International human rights law (HRL) obligates states to respect, protect, and fulfill basic norms of humane treatment, but few of these requirements are set in stone. Many human rights treaties contain limitation clauses, which permit states to restrict the protection afforded by various human rights in deference to important values such as public health and safety.¹ Derogation clauses likewise permit states to suspend various civil and political rights during public emergencies.² Most economic and social rights are framed as aspirational standards that states agree to pursue without committing to any singular pathway for the ‘progressive realization’ of these rights.³ Indeed, only a handful of human rights such as the prohibitions against slavery, genocide, and torture are widely accepted as peremptory norms that bind all states at all times and in all circumstances.⁴ As a result, most human rights norms are subject to dynamic application over time, allowing states to adapt human rights protection to changing circumstances.

How HRL responds to public emergencies, in particular, challenges the idea that human rights are timeless and unchanging entitlements that human beings may claim at all times and in all circumstances. By authorising states to derogate from certain human rights commitments during public emergencies, leading human rights agreements such as the International Covenant on Civil and Political Rights (ICCPR),⁵ the American Convention on Human Rights (American Convention),⁶ the Arab Charter of Human Rights (Arab Charter),⁷ and the European Convention on Human Rights and Fundamental Freedoms (European Convention)⁸ effectively allow states to design their own temporary, ad hoc human rights regimes.

How should the international community ensure that states do not abuse this authority to suspend human rights norms? In his classic monograph, The Concept of Law, H.L.A. Hart outlines three techniques that a legal system might employ to regulate injurious conduct.⁹ First, a legal system could establish bright-line rules to identify and prohibit specific harmful activities in advance. Second, a legal system could establish broad standards and delegate ‘to an administrative, rule-making body… the task of fashioning rules adapted to their special needs.’¹⁰ Third, where ‘it is impossible to identify a class of specific actions to be uniformly done or forborne’, a legal system could establish a broad standard of ‘reasonable’ conduct and require regulated parties to satisfy this standard ‘before it has been’ fully specified by a lawmaking or adjudicatory body.¹¹ The delegation of rule-specifying authority to administrators and courts enables a legal system to tailor the application of open-textured legal standards to specific factual contexts in a more nuanced manner.¹²

Human rights regimes employ a mix of rules and standards to regulate derogation during public emergencies. Some derogation norms are plainly rule-like, including the requirements that states issue an official notice of derogation, refrain from invidious discrimination, and satisfy their other international obligations.¹³ These rules, which limit the choices available to national authorities ex ante, advance rule of law values by providing ‘the advantages of predictability, stability, and constraint’.¹⁴ Nonetheless, the heart of human rights derogation regimes consists of open-textured standards that require further specification. When national crises prompt states to consider human rights derogation, the states must decide whether suspending ordinary human rights safeguards is ‘strictly required by the exigencies of the situation.’¹⁵ This strict-necessity standard demands case-specific analysis. In Hart’s typology of regulatory regimes, it raises the question whether national authorities or international treaty bodies should be understood to bear primary responsibility for translating the standard into rules tailored to a particular crisis. Should derogation provisions be understood primarily as delegations of lawmaking authority to states to decide when, and to what extent, derogation is ‘strictly necessary’? Or should these provisions be viewed primarily as delegations to international human courts and commissions, the institutions that are responsible for supervising state human rights compliance?

International opinion on this question remains divided. Some subscribe to the view that HRL entrusts international treaty bodies with ultimate responsibility for determining how derogation standards apply to particular emergencies. According to this model, human rights derogation reflects a limited concession to ‘reason of state’ (raison d’etat)—a safety valve that a state may use when its existential interest in self-preservation clashes with its positive human rights commitments to its people.¹⁶ If a state’s survival as a political community is in jeopardy, the state may derogate from its human rights commitments temporarily to the extent strictly necessary to ensure its own survival. Robust scrutiny by international treaty bodies is necessary, under this account, to mitigate the conflicts of interest arise between public institutions and political elites, whose survival is preserved, and their people, whose derogable human rights are sacrificed, during national crises. By asserting the ultimate prerogative to decide how general derogation standards apply to particular emergencies, international treaty bodies intercede as neutral arbiters between a state and its people to protect the integrity of HRL against erosion in state practice.

