolution, UN Doc. A/72/249, para. 1.

147 2019 Revised draft text of an agreement under the UN Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc. A/CONF.232/2020/3. See also Textual proposals submitted by delegations by 20 February 2020, for consideration at the fourth session of the Intergovernmental conference on an international legally binding instrument under the UN Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (the Conference), in response to the invitation by the President of the Conference in her Note of 18 November 2019 (UN Doc. A/CONF.232/2020/3).

148 Pauwelyn, Wessel and Wouters, supra note 2.

149 Pronto, supra note 11, at 612.

150 N. Yasintuliana, ‘The Law Making Process in the UN’, in N. Yasintuliana (ed.), Space Law (1992), 36.

151 The quote is taken from the 2006 US National Space Policy. While this policy was somewhat adjusted by the Obama administration it is indicative of the US seeking space dominance in the post-Cold War era, see, similarly, S. C. Wang, Transatlantic Space Politics: Competition and Cooperation Above the Clouds (2013), 44.

152 T. Ginsburg, ‘Authoritarian International Law?’, (2020) 114 AJIL 221, at 227.

153 S. Scott, ‘The Decline of International Law as a Normative Ideal’, (2018) 49(4) Victoria University of Wellington Law Review 627, at 640.

154 Ibid.

155 B. M. W. Ratter, Geography of Small Islands: Outposts of Globalization (2018), 111.

156 Arts. 46–54 UNCLOS. See K. Baumert and B. Melchior, ‘The Practice of Archipelagic States: A Study of Studies’, (2015) 46 Ocean Dev. Int. Law 60.

157 Ibid., at 113.

158 The G-77 was established on 15 June 1964 by 77 developing countries. At present, the G-77 comprises 135 member states, including China. As China does not consider itself an official member official statements are issued under the name ‘G-77 and China’. PSIDS includes the 14 Pacific Island countries Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, Niue, Palau, Papua New Guinea, Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu. When discussing the PSIDS in the context of the UN, the Cook Islands and Niue are not included, as they are not UN members.

159 Both the G-77 and PSIDS have provided several statements during the BBNJ negotiations.

160 IHL also provides states with certain important rights, e.g., a right to target lawful military objectives, subject to certain conditions (proportionality and military necessity).

161 Scott, supra note 153, at 642.

162 There is much literature on the law of the sea as a forum for so-called ‘lawfare’, that is using the law to achieve tactical or strategic advantages. Such lawfare has been especially notable in the ongoing dispute regarding the South China Sea, see M. Hermez, ‘Global Commons and the Law of the Sea: China’s Lawfare Strategy in the South China Sea’, (2020) 22 International Community Law Review 559, and, for a particularly extensive discussion, Y. Tanaka, The South China Sea Arbitration: Toward an International Legal Order in the Oceans (2019).

163 O. A. Hathaway and S. J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2018), 362–3.

164 Ibid., at 363.

165 Ibid., at 362.

166 B. Szanto, China and the Senkaku/Diaoyo Islands Dispute (2018), 1. It should be noted, however, that many such island disputes also have a strong historical and cultural resonance which account for the fierceness of conflict over what might otherwise seem irrelevant scraps of land. The territorial dispute between South Korea and Japan over the Liancourt Rocks, a group of small islets in the Sea of Japan, is an obvious example.

167 2008 Ilulissat Declaration, available at web.archive.org/web/20120310172346/http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf.

168 For a deeper perspective on international law developments and the Arctic see R. E. Fife, ‘Dispute Settlement in the Arctic: Continuity and Change’, in H. Ruiz Fabri, E. Franckx and T. Meshel (eds.), A Bridge over Troubled Waters – Dispute Resolution in the Law of International Watercourses and the Law of the Sea (2020), 398.

169 2013 Agreement on Trade Facilitation, Doc. No: WT/L/940 (adopted 6 December 2013, entered into force 22 February 2017), is the only binding agreement WTO members have agreed since the WTO was founded on 1 January 1995.

170 2006 International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010), 2716 UNTS 3; 2006 Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008), 2515 UNTS 3.

171 On 26 June 2014, the Human Rights Council adopted Resolution A/HRC/RES/26/9 by which it decided to establish an open-ended intergovernmental working group (OEIGWG) with a mandate to ‘elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’. The OEIGWG has released a draft legally binding instrument on business activities and human rights, available at www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf. Many states are avoiding the negotiations, including the United States, European Union, Canada, Japan, Singapore, Korea, Australia, and the UK, and the prospect of a binding instrument with global support is virtually non-existent. Conversely, the non-binding UN Guiding Principles on Business and Human Rights, endorsed by consensus by the Human Rights Council in A/HRC/RES/17/4 of 6 July 2011, enjoys wide global support.

172 2015 Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UN Registration number: 54113.

173 Pauwelyn, Wessel and Wouters, supra note 2, at 740.

174 The usefulness of non-binding norms should not be overlooked, see D. Azaria, ‘The International Law Commission’s Return to the Law of Sources of International Law’, (2019) 13 FIU Law Review 989.