AID
IN
TIMES
OF
EMERGENCY
G
OVERNMENTAL RESTRICTIONS ON INTERNATIONAL AID UNDERL
EGALS
TATES OFE
MERGENCYElisabeth Krumm December 2017 Supervisor: Prof. A. Zwitter
Groningen University
This thesis is submitted for obtaining the Joint Master’s Degree in International Humanitarian Action. By submitting the thesis, the author certifies that the text is from his own hand, does not include the work of someone else unless clearly indicated, and that the
ABSTRACT
This thesis explores the correlation between State of Emergency declarations under article 4 of the International Covenant on Civil and Political Rights (ICCPR) and governmental restrictions on international aid to the population affected by the emergency. This research seeks to analyze whether and to what extent national authorities strategically activate emergency powers to strengthen their control over international aid inflows. This correlation is so far under-studied; yet, more attention should be paid to the mechanism of States of Emergency to fully understand its effect on humanitarian aid. Scholars have shown that host-government restrictions on international aid can entail dramatic consequences for populations in need for such aid.
The research question reads: is there a correlation between States of Emergency declared under article 4 of the ICCPR and restrictions on international humanitarian aid imposed by the declaring government? Employing an exploratory multiple case study and using the theoretical lens of governmentality, a sample of 12 States of Emergency in 7 different countries over the course of 10 years is studied. The produced results show that SOEs conforming to article 4 of the ICCPR (meaning that the other states party to the ICCPR are immediately informed through the intermediary of the Secretary-General of the United
Nations)1 tend to be concerned with internal civil unrests. National authorities
subsequently employ the SOE as a tool to enhance state capacities to crack down on these unrests by vesting state forces with more power to control public life, while simultaneously presenting their actions as necessary and legitimate to the international community and domestic audiences. It was found that restrictions on aid were in some cases indirectly created as a by-product of the SOE, such as the imposition of restrictive measures on in-country travel.
This research design should be extended to include other types and cases of States of Emergency to better understand this legal tool and its impact on humanitarian aid delivered to populations in need. A more holistic understanding of the effects of a State of Emergency will allow humanitarian actors to better
1 The United Nations General Assembly. International Covenant on Civil and Political Rights, Treaty Series 999, 1966, art. 4 para. 3.
predict the environment in which they operate and to optimize their assistance to affected populations.
TABLE OF CONTENTS
ABSTRACT ... 2
TABLE OF CONTENTS ... 4
LIST OF ACRONYMS ... 6
INTRODUCTION ... 1
CHAPTER I – STATES OF EMERGENCY ... 5
1.1 States of Emergency ... 5
1.2 States of Emergency and the Legal Order ... 6
1.3 Biopower and the Exception... 8
CHAPTER II – FRAMING THE EXCEPTION ... 11
2.1 The Security Paradigm ... 11
2.3 Catastrophization ... 12
CHAPTER III – NON-GOVERNMENTAL POLITICS ... 16
3.1 Global Governance ... 16
3.2 Humanitarian Reason ... 17
3.3 The Sovereign and the Exception ... 18
CHAPTER IV – STATES OF EMERENCY AND HUMANITARIAN AID ... 21
4.1 The International Covenant on Civil and Political Rights ... 21
4.2 International Aid ... 25
4.2.1 Bureaucratic Restrictions ... 28
4.2.2 NGO-Government Relations... 30
4.3 Overlaps between the Two Fields of Interest ... 32
CHAPTER V - METHODOLOGY ... 33
5.1 Theoretical Approach ... 33
5.2 Sampling ... 35
5.3 Data Collection ... 36
5.4 Data Analysis ... 37
5.5 Limitations to this Study ... 37
CHAPTER VI – DATA PRESENTATION ... 38
6.1 Nepal ... 38 6.2 Ecuador ... 42 6.3 Bolivia ... 44 6.4 Colombia ... 47 6.5 Thailand ... 50 6.6 Jamaica ... 55 6.7 Ukraine ... 57
CHAPTER VII – ANALYSIS ... 62
7.1 Bolivia and Ecuador ... 63
7.3 Jamaica ... 67 7.4 Thailand ... 69 7.5 Nepal ... 70 7.6 Ukraine ... 71 CONCLUSION ... 75 REFERENCES ... 79
LIST OF ACRONYMS
CSO – Civil society organization EU – European Union
IAC – International Armed
ICCPR – International Covenant on Civil and Political Rights
ICESCR – International Covenant on Economic, Social and Cultural Rights ICRC – International Committee of the Red Cross
IO – International Organization MSF – Médecin Sans Frontières
NIAC – Non-international Armed Conflict
OHCHR – Office of the United Nations High Commissioner for Human Rights SOE – State of Emergency
TD – Technology of Disaster UN – United Nations
UNDP – United Nations Development Programme UNSG – United Nations Secretary General
1 INTRODUCTION
Today’s humanitarian organizations have become legitimate actors on the international level and increasingly engage in power alliances and systems of
negotiations with states and international institutions.2 They have the potential to
play a decisive role during disasters and can arguably enter into direct competition for power with host states, to the extent that “large-scale disasters challenge the
very principle of sovereignty”.3 Following this line of reasoning, emergencies are
critical periods for governments, not only because national authorities need to mitigate the negative effects of disastrous events, but also because they need to protect their national sovereignty and political survival. Research has shown that 39 of the world’s 153 low and middle-income countries have implemented legislation to restrict the inflow of foreign aid to domestically operating NGOs, suggesting that governments will decline valuable international assistance when
aid to NGOs poses a threat to their political survival.4 This opens for study the area
of how governments behave during emergencies.
This thesis explores the correlation between State of Emergency (SOE) declarations under article 4 of the International Covenant on Civil and Political Rights (ICCPR) and governmental restrictions on international aid to the population affected by the emergency. Pioneering into this thus far under-studied territory, this research employs an exploratory multiple case study using a sample of 12 SOEs in 7 different countries over the course of 10 years to analyze whether and to what extent national authorities strategically activate emergency powers to strengthen their control over international aid inflows. The research question reads: is there a correlation between SOEs declared under article 4 of the ICCPR and restrictions on international humanitarian aid to the population under emergency?
2 Fassin, D., “Humanitarianism: a Nongovernmental Government”, in M. Feher et al. (ed.),
Nongovernmental Politics, Zone Books, New York, 2007, 158.
