International Emergency Governance: Fragments of A Driverless System

International Emergency Governance:
Fragments of a Driverless System
Vik Kanwar
Introduction
Long before September 11, 2001, international lawyers were

already sensitive to the threats to human rights posed by
“exceptional” situations, including the collapse of weak states,
the panic and overreaction of strong states, and large-scale violence
by non-state actors. Since that date, however, a peculiar confluence
of these forces has compelled us to pause and reconsider the status
of national states of emergency in international law. While a state’s
constitutional system is typically meant to regulate emergency
powers, the line between response and abuse is notoriously thin
at the domestic level. Historical experience tells us that
constitutional checks and balances are often atrophied when they
should be the strongest: when emergency governments invoke
that familiar but vacant imperative—“necessity”—to justify their
infringements on human dignity. The self-justifying character of
emergency powers has led many concerned scholars and human
41
42 Vik Kanwar International Emergency Governance
rights advocates to seek out authoritative rules and resources of

“emergency governance” in international law, particularly some
kind of coherent and coordinated system that could regulate and
adjust a state’s exercise of emergency powers. It makes sense that
the international community should find ways to remain
constructively engaged with emergency governments both because
their instability poses risks to other states and because they pose
a heightened risk of human rights violations to their own
populations. However, it remains extremely debatable whether
the international community should aspire to a single coordinated
“system” to achieve these ends.
Last year, the human rights community lost a thoughtful
guide in this area of study: the eminent human rights scholar and
activist Joan Fitzpatrick. Toward the end of her life, Professor
Fitzpatrick—who had spent much of her career describing,
building, and strengthening a coherent international system of
emergency governance1—became concerned that the proliferation
of emergency governance instruments and institutions would
actually become self-defeating by “creating confusion concerning
applicable standards.”2 As far back as the mid-1980s, Fitzpatrick
served as rapporteur for the Queensland Guidelines for Bodies
Monitoring Respect for Human Rights during States of Emergency,
which recognized the present system as “patchy” and suggested
“reducing inconsistency and redundancy, and improving
coordination.” She sharpened this critique in the years following
September 11, since it seemed that the emergence of a coherent or
forceful international counter-terrorism regime could easily
displace this patchwork of human rights norms altogether.
Among international lawyers, this anxiety is not unique to the
subject of human rights or international emergency governance;
this is part of what the International Law Commission [ILC] is
now calling the “Fragmentation of International Law.”3
In this paper I will cast the problems of emergency governance
against the background of this fragmentation. I argue that
international emergency governance takes place within a
“driverless system” that has no final sovereign. The panoply of
Critical Sense Spring 2004 43
systems that seem to govern emergencies includes universal and

regional human rights systems, international humanitarian law,
and other emerging multilateral systems. These systems overlap
and sometimes conflict with each other but in terms of the formal
development international law, the effect of such pluralism is
ambivalent. Within international law, fragmentation alone does
not particularly threaten the status or efficacy of self-contained
regimes of emergency governance. However, recent events
reveal the political reality that powerful states can easily exploit
the repetition and conflict of norms through selective compliance
and breach. This is where we see particular systems of emergency
governance becoming isolated, irrelevant, or else tokenized.
Taken more concretely, the situation of fragmentation might
help us understand the present dynamics of emergency measures.
Why, for example, did the U.S. choose to ignore human rights
law when defending its detention of “enemy combatants” in
Guantanamo Bay, but continue to invoke and reinterpret
humanitarian law? What would be the effects of the emergence of
a coherent international counter-terrorism regime on the status
of human rights standards? These questions, still far from
resolution, demonstrate the urgency and intricacy of
fragmentation as a phenomenon that transcends narrow doctrinal
problems of international law.
The Politics and Aesthetics of Fragmentation
In recent years, international lawyers have seized upon the

language of “fragmentation” to describe the internal conflicts of
international law. While demands for hierarchy4 and coordination
among international institutions are nothing new, these have
traditionally addressed the gaps and the lack of international
resources to enforce mandates. The idiom of fragmentation
looks instead at the overdevelopment of international law, the
existence of conflicts and redundancies.5 The new world disorder
is not the anarchical society of atomized states and inadequate
cooperation, but the heterarchical proliferation of disparate
international and regional regimes, institutions, and jurisdictions.

While the ILC has been diligently studying the phenomenon as
simply a consequence of expansion,6 fragmentation can also be
seen as a consequence of the uneven historical development of
international law, which has been marked by an unending series
of aspirations, rivalries, and distractions; restatements, renewals,
and reversals; toppled hierarchies, re-tooled vocabularies, and the
cyclical obsolescence of overarching frameworks.7 Also, the
consequences of fragmentation have not all been negative.
Fragmentation may suggest heterogeneous but increasingly
responsive forms of interaction that constitute a changing global
order. In fact, whether by default or design, the fashionable
language of “global governance” (just the latest discourse suggesting
“sovereignty by other means”) expresses certain affinities with
fragmentation. Its catchwords are “governance” not government,
“policy” not politics;8 not hierarchy or anarchy but heterarchy.9
Not apology or utopia, but heterotopia. While governance
connotes integration and fragmentation connotes its opposite,
both suggest the non-hierarchical possibilities of diversification,
specialization, and responsiveness.
The current anxiety over fragmentation echoes earlier
anxieties over decentralization. The metaphor of “fragmentation,”
as much an aesthetic as a political concept,10 is captured in the
Machiavellian dichotomy of “oneness” and “brokenness.” Among
secular writers, it was Machiavelli who first coupled an aesthetic
preference for “oneness” over “brokenness” with a political
defense of collective preservation.11 This has since become
familiar elsewhere in political theory. We need only think of
Hobbes’s reaction against divisive religious civil wars or the
authors of the Federalist Papers in their broadsides against the
Articles of Confederation. Each time, a metaphor of fragmentation
was responded to by a metaphor of unity, a political and not just
an aesthetic good: dictatorship, federal power, representation,
modern executive power, emergency power. Each of these
represented a substitution of sovereignty that both reproduced
and revised the previous form of sovereignty, while holding at
bay some kind of fragmentation. Today, fragmentation is used

in economics to mean “intense specialization,” and in popular
media to describe everything from the American electoral map to
the persistent condition of the Balkans.12 The idiom of
fragmentation has been insinuated into smaller units of pathology:
the brokenness of personal identity, individual psychology, or
the body at war with itself. When the negative connotations are
inverted, however, “fragmentation” has become a catch-all
postmodern cliché,13 a celebration of every form of heterogeneity.
But perhaps the most profound and ambivalent
descriptions of fragmentation can be found in the aesthetic
modernism of the early twentieth century. Back in 1923, in the
remarkable poem “To Elsie”, William Carlos Williams offered
the lyrical counterpart to Max Weber’s account of disenchantment,
mourning two losses incurred by modernity: (1) the disappearance
of authentic communal traditions and (2) the fading of the
unifying force of sovereignty.14 Thus Williams began his poem
with the thunderous verse “The pure products of America/ go
crazy” and ended with the lament “No one/ to witness/ and
adjust, no one to drive the car.” Today, with the experience of the
twentieth century behind us, we tend to regard yearnings for
purity and authenticity with suspicion. The realization that
struck Williams like lightning barely strikes us as worth
mentioning: the discourse of purity is bankrupt (in identity,
origins, tradition, culture, and anything else; in America and
anywhere else). We yawn at the insight as if we had learned it
centuries ago when Montaigne warned “we taste nothing pure.”
It is Williams’ parting image, however, that continues to haunt
us. To Williams, the figure of the driverless car was the image of
anomie, acceleration, and a sovereign-less modernity running
riot. His poem attempts to describe the sheer speed and violence
with which “newness enters the world” and if this wasn’t
frightening enough, there would be no sovereign, no “expert
steward”—an image of the emergency regime or the sovereign
that has been with us at least since Cicero15— to guard or guide
us.16 Yet if today we are haunted by the image of a driverless car,
we confront it not as a directionless machine spinning out of

control, but as a counter-model of control: the de-centered and
disembodied ghost-in-the-machine we call “governance.”17 In
contemporary political theory, governance is a term for a self-
steering system of regulated auto-mobility and autopoeisis, of
witnessing and adjusting without any single sovereign driver.18
Driverless governance, devoid of centralized executive power, is
exemplified by the European Union,19 the WTO, and even the
Internet. Aspiring to this model, countless international
institutions hover cloudlike above nation-states, simultaneously
ominous and unthreatening to their sense of sovereignty. In light
of the complicated texture of fragmentation, it is understandable
that Professor Martti Koskenniemi, noted legal theorist and now
Chairman of the ILC’s Working Group on Fragmentation,
would refer to the “postmodern anxieties” inherent in the
fragmentation of international law. Yet, it is a kind of modernist
ambivalence that best characterizes the professional response to
fragmentation among international lawyers.
What Is Meant By “The Fragmentation Of International

