Emergency and Escape: Explaining Derogation from Human Rights Treaties

International Organization, Vol. 65, p. 673, Fall 2011

35 Pages Posted: 9 Jun 2010 Last revised: 20 Feb 2015

Emilie Marie Hafner-Burton

UCSD School of Global Policy and Strategy

Laurence R. Helfer

Duke University School of Law; iCourts: Center of Excellence for International Courts

Christopher J. Fariss

Pennsylvania State University

Date Written: August 19, 2011

Abstract

Several prominent human rights treaties attempt to minimize violations during emergencies by authorizing states to “derogate” - that is, to suspend certain civil and political liberties - in response to crises. The drafters of these treaties envisioned that international restrictions on derogations and international notification and monitoring mechanisms would limit rights suspensions during emergencies. This article analyzes the behavior of derogating countries using new global datasets of derogations and states of emergency from 1976 to 2007. We argue that derogations are a rational response to domestic political uncertainty. They enable governments facing serious threats to buy time and legal breathing space from voters, courts, and interest groups to confront crises while signaling to these audiences that rights deviations are temporary and lawful. Our findings have implications for the studies of treaty design and flexibility mechanisms and compliance with international human rights agreements.

Keywords: International Law, Human Rights, Treaties, Flexibility, Derogation, Compliance, Emergencies, Crises, ICCPR

Suggested Citation

Hafner-Burton, Emilie Marie and Helfer, Laurence R. and Fariss, Christopher J., Emergency and Escape: Explaining Derogation from Human Rights Treaties (August 19, 2011). International Organization, Vol. 65, p. 673, Fall 2011. Available at SSRN: https://ssrn.com/abstract=1622732

Emilie Marie Hafner-Burton (Contact Author)

UCSD School of Global Policy and Strategy ( email )

9500 Gilman Drive
La Jolla, CA 92093-0519
United States

HOME PAGE: http://gps.ucsd.edu/ehafner/

Laurence R. Helfer

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

iCourts: Center of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/icourts/news/laurence-r-helfer/

Christopher J. Fariss

Pennsylvania State University ( email )

University Park
State College, PA 16802
United States

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