This post is a reaction to an ESIL Reflection written by Ramses Wessel and Monika Ambrus and entitled “Between Pragmatism and Predictability: Temporariness in International Law”. Their piece originates in an impressive symposium on the topic that has been published in the Netherlands Yearbook of International Law (see here)
In a recent issue of the Netherlands Yearbook of International Law (vol. 45, 2014) titled ‘Between Pragmatism and Predictability: Temporariness in International law’, the volume editors Monika Ambrus and Ramses Wessel weave together the chapter contributions in building a systematised way of thinking about change or temporariness and international law. At a certain level, all issues and laws are temporary in the sense that they eventually undergo some change or disappear. What is referred to by temporariness here is changes of relatively short-duration or constant occurrence.
Ambrus and Wessel suggest that temporariness could be analysed with respect to two aspects of international law: its objects and subjects. By objects, they refer to the issues or problems that international law addresses, while subjects are the ‘institutions and other entities’ that shape international law, such as courts and tribunals. Drawing on illustrations from the chapter contributions on climate change, refugees, emergency situations, affirmative actions, commissions of inquiry and ad hoc international criminal tribunals, they point out that international law increasingly deals with temporary objects and subjects: issues or problems constantly change, and institutions could be designed for short life spans.
A pertinent starting point to engage this phenomenon is to ask, as they put it, how international law can ‘react to or be influenced by’ constant change or temporariness. In an era when global problems constantly evolve due to, among others, their ties with fast-paced technological development, temporariness is indeed a crucial and timely research agenda. In this piece, I would like to further highlight its importance by showing a particular dimension where temporariness is giving rise to a distinct trend in international governance. Before doing so, I’d like to comment on one aspect of Ambrus and Wessel’s conceptual approach to the topic that might pose an unnecessary constraint in taking this debate forward.
As mentioned above, Ambrus and Wessel’s synthesis of the debate on temporariness in international law rests on an object-subject dichotomy in international law, which is a difficult distinction to maintain. This difficulty arises particularly when the problem (i.e. object) in question is centred on the conduct or status of individuals or entities that are regarded as subjects of international law. While the involvement of individuals and entities is not a defining component in the conceptualisation of some of the problems Ambrus and Wessel discuss (e.g. climate change), other cases are trickier. This is the case, for example, with the problem of refugees. Ambrus and Wessel treat the issue of refugees as an object. They state that although refugees as such (i.e. individuals) are subjects, the ‘problems surrounding’ refugees are to be regarded as objects. However, it is difficult to conceptualise the problem of refugees in separation of refugees themselves. Unlike the case of, for example, climate change where discussions begin from an issue that could be formulated in separation of the actors involved (i.e. that the climate is changing in undesirable directions), the problem of refugees is intricately linked to the status of the individuals concerned. Furthermore, the object-subject binary is also problematic as some aspects of temporariness in international law would not be captured under either of these categories. For example, temporary normative measures adopted to address permanent issues neither constitute a temporary issue (i.e. object) nor are they necessarily accompanied by temporary institutions (i.e. subjects).
A more inclusive alternative to the object-subject prism would be to think in terms of the broader categories of ‘issues’ that international law addresses and the ‘responses’ of international law to those issue. This way, the debate would be focused on explicating the ways in which temporariness affects and is affected by international law, without being dragged into determining whether the defining element of a temporary subject-matter at hand is the actors involved or the problem per se. Using the ‘issues-responses’ perspective also helps to approach the topic in a more interconnected manner, instead of examining either temporary objects or temporary subjects separately.
Experimentalist Responses to Temporary Problems
This leads me to the point I flagged at the beginning: that there is an emerging pattern of international governance that epitomises temporariness in terms of both the issues it addresses and the international legal responses it deploys in doing so. This is what is referred to in recent literature as ‘experimentalist’ governance. The term refers to a pattern of international governance that is designed to address temporary problems or problems that have aspects of temporariness through flexible normative measures. This mode of governance is already in wide use at the European Union level in regulatory areas such as food safety, water, forestry, and competition policy. There is also a limited emerging practice at the global level, a pertinent example being the international counter-terrorism financing regime developed by the Financial Action Task Force.
Addressing constantly evolving issues such as these involves a tension. On the one hand there is the need to create a stable, long term rule of law regarding the way the issues are tackled, and on the other hand the legal response with respect to those issues needs to constantly catch-up with the fast paced developments on the ground. Experimental governance purports to resolve this tension by retreating from the use of precise legal rules and instead deploying a combination of broad standards and localised enforcement measures. By ‘local’, the reference here is to various sites of governance, including national, sub-national, and regional levels, and within the private sector or specific industries. The broad standards provide the general goals of the legal regime in question which merely indicate the templates of enforcement. Those goals are translated into concrete regulatory measures through local enforcement measures, such as administrative decisions and corporate business polices.
Both types of normative tools are designed to respond to constantly changing issues. The general goals contained in the standards serve as loose parameters which provide room for flexibility in their realisation across contextual and temporal variations. These parameters do not determine specific legal measures that would take effect in a particular locality. The localised legal measures, in turn, are contextually-specific instruments adopted at a unit level, allowing for less cumbersome process of change.
Moreover, in an experimental governance, these two types of normative tools are interlinked through a mutual lessons-learning process between the global and local actors, which ensures continuous overall flexibility to deal with constant changes. The various localities of enforcement serve as front-line cites of experimentation where best practices and challenges of realising the broad standards are identified. The lessons learned from these experimentations are used as input in further modifying the standards, which are in turn adopted with a caveat of revisability – and this cycle of taking lessons and adaptation keeps repeating.
This form of international governance, which responds to constantly changing issues with flexible international legal tools, has a particular appeal to policy makers in an increasing number of issue-areas that are technically sophisticated and continually evolving. And in that sense it underscores Ambrus and Wessel’s call for a serious engagement with temporariness in international law.