Temporary International Legal Regimes as Frames for Permanent Ones
Theory
How temporary regimes influence future ones
Implications for negotiators of initial regimes
Rational design
States learn from their experiences with temporary regimes
Be aware that temporary regimes’ successes or failures will be factors for consideration in future negotiations
Historical institutionalism
Temporary regimes trigger path dependency and build constituencies in favor of their permanence
Note that the very existence of temporary regimes furthers the likelihood of future permanent ones
Make design choices with the awareness that they are likely to be fairly sticky for the long term, especially if permanent regimes can be established by the same processes used for temporary ones
Constructivism
Temporary regimes further the spread of the norms that they reflect and therefore increase support for permanent regimes
Expect that by helping the norms they stand for to spread, temporary regimes may make it easier in the future to create permanent and robust regimes
Anticipate that models can play an important role in spreading norms
Behavioural international law
States and other relevant actors use temporary regimes as reference points and can have status quo biases in favor of their features and continuation
Consider that initial temporariness may enable unusually deep commitments and delegations, as states may overvalue apparent exit
Make design choices with the awareness that they are likely to be quite sticky for the long term, even if these initial regimes are only models
If a rational design approach accurately predicts state behaviour, then the focus for negotiating an initial temporary regime should simply be on getting a good temporary regime. This is because temporary regimes may not be as sticky under a rational design approach as they are under the other theories of state behaviour considered here. Just as states can find reasons to make temporary regimes permanent under a rational design approach (such as learning that they work and deciding to make them lasting) so they could also find reasons to alter or abandon these temporary regimes (such as from learning that these temporary regimes do not work too well). If there are permanent solutions that are better for all the state parties, then these will be implemented. Even permanent solutions that are better for only some of the parties can be obtained, if the restructuring process does not require the consent of all state parties or if side-deals are an option. And if permanent solutions are not obtainable under these conditions, then the temporary regime will simply expire without replacement. In other words, a rational design approach suggests that states can iron out mistakes or adjust to new conditions in ways that are not overly influenced by the structure of the temporary regime.
If any of the other three approaches more accurately predicts state behaviour, however, then temporary regimes will have a greater effect on the existence and shape of permanent ones. The choices made in temporary regimes are especially likely to be entrenched, and negotiators can sometimes use the very fact of initial temporariness to promote choices they perceive as desirable. Although this general point holds across all three approaches, they give rise to different conclusions as to (1) how strongly the temporary regime influences the existence and scope of the permanent one; (2) how this effect manifests itself; and (3) the extent of the effect in situations where the temporary regime is a model or is established without the full panoply of procedures that the permanent regime would require.
Under a historical institutionalist perspective, one would expect the design choices made for temporary regimes to have outsized influence in some but not all contexts. The effect will be strongest where the temporary regimes have the same reach as the proposed permanent regimes and were created through the same procedural mechanisms. Under these conditions, the constituencies developed by the temporary regime increase the likelihood that a permanent regime will be established, and the increased costs that come with making changes raise the likelihood that the permanent regime will closely track the temporary one. Negotiators should thus expect that their initial design choices will be sticky, whether these choices are good or bad. The effect is likely to be much weaker, however, where the temporary regime is simply a model rather than broadly applicable, or where it is set up through easier procedures. In these instances, some renegotiation is inevitable—particularly if a new international regime will be set up—and different actors and constituencies will be involved. These factors invite reconsideration of initial design choices and thus reduce the likelihood of path dependent actions.
Under a constructivist approach, the power of the temporary regime is largely in strengthening the norms of governmental and other actors in favour of the objective of the regime. If this approach is accurate, negotiators might place greater emphasis on simply creating the temporary regime, with the expectation that the regime will cause actors’ commitments to deepen and perhaps to cascade. Once commitment has deepened, negotiators could seek both to create a permanent regime and to strengthen this regime in comparison to the temporary one. A constructivist approach thus might worry less than a historical institutional approach about specific design features of the temporary regime, due to the expectation that the regime could be improved following broader acceptance of the norm. Also in contrast to a historical institutionalist approach, a constructivist approach would suggest that temporary regimes could have a strong effect on shaping permanent ones even if these temporary regimes are simply models or were established through easier procedures. This is because norms can be shaped by models and from regimes established through stopgap procedures.
