Laurence R. Helfer
Opting Out: Derogations from Human Rights Treaties in National Emergencies
Laurence R. Helfer is the incoming Harry R. Chadwick, Sr. Professor of Law at Duke Law School and a member of the Duke Human Rights Center’s faculty steering committee
Emilie Hafner-Burton of the University of San Diego Political Science Department and I are working on an empirical study of national emergencies and derogations from human rights treaties during such emergencies. We have coded all derogations and all declared and undeclared states of emergency for all states parties to the three human rights treaties that contain a derogation clause. Our study seeks to explain and predict the relationship between states of emergency and derogations and thereby add to the body of interdisciplinary scholarship on when states comply with international human rights law.
International law scholars and human rights activists have long been suspicious of derogations. They fear that states will use them as smoke screens to justify widespread abuses of civil and political liberties during periods of domestic unrest—and often well beyond. As a result, they have argued in favor of legal doctrines that restrict a state’s power to derogate, such as the principles of exceptional threat, non-derogability of fundamental rights, and proportionality. At the same time—and somewhat paradoxically—these observers also assert that states have been reluctant to derogate because of the political costs associated with doing so.
In fact, empirical information on derogations and states of emergency is in short supply. Many derogation notifications are terse and incomplete, and it is widely believed that states derogate far less frequently than they exercise emergency powers. The lack of data extends to national emergencies in which governments assert the authority to restrict individual liberties. There are comprehensive datasets on armed conflicts, civil wars, and different types and levels of human rights violations. But to our knowledge no database systematically codes, by country and year, the existence of declared or undeclared domestic emergencies that implicate those violations.
Our project seeks to close both of these empirical gaps and to use the resulting information to analyze the relationship between derogations and national emergencies and its implications for theories of interstate cooperation concerning compliance with human rights agreements. To our knowledge, this is the first systematic empirical analysis of derogations and national human rights emergencies that has ever been attempted.