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?

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.

This chapter explores the footprint that temporary international legal regimes can leave on international law. Drawing on four different theories of state behaviour, it considers how temporary regimes can shape future permanent regimes. Under a rational design approach, temporary legal regimes influence future permanent regimes largely because they provide valuable experiences from which state actors learn. Under other theories of behaviour—historical institutionalism, constructivism, and behavioural international law—temporary legal regimes can have even more influence on permanent ones. Although these other three theories have important differences, all suggest that temporary regimes strongly shape the real and perceived possibilities for future permanent design choices. This chapter then looks at how these different theoretical approaches play out in case studies in refugee law, international criminal law, and international environmental law. While these case studies do not solely support any one theoretical account, collectively they demonstrate that temporary regimes can have outsized influence on permanent ones. This in turn has important implications for negotiators involved in regime design.

The rule of law has emerged both on the domestic and international levels as a promise of longstanding democracy, economic development and peace. On both levels, the rule of law is often associated with the longstanding character of institutions and the predictability of rules, meaning that ‘citizens are entitled to laws that are neither murky nor uncertain’. However, does this always mean in practice that the rule of law can only be concretized by laws and legal institutions that last forever? More specifically in the international context, can we guarantee the consolidation of the international rule of law through the coexistence of both permanent and temporary institutions and instruments? In this chapter, I analyse the meaning of the rule of law at the domestic and international levels and discuss its complex relationship with time. I argue that the past, present and future of the rule of law can be, in some cases, united by the use of temporary institutions such as international criminal tribunals or truth commissions, rules and measures. Temporariness can be essential to react swiftly to humanitarian crises, provide transitory justice, gradually concretize the rule of law in fragile democracies, and adapt legal orders to evolving economic and political circumstances.

What is the relation between law and time? How do international lawyers conceive law in time? This chapter aims to answer the question of how international law is situated in time in a paradigmatic fashion. Looking at social time—the common perception of time in society as opposed to individual or astronomical time—the law is an institution defining time but also relying on a temporal conception. The chapter establishes three basic paradigms of how international law has been situated temporally: the paradigm of atemporality, depicting law as eternal and unchangeable; the paradigm of temporality, defining law as ascertainable but changeable; and the paradigm of fluxus, defining the law as necessarily changing, unsteady and moving. The chapter shows how the understanding of international lawyers shifted from the paradigm of atemporality to the paradigm of temporality. It reviews the treatises of international legal scholars and the notion of peace in peace treaties from the 17th to the 20th century. The chapter then goes on to discuss whether there has been a second paradigm shift from the paradigm of atemporality to the paradigm of fluxus. For this purpose three cases are explored: the evolutive interpretation of the notion of security, the changing customary law on state immunities and the principle of sustainable development. The chapter concludes with the outlook of transcending the paradigmatic approach with a cubistic look at the relationship between law and time.

When interpreted, sometimes treaties have to go through a trial by fire and are found either to be ‘living instruments’ evolving alongside the relevant changes both in law and in facts or to have a ‘fixed’ meaning. The aim of the present article is to examine how intertemporal considerations find their way into the interpretative process and what the effects are on the treaties being interpreted. Do these changes in law and fact actually change the treaty itself, or do they merely trigger a latent quality already existing in the treaty itself? Does time change the treaty, or does it merely ‘unfold’ it? This question will be examined through the lens of the main philosophical theories on identity, persistence, time and change (endurantism, perdurantism and exdurantism), and by focusing on the ‘direct’ (principle of contemporaneity and evolutive interpretation) and ‘indirect’ (Article 31(3)(c) and the intertemporal application of the rules of interpretation) points of entry of intertemporal considerations in the interpretative process. Through this examination the elements that weigh upon the judicial interpretative process and tip the scales either in favour of an evolutive interpretation or in favour of the principle of contemporaneity, will be identified, as well as the limits of any such interpretation. In this manner, an answer will be arrived at as to whether, from an interpretative perspective, treaties endure, perdure or exdure.