Finally, a behavioural international law approach would suggest that temporary regimes are always sticky, with the magnitude varying based on the extent to which these regimes serve as defaults or reference points. As with a historical institutionalist approach, a behavioural approach suggests that temporary regimes will prove influential in shaping permanent regimes when they have the same reach and are created through the same procedural mechanisms. Indeed, a behavioural approach would predict an even stronger influence than a historical institutional approach, because of potential cognitive biases in favour of the status quo and the use of the temporary regime as a reference point. Similar to a constructivist approach, a behavioural approach would predict that temporary regimes will influence the creation of permanent ones even where these temporary regimes are only models or were subject to lessened procedural barriers. Models do not represent the status quo with regard to states not subject to the models, but they can still serve as reference points. Finally, a behavioural approach would predict that the specific design features of the temporary regime would serve as important templates for the permanent regime. In sum, a behaviouralist approach predicts a particularly powerful influence of the temporary regime on the permanent one. Based on this approach, negotiators of initial regimes should be constantly aware that their choices are likely to have effects that outlast the temporary regime, whether for good or for ill. Negotiators could also try to strategically harness behavioural biases. For example, those interested in strong, permanent institutions—especially ones where significant power is delegated to civil servants—could seek to establish models or other temporary regimes subject to lessened procedural hurdles in order to establish reference points for future regime-building.
The different theories of state behaviour thus hold different implications for the negotiators of temporary regimes. These theories may also have significance for negotiators deciding whether and how to make a permanent regime given the existence of a temporary one. From rational design and historical institutionalist approaches, the effects of the temporary regime are primarily just existing factors to work with, but constructivist and behavioural international law approaches suggest that the rhetorical use of these temporary regimes may matter. Negotiators who value the temporary regime and wish to make it permanent should emphasise the norm created by the regime and strive to describe the regime as embodying the status quo and setting the reference point. By contrast, negotiators who think that the temporary regime has problems should strive to minimise the framing effects caused by it. One way would be to emphasise different frames, such as competing models or templates.29
3.4 Case Studies
Which of the four approaches given above most accurately describes why and how temporary regimes can become permanent regimes? As just discussed, the answer could hold important implications for how negotiators should approach the design of temporary regimes. Unfortunately, this is a hard question to answer. Under all four theories temporary regimes can be made into permanent ones; and, comparably, under all four theories temporary regimes can be abandoned or, if made permanent, substantially modified. The difference between these theories is primarily one of the locus and degree of stickiness. Moreover, it is possible and in fact likely that aspects of several or even all of these theories are at work, perhaps to different extents in different contexts.
This section does not pretend to offer a final answer, but, through the exploration of case studies, it seeks to tease out some initial insights. I look here at three initially temporary regimes and their permanent implications in three areas of law: refugee law, international criminal law, and climate change. Collectively, they suggest that temporary regimes do indeed leave a strong footprint on future permanent ones, for reasons that go well beyond learning.
