Human Rights, Emergencies, and the Rule of Law
Evan J. Criddle
William & Mary Law School
McGill University - Faculty of Law
April 18, 2010
Human Rights Quarterly, Forthcoming
Experience suggests that public emergencies pose a heightened threat of grave and systematic human rights abuse. To address this threat, international law regulates states’ derogation from their human rights commitments through a two-tiered inquiry: First, are circumstances on the ground sufficiently dire to warrant a state of emergency? Second, if a state of emergency is warranted, are the state’s responsive measures strictly necessary to address the emergency? This article illuminates the normative basis for international law’s two-tiered approach to public emergencies by arguing that human rights are best conceived in Kantian terms as norms arising from a fiduciary relationship between states (or state-like actors) and the citizens and noncitizens subject to their power. States bear a fiduciary duty to guarantee subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory of human rights clarifies the substantive and procedural principles that guide international law’s regulation of public emergencies. It also disarms Carl Schmitt’s critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.
Number of Pages in PDF File: 36
Keywords: emergencies, state of emergency, state of exception, rule of law, human rights, international law
Date posted: April 19, 2010 ; Last revised: March 14, 2011
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