Law”?
In international law, fragmentation has become a term-of-art,

but like some earlier uses of the term, it captures imperfectly the
transformation it means to evoke. The term fragmentation seems
most appropriate when it describes the differentiation of functions
that once belonged to the same system and lose their usefulness
to each other or the system. There is a somewhat mythic dialectic
of lumping and splitting that is used to characterize fragmentation
in international law. In particular, fragmentation in international
law has been seen as a continual failure to capture the point of
positivist concentration and to make it useful in projects of
integration. The first step in this process was the creation of
primary international norms.20 When these failed to create a
coherent system, specialized secondary rules were created to
coordinate these primary rules. However, as the secondary rules
became more detailed, sets of primary and secondary rules were

parceled off into insular sub-systems or “regimes.” Finally,
conflicts between subsystems emerged, and these must now be
coordinated.21 This describes well enough the narrow case of
fragmentation as the intensification of specialization. However,
what primarily characterizes this fragmentation is the result of
the failure of separate international regimes to coalesce into a
system in the first place. To discuss fragmentation as the breakup,
cracking, or splintering of international law would assume it was
at one point an original Pangaea, integrated as a whole.
Fragmentation understood as the uneven project of system-
building would be better captured by the term sedimentation or
another geological metaphor suggesting separation through
accumulation. Habermas, preferring sky to earth, nearly captures
this ambiguity of separation and connection when he writes of a
post-national “constellation.” Thus fragmentation is not, as is
sometimes thought, opposed to globalization, but only opposed
to the integrating aspects of globalization. However, since it has
now become entrenched in the theoretical and practical projects
of international law, I will accept the term fragmentation, bearing
these ambiguities in mind.
The vocational discomfort with fragmentation among
international lawyers is certainly related to a deeper compulsion
toward order and continuing anxieties about authority.
Koskenniemi and Leino have noted that successive recent
Presidents of the International Court of Justice [ICJ] have expressed
concern to the General Assembly of the United Nations about
institutional proliferation and fragmentation.22 Understandably,
international jurists fear that jurisdictional conflicts may
undermine their formalistic efforts and accentuate political
realities, different priorities of states, and even power politics.
The proliferation of international judicial organs is only one face
of fragmentation. Here the problems are recognizable to anyone
familiar with conflict of laws: forum-shopping, inconsistency of
case-law, and overlapping jurisdictions. Yet the ICJ, despite its
symbolic importance, has not emerged as a unitary steward to the
system.23 Moreover, the danger of inconsistency is not limited to

judicial organs. It is also presented by different “self-contained
regimes” of subject matters, such as human rights law and
international humanitarian law. These recent descriptions of
fragmentation force us to rethink the problem of the
deformalization of international law. The danger here is not that
there will be a gap or lacuna in international law that can be
exploited by powerful actors, but instead that the oversupply of
international law will lead to selectivity and cynical forms of
legalism by powerful actors. One problem, however, remains
constant: states inconvenienced by international law will attempt
to dilute its normative force. Those working toward the opposite
purpose—to tighten and develop a coherent and overarching
system of international law—will nonetheless also view conflicts
of law as pathological and undesirable. Thus the rhetoric of the
champions and skeptics of international law will collaborate to
undercut its actual accomplishments.
International law, for its part, has entered what the eminent
cosmopolitan lawyer Thomas M. Franck has called its “post-
ontological era”24—its very existence is no longer challenged.
Many of the dilemmas of international politics present in the last
century—realism vs. idealism, dualism vs. monism—have either
receded or become more convoluted in the age of global
governance. On that level, the current fragmentation of
international law and heterarchical forms of cooperation
defamiliarize and evade questions of ultimate sovereignty and
supremacy. At the same time, fragmentation has put a damper on
cosmopolitan triumphalism. The new anxiety over fragmentation
reflects an intra-cosmopolitan conflict between the minimal
gains and the maximal goals of the internationalist project. Until
recently, the most pressing concern of international lawyers has
been to ensure the internal coherence and effectiveness of self-
contained regimes, such as human rights treaties, humanitarian
law, or the law of terrorism, and to give these the force of law.
Much of this work has been at the expense of a hierarchical and
coherent ideal of “world law.” Thus, the cosmopolitan engineers
of international law must greet its fragmentation with a gloomier

ambivalence. Franck had warned as early as 1960 that “[d]isorder,
as it is known to the lawyer, is perhaps less frequently an absence
of legal order than a surfeit of it” and criticized “the unrationalized,
uncoordinated grinding of a plethora of legal gears.”25 On an
aesthetic level, for most of the last century, international lawyers
such as Franck and the ICJ justices have lived with fragments and
against fragments while constructing a fragmented reality. Against
the communitarians they celebrated the joyous multiplication of
freely-imagined identities, while they retained a particular
“aesthetic” revulsion for the realist mode of fracture: international
anarchy.26 Now, in a next-best world of dense heterarchical
networks, they are confronted with fragments of their own. The
cold compromise of “coordination” or “governance” still seems
like “specialization without spirit,”27 lacking the integrity that
could also be constitutive of an authentic universal legal
community.
In this way, the lament for “pure products” no longer belongs
to the sovereigntists alone. While some internationalist attacks
on fragmentation will even borrow the quality of monistic
intensity and mythic singularity that was previously characteristic
of sovereigntists, this is probably just the beginning of more
disenchanted cosmopolitanism. Whether or not any of these
emerging sensibilities can be termed “postmodern,” we can at
least say that deep into modernity, most of us share a jaded
resilience against the shocks of fragmentation. In any case, we are
no longer likely to create great wars or great art in reaction to it.
We are also relatively comfortable with multilevel—even
driverless—governance, as long as its outcomes are benign. Yet,
despite all of this, there are still occasions where we are accustomed
to the idea of a sovereign “driver” who pulls the “emergency
brake” in times of crisis.
What Is Meant By “International Emergency