3.4.1 Refugee Law
In the wake of World War II, a refugee crisis swept Europe and other parts of the world. In December 1950, the General Assembly (GA) passed a resolution and an accompanying statute creating the Office of the UN High Commissioner for Refugees (UNHCR).30 These contained both temporary and permanent elements: on the one hand, the High Commissioner was given competence over all refugees regardless of when they became refugees, but on the other hand the Statute contained a presumption that the Office of the High Commissioner would have only a three-year lifespan.31 The High Commissioner was entrusted with responsibility for ‘providing international protection, under the auspices of the United Nations, to refugees who fall within the scope’ of the Statute, and states were called upon to cooperate with the High Commissioner.32 Then, in the summer of 1951, delegates from 26 mostly western countries gathered in Geneva to finalise a new Refugee Convention. This Convention contained substantial state obligations towards refugees, including the principle of non–refoulement, and also committed them to ‘undertake to cooperate’ with the UNHCR.33
The UNHCR Statute and the Refugee Convention quite consciously created a temporary, crisis-specific regime. The Statute established the position of the High Commissioner on a temporary basis and did so using a less rigorous process (a vote of state parties in the UN) than a formal treaty would require. The Refugee Convention then cemented the powers of the High Commissioner and states’ obligations towards refugees, but it did so only as a temporary regime. For the Refugee Convention applied not to all refugees, but only to persons who became refugees prior to January 1, 1951—and states had the further option of limiting their obligations to encompass only refugees within Europe.34 This temporal limit was critical to the negotiations, as some states were willing to accept the substantial commitments of the Convention only with respect to the refugee crisis at hand. While certain negotiators were hopeful that this would shine the way to a broader approach to refugee issues,35 delegates from some states were deeply wary of any permanent regime.36
Yet, this once-temporary regime became the foundation for something permanent. The GA kept extending and re-extending the mandate of the UN High Commissioner,37 and, in 1965, a group of legal scholars assembled with the encouragement of UNHCR to consider how to resolve the tension between the temporal reach of the Convention and the realities of post-1951 refugees.38 This group decided not to seek ‘the preparation and adoption of a new Convention … [as] such a procedure would, in the opinion of the participants, be too lengthy and cumbersome to meet the need for urgency.’39 Instead, the group proposed a Protocol that simply removed the temporal and geographic limitations of the Refugee Convention, leaving its substantive and structural provisions virtually untouched.40 In promoting this approach to states, the High Commissioner
pointed out in [a] paper that such a Protocol, dealing with a most pressing need, i.e., that of removing the dateline, would not, from a long-term point of view, in any way prevent States from proceeding to a revision of the Convention.41
In 1967, the GA took note of the Protocol and made it available for accession, despite the concerns of some states that the GA and its relevant committees had engaged in very little discussion and review of the Protocol. The representative from the Philippines, for example, said that despite his vote favouring moving the Protocol forward within the GA process, ‘he would in future insist that the articles of important international instruments should be considered in detail.’42 Although states thus had little input into the content of the Protocol, they proved willing over time to accede to it. Today the Protocol has 146 parties.43
Given the initial reluctance of states to accept a permanent refugee regime, it is striking that they came to embrace a Protocol that made the Convention permanent—and did so without weakening either the Convention’s strong substantive provisions or the power it gave to the High Commissioner. It is possible to understand this shift by drawing on each of the four approaches to state behaviour discussed above, but these approaches differ in how well they can explain it.
The negotiation of the Protocol and its referral by the General Assembly for state accession seem least related to a rational design approach. Of course, there is a plausible reason why the Protocol would be desirable from a rational design perspective: states could have rationally found the Refugee Convention to work sufficiently well that they wanted to have the opportunity to make it applicable to all future refugees with no additional changes. But if the Protocol were the product of rational and purposeful state design, one would expect states to have played more of a role in its formation—especially given how important the removal of the temporal and geographic limits of the Convention was. Yet, states seemed largely passive participants, as they did not play a direct role in its drafting, and they discussed it only lightly in the GA.
The creation of the Protocol can broadly fit under a constructivist account. The Convention had strengthened the norm of protection for refugees, and now non-state actors sought to cement that norm by developing a permanent Protocol. Nonetheless, this approach does little to help understand why the creators of the Protocol did not seek further advances. By 1965, it was apparent that many displaced persons in critical need of help failed to meet the technical definition of refugee and could only receive help from UNHCR through the High Commissioner’s good offices.44 The drafters of the Protocol, however, deliberately chose simple extension over more elaborate revisions.
The development of the Protocol fits fairly well with both a historical institutionalist and a behavioural international law perspective. The impetus behind the Protocol came less from states than from the UNHCR and its supporters—and, as historical institutionalists would observe, this community’s very existence depended on the existing temporary regime. Moreover, as a behavioralist would note, what this community chose to propose was in essence an extension of the status quo. This choice seems to have stemmed from the concern that further reforms would have been ‘cumbersome’ to develop,45 perhaps because states would then have demanded a more active role in the Protocol’s creation and content. By contrast, states proved passive in a process aimed at continuing the legal standards and procedures that were already in place. Despite the importance of the issue of temporal and geographic limits, states proved comfortable with letting the Protocol go through the GA without much debate.
