Tu Globalista: Lo que sucede en el mundo.

What is an artifact? And why should this view have a relevance for law, and specially for international dispute settlement?

A possible definition of artifacts, can be found with Axelrod & Cohen. Artifacts are understood as mechanisms with specific properties. But in order to understand such conception of artifact, then the first element to understand is the population of agents. And how such makes a distinction with mechanisms.

I will try to offer a fast gallery view of the Population of Agents as proposed by Axelrod and Cohen. The first element is that of a complex system, being understood as a system that emerges from the interaction of agents. A basic definition however, gives us a view of what is a complex system. After such definition, Axelrod and Cohen’s work, proposed that in order to understand a complex system, such should be compartmentalized, in this sense, a possibility is to understand if such complex system composed by different agents have common elements, then, what you find is a population of agents.

A population of agents, then, is an identification of agents that share certain characteristics. In international law, you can create a population of agents. You can have individual agents working within international organizations, individual agents working in international courts and tribunals, individual agents working within NGOs, individual agents representing the government, individual agents working in Think-Tanks, and as well as individual agents working in universities. The interactions of those individual agents within their organizations have the capacity to create artifacts like memoranda and agreements, and some of them, like international courts and tribunals, create legal artifacts that are binding upon parties to the dispute; in this sense, orders and rulings can be seen as artifacts.

Such notion of an artifact can be related to the notion of legal instruments by Klabbers. Who understands that international organizations are «those entities […] capable of performing acts; creating an entity with a separate identity only makes sense (instrumental sense, at any rate), if that entity can subsequently do certain things. In order to do those things, the organization must be able to adopt or create legal instruments.» And such capacity to do certain things is translated to legal instruments or perhaps legal acts, with all the risks of getting into a rabbit hole.

Coming back to complexity theory, Axelrod and Cohen understand that artifacts have certain characteristics, like location, capabilities and affordances. And such characteristics will evoke certain behavior within the population of the agents of the system, which can as well spill out to other population of agents. Those features will evoke behavior in other agents. As seen from the view of complexity theory, such artifacts will not have a purpose of their own or powers of reproduction.

For example, a coffee cup, it is situated in certain location, like the kitchen right by the coffee machine, it has the capability to store coffee in the inside, and hopefully to keep it warm through the reading of an academic article, and an affordance, that is, it has a mug handle, so it can be grabbed. However, as it can be seen, the coffee cup by itself does not have the intention that you drink coffee, it is made for that purpose, that is, another agent created the coffee cup so you are able to drink, preferably coffee, without sugar or milk.

The above example of a coffee cup as an artifact can also be the case with rulings of an international court or tribunal; the rulings have a location, capabilities, and affordances. In this case, a final ruling of the ICJ has the same characteristics as other artifacts: it has a location, certain capabilities, and certain affordances.

An ICJ award is located in the Peace Palace at The Hague (Physically speaking). Also, having the capability to put an end to a dispute with res judicata effect, like the coffee mug to store coffee, the ICJ award is made to solve the dispute. And finally, an ICJ award has certain affordances; one of them is that even if the award is made to solve a dispute inter partes, it has the affordance to be «grabbed», as a coffee mug, by anyone who has access to it. What do I mean by grabbed? Actually, to be read, to be quoted, to be cited, and to be discussed

The award by itself does not have an intention, it is just the reflection of the intention of the individual agents that were engaged in the resolution of the dispute. As an artifact, other agents can interact with such artifact. Creating an interaction between an individual agent, and an artifact. Depending on what use is given to such artifact, it can increase or decrease its value, becoming a high-reagarded artifact or an artifact stored and forgotten.

The interesting thing about thinking of legal artifacts in this sense, is that a complex systems may have barriers within it, and artifacts help overcoming such barriers. Barriers are understood as those types of things that prevent interaction between the agents. In a broad sense, there can be two broad types of barriers, physical barriers, and time barriers. A physical barrier is to travel to The Hague and have access to the Peace Palace and read the ICJ rulings. Also, the time barrier is broken when the award is printed being capable to be read. Time is a barrier since it becomes a relational notion between the past, present, and future, Agents cannot time travel to the past or future. The destruction or non-access to written records (as artifacts) becomes a barrier imposed on other agents. If barriers are put in this sense, it blocks the interactions over time. Writing allows agents to interact with the future and across space. Reading then becomes a technology for interaction with the past.