Two Models of Normative Framework for Human Rights during Emergencies- James Nickel (University of Miami)

admin - 11th August 2015

This lecture seeks to stimulate new thinking about emergency frameworks for human rights. It suggests that the frameworks in contemporary human rights treaties are early efforts with many shortcomings.  Two models of emergency frameworks are explored.  Both are ideal types.  The first model insists on the importance of naming and using types of emergencies (such as disasters, epidemics, riots, terrorist attacks, and civil wars) in determining the compatibility with human rights of measures to manage and recover from them. This is the type-oriented (“T-O”) model.  The underlying idea 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.  A T-O framework requires development and regular updating of an elaborate taxonomy of types and sub-types of very severe emergencies.  What such a taxonomy might look like is sketched.  There are already parts of international human rights law and of international humanitarian law that are explicitly type-oriented.  A second option is the undifferentiated (“UD”) model.  It is closer to what we currently have in international human rights law and does not distinguish types of emergencies.  Beyond designating some rights as immune to suspension or substantial limitation and requiring a formal act of derogation to suspend other rights, the UD model avoids giving general principles for emergency management.  Some particular rights within the UD model will have exceptions and qualifications, but these are not keyed to particular types of emergencies (unlike Articles 2, 4, and 5 of the European Convention on Human Rights).  The lecture ends by advocating a hybrid model, sketching how it might evolve in coming decades, and rebutting some objections to such a model.

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This event is being co-hosted with the Oxford Martin School Human Rights for Future Generations Programme.



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