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

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

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

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

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

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

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

  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. 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. 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. 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. 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. 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. 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. 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. 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.

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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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Authors and Affiliations

  1. Department of Political Science and Human Rights Institute, The University of Connecticut, Storrs, Mansfield, CT, USA

    David L. Richards

  2. Department of International Affairs, University of Georgia, Athens, GA, 30602-1492, USA

    K. Chad Clay

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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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