Regulating disasters? The role of international law in disaster prevention and management

Purpose – This article explores the role of international law in disaster prevention and management, with a particular focus on the emerging field of international disaster law, and its relationship with international human rights law. It further introduces the four articles of the special column of this journal issue, dedicated to disasters and international law. Design/methodology/approach – The analysis is based upon primary sources of legislation and policy, as well as academic literature on disasters and international law. Findings – Although the field of international disaster law is at its infancy, we argue that this emergent area does have the potential to gain widespread recognition as a distinct field of law, and that this could be of benefit for the wider disaster management community. Originality/value – The article introduces key legal features and themes relating to international law and disasters, highlighting their relevance for disaster management. The added value is to widen the discussion on aspects of disasters regulated by international law, thus facilitating the future exchange with other academic subjects and operational fields. Keywords – disasters; international law; disaster management; treaties; human rights; international disaster law; international human rights law. Paper type – Research pape

Legal culture and the CRPD

Gerard Quinn advances the proposition that there is a ‘legal culture’, which consists of unstated values and institutional expectations that underpin legal orders and constitute a ‘morality’ which enables law to be possible. He focuses on the United Nations Convention on the Rights of Persons with Disabilities (CRPD 2006), in particular on Article 12-Equal recognition before the law, to discuss the limited power (to date) that it has had in dislodging fundamental assumptions in legal cultures concerning legal capacity. Quinn uses this example to show how changes to ideas of legal personhood and mental capacity are difficult to achieve because of ‘legal fictions’ that lie at the heart of legal systems’ legal cultures. Quinn puts forward some ways to dislodge the historical ‘legal fictions’ embedded in legal culture

Polymorphous Public Law Litigation: The Forgotten History of Nineteenth Century Public Law Litigation

Recent debates about popular constitutionalism and judicial supremacy have focused on the question of who interprets the Constitution. This article reframes the debate by asking what legal sources courts apply to protect individual rights from government infringement. Throughout the nineteenth century, federal courts applied a mix of international law, statutes and common law to protect fundamental rights and restrain government action. This article uncovers the forgotten history of nineteenth century public law litigation.Professors Post and Siegel have advocated “policentric constitutional interpretation,” wherein the Supreme Court shares authority for constitutional interpretation with other actors. By analogy, this article introduces the concept of “polymorphous public law litigation.” Under the polymorphous model, instead of fixating on constitutional law as the dominant public law discourse, courts apply international law, statutes, and common law — and occasionally constitutional law — to decide public law controversies. The article demonstrates that nineteenth century federal courts applied a polymorphous model of public law litigation.During the twentieth century, the polymorphous model was supplanted by a constitutionalized model of public law litigation, wherein courts rely primarily on constitutional law to decide public law cases. The process of constitutionalization exacerbated the tension between judicial review and popular sovereignty. When the Supreme Court applies constitutional law to decide a case, the Court does not merely decide the case; it also creates or modifies a legal rule that is not subject to revision by legislative majorities. In contrast, when the Court applies other types of law, Congress or state legislatures retain the power to modify the controlling legal rule. Hence, revival of a polymorphous model would help mitigate the tension between judicial review and popular sovereignty