20 Jan Q&A: The Times and Temporalities of Human Rights
An interview with Kathryn McNeilly and Ben Warwick, editors of The Times and Temporalities of International Human Rights Law (Hart 2022). Questions by Natasa Mavronicola.
[Kathryn McNeilly is Professor of Law at Queen’s University Belfast School of Law. Natasa Mavronicola is Professor of Human Rights Law at Birmingham Law School. Dr Ben Warwick is a Reader in Human Rights Law at Birmingham Law School and a Co-Investigator on the Rights for Time Network+ grant.]
NM: I wanted to begin by congratulating you, and all the authors, for weaving together such a rich set of reflections on the way that time operates within, shapes, and is shaped by, international human rights law. My first question is: What made you turn to the study of law and time in your own research in international human rights law, and ultimately to this collection?
KM: Thank you very much, Natasa, for your reading of the collection and for being in conversation with us. When engaging with international human rights law I found that temporal ideas frequently arose, both explicitly and as implicit underpinnings. This was the case in scholarly work – discussion of indicators or action planning, urgent human rights concerns, or human rights futures, for example – but also in the operation of this area of law and its legal processes – think of cyclical monitoring, temporal procedures shaping the work and composition of human rights bodies, or temporal concepts embedded in treaty provisions. While a substantial body of research exists exploring domestic law from the perspective of time, less attention had been paid to the unique temporalities of the international legal level and, particularly, international human rights law. This is what stimulated the collection, which is designed to help think through this pervasive but under‑explored topic.
BW: I had many of the same impetuses to think about temporality in my research as Kathryn has described, especially in relation to monitoring and procedural aspects of the international system. I also have found temporality useful in exploring the direction, steps and missteps of the human rights system; a sort of framework through which to understand the idealism of the human rights dream as against the messiness of the human rights reality.
NM: Human rights actors (and others) often operate, implicitly or explicitly, on a notion of linear temporal progress in the understanding and concrete enjoyment of human rights standards – the idea that the arc of history ‘bends towards justice’, to borrow from Martin Luther King, Jr. This book provides a thorough, multifaceted challenge to such assumptions. Why is it important to disrupt, or even destabilise, these assumptions?
KM: The book does not seek to directly challenge understandings of linear progress within international human rights law per se. Rather, it aims to add to them. Progress is one strong temporal narrative within this area of law, but it is not the only one. Human rights lawyers and bodies frequently engage linearity, but other temporal frames can be detected in their work. These include, for instance, attention to retrogression or interruptions to linear progress at national or global levels which may take human rights obligations in different directions. The contributors in our collection reveal that there are many other temporal threads woven alongside progress. Some of these are recognisable and familiar, others may be less so. What emerges is a more complex understanding of the plurality of time in this area of law.
BW: I entirely agree that ideas of progress and human rights are inseparable ideas. On the ‘bending towards justice’ idea, though, one of the things that really strikes me from the contributions is the stark difference between simply observing history’s bend and the challenge faced by those that wish to more actively do the bending, or to force an arc with more curvature. If that is a human rights lawyer’s role (and that is a big ‘if’), it is a hugely challenging one and, I would argue, cannot be achieved without understanding temporalities. It is, in one set of terms, the job of regulating through time or, put differently, the incorporation of temporality as a variable in one’s lawyering.
NM: You have each been working extensively on themes of time and temporality in the practices, processes, outcomes and discourses of human rights law (eg, Ben, in your exciting Rights for Time project and your brilliant work on ‘unwinding retrogression’ in the practice of the Committee on Economic, Social and Cultural Rights; Kathryn, in your fantastic monograph Human Rights and Radical Social Transformation: Futurity, Alterity, Power and excellent article on the temporal ontology of the UPR). What do you feel you learnt in the process of building this collection?
KM: In the project we worked with an excellent group of contributors with specialisms across different subsections of international human rights law. One of the things that I learnt from this is that it is possible to be attentive to both general and specific temporalities within this area of law. The former are detectable at a broad level. One example is Frederick Cowell’s discussion of collective memory in the context of international human rights, with reference to the European Court of Human Rights. The latter are particular to thematic rights areas. Here we can think of Julia Dehm’s discussion of long-term temporalities in the field of environmental rights, or Stephen Young’s exploration of a contest for the present arising in indigenous human rights. Each thematic rights category will demonstrate both general and more specific connections to time. Linked to this, an additional insight for me was that human rights scholars are increasingly attentive to the importance of time and are offering diverse views into its general and specific nature. Each of our contributors adopted an approach that was distinct and capable of sitting alongside other contributions in a rich way.