The permanent legal framework governing international organisations vests organisations with a substantial degree of autonomy in determining their own liability with respect to private law claims. This level of autonomy is particularly pronounced in the case of the United Nations. Since 1946, the United Nations has enjoyed a standard of absolute immunity from the jurisdiction of domestic courts in order to protect the organisation’s proper functioning. Thus, when individuals have private law claims against the organisation, the UN is obliged to settle claims privately, and individuals have no further recourse to courts. This regime creates a startling accountability gap, most recently highlighted by the UN’s handling of 5000 private law claims which emerged in response to the allegedly negligent importation of cholera into Haiti by UN peacekeepers. To date, the UN has refused to settle these claims amicably. The UN’s jurisdictional immunity now operates as a critical barrier to redress for the cholera claimants. This remedial deficit represents a structural gap which is indefensible in light of a shifting paradigm in international law, which increasingly favours human rights and respect for the rule of law over the autonomy of international organisations. This article examines both permanent and temporary solutions to closing this accountability gap, which could potentially alleviate the intractable position faced by the cholera claimants and similar victims in the future.

Leading human rights treaties permit states as a temporary measure to suspend a variety of human rights guarantees during national crises. This chapter argues that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their own interests in a manner that compromises human rights protection. Human rights treaties use broad legal standards to entrust states with responsibility for deciding what measures are best calculated to maximise human right protection during emergencies. For this delegation of authority to operate effectively, international tribunals must accord a healthy measure of deference to state derogations. Deference to state derogations is not warranted, however, if circumstances suggest that national authorities are not prepared to serve as impartial, rights-optimising trustees for their people.

As a subject of international law, the refugee is inherently temporary: refugee status exists in order to fill the gap caused by a breakdown of the normal bond between citizen and state with ‘international protection’, until this bond can be restored, either with the original state of nationality, or with another state. While this ambition is clear, the practice of refugee protection under the current, post-1951 regime has exposed the serious problem international refugee law (IRL) faces with regard to the tail-end of protection, also known as ‘durable solutions’. This chapter studies the most prominent attempt made by UNHCR and states within the refugee regime at re-invigorating the temporary character of international protection—namely the mechanism known as ‘temporary protection’. While the concept can be traced to formulations of ‘temporary refuge’ in the 1980s, temporary protection (TP) truly emerged as a term of art in the 1990s, as Western Europe was faced with a large-scale influx of forced migrants from the former Yugoslavia. In 2001, TP was the subject of an EU directive, which partly clarified the relationship of TP to mainstream IRL—notably whether TP should be seen as a substitute for, or a prelude to, the operation of the 1951 Refugee Convention. Ambiguity has remained the hallmark of the TP concept, however, not least in UNHCR’s attempts at formalising a TP regime outside the European ambit. After examining the main features of these attempts, the chapter concludes that, while the EU directive should be taken seriously, a continuing doctrine of temporary protection outside established IRL is both legally unsound and politically unconvincing.

The evolving nature of the climate change problem makes it challenging to govern it through a single set of rules fixed in time. Scientific insights into the causes and impacts of climate change are subject to constant changes. Further, the socio-economic and political conditions prevailing in different countries continue to alter over time. This chapter first assesses how the primary international legal response, the regime established by the United Nations Framework Convention on Climate Change, has sought to cope with these temporal challenges, and suggests that while various flexibility mechanisms are in place, the climate regime often finds it hard to adapt to changing conditions. In a second step, the chapter examines an alternative in the form of proposals that aim to make international climate change law more adaptive through a pluralist approach. The chapter critically reviews these proposals, and suggests that while the rigidities of the existing climate regime certainly need to be addressed, considerations of predictability and stability should not be sacrificed at the altar of flexibility. To conclude, therefore, the chapter explores the options for enhancing flexibility within the current architecture for international climate change law.

