1. Introduction
Reticence to adopt multilateral treaties to address common challenges is the new normal. Since the turn of the millennium, the rate at which new multilateral treaties have been created has decreased conspicuously.Footnote 1 Since the year 2000, the average annual number of multilateral treaties deposited with the UN Secretary General has been below two, while it was never below 34 in any year in the preceding five decades.Footnote 2 This development has been seen as part of a larger trend of decline of multilateral institutions and the rules-based international order.Footnote 3 Even if different branches of international law have varied in their adaptation to contemporary challenges, the general trend has been that of diminished multilateral law-making:
Most of today’s armed conflicts are non-international in nature while international law is primarily directed at inter-state conflict.Footnote 4 New forms of weapons technology are constantly being developed while largely avoiding new global regulation. The cyber domain poses a unique set of challenges but has been devoid of new international rules. Outer space is subject to unprecedented levels of commercialization and international activity; yet binding rules have not been developed since the early 1970s.Footnote 5 International terrorism is still undefined under international law, despite the UN General Assembly being seized of the matter for more than two decades. The Sixth Committee, the UN General Assembly’s primary forum for the consideration of legal questions, has all but stopped producing new binding instruments.Footnote 6
In contrast, the international law of the sea is experiencing a different and much more encouraging trend. Recent years have seen the development of several valuable multilaterally negotiated treaties. The Nairobi International Convention on the Removal of Wrecks (2007), the Agreement on Port State Measures (2009), the Agreement on safety of fishing vessels (2012) and the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (2018) are all prominent examples.Footnote 7 Other binding instruments are under negotiation and close to being adopted. State parties to the UN Convention on the Law of the Sea (UNCLOS) will soon be completing the Mining Code for exploitation of mineral resources in the Area.Footnote 8 An internationally legally binding instrument under UNCLOS regarding marine biodiversity in areas beyond national jurisdiction (BBNJ), probably the most ambitious law of the sea treaty in decades, is in its final stages and likely to be concluded soon.Footnote 9 Additional law of the sea treaty initiatives are under preparation.Footnote 10
As will be shown, the general absence of new multilateral treaties is not due to a lack of attempts. But even modestly ambitious initiatives have by and large died a quiet death. In our time, when binding instruments are agreed, it is usually without the involvement of key states, making it difficult for such instruments to provide any real global regulation.Footnote 11 With the exemption of the law of the sea, contemporary multilateral discussions on expanding international law largely gravitate around various forms of non-binding instruments (‘soft law’).Footnote 12 And while such non-binding norms can have important legal implications their normative value do not come close to that of binding obligations.Footnote 13
The question then becomes, why have recent years seen so many failed attempts at multilateral law-making? And, furthermore, why has the law of the sea largely transcended the trend of stagnation so characteristic of other branches of international law?Footnote 14 The article responds to these questions by performing a comparative analysis of a representative set of international law disciplines with particular attention afforded to the international law of sea. The focus will be on those branches of international law where new developments have rendered the current legal framework inadequate or even outdated. The article will look at recent efforts at developing multilateral treaties pertaining to armed conflict (Section 2), cyber space (Section 3), and outer space (Section 4) as these are all important subfields of international law where lacunas in the legal framework are both clearly recognizable and have been attempted remedied by multilateral treaties. Other legal areas such as trade law, environmental law, and human rights law are also briefly examined. Given its historical prominence in multilateral treaty-making, the article also assesses the recent treaty efforts by the Sixth Committee of the UN (Section 5). The article then explores recent and ongoing endeavours at creating new binding instruments under the law of the sea (Section 6). Against the background set out, the next section distils reasons for the general stagnation in multilateral treaty-making and why the law of the sea framework has continued to progress in ways untenable in other subfields of international law (Section 7). Finally, a conclusion is offered and some lessons learned provided (Section 8).
Some recent scholarship has examined the current stagnation in multilateral law-making. The article advances the current literature in at least two ways. First, by qualitatively examining attempts at multilateral treaties within a representative and diverse set of legal regimes, both in terms of subject matter and stakeholder engagement, the article seeks to contribute to a more nuanced discourse around stagnation in multilateral law-making. All legal regimes and institutions have their own idiosyncrasies with distinct power structures and political dynamics. Understanding how the various factors that cause diminished multilateral law-making interact with specific legal areas help provide for a more refined analysis compared to what aggregated approach is able to offer. Second, the article showcases how and why the law of the sea has largely avoided the trend of stagnation in global law-making. This in turn offers lessons learned useful for reviving multilateral treaty-making in other legal areas.
2. Updating the laws of armed conflict for modern warfare
The Geneva Conventions and their Additional Protocols form the core of international humanitarian law (IHL), while treaties that prohibit or restrict the use of certain weapons are typically considered part of the IHL corpus.Footnote 15 International humanitarian law has had difficulties adapting to new circumstances and challenges. Two issues have been particularly demanding. First, non-international armed conflicts (NIAC) have largely superseded interstate conflict (IAC) while ‘IHL in NIACs is replete with gaps in the written law’.Footnote 16 Part of this void is filled by customary international law, but significant gaps remain, many of which cause real practical challenges for states operating in NIACs.Footnote 17 One such issue is the rules applicable to detention.Footnote 18 Secondly, the compliance mechanisms under IHL are inadequate and have fallen behind those of comparable legal regimes.Footnote 19
Between 2008 and 2010 the ICRC conducted an internal study on the need to strengthen legal protection for victims of armed conflict.Footnote 20 ICRC consulted governments and other stakeholders on the best way to remedy deficiencies in the IHL framework.Footnote 21 Most states agreed that the legal framework contained significant gaps but opinions diverged on whether binding approaches were the appropriate remedy.Footnote 22
At the thirty-first Red Cross and Red Crescent Conference in 2011, states decided to focus on legal deficiencies related to deprivation of liberty in NIACs and compliance mechanisms. ICRC was mandated to identify and propose solutions.Footnote 23 Between 2012 and 2015, the Swiss government and ICRC solicited states’ views on how to proceed. At the end of the consultations it was clear that states were unable to agree on negotiating new treaty rules.Footnote 24 Although many states were open to discussing binding rules, other states were adamantly opposed to new binding law, notably Russia, Iran, Israel, the United States, India, and Pakistan. At the thirty-second Conference, states recommended further in-depth work ‘with the goal of producing one or more concrete and implementable outcomes’, with the important caveat that they be ‘of a non-legally binding nature’.Footnote 25 The effort was eventually disbanded at the thirty-third Red Cross and Red Crescent Conference, in December 2018, when states could not agree on a way forward.Footnote 26 What had started out as a quest for new rules, potentially of a binding nature, thus officially tapered off to nothing.
