Imagining the Future: Conceptions of Risk and the Regulation of Uncertainty in International Law
Dr Mónika Ambrus, University of Groningen
Professor Rosemary Rayfuse, UNSW Australia and Lund University
Professor Wouter Werner, VU University Amsterdam
To be published with OUP
International law is a system of rules and principles that regulate behaviour between international actors in the present, but based on what is expected to happen in the future. Indeed, arguments about what the content of the law is, how it should be interpreted and applied, what it should be, and what role it should play in regulating human behaviour are essentially arguments about the future. More specifically, these arguments lay bare not only the many differing ‘expectations about progress and change and intuitions about the character of human life’, but also the differing notions of the role and function of the international community. Thus, while in part reactive, international law also acts as a system through which futures are imagined, either as hopeful and promising, or as dangerous worlds to come that should be controlled or prevented through action in the present. With the development of new technologies and rise of scientific knowledge, the future has become an even more important and influential topic in international law. Science and technology have made it possible to imagine different possible futures, be they in the form of promises, threats or of radical uncertainty.
As a result, international legal arrangements increasingly imagine future worlds, or create space for experts to articulate how the future can be conceptualized and managed. With the increased specialization of international law, a series of functional regimes and sub-regimes has emerged, each with their own imageries, vocabularies, expert-knowledge and rules to translate our hopes and fears for the future into action in the present. At issue in the development of these regimes are not just competing predictions of the future based on what we know about what has happened in the past and what we know is happening in the present. Rather, these regimes seek to deal with futures about which we know very little or nothing at all; futures that are inherently uncertain and even potentially catastrophic; futures for which we need to find ways to identify, conceptualise, manage and regulate threats the existence of which we can possibly only speculate about. In short, international law is increasingly becoming the preserve of HG Wells’ ‘professors of foresight’.
In light of this development, the central purpose of this book is to explore how the future is imagined, articulated and managed across various functional fields in international law. Of course a full analysis of these issues in any one functional field of international law would constitute a book in its own right. The purpose here is rather to integrate, into one coherent book, a number of contributions focusing on aspects of specific fields or sub-fields of international law which will provide readers with a basis for making comparisons between the values articulated and methodologies or practices developed in different international legal regimes for anticipating future regime stress and allocating preference for one imagined future over another.
To that end, the discussions presented in the contributions in this edited volume are organized around four specific questions put forward by the editors to the contributors for their consideration, as far as relevant to their particular field or sub-field of international law:
1. How is the future construed in a specific (sub)field of international law?
There are various ways in which the future can be imagined and thus construed. This imagination involves various topics such as the social construction of uncertainty, the definition of public values that are or might be endangered, the relation between expertise and lay-persons in the construction of uncertainty and danger, the production of consensus around uncertainty and danger, the limits of scientific constructions of risk and danger, qualitative and/or quantitative instruments of risk projection.
2. How are uncertain futures and (legal) subjectivity dealt with in a specific sub-field of international law?
Imagining the future also has an impact on the present and future subjects of international law. This question accordingly aims to discover the construction and management of future subjects of law through technology (e.g. in the bio-medical field), the construction of specific actors as risk (or simply dangerous) factors (e.g. in policies of targeted killing) and the reconfiguration of sovereignty through the regulation and management of uncertainty.
3. How are the costs of risk, risk regulation, risk assessment and risk management distributed in a specific sub-field of international law?
One of the ways in which modern societies have attempted to articulate and handle uncertainty is through ‘risk management’. However, traditional forms of risk management have increasingly come under strain, resulting in debates about the individualization or collectivization of risk, the relation between sovereignty and risk, the territorial dimensions of risk, risk regulation, risk assessment and risk management, and the management of clashing imperatives that follow from the use of the precautionary approach. This question focuses on the way in which international law has been involved in debates about the reconfiguration of risk.
4. How does a specific sub-field of international law deal with catastrophic or existential risk?
There are some forms of risk that have received or deserve specific attention, namely catastrophic and existential risk. This question seeks to examine how international law operates when it is related to the imagination and management of what is called ‘catastrophic risk’, for example, in the field of nuclear weapons, climate change and geo-engineering, or deep seabed mining. The question requires consideration of how expert knowledge about such unimaginable futures is mobilized and what expert knowledge is collected. It further requires an assessment of whether it is possible to articulate and counter catastrophic threats through international law.
 Yural Levin, ‘Imagining the Future’, The New Atlantis (Winter 2004)
 From Well’s BBC Radio Broadcast on ‘How the motor car serves as a warning to us all’, broadcast on 19 November 1932. See, http://www.bbc.co.uk/archive/hg_wells/12403.shtml