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In the opening chapter the volume editors reflect on the content of the book. They do so, by first touching upon the ideas the Editorial Board of the Netherlands Yearbook of International Law (NYIL) had in mind when opting for a volume on the issue of crisis, including such questions as: how international law reacts to crises and whether or not crises in daily realities also cause crises within separate international legal sub-disciplines. Next to that they summarize the eight chapters, followed by a reflection upon four topics and perspectives that come to the forefront when taking the contributions together and not reading them as reflections on separate trends in separate fields of international law. The four topics relate to: the role of crises in developing international law; do we do the things right or do we do the right things?; reconsidering and sharpening compliance; and the role of international lawyers.
This chapter considers the idea that international human rights law is both produced by and dependent upon crisis. Surveying the capaciousness, ambiguity, and constructedness of the concept, we position the relative weight given to particular rights in terms of their framing as ‘crises’. We focus on how the idea of crisis has been differently deployed in the Universal Declaration of Human Rights and in the division between civil and political rights and economic, cultural and social rights to argue for a critical engagement with the language of crisis in human rights law, and to ask how that language has shaped the value and meaning of rights discourse more generally.
The contribution argues that facticity of the human rights impacts of economic globalisation increasingly undermines the normativity of the state-centred conception of international human rights law. The exposure of the international legal order of states to the operations of global business entities leads to a collusion of sovereign state interest and globalised corporate power at the expense of protecting the rights of victims of human rights violations in the global market economy. The contribution scrutinises two prominent attempts to address this lacuna of protection: transnational tort litigation and the UN Guiding Principles on Business and Human Rights. It is argued that both approaches are not only an expression of the present crisis of international human rights law but also risk contributing to its perpetuation. While the ‘escape into tort’ results in the privatisation of public human rights in the global market economy, the UN Guiding Principles entrench their territorialisation in the state legal order in the face of global economic challenges. The concluding section reflects on the future pathways of international human rights law by positing a choice between, on the one hand, a more radical departure from human rights’ state-centred heritage and, on the other hand, a transformation of the international legal order of states by virtue of human rights. It highlights the importance of extraterritorial human rights obligations in recovering the state's legal accountability for human rights violations committed in the course of global business operations.
This chapter proposes that international legal scholarship may, in its encounter with the phenomenon of migration, benefit from acquiring a sensitivity to the political economy of the distinction between crisis and the mundane. It does so by looking at two particular fields of international migration: refugee law and the law of irregular migration. The first enjoys a large degree of attention from international lawyers, while the other enjoys almost none. Moreover, within these two categories of migrants, international legal scholars tend to ‘see’ some subjects, such as refugee crises and human trafficking, and ‘not see’ others, such as the legal limbo of the ‘temporary’ refugee camp and the daily life of the irregular migrant. This chapter argues that the difference in attention international legal scholars give to one or the other category of persons is the product not of the jurisdiction or the reach of international law, but rather of ideological and epistemological biases. These biases cause international lawyers to ‘see’ crisis, and to ‘not see’ that which is not crisis—that which is quotidian, mundane, or ‘normal’, in the ‘everyday’ sense of the word. By focusing on the crisis/mundane distinction and the privileging of ‘crisis’, this chapter helps to identify the specific focus and boundaries of the epistemic bias of international migration law scholarship.
This chapter compares and contrasts temporary international criminal tribunals to the permanent International Criminal Court (ICC) referencing international criminal law’s and UN Security Council’s (UNSC) relationship to ‘crisis’. All the situations where the UNSC has acted in international criminal justice are critical in the sense that they involve crucial decisions where members elect among distinct choices in inherently unstable situations. My argument is that crises enable a negative grounding of legal and political jurisdiction that relies on legitimation that is confirmed by judicial bodies. The analysis outlines the institutionalisation of an exceptional legal mechanism in the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY), its proliferation to the International Criminal Tribunal for Rwanda (ICTR) and its normalisation in the International Criminal Court (ICC). The purpose of this analysis is neither to parse what the law is and what it should be—nor what the law does versus what it promises—, but rather to show how and why individual criminal responsibility in the absence of State intervention demonstrates a globalising political power that is conjoined to a universalising legal glory. A crisis is a liminal situation, which by its ambiguity enables that process of power being linked to glory.