Modern weaponry has also largely escaped new multilateral regulation. Lethal autonomous weapon systems (LAWs) can be defined as weapons that, once activated, can select and engage targets without further intervention by human operators.Footnote 27 Discussions on subjecting LAWs to international legal regulation have been ongoing for years. In 2016, the Fifth Review Conference of the High Contracting Parties to the Convention on Certain Conventional Weapons (CCW) established an open-ended Group of Governmental Experts (GGE) on emerging technologies in the area of lethal autonomous weapons systems (LAWS).Footnote 28 Many countries, including Argentina, Austria, Brazil, Chile, Egypt, Pakistan, and Mexico, have devoted considerable resources to having such weaponry banned or at least subjected to a legally binding moratorium.Footnote 29 A small group of countries, including the United States, Russia, South Korea, and Israel have rejected a legal prohibition and a political declaration, saying more research and discussion is necessary.Footnote 30 As a result, discussions in the UN are now primarily gravitating around non-binding means to constrain the use of LAWS.Footnote 31
The situation is not all bleak. New binding agreements have been concluded with respect to prohibiting the use of cluster munitions and nuclear weapons but, as will be shown, these instruments were negotiated and adopted without the involvement of key states, diminishing their global regulatory value.
Regulating the use of cluster munitions was initially discussed under the framework of the Convention on Certain Conventional Weapons (CCW).Footnote 32 During the Third Review Conference of the CCW, held from 7–17 November 2006, states were unable to agree on a mandate to negotiate a legally binding instrument on cluster munitions.Footnote 33 A group of states then launched a separate process outside of the CCW in order to negotiate a legally binding instrument to ban cluster munitions. Notably, all the major producers and users of cluster munitions, including China, India, Israel, Pakistan, Russia, and the United States, were absent from the negotiations. The process culminated in 2008 with the adoption of the Convention on Cluster Munitions (CCM) banning the use, production, stockpiling, and transfer of cluster munitions.Footnote 34
The CCM will no doubt have a real stigmatizing effect on the use of cluster munitions. However, as most of the world’s major cluster munitions users and producers, representing around 90 per cent of the global cluster munitions stockpile, did not participate in the negotiations and are unlikely to join the CCM anytime soon, its actual global regulatory effect will remain limited.Footnote 35
The other recently adopted binding agreement is the Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted on 7 July 2017.Footnote 36 The treaty prohibits states parties from engaging in a nuclear weapon related activities, including efforts to develop, test, produce, manufacture, acquire, possess or stockpile nuclear weapons or other nuclear explosive devices, as well as the use or threat of use of these weapons.Footnote 37 Although as many as 122 states were part of the negotiations that produced the TPNW, all the nuclear armed states, most NATO countries as well as Japan, Australia, and South Korea avoided the negotiations.Footnote 38
The salience of the TPNW is contested. Some have argued that it represents a ‘generational event of significance’.Footnote 39 Others have maintained that it is a product of political grandstanding which could undermine the NPT.Footnote 40 However one sees it, it remains a treaty which has been boycotted by every single nuclear state, most NATO countries, and many military allies of nuclear weapons states; a state of affairs which is likely to continue for a long time to come. This means that the TPNW’s overall objective, to further the goal of achieving nuclear disarmament, was essentially unachievable from the beginning.Footnote 41
What is the current state of play regarding multilateral efforts to expand IHL? As demonstrated above, enacting new binding rules has proven difficult. The CCM and TPNW represent important exceptions but their limited and skewed participation precludes them from becoming effective global regulatory frameworks, at least for many years to come. And the prospects for new treaties are dim. Even the most daring and resourceful protagonists for new multilateral treaties seem to have conceded to this reality. When ICRC President Peter Maurer, on 13 August 2019, gave a briefing to the Security Council on ‘The promotion and strengthening of the rule of law in the maintenance of international peace and security’ there was not a single call for the adoption of new binding norms.Footnote 42 Instead, the world was told that continued transgressions in war ‘does not mean the law is inadequate, but rather that efforts to ensure respect are inadequate’.Footnote 43 Maurer did point to new challenges stemming from ‘autonomous weapon systems and remote technologies’ but did not recommend measures beyond ‘consistently reflect[ing] on the meaning and development of IHL to meet the challenges of warfare today and in the future’.Footnote 44 These are hardly the words of someone confident about the ability of IHL to conform to contemporary and future challenges through new multilaterally agreed binding rules.
3. International law in cyberspace: Old rules for new problems
With states’ increased digitization comes increased vulnerability to cyber-attacks. Many states now consider the use of force in cyberspace and cybercrime as critical threats to national security.Footnote 45 The digitization of society has also raised profound questions on how to apply traditional human rights norms to the internet, notably with respect to freedom of speech and the right to privacy.Footnote 46 More fundamental has been the issue of Internet governance, which thus far has been subjected to lax international regulation, to the dismay of many states.