This chapter explores these two traditions in human rights theory and practice. Section 8.2 considers how the legal standards in human rights derogation provisions might function alternatively as delegations of rulemaking authority to states, on the one hand, or to international treaty bodies, on the other. Section 8.3 defends the view that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their interests in a manner that compromises human rights protection. Section 8.4 considers how this rights-optimising conception of human rights derogation should inform the approach that international treaty bodies such as the ECtHR, the Inter-American Court of Human Rights (IACtHR), and the UN Human Rights Committee (UNHRC) take in reviewing human rights derogations. Although this article defends the margin of appreciation doctrine, it argues that deference to national authorities should be tempered, if not abandoned altogether, in contexts such as domestic counterinsurgency where conflicts of interest disqualify national authorities from serving as neutral, rights-optimizing trustees for their people. A somewhat counterintuitive lesson of this approach is that the margin of appreciation doctrine may be least justified in national crises where the life of the state itself is most acutely threatened.

Human rights treaties such as the ICCPR, the American Convention, the Arab Charter, and the European Convention are widely understood to employ a multi-step inquiry to determine whether states may derogate from their human rights obligations. The first step is to consider whether the applicable convention designates a particular human rights norm as being subject to derogation.¹⁷ Second, assuming the human rights norm in question is derogable, states are required under each agreement to provide notice concerning the scope of their derogation.¹⁸ Third, each of these agreements contemplates that states may suspend ordinary human rights protections only temporarily during ‘public emergencies’.¹⁹ Fourth, each agreement restricts human rights derogation to circumstances where this extraordinary measure is ‘strictly required’ by the exigencies of the crisis,²⁰ are consistent with their other international obligations, and do not reflect invidious discrimination.²¹

Legal standards comprise the heart of human rights derogation regimes. In determining whether a genuine ‘public emergency’ exists at step three, the ICCPR, the Arab Charter, and the European Convention each permit derogation only when exigent circumstances pose a demonstrable threat to ‘the life of the nation’.²² The American Convention uses a slightly different, but similarly broad formulation, requiring states to show that a ‘war, public danger, or other emergency’ threatens the ‘independence or security of a State Party’.²³ Because these instruments do not define key terms such as ‘life of the nation’, ‘public danger’, or ‘independence and security’, they force national authorities and international tribunals to exercise judgment in deciding whether a particular national crisis qualifies as a full-fledged ‘public emergency’.

Step four follows a similar pattern. The ICCPR, Arab Charter, and European Convention state simply that the extent of a state’s derogation must be ‘strictly required by the exigencies of the situation’.²⁴ The American Convention also provides that derogation must be ‘strictly required’ to preserve the ‘independence or security of a State Party’.²⁵ These standards do not pre-commit states to any particular responsive measures ex ante; they simply invite states to tailor their derogation from human rights norms in response to the unique demands of particular emergencies. Thus, in several crucial respects, the ICCPR, American Convention, Arab Charter, and European Convention all rely on open-textured legal standards to regulate states’ recourse to derogation during public emergencies.²⁶

To be ripe for enforcement, the legal standards that govern human rights derogation require translation into more specific rules. As Hart recognised, this process can proceed along one of two tracks.²⁷ First, derogation standards could function as delegations of rule-making authority to administrative bodies, which would then bear the responsibility to determine how the standards will apply to particular public emergencies. In the context of human rights derogation, this rule-making function could be carried out by international treaty bodies before a crisis arises, or it could be accomplished by national authorities issuing a notice of derogation at the time they confront an emerging crisis. Such measures have the advantage of providing specific guidance to rights-holders before emergency measures are deployed. The obvious disadvantage is that rules established ex ante may prove insufficiently supple to adapt to the complex and dynamic challenges that arise during a rapidly evolving crisis. As an alternative to rule-making, derogation standards could be understood as de facto delegations to international treaty bodies for post hoc review. This approach may offer less specific direction to national actors and human rights-holders ex ante, but it would enable HRL to tailor its rules more closely to the precise contours of a particular problem ex post.²⁸