3Ophir, A., “The Sovereign, the Humanitarian, and the Terrorist” in Feher, M. (ed.), Nongovernmental
Politics, New York, Zone Books, 2007, 161.
2 The produced results show that SOEs conforming to article 4 ICCPR (meaning that the other states party to the ICCPR are immediately informed
through the intermediary of the Secretary-General of the United Nations)5 tend to
be concerned with internal civil unrests. National authorities subsequently employ the SOE as a tool to enhance state capacities to crack down on such unrests by vesting state forces with more power to control public life and simultaneously present their actions as necessary and legitimate to the international community. Restrictions on aid arose in some cases as a by-product of the SOE, such as the imposition of restrictive measures on in-country travel. For cases in which the government was at conflict with established internal armed opposition groups (Colombia, Nepal, Ukraine), international assistance was strongly regulated in areas where these groups might benefit from it. Arguably, the most interesting case is the recent Ukrainian conflict, as national authorities feared international aid could further destabilize the country to the benefit of Russia. Subsequently, there appears to be an indirect correlation between SOE declarations and restrictions on the delivery of international aid.
This thesis is structured as follows: the first chapter introduces the mechanism of State of Emergency declarations and their effect on the distribution of state power and human rights derogations. Major classical contributions on the theme of the exception and SOEs, coupled with more recent conceptual additions, are discussed with a particular focus on the notions of biopower and sovereignty. These fundamental concepts help to approach SOEs from a theoretical point of view to understand inter alia in which relation SOEs stand to the legal order. The second chapter then presents the concepts of securitization and catastrophization
as contemporary states are found to increasingly engage in security discourses.6
This discursive strategy of catastrophizing certain events or issues can be considered a domain of Foucault’s concept of governmentality and can be understood as an instrument to control a population by politically and socially mobilizing them to pursue objectives in line with state interests. The decision to
5 The United Nations General Assembly. International Covenant on Civil and Political Rights, Treaty Series 999, 1966, art. 4 para. 3.
6 Ophir, A., “The Politics of Catastrophization: Emergency and Exception”, in: Fassin, D. & Pandolfi, M.,
Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 72.
3 employ this theoretical approach is based on the assumption that declaring an SOE
always presupposes some sense of catastrophization.7
The third chapter then explores how, in today’s world of neoliberal global governance, humanitarian organizations have turned into legitimate actors on the international level and increasingly engage in power alliances and systems of
negotiations with states and international institutions.8 The sovereign decision on
the exception in the context of disasters is challenged and arguably replaced by the activities of numerous actors, legitimized by their humanitarian rhetoric, to the
extent that “large-scale disasters challenge the very principle of sovereignty”.9 The
fourth chapter presents the findings of two separate literature reviews on the themes of SOEs and restrictions on international aid. Based on these results, the methodology for this research is presented in chapter five. Employing an exploratory multiple case study and using the theoretical lens of governmentality, a sample of cases retrieved from the State of Emergency Mapping Project
(STEMP)10 database is examined to identify whether and to what extent the
delivery of international humanitarian aid was increasingly restricted under the SOE. Here, it is crucial to refer to the broad definition of the term humanitarian aid which this thesis employs. Traditionally, humanitarian assistance refers to life-saving urgent activities to alleviate suffering and maintain human dignity during and after man-made crises and natural disasters. In this thesis, however, humanitarian aid also covers medium and long-term activities spilling over into the area of development aid. This is due to the fact that the studied cases at hand might not require immediate life-saving assistance of an evidently humanitarian character; in that case, development agencies and civil society organizations are studied. Chapter six and seven present the results of the data collection and analysis.
7 Ibid., 72.
8 Fassin, D., “Humanitarianism: a Nongovernmental Government”, in M. Feher et al. (ed.),
Nongovernmental Politics, Zone Books, New York, 2007, 158.
9 Ophir, A., “The Sovereign, the Humanitarian, and the Terrorist” in Feher, M. (ed.), Nongovernmental
Politics, New York, Zone Books, 2007, 161.
10 States of Emergency Mapping Project (STEMP), STEMP Database Phase 2 (1995-2015), available at: http://emergencymapping.org/
4 The purpose of this thesis is to identify whether contemporary States of Emergency are used to influence aid – either positively (facilitating the delivery of aid) or negatively (restricting the delivery of aid). Understanding this mechanism can help aid agencies to better assess their often unpredictable operating environment and optimize their assistance to affected populations. In a world in which humanitarian crises are increasingly protracted and humanitarian space challenged, this knowledge can be essential for the effective delivery of life-saving assistance.
There are several limitations to this research. Most significantly, the fact that this thesis is based on desk research alone is a limitation in itself as it exclusively relies on data made available online. Interviews with i.e. aid actors operating under the respective SOEs would add significant value to this study; however, the implementation of such interviews was deemed too resource-intensive for this particular study. Moreover, linguistic limitations affected the overall output of the research: sources which were in a language other than English, German or French could not be taken into account, possibly causing gaps in the collected data. Thus, further efforts are needed to generate a fuller understanding of the phenomenon of States of Emergency and its relation to restrictions on international aid flows. This thesis’ research design should be extended to include other types and cases of States of Emergency to better understand this legal tool and its impact on humanitarian aid delivered to populations in need. A more holistic understanding of the effects of a State of Emergency will allow humanitarian actors to better predict the environment in which they operate and to optimize their assistance to affected populations.
5 CHAPTER I – STATES OF EMERGENCY
This chapter discusses the State of Emergency (SOE) from a theoretical perspective. Firstly, general features of SOEs, their function and common elements of emergency constitutions are presented. Then, the focus shifts to arguably the most important classical contributions on the theme of SOEs and exceptional governance, coupled with more recent conceptual additions. The notions of biopower and sovereignty are of particular interest and central themes in the works of Schmitt and Agamben, serving as a bridge to the theoretical innovations of Foucault. The purpose of this first chapter is to construct a body of knowledge serving as a theoretical foundation for this thesis.
