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Protecting Human Rights During Emergencies: Delegation, Derogation, and Deference

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Netherlands Yearbook of International Law 2014

Part of the book series: Netherlands Yearbook of International Law ((NYIL,volume 45))

Abstract

Leading human rights treaties permit states as a temporary measure to suspend a variety of human rights guarantees during national crises. This chapter argues that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their own interests in a manner that compromises human rights protection. Human rights treaties use broad legal standards to entrust states with responsibility for deciding what measures are best calculated to maximise human right protection during emergencies. For this delegation of authority to operate effectively, international tribunals must accord a healthy measure of deference to state derogations. Deference to state derogations is not warranted, however, if circumstances suggest that national authorities are not prepared to serve as impartial, rights-optimising trustees for their people.

Professor of Law and Tazewell Taylor Research Professor, William & Mary Law School. The author wishes to express his appreciation to Monika Ambrus and Ramses Wessel for their invitation to participate in this symposium on ‘Temporariness in International Law’. Special thanks also to Angela Banks, Trey Childress, Diane Desierto, John Linarelli, Gerald Neuman, Fionnuala Ní Aolaín, James Nickel, Thomas Poole, William Scheuerman, Scott Sheeran, and several anonymous reviewers for helpful comments at various stages of this project.

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Notes

  1. 1.

    See, e.g., Articles 14(1), 19, 21, 22 of the 1966 International Covenant on Civil and Political Rights, 999 UNTS 171 (hereinafter ICCPR); Article 4 of the 1966 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (hereinafter ICESCR).

  2. 2.

    See, e.g., Article 4(1) ICCPR.

  3. 3.

    See, e.g., Article 2 ICESCR.

  4. 4.

    See, e.g., Article 4(2) ICCPR.

  5. 5.

    See Article 4(1) ICCPR.

  6. 6.

    See Article 27(1) of the 1969 American Convention on Human Rights, 1144 UNTS 123 (hereinafter American Convention).

  7. 7.

    See Article 4(1) of the 2004 Revised Arab Charter on Human Rights, reprinted in 12 International Human Rights Report 893 (2005) (hereinafter Arab Charter).

  8. 8.

    See Article 15(1) of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221 (hereinafter European Convention).

  9. 9.

    See generally Hart 2012, Chap. VII.

  10. 10.

    Ibid., at 131.

  11. 11.

    Ibid., at 132.

  12. 12.

    See Kaplow 1992, at 559 (distinguishing rules from standards based on ‘whether the law is given content ex ante or ex post’).

  13. 13.

    See, e.g., Article 4 ICCPR.

  14. 14.

    Schauer 2013, at 1191.

  15. 15.

    Article 4(1) ICCPR.

  16. 16.

    See, e.g., The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, reprinted in 7 Human Rights Quarterly 3 1985 (hereinafter Siracusa Principles).

  17. 17.

    See Article 4(1)–(2) Arab Charter; Article 27(1)–(2) American Convention; Article 15(1)–(2) European Convention; Article 4(1)-(2) ICCPR.

  18. 18.

    See Article 4(3) Arab Charter; Article 27(3) American Convention; Article 15(3) European Convention; Article 4(3) ICCPR.

  19. 19.

    See Article 4 Arab Charter; Article 27 American Convention; Article 15(1) European Convention; Article 4(1) ICCPR.

  20. 20.

    See Article 4(1) Arab Charter; Article 27(1) American Convention; Article 15(1) European Convention; Article 4(1) ICCPR.

  21. 21.

    See, e.g., Article 4(1) Arab Charter; Article 27(1) American Convention; Article 15(1) European Convention; Article 4(1) ICCPR.

  22. 22.

    See Article 4(1) ICCPR; Article 15(1) European Convention; Article 4(1) Arab Charter.

  23. 23.

    Article 27(1) American Convention.

  24. 24.

    Article 4(1) ICCPR.

  25. 25.

    Article 27(1) American Convention.

  26. 26.

    Of course, there are also significant differences between these instruments, including their descriptions of the types of emergencies that support derogation, the information that must be conveyed in a notice of derogation, and the specific human rights norms that they identify as derogable or nonderogable. Other human rights instruments such as the African Charter on Human and Peoples Rights do not contain derogation clauses.

  27. 27.

    See Hart 2012, Chap. VII.

  28. 28.

    Legal standards that resist specification both ex ante (through rulemaking) and ex post (through adjudication) effectively become non-justiciable political questions.

  29. 29.

    See, e.g., Human Rights Committee, General Comment No. 5: Derogations (Article 4), U.N. Doc. HRI/GEN/1/Rev. 9, May 27, 2008 (hereinafter General Comment 5); Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001 (hereinafter General Comment 29).

