As exceptional as the COVID-19 pandemic is as an event, it nonetheless belongs to the genre of ‘emergency’: those unforeseen, unexpected phenomena that seem to menace the continuation of the State and which demand therefore immediate response. International law recognises the permissibility of necessary and proportionate restrictions on derogable human rights when States are faced with these exceptional challenges— when, for instance, the ‘independence or security’ or ‘the life’ of the nation comes under threat. [1] As of May 2020, states of emergency declared in places like Hong Kong, Italy, Japan, the Philippines, and the United States—to name a few—have empowered these States to commandeer private property, to mandate curfews and quarantines, to arrogate the rights of citizens to free movement, peaceable assembly, and medical confidentiality. However, as Evan J. Criddle and Evan Fox-Decent note, it is a terrible irony that ‘many of the most grave and systematic human rights abuses occur’ precisely when States make use of such extraordinary powers. [2] It is also too frequently the case that States flirting with or fully in the grip of authoritarian political structures find ostensibly contingent emergency measures quickly reifying into permanent emergency structures: in Columbia, martial law has largely replaced civil law as the norm; [3] meanwhile advocates for civil liberties in Israel warn that powers granted to internal intelligence agency, the Shin Bet, in March 2020 to track citizens using their mobile data (a part of the country’s emergency response to the pandemic) are unlikely to be rescinded by the government. [4] Thus, states of emergency raise fundamental questions about the nature of human rights law. Does the suspension or curtailment of human rights in times of emergency undermine the authority of these laws per se? How can the authority of these rights be asserted once it is understood that any guarantee of freedom can be subject to the dictates of necessity?
Since 1948, internationally arbitrated laws adhering to Kantian ideas about the moral agent as an autonomous end in his or her own right have acted in principle to shield individuals—regardless of conduct, circumstances, citizenship, or moral worth—from the worst excesses of the State’s right to exercise sovereign powers on behalf of its residents. These legal norms include rights to life, liberty, movement, and assembly, as well as freedoms from arbitrary detention and state interference in private lives and livelihoods. However, a crucial feature of major international human rights treaties is the provision they make for States facing crises to exempt themselves from portions of the treaty. This accommodation is usually enabled by a process called ‘derogation’, the legally mandated privilege of States to restrict a certain number of rights during a ‘public emergency’. [5] It is typically the case that any request to derogate rights is subject to at least some degree of international oversight; it is the norm that rights may be suspended or curtailed only if these ‘limitations are necessary (not merely convenient or desirable), imposed by law (not just at the whim or total discretion of government officials), and for purposes that are essentially democratic (an authoritarian government cannot limit rights merely to keep itself in power)’. [6] It is also true that States are not allowed to derogate from a few ‘absolute’ rights, like the right to be free from torture, extrajudicial killing, slavery, forced labor, and punishment without due process of law. Nonetheless, the provision made for derogation invites one to look at human rights from a pragmatic stance, in which they are, first and foremost, an instrument of the collective good.
If rights are not—under this lens—regarded as unconditional and universal protections, it follows that they may be repealed or abridged when it is in the interest of the majority. After all (the argument goes), what is the sense of a right to free movement if society is so menaced by infection or by terrorism that leaving one’s house presents a life-threatening risk? As Ronald Dworkin points out, though, when public emergencies are declared, it is not often that the entire population of a State is asked to sacrifice a degree of its liberty to gain a measure of security; more ordinarily, a small minority find their rights curtailed for the good of the commons. [7] In 1944, for instance, shortly after Imperial Japan’s attack on Pearl Harbor, President Franklin D. Roosevelt responded to concerns for the nation’s security by ordering the forced relocation and incarceration of more than 120,000 people of Japanese ancestry. [8] Around 62% of these internees were U.S. citizens. It is likely, then, that if human rights are thought subject to the public interest this will always present some degree of threat to minority rights. And who is to say that I will not eventually find myself in that minority? The implication being that if the Other’s rights are contingent upon political exigencies, so, too, are mine.