1.1 States of Emergency
In certain circumstances, when one or multiple events pose an existential threat to a state and its population, the incumbent government may be forced to employ extraordinary measures in order to safeguard its own and its citizen’s survival. In case sufficient state capacities to respond to identified threats are lacking, declaring a State of Emergency can function as a structural solution to allow for a
more effective and efficient mitigation of the event’s negative effects.11 A variety of
terminology has been employed by scholars to describe the crisis situations which evoke temporary extraordinary measures – for instance state of civil emergency, state of siege, state of exception, state of public danger, military regime, martial
law etc.12 Regardless of the term used, all declared SOEs have in common extensive
consequences for both the citizenry and balance of powers within government: civil and political rights may be weakened or superseded and the power of the legislative and the judicial branch of government are generally reduced to the
advantage of the executive.13 In the period from 1985 to 2014, at least 137
countries declared a SOE at least once, thereby creating situations with exceptional
political powers.14
11 Zwitter, A., “The Rule of Law in Times of Crisis A Legal Theory on the State of Emergency in the
Liberal Democracy”, Archiv für Rechts-und Sozialphilosphie, 98(1), 2012, 110-111.
12 Iyer, V., States of Emergency-Moderating Their Effects on Human Rights, Dalhousie LJ, 1999, 130. 13 Bjørnskov, C., & Voigt, S., Why Do Governments Call a State of Emergency, mimeo, 2017, 2. 14 Bjørnskov, C. & Voigt, S., The Architecture of Emergency Constitutions, 2016, 2.
6 This mechanism of declaring a SOE has been in existence for almost as long as organized government itself and has been transmitted down the centuries by successive generations of rulers; today it finds expression in almost all political systems. There is hardly any modern constitution which does not recognize the right of the executive to suspend the normal rules of government, including the
rights and freedoms of citizens, during periods of crisis.15 After World War II, there
was a significant increase in the inclusion of emergency provisions in national constitutions which specify procedural details of SOEs, such as who is entitled to declare an SOE and what actors receive powers through its declaration. Today, approximately 90 percent of all constitutions worldwide comprise provisions
explicitly mentioning procedures for how to deal with States of Emergency.16 Due
to the unpredictability of future scenarios, legal definitions of what constitutes an emergency are typically broad and are determined by the state organs responsible for coping with these scenarios. Generally, the most common triggers for SOEs are economic crises, internal or international armed conflicts, natural disasters or
diseases, and threats to the constitutional system.17 Such situations represent
conditions which deviate from the normal state of affairs under which the government usually operates.
1.2 States of Emergency and the Legal Order
One debated characteristic of SOEs is their relation to the legal order. SOEs are generally brought into existence by law; thus, one might perceive law as being employed as an instrument against itself – law is used to suspend its own
function.18 This paradox offers a transition to the next section of this work, which
will elaborate on the legal discussion of contemporary SOEs. A central question discussed by academics has been whether the SOE operates inside or outside the
legal order.19 One may divide the field into two opposing camps: Schmitt and
Agamben versus Kelsen and Ackermann. The latter – particularly Kelsen – defend the position that the sovereign sets aside one legal system in order to create
15 Iyer, V., States of Emergency-Moderating Their Effects on Human Rights, Dalhousie LJ, 1999, 129. 16 Bjørnskov, C. & Voigt, S., The Architecture of Emergency Constitutions, 2016, 2.
17 Ibid., 7; Zwitter, A., “The Rule of Law in Times of Crisis A Legal Theory on the State of Emergency in
the Liberal Democracy”, Archiv für Rechts-und Sozialphilosphie, 98(1), 2012, 95.
18 Dyzenhaus, D., “Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order?”, Cardozo L. Rev., 27, 2005, 3.
7 another by entering a SOE. Consequently, governments are always bound by
democratic mechanisms.20
A different opinion expressed by Carl Schmitt is that the formal norms of what he calls the state of exception are part of the legal order in liberal
constitutions. Thereafter, the exception is beyond the law but established by it.21
One of his concepts in particular has received a great amount of attention –
especially in the aftermath of 9/1122 - namely Schmitt’s approach to the concept of
sovereignty in which he integrates the ability to declare a SOE; the origins of this
idea stretching back at least to Machiavelli.23 Thereafter, the essence of the state’s
sovereignty resides in the sovereign’s ability to decide on the exception.24
According to Schmitt, this relationship between SOEs and law constitutes evidence of a contradiction at the core of liberal theories of the rule of law. Liberalism aspires to subdue all political authority to the rule of law, thus hoping to expel the SOE from the legal order. However, in a declared SOE, the state is freed from the constraints established by law in order to respond to the given emergency, thereby operating in a legal black hole. Consequently, Schmitt argued, the political
authority of the state is not ultimately constituted by law in the first place.25 Taking
this line of reasoning further, the sovereign can even suspend the legal order in its
entirety if no checks and balances limit his power.26
Giorgio Agamben bases his ideas on Schmitt’s work and claims that the exception lies neither inside nor outside the law. Instead, the exception creates the
20 Scheppele, K. L., The international state of emergency: challenges to constitutionalism after
September 11, Working Paper, Yale Legal Workshop, 2006, 47.
21 Schmitt, C., Political Theology: Four Chapters on the Concept of Sovereignty, University of Chicago Press, 1985, 12.
22 Gross, O., “The Normless and Exceptionless Exception: Carl Schmitt's Theory of Emergency Powers
and the Norm-Exception Dichotomy”, Cardozo L. Rev., 1999.
23 Calhoun, C., “The Idea of Emergency: Humanitarian Action and Global (Dis)Order” in Fassin, D. & Pandolfi, M. (ed.) Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 47.
24 Schmitt, C., Political Theology: Four Chapters on the Concept of Sovereignty, University of Chicago Press, 1985, 13.
25 Dyzenhaus, D., “Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order?”, Cardozo L. Rev., 27, 2005, 3.
26 Calhoun, C., “The Idea of Emergency: Humanitarian Action and Global (Dis)Order” in Fassin, D. & Pandolfi, M. (ed.) Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 47.
8
space between power and authority; or the “space of no law”.27 Thereafter, the
exception is “this no-man’s-land between public law and political fact, and between the juridical order and life”, and thus closely tied to civil war, insurrection and
resistance.28 In line with Schmitt’s reasoning, Agamben finds that the exception has
the potential to reveal sovereign power,29 hence offering a prospective window
into political power and its relation to law; for instance, the possibility to suspend
the legal order itself.30
What renders Agamben’s analysis of exception and sovereignty particularly
interesting - and potentially relevant for the study of humanitarianism31 - is his
preoccupation with the status of life within politics which creates the foundation for his re-conception of political power. His theory of sovereign power thus incorporates Schmitt’s notion of exception as well as the production of a bare, human life excluded from the political community. Responding to Foucault’s theory of biopolitics, Agamben reasons that there exists a “hidden tie” between
sovereign power and biopolitics.32 The following paragraphs will zoom in on this
alleged relationship between biopower and sovereignty.
