CAIRN.INFO : Matières à réflexion

1Our editorial begins with a thought for our readers and authors in the context of the current dramatic events that preside over the preparation-from now on through virtual meetings-of this issue. At a time when the citizens of the world are trying to escape by exchanging games, jokes, culinary and other tips (haaa, Ravel's Boléro by the National Orchestra of France!), instructions (dressmakers, seamstresses, now to your scissors!) so as to make confinement-life, even-more bearable, we come for our part-as far as our means allow-with a recipe for private international law in confinement. Nothing exceptional here. Celebrating the centenary of the Revue critique de droit international privé, did Paul Lagarde not point out that it had never remained foreign to the upheavals of his time [1]? As soon as events-of whatever nature-are not purely hexagonal, they fall within the vocation of private international law and our review can but accompany thir unfolding: such was the case in the past with armed conflicts or the advent of the Common Market, and now Brexit Thus it is too twith his new pandemic which has stopped the world economy.

2Indeed, in the midst of the Covid 19 crisis, the global introduction of the state of exception has led the community of lawyers to reflect on the role of the law. On the side of human rights, the concern is the possible abuse involved in the voluntary submission of whole populations to the governmental injunction to transfer our health and travel data. Tracing and geolocalization are currently being considered and debated, where until recently they were essentially contested as contrary to the rule of law [2]. At the same time, feminists deplore the increase in domestic violence behind closed door, or, more positively, or the emergence of the ethics of care [3]. Yet another focus is the advent of stochastic governance and its vocation to replace the entirety of the law, after the first forays into predictive justice. Not to mention the expert, now more powerful than the politician or the jurist [4]. Still other critical perspectives recall the political use that has been made in the past of epidemic phenomena [5], while legal philosophers reflect on the place occupied by bio-politics in the political-legal order [6], and many of our transalpine neighbours are exploring the close links between law and political theology. Among them, Giorgio Agamben-whose voice has sounded from Italy [7]-has given new relevance to the debate on Carl Schmitt's controversial doctrine on the place of the exception within the nomos of the earth [8] Meanwhile, the quest for transnational moral and legal responsibilities is already flourishing: as we write, according to the Agence France Presse, the state of Missouri has just filed a lawsuit against China on the 22nd of April 2020, accusing Beijing of having concealed the seriousness of the coronavirus epidemic and thus caused irreparable economic and human damages in this American state and in the world [9], while in Europe, some people are wondering about the potential liability of the Tyrol region [10]

3Given these global societal reactions, what can the contribution of the internationalist-privatists be?

4It might take one of two forms. First, by virtue of its raison d'être, which is to apprehend internationality in all its diversity, it might contribute to thinking about the state of exception-that is precisely pre-eminent within the discipline. Public policy, overriding mandatory rules [11], escape clauses [12] Could there not be lessons here on ways of containing the exception within reasonable limits, on the method to be followed in order to implement it, on its sometimes invisible links with other concepts or prescriptive devices? At a time when some are calling for the absolute closure of borders, it is indeed urgent to understand how best to continue to embrace otherness [13]. It seems judicious to follow the suggestion made by some particularly creative authors in our field, who envisage the mobilization of the tools of private international law as an intellectual model for thinking about the norm as well as the exception and the relationship between the two [14]. With this perspective in mind, our review will endeavour to analyse the current situation and the means deployed to try to curb its most disastrous effects, certainly in terms of public health, but also from an economic, political, social or legal perspective.

Notes

  • [1]
    La Revue critique a cent ans, Rev. crit. DIP 2005. 1 and esp. p. 3.
  • [2]
    In this issue (Rev. crit. DIP 2020. 334, note H. Muir Watt), the judgment of the Court of Justice handed down on 24 September 2019 in the context of the dispute between Google and the CNIL has its rightful place
  • [3]
    See esp. S. Laugier and P. Molinier, Politiques du care, Multitudes 2009/2-3 (n° 37-38), p. 74 ff.
  • [4]
    See, from this perspective, C. Atias, D. Linotte, Le mythe de l'adaptation du droit aux faits, D. 1977. 251. And, inevitably: B. Latour, Guerre et paix des microbes, La Découverte Poche, Sciences humaines et sociales, n° 114, 2012.
  • [5]
    See for example, for a first glance, the interviews with W. Scheidel, Professor at Stanford University, and P. Frankopan, Professor at Oxford University, Le Point, 12 March 2020. And already, premonitory: The scourge is not commensurate with mankind, so we tell ourselves that the scourge is unreal, it is a bad dream that will pass. But it does not always pass, and from bad dream to bad dream, it is men who pass, and humanists, in the first place, because they have not taken their precautions (A. Camus, La Peste, 1947, Folio, p. 45). And again this article by Orhan Pamuk (2006 Nobel Prize for Literature) in the New York Times of 23 April 2020: People have always responded to epidemics by spreading rumor and false information and portraying the disease as foreign and brought in with malicious intent.
  • [6]
    See esp. M. Foucault, for whom the notion of biopower first appears in the first volume of his Histoire de la sexualité (La volonté de savoir, Paris, Gallimard, 1976), and then develops in the courses he gave at the Collège de France from 1977 to 1979 (Sécurité, territoire, population et Naissance de la biopolitique, Paris, Gallimard, 2004). See also, soon to be published by the Presses universitaires de France 2020, Ariel Colonomos, Un prix à la vie. Le défi politique de la juste mesure.
  • [7]
    Lo stato d'eccezione provocato da un'emergenza immotivata, il manifesto, 26 February 2020.
  • [8]
    See on this point the account of Dominus Mundi by PG Monateri, Rev. crit. DIP 2019. 890.
  • [9]
    See also S.T. Zheng and H. Zhengxin, State immunity in global COVID-19 pandemic: Alters, et. al. v People's Republic of China, et. al., Conflictoflaws.net, 21st of March 2020.
  • [10]
    M. Weller, Cross-border Corona Mass Litigation against the Austrian Federal State of Tyrol and Local Tourist Businesses?, Conflictoflaws.net, 2nd of April 2020; J. Hoevenaars et X. Kramer, Mass Litigation in Times of Corona and Developments in the Netherlands, Conflictoflaws.net, 22nd of April 2020.
  • [11]
    Some of the measures contained in the French ordinance package of the 25th of March 2020 would most likely merit this qualification; see also E. Piovesani, Italian Self-Proclaimed Overriding Mandatory Provisions to Fight Coronavirus, Conflictoflaws.net, 19th of March 2020.
  • [12]
    From a very general technical perspective, see M. Lehmann, Corona Virus and Applicable Law, EAPIL blog, 16th of March 2020; and from the perspective of global value chains, T. Ferando, Law and Global Value Chains at the Time of Covid-19: A Systemic Approach Beyond Contracts and Tort, EAPIL blog, 20th of March 2020.
  • [13]
    This implies, among other things, the re-establishment of the system for registering asylum applications in the Île-de-France region: TA Paris, Order, 21st of April 2020, N°. 2006359.
  • [14]
    K. Knop, R. Michaels, A. Riles (dir.), Transdisciplinary Conflict of Laws, Law and Contemporary Problems. Duke University School of Law, vol. 71, n° 3, 2008 and the compte rendu of the Rev. crit. DIP 2009. 417.
Horatia Muir Watt
Dominique Bureau
Sabine Corneloup
Translation by
Remi Heuzard
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https://doi.org/10.3917/rcdip.202.0211a
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