BW: I have been particularly struck both through this collection and also through the Rights for Time project, by two things: the breadth of applications for ‘time-thinking’ and the potential of temporality for cross-disciplinary thinking. Anthony Langlois’ chapter on Queer temporalities, and Kathryn’s chapter on the temporal marks (or temporal trails?) left by UN documents. For this collection we focussed mainly on law, but even with law as our centre we had contributors from international relations, humanities and social policy. In other temporalities work I am involved with, I have seen micro-biologists, psychologists, historians and lawyers all work together very successfully around these concepts.
NM: In your introductory chapter, you say that the collection’s contributions ‘offer an insight into what we currently know, and do not know, about the times that make up this area of law, leading the reader to a point from which to reflect and think more consciously, rendering time visible and of significance’, and convey the hope that ‘[t]hrough this collecting of time and its pieces it is possible to extend our horizons of temporal understanding and begin to measure time in new ways’ (p. 8). How do you envisage this collection impacting on scholarship around (law and) time, and how do you hope it will shape scholarship on human rights law?
KM: In terms of scholarship on law and time, as I noted earlier, much literature in this field has focused on the domestic legal level. Less is known about the connection between time and international law – albeit work on this topic has recently expanded – and international human rights law specifically. I hope that exploring the nuances of time in this particular international legal context will add another layer to work on law and time and help advance understandings of what the overlaps and divergences might be between domestic and international law. In relation to scholarship on human rights law, the collection has the aim of assisting international human rights lawyers to understand this area of law in new ways. It offers a lens through which we can view and consider human rights internationally – from perspectives of futurity, plural temporality, or long timescales, for example – and gain insights that otherwise may not be possible. These insights include deeper understanding of how legal processes work, how rights are engaged in concrete contexts, and how temporal commitments or underpinnings are at work. It is hoped that those interested in the operation, as well as the theory, of this legal system will gain useful tools from the book that can be used towards these ends.
BW: My ambition for this collection, and related work, is that surfacing times and temporalities can serve to identify the fatal short-termism and unnecessary cyclicality of law, law-adjacent frameworks, practice, and funding. The role I see for temporality-thinking in changing these patterns is by showing up the concurrent timelines at play (still enduring one trauma as the next begins), demonstrating the snares that law sets for itself (through, for example, not anticipating its own failure or ‘stuckness’), and the predictable outcomes of the timelines law and policy establish.
NM: I was struck, in reading the collection, by the pervasive presence of temporality in human rights law, in its promises and aspirations and also in its fault lines and limitations – from the idea of progressive evolutive interpretation in the ‘living instrument’ doctrine of the ECtHR, to what Julia Dehm refers to as the ‘temporal unfitness’ of environmental human rights to ‘deliver temporal justice in the face of temporally transgressive environmental harms’ (p. 45), and the ‘temporal myopia’ of jus cogens norms (Mary H Hansel, ch. 10), to take some examples discussed in the book. At the same time, key international human rights bodies rarely confront temporality in explicit terms. How do you hope the book’s foregrounding of temporality might influence such actors?
KM: The book views human rights bodies and actors as regularly engaging with temporality in many ways and in different forms. I have mentioned progress, retrogression and interruption above, progressive evolution is another example particularly in the European context. We could also think of concepts such as the progressive realisation of socio-economic rights, the temporalities of childhood and development in child rights, or concepts of intergenerational time in environmental rights as additional concepts frequently woven throughout work of such bodies and actors. I hope that the book will, first, encourage more conscious attention to these concepts as being temporal in nature and operating alongside, or often in tension with, broader ideas of time in international human rights law. Second, the book also encourages human rights bodies and actors to look for and encounter ideas of time in their work that may be less familiar. These include non-linearity, futurity in its various forms, and multitudinous conceptions of time. These are explored in the book as also operating within international human rights law. They offer new paths for human rights professionals to understand their work and the underpinnings or operation of legal context they are working within.
NM: I call this the ‘joker question’, a concept I have borrowed from a friend. What would you consider an important insight or underlying theme within the book that might be missed or neglected by readers?
KM: One important point is highlighted by us towards the end of the book’s introduction: that the collection is a first step, rather than the last word, in understanding the diverse times and temporalities of international human rights law. The book does not claim to be exhaustive, and hopes to offer a starting point rather than encompassing all that might be said on this topic. In other words, the work has just begun.
BW: Trusting discerning readers of the collection entirely, I am sure they wouldn’t miss anything of importance! However, if there was one plea that the collection makes that I would emphasise, it is to think beyond time as measurement, external or as a boundary, and to think further about the ways it is embodied, subjective, lived and individual.