1.3 Biopower and the Exception
A discussion of biopolitics would be imperfect without mentioning the theories brought about by French philosopher and social theorist Michel Foucault who predominantly addressed the relationship between knowledge and power.
Foucault identified a transition in modernity by which biological, human life itself
became the subject of the organizational power of the state.33 This shift, beginning
in the 17th century, marked the “threshold of modernity”34 when sovereign power
27 Scheppele, K. L., The international state of emergency: challenges to constitutionalism after
September 11, Working Paper, Yale Legal Workshop, 2006, 49.
28 Agamben, G. State of exception, University of Chicago Press, Vol. 2, 2005, 1.
29 Schmitt, C., Political Theology: Four Chapters on the Concept of Sovereignty, University of Chicago Press, 1985, 5.
30 Redfield, P., “The Verge of Crisis: Doctors Without Borders in Uganda” in in Fassin, D. & Pandolfi, M. (ed.) Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 188.
31 Ibid., 188
32 Larsen, S., “Agamben: The Messianic Kingdom”, Critical Legal Thinking, 1 Feb. 2016, available at: http://criticallegalthinking.com/2016/02/01/agamben-messianic-kingdom/ (last visited on 10 Aug. 2017)
33 Ibid.
34 Foucault, M., The history of sexuality: An introduction, Volume I. Trans. Robert Hurley. New York: Vintage, 1990, 142.
9
was replaced by biopower, a regulatory technology of power that “distributes the living in the domain of value and utility”.35 Consequently, modern power is characterized by a “productive relation to life”, captured in Foucault’s dictum of “fostering life or disallowing it”, penetrating the subjects’ bodies and forms of life,
whereas sovereign power is characterized by a right over life and death – the
logics of “killing or letting live”.36Thus, when biopower emerged and replaced the
classical paradigm, the threshold of modernity was passed and “biopolitics of the human race” began.37
The central argument which Agamben adds to the concept of biopower is that contemporary politics produce a conception of life in which the sheer biological fact of life is given priority over the way a life is lived. He further refers to the logic of “inclusive exclusion” which refers to the original exclusion of bare life from properly-qualified political life by which “bare life” is thrown into a more basic and fundamental relationship with the sovereign power that excluded it,
constituting a type of political inclusion.38 Following this line of reasoning,
exclusion of bare life establishes political order by the sovereign; therefore, the inclusion of bare life in the political realm constitutes “the original – if concealed –
nucleus of sovereign power”.39
Moving back to the theme of states of exception, Agamben offers a thorough analysis of the process by which the SOE has become generalized in the last century to the extent that the voluntary, indefinite extension of SOEs and the exacerbation of biopower has become one of the elementary practices of contemporary states and characterize the emergent postmodern sociopolitical
order.40 Drawing upon Schmitt's idea of the sovereign's status as the exception to
the rules he safeguards, Agamben asked whether in an era of sovereignty taken to
35 Ibid., 144.
36 Mills, C. “Georgio Agamben (1942- )” Internet Encyclopedia of Philosophy, available at: http://www.iep.utm.edu/agamben/ (last visited on 10 Aug. 2017)
37 Larsen, S., “Agamben: The Messianic Kingdom”, Critical Legal Thinking, 1 Feb. 2016, available at: http://criticallegalthinking.com/2016/02/01/agamben-messianic-kingdom/ (last visited on 10 Aug. 2017)
38 Agamben, G. State of exception, University of Chicago Press, Vol. 2, 2005, 4.
39 Agamben, G., Homo sacer: Sovereign power and bare life, Stanford University Press, 1998, 11. 40 McFalls, L.,”Benevolent Dictatorship: The Formal Logic of Humanitarian Government” in Fassin, D. & Pandolfi, M., Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 326.
10
an abusive extreme, we always live in a state of exception.41 His most commonly
employed example is the period of Nazi-rule in Germany which demonstrates how
“bare life moves from the periphery to the center of the state’s concerns”42 as the
exception progressively becomes the rule.43
According to Agamben, the concentration camps created by the Nazis to eliminate the Jewish population constituted the “biopolitical paradigms of
modernity” 44; a delocalized space where totalitarian state power reduces politics
to control and to the extermination of bare life, opened when the exception became
the rule, as was the case in Germany in this particular period.45 Following
Agamben’s reasoning in regard to concentration camps, one might claim that
Guantanamo Bay is the “biopolitical paradigm of our contemporaneity”.46 A
different and very recent example would be refugee camps at the outskirts of Europe. According to Agamben, the refugee camp has a significant revelatory power as it exposes the direct relation of liberal democracies to “life that lies beyond their juridical and political appearances and to deal directly and openly
with a mass of living bodies”.47 The inclusive exclusion of bare life, therefore,
provides the rhetoric means to implement relief operations in the name of human rights and at the very same time sets the foundation for policies of elimination of a
kind of life not worth living.48 In other words, bare life embraced in the exception
occupies the threshold of the juridico-political community.49
41 McFalls, L.,”Benevolent Dictatorship: The Formal Logic of Humanitarian Government” in Fassin, D. & Pandolfi, M., Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 324.
42 Agamben, G., Homo sacer: Sovereign power and bare life, Stanford University Press, 1998, 9. 43 Agamben, G. State of exception, University of Chicago Press, Vol. 2, 2005, 2.
44 McFalls, L.,”Benevolent Dictatorship: The Formal Logic of Humanitarian Government” in Fassin, D. & Pandolfi, M., Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 324.
45 Ibid., 325; Mills, C. “Georgio Agamben (1942- )” Internet Encyclopedia of Philosophy, available at: http://www.iep.utm.edu/agamben/ (last visited on 10 Aug. 2017)
46 Ibid., 324.
47 Ophir, A., “The Sovereign, the Humanitarian, and the Terrorist” in Feher, M. (ed.),
Nongovernmental Politics, New York, Zone Books, 2007, 167.
48 Ibid., 167.
11 CHAPTER II – FRAMING THE EXCEPTION
The discussion of the above-mentioned theories allows us to move deeper into the realm of governmental power operations in declared SOEs. This thesis’ focus now moves towards the discourse of security, or discourse of exceptionalism, in order to explore a new security paradigm whose unprecedented generalization has arguably replaced the State of Emergency as the normal technique of
government.50 Next, the theoretical concept of discursive catastrophization is
discussed in order to gain a greater understanding of the contexts in which governments declare SOEs. This is based on the claim that declaring an SOE has always presupposed some sense of catastrophization and should be understood in
its context.51 Foucault’s famous tool of governmentality will serve as a theoretical
point of orientation.