  30. 30.

    See, e.g., Murray v. United Kingdom, No. 14310/88, 28 October 1994, para 90; Ireland v. the United Kingdom, ECtHR, No. 5310/71, 18 January 1978, para 207.

  31. 31.

    See, e.g., Habeas Corpus in Emergency Situations (Articles 27(2) and 7(6) American Convention), IACtHR, Advisory Opinion OC-8/87, 30 January 1987.

  32. 32.

    Article 40(4) ICCPR.

  33. 33.

    See General Comment 5; General Comment 29.

  34. 34.

    General Comment 5, para 3; General Comment 29, para 2.

  35. 35.

    General Comment 29, paras 1, 3.

  36. 36.

    To the extent that the HRC has introduced bright-line rules for human rights derogation, these rules can be divided into two relatively narrow categories. First, the Committee has endeavored to clarify how nonderogable human rights norms apply to emergencies, affirming, inter alia, that the prohibition against ‘unacknowledged detention’ and ‘fundamental requirements of a fair trial’ such as the presumption of innocence ‘must be respected during a state of emergency’. Ibid., paras 13(b) and 16. Second, the HRC has introduced a number of bright-line rules for derogation procedures. According to the HRC, this notice ‘should include full information about the measures taken and a clear explanation of the reasons for them, with full documentation attached regarding their law.’ Ibid., para 17. See also General Comment 29, para 2 (emphasising that a ‘State party must have officially proclaimed a state of emergency’ to honor ‘principles of legality and rule of law at times when they are most needed’).

    Legal experts have proposed additional norms, principles, and procedures to guide future human rights derogation. See, e.g., Siracusa Principles, at 7, paras 23–30 (proposing, inter alia, that a crisis must affect the whole population in all or part of a state’s territory, not ‘merely local or relatively isolated threats,’ and threaten a state’s physical integrity or political independence to qualify as a genuine ‘public emergency’).

  37. 37.

    Greek Case, ECtHR, Nos. 3321/67, 3322/67, 3323/67 and 3344/67, 5 November 1969, para 113.

  38. 38.

    Greek Case, ECtHR, Nos. 3321/67, 3322/67, 3323/67 and 3344/67, 5 November 1969.

  39. 39.

    A & Others v. United Kingdom, ECtHR, No. 3455/05, 19 February 2009.

  40. 40.

    Ibid., para 11.

  41. 41.

    Ibid.

  42. 42.

    Ibid., para 175.

  43. 43.

    Ibid., paras 110, 178. See generally General Comment No 29, para 2.

  44. 44.

    A and Others v. United Kingdom, ECtHR, No. 3455/05, 19 February 2009, para 178 (citing Ireland v. United Kingdom, Brannigan v. McBride, and Marshall v. United Kingdom).

  45. 45.

    Ibid., para 177. For an argument that no threat to the life of the nation was ‘imminent’, see also Hughes 2007, at 54.

  46. 46.

    A and Others v. United Kingdom, ECtHR, No. 3455/05, 19 February 2009, para 179 (citing the July 2005 suicide bombings in central London). See also Macdonald 1997. ‘The Convention should not be interpreted in a way that prevents states from taking action to avert the aggravation of localized emergencies’, Macdonald 1997, at 240.

  47. 47.

    One plausible reading of A and Others is that the decision collapses steps three and four of the Court’s traditional analysis for evaluating human rights derogation into a single inquiry: states may derogate from their human rights commitments whenever such measures are ‘strictly required’ to guarantee basic security under the rule of law for their people. On this reading, whether a ‘public emergency’ exists is no longer an independent legal requirement but a legal conclusion that follows from the application of HRL’s strict-necessity standard. Under the logic of A and Others, therefore, a crisis constitutes a genuine ‘public emergency’ if derogation is strictly necessary to satisfy the state’s sovereign responsibility to protect its people. Cf. Sheeran 2013, at 553 (proposing that courts treat the existence of a ‘public emergency’ as a political question).

  48. 48.

    See Kennedy 1976, at 1714–1724.

  49. 49.

    Markovits 2014.

  50. 50.

    Ibid.

  51. 51.

    Schlag 1985, at 420.

  52. 52.

    See Restatement (Second) of Agency, 1958, § 387 (describing fiduciaries’ obligation to beneficiaries primarily as a duty ‘to act solely for the benefit of the principal in all matters connected with his agency’).

  53. 53.

    See Kaplow 1992, at 563–564.

  54. 54.