Governance”?
What I’m calling emergency governance (as opposed to

emergency powers)28 includes all the standing rules, principles,
standards, or institutions that remain effective during an
emergency to regulate and moderate the negative effects of the
exercise of emergency powers. I argue that the resources of
emergency governance must reside in enduring bodies that would
survive particular emergencies, such as fundamental constitutional
principles or, as I focus on here, international institutions.29 It is
clear that domestic constitutions are the primary location of
emergency governance. After all, emergency powers are
themselves driven by a logic of preservation and if an emergency
power wasn’t directed “only to remove the cause for which [it]
was created,”30 it would be something else altogether. This has
continued to be the specific logic behind the resort to emergency
powers, even if it is a logic too often abused. Functionally
speaking, domestic emergency governance continues to be a
“first-response” system to abuse or excess. In terms of perceived
legitimacy, we can also safely assume in most cases that states will
prefer their own regulatory machinery to international
interference. However, because of the fervor and sense of
urgency that so often accompanies emergencies, states are
sometimes incompetent to assess their own rights violations
within their own constitutional orders. These particular examples
of emergency governance, which range from half-hearted wrist-
slapping to wartime cheerleading, seem partial in both senses;
they are incomplete and biased. It might be helpful before
discussing the existing system of international emergency
governance to clarify what this system is not, thereby pre-
empting some of the common overestimations and
underestimations that plague this system.
(1) It is not modeled on a domestic separation of powers, which

is the most typical form of domestic emergency governance, or
any similar power sharing arrangement.
(2) It is not (yet) the subtle activity of risk management.31
(3) It is not a framework linked to military intervention.32
(4) It is not an international emergency power.33 It does not
include the epistemic authority to decide on and declare a state
of emergency sua sponte.
(5) And by all means, it is not the highest existing form of a
cosmopolitan legal order holding the primacy of an
international rule of law over and against reason of state, thus
establishing itself as the ultimate third-party protector of
individual subjects.34
The main overestimation of the system is that the international

emergency governance provides for a unified and hierarchical
substitute-sovereign. The main underestimation is that this
system does not exist. We should see instead that international
emergency governance exists but it is uncoordinated and non-
hierarchical; at times it will seem something like pulling an
emergency brake in a driverless car.
This is where the twin sea-monsters of sovereignty and
supremacy finally rear their Leviathan-heads. Following Carl
Schmitt’s peculiar formulation of sovereignty, states remain in
the driver’s seat simply because they retain the unique authority
to recognize and declare an emergency. However, international
institutions have now independently developed a concept of the
state of emergency under international law. They therefore have
the epistemic capacity to identify emergencies even if they do not
have the formal authority to declare them. This epistemic
capacity forms the basis of the power international institutions
have assumed under international human rights law, where they
are meant to decide whether a state’s declaration of emergency is
valid. While most states incorporate international treaties as
binding law, most states will also locate the principle somewhere
in their domestic system that they can withdraw from, limit, or
derogate from international obligations. Across domestic systems,
the pre-eminent notion and point of concentration for legitimacy

and supremacy is now constitutional sovereignty.35 In terms of
international law, however, according to Article 27 of the Vienna
Convention on the Law of Treaties, not even a constitution
excuses a failure to perform international obligations under a
treaty. This leads to an impasse, or a fundamental conflict of
vocabularies, that is more likely to be deferred than resolved. The
pragmatic meeting ground for this seemingly intractable conflict
is the concept of derogation.36 In international law, derogation is
defined as “the partial repeal or abolishing of a law, as by a
subsequent act which limits its scope or impairs its utility and
force.”37
Many states avoid these complications by never declaring an
emergency in the first place and proceeding to use de facto
emergency powers or quasi-exceptional legislation. A smaller
number will find accommodation for their situation in a derogation
clause of an international human rights convention, but will
constrain themselves to the convention’s standards.38 For an
effective emergency governance to be conceived at the
international level, and to avoid continual referral to sovereignty
and supremacy, there must be a rational assessment of capacity
and resources. This also includes taking account of domestic
measures, constraints, and incentive structures. International
lawyers calling themselves pragmatists and rationalists will split
the difference with something akin to the Catholic notion of
“subsidiarity”: that “a community of a higher order should not
interfere in the internal life of a community of a lower order,
depriving the latter of its functions, but rather should support it
in case of need and help to coordinate its activity with the
activities of the rest of society, always with a view to the common
good.”39 As a default, it is useful to approach emergency regimes
as “burdened”40 rather than defiant, and actually “in need of
support” for the common good. On one hand, an emergency
regime may be in need of international resources to help overcome
whatever threat it is faced with. On the other hand, an emergency
regime would wish to act decisively and independently to face
down the threat, and would therefore avoid complications of

compliance. In a driverless system, what happens in an emergency
is a situational assessment of competence instead of the spontaneous
emergence of a Schmittian sovereign. Outcomes are not ensured
in an orderly way but through heterarchical forms of cooperation.
Derogation is one among many navigational or steering tools that
are largely up for grabs in a heterarchical system.
Theories of Formalism and Contingency in Emergency

Governance
As Otto Kirchheimer has written, “[o]f fundamental

importance for every political theory is to what extent it takes
account of, and admits into its texture, the principle of
emergency.”41 The traditions of political philosophy surrounding
emergency powers date back to antiquity and continue in some
form to the present day in republican, liberal, realist, and
cosmopolitan traditions. Theories of emergency governance have
long revolved around the variables of formalism and contingency.
The formalism is the dependence on pre-existing legal rules;
contingency is the dependence on ad hoc decrees and decisions.
States tend to vacillate between formal and contingent options
for accommodating the exercise of emergency powers. At the
domestic level, these options are represented by “republican” and
“liberal” political theories. At the domestic level, formalism is
best captured by the republican tradition of emergency
governance. Formal responses are those where dependence on
pre-existing legal rules is used to declare an order that defends the
political community. This corresponds to the republicanism of
the Roman dictatorship as well as to Rousseau and Machiavelli.
Today, formal control of emergency powers is characteristic of
the French Constitution and the modern South African
Constitution. At the domestic level, contingency is characteristic
of liberal regimes where an emergency is responded to by ad hoc
decrees and decisions in order to defend the political community.
This tradition jettisons a strict observance of formal laws in favor

of the laws of necessity, measures that correlate with the liberal
philosophy of Locke (who defended royal prerogative)42 and
Montesquieu (who summed up the contingent approach in
saying that sometimes a “veil must be thrown over liberty” for a
short period of time).43 This is the tradition of prudence that
states: “a constitution is not a suicide pact.” An extreme version
of this is the “dirty hands” discourse that approves of unofficial
torture with the logic that it is better to work outside the law than
to contaminate it. The modern version of this is arguably the
German Constitution, which is formal in many ways but
purposely excludes a state of emergency, or the U.S. Constitution,
which has no formal emergency provision but manages to
accommodate contingent options in times of war or emergency.
In the international sphere also, states tend to vacillate
between formal and contingent options for accommodating or
constraining the exercise of emergency powers. The strongest
theoretical strands around formalism and contingency are
cosmopolitanism and realism. Yet in terms of emergency
governance these traditional poles must be qualified by their
operation on a substantive level (“sources vs. sovereignty”)44 and
a procedural level (“pre-commitment vs. prudence”). In
disciplinary and vocational terms, cosmopolitanism is often
associated with formal international law and realism with the
practice of international relations.
Cosmopolitanism, which is the general rubric for traditions
including Kelsenian positivism and Kantian idealism, is concerned
with the formal institutionalization of law-regarding behavior
between states. At the substantive level, cosmopolitans are
concerned with “sources” over “sovereignty.” When they
construct hierarchies and other ordering devices, their materials
are treaties, customs and general principles of law. They are
typically formalist in that they aim to govern by abstraction,
attempting to link ambiguous or contested meanings first to a
pedigree in formal sources but finally to principles outside those
sources, such as notions of consent and justice. In a famous
article, Sir Gerald Fitzmaurice emphasizes the special character

of law and legal institutions and of international law:
The social function which law has to perform is precisely that

of supplying the legal element so necessary in international as
in human affairs, and so indispensable to a full and satisfactory
consideration and settlement of the problems that arise. But
the value of the legal element depends on being free of other
elements or it ceases to be legal. This can only be achieved if
politics and similar matters are left to those whose primary
function they are, and if the lawyer applies himself with single-
minded devotion to his legal task.45
This “legal element” resides in the internal understandings of