In terms of multilateral law-making, states have approached these new cyber challenges in different ways. States now seem to generally agree that international law, including the UN Charter, applies to cyberspace.Footnote 47 Beyond that little is agreed. In 2018, the UN General Assembly established an open-ended working group (OEWG) to study the applicability of international law in the cyber domain.Footnote 48 During the OEWG’s first meeting, held in 2019, some states, including China and Egypt, raised doubts about whether international humanitarian law applied in cyberspace.Footnote 49 Russia, supported by Iran and Syria, called for a new international cyber convention, but received strong pushback from Western countries who instead argued in favour of focusing on better understanding of agreed-upon legal rules and norms.Footnote 50
That there is no international agreement about elaborating new binding rules pertaining to the international use of force in cyberspace, should surprise no one. Given the tensions hovering over key stakeholders, notably the United States, China, and Russia, the likelihood of a legal breakthrough in this area seems slim. For the foreseeable future at least, key states seem determined to extend the generic rules governing the international use of force to cyberspace by way of interpretation and analogy.Footnote 51 Similarly, there have been no meaningful initiatives to develop binding rules regarding the application of human rights to the internet, despite pleas from various UN mandate holders and other stakeholders.Footnote 52
Other areas of the cyber domain, however, have seen real endeavours at enacting new binding regulations. Internet governance is one such area. The 1988 International Telecommunication Regulations (ITR) is an International Telecommunication Union (ITU) treaty from 1988 concerned with the general interconnection and interoperability of information and communication technology.Footnote 53 The ITR is the official governing document of the internet. Its abstract and generic principles, adopted years before the internet took hold, have allowed for a ‘multi-stakeholder approach’ to internet governance with few opportunities for state control.Footnote 54
The debate about how to appropriately regulate the internet came to a head during the 2012 World Conference on International Telecommunications (WCIT-12) when several states, with Russia, Iran, and China at the helm, sought to amend the ITR.Footnote 55 Another block of states, led by the United States, Canada, and several European states, opposed the amendments, predicting dire consequences for the mostly open and censorship free internet of today.Footnote 56 In the end, no consensus was reached as only 89 out of the 190 member states signed the revised ITR.Footnote 57 The revised ITR entered into force on 1 July 2015, having the ‘effect of fragmenting international law on international telecommunications’ with two sets of ITRs (the 1988 ITR and 2012 ITR).Footnote 58 WCIT-12 has been appropriately summarized as having ‘produced stalemate rather than victory for either position’.Footnote 59 Thus far, the 2012 ITR has had limited effect as the states parties to this ITR account for a relatively small proportion of global Internet traffic. It is nonetheless noteworthy that such a broad coalition of mostly developing countries attempted to change the structure of internet governance by way of revising the applicable international legal framework through multilateral negotiations.
Cyber-crime, which can be described as crimes committed via the internet and other computer networks, is another area where there have been longstanding international discussions about developing a comprehensive multilateral instrument under the auspices of the UN.Footnote 60 Akin to the debate around internet governance, most Western states and other liberal democracies have been opposed to a new multilateral instrument on cybercrime, anticipating that new norms would undercut current standards and pave the way for repressive state behaviour.Footnote 61 These states have instead advocated for universalizing the Convention on Cybercrime (‘the Budapest Convention’) of 23 November 2011, a treaty under the European Council, open to accession also by non-members of the Council.Footnote 62 The Convention, however, has never achieved universality as most non-members of the Council of Europe have refused to accede to it.Footnote 63
Somewhat of a multilateral breakthrough occurred in 2019 when the General Assembly voted to establish an open-ended ad hoc intergovernmental committee of experts to elaborate a comprehensive international convention on cybercrime.Footnote 64 The decision should not, however, be seen as reflective of a new consensus. The Russian initiated resolution, which mandated the treaty process, was approved by a slim majority, (79–60 in favour, with 33 abstentions).Footnote 65 Many states and civil society organizations expressed strong concerns.Footnote 66 Although it is premature to accord any definitive conclusions about its viability, the strong reservations expressed by key states indicate that it is highly unlikely that the process will attract much participation beyond the group of states that voted to commence with the negotiations.
The overall outlook for new multilateral treaties in the cyber domain is poor. Discussions in the OEWG are tilted toward soft law standards, with new treaty initiatives receiving hardly any traction. Recent years have seen a concerted effort to subject internet governance to stricter international regulation and a similar treaty initiative has been launched with regards to cybercrime. However, both of these initiatives are opposed by the United States and other liberal democracies who seem to have concluded that time is not ripe for new multilateral cyber treaties, as this would entail tighter state control and more censorship. New binding norms in the cyber domain, in the unlikely event they are adopted, would thus, in any event, provide limited global regulation.
4. Outer space law: Only a legal vestige of the cold war or a still valid legal framework in need of modernization?
The Outer Space Treaty (OST) from 1967 is the foundational legal document for international law in outer space.Footnote 67 Also part of the corpus of outer space law are the Rescue Agreement (1968), the Liability Convention (1972), and the Registration Convention (1975).Footnote 68 While recognizing the remarkable advances made by the early negotiation of these key legal instruments, which inhibited a rush to appropriate celestial bodies or establish sovereignty claims, the dearth of agreement on new rules has spurred debate about the suitability of the current legal framework.Footnote 69
The existing law is to a large extent predicated on outer space being an exclusively inter-state domain. This no longer reflects reality as outer space has become increasingly commercialized and privatized.Footnote 70 Also, many states are now engaged in different forms of space exploration, a marked difference from a few decades ago. Critical topics were also not resolved during the negotiations of the space treaties or have emerged after their adoption. These include the delimitation of outer space, the utilization of the geostationary orbit and prevention of pollution of outer space.Footnote 71
Some of these issues are on the agenda of the UN Committee on the Peaceful Uses of Outer Space (COPUOS), a subsidiary committee established in 1959, shortly after the launch of Sputnik, by the UN General Assembly. It was mandated with governing the exploration and use of space.Footnote 72 The Committee, which was instrumental in the creation of the five treaties referenced above, has, similar to other subsidiary organs of the General Assembly, worked on the basis of consensus, providing states disinclined towards binding regulations with the ability to block new initiatives.Footnote 73 The Committee has been unable to produce a single binding instrument since the Moon Treaty.Footnote 74
The Committee’s engagement in the ‘modern international space debris discussion’ is illustrative of its apparent inability to produce binding law, even when there is a clear gap in the legal framework.Footnote 75 In 1993, the General Assembly noted that ‘space debris’ was ‘an issue of concern to all nations’ and called upon COPUOS to consider the issue ‘on a priority basis’.Footnote 76 Widespread appeals have been made for the adoption of binding rules to address the issue of space debris.Footnote 77 Despite this clear call, the Committee’s work culminated in a set of non-binding rules when the Committee adopted the 2007 Space Debris Mitigation Guidelines.Footnote 78 Mainly due to their non-binding nature, the Guidelines are widely perceived as an insufficient means to achieve their objective.Footnote 79
The only significant space treaty initiative from this millennium is the 2008 Russian-Chinese draft 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).Footnote 80 The treaty would ban the placement of all kinds of weapons in space, not just weapons of mass destruction which are prohibited by existing space law.Footnote 81 The PPWT has been supported by many states. Pakistan, Belarus, Iran, Australia, and Kazakhstan have all welcomed the draft treaty.Footnote 82 Bangladesh, Ireland, Libya, the Republic of Korea, Romania, and Switzerland have also referred to the treaty in positive terms.Footnote 83 The United States, however, has continued to view the treaty as antithetical to its interests, describing it as ‘a diplomatic ploy by the two nations [Russia and China] to gain a military advantage’.Footnote 84 The European Union, having initially been supportive, is now more doubtful, stating in 2017 that it had:
reservations regarding the updated draft on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT) and [we] reiterate our view that a new legally binding instrument would need to be comprehensive, precise and verifiable.Footnote 85
Twelve years after it was presented, it is still an open question whether PPWT will ever be adopted. The strong and protracted opposition by the United States, coupled with the unlikelihood that Russia and China would ever subject themselves to legal restrictions that exclude the United States, suggest that the issue will remain open for the foreseeable future.