    For discussing the business-judgment rule in corporate law, see Aronson v. Lewis, 473 A.2d 805, 1 March 1984, at 812.

  55. 55.

    See, e.g., Chevron U.S.A., Inc. v. National Res. Defense Council, Inc., 467 U.S. 837, 1984, at 843–844.

  56. 56.

    See Fox-Decent and Criddle 2009 explaining how nonderogable human rights norms are consistent with a fiduciary conception of state authority under HRL.

  57. 57.

    Article 2(1) ICESCR.

  58. 58.

    Article 2 ICCPR.

  59. 59.

    Article 8 ICCPR.

  60. 60.

    See, e.g., Marckx v. Belgium, ECtHR, 6833/74, 13 June 1979, para 31 (explaining that the European Convention ‘does not merely compel the State to abstain from … interference [with family life]’ but also imposes ‘positive obligations inherent in an effective “respect” for family life’).

  61. 61.

    See, e.g., Chowdhury 1989, at 58–59 (observing that the International Commission of Jurists considered it ‘axiomatic that, for the protection of human rights, the greatest possible degree of judicial control should be striven for’).

  62. 62.

    See Article 4(1) ICCPR; Article 15(1) European Convention; Article 4(1) Arab Charter.

  63. 63.

    Article 27(1) American Convention.

  64. 64.

    See, e.g., Siracusa Principles, para 39. These Principles suggest that human rights derogation is permissible only to safeguard ‘the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and project the rights recognized in the Covenant’.

  65. 65.

    See Article 12(1) ICCPR.

  66. 66.

    Article 29(2) of the 1948 Universal Declaration of Human Rights, UNGA Res. 217 A(III), 10 December 1948.

  67. 67.

    See Shany 2005, at 915, arguing that the choice of standards ‘marks a preference for pluralism and diversity over uniformity in law-application, and the empowerment of decentralized national decision-makers at the expense of their international counterparts’).

  68. 68.

    Evan Fox-Decent and I have argued elsewhere that the nonderogable character of the prohibition against torture is consistent with a spirit of altruism because a state that violated this norm could not plausibly claim to treat its people as equal beneficiaries under the rule of law. See Criddle and Fox-Decent 2012, at 55–56. Even the prohibition against torture cannot be reduced entirely to bright-line rules, however, because it is difficult to specify ex ante precisely how states should allocate their resources to enforce the prohibition within their jurisdictions.

  69. 69.

    Hamilton 1787; cf. Kaplow 1992, at 564 (observing that standards are better suited than rules to govern ‘heterogeneous behavior, in which each type of relevant activity may be rare’).

  70. 70.

    Vermeule 2000, at 92.

  71. 71.

    Hart 2012, at 131.

  72. 72.

    In U.S. law, these principles are evident in fields as diverse as the law of fiduciaries and administrative law. See Criddle 2006.

  73. 73.

    Cf. Smith and Lee 2014 (characterising fiduciary discretion as a decision-making space); Strauss 2012 (defining the Chevron doctrine in U.S. administrative law in these terms).

  74. 74.

    Brannigan and McBride v. United Kingdom, ECtHR, Nos. 14553/89, 14554/89, 25 May 1993, para 48.

  75. 75.

    A and Others v. United Kingdom, ECtHR, No. 3455/05, 19 February 2009, para 184.

  76. 76.

    See Case ‘Relating To Certain Aspects Of The Laws On The Use Of Languages In Education In Belgium’ v. Belgium, ECtHR, Nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, 23 July 1968, paras 33–34 (emphasising the subsidiary character of the Court’s oversight function).

  77. 77.

    Brannigan and McBride v. United Kingdom, ECtHR, Nos. 14553/89, 14554/89, 25 May 1993, para 43. See also A and Others v. United Kingdom, ECtHR, No. 3455/05, 19 February 2009, para 174 (‘The object and purpose underlying the [European] Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction.’).

  78. 78.

    Brannigan and McBride v. United Kingdom, ECtHR, Nos. 14553/89, 14554/89, 25 May 1993, para 59 (citing Ireland v. United Kingdom and Klass and Others v. Germany); cf. Handyside v. United Kingdom, ECtHR, No. 5493/72, 7 December 1976, at 22 (noting that the ECtHR cannot assume the role of national courts and legislatures when balancing conflicting interests); Case ‘Relating To Certain Aspects Of The Laws On The Use Of Languages In Education In Belgium’ v. Belgium, ECtHR, Nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, 23 July 1968, paras 34–35 (stating that the court cannot assume the role of national authorities). Commentators have observed that the margin of appreciation doctrine has its genesis in continental administrative law—another area where discretionary power is entrusted to institutions for altruistic purposes subject to obligations of reasoned justification. See, e.g., Gross and Ní Aoláin 2001, at 626.

