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Risk, Security and International Law: The Politics of International Law in times of Anti-terrorism Measures

Workshop Number
27
Workshop Director
Wouter Werner
Vrije Universiteit Amsterdam

Abstract
With the current fight against terrorism, the practices and theories of security policy witness a substantial transformation. These changes can be described in at least two dimensions as a change of the temporal and spatial conditions of world politics. Temporally, for example, policies based on precautionary principles question traditional methods of risk-assessment and cost-benefit analysis. At the same time, they undermine the legal regulation of the exercise of coercive State power. Precautionary measures tend to legitimize the use of coercive measures that are not based on fundamental legal categories such as the presumption of innocence or the right to a fair trial. Moreover, they tend to stretch the notion of 'immediacy' as to justify State action that goes beyond the protection of society against direct threats. Spatially, terrorist networks are organised in such a way as exactly not to allow for deterrence or measures based on the idea of security as 'border management'. On the one hand, they use one's own territory to plan and conduct their attacks, on the other hand, they are organised and dispersed globally. The complex relation between terrorism and territoriality has had an impact on international legal discourse too. It has blurred the distinction between war and peace and has induced attempts to stretch the concept of law-enforcement (as to include extra-territorial law-enforcement), the concept of an (international) armed conflict as well as attempts to redefine who counts as a legitimate combatant.
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The framing of the current fight against terrorism thus impacts law and politics alike. Not surprisingly, then, it has spurred reflection in the disciplines of IR and international law on whether the traditional vocabulary still provides an adequate description of the nature and impact of contemporary 'threats' . Within International Relations, the war on terror has in particularly led to a new theoretical approach based on the notion of risk. Whether it is Beck's idea of a world risk society, Foucault's dispositif of Luhmann's notion of autopoiesis - they all inaugurated a growing literature that concepualises security policy in terms of 'risk management' and precautionary principles, rather than the avoidance of threats. Within International Law, the reliance on precaution has led to foundational debates on the nature of war as a legal concept, the limits of self-defense, the distinction between combatants and civilians as well as the relation between human rights law and the law of armed conflict.
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However, despite the recognised change in each discipline, there is no common debate, no common assessment of these changes. This workshop seeks to fill this gap by examining impact of 'risk' on the changing relationship between law and politics in the context of the war on terror. In this context, it will pursue two broad themes: On the one hand, it will map the different dimensions of changed security policy practices - from military strategy to human rights protection, from money laundering to development policy. In this respect, the workshop allows for an assessment of this new theoretical approach -especially in contrast to existing approaches such as 'securitization' literature. From this perspective, international law serves as a prime example in how the changed theoretical focus allows us to understand it differently. On the other hand, the workshop wishes to pursue an interdisciplinary dialogue between IR specialists and international lawyers.

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