Research Article

Emergency and Escape: Explaining Derogations from Human Rights Treaties

Emilie M. Hafner-Burton^a1, Laurence R. Helfer^a2 and Christopher J. Fariss^a3

^a1 University of California, San Diego. E-mail: ehafner@ucsd.edu

^a2 Duke University School of Law, Durham, N.C. E-mail: helfer@law.duke.edu

^a3 Department of Political Science, University of California, San Diego. E-mail: cjf0006@gmail.com

Abstract

Several prominent human rights treaties seek to minimize violations during emergencies by authorizing states to “derogate”—that is, to suspend certain civil and political liberties—in response to crises. The drafters of these treaties envisioned that international restrictions on derogations, together with international notification and monitoring mechanisms, would limit rights suspensions during emergencies. This article analyzes the behavior of derogating countries using new global data sets of derogations and states of emergency from 1976 to 2007. We argue that derogations are a rational response to domestic political uncertainty. They enable governments facing serious threats to buy time and legal breathing space from voters, courts, and interest groups to confront crises while signaling to these audiences that rights deviations are temporary and lawful. Our findings have implications for studies of treaty design and flexibility mechanisms, and compliance with international human rights agreements.

Emilie M. Hafner-Burton is Associate Professor of International Relations and Pacific Studies and Director of the Laboratory on International Law and Regulation at the University of California, San Diego. E-mail: ehafner@ucsd.edu

Laurence R. Helfer is Harry R. Chadwick, Sr. Professor of Law and Co-Director of the Center for International and Comparative Law at the Duke University School of Law, Durham, N.C. E-mail: helfer@law.duke.edu

Christopher J. Fariss is a Ph.D. candidate at the Department of Political Science, University of California, San Diego. E-mail: cjf0006@gmail.com

Footnotes

The authors thank the participants in faculty colloquia and workshops at Arizona State University College of Law; Emory University School of Law; UCLA School of Law; the University of California at San Diego School of International Relations and Pacific Studies and Department of Political Science; and Washington University Law School; as well as a panel at the American Political Science Association Annual Meeting, for their helpful comments and suggestions. In particular, we thank Lawrence Broz, Peter Cowhey, Josh Graff Zivin, Mitu Gulati, Peter Gourevitch, Stephen Haggard, Miles Kahler, David Lake, Margaret McKeown, Eric Neumayer, Jon Pevehouse, Tonja Putnam, Kal Raustiala, Philip Roeder, Christina Schneider, Branislav Slantchev, Jeffrey Stanton, and David G. Victor for their careful reviews of prior drafts. We also thank Casey Mock for research assistance. All robustness tests mentioned in the text are available in a supplemental Appendix. The Appendix and replication files will be made available on the IO Web site at Cambridge University Press.