  79. 79.

    See, e.g., Benvenisti 1999, at 844; Mahoney 1998.

  80. 80.

    MacDonald 1993, at 123. See also Shany 2005, at 918.

  81. 81.

    Brannigan and McBride v. United Kingdom, ECtHR, Nos. 14553/89, 14554/89, 25 May 1993, para 59. Orin Gross and Fionnuala Nì Aolaìn have challenged the view that during emergencies national authorities are better positioned than international tribunals to evaluate the need for emergency measures; see Gross and Nì Aolaìn 2001, at 638.

  82. 82.

    See Sheeran 2013, at 495.

  83. 83.

    See Brogan and Others v. United Kingdom, ECtHR, Nos. 11209/84, 11234/84, 11266/84, 11386/85, 29 November 1988, para 58.

  84. 84.

    Handyside v. United Kingdom, ECtHR, No. 5493/72, 7 December 1976, paras 47–48.

  85. 85.

    Protocol No. 15 Amending the Convention for the Protection of Human Rights and Fundamental Freedoms, 24 April 2013.

  86. 86.

    Ibid. Article 1.

  87. 87.

    Murray v. United Kingdom, ECtHR, 14310/88, 28 October 1994, para 38.

  88. 88.

    Brannigan and McBride v. United Kingdom, ECtHR, Nos. 14553/89, 14554/89, 25 May 1993, para 48.

  89. 89.

    Aksoy v. Turkey, ECtHR, No. 21987/93, 18 December 1996.

  90. 90.

    Cf. Gross 1998, at 498 (expressing concern about ‘the pernicious use of the [margin of appreciation] doctrine to avoid conducting an independent examination of the evidence’).

  91. 91.

    See Shany 2005, at 927 (suggesting other factors).

  92. 92.

    See Landinelli Silva v. Uruguay, HRC, Comm. No. 34/1978, 8 April 1981 para 8.3 (emphasising that states are ‘duty-bound to give a sufficiently detailed account of the relevant facts’ to facilitate review, and that ‘[i]f the respondent Government does not furnish the required Justification itself, … the Human Rights Committee cannot conclude that valid reasons exist to legitimate a departure from the normal legal regime prescribed by the Covenant’).

  93. 93.

    See, e.g., Snepp v. United States, 444 U.S. 507, 19 February 1980, at 515.

  94. 94.

    See Hennebel 2011, at 60 (observing that in the jurisprudence of the Inter-American Court of Human Rights, vulnerable groups that historically have been the subject of discrimination such as children, women, indigenous groups, and disabled persons receive ‘stronger protection’).

  95. 95.

    See Legg 2012, at 31 (observing that the IACtHR lacks ‘a well-established doctrine of deference” and that “a number of cases seem to imply that there will be no deference to states’).

  96. 96.

    See, e.g., Candia 2014; Contreras 2012, at 28.

  97. 97.

    Habeas Corpus in Emergency Situations (Articles 27(2) and 7(6) of the American Convention on Human Rights), IACtHR, Advisory Opinion OC-8/87, 30 January 1987, para 20.

  98. 98.

    This may help to explain why the IACtHR has developed a more rule-focused jurisprudence than its European counterpart, including recognition of a greater number of human rights norms as ‘regional jus cogens.’ See, e.g., Roach and Pinkerton, Case 9647, IACHR, Resolution No 3/87, OEA/ser.L./V./II.71, doc. 9 rev. 1, 22 September 1987, at 168–170 (characterising ‘execution of children’ as a jus cogens norm); cf. Schauer 2013, at 1191–1193 (noting that ‘rules can empower criticism in ways that standards do not’).

    Similarly, it has been suggested that the absence of a derogation provision in the African Charter on Human and Peoples Rights reflects a ‘historical legacy both in colonial and postcolonial societies’ in which emergency powers were abused. See Cowell 2013, at 153.

  99. 99.

    Article 4(1) ICCPR.

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  1. William & Mary Law School, Williamsburg, VA, USA

    Evan J. Criddle

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  1. Department of International and Constitutional Law, University of Groningen, Groningen, The Netherlands

    Mónika Ambrus

  2. Centre for European Studies, University of Twente, Enschede, The Netherlands

    Ramses A. Wessel

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Criddle, E.J. (2015). Protecting Human Rights During Emergencies: Delegation, Derogation, and Deference. In: Ambrus, M., Wessel, R. (eds) Netherlands Yearbook of International Law 2014. Netherlands Yearbook of International Law, vol 45. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-060-2_8

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