Between Pragmatism and Predictability: Temporariness in International Law
© T.M.C. Asser Press and the authors 2015
Mónika Ambrus and Ramses A. Wessel (eds.)Netherlands Yearbook of International Law 2014Netherlands Yearbook of International Law4510.1007/978-94-6265-060-2_11. Between Pragmatism and Predictability: Temporariness in International Law
(1)
Department of International and Constitutional Law, University of Groningen, Groningen, The Netherlands
(2)
Centre for European Studies, University of Twente, Enschede, The Netherlands
Abstract
One of the key functions or purposes of international law (and law in general for that matter) is to provide long-term stability and legal certainty. Yet, international legal rules may also function as tools to deal with non-permanent or constantly changing issues, and rather than stable, international law may have to be flexible or adaptive. Prima facie, one could think of two main types of temporary aspects relevant from the perspective of international law. First, the nature of the object addressed by international law or the ‘problem’ that international law aims to address may be inherently temporary (temporary objects). Second, a subject of international law may be created for a specific period of time, after the elapse of which this entity ceases to exist (temporary subjects). These types of temporariness raise several questions from the perspective of international law, which are hardly addressed from a more conceptual perspective. This volume of the Netherlands Yearbook of International Law aims to do exactly that by asking the question of how international law reacts to various types of temporary issues. Put differently, where does international law stand on the continuum of predictability and pragmatism when it comes to temporary issues or institutions?
Keywords
TemporarinessTemporary objectsTemporary subjectsPredictabilityPragmatismLegal certaintyChangeMónika Ambrus is lecturer in public international law, Department of International and Constitutional Law, University of Groningen, The Netherlands. Ramses A. Wessel is Professor of International and European Institutional Law at the University of Twente, Enschede, The Netherlands.
1.1 Introduction
One of the key functions or purposes of international law (and law in general for that matter)1 is to provide long-term stability and legal certainty. Indeed, when adopting conventions, drafting treaties, making regulations generally the idea is not that those rules will elapse. Think, for instance, of human rights conventions the endurance of which is ensured by rather general formulations. Yet, international legal rules may also function as tools to deal with non-permanent or constantly changing issues, and rather than stable, international law may have to be flexible or adaptive. Hersch Lauterpacht discussed this question in terms of a struggle between change and stability and justice and security. And he pointed out that ‘[e]xperience teaches that in this struggle the element of change is not always victorious, for the simple reason that stability and security are in themselves a powerful constituent element of justice.’2 In his view, ‘[a]t present international law is more static than any other law not only because of the absence of an international legislature, but principally because it regulates relations which are not in themselves liable to be affected in a decisive manner by economic and other changes.’3 Whether this observation still holds true today is one of the main questions that is addressed in this volume of the Netherlands Yearbook of International Law. According to Lauterpacht, one of the reasons for the insistence by international law on status quo is the absence of an international legislature which could deliberately change this situation. So far no such legislature has been created4, which then raises the question how could international law, if at all, still react to or be influenced by changes, thus temporary issues. More concretely, what are the tools at the disposition of international law through which temporariness is dealt with.
Prima facie, one could think of two main types of temporary aspects relevant from the perspective of international law. First, the nature of the object addressed by international law or the ‘problem’ that international law aims to address may be inherently temporary (temporary objects). While the object of regulation itself does not cease to exist, its features are bound to change throughout time. These changes are generally unknown or difficult to predict. In these cases regulations aim to address moving targets. Examples of this type of temporariness are abundant: climate change, migration, developing countries, belligerent occupations and so on. Oftentimes this type of temporariness is studied through concepts that are aimed to deal with changes and uncertainty, such as risk management and regulation, precaution or resilience.
Second, a subject of international law may be created for a specific period of time, after the lapse of which this entity ceases to exist (temporary subjects). These subjects mainly concern the establishment of institutions or certain entities. Examples of such temporary institutions are also ample in international law: territorial administrations, states in transition, the International Criminal Tribunal for Rwanda and for the former Yugoslavia and so on. The mainstream discussion with regard to this type of temporariness seems to focus on questions of justice, fairness and accountability.
In addition to the above-mentioned approaches, these types of temporariness raise several questions from the perspective of international law, which are hardly addressed from a more conceptual perspective. This volume of the Netherlands Yearbook of International Law aims to do exactly that, including the following questions. How does international law deal with matters that are non-permanent? What happens to international law when the originally temporary creatures become permanent? What is the effect of temporary regulations on matters that are permanent? How does temporariness affect legal certainty? These and related questions are addressed in the contributions of this volume of the Yearbook from various perspectives in order to explore the impact of temporariness on international law, namely how international law reacts to various types of temporary issues. Put differently, where does international law stand on the continuum of predictability and pragmatism when it comes to temporary issues or institutions?