As the international community has been unable to conclude a single multilateral treaty in the space field since 1979, commentators have argued that soft law is ‘the best hope for pragmatic progress in a highly politically charged environment’.Footnote 86 With no multilateral treaties on the horizon, this is a fair description, at least with respect to the generation of new rules outside the realm of customary international law.
5. The Sixth Committee of the UN General Assembly: From treaty maker to soft law producer
The General Assembly’s Sixth Committee is the primary forum for the consideration of international law and other legal matters concerning the UN.Footnote 87 Many notable treaties have been negotiated, in whole or in part, under the auspices of the Sixth Committee.Footnote 88 Some of the most prominent examples include the 1961 Vienna Convention on Diplomatic Relations, the 1969 Vienna Convention on the Law of Treaties, the 1995 Convention on the Safety of UN and Associated Personnel, the 1998 Rome Statute of the International Criminal Court, and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism (Nuclear Terrorism Convention).Footnote 89 The Committee has traditionally based its decision-making on a fairly strict consensus principle.Footnote 90
The last few years have seen several efforts at concluding new treaties within the Committee, which only common denominator is that they have all been unsuccessful. The latest in a string of failed attempts is the initiative to enact a Convention on Prevention and Punishment of Crimes Against Humanity.Footnote 91 On 5 August 2019, the International Law Commission (ILC), whose mandate under Article 13(1)(a) of the UN Charter is to ‘initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification’, submitted a set of draft articles on prevention and punishment of crimes against humanity to the General Assembly.Footnote 92 The ILC recommended ‘the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles’.Footnote 93 The Committee has considered the issue in both 2019 and 2020. Although many countries have supported moving towards a convention, some states, including Israel, the United States, Russia, and China, have expressed concerns, pointing to a controversial definition of crimes against humanity and that the ‘draft articles lack clarity with respect to a number of key issues’.Footnote 94 In both 2019 and 2020 the Committee decided to defer the item to next year’s session.Footnote 95 A deferral does not prevent consensus from arising in a future session. It seems unlikely, however, given the opposition from key states coupled with the strict consensus principle under which the Committee makes its decisions.
Another recent treaty attempt is the Committee’s work on the topic of Responsibility of States for International Wrongful Acts. In 2002, the Committee had taken note of a set of draft articles by the ILC on the Responsibility of States for international wrongful acts, leaving open the possibility of transferring the draft articles into a legally binding instrument at a later stage.Footnote 96 In 2016, during the General Assembly’s seventy-first session, the issue of converting the draft articles into a convention was taken up. Many, notably the Latin-American and Caribbean states, favoured a diplomatic conference to negotiate a convention, arguing that this would lead to increased legal certainty and crystallization of the norms on state responsibility, while providing an opportunity to address remaining outstanding issues.Footnote 97 Several other states, including the United States, United Kingdom, Israel, Canada, Australia, New Zealand, and the Nordic countries, expressed concerns that negotiating a convention could upset the careful balance struck within the draft articles and lead to a poorly ratified treaty.Footnote 98 After lengthy discussions it was clear that consensus was unattainable and the item was referred to the seventy-fourth session.Footnote 99
In 2019, at the seventy-fourth session, when the item came up again, most states maintained their positions, resulting in the item once more being referred, this time to the Committee’s seventy-seventh session in 2022.Footnote 100 After two referrals and with several states still adamantly opposed to treaty negotiations, there is no indication that this impasse will break anytime soon.
Few issues have been at the forefront of the international community’s agenda as that of international terrorism. Since 2000 the Sixth Committee has been attempting to conclude a Comprehensive Convention on International Terrorism (CCIT) to complement the existing so-called sectorial counter-terrorism instruments.Footnote 101 The draft CCIT would oblige states to prosecute or extradite perpetrators of crimes under the convention’s ambit.Footnote 102 The main outstanding obstacle to concluding the CCIT is determining the scope of the Convention. States have not yet been able to agree on the interplay between the CCIT and international humanitarian law and, more specifically, whether acts committed by non-state armed groups during armed conflict, where international humanitarian law applies, should be exempted from the CCIT’s ambit.Footnote 103 Many states, including member states of the Organization of Islamic Cooperation (OIC), have argued that non-state actors should be exempted from the CCIT unless they are operating in violation of IHL, in order not to disincentivize such actors from complying with IHL.Footnote 104 Other states, including the United States and the European Union, have been reluctant to enter into a legal state in which armed groups such as ISIL and other UN-designated terrorist groups could be partly excluded from the only universal definition of terrorism.Footnote 105 The two camps have been at a standoff for several years, and it is highly unlikely that a new consensus will emerge any time soon.