what the late Pierre Bourdieu calls the “juridical field.” To a great
extent, the accountability of international institutions to norms
of legality will depend on the professional guardianship of
international law by its practitioners in this social space.
Formalism may suffice as a normative vision or a call to a
vocation, but it does not adequately explain the behavior of
states, and why they will conform to the cosmopolitan project.
Thus, the cosmopolitan account of sources is best supplemented
with a pragmatic theory such as “pre-commitment.” Pre-
commitment discourse is promising as a descriptive tool in
addressing actual incentives to comply with human rights
standards during emergencies. Theories of pre-commitment
regard emergency governance as the formal activity of states
binding themselves and their successors to international norms
in order to preserve a way of life despite the contingent pressures
of emergencies. For example, Andrew Moravcsikhas said that
newly democratizing states, those with relatively immature
constitutions, choose to enter treaties to “lock in” human rights.46
Accordingly, international agreements, like constitutions, may
be forms of self-binding. Newly constituted democracies will
delegate and share the function of rights protection to combat
future domestic political uncertainty. Steven Ratner has similarly
pointed to instances where the vehicle of a human rights treaty
might be attractive to certain states because by doubling as a “legal

commitment to others,” it is potentially more binding, and
therefore more secure, than a pre-commitment through domestic
law, even constitutional law.47 Between the doctrine of sources
and the description of pre-commitment, cosmopolitans can make
a normative and empirical case for the binding force of
international norms. As we shall see, in other circumstances the
cosmopolitan sensibility is less reliant on formalism, and
presupposes the existence of a durable legal order as a desirable
but not sufficient background condition for world order. In
these cases, cosmopolitans project their desires into developing a
global “civil society.”
Realism, which is a broad theoretical tradition associated
with thinkers as diverse as Hobbes and Morgenthau, Schmitt and
Aron, is largely concerned with the role of contingency in
international relations. While realists tend to accept the doctrine
of state sovereignty, they are skeptical of any other “sources” of
law, particularly cosmopolitan innovations. They tie legitimacy
to power and effectiveness and not to any other formal pedigree.
Some realists are committed sovereigntists; they double as
republicans and liberals in domestic matters and thus generally
resolve questions of competence in favor of national bodies over
international institutions. Others are simply content to play the
role of skeptics and spoilers in regard to cosmopolitan projects of
international order.
While classical realists would combine normative and
empirical cases against the binding force of any and all international
norms, at this “post-ontological” stage of international law most
realists have reconciled themselves to the fact that international
institutions often do exert a “compliance pull” over states. The
more pragmatic realists do not deny the existence of international
law, but rather insist that compliance will inevitably be uneven
and stratified. In terms of emergency governance, realist theories
retain their hold on “exceptional” and “anarchical” situations
though even here some of the polemical language of “necessity”
and “contingency” has softened into “prudence” and “balancing.”
Realist theories regard international emergency governance as a

redundant statement of accommodation; derogation clauses are
merely descriptive of how states inevitably minimize the
importance of international norms in times of emergency.
The cosmopolitan project of formal international emergency
governance will certainly face challenges from domestic
constitutional formalism (republican), domestic political prudence
(liberal), and international relations prudence (realism).
International law regularly faces these kinds of conflicts. For the
most part, however, fragmentation should be thought of as an
intra-cosmopolitan problem and intra-formalist kind of conflict;
it is international law versus itself. Still, descriptions of
fragmentation often draw energy from these other three conflicts
as well. For example, fragmentation can be seen as a surfeit of
formalism which leaves in its wake recourse to prudent decisions.
The moderate majority of international lawyers, who call
themselves “rationalists,” attempt to steer a middle course between
the realist and cosmopolitan extremes. The basic dichotomy
between formalism and contingency will reappear in miniature
or a grander scale, like a fractal or Russian doll. Thus, rationalists
must remain attentive to the dangers that surround emergency
governance. The danger of reasoning from sovereignty is that we
will see exceptions all the way down, leading to arbitrariness. In
this sense, formalism is a resistive strategy, and even fragmentation
preserves the idiom of legality and the possibility of formalism.
The danger of reasoning from formal sources is the application of
arbitrary hierarchies to truly exceptional cases, governing entirely
by abstraction, and imposing homogeneity over difference. But,
as we will see, in most cases of emergency governance, there are
no pure products. There is a deeper inter-penetration between law
and politics, between sources and sovereignty, and between
formalism and persuasion, than most theorists recognize or
admit.
International Emergency Governance in the Human

Rights System
Some commentators have described the emergency

governance regime as a “comprehensive and obligatory legal
framework which governs all aspects of the public emergency,
such as its declaration, its manner of implementation as well as its
termination.”48 Though nothing about this description is strictly
false, unless we understand the term “govern” in the weakest
sense, this overstates both its coherence and its efficacy.
International emergency governance seems modestly effective as
a form of constructive engagement with potentially abusive
governments and it is invariably disappointing when considered
as a global, comprehensive “system” of governance.
Here, I will provide a thumbnail sketch of the resources
available at the international level to help regulate a state of
emergency. If we are to refer to an existing “system” of emergency
governance at the international level, we must gather already
disparate sources, including treaty-based obligations, customary
law, scholarly commentary, and the jurisprudence of international
courts. Let us begin with treaty-based obligations, which are
often described as belonging to the “human rights system.” At
the level of international law, in the event of a “public emergency
which threatens the life of the nation,” the International Covenant
on Civil and Political Rights [ICCPR] allows a state party to
“derogate” from (or suspend) its obligations to protect some
human rights, including freedom from arbitrary arrest, the right
to bring habeas corpus proceedings, freedom of movement, and
freedom from forced labor. In the language of international law,
rights are equivalent to international obligations. As such, “[a]
derogation of a right is its complete or partial elimination as an
international obligation.”49
There are similar derogation clauses in the European
Convention on Human Rights and Fundamental Freedoms
[ECHR] and the Inter-American Convention on Human Rights
[IACHR].50 These institutions aim at four functions: (1) they
provide an international law definition of “emergency”; (2) they

accommodate derogation from certain rights obligations; (3)
they set forth certain rights that are non-derogable, even in a state
of emergency;51 and (4) they state that the derogation must not be
inconsistent with other obligations under international law.
To a great degree, how “coherent,” “complete,” “coordinated,”
or “effective” an emergency governance system seems will depend
on where one places the boundaries of inside/outside. In
international law, there are no fixed criteria for what constitutes
a self-contained regime. Typically, these human rights treaties
are thought to form part of the “human rights system” or each
treaty is regarded as its own self-contained regime. I see them as
mixed types whose “contained-ness” or “openness” is situational.
It is, for example, possible to discuss relevant parts of the three
treaties as forming a “derogation regime” without effacing alternate
descriptions such has “human rights system” or “international
emergency governance system.” Thus the relation to an inside/
outside must be continually specified. The normative development
of the derogation clause can be conceived of as a self-contained
but partially open regime within the larger “human rights system.”
How is it possible to speak of the three treaties as a single
derogation regime? It must be granted that the derogation regime
is united by subject matter and not by any institutional links.
Therefore, these institutions are in some ways just as fragmented
from each other as they are from other regimes. However, they
are united in the common activity of norm creation and
interpretation. I will describe them as forming a “derogation
regime,” an institutionalized cluster of exceptions that can exist
as a “self-contained regime” alongside other regimes such as
“humanitarian law” or “anti-terrorism law.”52
Each human rights institution has a distinctive form of
engagement with emergency governments. The UN Human
Rights Committee maintains communications with governments
to consider whether measures which normally are not in
conformity with the ICCPR could, under particular
circumstances, be justified under the derogation clause.53 The
ICCPR framework marks its success not by the quality of these

engagements but by the sheer number of them. In a qualitative
sense, easily the most successful context for the articulation of
both treaties and general principles has been the jurisprudence of
supra-national courts. While the Inter-American Court of Human
Rights [IACHR] has delivered a couple of strongly worded
advisory opinions, so far, the most significant international case
law on this issue has come out of the European Convention.54
Three cases arising under the European Convention have
developed the law of the state of emergency: Lawless v. Ireland,
The Greek Cases, and Ireland v. United Kingdom.55 The European
Court and Commission of Human Rights (which I will refer to
here together as the “ECHR”) have developed doctrines, such as
the doctrine of margin of appreciation and proportionality, and
have now ruled on specific instances of derogability. Also, in its
definition is the term “public emergency,” the ECHR steps over
a line that the IACHR and the Human Rights Committee do not.
It explicitly includes “war” with emergency, allowing substantial
overlap with humanitarian law. The European Commission of
Human Rights further developed (or qualified) the definition of
“public emergency” by outlining four characteristics as observed
in the Greek case:
(a) It must be actual or imminent.