Rather than providing a summary of each contribution, this introduction places the chapters within the above indicated framework of the two main forms of temporariness. After introducing these forms of temporariness as addressed in this volume, this chapter will discuss how these forms relate to and what effect they have or can have on international law. In order to gain further insights into the nature of temporariness, the chapter also highlights the main concepts associated or contrasted with the notion of temporariness in the concluding chapter.
1.2 Forms of Temporariness
This section introduces these two main forms of temporariness as addressed in the chapters without exploring their impact on international law, which is the subject of the next section.
1.2.1 Temporary Objects
An outstanding example of temporary objects is climate change, which is explored in van Asselt’s chapter. This object is temporary in the sense that, as the name already indicates, the climate is undergoing certain changes; i.e. its nature varies or might vary from time to time, which is influenced, among others, by technological advances, socio-economic conditions and demographic developments. In addition, due to developments and shifts in scientific insights the manner in which climate change is seen is also prone to changes. Put differently, from time to time this problem needs to be tackled differently—i.e. a solution at a given moment in time might not work at another moment. Accordingly, a particular mechanism addressing the problem is quasi per definitionem temporary.
Another widely known example of a temporary object in international law is the situation of refuge-seekers. While refugees are generally seen as subjects of international law, the problem surrounding them can rather be described as the object of regulation. As Durieux’s chapter describes, the nature of refugee protection is inherently temporary, though in a somewhat different manner than that of climate change: the general purpose of this regime is to re-establish the relationship between the original state of nationality and provide a temporary solution until then—thus regarding the regime as an ‘exception’. I.e. the problem is generally seen as temporary, while in the case of climate change the problem has become temporary due to the changes involved. Nevertheless, the refugee protection regime is also subject to changes—making it temporary in a different manner. Namely, the refugees change, the number of refugees to be ‘tackled’ at a certain point in time is also subject to change, and obviously the domestic situation in the receiving state as well as in the state of origin also varies in many respects—which might also have impact on the way in which temporary protection can and will be provided to those who are escaping from their state of origin.
As explained in Criddle’s chapter, national crises or emergencies are also temporary ‘problems’ that in general justify the somewhat reduced protection of human rights, i.e. the adoption of human right derogations. Put differently, the temporary problem here is the lower level of protection of human rights, which depends on the particular circumstances of the emergency situation. Similarly to refugee protection, the problem here is inherently and strictly temporary. As soon as the crisis or emergency ends, derogations should be eliminated too.
As opposed to human rights derogations, affirmative action measures rather provide a higher level of protection, as discussed in Addis’ chapter. When affirmative actions or positive action measures are needed, the problem that needs to be addressed is inequality that stems from past discriminatory treatment. In other words, affirmative action measures aim to heal the consequences of a differential treatment adopted in the past, which has resulted in an unequal situation in the present. Nevertheless, they are similar to human rights derogations in that they will need to cease to exist after a period of time, namely when equal opportunities have been created.
Questions like these relate to an overarching objective of international law: a stable rule of law. If one perceives the international rule of law as the framework to provide stability and fairness (following domestic democratic notions based on that idea), the question is to what extent it can be combined with temporary issues. Ranchordás answer to this is that temporary institutions and rules can actually promote the international rule of law, providing more flexible solutions for the long-term achievement of a stable rule of law. In fact, as she argues, ‘temporary certainty can contribute to thicker definitions of the rule of law including long-standing justice and protection of human rights.’5
In a way, this reveals that, international law itself (or at least parts of it) could also be regarded as an object of temporariness. In fact, one could argue that some temporariness is inherent in the sources of international law. Considering the main ones: custom is inherently fluid and allows international law to change according to adapted practices and legal opinions. While the objective of written law is to overcome uncertainties and provide ‘fixed’ interpretations, treaties are often seen as ‘living instruments’, the interpretation of which may follow new insights and developments. In fact, as the contribution of Merkouris indicates, treaty law itself allows for change over time. In the law of treaties ‘subsequent practice’, ‘subsequent agreements’, ‘relevant rules’ and ‘supplementary means’ play an essential role and discussions often relate to the tension between the intentions of the drafters and the ways in which these play out later.
As legal scholars, we are not merely observers of changes in international law. Scholarly insights are equally temporary and obviously contribute to changes in the international rules. The ‘shift from eternity (natural law) to temporality (changeable law)’ is man-made. In his contribution, Djeffal points to the influence of paradigm changes over time. The question raised in his contribution is whether in the dialectal process from atemporality to temporality, we can see a new paradigm termed ‘fluxus’: asserting that the law is necessarily moving and changing and hardly ascertainable. ‘Under such an assumption, predicting the law generally means to predict the next decision. The temporal focus is, therefore, on the next moment.’6
Similarly, international law, as object of temporariness, may be challenged to remedy flaws in its system. When structural solutions are out of sight due to, for instance, political controversies, temporary solutions may be in order, and acceptable to the international community. The present collection offers ample examples of such temporary ‘repairs’, including the establishment of ad hoc