2.1 The Security Paradigm
In the aftermath of the events on September 11, 2001, states have increasingly engaged in public security discourses which have received much attention and
academic scrutiny.52 At the center of this contemporary security paradigm is the
invocation of an existential threat- typically in the form of Islamic terrorism. The strong emphasis on a potential and serious threat to public security allows for the activation of extra-ordinary and exclusionary mechanisms with the purpose of intelligence collection, spatial regulation and the allocation of (potentially)
extra-legal powers to the police.53 Extreme cases emerging from such measures that
have attracted recent attention are the re-emergence of the use of torture by the U.S. government as an interrogation measure and the authorization to actively
attack civilian vehicles hijacked for terrorist purposes.54
50 Ophir, A., “The Politics of Catastrophization: Emergency and Exception”, in Fassin, D. & Pandolfi, M.,
Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 72.
51 Ibid., 72.
52 Scheppele, K. L., The international state of emergency: challenges to constitutionalism after
September 11, Working Paper, Yale Legal Workshop, 2006, 1.
53 Opitz, S., “Government unlimited: The security dispositif of illiberal governmentality”, in Bröckling, U., Krasmann, S., & Lemke, T. (ed.). Governmentality: Current issues and future challenges. Routledge, 2010, 50.
54 Krasmann, S., “The Right of Government: Torture and the Rule of Law”. In Bröckling, U., Krasmann, S., & Lemke, T. (ed.), Governmentality: Current issues and future challenges, Routledge, 2010, 129.
12
2.3 Catastrophization
Another instrument taken from Foucault’s toolbox to study the political exception is governmentality. Ophir (2013) uses this approach to develop his concept of governmental catastrophization which describes a two-tier process of actual and discursive catastrophization. The former refers to “objective catastrophes”, meaning the actual environmental, political and economic effects of events caused by human beings or nature. This can include widespread violence, the demolition of the fabric of life of numerous people, massive dislocation, severe shortage and deprivation, the decline of health services and hygienic conditions or the
devastation of entire regions.55 Objective catastrophes are thus events that
transform time and space, creating zones where former order dissolves, the self-evident dimensions of normal life are lost and where survivors are confronted
with the dramatic reduction in their capacity to move and communicate.56
Catastrophization, on the other hand, is different: it refers to the governmental formation of discourse in which the occurrence of a catastrophe is
always problematized.57 Foucault’s concept of governmentality helps to fully
understand the meaning of this statement: this theoretical innovation has achieved a quasi-famous status for the value it created in relation to the analysis of the organized practices through which populations are governed. Government in this context refers to any activity conducted by a variety of state agencies and authorities seeking to condition and regulate the behavior, interests and
aspirations of subjects – individuals and collective actors.58 In this sense,
government is a form of power in itself- a “conduct of conduct”.59 Institutions,
procedures, analyses and reflections form an ensemble of governmental apparatuses that allow for the exercise of very specific, complex power which targets a population by providing knowledge and political rationality as a base for
55 Ophir, A., “The Politics of Catastrophization: Emergency and Exception”, in Fassin, D. & Pandolfi, M.,
Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 63.
56 Ibid., 61. 57 Ibid., 68.
58 Dean, M., Governmentality: Power and rule in modern society. Sage publications, 2010, 18. 59 Ibid., 19.
13
actual governance.60 Thereafter, governmentality can be described as the nexus
between governmental apparatuses and knowledge.61
According to Ophir (2013), discursive catastrophization is a domain of governmentality. Hence, catastrophization is always governmental, and as such, requires subjects to govern: the population defined by catastrophization is the
medium of the catastrophizing process.62 To these subjects an order of events or
states of affairs is articulated as imminently catastrophic through governmental practices and statements such as the definition of “humanitarian emergencies” or “catastrophes” or “natural disasters”, the distinction between accidents and structured failure of systems, the classification of “scarcity” or “famine and starvation”. All these are “effects of a discourse of governmentality but they are also discursive means of catastrophization” as they are used by state agents as
controlled and calculated means of governance63.
A particularly interesting form of catastrophization, as Ophir (2013) points out, is “catastrophic suspension” which refers to how discursive catastrophization contributes to the postponement or interruption of an impending catastrophe by monitoring the indications of deteriorating well-being and intending to control the
sources of risks.64 Thus, the agents of catastrophization catastrophize but they
wish to keep the catastrophe in suspension, drawing an imaginary line between the normal and the catastrophic. They claim that a given population’s well-being and security is at stake and consequently necessitates the governmental implementation of catastrophic policies, hence using catastrophization as
measured and controlled means of governance.65
A previously mentioned example calls for a demonstration of the rationality of catastrophic suspension: the re-emergence of torture as a legitimate tool of the U.S. government. In the aftermath of 9/11, the Bush administration legally and
60 Tosa, H., “Anarchical governance: neoliberal governmentality in resonance with the state of
exception”, International Political Sociology, 3(4), 2009, 418.
61 Foucault, M., Security, Territory, Population, New York: Palgrave-Macmillan, 2007, 108-109. 62 Ophir, A., “The Politics of Catastrophization: Emergency and Exception”, in Fassin, D. & Pandolfi, M.,
Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 62; 77.
63 Ibid., 63. 64 Ibid., 66-67. 65 Ibid., 67.
14 politically introduced the use of torture as an interrogation measure in
extra-territorial sites, such as Guantanamo.66 As Krasmann (2011) shows in her analysis,
from the perspective of governmentality, it is possible to detect how torture integrates itself into a rationality of prevention, justified through the identification
of threats.67 In this sense, torture is the rationale of a biopolitical authority which
commits to protecting the life of a population by “assigning itself the right to
dispose over human life”.68
Another mechanism of governmentality developed by Ophir (2007) in
regard to catastrophes are technologies of disaster (TDs)69 which are biopolitical
tools employed in the event of a disaster for the purpose of distribution of risks, redistribution of losses and administration of relief – in other words for objective
of saving disaster-affected lives and alleviating lives.70 The author argues that
when biopolitics became a major element of modern state power, the nature of TDs became political and their control and operation essential for governing the
exception created by disaster and making political use of its consequences.71 As a
response mechanism in times of disasters, TDs are firstly and most urgently concerned with the human body and the conditions that strip this body of its
social, cultural and legal protection;72 they are thus concerned with Agamben’s
notion of “bare life”. Strong states typically possess a well-equipped apparatus of governmental TDs which function as an integral element of biopolitics. Predicting, avoiding and alleviating disasters and their effects is not only the aim of
biopolitical mechanisms but also an opportunity for expanding them.73
The perspective of governmentality shows that contemporary discourse on the exception resonates with the logic of liberal government operating in the name of security and that governmentally controlled TDs have been integrated into
66 Krasmann, S., “The Right of Government: Torture and the Rule of Law”. In Bröckling, U., Krasmann, S., & Lemke, T. (ed.), Governmentality: Current issues and future challenges, Routledge, 2010, 129. 67 Ibid., 129.