(b) Its effects must involve the whole nation.
(c) The continuance of the organized life of the community must
be threatened.
(d) The crisis or danger must be exceptional, in that the normal
measures or restrictions, permitted by the Convention for the
maintenance of public safety, health and order, are plainly
inadequate.
In contrast to the ICCPR’s “universal” system, the ECHR’s

regional arrangement has shown sensitivity to interpretative
limits such as the “margin of appreciation” which grants states
considerable discretion in handling an emergency as their domestic
political culture might demand. However, this doctrinal departure
from the text of the treaty also gives more flexibility and
competence in covering this area. Using the power only a court
can wield, the ECHR can eventually evolve its jurisprudence
regarding its power of review and the intensity of its involvement
with an ongoing national emergency.
Regionalism was originally a strategy to maintain relative
cultural homogeneity and (it was postulated) “coherence” in the
practice of human rights.56 Instead, some critics of fragmentation
would argue that the scaffolding of regional law has added to the
texture of political pluralism and heterogeneity. From the
beginning, the project of universalism embodied by the UN has
been able to withstand and tolerate the existence of regional
systems. At the same time, regional systems have witnessed
successive projects of universalism as they have been announced
and then subsequently faded. The postulated universality of
rights has benefited from the successes of regional and national
systems, which have been instrumental in the development of
international law and typically speak in universalistic language
within their own jurisdictions.
In a recent examination of two of these treaties, E.W. Vierdag
points out the difference between Article 62 of the European
Convention of Human Rights [ECHR] and Article 44 of the
International Covenant on Civil and Political Rights [ICCPR].57
Article 62 of the ECHR seeks to establish a self-contained regime:
The High Contracting Parties agree that, except by special

agreement, they will not avail themselves of treaties,
conventions or declarations in force between them for the
purpose of submitting, by way of petition, a dispute arising out
of the interpretation or application of this Convention to a
means of settlement other than those provided for in this
Convention.58
By contrast, Article 44 of the ICCPR deliberately conceives of
the Covenant as an open subsystem:
The provisions for the implementation of the present Covenant

shall apply without prejudice to the procedures prescribed in
the field of human rights by or under the constituent

instruments and the conventions of the United Nations and of
the specialized agencies and shall not prevent the States Parties
to the present Covenant from having recourse to other
procedures for settling a dispute in accordance with general or
special international agreements in force between them.59
This heterogeneity actually aids our ability to conceive the two

institutions as belonging to the same regime. Even if they are not
formally connected to each other, conflicting opinions given on
the same case would not be fatal.
One type of conflict is not likely to occur within this
derogation regime. There are fortuitous differences between the
procedures of the three institutions and each might be thought to
be sui generis. To an important extent, the Human Rights
Committee, ECHR, and IACHR have such vastly different
procedures that it is unlikely that one institution will be seem to
directly overrule or rule on the same issue as the others. Of the
three, only the ECHR has contentious jurisdiction. An advisory
opinion by the IACHR on the same issue might not be seen to
conflict with or contradict the ECHR. The Human Rights
Committee is not a court, but it interprets the ICCPR in the
course of its monitoring activities, which again will not be seen
to conflict with the ECHR. The very nature of the emergency
governance regime leaves the actual enforcement to states. States
would consider the opinions of the international bodies and settle
the conflict through their own institutions. Otherwise, the
international institutions would coordinate their jurisprudence
in the future.
Are there other candidates for inclusion in an international
“emergency governance system”? One could observe that in
addition to treaty-based obligations, there are norms from
customary international law, including “emergent rules (or
principles) of customary international law” under the ICJ’s North
Sea Continental Shelf cases.60 These principles might be useful in
applying to those human rights treaties without derogation
clauses (e.g., the African Charter and ILO organs), causing
uncertainty and therefore no explicit indications of the legal

regime applicable in emergencies. This is the way to bring the
force and specificity of treaty-based law to customary law, which
is binding on all states but still easily ignored.61 One might also
add that several distinct UN organs have been involved in the
question of states of emergency, including the Sub-Commission
on the Prevention of Discrimination and Protection of Minorities
of the United Nations Commission on Human Rights under the
Economic and Social Council Resolution 1985/37, to authorize
a Special Rapporteur on States of Emergency.
However, the most distinctive feature in the integrity of
these systems is the common derogation clause in the three treaties.
Moreover, the most important resource that can be provided by
this system to an emergency government is the carrot-and-stick
of derogation, which is both a symbolic and practical good. I
have no wish to suggest, as some commentators have, that the
derogation clause has now become customary international
law.62 Instead, I propose that the derogation clause has become
a ground for the development of interpretation of the application
of secondary rules to primary rules by the three treaty bodies.
This can be termed coordination only in the same sense that the
common law or legal transplants are forms of coordination. We
should first consider the concept of derogation.
What Is Meant By “Derogation”?
At the heart of the three treaty regimes on emergency

governance is the concept of derogation.63 In general, derogation
is best defined as “the partial repeal or abolishing of a law, as by
a subsequent act which limits its scope or impairs its utility and
force.”64 The term derogation is not a consistent and precise legal
term. Rather, it is a concept that shifts with context. This can
cause confusion in the language of international law, where rights
are closely identified with international obligations, but are not
identical. As such, the derogation (the temporary or partial
repeal) of a right is often also the derogation (temporary suspension)
from an international obligation.65 Also, the term derogation is

maintained whether or not a suspension is proper. For this
reason, derogation cannot be reduced to just one of Alan Gerwith’s
famous four possible applications of rights: that they can be
fulfilled, infringed, violated, or overridden.66 Depending on the
context, a derogation of a right can be seen as the infringement,
violation, overriding, or even the partial fulfillment of a right or
obligation. In terms of formal attempts at international emergency
governance, the term derogation is best confined to its use in the
“derogation clause” that is common in the three human rights
treaty regimes and any functionally similar clauses in other self-
contained regimes.
Derogation is a kind of exception, but it is one among many
in international law. For example, states have other distinctive
strategies to evade international commitments, ranging from
“reservations, understandings and declarations” (RUDs) to
withdrawal from treaties. RUDs are permissible modifications
made to a treaty by a ratifying state. A reservation indicates that
a particular portion of the treaty will not be observed by the state.
Understandings and declarations clarify how the state will interpret
particular provisions. Each of these “exceptions” is given form by
its location and expression in a particular institutional
framework.67 Also there is a difference between derogations and
limitation clauses.68 Limitation clauses are simply the language
included in a treaty to make clear that particular rights cannot be
interpreted as absolute. Typical limitation clauses include
“prescribed by law,” “in a democratic society,” “public order,”
“public health, “public morals,” “national security,” “public
safety,” or “rights and freedoms of others.” Withdrawal from a
treaty is, of course, the most extreme strategy to evade an
international commitment. It is to prevent this situation that
RUDS, limitation clauses, and derogation clauses have been put
into place: to accommodate difficulties that might otherwise lead
to withdrawal.
In contrast to any of these other exceptions, the derogation
clause in each of the three human rights treaties is used to specify
the relation of all enumerated rights to contingent factual

