The theme of the 2016 ESIL Annual Conference in Riga was ‘How International Law Works in Times of Crisis’. In line with our practice for the last two annual conferences, the ESIL Interest Group on International Human Rights Law applied the conference theme to International Human Rights Law (IHRL) by hosting an afternoon seminar on ‘The Place of International Human Rights Law in Times of Crisis’ with papers by Elif Askin, Gaëtan Cliquennois, Jaya Ramji-Nogales, Christy Shucksmith, Charlotte Steinorth and Ralph Wilde.
In this blog symposium, the six authors examine the place of IHRL in four crises: austerity, disaster, the migration ‘crisis’; and weapons transfer in conflict. While apparently distinct, the blog posts point to challenges in neatly categorising and distinguishing between types of crisis, the ways in which forms of crisis can overlap and bleed into each other and the strategic use of crisis discourse. Indeed, a question raised by Ramji-Nogales is what is meant by ‘crisis’ in the first place. Along with Wilde, she argues that the migration ‘crisis’ should not be understood as a ‘crisis’ as that suggests that the situation was unpredictable and unexpected. Rather, she argues that it was foreseeable and that the language of crisis obscures that fact. While dangerous sea crossings in the Mediterranean have been on-going for some time, the framing of these crossings as a crisis only occurred in Autumn 2015 in Europe.
The posts raise fundamental questions about the positioning and relevance of IHRL in times of crisis. The authors position IHRL on a spectrum from absence or resistance to any role for IHRL in crisis; to a role in mitigating crisis; to becoming part of the problem. The posts further point to heightened interest in IHRL in times of crisis and the chance of development of IHRL as a result. In this introductory post, we explore some of these cross-cutting themes further.
Invisibility In his discussion of austerity, Cliquennois demonstrates the continuing challenges of ensuring that IHRL can be part of a discussion of crisis in the economic domain. He focuses on a set of cases in which regional courts have found cases raising austerity inadmissible or have failed to analyse the economic policies of states in relation to the human rights claims made. Similarly, in her analysis of the absence of the right to health in Security Council resolutions responding to the Ebola crisis, Steinorth also asks whether IHRL is undermined and displaced by alternative legal frames in times of crisis. Both posts highlight the lack of economic and social rights in dominant crisis discourses.
Mitigating Role By contrast, other authors characterise IHRL as playing a mitigating role in times of crisis. Wilde presents the principle of non-refoulement as playing a mitigating role in responding to the dangerous sea crossings by asylum seekers. Shucksmith illustrates that in the area of disaster risk reduction, states have turned to specific human rights that map on and mitigate particular risks in disaster. Aşkın also argues that the due diligence principle enshrined in IHRL can mitigate the risks of indirect entanglement in international crimes when states seek to transfer arms to non-state actors for the protection of civilians or suppression of violent non-state actors.
Progressive development of IHRL in Times of Crisis A number of the authors identify crisis as a time in which the relevance and applicability of IHRL to crisis is challenged. In such a context, the challenge can spawn growth and result in the assertion or expansion of IHRL in ways previously not seen. For example, Cliquennois attributes the generation of a new ‘sensitivity’ to social rights by the European Court of Justice and the European Court of Human Rights to the consequences of policies adopted by states to the austerity ‘crisis’. Times of crisis can also highlight the gaps and failure of IHRL to ‘provide adequate rules to fit the realities of crisis’ as argued by Askin. This can either render it redundant or can open opportunities for adaptation and growth. Wilde argues that the extra-territorial extension of the non-refoulement principle by the European Court of Human Rights is an attempt to make human rights relevant in an era where options of safe travel to Europe to seek asylum are seriously curtailed.
IHRL responses as part of the problem? Some authors in the symposium further point to the responses developed through IHRL as becoming part of the problem it seeks to address. Ramji-Nogales argues that a mitigating role for IHRL is insufficient in responding to crisis in the context of migration because, in her view, law is also constitutive of crisis and this role therefore needs to be acknowledged and addressed. She explains that within the migration context, IHRL provides protection to persons fleeing persecution and a risk of torture or other cruel, inhuman or degrading treatment or punishment. However, she suggests that not only is this response too narrow and incomplete but ‘offers very few pathways for migrants to obtain lawful status in a destination state [outside of these categories] and provides no options for safe and lawful transit to that state’. Wilde joins Ramji-Nogales and points out that the extra-territorial extension of non-refoulement cannot compensate for the root causes of why individuals feel compelled to make dangerous sea crossings to seek refuge.
Overall, all authors point to the indispensable role of IHRL in times of crisis and the inherent limitations of IHRL, often offering remedial responses rather than a preventive frame. Shucksmith holds that IHRL should adapt to the types of crises it faces by not only responding or reacting to crisis through mitigation but also looking-forward to crisis prevention and preparation for crisis. She proposes that IHRL can become a vehicle for anticipating crisis before a situation turns into one. These structural questions about IHRL align with Askin’s identification of the principle of due diligence as a governance tool in managing crisis along similar lines to Shucksmith’s analysis of how obligations under IHRL can be built into risk assessments when preparing for natural disasters and to Cliquennois’s analysis of how human rights courts must signal that austerity measures must take into account economic and social rights.