68 Ibid., 117.
69 Ophir, A., “The Sovereign, the Humanitarian, and the Terrorist” in Feher, M. (ed.),
Nongovernmental Politics, New York, Zone Books, 2007, 181.
70 Ibid., 163; 173. 71 Ibid., 162. 72 Ibid., 166. 73 Ibid., 173.
15
growing global biopolitical networks.74 These networks increasingly incorporate
non-state agents and groups from civil society, changing global power dynamics in regard to emergency responses. The following chapter tracks this development in order to create a better understanding of the context in which contemporary discourses on the exception take place.
74 Ophir, A., “The Sovereign, the Humanitarian, and the Terrorist” in Feher, M. (ed.),
16 CHAPTER III – NON-GOVERNMENTAL POLITICS
The following sections address the increasingly porous border between what is governmental and non-governmental and its relation to humanitarianism, alongside a brief discussion of global governance theory in order to provide a better understanding of the context in which a State of Emergency may take place. After establishing how humanitarian reason diminishes the distinction between the governmental and non-governmental, the discussion moves on to the relation between contemporary humanitarianism and the notion of sovereignty of the classical nation-state in the context of an emergency.
3.1 Global Governance
With trends such as globalization and the further manifestation of powerful international institutions, such as the Bretton Woods institutions and the EU, neoliberal modes of governing were promoted not only in developed countries but also in developing states receiving foreign aid which was increasingly measured
according to standards of “good governance”.75 This advancement particularly
accelerated during the 1970s and 1980s when neoliberalism was endorsed as a technique to indirectly control problems by assigning responsibilities to individuals and engaging them as social agents in a movement of perpetual
self-improvement.76 What differentiates neoliberalism from the past rationality of
laissez-faire is that the former governs not only through markets but also through civil society, including non-governmental organizations. As this political technique penetrates the global system, government networks comprise an increasing amount of actors and non-governmental agents, becoming much more fragmented, multi-leveled sites for the design and implementation of governance based on a
global benchmarking system.77
75 Arts, B., “Non-state actors in global governance: three faces of power”, Preprints aus der Max-Planck-Projektgruppe Recht der Gemeinschaftsgüter, No. 2003/4, 2003, 11.
76 Tosa, H., “Anarchical governance: neoliberal governmentality in resonance with the state of
exception”, International Political Sociology, 3(4), 2009, 418.
77 Ibid., 418; Arts, B., “Non-state actors in global governance: three faces of power”, Preprints aus der Max-Planck-Projektgruppe Recht der Gemeinschaftsgüter, No. 2003/4, 2003, 11.
17
3.2 Humanitarian Reason
Today, humanitarian organizations are considerably important political actors
who engage in systems of negotiations with states and supranational institutions,78
drawing legitimacy from what Fassin (2007) termed “humanitarian reason”. Humanitarian reason can be described as the deployment of moral sentiments in
contemporary politics,79 offering non-governmental organizations certain forms of
action in the management of world affairs.80 Fassin (2007) claims that the state has
been “humanitarianized”: recent decades have witnessed how states and supranational institutions have adopted a humanitarian rhetoric in order to describe their own governmental practices. That states refuse to let NGOs be the sole providers of humanitarian care can be explained from both an anthropological and tactical perspective: firstly, compassion for distant suffering is increasingly valued in the contemporary world; secondly, integrating moral considerations expressed by the public into governmental policies serves the purpose of re-seizing control of the exception created by disaster. In the author’s words,
humanitarian reason “is governmentality that escapes the state’s grip”.81
Consequently, placing humanitarian concerns on a state’s agenda can help to make political use of a disaster’s consequences and making available new modes of
regulating society.82 Thereafter, the integration of a humanitarian rhetoric into
governmental discourse and communication campaigns allows states to legitimize
and justify their actions, including military ones.83
Fassin (2007) argues that humanitarian reason tends to render the border between what is governmental and what is non-governmental politics highly
porous, creating competition between governmental policymakers and NGOs.84
This porousness becomes most obvious in the context of war: after the contemporary state endorsed humanitarian reason, the question was no longer
78 De Waal, A., “Humanitarianism reconfigured: philanthropic globalization and the new solidarity”, in M. Feher et al. (ed.), Nongovernmental Politics, Zone Books, New York, 2007, 194.
79 Fassin, D., “Humanitarianism: a Nongovernmental Government”, in M. Feher et al. (ed.),
Nongovernmental Politics, Zone Books, New York, 2007, 151.
80 Ibid., 158 81 Ibid., 151.
82 Ibid., 154; Ophir, A., “The Sovereign, the Humanitarian, and the Terrorist” in Feher, M. (ed.),
Nongovernmental Politics, New York, Zone Books, 2007, 172.
83 Fassin, D., “Humanitarianism: a Nongovernmental Government”, in M. Feher et al. (ed.),
Nongovernmental Politics, Zone Books, New York, 2007, 152.
18 whether a war could be justified by humanitarian reasons but whether the refusal to intervene was not a criminal offense under humanitarian law. In this way, states became the principal agents of the humanitarian international, originally a
mandate held by non-governmental agencies.85 Taking this reasoning one step
further, humanitarian emergencies are not necessarily those declared by a sovereign government but those imposed upon them by the humanitarian
imperative to save lives endangered on the sovereign’s territory.86
3.3 The Sovereign and the Exception
Becoming aware of these global changes, the question arises whether the humanitarian imperative threatens to undermine state sovereignty in times of emergency. In other words: does the sovereign still decide on the exception, as claimed by Schmitt? If the sovereign can claim the exception, then the sovereign must have all of the “lesser-included powers” such as the power to determine when normalcy has returned, when to the rule of law may be safely restored or
when political actors can legitimately increase their powers.87 Thereafter, a
struggle over what constituted a moment of exception would imply a struggle over
sovereignty,88 to the extent that “large-scale disasters challenge the very principle
of sovereignty”.89 The following paragraphs will discuss this claim.