Another treaty initiative buried in the Sixth Committee is the Draft convention on the criminal accountability of UN officials and experts on mission. The draft treaty was initially proposed by a Group of Legal Experts during the Committee’s sixty-first session, in 2006, as part of an effort by the UN to ensure accountability for UN officials and experts on mission for serious crimes, especially sexual exploitation and abuse.Footnote 106 The Convention would oblige states to establish its jurisdiction over certain serious crimes perpetrated on its territory or by its nationals, and ensure that alleged offenders within its jurisdiction are prosecuted or extradited.Footnote 107 Whether to proceed towards adopting a new convention has been extensively debated in the Committee. Some states have supported a convention, or expressed a willingness to consider such a legal framework, while most other delegations have maintained that developing legally binding norms in this field is either premature or unwarranted.Footnote 108 In later sessions, during the Committee’s consideration of the annual item ‘Criminal accountability of UN officials and experts on mission’, the notion of a new convention has hardly been discussed at all.Footnote 109
At the moment, there are no credible prospects for legally binding instruments enacted by the Sixth Committee. Instead, its deliberations will for the foreseeable future continue to gravitate around soft-law instruments. This inability to adopt binding outcomes is particularly noticeable when it comes to topics such as those referred above, all re-occurring items on the Committee’s agenda, where legal uncertainty abounds and new binding instruments could easily be contemplated. The ILC seems to have conformed to this new reality by increasingly recommending that its products be converted to soft law instruments, a trend that can be traced all the way back to the early 2000s.Footnote 110 The scholarly consensus is that this is the best way to maintain the ILC’s relevance ‘in the face of declining state interest in developing multilateral treaties as a mode of global law-making’.Footnote 111 This is a reasonable conclusion based on the current state of affairs in the Sixth Committee.
6. The law of the sea: Still addressing common challenges through multilateral treaties
UNCLOS is often celebrated as one of the most significant and visionary multilateral instruments of the twentieth century. Its near global adherence (168 parties, including the European Union) has earned it title as the ‘constitution of the oceans’.Footnote 112 Still, as with any treaty with near universal participation attached to an outside reality in flux, UNCLOS contains ambiguities and legal lacunas, both old and new. UNCLOS has been accused of either not at all or inadequately addressing illegal, unreported and unregulated fishing, maintenance of marine biodiversity, search and use of marine genetic resources, deep-sea mining and labour standards on fisheries vessels.Footnote 113 What is notable, and sets the law of the sea apart from the legal regimes discussed in previous sections, is that these challenges have recently been or are being addressed through multilateral treaty processes. The following section will briefly outline some of the most important multilateral law of the sea treaties adopted in recent years or currently under negotiation.Footnote 114
The Nairobi International Convention on the Removal of Wrecks (the Nairobi Convention), negotiated under the IMO framework, clarifies when and under what conditions coastal states can remove ship wrecks outside of their territorial waters, an issue not resolved by UNCLOS.Footnote 115 The Nairobi Convention thus fills a real normative gap within the broader international law of the sea framework. An analogy to the above-mentioned Space Debris Mitigation Guidelines is particularly interesting to note, as both instruments address similar issues (liability, permission and insurance) but only the ocean treaty proscribes binding obligations.Footnote 116
The Agreement on Port State Measures is the first binding international agreement to specifically target illegal, unreported and unregulated (IUU) fishing. Initially, measures to combat IUU fishing were discussed in the context of soft law instruments, with the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate IUU fishing (IPOA-IUU) being the most notable.Footnote 117 In 2006, the Review Conference of the 1995 UN Fish Stocks Agreement recommended the development of a legally binding instrument on minimum standards for port state measures.Footnote 118 The Agreement was adopted by consensus only three years later.Footnote 119
In contrast to most treaty processes discussed thus far, a soft law instrument, in this case the IPA-IUU, was not a compromise outcome but, rather, inspired states to move towards a binding instrument with a clear set of obligations.Footnote 120 The process had the support of a diverse group of countries in terms of size, geography and economic development that cut across traditional political alliances.Footnote 121 It should also be noted that all great powers engaged constructively during the negotiations, notably Russia (Signatory), United States (Party), China and the European Union (Party).
A third recently negotiated multilateral instrument is the Agreement on Safety of Fishing Vessels (Cape Town Agreement), which main purpose is to address the inadequacy of international safety regulations in the fisheries sector, a recognized problem for many years.Footnote 122 The Cape Town Agreement was negotiated under the auspices of the IMO in order to give effect and to further update the Torremolinos International Convention for the Safety of Fishing Vessels from 1977 as amended by the 1993 Torremolinos Protocol, none of which have entered into force.Footnote 123 The Cape Town Agreement, which seems all but certain to enter into force within the next few years, will fill another important void in the international legal framework in the law of the sea.Footnote 124
Another treaty that aims to address overfishing and fisheries depletion is the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement). Although perhaps not a multilateral treaty in the classical sense as accession is predicated on demonstrating a ‘real interest’ in the agreement, the CAOFA is still worth mentioning given its broad membership, not least from the major powers.Footnote 125 The basic feature of the CAOFA is to establish a temporary moratorium on unregulated commercial fishing in the high seas of the CAO. Negotiations began in 2010 between the ‘Arctic 5’, which comprises the five Arctic Ocean coastal states Norway, Russia, United States, Canada, and Denmark (acting on behalf of Greenland and the Faroe Islands), leading to the adoption of the Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean.Footnote 126 On the basis of this Declaration, China, the European Union, Iceland, Japan, and South Korea were invited to join the negotiations.Footnote 127 The negotiations were concluded in 2017 and the CAOFA was opened for signature and ratification in 2018.
The CAOFA is a striking example of states acting pre-emptively through a binding instrument in order to fill a forthcoming legal void. Second, and perhaps even more noteworthy, is the fact that the CAOFA included Russia, China, and the United States, a triumvirate of states not known for their ability to find international legal common ground during the time the agreement was negotiated.