emergencies. Derogation is not a radical and antinomic “outside”
to the law (as in Schmitt where “the exception” evacuates legality),
but rather a complex operation within the law. In terms of the
positivism of H.L.A. Hart and Hans Kelsen, to derogate from a
particular rule is always to follow a different norm in a law-
governed manner. In these terms, derogation clauses can be
described as “secondary rules.”69 According to Hart, secondary
rules are “parasitic” on primary rules. The function of primary
rules is to command or forbid. Secondary rules modify or
determine the incidence of primary rules. The derogation clause,
as a secondary rule, provides additional guidance on how to apply
a primary rule to a case at hand. Here derogation is conceived as
a kind of navigational tool in the situation of a conflict of norms.
Kelsen pointed out that a conflict of norms occurs when two
primary rules or norms are valid, in force, and applicable in a
certain situation.70 If in obeying or applying one norm, the other
one is “necessarily or possibly violated,” the application of a
secondary, derogation norm is required to resolve conflicts
among primary norms. In the case of international human rights
law, the derogation clause suggests in a particular case which
primary norm will be applied and which norm will be suspended.
While the suitability of legal positivism is debatable at the
international level, this view of conflict of laws certainly sets a
model for how international lawyers might think about
fragmentation.71 We will see later that this operation multiplies
upon itself when two derogation norms are in effect.
Kelsen also points out that derogation seems to govern
through permission.72 Whenever rules appear to have a
“permissive” form, however, they end up implying certain
obligations and prohibitions. At the international level, this
“permission” is an ambiguous political maneuver. The derogation
clause provides a possible pretext for a state’s non-compliance
with human rights norms while asserting international
competence to assess emergency conditions. Perhaps we should
think of the function of the derogation clause instead as one of
“accommodation,” not simply to authorize or permit derogation,

but in some sense to “make it fit.”73 From the point of view of
international institutions, they fulfill a second sense of
accommodation, the act of sheltering states during troubled times,
and also clarifying some essential “house rules.” International
institutions assume the posture of granting or denying states the
cover of legitimacy. The clause includes both the accommodation
of derogation under particular circumstances regarding particular
primary rules and a stern restatement of prohibition of derogation
under any circumstances regarding other primary rules. In theory,
the rules themselves are not changed. It would be a severe mistake
to regard the derogation clause as a statement of primary rules, a
catalogue of those rights that are active or inactive during an
emergency. Instead it is an interpretative rule that demands
application on the facts, and only in an interpretative sense; the
rules are qualified (their secondary implications or limitations are
fleshed out) in the case of the derogable rights or they are
intensified (they are shown to have no additional implications or
limitations) in the case of non-derogable rights. The pragmatic
hope is the maintenance of international order: the derogation
clause will prevent an emergency government from withdrawing
from the treaty, but more significantly it will foreground and
intensify certain important provisions. The non-derogable nature
of a right would make its violation seem particularly serious. The
interplay of derogable and non-derogable rights should be
considered as part and parcel of a strategy of accommodation and
prohibition. Non-derogable rights are not a tertiary modification
of these secondary rules, but interpretative secondary rules that
set the permissible incidence of derogation at zero.
The above account barely scratches the surface of the doctrinal
difficulties of formalist thinking in the face of fragmentation.
There are two ordering devices in general international law that
will create hierarchies (jus cogens and obligations erga omnes) and
two devices in specific regimes that erect hierarchies (derogation
clauses and limitation clauses). In international law as a whole,
the hierarchy is topped off with jus cogens, which are by definition
“peremptory norms of international law.” The Vienna

Convention on the Law of Treaties defines jus cogens as those
norms “accepted and recognized by the international community
of states as a whole as [norms] from which no derogation is
permitted.” Across a number of important international
institutions and tribunals, this concept is gaining currency and a
limited number of human rights are coming to be understood as
peremptory. Yet the concept remains controversial and of
course there is no list of enumerated peremptory norms. Quite
separate from the doctrine around jus cogens, there is a category
of obligations that the ICJ has termed obligations erga omnes
(“toward all”): obligations that all states owe to all other states.74
Neither of these concepts should be confused with the
derogation clauses within particular human rights treaties. It
adds to the confusion that the definition of jus cogens includes the
word “derogation” and that both jus cogens and obligations erga
omnes would seem to refer to non-derogable norms. Each of these
carries a special quality—the claim to be superior norms—but
they are still not the same as non-derogable rights within the
meaning of the ICCPR or the other human rights treaties. First,
the application of jus cogens is unclear at this point. Secondly,
human rights as a whole fit within the category obligations erga
omnes, but there might still be a wholly separate hierarchy of
applicable norms within human rights treaties themselves. Thus
the very general claims to hierarchy are unruly and unhelpful. As
a rule of interpretation, especially in a situation of fragmentation,
the best an international judge could do is to follow the principle
of lex specialis. In the case of interpreting human rights treaties,
this would mean looking at the specific derogation and limitation
clauses.
It would not be correct to assume, as some commentators
have, that the enumerated non-derogable rights in each of the
treaties, or even the four that they all have in common, are jus
cogens by definition.75 Nor are they some kind of essential “core”
rights or obligations erga omnes, owed to the entire international
community and binding regardless of consent.76 The derogation
clause is not the place to articulate a hierarchy of human rights.

If there are values expressed by the derogation clauses, they are
not the hierarchy of human rights, or an expression of the deepest
values of mankind, but instead the residue of traditional
“republican” procedural values that have provided the model of
emergency governance since the Roman Republic, ensuring that
derogations should be exceptional and temporary in nature, and
occur when the life of the nation is threatened and a state of
emergency has been officially proclaimed.77 These are char-
acteristic of the republican tradition of emergency regulation.
An additional republican aspect underlying the structure of the
derogation system is the thrust to make states publicly articulate
their reasons for derogation.78 Of course, certain strategic and
political implications tend to flow from this procedural model.
As a whole, derogation clauses are both sites for political interaction
where states and international institutions signal to each other
and formalistic, rule-guided frameworks to suspend obligations
within the four corners of a treaty.
Finally, there is the minor puzzle of the “consistency clause”
that occurs in each of the derogation provisions and what this
might mean for the coordination of norms. For example, the
ICCPR article 4(1) provides that in the event of a “public
emergency which threatens the life of the nation,” a state may
derogate rights “to the extent strictly required and in accordance
with other international legal obligations.” As we shall see, this
could be read as referring to obligations under the Geneva
Convention, which implies the coordination of the norms of the
derogation clauses with other regimes in international law.
Some Competing Sources of International Emergency

Governance
When different international resources are applied to the

problems of emergency governance, they will sometimes refer to,
overlap with, or conflict with the derogation regime. At present,
the most substantial overlap in subject matter is between the
derogation clause of the human rights treaties and similar minimum

standards in humanitarian law. The non-specialist can be excused
for confusing “humanitarian law” with the similar-sounding
“human rights law,” or not realizing it is actually a euphemism
for the “law of war” or “law of armed conflict.” However, like
a viscous liquid taking the shape of its container, humanitarian
law is beginning to be reshaped by the humanitarian connotations
of its name. In particular, Common Article 3 of the Geneva
Conventions79 provides protections against violence, degrading
treatment, and extra-judicial executions, repeating in a more
general form some of the same non-derogable rights in the
ICCPR.80 A contrast is often drawn between the derogability of
rights in the human rights treaties and the non-derogability of
humanitarian law standards. In practice, this contrast is misleading.
In some respects, humanitarian law may be more effective than
the human rights conventions in protecting some important
human rights during emergencies, but it cannot be presumed to
represent a higher standard of protection.81 First, human rights
are in theory protected in all times: peace, war and national
emergency. Secondly, unlike human rights law, humanitarian
law traditionally balances its protections of human dignity against
“military necessity.”82 In substance, humanitarian law is actually
an alternative system of derogation. When translated into rights
discourse, it lowers protections in a manner as if all derogable
rights were suspended under the human rights treaties. In any
case, it is not possible to decide one is more protective than the
other in the abstract without knowing the nature or the complexity
of the emergency.
We can see three approaches to trying to reconcile these two
subsystems. First, analytically, we can see that both human rights
conventions and humanitarian law have a compatible role as
“emergency baselines” or “minimum standards.” Attempts to
formulate a “lowest common denominator” approach to
humanitarian law/human rights protection have been formulated
in documents such as the Turku Declaration, which is aimed at
identifying the protections available in the situations of emergency
or violent conflict that overlap in human rights and humanitarian