Ophir (2007) argues that in the context of disasters, sovereignty is
deconstructed in three different processes:90 firstly, a gap emerges at the center of
the usually omnipresent, governmental mechanisms of biopower – constitutive of the conditions of normalcy – which seem inadequate at the moment of exception. Secondly, in the aftermath of a disruption, streams of people, goods, money and information constantly cross the borders which spatially delimit the territory of the sovereign in which the disaster zone lies. Research has shown that
85Ibid., 157.
86Ophir, A., “The Politics of Catastrophization: Emergency and Exception”, in Fassin, D. & Pandolfi, M.,
Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 72.
87Scheppele, K. L., The international state of emergency: challenges to constitutionalism after
September 11, Working Paper, Yale Legal Workshop, 2006, 44.
88Redfield, P., “The Verge of Crisis: Doctors Without Borders in Uganda” in in Fassin, D. & Pandolfi, M. (ed.) Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 189.
89Ophir, A., “The Sovereign, the Humanitarian, and the Terrorist” in Feher, M. (ed.), Nongovernmental
Politics, New York, Zone Books, 2007, 161.
19 governments are anxious to monitor and regulate trans-border flows for both
symbolic and instrumental reasons.91 Thirdly and most importantly, the concept of
sovereignty is challenged by the growing multiplicity of agents that compete over
different types of exception making.92 In the age of multi-level, neoliberal global
governance, the sovereign decision on the exception is arguably replaced by the activities of numerous actors such as domestic and international humanitarian, governmental and non-governmental organizations, human rights groups,
commissions of inquiry, journalists, experts and civil society groups.93 These actors
move in partly related, partly overlapping discursive fields and produce reports and testimonies, framing the exception in different terms (e.g. medical, legal etc.) and providing a different, perhaps conflicting, interpretation of the emergency
than that of the state.94
Today’s humanitarian organizations have turned into legitimate actors on the international level and increasingly engage in power alliances and systems of
negotiations with states and international institutions.95 Moreover, recent
developments allow for a much higher availability of data than only a decade ago and have brought about a movement of professionalization and de-politicization of
discursive catastrophization.96
According to Ophir (2013), the very existence of non-governmental organizations as agents of discursive catastrophization reveals that Schmitt’s idea
of a sovereign who holds a monopoly over the exception is invalid.97 This point can
be made clearer by returning to his concept of technologies of disaster (TDs): the contemporary humanitarian industry keeps in readiness a significant apparatus of non-governmentally controlled TDs, prepared to be instantly deployed anywhere
91 Dupuy, K., Ron, J., & Prakash, A., “Hands Off My Regime! Governments’ Restrictions on Foreign Aid to
Non-Governmental Organizations in Poor and Middle-Income Countries”, World Development, 84, 2016, 4.
92 Ophir, A., “The Sovereign, the Humanitarian, and the Terrorist” in Feher, M. (ed.),
Nongovernmental Politics, New York, Zone Books, 2007, 176.
93 Ibid., 75 94 Ibid., 75-76.
95 Fassin, D., “Humanitarianism: a Nongovernmental Government”, in M. Feher et al. (ed.),
Nongovernmental Politics, Zone Books, New York, 2007, 158.
96 Ophir, A., “The Politics of Catastrophization: Emergency and Exception”, in Fassin, D. & Pandolfi, M.,
Contemporary States of Emergency. The politics of Military and Humanitarian Interventions, Zone Books, New York, 2013, 68-69.
20 in the world. Ophir (2013) argues that even if a functioning non-governmental apparatus of TDs is absent to compete with the governmental TDs in a given disaster, the mere existence elsewhere of effective TDs transforms life affected by disaster into a challenge to sovereign power: the moral imperative – to save lives and alleviate suffering – embodied in TDs transforms every disaster on the globe
into “a scene of confrontation and cooperation”.98
To summarize, the central finding from this chapter is that the declaration of a State of Emergency is not necessarily an independent act executed by national authorities. There are solid reasons to doubt Schmitt’s claim that the essence of the
state’s sovereignty resides in the sovereign’s ability to decide on the exception.99
Instead, for a full understanding of the SOE, its respective context needs to be taken into consideration as well as the multiple governance levels involved in contemporary politics. Humanitarian (non-governmental) actors have the potential to play a decisive role during disasters and can enter a direct competition for power with host states. This finding is relevant for the purpose of this thesis as it helps to understand the governmental rationale in crisis contexts. However, it must be noted that not every SOE declaration included in the sample for this analysis is caused by a disaster requiring an international humanitarian response. For instance, none of the 12 SOEs subject to this study were caused by a natural disaster, calling for the deployment of TDs. Nonetheless, the interconnectedness of non-state actors and governmental agents will be taken into account in this research.
98 Ophir, A., “The Sovereign, the Humanitarian, and the Terrorist” in Feher, M. (ed.),
Nongovernmental Politics, New York, Zone Books, 2007, 178.
99 Schmitt, C., Political Theology: Four Chapters on the Concept of Sovereignty, University of Chicago Press, 1985, 13.
21 CHAPTER IV – STATES OF EMERENCY AND HUMANITARIAN AID
This chapter approaches the research area of this thesis: the effect of officially declared State of Emergency according to ICCPR provisions on humanitarian access to the affected area covered by the declaration. The first part of this chapter briefly explains the international legal regime surrounding the International Covenant on Civil and Political Rights (ICCPR) and provides a literature review of existing work on SOEs in relation to the ICCPR. Then, we move on to the issue of humanitarian access and the legal regime in which it operates, offering a literature review on the most common restrictions humanitarian actors face and the instances when humanitarian access is denied by state authorities. The rationality behind conducting two separate literature reviews is that, so far, these two fields of interest have not been studied in correlation. Thus, it is conducive to this research to dive into the areas separately and in this process search for potential overlaps.
4.1 The International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR), entered into force in 1976, constitutes one of the main human rights treaties in existence with
currently 169 signatories.100 It covers a wide range of civil and political rights and
is of relevance for this thesis as it comprises a provision on human rights derogations in times of public emergencies. Article 4§1 of the ICCPR reads:
“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the
situation […]”101
Thereafter, for any SOE to be valid, the respective government must comply with a number of requirements. It has been established that the definition of an exceptional threat to the life of the nation covers civil or international wars, natural and man-made disasters as well as violent mass demonstrations. This
100Keith, L. C., “The United Nations International Covenant on Civil and Political Rights: Does it make a
difference in human rights behavior?”, Journal of Peace Research, 36(1), 1999, 95.