The Mining Code for exploitation of mineral resources in the Area is another legally binding set of rules under multilateral negotiation. UNCLOS created the enabling conditions for the operationalization of the regime of the international seabed area (‘the Area’).Footnote 128 The Area and its mineral resources are considered ‘common heritage of mankind’, meaning that all rights in the resources of the Area are vested in mankind as a whole.Footnote 129 The International Seabed Authority (ISA) is mandated to regulate and manage access and use of deep seabed mineral resources.Footnote 130 All state parties to UNCLOS are members of the ISA. The Council of the ISA is currently in the process of elaborating Regulations for Exploitation of Mineral Resources in the Area.Footnote 131 Once agreed, these regulations will join the adopted exploration regulations to complete what will become the Mining Code, a complete set of legally binding rules and regulations that will set the parameters for the exploration and exploitation of marine minerals in the Area.Footnote 132
A draft regulatory framework for exploitation has been published and made publicly available.Footnote 133 Topics under discussion include environmental requirements for deep-sea mining, a monitoring scheme to ensure compliance with the Mining Code and the development of a payment mechanism for exploitation activities.Footnote 134 Negotiating the Mining Code has been described as ‘the ultimate regulatory phase in developing the common heritage of mankind’.Footnote 135 There is a growing industry that seeks to commercialize the extraction of deep sea minerals in the Area. The legal framing of this emerging industry has thus become a high-stakes endeavour.Footnote 136 Despite this ambitious multilateral undertaking, steady progress is being achieved and it is realistic to estimate that the Mining Code will be adopted within the next few years.Footnote 137
The final treaty exercise we shall consider is the ongoing attempt at creating a legally binding instrument under UNCLOS regarding marine biodiversity in areas beyond national jurisdiction (BBNJ). What is especially worthy of notice, in the context of multilateral treaty-making, is the way in which this process has remained on a steady track towards a legally binding instrument, despite several usually influential states expressively favouring a non-binding outcome.
The process started in 2004 when the General Assembly of the UN established the Ad Hoc Open-ended BBNJ Informal Working Group (BBNJ WG) in order to identify gaps in the international framework and ascertaining whether a new instrument was warranted.Footnote 138 In 2011, states agreed that the negotiations would focus on four elements, namely (i) marine genetic resources (MGRs); (ii) protective measures such as area-based management tools (ABMTs); (iii) environmental impact assessments (EIAs); and (iv) capacity-building and the transfer of marine technology.Footnote 139 Several states, including the European Union and the G77, expressed their preferences for a new binding agreement under UNCLOS.Footnote 140 However, the recommendations of the 2011 Working Group contained no such reference, in large part due to opposition from the United States, Japan, Canada, Iceland, and Russia.Footnote 141 It was nonetheless agreed that a process be initiated:
with a view to ensuring that the legal framework for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction effectively addresses those issues by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under [UNCLOS].Footnote 142
The discussion about the binding nature of the instrument to be negotiated re-emerged during the 2015 session. Again, the United States, Japan, and Russia favoured recommending to the General Assembly ‘an international instrument’, which could pave the way for a soft law document.Footnote 143 In the end, however, those in favour of a legally binding instrument prevailed as the BBNJ WG ended up recommending – by consensus – that the General Assembly should ‘decide to develop an international legally-binding instrument under the Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’.Footnote 144 The General Assembly heeded the advice as it later that same year decided to ‘develop an international legally binding instrument’.Footnote 145 Finally, in Resolution 72/249, adopted in 2017, the General Assembly decided to convene an Intergovernmental Conference (IGC), under the auspices of the UN, to consider the draft elements and to ‘elaborate the text of an international legally binding instrument’ addressing the topics identified in the package agreed in 2011.Footnote 146
It falls outside the purview of this article to give a detailed account of the negotiations thus far. At the time of writing, the IGC has held three of the four substantive sessions. A draft treaty has been circulated together with an article-by-article compilation of textual proposals by states and non-state stakeholders.Footnote 147 Although a number of issues still need resolving, states have now reached the final stage of the process, having moved from conceptual deliberations to text-based negotiations. It is now all but certain that a new binding instrument on marine biodiversity in areas beyond national jurisdiction will soon be a reality.
7. Understanding the different approaches to treaty making
While methodically difficult, given the variety of factors at play, this section seeks to (i) highlight some of the reasons behind the general stagnation of multilateral treaty-making, and (ii) explain why the law of the sea has largely avoided being captured by this trend.
Recent scholarship has offered some theories behind the general stagnation of multilateral law-making. Amongst the most common theories are treaty fatigue, backlash against judicialization of politics, weakened multilateral institutions and states being less able to control and manage international treaty processes.Footnote 148 It has also been suggested that states have become dissatisfied with ‘the limited options in the traditional forms of codified international law, as well as concerns about the viability of undertaking major law-making treaty negotiations in a multi-polar world of almost 200 states’.Footnote 149 Those are all valid explanatory factors but fail to sufficiently take into account that a large proportion of the global community of states still wants to enact new multilateral treaties, as clearly evidenced by the many treaty attempts with broad global support discussed above. The notion of general treaty saturation amongst states thus seems somewhat exaggerated. Instead, it is the continuing inability of traditional great powers to negotiate new binding norms which is the most constraining factor on multilateral treaty creation across most legal branches, albeit in different ways.
At first glance, the failure to strengthen IHL seems unrelated to great power rivalry as Russia, US, China, and most other influential states have been equally disinclined to negotiate new binding rules in this field. This was evident in the ICRC/Swiss processes to strengthen IHL, none of which could overcome the lack of support from the major powers. The same trend has been even more pronounced with respect to new binding restrictions on certain weapons, which have been rejected all together by more or less the same group of states. Obviously, the tacit great power agreement to retain the IHL status quo is predicated on a deeper level of antagonism and mistrust between these states. Thus far, however, this rivalry has materialized in a uniform great-power scepticism to new binding IHL rules.
Multilateral efforts to negotiate new cyber treaties have also broken down partly due to great power rivalry. However, this legal subfield is characterized by sharper and more explicit great-power competition. Broadly speaking, the United States-led, mainly Western coalition of states favours applying existing international law to cyberspace while another camp, with Russia and China at the helm, refuses to acquiesce to what they perceive as a system benefiting the US and its allies and thus seeks new binding rules. This dynamic underpins the contemporary impasse in negotiating new binding rules on cybercrime and internet governance and more broadly ongoing discussions in the OEWG about the applicability of international law in cyberspace. The result is nonetheless the same: stalemate and multilateral treaty stagnation.
Space law seems to be the one legal branch where states seem collectively disinterested in new binding rules. However, this lack of ambition also stems from the current inability of major states to coalesce around new binding norms and, particularly in this field, the opposition from the United States to new treaty rules. It is clear that no ‘viable legal regime can be established without the agreement of the major space powers’.Footnote 150 As long as the United States, by far the most important state in space affairs, adheres to a space policy pursuant to which ‘it will oppose the development of new legal regimes or other restrictions that seek to prohibit or limit the United States access to or use of space’, the obstacles to new treaties in this area seem insurmountable, at least in the short term.Footnote 151 Whether this will change as more states continue to develop a clearer stake in a well-functioning international legal space framework is an open question.