Global warming is perhaps the ultimate crisis for humanity. But is it a crisis for international law? How has crisis framing and rhetoric influenced the development of international climate change law? Elements of a ‘crisis model’ can be identified in international responses to climate change, but they have transcended it and are evolving in much more complex and textured ways. On the one hand, the continuous pressure for urgent and exceptional action at the multilateral level has led to acrimony between states, indifference and denial among important constituencies, and ultimately to weak arrangements within conventional intergovernmental models. This has produced an impression of constant failure, which in itself poses a challenge to the normative capacity of traditional international law-making. On the other hand, crisis framing has been a catalyst for developments in international law in unintended ways. It has legitimated ‘bottom-up’ approaches and sub-global and unilateral action, as well as localized legal responses. It has led to sophisticated yet plausible reconciliations between climate concerns and international trade. It has promoted reconsiderations of hard policy choices, such as between mitigation and adaptation. International law’s climate change agenda has broadened, not narrowed, and it has shown a considerable capacity to innovate and develop, presenting new opportunities for international law’s functions and modalities.
Crisis has played a significant role in international environmental law since its inception. To some extent the field as a whole might be characterized as a ‘discipline of crisis’, since it functions as a counterbalance to unbridled pollution and resource depletion. On the other hand, there have been ongoing attempts to move away from a reactive focus on crisis and to conceptualize international environmental law as part of a broader societal shift toward sustainability. The dilemma that faces the discipline is that in the absence of a sense of crisis, we are unsure of how to generate the commitment that will be required to undertake fundamental changes to the status quo.
Is the World Trade Organization (WTO) in a legitimacy crisis and might the protracted Doha negotiations be evidence of it? This article understands the notion of ‘legitimacy crisis’ as a severe threat to an institution’s viability due to fundamental shifts in the legitimising ideas underlying the institution, an external threat to its values or its ability to fulfil its functions. It contends that the WTO is not yet definitely in a legitimacy crisis because the Doha negotiations still reveal the commitment of the WTO members to the values and legitimising ideas of the WTO. Perception of a legitimacy crisis fuels the negotiation of free trade agreements (FTAs) amongst key WTO members, which could be used to advance the Doha negotiations, force developing countries into agreement and shape the outcome of the negotiations in favour of developed countries. Such an outcome, this chapter cautions, could be the real onset of a legitimacy crisis if developing countries gain very little from a Doha agreement. To prevent a crisis and move the negotiations forward this chapter suggests that the different trade-related development needs of developing countries need to be assessed more seriously and developing countries need to be enabled to address serious adverse consequences linked to any trade liberalisation they undertake.
This chapter argues that it is illuminating to read ‘crisis’ not as a fact, but as a political discourse that functions as a ‘technique of government’. Drawing examples from the context of the EU’s contemporary policy responses to the financial crisis, it illustrates how experts produce knowledge about ‘crises’, and how the discourse of crisis is operationalized as a tool for giving effect to governmental ambitions. This reading of crisis as a technique of government raises three inter-related challenges to the implied assumptions of the crisis narrative. First, it puts into question the idea that crises are ‘uncommon’ or ‘special’ events, and instead argues that the discourse of crisis is commonplace in the EU, and acts as a normative assertion about the status quo. Second, it undermines the simplistic logic of cause and effect by emphasizing the production of truth that lies at the heart of crisis discourse and how these truths shape expectations and policy proposals. Third, this reading complicates the idea that crises are ‘game changing’ moments of social or political shift, arguing rather that their political effects remain uncertain and tied up with the success of particular forms of knowledge.
In December 2012, the Supreme Court of The Netherlands ruled that The Netherlands had discriminated against a number of scholars with Iranian as well as Dutch nationality. They were prohibited from participating in specialised nuclear education by a regulation that was adopted by the Dutch government in order to comply with a United Nations Security Council (UNSC) resolution. One of the questions that arose during the proceedings, was the relationship between conflicting international obligations of the Dutch state, especially in view of the priority rule of Article 103 of the UN Charter. The Supreme Court of The Netherlands took a rather dualist view, considering that Dutch courts could fully review national measures implementing UNSC-imposed obligations for compatibility with fundamental rights. This view conforms to earlier jurisprudence of the European Court of Justice and the European Court of Human Rights in the Kadi and Nada cases, respectively. The main argument of the article is that the Supreme Court has too easily followed the rulings of both European courts, without developing its own, independent reasoning. This is surprising, because the approach taken by the Supreme Court would not seem to be the most obvious one, given the monist tradition of the Dutch constitutional order. In a time when the influence of international courts on the Dutch legal order is a sensitive topic of public debate, this is an unfortunate omission.