Smart Takes: Normative Frameworks for Human Rights during Major Emergencies

BY:  
CREATED:  

James W. Nickel holds a joint appointment in the Philosophy Department and the Law School. He teaches and writes in human rights law and theory, political philosophy, philosophy of law, and constitutional law. Nickel is the author of "Making Sense of Human Rights" and of more than sixty articles in philosophy and law journals.


James Nickel

James Nickel

The European Convention of Human Rights (1950) offers a framework for emergencies. It says that a few especially important rights may never be infringed even in the worst emergencies but allows that most rights may be restricted if the emergency is extremely severe and if the limitations are necessary and proportional to the demands of managing it. Very similar frameworks are found in the International Covenant on Civil and Political Rights (1966) and the American Convention on Human Rights (1969). This essay is critical of these frameworks and suggests that they could be improved by attending to the different sorts of problems posed by different types of emergencies.

Examples of major emergencies include the influenza pandemic of 1918 that killed more people than World War I, the 2004 Indian Ocean earthquake and tsunami, and the war and refugee crisis in Syria that began in 2011. Major emergencies require people to do things that are ethically and legally problematic. For example, people not injured or killed by the emergency may be required to leave their homes and jobs and stay away for long periods. A physician may be required to stay in the emergency zone rather than evacuate with his or her family and neglect regular patients to attend to people injured in the emergency. Morticians, drivers, and heavy equipment operators may be conscripted and required to provide their own equipment. Schools and religious buildings may be taken over for use as food kitchens or shelters. Services normally available to needy people may be shifted away from them and put to use in the emergency. Public officials may assume extraordinary powers. And the use of deadly force may be necessary to deal with rioters, looters, terrorists, or enemy soldiers.

In developing a human rights framework for emergencies a key question is whether (1) to say the same things about all types of major emergencies (I’ll call this the undifferentiated approach), (2) to say different things about different types of emergencies (I’ll call this the type-oriented approach), or (3) to use a mixture of the two approaches. The main thesis of this essay is that human rights frameworks for emergencies would do well to make greater use of type-orientation.

The existence of different types of emergencies is widely recognized, and distinctive international agencies are keyed to them. For example, epidemics are dealt with by the World Health Organization; refugee emergencies are dealt with by the United Nations High Commissioner for Refugees; and wars are dealt with by the Geneva Conventions, the U.N. Security Council, and the Rome Statute of the International Criminal Court (1998).

SOME TYPES OF MAJOR EMERGENCIES
  Major disasters such as earthquakes, tsunamis, and floods
  Severe and extended economic depressions
  Large and extended epidemics and pandemics
  Major refugee emergencies
  Large and extended riots, insurrections, and rebellions
  Major climate emergencies including severe droughts, famines, and floods
  Major terrorist attacks
  Major massacres and genocides
  Major wars both civil and international
  Nuclear wars

The presupposition of type-oriented approaches, whether pure or mixed, is that different types of emergencies raise somewhat different issues, generate different sorts of threats of abuse and mismanagement, and should have somewhat distinctive norms. Modern medicine uses an analogous taxonomy of diseases and treatments.
The centerpiece of the emergency framework in the European Convention is article 15.

Article 15 Derogation in Time of Emergency
(1) In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
(2) No derogation from Article 2 [right to life], except in respect of deaths resulting from lawful acts of war, or from Articles 3 [right against torture and degrading treatment], 4 (paragraph 1) [right against slavery and servitude] and 7 [right against ex post facto laws] shall be made under this provision.

The first sentence of Article 15 identifies one type of emergency, war, but mostly concentrates on severity. Three other articles of the European Convention, however, are type-oriented, with exceptions for particular types of emergencies. Article 2, the right to life, has three exceptions to the duty to refrain from intentionally killing people—and one of them pertains to riots and insurrections. Article 4, the right against slavery and forced labor, also contains a type-oriented exception clause that permits the conscription of labor during emergencies and calamities. And Article 5, the right against arbitrary arrest or detention, has a type-oriented exception clause that gives governments permission to detain people to prevent the spread of infectious diseases.

The emergencies framework in the European Convention has serious shortcomings. It gives little guidance, and positive governmental responsibilities to protect life and health during emergencies are not mentioned. Neither are important goals of emergency management. Further, it is seriously incomplete in that it only deals with suspending and limiting civil and political rights. It does not take account of the severe impact that emergencies can have on the implementation of economic and social rights such as rights to education or health care or provide any guidance in dealing with those impacts. Worst of all, it seems to be based on a simplistic view of the threats severe emergencies present to human rights. It suggests that the main dangers posed by emergencies are that governments will overreact to them and exaggerate their severity and duration for political purposes. Unpreparedness, inadequate responses, hiding and minimizing emergencies, and delayed and corrupt efforts to recover are not addressed.

Epidemics are significantly different from insurrections in the kinds of governmental abuses they provoke, the measures needed to deal with them, and in the types of preparedness they require. A fully or partially type-oriented approach might attempt to address these differences by dealing separately with the two kinds of emergencies. The materials dealing with epidemics might:

  • Define “epidemic” and “pandemic” and their known major subtypes. Subtypes of epidemics and pandemics are particularly important because diseases spread in different ways. Travel restrictions may be appropriate for those infected with Ebola but not for those infected with malaria.
  • Identify the types of abuses and failures that typically occur in attempting to manage epidemics of various types. Historical investigations here might discover, for example, that failures to recognize and declare epidemics promptly (false negatives) are a much more serious problem than exaggerating them to achieve political ends (false positives).
  • Decide which typical measures for management and recovery have negative impacts on human rights. When such impacts are present, decide whether particular measures are so indispensable or useful that they should sometimes be permissible.

This sketch makes clear that developing a fully or partially type-oriented approach to major epidemics is not a project that even highly qualified human rights lawyers, activists, and scholars can carry out on their own. Needed are the skills of medical historians, public health experts, and the WHO.

Approaches that are fully or partially type-oriented have a number of advantages. The biggest is that they offer more specific guidance because at least some of their rules and principles are calibrated to different types of emergencies and their distinctive problems or threats. A second advantage of type-oriented approaches is that they provide a useful taxonomy for organizing relevant case law from national and international courts. A third advantage of these approaches is that they provide better tools for educating emergency managers and responders since public officials often have to manage emergencies of kinds they have never before confronted.

Type-oriented approaches have the disadvantage that drafting them is difficult and requires extensive knowledge of the history of emergencies and their management. A second disadvantage of these approaches is that knowing that an emergency falls within a certain type (say, an insurrection) is a poor predictor of its severity. This matters greatly because prescriptions for an emergency depend substantially on its severity.

If greater type-orientation is desirable in the emergency clauses of human rights treaties, how might it be developed? Formal amendments to the human rights treaties with emergency clauses are one possibility. Such amendments are unlikely to be written and approved, however, and they would risk providing poor or even disastrous guidance if they were put in place without extensive testing. A better alternative is evolution—instead of thinking of a more developed and determinate emergencies framework as a new construction that starts from scratch, we might instead think of it as resulting from ongoing experience, adjudication, reconstruction, and expansion.

The emergencies frameworks in contemporary human rights treaties are early efforts with serious shortcomings. Better frameworks would add much more material that is oriented to particular types of emergencies.