Why great power rivalry is now inhibiting the creation of new binding norms is a complex issue without clear answers. After all, great power rivalry in international relations does not seem to be more pronounced now than during the post-Second World War era. It is likely related to deeper geopolitical shifts with emerging powers on the rise and the relative decline of others, not least United States and its allies, which, traditionally, have supported many global treaties and now seem more sceptical to such initiatives.Footnote 152 This reticence is not unnatural as the shifting distribution of global power has made it more difficult to achieve new multilateral treaties that reflect Western policy choices.Footnote 153
It is, however, not only the United States and its allies whose power have diminished; recent years have seen the influence of all traditional great powers dwindle to rising and new middle powers.Footnote 154 This has given way to a multipolar international community which most major powers likely deem difficult to manage and thus unconducive to producing treaties that comport with their overall priorities. This helps explain why traditional great powers are sometimes unified in their opposition to new global treaties, as seen for example in the IHL domain.
Great power rivalry and a shifting distribution of global power are not the only reasons behind diminished multilateral law-making. It is also clear that weakened multilateral institutions has contributed to the current stalemate. This is especially evident in long-established multilateral institutions such as the Sixth Committee which seem particularly entrenched; its packed agenda and a nearly institutionalized lack of trust create just the right conditions for deferring difficult issues or compromising around non-binding outcomes. Another structural deficiency from the perspective of producing new binding instruments is its adherence to a strict consensus principle, invariably empowering states with the least ambitions. The same is true for COPUOS, another UN committee historically operating on the basis of a strict consensus principle, thus giving virtually all power to those opposed to new initiatives.
Until the current great power competition ends or settles into a new mode of international co-operation it seems clear that new multilateral treaties are more likely to succeed based on a bottom-up approach whereby less powerful states enter into cross regional alliances and use their collective leverage to push more powerful states to participate in multilateral processes. This bottom-up dynamic is rarely feasible when legal regimes are attached to realities characterized by profoundly asymmetrical power structures. In such situations, great power dominance is hard to overcome by less powerful states, even if constituting a clear numerical majority. If smaller states nonetheless chose to negotiate binding instruments, the more powerful states can let such processes run their course, recognizing that the outcome will have a limited bearing on them. This seems to be the dynamic behind recent treaties negotiated without the involvement of key states, notably the Convention on Cluster Munitions (CCM) and the Treaty on the Prohibition of Nuclear Weapons (TPNW).
This brings us to an important reason for why the law of the sea has seen more multilateral law-making than most if not all other international law branches in recent years: its distinct power and leverage structure and the unique geopolitical alliances that are able to exert power within that structure. As a point of embarkation, the law of the sea has certain material features that sets it apart from other branches of international law. Notably, UNCLOS leveled the playing field by empowering smaller and medium sized states in a way not seen in other subfields of international law. Partly responding to pressure from developing states, UNCLOS massively expanded costal states’ areas of maritime jurisdiction and gave such states the right to declare vast Exclusive Economic Zones.Footnote 155 In particular, UNCLOS’ special provisions for archipelagic states provided such states with extensive waters under their jurisdiction.Footnote 156 UNCLOS reduced the size of the high seas by one-third and turned the ‘ocean into a blue annex to national territories’.Footnote 157 This was accomplished while preserving important high seas freedoms, such as freedom of navigation, the laying of submarine cables and pipelines, and overflight.
By establishing a form of ‘equality of arms’ at sea, UNCLOS spurred an interest in law of the sea matters amongst traditionally weaker states and, more importantly, gave such states unusual leverage over this particular legal discourse. As a consequence, coalitions of developing states such as the Group of 77 (G-77) and Pacific Small Island Developing States (PSIDS) are influential negotiation blocks in most law of the sea processes.Footnote 158 They regularly co-ordinate their positions and speak with similar voices in their exchanges with greater powers.Footnote 159
The unique UNCLOS construct, with many smaller and medium-sized states controlling and exercising sovereign rights over vast maritime areas, means that an ocean treaty can have real significance even without the participation of traditionally larger states. This has a bearing on negotiation dynamics as it gives larger states a limited ability to manage and potentially prevent new legal instruments. The BBNJ is an especially apt example in this regard. Here, the United States, Russia, and Japan, as well as other states, have been unable to steer the process towards a non-binding outcome when faced with a majority of traditionally less powerful states determined to enact a new binding instrument. This is no doubt partly explained by a negotiation dynamic where larger states are worried about being overrun by a numerical majority of states negotiating in concert. A similar dynamic produced the Port State Measures Agreement, at least in the sense that its protagonists constituted a large and diverse group of states that was difficult to discourage.
The law of the sea is arguably more facilitative of rights and co-operation than most other branches of international law. International humanitarian law, for example, is often perceived by states participating in armed conflict as a mostly restrictionist framework, imposing limits on state behaviour, often leading such states to view new binding rules with scepticism.Footnote 160 The law of the sea, on the other hand, is a framework comprising a more balanced set of rights and obligations, thus facilitating activities as well as imposing restrictions. This gives a different incentive structure. An illustrative example is the ongoing negotiations related to developing new rules for deep-sea mining in the Area. As resources in the Area have been designated as the common heritage of mankind, thus belonging to humanity as a whole, states have a mutual interest in developing a regulatory scheme amenable to all parties. And where UNCLOS affords states with sovereign rights, such as with respect to fisheries in the Exclusive Economic Zone, such rights cannot be exercised in a vacuum; instead, their fulfilment is often contingent on other states behaving responsibly. The international effort to enact measures to combat IUU-fishing, including adopting the Port States Measures Agreement, is in no small measure due to this dynamic.