Temporary commissions of inquiry have become more prominent over the past decade, with their establishment particularly noticeable in the context of the Arab Spring. Along with their increased prominence they have also displayed certain features of an adjudicative nature. Although primarily established as fact-finding bodies, their mandates now regularly include making assessments as to potential violations by particular entities of international human rights law and international humanitarian law. This chapter examines the impact that commissions of inquiry as temporary creations have had upon international law and, more specifically, upon international legal adjudication, in particular the traditional formality of international legal adjudication, the principle prohibiting intervention in the internal affairs of states, and procedural fairness. While the temporariness of commissions of inquiry is in many ways unproblematic, this chapter identifies certain problems and examines the possibilities for the establishment of a permanent commission as a means to rectify some of the issues associated with their current temporary nature.

Temporary laws or measures arise in different circumstances to deal with a wide array of perceived problems or concerns. This essay deals with one specific kind of temporary measures, which are provided for in international human rights treaties: ‘preferential treatments’ or ‘positive measures’, as they are called. The essay examines whether these measures undermine the predictability and stability of the norm of equality on which behalf they are said to have been adopted. The essay argues that these measures will be inconsistent with and destablise equality only if equality is understood narrowly as a principle that only requires sameness of treatment rather than the more substantive notion of equality (equality of opportunity) that this essay endorses and advances.

Since 1945, international criminal justice has been one continuous construction site, an expression of the attitude of international stakeholders and policymakers that favours temporary solutions to contemporary problems. Even with the creation of the ICC that has not really changed. This chapter will set out a few fundamental and rather radical ideas that aim at initiating a thorough rethinking of the way criminal proceedings at the international level are regulated and run today. It sees itself very much as a call for a principled re-evaluation and for a move away from the attempts of the last two decades of arriving at a genuine amalgam of diverse systems by the method of judicial trial and error. The existing model(s) is/are an exemplary expression of the temporariness of international law, because it/they proceed(s) from a refusal by international law-makers to engage in drafting a permanent model that retains fairness standards while striving for maximum efficiency and that is meant to be applied across the board to any (new) tribunal—an approach that would lead to much greater certainty of law than is currently the case because of an increase in cross-institutional comparability. The chapter contends that while both adversarial and judge-led systems in their own national settings can achieve comparable levels of fairness, they differ in efficiency and that a judge-led model is better suited for the international arena and should be made the foundation for any future permanent procedural framework. However, the temporary nature of the present system which mainly uses adversarial models is based to a large extent on an unprincipled reliance on supposedly ‘ready-made’ and ‘tried and tested’ solutions from as well as the experience of staff employed at previous tribunals. The use of the adversarial model is thus not based on a principled evaluation of its usefulness and effectiveness in the international context but on a default attitude of the lawyers creating and populating international tribunals, and possibly the diplomatic community in the wider sense.

On 18 September 2013, a team of Greenpeace activists attempted to board the Prirazlomnaya oil platform, situated within the Russian exclusive economic zone, intending to disrupt drilling activities and raise awareness of Arctic environmental issues. This action resulted in the subsequent arrest of 30 individuals associated with the protest, as well as that of the Arctic Sunrise, a Greenpeace support vessel sailing under the Dutch flag. The plight of the so-called ‘Arctic 30’ dominated global headlines until their release under a general amnesty by Russia in December 2013. Meanwhile, the arrest of the vessel prompted the commencement of arbitral proceedings by the Netherlands against Russia, a process that had yet to be concluded at the time of writing. In November 2013, however, the International Tribunal for the Law of the Sea upheld a Dutch petition for provisional measures, including the release of the vessel and its crew subject to the payment of a bond. In so doing, the Tribunal faced the issue of non-participation by a respondent state for the first time, while also developing arguably a ‘back-door’ position on prompt release. In the meantime, aspects of the legality of environmental activism at sea remain somewhat uncertain which, given that a considerable number of protest vessels are registered to the Netherlands, may engage the litigative attention of the Dutch authorities in future incidents.