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Emergencies

I. INTRODUCTION

At the heart of IHRL lies a practical challenge intertwined with a theoretical problem. The practical challenge is that many of the most grave and systematic human rights abuses occur during public emergencies, when states employ extraordinary powers to address threats to public order. In responding to this challenge, each ofthe leading international and regional covenants on civil and political rights has endeavored to regulate states' entry into and conduct within states of emergency. The "cornerstone [s] ” of these covenants are their derogation clauses,[1] which permit states to restrict some human rights during emergencies—but only where strictly necessary to address threats to "the life of the nation”[2] or the "independence or security” of the state.[3] This derogationcentric approach enables IHRL to accommodate concerns for public necessity during emergencies, but it also presents a vexing theoretical problem: In what sense are human rights truly rights if they are subject to derogation during emergencies?

This chapter seeks to resolve this apparent paradox by demonstrating how the fiduciary conception of state sovereignty illuminates IHRL's normative foundations. In previous chapters, we have argued that human rights are best conceived in relational and legal terms as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee their subjects' secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers.[4] International law authorizes states to exercise sovereign powers on behalf of their people, but these powers are subject to strict legal limitations flowing from the Kantian idea that agents are always to be treated as ends (the principle of non-instrumentalization) and the republican idea that persons are not to be subject to arbitrary power (the principle of non-domination). As discussed in the previous chapter, under the fiduciary theory's relational account, human rights are not timeless and absolute moral rights that individuals possess merely because they are human. Rather, human rights represent the normative consequences of a state's assumption of sovereign powers, and are thus constitutive of sovereignty's normative dimension.

The fiduciary theory of human rights provides a sound philosophical grounding for the central features of IHRL's derogation regime. According to the theory, states bear an obligation to safeguard their subjects' equal freedom during emergencies— even if this requires derogation from some human rights norms, such as the freedoms of expression, movement, and peaceable assembly. Nonperemptory human rights norms are subject to derogation in contexts where the strict observance of these norms would conflict with the state's overarching fiduciary obligation to guarantee their subjects' secure and equal freedom. But states must also refrain from taking measures in emergencies that would simply replace private domination with public domination. Thus, states may never derogate from peremptory norms, such as the prohibitions against genocide, prolonged arbitrary detention, and torture, because the violation of these norms could never be consistent with the state's obligation to guarantee the public's secure and equal freedom. International law recognizes these principles during emergencies—permitting derogation of some norms in some contexts—to ensure that persons are treated always as ends-in-themselves and not merely as means to the state's ends. States may employ emergency powers only where exigent circumstances imperil the state's ability to guarantee secure and equal freedom, and only where the particular measures employed are strictly necessary for this purpose. Thus framed, the fiduciary theory stakes out an intermediate position between the view that all human rights are absolute and timeless, on the one hand, and the equally popular Schmittian view, on the other hand, that states may abrogate human rights unilaterally in emergencies. The fiduciary theory also promises a charitable interpretation of international law's emergency constitution, in the sense that it allows human rights to provide baseline standards even when some of these rights are subject to derogation. It therefore stands in contrast to more "realist” views that view derogation as a dangerous and human-rights-threatening affirmation of the supremacy of state sovereignty over the individual.

At its core, the fiduciary theory is about the limits of legitimate state action. As such, it can provide guidance to international and regional tribunals charged with adjudicating those limits, even during emergencies. The fiduciary theory suggests that some judicial interpretations ofinternational conventions unnecessarily restrict states' ability to safeguard legal order. For instance, the fiduciary theory challenges the standard developed by the European Court of Human Rights (ECHR) that a public emergency must "concern [a state's] entire population” to justify a state of emergency.5 Under the fiduciary model, states would be permitted to derogate from 110 (2015) (tracing this tradition through the Roman Republic, medieval Europe, and Weimar Germany).

5. Lawless v. Ireland, 3 ECHR (1961) Series A, No. 3 (Court), 56 [hereinafter Lawless Court].

their human rights obligations where necessary to address localized instability that threatened the state's capacity to maintain legal order. Conversely, the fiduciary theory suggests that in some important respects international and regional tribunals have not gone far enough in limiting human rights derogation. Once a state of emergency has been declared, for example, the fiduciary theory's principles of non-instrumentalization and non-domination require states to provide or facilitate more robust public notification, justification, and contestation. The theory also dictates a more limited role for judicial deference to state decision-makers under the controversial "margin of appreciation” doctrine, and it offers a principled response to Carl Schmitt's argument that the rule of law cannot constrain state action during states of exception or emergency.[5] In these and other respects, the fiduciary theory more fully elucidates IHRL's proper content and consequences.

This chapter outlines the fiduciary theory's approach to public emergencies in several steps. In Part II, we lay out the central features of international law's emergency constitution as codified in human rights treaties and clarified in the jurisprudence of regional human rights tribunals. In Part III, we argue that the fiduciary theory's relational and deliberative conception of human rights explains why and under what conditions states are entitled to suspend certain human rights obligations during public emergencies. In Part IV, we outline Schmitt's challenge to the rule of IHRL, and in Part V we argue that the fiduciary theory defuses this challenge by affirming that states, as institutions constituted and regulated by international law, are required to exercise their sovereign power in a manner that is always consistent with the principles of formal legal equality, integrity, and solicitude. In Part VI, we explore how the fiduciary theory illuminates the role of courts and international institutions as facilitators of public justification and arbiters of legality during emergencies. Part VII addresses objections to the fiduciary theory's approach to public emergencies, and Part VIII offers a brief conclusion.

  • [1] Jaime Oraa, Human Rights in States of Emergency in International Law 1(1992).
  • [2] Convention for the Protection of Human Rights and Fundamental Freedoms, art. 15.1, Nov.4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention]; International Covenant on Civiland Political Rights, art. 41, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; League ofArab States, Revised Arab Charter on Human Rights art. 4.1 (May 22, 2004), 12 Int'l Hum.Rts. Rep. 893 (2005) [hereinafter Arab Charter].
  • [3] American Convention on Human Rights art. 27.1, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144U.N.T.S. 123 [hereinafter ACHR].
  • [4] The fiduciary theory we develop here builds upon a long-standing tradition in Western legaland political theory of invoking “public trust” (fidespublica, fides, or Verfassungstreue) as a constitutional constraint against the abuse of emergency powers. See generally Marc de Wilde, JustTrust Us: A Short History of Emergency Powers and Constitutional Change, 3 Comp. Leg. History
  • [5] See Carl ScHMitt, Political Theology: Four Chapters on the Concept ofSovereignty (George Schwab transl. 2005) (rev'd ed. 1934).
 
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