States seem less ideologically divided about the appropriate modalities for ocean governance. This is borne out by the universality of UNCLOS and the broad support for its underlying principles and purposes.Footnote 161 Obviously, maritime conflicts of different sorts often occur, but they tend to take place within the law of the sea framework, without challenging it.Footnote 162 In fact, contested state behaviour is often based on an implicit deference to the law of the sea.Footnote 163 For example, states seeking control over islands, ‘are doing so because they are pursuing their interests as determined by the law’.Footnote 164 Before UNCLOS proscribed that islands could generate the same set of maritime zones as other land territory, states had few incentives to exert control over remote islands, as they were often considered indefensible and worthless.Footnote 165 Today, states will often engage in fierce competitive behaviour to secure control over the remotest of islands.Footnote 166
Conversely, many other international legal branches are characterized by profound, sometimes paradigmatic, political differences. The cyber domain is a suitable example of a legal area where political divisions and conflict has inhibited cross regional negotiations of new binding norms. Similarly, efforts to subject highly politicized topics such as international terrorism to new regulation often end in stalemate due to deep rooted conflicts difficult to separate from the legal discussions.
Furthermore, the law of the sea is a legal framework which the major powers seem to view as serving their overall interests, including when it comes to finding co-operative solutions to common challenges. Nowhere is this better illustrated than in the Arctic. The five Arctic Ocean coastal states (Canada, Denmark/Greenland, Norway, Russia, and the United States (‘A5’)) all have overlapping continental shelfs in the Arctic. This has spurred fears of a ‘scramble for Arctic resources’. Partly to counter this narrative, the A5, in the 2008 Ilulissat Declaration, reaffirmed their commitment to the law of the sea and ‘the orderly settlement of any possible overlapping claims’ on the basis of ‘an extensive international legal framework’ that applies to the Arctic Ocean, ‘notably the law of the sea’.Footnote 167 This joint commitment by the A5 to the basic tenets of the law of the sea provides important context for understanding what permitted the CAOF Agreement. It also showcases an unusual great power deference to a particular branch of international law, and why such states are regularly drawn in by processes about the law’s future development.Footnote 168
Finally, it is worth addressing a potential objection that the article is making a broader claim than the evidence warrants. After all, not all legal subfields with an inadequate legal framework have been examined. A brief look at other branches of law, however, reveals a similar pattern: Multilateral efforts to expand international trade law have been at a virtual standstill since the Doha Round was instigated in 2001, mainly due to an impasse between developed and developing states, reinforced by the ongoing trade war between China and the United States.Footnote 169 As regards human rights law, an area arguably already well covered by existing conventions, there has been some multilateral progress, mainly with respect to the establishment of new treaty bodies and optional protocols for individual complaints but also with the adoption of the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities, both in 2006.Footnote 170 However, when it comes to advancing the human rights framework to what many consider its new frontier, namely the human rights obligations of transnational businesses, the familiar pattern repeats itself: a multilateral attempt at a new treaty has received limited support from key states who instead prefer a non-binding alternative.Footnote 171 Finally, international environmental law has seen some recent success with the Paris Agreement, adopted by consensus and with great power support.Footnote 172 However, beyond the Paris Agreement, few multilateral environmental treaties have been created in recent years.Footnote 173 However important, the Paris Agreement is best understood as an outlier from the overall trend of multilateral treaty stagnation.
8. Conclusion
The analysis has revealed significant variance in states’ ability and willingness to address new challenges through multilateral treaty-making. Since the turn of the millennium, soft law has been the default outcome when states negotiate legal solutions to new issues. A few multilateral treaties have been concluded, but mainly without the involvement of key states, rendering the legal value of these instruments largely symbolic. A very different trend is observed with respect to the law of the sea. Here, states have often succeeded in negotiating binding agreements based on truly global negotiations.
The article has shown that a large number of states regularly seek multilateral treaties to address common challenges. This is true across most legal branches. Still, it is clear that the general trend is that of diminished multilateral law-making. This trend can be partly explained by treaty fatigue and weakened multilateral institutions. However, it is the continuing inability or unwillingness of traditional great powers to negotiate new binding norms which is the most constraining factor on multilateral treaty creation across most legal branches. This in turn is related to deeper geopolitical shifts by which traditional great powers, notably the United States and its allies, have seen their relative influence decline. Whether these new power structures will eventually reach a new equilibrium more conducive to global agreements or if we are seeing a trajectory towards a multilateral system in a more permanent state of crises is an open question. Regardless, until the current great power competition settles into a new mode of international co-operation, new multilateral treaties with actual regulatory effect will only rarely emerge.
Three reasons have been submitted for why the law of the sea has avoided the current trend of multilateral stagnation: First, a global commitment to the basic tenets of the law of the sea. This does not mean that the ocean is not riddled with tensions and great power rivalry. For the most part, however, such political disagreements are held within the legal framework, without challenging it. Second, a framework that affords rights and obligations somewhat evenly disbursed amongst the community of states. This ensures broad ownership and widespread power sharing that allows for a bottom-up approach to treaty-making: less powerful states can enter into cross regional alliances and use their collective leverage to push more powerful states to participate in multilateral negotiations. Third, the avoidance of entrenched negotiation fora where decisions are reached by consensus only. Without a credible way of proceeding unless there is full agreement, states disinclined to new treaties simply have too much power.
The article has been agnostic about the merits of the various treaty attempts discussed above. There can be perfectly legitimate policy or legal reasons for why states are opposed to new treaty initiatives. Especially notable in this context is that states sometimes oppose new binding rules to preserve existing law or to facilitate the evolution of new customary international law. Thus, reticence to new multilateral agreements should not automatically be equated with opposition to the development of international law. That said, if international law is to remain relevant new binding rules must every so often be generated.
Finally, the argument about the exceptional nature of the law of the sea should not be taken too far. Some recent law of the sea treaties are arguably more of a technical nature and therefore easier to negotiate than instruments discussed in the context of other branches of international law. However, many law of the sea treaties such as the BBNJ concern deeply contentious and sensitive issues. And taken together, many law of the sea treaties created in recent years reveal a trajectory that is very different from most other sub fields of international law where even purely technical issues are completely gridlocked or addressed through non-binding means.Footnote 174
So, what to make of the future of multilateral law-making in a time of multilateral decline? At the moment it seems tempting to resign to a reality where multilateral negotiations no longer produce binding instruments. If this is an outcome one would reject, it is time to look at what works. The law of the sea is a good place to start.