Each of these approaches finds support in the practice of international treaty bodies. Human rights derogation standards have been treated at times as delegations of rule-making authority to international commissions,²⁹ as delegations of rule-making authority to states,³⁰ and as delegations of adjudicatory authority to international human rights tribunals.³¹

Consider first the option of treating derogation standards as delegations for rule-making. None of the major human rights treaties expressly authorises an administrative body to promulgate rules to implement broadly formulated derogation standards. The closest any of these instruments comes to delegating rule-making power is Article 40(4) ICCPR, which authorises the U.N. Human Rights Committee (HRC) to provide ‘general comments’ when states report on their human rights practices.³² The HRC has used its general comment authority on two occasions to clarify the ICCPR’s derogation standards.³³ While not technically an exercise of administrative rule-making, these general comments serve in practice as guidance documents that clarify the HRC’s views regarding the general application of ICCPR standards. For the most part, however, these general comments have preserved the context-sensitive, standard-based structure of Article 4 ICCPR. For example, while the HRC has characterized derogation as an ‘exceptional and temporary’ measure that can be taken only in response to a ‘threat to the life of the nation’,³⁴ it has not defined precisely how a state should ascertain whether a particular disturbance constitutes a ‘threat to the life of the nation’. Nor has the HRC developed bright-line rules for evaluating what measures a state may employ in derogation of its human rights commitments. Instead, the HRC has stated simply that emergency measures must be necessary and proportionate to restore a ‘state of normalcy where full respect for the Covenant can again be secured.’³⁵ These guidelines are quintessential standards that defer the task of context-sensitive rule-specification for downstream actors.³⁶

On several occasions, human rights courts have used case-by-case adjudication to generate rules for prospective application in future cases. For example, in the Greek Case (Denmark, Norway, Sweden and the Netherlands v. Greece),³⁷ the ECtHR held that a national crisis must satisfy four criteria to qualify as a genuine ‘public emergency’: (1) the threat must be actual or imminent; (2) its effects must involve the whole nation; (3) the continuance of the organised life of the community must be threatened; and (4) the crisis or danger must be exceptional, in the sense that normal limitations on human rights are inadequate.³⁸ Although announced in the course of an adjudicatory proceeding, and formally lacking precedential authority, these criteria were widely perceived to give the European Convention’s derogation regime a harder rule-like edge, providing guidance to states in anticipation of future crises. Subsequent years have witnessed a softening of these rule-like criteria, however, as the ECtHR has reformulated the criteria to maintain a more standard-based derogation regime.

Illustrative of these trends is the ECtHR’s 2009 decision in A and Others v. United Kingdom.³⁹ In the wake of the 9/11 terrorist attacks in New York City and Washington, D.C., the United Kingdom declared a public emergency and enacted new legislation, the Anti-terrorism, Crime and Security Act 2001. The purpose of the Act was to address the ‘continuing’ threat that international terrorism posed for residents of the United Kingdom.⁴⁰ To this end, the Act authorised the arrest and prolonged detention of foreign nationals who might pose security threats but who, for one reason or another, could not be removed or deported from the country. Recognising that this measure may be inconsistent with the human ‘right to liberty and security’ as defined in the European Convention, the United Kingdom submitted notice that it ‘had decided to avail itself of the right of derogation.’⁴¹