Whatever the precise mechanism, it seems clear that the current permanent refugee regime is due in large part to the temporary regime that preceded it. This has brought benefits to refugee law, not only substantively but also in terms of the power of UNHCR. Once states had delegated sizeable power to the High Commissioner in a temporary context, they became willing to make this approach permanent. In contrast, in instances where states have begun with permanent regimes, they have often proved more reluctant to cede enforcement power to independent actors. The permanent treaties in human rights law, for example, have not created any independent figure with comparable power—unlike the High Commissioner for Refugees, the authority of the High Commissioner for Human Rights comes only out of the General Assembly.46 On the other side of the coin, however, the permanent regime remains formally limited by the constraints set down in the original, temporary regime, most notably the fact that the definition of refugee does not apply to large numbers of displaced persons.47 In short, for all its temporary origins, the Refugee Convention has proved astonishingly durable in both its strengths and its limits.
3.4.2 International Criminal Law
International criminal law also originated through crisis-specific regimes. The ICTY and the ICTR, like the IMTs before them, dealt with particular events and were established through relatively swift procedures. Their scopes were designed in such a way that they would mainly impact countries with very little international clout—the states of the former Yugoslavia and Rwanda for the ad hoc tribunals, and the defeated countries of World War II for the IMTs. Their implementation did not require the domestic ratification or even the consent of many countries (including the countries whose citizens they were likely to try).48 These factors encouraged and enabled the states involved in their creation to entrust these institutions with a great deal of power, including providing the prosecutors with the authority to decide whom to investigate and prosecute.
The crisis-specific nature of the ICTY and ICTR, then, seemed essential to the robust powers with which they were vested. Yet, in 1998, states gathered at the Rome Conference and negotiated a full-fledged treaty for a permanent international court whose strength would be roughly comparable to the ad hoc tribunals. The Rome Statute is much longer than the ICTY and ICTR Statutes and differs from them in many particulars.49 But its existence and shape nonetheless owes much to the ad hoc tribunals. As the second ICTY Prosecutor, Richard Goldstone, put it bluntly: ‘Absolutely, without the ICTR and ICTY there would not have been an ICC. Had the tribunals not been established, or worse, had they been established and failed substantially, [the Rome Conference] would not have even been held.’50
Perhaps the most contested issue at the Rome Conference was the Prosecutor’s power to initiate investigations. The International Law Commission’s (ILC) draft statute had limited the Prosecutor to bringing cases following state party complaints or a Security Council Resolution, on the grounds that the international legal system was not ready to support an independent Prosecutor.51 As the preparatory work for the Rome Conference went on, however, actors began to urge giving the Prosecutor an independent power to open investigations and ‘[i]n particular it was argued that the Prosecutor of the two existing ad hoc Tribunals was granted ex officio powers and there was therefore no reason to deny the same power to the Prosecutor of the Court.’52 This approach ultimately prevailed at the Rome Conference. And while the most powerful and populous countries still remain outside the ICC, to date 122 nations have become parties to the Rome Statute.53
While the influence of the ad hoc tribunals is apparent, the reason or reasons for this influence is less obvious. Once again, each of the approaches to state behaviour discussed above would emphasise a different reason. A rational design perspective would focus on the learning that states gained from the experience of the ad hoc tribunals; a historical institutional perspective would note how the ad hoc tribunals created a community of supporters for the permanent court; a constructivist perspective would draw upon how the ad hoc tribunals increased the normative preferences of states in favour of international criminal justice; and a behavioural international law perspective would consider how the ad hoc tribunals may have served as a reference point, both for the principle of international criminal justice and for the specific structural choices made for the ICC, in a way whose influence reached well beyond an account based on rational instrumentality.