An Umbrella With Holes: Respect for Non-Derogable Human Rights During Declared States of Emergency, 1996–2004

Abstract

This paper examines the effects of non-derogability status for seven human rights during declared states of emergency from 1996 to 2004 in 195 countries. For this purpose, we create several original measures of countries’ state of emergency status. Our analysis finds the intended protections from the special legal status of non-derogable rights to be anemic, at best, during declared emergencies. This finding begs a reconsideration of both the utility of the “non-derogable” categorization in both international and municipal law, and the conditions under which declared states of emergency might be justified.

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Notes

  1. 1.

    The principle of universality established in the Universal Declaration of Human Rights (1998) was re-affirmed by the Vienna Declaration and Programme of Action (1993), which was adopted by 171 states and declared that the “universal nature of [human rights] is beyond question”.

  2. 2.

    Denunciation of a human rights treaty is extremely rare. Many major international human rights conventions such as the two 1966 International Covenants and regional treaties like the African Charter on Human Rights have no denunciation clause. The American Charter on Human Rights does, although only Trinidad and Tobago has so far denounced the Charter (in 1999), while in 2012 Venezuela formally notified the Organization of American States that it intends to do the same. The European Convention on Human Rights has a denunciation clause, but no state has invoked that privilege.

  3. 3.

    See: Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 186 (2003); United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984); The Paris Minimum Standards of Human Rights Norms In A State Of Emergency, Committee on the Enforcement of Human Rights Law, International Law Association (1984).

  4. 4.

    The 1969 Vienna Convention on the Law of Treaties defines jus cogens as “a norm accepted and recognized by the International Community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” There is currently no single authoritative formulation of a list of jus cogens rights.

  5. 5.

    See especially Chapter 16, “The Administration of Justice During States of Emergency”.

  6. 6.

    House of Lords Session 2004–2005 [2004] UKHL 56 on appeal from [2002] EWCA Civ 1502A: (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent), X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent).

  7. 7.

    Fn (3), Baroness Hale of Richmond, p. 234.

  8. 8.

    Their analysis did not include data about whether a state of emergency was actually declared or what, if any, rights were listed as non-derogable.

  9. 9.

    Further, Hafner-Burton, Helfer, and Fariss (2011) and Neumayer (2012) both employ political violence / armed conflict on the right-hand side of their models, but appear to make no corrections for the fact that this condition is also a criterion for a country-year’s selection as an undeclared state of emergency.

  10. 10.

    The actual number of countries included in any given analysis will vary based on available data.

  11. 11.

    We do not assert qualitative equivalences across all these terms, but for coding purposes it is important to note that declarations of any of them satisfy the legal grounds for invoking permissible derogation. Thus, they all count as a “one” in our coding scheme.

  12. 12.

    Some refer to these as “personal integrity rights”, but we find “personal” to suggest personhood, in toto. That is, the total personhood implied by “personal integrity rights” suggests a much-broader spectrum of human rights than does the particularly physical sphere of personhood suggested by physical integrity rights.

  13. 13.

    Here, a “systematic” source of information is one that offers information about the same set of rights in every country in the world.

  14. 14.

    http://www.humanrightsdata.org/documentation/reliability2004.xls

  15. 15.

    Regions were defined using the numeric region identifier from the United Nations Statistics Division (http://unstats.un.org/unsd/methods/m49/m49regin.htm).

  16. 16.

    The N here is depressed to 130, as there was insufficient evidence to categorize six of the emergency-status cases.

  17. 17.

    The N of emergency-status states is 135 rather than 136, as in our data Iraq 2004 is counted as under a state of emergency, but we did not have human rights information about that country-year.

  18. 18.

    Many quantitative human rights studies also include a lagged dependent variable to control for possible serial correlation. However, Achen (2000) demonstrates that the threat from serial correlation is to the standard errors, as coefficients remain unbiased in a reasonably large sample. Therefore, properly applied clustered sandwich standard errors should correct this potential bias. Furthermore, he establishes that a lagged variable can “artificially” dominate and bias a regression no matter the number of exogenous variables and no matter the true amount of explanatory power of the lagged term. Ill-effects are most likely when variables are heavily trended.

  19. 19.

    Davenport and Armstrong’s (2004) findings suggest that, below a certain level, democracy has no effect on respect for physical integrity rights; however, at high levels of democracy, there appears to be a linear, positive relationship between the two. Nevertheless, this finding suggests a nonlinear relationship across the entire Polity scale. In our findings, such a relationship would be represented by a lack of significance on the additive Polity term and a positive, significant coefficient for the squared Polity term.

  20. 20.

