Human rights in conflicts and crises: derogation under human rights treaties

Thesis

The thesis analyses the conditions for valid derogation and evaluates whether the prevailing interpretation of derogation clauses under the ICCPR, ECHR and ACHR adequately supports the effective protection of human rights. Derogation is a mechanism under which States may, if certain conditions are satisfied, adopt measures that would violate rights if adopted in normal times. Interpretation of the derogation clauses traces the contours of rights protection in conflicts and crises.

The first chapter provides a normative compass to guide thinking about derogation. It addresses the argument that human rights laws have no business regulating states of exception and proposes that derogation clauses can, if carefully interpreted, play an important role in achieving the aims of human rights treaties. The second chapter articulates a framework for understanding derogation as a doctrinal concept. It promotes distinguishing limitations from derogations and advocates the separation of purported and valid derogation.

Chapters three to five articulate and evaluate the conditions for valid derogation. Chapter three seeks to identify and critically evaluate the circumstances likely to meet the threshold for valid derogation. Chapter four considers limiting conditions – what States may and may not do through derogation measures. The thesis posits that, although threshold and strict necessity have been viewed as central aspects of derogation, those criteria leave considerable scope for deference to States and other, more technical, criteria for valid derogation ought not to be neglected.

Chapter five argues that there is considerable unclarity about the status of procedural requirements under the derogation clauses. In particular, it argues that adequate notification ought to be viewed as a condition for valid derogation, despite lingering uncertainty about this in the case law. This promotes the derogation clause as a tool for accountability when States take measures exceptionally restrictive of rights in times of conflict and crisis.

Authors: Holcroft-Emmess, N

• DOI: 10.5287/ora-bmg8yqmyj
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: armed conflict; conflict; suspension of rights; human rights treaties; international human rights law; crisis; human rights law; emergency; derogation; human rights
• Subjects: Derogation (Law); Law; International law and human rights; Human rights; International law