Effective Law-Making in Times of Global Crisis – A Role for International Organizations
Citable Link (URL):https://doi.org/10.3249/1868-1581-2-1-kirchner
First published (peer reviewed)
Goettingen Journal of International Law 2010; 2(1) p.267-292
Public International Law is often slow to react to changes and challenges. Due to the need for consensus among the subjects to which rules are meant to apply, the creation of new rules often requires more time than is available in times of crisis. At the same time, Public International Law is highly flexi-ble and might provide alternative means for the effective and fast creation of new rules. In this article I will examine several alternatives to traditional treaty-based law-making with regard to their effective creation and opera-tion. Alternatives could include soft law, which, although relatively fast to create, is non-binding, raising doubts as to its effectiveness for regulation in times of crisis. In the last few years, network approaches to law-making have been discussed, most recently with regard to the Group of Twenty (G20). While this approach might look modern, it raises serious questions as to the legitimacy of the rules created hereunder. A more legitimate form of law-making could be through international organizations. This leaves two options: the mere drafting of rules by international organizations, and actual legislation by them. It is the latter option which appears to be most efficient. In this text, the work of several international organizations is investigated more closely, ranging from the loose G20 to international organizations which rely on non-binding recommendations to international organizations which have an actual law-making capacity. At the center of the investigation is the question of how existing international organizations can effectively create new rules which enable states parties to react swiftly, while at the same time taking into account the technical expertise required to formulate an effective response to a global crisis. In this context, the experience of the International Civil Aviation Organization (ICAO) can serve as a model for other international organizations. The ICAO‟s reaction to the threat of ter-rorism provides an interesting example for effective law-making in times of crisis. After a short introduction to the law-making capabilities of the ICAO, we will examine how effective it really is and whether the ICAO can serve as a model for future reactions to crises by rapidly providing new rules for a large number of member states in a field which can be technically compli-cated – characteristics which apply to the global financial crisis as well as global epidemics, climate change and similar issues.