    This may provide further support for the view that non-derogable rights have obtained jus cogens status in international law, i.e. ratification of the ICCPR may not be necessary in order to hold a state responsible for violations of these rights. Further, according to robustness tests, the substantive results for the state of emergency variable do not change if the sample is limited to only those states that have ratified the ICCPR, suggesting that ratification of the ICCPR does not make a state respond differently than other states following a declared state of emergencies. The results of these tests may be viewed in the online appendix.

  21. 21.

    The equation used to calculate these Z scores, taken from Paternosteral et al (1998), is

    \( Z=\frac{{\beta_1 -{\beta_2}}}{{\sqrt{{\sigma_{\beta_1}^2+\sigma_{\beta_2}^2}}}}, \)

    i.e., the difference between the two coefficients divided by the square root of the sum of their squared standard errors.

  22. 22.

    For economy of representation and because the Ns for analysis for a stratified analysis would be even smaller than that in Table 7, we chose to use this indicator as ordinal in nature, rather than including separate dichotomous variables to represent regional and national scopes of emergency. However, we did try analyses using dummy variables for spatial scope and the story told by Table 7 remained essentially the same.

  23. 23.

    In fact, those robustness tests indicate that ICCPR ratifying states demonstrate lower respect for other non-derogable rights, namely political imprisonment and torture, during national states of emergency than during emergencies that are limited in spatial scope. The results of these robustness tests can be viewed in the online appendix.

  24. 24.

    Those who maintain the strict interdivisibility and interdependence of rights view the creation of such reductionist (or essentialist) short-lists as an impossible task.

  25. 25.

    While we are willing to acknowledge that the spatial and temporal extent of a state of emergency may, at times, be beyond the control of the government and may be directly related to the particular crisis at hand, these factors may also be manipulated by states attempting to take advantage of the ability to derogate from their international obligations beyond the region or time of such derogations’ necessity.

References

  1. Abouharb, M. Rodwan, and David L. Cingranelli. 2006. “The Human Rights Effects of World Bank Structural Adjustment, 1981 – 2000.” International Studies Quarterly 50(2): 233-262.

    Article  Google Scholar 

  2. Abouharb, M. Rodwan, and David L. Cingranelli. 2007. Human Rights and Structural Adjustment. New York: Cambridge University Press.

    Google Scholar 

  3. Achen, Christopher, 2000. “Why Lagged Dependent Variables Can Suppress the Explanatory Power of Other Independent Variables”. Paper presented at the Annual Meeting of the Political Methodology Section of the American Political Science Association, University of California, Los Angeles, CA, 20–22 July.

  4. Arieff, Alexis. 2012. “Political Transition in Tunisia.” RS21666 Washington, D.C.: Congressional Research Service.

    Google Scholar 

  5. Cingranelli, David L. and David L. Richards. 1999. “Measuring the Level, Pattern, and Sequence of Government Respect for Physical Integrity Rights.” International Studies Quarterly 43(2): 407-417.

    Article  Google Scholar 

  6. Cingranelli, David L. and David L. Richards. 2008. The Cingranelli-Richards (CIRI) Human Rights Data Project Coding Manual. Version 2008.7.30. <http://ciri.binghamton.edu/documentation/ciri_coding_guide.pdf>. Accessed Octorber 12, 2012.

  7. Cingranelli, David L., and David L. Richards. 2010. The Cingranelli-Richards (CIRI) Human Rights Dataset. Version 2010.8.15. <http://www.humanrightsdata.org>. Accessed Octorber 12, 2012.

  8. CNN Wire Staff. 2012. “Egypt lifts unpopular emergency law.” June 2. http://www.cnn.com/2012/05/31/world/africa/egypt-emergency-law/index.html. Accessed October 12, 2012.

  9. Davenport, Christian. 1996. “’Constitutional Promises’ and Repressive Reality: A Cross-National Time-Series Investigation of Why Political and Civil Liberties are Suppressed.” The Journal of Politics 58(3): 627-654.

    Article  Google Scholar 

  10. Davenport, Christian, and David A. Armstrong. 2004. “Democracy and the Violation of Human Rights: A Statistical Analysis from 1976 to 1996”. American Journal of Political Science 48.3: 538-554.

    Article  Google Scholar 

  11. Erakat, Noura. 2011. “Emergency Laws, the Arab Spring, and the Struggle Against ‘Human Rights’.” Jadaliyya <http://www.jadaliyya.com/pages/index/2051/emergency-laws-the-arab-spring-and-the-struggle-ag> Last Accessed October 12, 2012.

