© T.M.C. Asser Press and the authors 2015Mónika Ambrus and Ramses A. Wessel (eds.)Netherlands Yearbook of International Law 2014Netherlands Yearbook of International Law4510.1007/978-94-6265-060-2_2
2. Temporariness and Change in Global Governance
Director of the Master’s Program in International Law, Universidad de Los Andes, Bogotá, Colombia
A crucial aspect of international law is to provide long-term stability and legal certainty. This function presumes that international law-making creates discrete norms and institutions that remain static until they are changed (or replaced) by other discrete institutions. This paper adopts a different point of departure to think about ‘temporariness’. It suggests a dynamic of norm creation and institutional change in global governance. Neither norms nor institutions remain static once they become ‘permanent’. They adapt, evolve and transform. This contribution argues that this process of change is driven by interaction among institutions and actors, which is the default technology of post-national rule-making. How to start thinking about such interaction? What is the added value of focusing on the process of interaction and not on the allegedly static characteristics of actors themselves? How can this approach provide a different normative and critical framework to think about debates on global governance? In answering these questions, this chapter will explore the interaction between international institutions in order to develop the central tenets of a methodology to think about institutional change in post-national rule-making.
KeywordsChangeGlobal governanceTemporarinessInternational lawGlobal regulatory space
El amor es eterno mientras dura.
Luis Cardoza y Aragón.
An important role of international law is to provide long-term stability and legal certainty. This function presumes that international law-making creates discrete norms and institutions that remain static until they are changed (or replaced) by other discrete institutions. This paper adopts a different point of departure to think about ‘temporariness’. It suggests a dynamic view of norm creation and institutional change in global governance. Neither norms nor institutions remain static once they become ‘permanent’. They adapt, evolve and transform. This chapter argues that the idea of temporariness implies a certain theory of change, and that this process of change is, in turn, driven by interaction among institutions and actors. Such interaction, the chapter argues is the default technology of post-national rule making.
While some efforts have been made to explain the role of interaction in the creation of the normative value of international law,1 much of the literature trying to re-think the overall legal architecture of global governance seems to be oblivious of the important role of inter-institutional interaction in legal change. This article is an effort to start thinking about change in such terms. What is the added value of focusing on the process of interaction and not on the allegedly static characteristics of norms and institutions? How can this approach provide a different normative and critical framework to think about debates on global governance?
To address these questions, the text proceeds as follows. The ability to distinguish between permanent and provisional is crucial to thinking about international law. This ability is based on a particular view of change, which is explored in Sect. 2.2. Section 2.3 contains the central contribution of the article, and explores the dynamics of change in a global regulatory space. Then, Sect. 2.4 explores some of the challenges that this reading of change faces. Finally, Sect. 2.5 concludes.
2.2 International Law in a Constant Present
As hinted at above, temporariness and permanence are crucial elements of the vocabulary of international law. Some international norms are expressly temporal in their design; for example, most international courts have the prima facie jurisdiction to order provisional measures that, most evidently, are intended to be applicable for a limited span of time.2 On the other side of the spectrum, there are institutions intended to be permanent: international organizations are a good example. States create organizations to stabilise a particular bargain of interests, thus creating a centralized and independent structure that enhances state interaction and the effectiveness of operational activities.3 These advantages are gained if the organization is permanent (or at least if it is expected to be permanent). To be sure, institutions do change and are dynamic; however, the expectation of their permanence is crucial—otherwise, if the bargain is perceived as temporal, the organization will suffer in its ability to centralise activities, hence affecting its independence and, ultimately, its potential influence.
The ability to make the distinction between ‘permanent’ and ‘provisional’ in international law is based on a particular view of change. The idea of ‘permanence’ implies a negation of change—or at least its pause for a considerable amount of time. Temporariness, on the other hand, suggests the potential of change—‘this is temporal’ means this is ‘subject to change’. Permanent, in contrast, means, closed for change.
To be sure, the idea of permanence as ‘closed to change’ does not imply total immutability. It is clear that permanence requires certain adjustment and adaptation: the field of organizational ecology as applied to international organizations has developed key insights on the role of marginal adaptation for resilience.4 And, in a more trivial sense, institutions are actually changing all the time: staffs come and go, budgets rise and diminish, and headquarters open and close. The measure, then, is one of degree: while some change is always present, permanence seems to imply the absence of core change. In the extreme, defining as ‘permanent’ an international institution whose constituent document, institutional structure, and actual name changes every day is non-sensical.