There is, moreover, evidence to suggest that suspensions of or limitations to derogable rights, even when such suspensions or limitations come with ‘sunset clauses’, in the long term cause serious and irreversible damage to the framework of rights itself. Regarding the post-September 11 world, for example, the data affirms that among those States that suspended due process in the cases of suspected terrorists, non-derogable rights have also been more vulnerable to attrition: in particular, the international prohibition on extrajudicial killing has been subject to increased violation. [9] The reasons for this are complex but the UN’s Special Rapporteur, Fionnuala Ní Aoláin, proposes that preventing ‘contamination’ is a serious challenge for States that have invoked emergency powers in order to suspend the rights of due process in the case of a targeted group: ‘it is hard to seal off those parts of security, intelligence and policing systems that operate [according to emergency] legislation from the ordinary criminal justice system that deals with ordinary crimes’. [10]
The risks that are posed to the frameworks of rights as a whole, as well as to minority rights, indicate the limits of taking a solely pragmatic or utilitarian view of the balance between the security of the commons and civil liberties. Perhaps we are better placed, then, to conceive of human rights as unconditional, universal entitlements that exist apart from, and cannot be made subject to, the particular circumstances of any State, whether it is at peace or at war, secure or facing crisis. Civil libertarians argue that the legitimacy of human rights law depends precisely on this: the capacity of internationally-mandated entitlements to stand apart and thereby to be shielded from political pressures. Rights treaties act as the higher standard by which the international community measures the conduct of each and every State; these treaties represent a foundational commitment to the dignity of every person. Hence, their limitation, suspension, at worst their violation, should be regarded, in all but the most justifiable of circumstances, as an unacceptable breach of the global order. Yet many would respond that this conception of human rights as ultimate and self-sufficient goods is simply unrealistic. Surely, the maintenance and the enforcement of rights entirely depends on the viability of the State as a political order? That is to say, human rights can survive in emergencies only to the degree that they do not prevent the State from surviving, for without this construct there can be no protection of rights.
In and of themselves, commitments to equal protection and dignity do not shield States from crises— they may even exacerbate emergencies in circumstances where public safety depends upon establishing limits to movement, residence, and assembly. It is this logic which contributes to the argument that rights which stand in the way of the State’s survival can and ought to be suspended in times of crisis. Nevertheless, public emergencies remain a pervasive, under-supervised source of human rights violations globally, and it is arguably the case that history has taught the international community to be far more wary of tyranny than of any other kind of terror.
Image Credit to Markus Winkler on Unsplash.
[1] American Convention on Human Rights, signed 22 Nov. 1969, art. 27.1, O.A.S. Doc. OEA/Ser.L/V/ll.23, doc. 21., rev.6 (1979), O.A.S.T.S. No. 36, 1 144 U.N.T.S. 143 (entered into force 18 July 1978). [2] Evan J. Criddle and Evan Fox-Decent, “Human Rights, Emergencies, and the Rule of Law.”Human Rights Quarterly 34, no. 1 (2012): 39–87 (40). Accessed May 14 2020. www.jstor.org/stable/41345471. [3] Gabriel L. Negretto and José Antonio Aguilar Rivera, “Liberalism and Emergency Powers in Latin America: Reflections on Carl Shmitt and the Theory of Constitutional Dictatorship.” Cardozo Law Review 21 (2000): 1797– 2119. [4] David M. Halbfinger, Isabel Kershner and Ronen Bergman, “To Track Coronavirus, Israel Moves to Tap Secret Trove of Cellphone Data.” The New York Times. March 16 2020. Accessed May 23 2020. https://www.nytimes.com/2020/03/16/world/middleeast/israel-coronavirus-cellphone-tracking.html
[5] In Lawless v. Ireland, 1 Eur. Ct HR (ser. B) para. 90, at 82 (1960–61) (Commission report), a ‘public emergency’ was defined for the purposes of article 15 of the European Convention on Human Rights as ‘a situation of exceptional and imminent danger or crisis affecting the general public, as distinct from particular groups, and constituting a threat to the organised life of the community which composes State in question’. Cited in Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006), p. 249.
[6] Hurst Hannum, “Reinvigorating Human Rights for the Twenty-First Century.” Human Rights Law Review 16, no. 3 (September 2016): 409–451 (439).
[7] Ronald Dworkin, “The Threat to Patriotism.” In Understanding September 11, ed. Craig Calhoun et al. (New York: New Press, 2002), 273–85.
[8] The official 1946 records from the War Relocation Authority state that the number of displaced and interned peoples was 120,000. This number does not include internees held in camps run by the Department of Justice or the military. See Tetsuden Kashima, Judgment Without Trial: Japanese American Imprisonment During World War II (Seattle WA:University of Washington Press, 2003).
[9] See Eric Neumayer, “Do Governments Mean Business When They Derogate? Human Rights Violations During Notified States of Emergency.” The Review of International Organizations 8, no. 1 (March 2013), pp. 1–31; and David L. Richards and K. Chad Clay, “An Umbrella with Holes: Respect for Non-Derogable Human Rights During Declared States of Emergency, 1996-2004.” Human Rights Review 13, no. 4 (December 2012), pp. 443–471.
[10] Fionnuala Ní Aoláin, “Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism on the human rights challenge of states of emergency in the context of countering terrorism.” (Geneva: UN, 1 March 2018), p. 15.