  12. Fein, Helen. 1995. “More Murder in the Middle: Life-Integrity Violations and Democracy in the World.” Human Rights Quarterly 17.1: 170-191.

    Article  Google Scholar 

  13. Fitzpatrick, Joan. 1994. Human Rights In Crisis: The International System for Protecting Rights During States of Emergency. Philadelphia: University of Pennsylvania Press.

    Google Scholar 

  14. Gleditsch, Nils Petter, Peter Wallensteen, Mikael Eriksson, Margareta Sollenberg, Håvard Strand. 2002. “Armed Conflict 1946-2001: A New Dataset.” Journal of Peace Research 39(5): 615-637.

    Article  Google Scholar 

  15. Guzman, Andrew T. 2005-2006. “Saving Customary International Law.” Michigan Journal of International Law 27: 115 – 176.

    Google Scholar 

  16. Hafner-Burton, Emilie M., and Kiyoteru Tsutsui. 2005. “Human Rights in a Globalizing World: The Paradox of Empty Promises.” American Journal of Sociology 110(5): 1373-1411.

    Article  Google Scholar 

  17. Hafner-Burton, Emilie M. and Kiyoteru Tsutsui. 2007. “Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most.” Journal of Peace Research 44.4: 407 – 425.

    Article  Google Scholar 

  18. Hafner-Burton, Emilie M., Laurence R. Helfer, and Christopher J. Fariss. 2011. “Emergency and Escape: Explaining Derogations from Human Rights Treaties.” International Organization 65: 672-707.

    Article  Google Scholar 

  19. Hathaway, Oona. 2002. “Do Human Rights Treaties Make A Difference?” The Yale Law Journal 111(8): 1935-2042.

    Article  Google Scholar 

  20. Henderson, Conway. 1993. “Population Pressures and Political Repression.” Social Science Quarterly 74(2): 322-333.

    Google Scholar 

  21. Henkin, Louis, Gerald L. Neuman, Diane F. Orentlicher, and David W. Leebron. 1999. Human Rights. New York: Foundation Press.

    Google Scholar 

  22. Heston, Alan, Robert Summers, and Bettina Aten. 2006. Penn World Table Version 6.2. Center for International Comparisons of Production: Income and Prices at the University of Pennsylvania. http://pwt.econ.upenn.edu/php_site/pwt_index.php> Last Accessed October 12, 2012.

  23. Ignatieff, Michael. 2001. “Human Rights as Politics and Idolatry.” In Amy Gutmann, ed., Human Rights as Politics and Idolatry. Princeton: Princeton University Press.

    Google Scholar 

  24. Keith, Linda Camp. 1999. “The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behavior?” Journal of Peace Research 36.1: 95 – 118.

    Article  Google Scholar 

  25. Keith, Linda Camp. 2002. “Constitutional Provisions for Individual Human Rights (1977-1996): Are They More Than Mere ‘Window Dressing?’” Political Research Quarterly 55(1): 111-143.

    Google Scholar 

  26. Keith, Linda Camp and Steven C. Poe. 2004. “Are Constitutional State of Emergency Clauses Effective? An Empirical Exploration.” Human Rights Quarterly 26(4): 1071-1097.

    Article  Google Scholar 

  27. Landman, Todd. 2005. Protecting Human Rights: A Comparative Study. Washington, D.C.: Georgetown University Press.

    Google Scholar 

  28. Liivoja, Rain. 2008. “The Scope of the Supremacy Clause of the United Nations Charter.” International & Comparative Law Quarterly 57: 583 – 612.

  29. Lillich, Richard B. 1985. “The Paris Minimum Standards of Human Rights Norms in a State of Emergency.” The American Journal of International Law 79(4): 1072 – 1081.

    Google Scholar 

  30. Livingstone, Stephen. 2002. “International Law relating to States of Emergency and Derogations from International Human Rights Law Treaties.” Paper presented at the Nepal National Workshop for Lawyers on the Legal Protection of Human Rights II: Litigating Human Rights during a State of Emergency, Dhulikhel, Nepal, September 27 – 29. http://www.interights.org/doc/Livingstone_derogation_final.doc> Last Accessed October 12, 2012.

  31. Macken, Claire. 2005. “Terrorism as a State of Emergency in International Law.” Paper presented at the ANZSIL 2005 Conference, Canberra, Australia, June 16-18. <http://law.anu.edu.au/cipl/Conferences&SawerLecture/05%20ANZSIL%20Papers/Macken.pdf> Last Accessed October 12, 2012.

  32. Marshall, Monty G., and Keith Jaggers. 2005. “Polity IV Project: Dataset Users’ Manual.” <http://www.cidcm.umd.edu/polity/datap4manualv2004.pdf/>. Last accessed May 27, 2007.