But this begs the question: when does change stop being marginal? This question points to the central challenge. Despite its importance, the underlying concept of change in international law is hopelessly under-theorized. The first challenge is, then, where to start looking for the deep grammar that makes the idea of temporariness intelligible in international law. For that purpose, it is useful to build on a distinct trend in legal scholarship exploring the idea that an underlying consciousness can be read between the lines of discrete legal rules. Such is the notion of langue, as taken by Duncan Kennedy from Saussarian semiotics.5 Kennedy argues that specific legal rules in a given moment are not discrete occurrences, but are rather connected by an underlying link. The key concept here is the difference between parole and langue: parole is the specific utterance, which may be understood as ‘sound bites’, while langue is the set of resources available at any particular moment to compose such utterances. In a subsequent text, Kennedy refers to langue as the legal consciousness of a given time, as a ‘vocabulary of concepts and typical arguments’6 that underlie the ‘specific, positively enacted rules of the various countries’.7
The purpose here is not to discuss in depth the structuralist insight that meaning is produced by the relations among linguistic terms themselves (and not by an underlying connection to factual history, which lies at the heart of the langue/parole distinction).8 Instead, this mindset is useful here as it opens another level of engagement with the question of temporariness in international law. While Kennedy’s description of succeeding legal consciousness proposes neither an idea of the concept of change within each moment, nor an idea of the process of change from one moment to the next, the notion of legal consciousness allows us to start looking for the deep grammar that defines the frontier of possibilities in international law. The langue/parole distinction opens a space of inquiry where, this article argues, the notion of change lies. Such will be the space explored in what remains of this text.
The langue of international law features a particular view of change, according to which, ultimately, there is no change in international law. That is to say, international law approaches norms and institutions as though they had always been there. Once change occurs, it approaches new (or changed) norms and institutions as if those norms had always been there. The underlying idea is that international norms and institutions are discrete events that occur linearly over time, and can be thought not of as continuum, but rather as a collection of discrete points in time that have little interaction with what happened earlier, or later.
This is not to say the langue of international law is based upon the idea that all norms pre-exist their time of creation. On the contrary: the time before the moment of creation (legal enactment, entry into force, and so forth) seems irrelevant for international law. All that matters is what exists now: what came earlier and was changed in order to have what we have now either disappears, or exists as currently existing norms that are either in conflict, or are exceptions, or somehow complement the other parts of the currently existing legal landscape.
That is, though, not an accurate description. International law often has to make sense of change. When forced to do that, the answers remain mostly ad hoc, focused on thinking about the norm as, again, permanent for now. The issue of change emerges in some of the most traditional areas of international law. A succinct look at some paroles should give us a sense of international law’s underlying langue for change. Consider, for instance, the problem of treaty revision, particularly multilateral treaties. As is well known, the Vienna Convention on the Law of Treaties (VCLT) establishes subsidiary rules regulating the amendment of a treaty (Articles 39–41).9 The VCLT reflects international law’s standard approach to change: once an amendment is adopted, it has to be approved by all parties to the treaty. However, under Article 40(4) VCLT, the ‘amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement’. As a consequence, the revised treaty will coexist with the unrevised treaty, and will be applicable only to those parties that approved it. In contrast, the unrevised treaty remains in force among parties that did approve the revision.10 To be sure, this solution makes sense from the perspective of state sovereignty and the need for state consent. However, it also shows that the VCLT reflects a theory of non–change: it considers the new treaty as a norm that had always existed; and the old treaty as well. The issue is thus framed as a problem of treaty conflict,11 and not as an issue of temporality.
Sometimes, treaties change outside the standard process of revision. Here, again, international law features a theory of non-change. A clear example is the debate on subsequent practice as a tool of treaty interpretation. Under Article 31(3)(b) VCLT, interpretation of a treaty can refer to ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. This clause was used by the International Court of Justice (ICJ) in Namibia, to explain that the meaning of the term ‘concurring vote’ included in Article 27(3) UN Charter had changed. The ICJ understood that abstentions in the context of the UN’s Security Council should not be regarded as the absence of a concurring vote. Therefore, the abstention of a veto member amounted, in practice, to a concurrent vote.12 In the Court’s words:
The proceedings of the Security Council extending over a long period supply abundant evidence that presidential rulings and the positions taken by members of the Council, in particular its permanent members, have consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of resolutions. By abstaining, a member does not signify its objection to the approval of what is being proposed; in order to prevent the adoption of a resolution requiring unanimity of the permanent members, a permanent member has only to cast a negative vote.13
To be sure, this interpretation implies an important change of the applicable norm. Beyond the discussion of whether the words are capable of sustaining the Court’s interpretation,14 the relevant point for our purposes here is that, according to the Court’s own narrative, this change did not occur at a given moment in time. It was, rather, incremental: some state practice would not have sufficed, but the accumulation of state practice (the ‘proceedings of the Security Council extending over a long period’) triggered this change. However, the Court fails to explain how that changed occurred, or when the scale was tipped. Instead, the ICJ thinks of the new rule (‘abstention is not non-concurrence’) as if it had existed always. Once again, there is no idea of change here: there is the identification of a norm, without a temporal dimension.
