| Review of: | Law in Times of Crisis, Emergency Powers in Theory and Practice edited by Oren Gross, Fionnuala Ní Aoláin |
|---|---|
| Reviewed By: | Wouter G. Werner |
| Reviewed in: | Journal of Contingencies and Crisis Management |
| Date accepted online: | 10/04/2008 |
| Published in print: | Volume 15, Issue 04, Pages 232-238 |
Book Reviews
The past decade has witnessed a proliferation of studies on the theory and practise of exceptionalism. Following the 9/11 attacks, the number of publications on the operation of law in times of crisis multiplied, both at the level of legal and political theory (as, e.g., the rediscovery of Carl Schmitt's Political Theology attests) and at a level of positive law (as demonstrated by,
The book starts with a rather conventional question: 'How to allow government sufficient ...powers to meet crises while maintaining limitations and control over governmental actions so as to prevent or at least minimize the danger that such powers would be abused'? (p. 1). At first sight, the formulation of the question suggests a normative analysis, a search for principles on which to build a framework for the regulation of exceptional governmental powers. The primary focus of the book, however, is more empirical and analytical than normative. It sets out how 'liberal democratic States' (remarkably, a category that is not further spelled out) have actually responded to violent crises and emergencies. In order to arrive at some more general models, Oren and Ní Aoláin analyse the practice of (mainly Western) States that were confronted with exceptional situations. Moreover, the book contains extensive discussions of the responses by international supervisory bodies such as the European Court of Human Rights.
One of the central arguments of the book is that, by and large, three groups of models can be found throughout domestic jurisdictions as well as in international law. The first group advocates a strategy of 'accommodation'. Models of accommodation relax the strictures of constitutional law in order to facilitate the executive in times of crisis, while maintaining the normal constitutional framework as much as possible. Such accommodation can take different forms, such as special constitutional powers, specific legislative powers or strategies of constitutional interpretation. The second model is what Oren and Ní Aoláin call the 'business as usual model'. This model is based on a notion of 'constitutional absolutism' that denies the need for a relaxation of constitutional provisions in times of crisis. Its paradigmatic formulation can be found in 'Justice Davies' statement in
In the second part of the book, the three models identified above are applied to current problems in international human rights law, humanitarian law and some post 9/11 counter-terrorism measures. It sets out how the different strategies (accommodation, strict adherence and recourse to extra-legal action) are used in the area of international law as well. The tone of this part is more critical and filled with considerable (normative) concerns regarding the theory and practice of the international regimes governing State behaviour in times of crisis. One of the most fundamental concerns raised in part 2 of the book is regarding the gap between the 'archetypical emergency situation' and the actual practice of States. Conventional thinking on emergencies presupposes that it is possible to distinguish situations of normalcy from emergency situations. The latter, then, are believed to be temporal disruptions of normalcy, with identifiable beginnings and ends. As Oren and Ní Aoláin demonstrate, however, in practice the line between normalcy and emergency is not always that clear-cut. On the contrary, in many situations, exceptional State powers have become the rule, while mechanisms that are meant to separate normalcy from emergencies fail. In the first part of the book Oren and Ní Aoláin already deconstruct several doctrines that aim at keeping the exception apart from the normal operation of law. Based on examples such as the UK response to IRA violence, the French response to violence in Algeria or the US response to Al Qaida violence, they show that emergency regimes have a tendency to obscure conceptual boundaries between normalcy and the exception, thus legitimizing sometimes far-reaching derogations from human rights provisions. The normalization of the exception has important consequences for the operation of international law as well. It challenges, for example, the distinction between human rights law and humanitarian law, especially in the grey area between high-intensity emergencies and low-intensity internal armed conflicts. In this context, Oren and Ní Aoláin criticize the tendency to cloak low-intensity armed conflicts under the 'permanent emergency' and advocate a more robust role for humanitarian law. In this way, Oren and Ní Aoláin argue, it is possible to make a clearer assessment of the conflict itself as well as of the role of the different parties to the conflict. Such proposals are not uncontroversial, of course. The law governing (internal) armed conflicts, after all, is fraught with uncertainties itself and leaves considerable powers to States. Yet, such proposals, controversial as they may be, address the right question: how to deal with the normalization of the exception and the ever-looming danger that crisis management will replace the rule of law? Oren and Ní Aoláin's study offers a good starting point for discussing such questions.