Human rights and derogation in peacekeeping : addressing a legal vacuum within the state of exception
Human rights in emergencies
New York : Cambridge University Press, 2016
While peacekeeping almost always occurs in an emergency situation, and human rights obligations are often engaged, the concept of derogation is noticeably absent. This is because theories of human rights and emergency do not transpose fully to this transnational or extraterritorial context. That has led to a fundamental deficiency in the scholarly debate and jurisprudence of the human rights treaty bodies and other courts and tribunals. This chapter proposes a more unified and conceptually coherent approach to human rights in the peacekeeping context. It first outlines the basic normative and practical parameters of peacekeeping. It then considers the impact of a growing continuum reflected in the laws of peace and war, through the prism of international human rights law and international humanitarian law. It considers the “sovereign” concept in the context of peacekeeping forces and extraterritorial human rights obligations as well as the raison d’être and source of human rights derogation in relation to the Security Council under the Charter. Finally, it analyzes the jurisprudence and proposes a sensible “derogation approach”, in theory and practice, for the troubled area of human rights in peacekeeping.