One last illustration can be found in customary international law. One interesting challenge in the construction of custom is the possibility of a subsequent objector; that is, a state that objects the formation of a customary rule after the rule has been established. This possibility, however, is closed. While the idea of a persistent objector is accepted on the basis of the required state consent,15 the possibility of a state opting-out of an established customary rule is generally rejected.16 For the International Law Association,
[t]here is fairly widespread agreement that, even if there is a persistent objector rule in international law, it applies only when the customary rule is in the process of emerging. It does not, therefore, benefit States which came into existence only after the rule matured, or which became involved in the activity in question only at a later stage … In other words, there is no ‘subsequent objector’ rule.17
The problem appears when a state decides to opt-out of an established rule (say, Norway opting out of the rule that establishes a 10 nautical miles closing line for bays) and slowly succeeds in gaining the acquiescence of others state—which was the approach actually taken by the ICJ in the Anglo–Norwegian Fisheries Case. Two possibilities appear at that point: first, states acquiesce to the sole objector’s opt-out of the norm (and hence we have a persistent objector); or, second, the other states join the objector, triggering new practice that points to the emergence of a new customary rule. In the latter case, are we facing a breach, or a new norm? International law has no vocabulary to tackle with that moment in the middle. Either it reads it as a breach, hence assuming that the old customary rule is permanent; or it reads it as a new customary norm, that will coexist with the old one, thus triggering a network of legal relations similar to the case of treaty revision discussed earlier. Once again, the point here is not that the new rule is preferable to the old rule,18 or that the possibility of a ‘subsequent objector’ is a threat for the international rule of law.19 The point is rather that the vocabulary of international law fails to recognize the process of incremental change. It takes two discrete moments of the process, and frames each as permanent. If conflicts arise, they are conflicts of norms, and not moments in a continuum.
It is possible to think differently of international law in terms of dynamic change. This article is an effort in that direction. The problem, though, is that the current international legal consciousness seems to build on the idea of the constant present. As can be seen in the above examples, the problem is not that the langue of international law lacks a theory of change. Many disciplines are struggling with the same challenge; in international relations, for example, realists believe that the only relevant source of change is the relative capability of states, while liberals and constructivists point to other sources of change, such as knowledge and culture, among others.20 So, the problem is not an absence of a theory of change. The problem is that international law does have a specific theory of change that, like is often the case with the deep grammar of law, remains unspoken. According to this theory, change is the sudden and complete replacement of the old by the new, which in turn implies the complete disappearance of the old. As a result of change, then, all looks as if nothing had ever changed: the norms and institutions that we have now look permanent, and completely unconnected to what came before them. Ultimately, international law’s theory of change is one of a constant present.
This narrative has at least three distinct consequences. First, international law accommodates change by acknowledging new normative utterances as permanent. There is, in this sense, an important political dimension to this constant present: if change is the complete replacement of the old by the new, then it becomes relevant to explore who decides on the replacement. That is, there is very little guidance in the norms that are being replaced, or in the ones that replace them, on how or why the process of replacement should occur. International legal change becomes, then, a conceptual problem similar with a structure parallel to the right/exception dichotomy in human rights, which has been discussed widely by critical scholars.21 Just as there is no inherent normative guidelines to decide when an exception should apply instead of the rule (making the issue political, by definition), so does the complete replacement of a norm by a ‘posterior’ norm implies a political question that needs to be considered.
Second, the narrative of constant present makes it difficult to normatively engage with change in international law. In a constant present, it is hard to question the pathways that brought the current status quo, and ask: what were the forces that triggered these changes? Is it normatively desirable that, for example, power or economic pressure trigger the changes that create the current international system? What kind of standards can we use to judge whether a change is good or bad, fair or unfair? These kinds of questions are occluded by international law’s theory of change, which forces us to remain on a descriptive mode. To be clear, the constant present does not imply that the langue of international law builds on the notion of pre-existing norms or institutions. Rather, it posits that norms are discrete utterances that occur in a given moment in time (a basic positivist tenet) and, at the same time, it treats such utterances as outside time once (unless otherwise explicitly provided). They become part of the constant present, until they disappear. Such is the paradox that occludes the questions posed above.
The third effect of this constant present is that it obscures the complex colonial heritage of international law. A now robust body of scholarship has shown that international law that we have today is part of the complex institutional and ideological offspring of the colonial encounter.22 Thinking in terms of a constant present obscures the relevance of this heritage, and neutralises the critical power of shedding lights on such lineage.