law. Secondly, all of the derogation provisions are accompanied
by “consistency clauses” stipulating that the derogating states
may not adopt measures that would be “inconsistent with their
other obligations under international law.” Although there is
scant evidence and no state practice to support the claim. Thomas
Buergenthal has argued that this stipulation could only mean that
the obligations of the Geneva Conventions are among the non-
derogable rights reinforced by human rights treaties in
circumstances of violent conflict.83 Presumably, this would only
apply to states that have already agreed to the relevant provisions
of the Geneva Conventions.
Finally, the ICJ has recently hinted that between two types
of special law, such as human rights and humanitarian law, the
applicable meta-rule regarding normative conflict would be the
maxim “special law (lex specialis) derogates general law.” Just as
the positivist conception of derogation is a way of resolving
conflict of primary rules, the principle of lex specialis is potentially
a navigational tool for avoiding conflict between alternative
derogation norms. The lex specialis principle is an expression of
preference for specialized international regimes over general
international law. However, it is not clear which law should get
priority between human rights and humanitarian law, i.e., between
two different sets of specialized rules. Wilfred Jenks suggested in
1953 that “instruments relating to the laws of war which, in the
absence of evidence of a contrary intention or other special
circumstances, must clearly be regarded as leges speciales in relation
to instruments laying down peace-time norms concerning the
same subjects.”84 This would suggest a neat division of labor
between humanitarian and human rights law based on applicability
during wartime/peacetime or one during international/internal
conflicts. However, the entire regime of human right law has
come into maturity since that time and today each area covers
much more than its core subject matter. In this context, it is
worth considering the ICJ’s decision in The Legality of Threat or
Use of Nuclear Weapons case (1996) in which the ICJ discussed the
relationship between Article 4 of the ICCPR and the laws

applicable in armed conflict. This case acknowledged the non-
derogable status of the right to life within Article 6 of the
ICCPR85 as having continuing legal effect86 in an armed conflict,
but gave humanitarian law ultimate priority. Holding that the
ICCPR extends to times of war, the Court stated:
The Court observes that the protection of the International

Covenant of Civil and Political Rights does not cease in times
of war, except by operation of Article 4 of the Covenant
whereby certain provisions may be derogated from in a time
of national emergency. Respect for the right to life is not,
however, such a provision. In principle, the right not arbitrarily
to be deprived of one’s life applies also in hostilities. The test
of what is an arbitrary deprivation of life, however, then falls
to be determined by the applicable lex specialis, namely, the law
applicable in armed conflict which is designed to regulate the
conduct of hostilities.87
This decision has been hailed as countering the longstanding

fragmentation between law of armed conflict and international
human rights law.88 Here the court decided that the applicable lex
specialis is the law “designed to regulate the conduct of hostilities.”
It also recognized a convergence of the humanitarian principles
in both areas of law.89 However, the odd effect of the case has
been to convert humanitarian principles into “secondary rules”
in order to determine the interpretation and application of
human rights rules that are already governed by the derogation
clause. In fact, the rules of humanitarian law and the derogation
regime are “specialized rules” in two different senses. It is only
the derogation provisions that are properly secondary rules.
International humanitarian law is specialized in the sense that it
applies only in the case of its subject matter, which is the
exceptional situation of war. The derogation regime also covers
special circumstances, but it is also a set of secondary rules, and
as such available only to interpret the applicability of derogation
from the provisions of the treaties. By breaking down the
internal relation between primary and secondary rules of a

regime, this decision is a frontal attack on fragmentation. One
could imagine that it is also a fundamental challenge to the
functioning of the derogation regime, particularly the ECHR
which imagines itself as governing derogations during war,
among other emergencies. It remains to be seen how these two
regimes reconcile their governance of emergency situations or
armed conflicts.90 In a less formal context, actors in “international
civil society,” including human rights NGOs such as Amnesty
International and humanitarian organizations, such as the
International Committee of the Red Cross, have become
accustomed to speaking of “international humanitarian and
human rights law” in the same breath. If there is indeed a
common culture of humanitarianism and rights-sensitivity
emerging from the interaction of these regimes, then we should
expect to see a codification of minimum standards and more
formal attempts at coordination of norms during states of
emergency.
Constructing “Cosmopolis”:
Coordination of Norms in International Civil Society
Cosmopolitan culture is tethered to legal formalism, but is

also spreading through less formal, more aspirational efforts.
Much of the energy for the task of coordinating the various
attempts at emergency governance comes from the members of
international society that used to be called "scholarly
commentators", “working groups,” or even “qualified publicists,”91
but who are now becoming continuous with non-governmental
organizations and “international civil society.” Several groups
have attempted to articulate principles of international law that
would restrain an emergency government’s powers and coordinate
applicable norms. These principles have been enunciated in a
series of non-binding guidelines: the Siracusa Principles, the
Stockholm Proposals, the Oslo Statement, the Turku Declaration,
the Queensland Guidelines, and the Paris Minimum Standards of
Human Rights Norms in a State of Emergency, among others.92

Within this group, the Paris Minimum Standards of Human
Rights Norms and the Queensland Guidelines are particularly
noteworthy.
Unlike the Turku Declaration which attempted to amalgamate
the minimum standards of humanitarian and human rights law,
the Paris Minimum Standards (1984) adopted by the ILA attempts
to codify an emergency baseline based on the human rights
treaties alone. It also aims to improve upon this baseline drawing
on rational principles. In the three treaties, consensus exists for
the non-derogability of four fundamental rights: the right to life,
the prohibition of torture, the prohibition of slavery and the
prohibition of retroactive criminal laws. Reasoning that abuse
of these four rights are enabled by other derogations, however,
the Paris Minimum Standards also proposes the addition of non-
derogable status to freedom from discrimination, the right to
liberty, the right to a fair trial and the right to remedy. Like the
privileging of specific over general, this publication of “emergency
baselines” is yet another strategy for the coordination of norms
to escape fragmentation. In 2001, the Human Rights Committee,
the body established to monitor the implementation of the
ICCPR published General Comment No. 29, which was a
victory for the drafters of the Paris Minimum Standards:
Measures derogating from the provisions of the Covenant

must be of an exceptional and temporary nature; two
fundamental conditions must be met—the situation must
amount to a public emergency that threatens the life of the
nation, and the state party must have officially proclaimed a
state of emergency, noting that the latter requirement is
essential for the maintenance of the principles of legality and
rule of law at times when they are most needed.
The General Comment also emphasized that international

humanitarian law remains in force even where States take steps
to derogate from certain provisions of the ICCPR:
[A]rticle 4, paragraph 1, requires that no measure derogating

from the provisions of the Covenant may be inconsistent with
the State party’s other obligations under international law,
particularly the rules of international humanitarian law...
States parties may in no circumstances invoke article 4 of the
Covenant as justification for acting in violation of humanitarian
law or peremptory norms of international law...93
The enumerated “minimum standards” articulated in the General

