In preparation for the European Society of International Law (ESIL) 12th Annual Conference, we asked some of our authors to reflect on this year’s conference theme ‘How International Law Works in Times of Crisis’. What are the major challenges facing the field, and is international law effective in addressing these issues? What role do international lawyers play in confronting crises, both old and new? Ultimately, is international law itself in crisis?
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“When confronted with international problems, international lawyers instinctively look for multilateral solutions. In case of international crises, whether of the immediate or persistent variety, the multilateral process may not work well, however. Consent may not timely be obtained, or some states may unjustifiably drag their feet in the quest for a solution. Faced with these collective action problems, unilateral action may have to be taken by states, individually or collectively. Unilateralism may be frowned upon, but it may derive both its legality and legitimacy from the substantive goal which the acting state strives for – the elimination or mitigation of an internationally recognized crisis – in combination with proof that this crises somehow affects the acting state. Thus, when it is established that multilateral cooperation does not deliver in the face of crisis, states may for instance take unilateral trade restrictions to counter climate change or environmental degradation, they may extend their courts’ civil and criminal jurisdiction to hear cases of foreign human rights violations, or they may deny port access to vessels engaging in unsustainable fishing or marine pollution.”
—Cedric Ryngaert, Professor of Public International Law, Utrecht University, and editor (with Ige F Dekker, Ramses A Wessel, and Jan Wouters) of Judicial Decisions on the Law of International Organizations (OUP 2016).
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“International environmental law is, in many respects, born from crisis. In the absence of a standing and permanent international regulatory authority that has the power to promulgate laws that preserve, protect, or enhance the global environment, history repeatedly demonstrates that the global community convenes on an ad hoc crisis-by-crisis basis to confront those issues that garner the requisite level of political or popular attention. It seems to me that the international community’s ability to effect change via legally binding regulatory action turns on the immediacy of the environmental threat, the strength of the human health nexus, or the charismatic/sympathetic nature of the regulatory target. One example of a crisis that satisfied these criteria and led to an effective legal response is the depletion of atmospheric ozone. A second example is the legal moratorium on commercial whaling that was implemented in 1982.
“Moving forward, the international community faces the daunting challenge of adapting this ad hoc approach to the many pervasive and multifaceted environmental threats of the twenty-first century. A group of scientists recently called for the International Commission on Stratigraphy to formally proclaim that we have entered a new geological epoch—the Anthropocene. The appropriateness of officially labeling the present moment in the geological timescale after human-induced change is debatable; however, the rapid and dramatic alteration to the atmosphere, the oceans, the Earth, life-giving ecosystem-services, and biodiversity is not. The seemingly intractable climate change dilemma may very well be international environmental law’s canary in the coalmine for the Anthropocene, signalling the inability of the traditional approach to international lawmaking to effectively confront current environmental crises. And, if so, it is apparent to me that we must meet this challenge with innovation, flexibility, and unprecedented commitment.”
—Dr. Cameron Jefferies, Assistant Professor and Borden Ladner Gervais Energy Law Fellow at the University of Alberta, Faculty of Law and author of Marine Mammal Conservation and the Law of the Sea (OUP 2016).
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“Demagogic leaders in two countries, Turkey and the Philippines, have recently spoken about introducing the death penalty. Both States are parties to the Second Optional Protocol to the International Covenant on Civil and Political Rights. The treaty does not allow denunciation. International law provides a big obstacle to them. In order to proceed, these States will have to openly defy international obligations that they have accepted. That they will do so cannot be ruled out. But will the Philippines – after its glorious victory in the South China Sea decision – really want to suggest that international law is insignificant or meaningless? Were Erdoğan and Duterte to proceed with their plans, it is unlikely that they would end up in an international court for defiance of the Second Optional Protocol. But international legal obligations will help frame the political debate inside the country. They will be an important and, hopefully, irresistible factor.”
—William A. Schabas, Professor of International Law, Middlesex University, and author of The International Criminal Court: A Commentary on the Rome Statute, Second Edition (OUP 2016).
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“International law and crises have a difficult relationship. Indeed, many of the long-standing changes in the regulation of international relations were born to respond to crises. The 1945 regime on the use of force, international human rights law and international refugee law are three of the most prominent examples. These changes, however, only emerged due to devastating, widespread and immediate crises on a global scale. Of concern is that this remains true today. The consequences of the Syrian conflict and the ensuing flight of its peoples, for example, are truly devastating and immediate. But they do not have widespread effects on a global scale. This has seriously undermined effective international law responses to the Syrian conflict by key players of international relations. The Syrian conflict shows us the relationship between international law and crises in its worst light. Responses to crises that do not have a truly transformative edge may undermine international law. Yet, we do not wish for a global crisis in order to better develop international law.”
—Başak Çali, Professor of International Law at Hertie School of Governance, Berlin and Director of Center for Global Public Law, Koç University, Istanbul, and author of The Authority of International Law: Obedience, Respect and Rebuttal (OUP, 2015).
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“The ability of international criminal law to meet the challenges of contemporary crises has been, and continues to be, mixed. In Kenya, the only option for accountability for the 2007-08 post-election violence was from the International Criminal Court. But due to a lethal combination of poor case construction by prosecutors and political interference in Kenya, all of the ICC cases have broken down. In Syria, international criminal justice has ran into a wall. Due primarily to geopolitical tensions, the ICC has no jurisdiction there and won’t be granted it any time soon. In the situations, modest successes in bringing perpetrators to account have been achieved. A hybrid tribunal has been set up to investigate and prosecute Kosovo Liberation Army leaders, the first time that the victors of a war will be the specific focus of a court. After years living freely in Senegal, Chadian dictator Hissène Habré was finally brought to justice this year. Former President of Côte d’Ivoire Laurent Gbagbo is on trial for crimes against humanity at The Hague, while his wife and former first lady Simone Gbagbo faces similar charges in Abidjan.
“What is crystal clear is that the justice on offer today isn’t enough. The demand for accountability for international crimes far outweighs its supply. International criminal justice continues to be pursued on an ad hoc basis. What has been achieved thus far pales in comparison to what needs to be done if international criminal law is to effectively meet the crises we face today — as well as the expectations of victims around the world.”
—Mark Kersten, Researcher, Munk School of Global Affairs, University of Toronto, and author of Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (OUP 2016).
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For more articles on this year’s ESIL conference theme, please explore our Journals Collection. We have worked with editorial teams of more than ten international law journals to draw together a collection of recent papers addressing this theme. The papers are free to read online in advance of the discussions, or after the close of the conference, until 15 October, 2016.
See you in Riga!
Featured image: 32473-Riga by xiquinhosilva. CC BY 2.0 via Flickr.