Eleven individuals later challenged their detention before the ECtHR, arguing that the United Kingdom’s derogation did not satisfy the European Convention because, inter alia, the emergency ‘was not of a temporary nature’.⁴² Although neither the European Convention nor the ICCPR expressly requires that public emergencies be ‘temporary’, the ECtHR acknowledged the HRC’s assertion in General Comment No. 29 that measures derogating from the ICCPR ‘must be of an exceptional and temporary nature.’⁴³ Consistent with its prior decisions, however, the Court rejected the petitioners’ assertion that states bear a burden to establish that the exigent circumstances necessitating human rights derogation are temporary. The Court acknowledged that ‘the duration of [an] emergency’ may be relevant when evaluating the ‘proportionality of [a state’s] response’, but it stressed that even entrenched national crises such as the United Kingdom’s decades-long counter-terrorism campaign in Northern Ireland and Turkey’s longstanding counterinsurgency operations against Kurdish separatists could support derogation if responsive measures were strictly necessary and proportional to the threat.⁴⁴ According to the Court, states do not bear a burden to establish that their emergency measures will be of a fixed duration; they need only commit to lift the emergency measures whenever the threat to ‘the life of the nation’ disappears or the measures taken are no longer strictly necessary and proportional to address the threat. Thus, rather than impose a bright-line temporariness rule that would unduly inhibit states’ capacity to fulfill their responsibility to protect, the Court in A and Others wisely focused instead on the principles of necessity and proportionality—context-sensitive legal standards that are more finely attuned to the altruistic legal relationship that HRL ordains.

The Court’s rule-skepticism in A and Others was not limited to whether emergency measures must be ‘temporary’. In the course of its decision, the Court also called into question several rule-like features of the European Commission’s four-factor test from the Greek Case. For example, the Court offered a flexible interpretation of the requirement that terrorist attacks must be ‘imminent’ to support human rights derogation. Although the United Kingdom made the case that a terrorist attack ‘might be committed without warning at any time’, it did not establish that any particular attack was actually imminent.⁴⁵ Nor could it reasonably do so, given the uncertain nature of the threat. In recognition of this fact, the Court softened the imminence criterion’s edges—giving it a more standard-like character—to permit derogation in response to attacks of an indeterminate, but reasonably foreseeable, character. The Court also rejected the European Commission’s suggestion that exigent circumstances must threaten ‘institutions of government’ or a state’s ‘existence as a political community’ to qualify for human rights derogation. According to the Court, the prospect of significant civilian casualties alone within a single zone of a single city would suffice to demonstrate a threat to ‘the life of the nation’ justifying emergency measures.⁴⁶ In each of these respects, the Court systematically dismantled rules from the Greek Case, affirming the need to preserve a more flexible, standard-based approach.⁴⁷

International tribunals have been even less willing to impose fixed rules for determining which particular measures are ‘strictly necessary’ to resolve an emergency. Generally speaking, courts and commissions appear to accept that the ‘strict necessity’ requirement, which constrains state responses to emergencies, is not well-suited to a priori evaluation outside the context of particular emergencies. Thus, despite the international community’s episodic efforts to fashion more determinate rules for human rights derogation, the emergency regimes of the ICCPR, American Convention, Arab Charter, and European Convention remain persistently standard-based at their core.

Legal theorists have long recognised that a legal system’s choice between rules and standards is not merely a technical question of efficient regulatory design, but may also reflect a normative vision for the parties’ legal relationship. For example, Duncan Kennedy has argued that the distinction between rules and standards reflects a jurisprudential divide between legal regimes that are based on a spirit of ‘individualism’ versus those that are based on a spirit of ‘altruism’.⁴⁸ In regimes based on individualism, regulated parties are free to pursue their own ends, subject only to constraints that they or their sovereign affirmatively impose ex ante. Generally speaking, the common law of contract is an individualistic regime. Contracting parties are presumed to engage in ‘arms-length’ negotiation, each pursuing their own interests, and each bound to pursue their counterparty’s interest only to the extent that discrete duties have been specified by agreement in advance. Beyond these contractual duties, contracting parties are free to pursue their own self-interest; they bear no obligation to make further accommodations for the changing interests of their counterparty.

