Chapter

The cloak and dagger game of derogation

Fionnuala Ní Aoláin

Human rights in emergencies

2016

New York : Cambridge University Press, 2016

p. 124-147

English

This chapter explores the practice of “disguised emergency”, and identifies other ways in which states rhetorically invoke emergency doctrine but deliberately do not hew to the oversight mechanisms demanded by human rights treaties. The author argues that avoiding derogation is a tactic states use to manage the exception, and that this tactic has distinct advantages for democracies. The chapter differentiates between states’ experimentation with diverse legal regimes, including regular law enforcement regimes, human rights regimes, the international law of armed conflict, and emerging international security regimes regulating terrorism and counterterrorism. While states move between and blur regimes, there is inevitable overlap in regime application and the elision of key regime features as states respond to apparently new security challenges. States are conscious of gray zones and the lack of judicial precision delineating the relationships between legal regimes. That space is open to exploitation and manipulation. While not a perfect tool to address manipulation, accountability, and state malfeasance, derogation remains one of the few substantial mechanisms available to review the authenticity of state claims and to measure whether liberty-depriving actions are necessitated by the exigencies of the situation.

• Human rights in emergencies / Evan J. Criddle