Reconceptualizing States of Emergency under International Human Rights Law: Theory, Legal Doctrine, and Politics
States of emergency are today one of the most serious challenges to the implementation of international human rights law (IHRL). They have become common practice and are associated with severe human rights violations as evidenced by the Arab Spring. The international jurisprudence on states of emergency is inconsistent and divergent, and what now constitutes a public emergency is ubiquitous. This trend is underpinned by excessive judicial deference and abdication of the legal review of states’ often dubious claims of a state of emergency. The legal regime, as positively expressed in international human rights treaties, does not adequately reflect the underlying theory and politics of emergency situations. The renaissance of IHRL as an effective constraint and regulator of states of emergency requires the articulation of a more holistic understanding and a new approach to the legal doctrine. This Article seeks to provide an enriched account of the international law on states of emergency, which can be reconciled with both theory and practice, and which will better protect human rights from regression in times of emergency.