A jurisprudence of altruism, in contrast, views regulated parties as bearing relational obligations of affirmative devotion to use entrusted authority to pursue others’ ends, not merely their own. The paradigmatic private-law example of a jurisprudence of altruism is the law of fiduciaries, which requires regulated parties to use their discretionary power over the legal or practical interests of their beneficiaries for the exclusive benefit of their beneficiaries.⁴⁹ As Daniel Markovits has explained, fiduciaries are retained to take initiative on behalf of their beneficiaries, not merely to comply with rules fixed ex ante. Hence,

[f]iduciary duties of loyalty and care … reflect a natural response to the structural problems out of which fiduciary relations generally arise. A fiduciary relation becomes appealing partly because a principal requires her agent to act in ways that she cannot substantially specify ex ante and cannot directly evaluate ex post. In such cases, fiduciary obligation substitutes for the specification of contract duties and the verification of performance.⁵⁰

Of course, identifying rules with individualism and standards with altruism is too tidy, and Kennedy’s thesis has been justly criticised for over-simplifying the rule/standard dynamic. As critics have noted, individualist regimes commonly deploy standards in contexts where the complexity or uncertainty of a particular environment would prevent rules from safeguarding the parties’ respective interests. Conversely, altruist regimes often use rules to underscore parties’ other-regarding obligations and enhance coordination.⁵¹ Indeed, arguably the defining feature of fiduciary relationships is a bright-line rule: the ‘duty of loyalty’, which prohibits fiduciaries from engaging in self-interested transactions without their beneficiaries’ consent.⁵² Like individualistic regimes, altruistic regimes also commonly employ rules to set technical or procedural baselines that facilitate external monitoring and judicial review.⁵³ Thus, the mere fact that a particular legal regime employs rules or standards does not, in and of itself, establish that it has an individualistic or altruistic character.

Although Kennedy’s claim about the relationship between legal standards and altruism is problematic, it does offer an important insight: when individualistic and altruistic regimes deploy legal standards, they take very different approaches to downstream rule-production. In individualistic regimes, neither party authorises the other to define how open-ended legal standards apply in particular circumstances; rather, legal standards serve as delegations of authority exclusively to courts to resolve any disputes between the parties about the interpretation or application of law. In contrast, legal standards operate very differently in altruistic regimes, which entrust one party with discretionary power to take initiative for the benefit of another. In altruistic regimes, parties and courts serve as co-delegates of rule-making power: the entrusted party (e.g., corporate officer, administrative agency) bears primary responsibility for translating broad legal standards into administrable rules, but courts supervise to address abuses of this discretion. Courts routinely accord a measure of deference, therefore, when they review the entrusted party’s actions. For example, U.S. courts review corporate officers’ compliance with the ‘duty of care’ very deferentially, thereby affirming that corporate officers—not courts—are primarily responsible for determining what measures are best calculated to advance the interests of their shareholders.⁵⁴ Similarly, in administrative law, national courts tend to pay considerable deference to administrative agencies, treating ambiguous standards in legislation as delegations of authority to agencies to decide what measures are best suited to advance public interests.⁵⁵ Individualistic and altruistic legal regimes thus reflect different assumptions about whether standards reflect delegations of authority to the parties, to courts, or both.

Does HRL reflect a jurisprudence of individualism or altruism? Human rights obligations are often characterised as individualistic constraints on states’ sovereign independence. When states covenant to refrain from outrages against human dignity such as arbitrary detention, forced disappearance, and torture, they purportedly assume obligations that have an objective character. HRL does not confer discretion on national authorities to decide once and for all what these obligations entail; although states will necessarily take the first cut at these questions, HRL commits the ultimate responsibility for defining the content and application of HRL norms to international courts and commissions.