2.3 Change and Temporariness
As a result of this theory of (non-)change, it is quite difficult to grasp the dynamics of temporariness in international law. In an awkward turn, what is temporal is also part of the constant present. Provisional norms and institutions are, by definition, temporal, but they exist today as if they were permanent. It is as if we were taking photos of a column of smoke, one each hour, for three hours. When we look at the photos, the smoke exists in each photo as permanent—even though it is, by definition, temporal.
Thinking about temporariness requires, then, to think differently about change in international law. To do that, a useful starting point is to underscore that, in the long term, everything (a norm, an institution, a building or a state) is always provisional. Nothing is truly permanent—all decays and ultimately disappears. This is, of course, obvious. However, when we think of temporality in international law, we are not thinking in those terms. The point of reference is not time as such: short term or long term thinking is, in this context, irrelevant. Rather, the notion of permanence in international law seems to be relational: international norms and institutions are ‘permanent’ or ‘provisional’ in comparison to other international norms and institutions.
This relational quality means that temporariness in international law is neither objective, nor completely subjective. On the one hand, it does not refer to an objective standard that differentiates permanent from provisional. While international instruments do refer constantly to an institution being ‘permanent’ or ‘provisional’, these statements seem to provide very little insight as to the temporal dynamics of international law. For example, one would be mistaken to write off the Provisional Protocol for the Application of the General Agreement on Trade and Tariffs (GATT) as ‘provisional’, thus failing to recognize the temporal implications of it giving legal stability to almost fifty years of trade negotiations.23 However, temporariness is not just in eye of the beholder; it is not wholly based on perception. While it does seem reasonable for individuals to think of temporariness as perception-based (‘The Beatles have been here forever’—‘no, they have not’), this subjective character is less straightforward in the case of international law. It would make little sense to think, for instance, of the International Criminal Tribunal for the Former Yugoslavia (ICTY) as ‘permanent’ in the same sense as the International Criminal Court (ICC) is ‘permanent’. Even if the ICTY can be perceived by one person as ‘permanent’ (it is surely perceived as ‘permanent’ by Milomir Stakić, who was sentenced to forty years in prison),24 it is still ‘provisional’ from the perspective of the vocabulary of international law. From this latter perspective, comparison (and not perception, nor ‘facts’) is the key to think about temporariness. We will refer to this idea as the comparative concept of temporariness.
The comparative concept of temporariness means that norms and institutions are provisional relative to other norms and institutions. In this context, it starts making sense to speak of the ICJ’s provisional measures as ‘temporary’, because they are so in comparison to, say, the decision on merits. If we take this line of reasoning one step further, we find that all institutions are provisional. Indeed, if it is true that temporariness is relative, then it becomes a relevant question to ask whether there are any truly permanent norms or institutions. The comparative concept of temporariness suggests there are none: there will always be other institutions or norms that can be read as more permanent, thus making all institutions provisional. This, I suggest, is not only a way of giving content to the concept of temporariness in international law, but also the point of entry for an alternative theory of change.
2.3.1 Change and Temporariness in a Global Regulatory Space
A central advantage of the comparative concept of temporariness is that it makes us think of international norms and institutions in reference to other norms and institutions. This is particularly valuable, because it leads us to think of norms, not as discrete utterances, but rather as part of a wider landscape in which the temporal and the permanent help define each other. What is the shape of this wider landscape? After more than a decade of debates about fragmentation25 and regime-collision in international law,26 it seems clear that the structure of the international legal system is one of overlapping normativity. Scholarship that recognises such proliferation seem focused, though, on considering them as discrete actors that compete, cooperate or dominate each other—a dynamic that has been observed in international relations,27 transnational business governance,28 environmental governance,29 and domestic regulation.30 Even critical work that underscores the importance of hegemony still depicts each regime as a self-standing unit eager to dominate other self-standing regimes.31
However, these norms and institutions do not appear in a vacuum; they are not discrete utterances of law. Quite on the contrary, they are expressions, and form part, of a changing global regulatory space, in which they interact. This approach, I suggest, provides the basis for a different conceptualisation of change in international law, which will in turn help us think differently about temporariness in international law.
Perhaps the best way to think about it is by clarifying the image of a global regulatory space. The notion of a ‘regulatory space’ was suggested as a reaction to the narrow reading of the (domestic) regulatory process in terms of a conflict between public authority and private interests.32 Against this view, the regulatory process within the nation state can be better understood as a ‘space’, where it becomes possible to explore the ‘complex and shifting relationships between and within organizations at the heart of economic regulation.’33 The key is ‘to understand the nature of this shared space: the rules of admission, the relations between occupants, and the variations introduced by differences in markets and issue arenas.’34 These dynamics can be observed in global governance. Global interactions can be seen as part of an emergent ‘global administrative space’, which has been defined as ‘a space, distinct from the space of inter-state relations governed by international law and the domestic regulatory space governed by domestic administrative law, although encompassing elements of each.’35