  33. McCormick, James, and Neil Mitchell. 1988. “Is U.S. Aid Really Linked to Human Rights in Latin America?” American Journal of Political Science 32(1): 231-239.

    Article  Google Scholar 

  34. Monty G. Marshall and Keith Jaggers. 2006. Polity Data Set. Version p4v2006. College Park, MD: Center for International Development and Conflict Management, University of Maryland. < http://www.cidcm.umd.edu/polity/>. Last accessed May 27, 2007.

  35. Neumayer, Eric. 2005. “Do International Human Rights Treaties Improve Respect for Human Rights?” Journal of Conflict Resolution 49.6: 925 – 953.

    Article  Google Scholar 

  36. Neumayer, Eric. 2007. “Qualified Ratification: Explaining Reservations to International Human Rights Treaties.” The Journal of Legal Studies 36.2: 397 – 429.

    Article  Google Scholar 

  37. Neumayer, Eric. 2012. “Do Governments Mean Business When They Derogate? Human Rights Violations During Notified States of Emergency.” Review of International Organizations DOI 10.1007/s1158-012-9144-y

  38. Office of the High Commissioner for Human Rights and International Bar Association. 2003. Human Rights In The Administration Of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers. New York: United Nations.

    Google Scholar 

  39. Paternoster, Raymond, Robert Brame, Paul Mazerolle, and Alex Piquero. 1998. “Using the Correct Statistical Test for the Equality of Regression Coefficients.” Criminology 36 (4): 859-866.

    Article  Google Scholar 

  40. Poe, Steven C. and C. Neal Tate. 1994 "Repression of Rights to Personal Integrity in the 1980s: A Global Analysis." American Political Science Review 88(4): 853-72.

    Article  Google Scholar 

  41. Poe, Steven C., C. Neal Tate, and Linda Camp Keith. 1999. "Repression of the Human Right to Personal Integrity Revisited: A Global Cross-National Study Covering the Years 1976-1993." International Studies Quarterly 43(2): 291-313.

    Article  Google Scholar 

  42. Poe, Steven C., Sabine C. Carey and Tanya C. Vazquez. 2001. “How Are These Pictures Different? A Quantitative Comparison of the US State Department and Amnesty International Human Rights Reports, 1976–1995.” Human Rights Quarterly 23(3): 650 – 677.

  43. Regan, Patrick M., and Errol A. Henderson. 2002. “Democracy, threats and political repression in developing countries: are democracies internally less violent?” Third World Quarterly 23(1): 119-136.

    Article  Google Scholar 

  44. Simmons, Beth A. 2009. Mobilizing for Human Rights: International Law in Domestic Politics. New York: Cambridge University Press.

  45. Strand, Håvard, Joachim Carlsen, Nils Petter Gleditsch, Håvard Hegre, Christin Ormhaug & Lars Wilhelmsen. 2005. “Armed Conflict Dataset Codebook, Version 3-2005.” <http://new.prio.no/upload/datasets/ac3-2006b/Codebook_v3-2005.pdf>. Last accessed May 27, 2007.

  46. United States Department of State. Annual. Country Reports on Human Rights Practices.< http://www.state.gov/g/drl/rls/hrrpt/> and <http://www.state.gov/www/global/human_rights/hrp_reports_mainhp.html>. Accessed Octorber 12, 2012.

  47. von Bernstorff, Jochen. 2008. “The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law.” The European Journal of International Law 19.5: 903-924.

    Article  Google Scholar 

  48. von Stein, Jana. 2005. “Do Treaties Constrain or Screen? Selection Bias and Treaty Compliance.” American Political Science Review 99.4: 611 – 622.

    Google Scholar 

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Acknowledgments

The authors thank Richard Wilson and David Cingranelli for their counsel. This research has benefitted from support by the National Science Foundation (NSF) via Grant Nos. SES- 0318273, SES- 0647969, and SES- 0647916. The NSF is not responsible for any opinions, findings, or conclusions related to this work.

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Correspondence to David L. Richards.

Appendix A

Appendix A

Table 6 Countries in data sample under declared states of emergency, 1996–2004

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Richards, D.L., Clay, K.C. An Umbrella With Holes: Respect for Non-Derogable Human Rights During Declared States of Emergency, 1996–2004. Hum Rights Rev 13, 443–471 (2012). https://doi.org/10.1007/s12142-012-0245-z

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Keywords

  • Human rights
  • International law
  • Non-derogable rights
  • Physical integrity rights
  • Empowerment rights
  • State of emergency