101 The United Nations General Assembly. International Covenant on Civil and Political Rights, Treaty Series 999, 1966, art. 4, para. 1.
22 threat, however, must be of exceptional and temporary nature and the SOE must
be terminated as soon as the risk posed to the security of the nation has ceased.102
Human rights derogations for the time of the emergency shall be proportionate to the exigencies of the situation and cannot include non-derogable rights, such as the
right to be protected from torture or to cruel, inhuman or degrading treatment.103
Furthermore, the SOE must be formally declared by the incumbent government by submitting the details of the emergency as well as the precise nature and duration of any derogation involved to the United Nations Secretary General (UNSG).
A vast body of academic work covers the history and effects of the ICCPR. Regarding article 4 of the ICCPR, scholars regularly raise the question of which circumstances and conditions influence the likelihood for a government to declare a State of Emergency. A rather simplistic answer to this question would be that the sole determinant of a SOE is the government’s need to shift additional powers to the executive in order to effectively and speedily react to mitigate the negative effects of a disastrous event that has taken place. A different interpretation is that a government might declare a SOE for strategic purposes motivated by self-interest, for instance to weaken its political opposition. As such, SOEs might be used as a
tool independent from actual emergencies.104
One of the most recent contributions on this matter was produced by Bjørnskov and Voigt (2016, 2017) who systematically inquire the factors that determine when a government declares a SOE. In order to do so, the authors cross multiple variables such as type of disaster, regime type, power distribution among governmental branches and other situational factors. In this way, they filter out benefits, direct and indirect costs which influence governmental actors’ willingness to declare the SOE. Thereafter, benefits refer to the gains in terms of self-preservation by politicians in government: the advances in staying or becoming sufficiently popular to be re-elected, the postponement of elections in
102Neumayer, E., “Do governments mean business when they derogate? Human rights violations
during notified states of emergency”, The Review of International Organizations, 8(1), 2013, 7.
103Iyer, V., States of Emergency-Moderating Their Effects on Human Rights, Dalhousie LJ, 1999, 135-136.
23
one’s favor, the weakening of the opposition, signaling competence and so forth.105
The second category of costs can be separated into direct and indirect costs: the former refers to the costs of mobilizing the required majorities that need to consent to an official SOE declaration, whereas indirect costs are the losses of popularity among members of other governmental branches and the population
that a government suffers as a consequence of the SOE.106 Using the example of the
ICCPR, Bjørnskov and Voigt (2017) make the assumption that the political as well as economic costs created by notifying the international community of the declared SOE might reciprocally damage the government’s domestic support or
popularity.107 However, the authors did not find any significant evidence to
maintain this hypothesis.
More robust results were produced when investigating the effect of disaster types on the political costs of SOE declarations. Relying on a sample of up to 116 countries, Bjørnskov and Voigt (2017) find that SOEs based on natural events are declared considerably more often because both the citizens and other governmental branches can easily comprehend that the executive may need extra powers to save lives in the aftermath of a natural catastrophe. In this scenario,
both direct and indirect political costs are rather low.108 This finding corresponds
to the data presented in Hafner-Burton et al. (2011) which show that 87 percent of all recorded natural disasters were followed by emergency declaration during the
period from 1980 to 2010.109 On the contrary, merely 47 percent of
national-political events resulted in an emergency declaration in the same timeframe. This resonates with the reasoning that declaring a State of Emergency to tackle internal trends (oppress opposition) will almost by definition be met with higher criticism and consequently produce higher political costs. Consequently, it is possible to state the reasons for declaring a SOE systematically differ between natural and
political disasters, and therefore it is crucial to distinguish between the two.110
105 Bjørnskov, C., & Voigt, S., Why Do Governments Call a State of Emergency, mimeo, 2017, 4. 106 Ibid., 6.
107 Ibid., 10. 108 Ibid., 3. 109 Ibid., 18.
24 The next dimension which is of relevance for an emergency declaration is the regime type: overall, stable democracies and countries where the judiciary can keep the executive in check are more likely to call an emergency than autocratic ones where domestic courts are weak or voters cannot easily depose leaders from
office.111 Thus, strong veto institutions, legislatures with particular powers and
independent judiciaries can function as gatekeepers of SOEs.112
Another factor for SOE declarations is the interrelation between international and domestic law. Scholars have criticized contemporary theories for relentlessly treating emergencies as purely domestic phenomena and that this national focus is no longer adequate in order to grasp the processes and
rationalities behind the use of emergency powers.113 Instead, it is important to
take into account the internationalized context of emergencies and the international legal obligations – for instance those created by the ICCPR – by which states are bound. Agreeing to comply with such obligations in the first place can be motivated by a multitude of reasons. For instance, a government may decide to join an international human rights treaty to deflect foreign criticism or to yield under
the pressure of more powerful nations.114 Thus, such international treaty regimes
can function as public relation tools. Regarding the instrumentalization of international accords for national interests, Hollyer and Rosendorff (2011) discovered that governments use the signing of such accords as a means to stay in power: signatory governments remain usually longer in office than non-signatories
and enjoy less domestic opposition.115
The issue of compliance with these agreements opens up a wide range of questions that have been extensively dealt with by legal and IR scholars. For the purpose of this research, a relevant question would be why a government chooses to engage in the potentially costly act of notifying the UNSG of their emergency and
111 Hafner-Burton, E. M., Helfer, L. R., & Fariss, C. J., “Emergency and escape: explaining derogations
from human rights treaties”, International Organization, 65(4), 2011, 675.
112 Ibid., 24.
113 Scheppele, K. L., The international state of emergency: challenges to constitutionalism after
September 11, Working Paper, Yale Legal Workshop, 2006, 43.
114 Keith, L. C., “The United Nations International Covenant on Civil and Political Rights: Does it make
a difference in human rights behavior?”, Journal of Peace Research, 36(1), 1999, 100.
115Hollyer, J. R., & Rosendorff, B. P., Why do authoritarian regimes sign the convention against
torture? Signaling, domestic politics and non-compliance, 2011. Available at: https://ssrn.com/abstract=1876843 (last visited 16 Nov. 2017)
