The End of Treaties? The End of History?

by Duncan Hollis

AJIL Unbound, the new on-line companion to the American Journal of International Law, has begun to publish short essays this week for its on-line Agora, The End of Treaties? (see the original call for papers here). So far, they have posts up by Tim Meyer (‘Collective Decision-making in International Governance‘) — and Joel Trachtman (‘Reports of the Death of Treaty Are Premature, but Customary International Law May Have Outlived Its Usefulness‘).  Additional posts will be rolled out over the course of the week here.

As for me, I regard this ‘End of Treaties?’ idea as analogous to Francis Fukuyama’s famous End of History thesis.  Like Fukuyama’s piece, I think the idea here is more an argument about the future of treaties as opposed to either an historical or empirical claim that treaties no longer matter much to international law.  Just as it’s hard to argue that history ended with the Cold War, it’s hard to make the case that we’re now witnessing the end of treaties.  On the contrary, there are more treaties in force today than ever before in human history. The United States has more than 10,000 treaties in force and the UN Treaty Office has registered more than 64,000 treaties (this notwithstanding widespread noncompliance by States with their obligation to register treaty commitments).  The breadth and depth of these treaty commitments is equally striking — one is hard pressed to find an international law issue today where there is not some treaty that speaks, directly or indirectly, to the question.  

Perhaps the “End of Treaties” idea should emphasize the decline in treaty-making as opposed to treaties themselves?  Again though, I’m not sure there’s evidence to support the claim.  True, the number of major multilateral treaty negotiations has fallen off in recent years (at least when compared to the late- and immediate- post Cold War periods) while other negotiations appear stalled. But it’s not clear to me that we’re heading to some definitive end-point of obsolescence rather than witnessing an oscillation over time in terms of when and how treaty-making gets done. Nor am I persuaded by the Senate’s recent recalcitrance on treaty-making.  For starters, it’s actually a pretty small piece of U.S. treaty-making; I believe Senate advice and consent treaties in recent decades constitute only about 7% of the international agreements concluded by the United States. And, it’s not like the Senate has refused to give advice and consent entirely; 2013 saw 4 treaties get through.  This is not to say that the Senate process is working well right now — it’s clear not — but rather to suggest it may not yet be time to write that process off completely.

Finally, I do not think one has to find that treaties as a form of international commitment are necessarily weakened by the emergence in recent years of all these new forms of what Tim calls ‘collective decision-making’.  I don’t accept the idea that we’re in a zero-sum game where every time we use a political commitment or code of conduct, there’s one less treaty going forward.  Instead, I wonder if the proverbial pie may be expanding with the expansion in forms of international cooperation; the future (or indeed, even the present) may bear witness to more treaties AND more political commitments, international institutional norm-making, soft law or what have you.  Thus, Tim and I may part ways a bit here as a descriptive matter since he’s inclined to think there’s been some decline in treaty usage.  I’d concede though that there’s research that we could do to settle the trade-off questions.

In the end, I may not be in agreement with the Agora’s theme, but I applaud its attention to the treaty topic.  For me, treaties deserve more attention, not because they are in some form of decline, but rather because of how critical they have become to the functioning of the modern international legal order.  So, I am looking forward to thinking more about Meyer and Trachtman’s posts and reading the remaining contributions later this week.  I trust it’s the start of a great conversation.

http://opiniojuris.org/2014/04/29/end-treaties-end-history/

4 Responses

  1. Duncan, Thanks for these very thoughtful remarks.  I agree with you that the increased use of various forms of soft law  allows state to cooperate in ways that they would not have been able to using treaties.  In this sense, the availability of soft law does indeed increase the size of the pie.  I also agree that focusing on those treaties for which the Senate has not given advice and consent tends to understate the treaty’s significance, within both US international legal practice and within international governance more generally.  I am  agnostic about whether the treaty is used less as an absolute matter.  Your post suggests, persuasively to me, that treaties may continue to grow in absolute numbers.  
    My point is more about changes in negotiation processes, though, rather than the legal status of the resulting instrument.  We often talk about and analyze treaties as contracts between states.  This paradigm focuses us on the role of a state’s individual consent to be legally bound as the key procedural event in the creation of an obligation.  In my view, the relative importance of the individual act of formally consenting to be bound by one’s legal obligations is declining.  It is ceding ground both to more thickly institutionalized negotiations that resemble the procedures following in legislatures, in which the key procedural moment is a collective decision to adopt an instrument by a body with standing membership, as well as to soft law instruments and other forms nonconsensual lawmaking.  I think you see this trend everywhere, although its strength varies across issue areas.  A lot of these collectively-negotiated instruments may end up being treaties, but the obligations they create look different because of the procedures through which they are negotiated.  I also think that some of the Senate’s reluctance to grant advice and consent stems from a recognition of this shift–that even where states retain the power to individually consent to their legally binding commitments, that power is worth less than it used to be.  

  2. Duncan, I am interested in the source for your count of US treaties.   Compare p. 5 of http://www.fas.org/sgp/crs/misc/RL32528.pdf
     

  3. Tom — my count of US treaties is based on those in force, not simply those concluded (a number of which are no longer in force) so I don’t dispute the CRS figures on that score.  My numbers come from my recollection of things when I served in the Treaty Office, which we compiled from the annual Treaties in Force publication (indeed, I remember it being something of a big deal when we crossed the 10,000 threshold circa 2004-05).  It would be interesting to know if the Treaty Office still maintains a list of the overall number of treaties in force for the United States but I’ve little doubt the numbers remain well above 10,000 at this point.  

  4. Thanks.   BTW, did you see http://infojustice.org/wp-content/uploads/2014/04/13-461_bsac_Law-Professors-and-Scholars.pdf ?

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