Institutional flexibility and its limitations in times of crisis

In situations of real or alleged crisis, institutions often assume roles beyond the ones normally ascribed to them. In some cases, such expansions of power are justified in terms of emergency powers, in others we see teleological arguments about implied powers/effet utile/constitutional realization at work and in others still we encounter arguments from failure where institutions expand their powers on the basis of the failure of other institutions. This paper seeks to explore these different arguments in a domestic and international law context, arguing that while they often blur into each other, there is a need to distinguish between them from a normative perspective. Doing so is helpful to reconceptualize the relationship between rights and competence norms in modern constitutions.