Comment include the following:
all persons deprived of liberty must be treated with respect for

their dignity; hostage taking, abduction, and unacknowledged
detention are prohibited; persons belonging to minorities are
to be protected; unlawful deportations or transfers of
population are prohibited; and no declaration of a state of
emergency... may be invoked as justification for a State party
to engage itself... in propaganda for war, or in advocacy of
national, racial or religious hatred that would constitute
incitement to discrimination, hostility or violence.
While this is an advance for the articulation of these principles,

we should also consider the drawbacks of this approach. As we
shall see later in more detail, one of the reasons humanitarian law
is more palatable to emergency governments than human rights
law is that it seems deceptively simple to apply. It lists a few
things a state cannot do under the rubric of “military necessity”
and seems to give blanket permission otherwise. Similarly, the
enumeration of non-derogable rights, if separated from other
derogation procedures, may result in an intolerable default position
that states may take during all kinds of emergencies without
regard to proportionality.
What the Paris Minimum Standards represents for norm
coordination, the Queensland Guidelines attempts with
enforcement standards. Theoretically, there is an increasing
acceptance that enforcement can be standardized (if not exactly
“coordinated”) in an effective manner. In 1990 the ILA adopted
the Queensland Guidelines for Bodies Monitoring Respect for

Human Rights during States of Emergency. The Queensland
Guidelines states:
By maximizing the impact of the existing complex, but patchy,

system of international monitoring of states of emergency,
reducing inconsistency and redundancy, and improving
coordination, scarce resources can be made to stretch further.
Many years of additional incremental improvements by all
participants are likely to be required before a comprehensive
monitoring system with real and rapid influence of governments
facing or claiming an emergency emerges.94
This suggests the guidelines will remedy problems of inconsistency

and redundancy, but when we look at the document’s criteria for
an effective system, we find that these problems of fragmentation
are not the main problems of emergency governance. The
Queensland Guidelines, define the task and effectiveness of
monitoring bodies in six different ways:
(1) exposing the fact of human rights abuses; (2) stopping or

moderating such abuses; (3) providing redress to victims
through findings of violations, compensation, rehabilitation,
release from detention, or clarification of the fate of
“disappeared” persons; (4) securing punishment of violators;
(5) terminating a state of emergency; and (6) preventing future
abuses or the invalid imposition of emergency measures should
create differential disincentives for resort to emergency powers,
depending upon the character and aims of the supposedly
threatened regime.
Not all instruments aim at every one of these functions. These

functions are scattered among the different institutions. So while
these institutions should aim at improving each of these functions,
it is not clear that they should be any better coordinated to
improve their performance. The most sensible advice that the
Guidelines provide that could benefit all the institutions is that
they should “create differential disincentives for resort to
emergency powers, depending upon the character and aims of the

supposedly threatened regime.” Thus far, the emergency
governance regime has had fewer concerns with conflicts and
redundancies than it has had structural problems with compliance.
Indeed, the various institutions of that atypical and disaggregated
regime have had much to learn from each other though they are
not related in a hierarchical way. Though the normative provisions
for derogation are not consistent across these institutions, and
while states could potentially cite conflicts between systems as
reasons for non-compliance, they are much more likely to not
comply based on their domestic interests.
As I have suggested, these various efforts to coordinate norms
can all be described to some extent, whether through lex specialis
or “minimum standards,” as revealing some kind of hierarchical
compulsion that resists fragmentation. What can be seen is
recourse to hierarchy and other ways of coordinating disparate
regimes. Wolfgang Friedmann predicted back in 1964 that the
international legal order would “have to be equipped with a more
clearly established hierarchy of norms.”95 Article 38(1) of the ICJ
Statute suggests one influential hierarchy of sources, but it is far
from the only one. Other formal possibilities have been discussed
in this paper already and many others exist. Here I want to
discuss hierarchy not as a clear system, but instead the “hierarchical
compulsion” of different actors in the international community
in response to different kinds of perceived disorder. Hierarchy
does not require a totemic pillar of several elements, but far more
minimal ordering devices. One of these, we have seen, consists
of only two values: general and specific. This is expressed in the
maxim lex specialis derogat legi generali (particular norms suppress
general norms). 96 Another ordering device—“minimum
standards”—combines sets of norms by reference to their common
elements, thus arguably reversing the maxim and giving more
general norms priority. As Martti Koskenniemi once noted,
“[l]aw continues to set up hierarchies and provide the resources
for reversing them.”97 At present, the relationships among the
three human rights treaties, or between these as a “regime” and
separate regimes such as humanitarian law, are building a steady

repertoire of interactions and a relatively structured rhetoric of
possible hierarchies. Even if the directions these will take are
uncertain, formal development of these relations may not be very
dramatic in the short term. As we will see however, even this
cautious and steady formalism can be tattered by occasional
bursts of contingency and audacity, and we may be witnessing
these in the recent “global war on terrorism.”
The State of “Exceptionalism”:

On The Misuse and Disuse of Self-Contained Regimes
Political realists are fond of inverting the utopian resonance

of cosmopolitan law, saying it is “not of this world.” In the real
world, as realists never cease to remind us, the above attempts at
legal “order” must be grafted onto the actualities of power
politics.98 The attempts at hierarchy we have seen so far—lex
specialis, primary and secondary rules, minimum standards—are
largely formal strategies of coordination. To the political realist,
however, these ideational hierarchies speak in a language of
universalism as obscure as Esperanto. The formal language of
international law is viewed as abstract and ineffectual, and poorly
translates the tangible forces of an unruly and unstable world.
Even “derogation,” a concession to contingency, is seen as relatively
formal, and far too attenuated from the earthly politics of power
and interests. In recent years, realists have acceded that
international law has some consequences for weaker states (e.g.
developing nations) that are willing to cede some aspects of
sovereignty to supranational institutions (e.g. the European
Union).99 Yet even with their description of most of the world
slipping away, their analysis remains relevant for the mammoth
exception that threatens to swallow the rule: the United States.
While the realist world-picture seems atavistic when trying to
account for the existence of international institutions and effective
forms of “global governance,” it is precisely in the zone between
“exceptionalism” and “the exception” that realist critiques retain
some explanatory weight.100 As long as the United States continues

to reshape the possibilities of international law through its breach
and selective compliance, the realist challenge to international
law should not be ignored.
Indeed, the realist challenge is helpful to our analysis of
fragmentation of self-contained regimes. Even if realist accounts
have been weak in accounting for the fragmentation of legal
norms (and rule-governed international behavior as a whole), the
spirit of their critique still forces us to ask two questions: “What
are the consequences of fragmentation in the real world?” and
“How is fragmentation actually resolved?” A realist thesis on
fragmentation would be that powerful states, through selective
compliance and breach, can exploit the repetition and conflict of
international norms to further their own interests. If we revisit
the ongoing fragmentation between humanitarian law and human
rights law in concrete terms, this thesis will seem plausible. Here
I will elaborate the fragmentation of international law in two
empirical contexts of emergency governance. The first is the
“choice of law” issues facing the United States in choosing
applicable international law governing detentions in Guantanamo
Bay. Why, for example, did the U.S. choose to ignore human
rights law when defending its detention of enemy combatants in
Guantanamo Bay, but continue to invoke and reinterpret
humanitarian law? The second is the potential emergence of an
international counter-terrorism regime in international law and
the implications of this development. What would be the effects
of the emergence of a coherent international counter-terrorism
regime on the status of human rights standards? The first case
shows how politics and power can overtake a deformalized
international system. The second case suggests that certain
fragmented regimes may become isolated by the proliferation of
new comprehensive regimes.
1. The Case of Guantanamo: Black Hole or Collision of

Regimes?
Although no official “state of emergency” has been proclaimed,

external observers have applied the concept to various policies by
the United States since September 11—the USA PATRIOT Act,
the November 2001 Executive Order on Military Tribunals, and
the detentions of “enemy combatants” and others in Guantanamo
Bay. Of these, the last issue most resembles a “de facto emergency”
potentially subject to international emergency governance. The
United States is currently holding more than 600 persons captured
in Afghanistan and other sites in the “war on terror” at “Camp X-
Ray” on the U.S. Naval Base in Guantanamo Bay, Cuba.101 It is
clear that some kind of emergency powers are being exercised in
Guantanamo. In a zone between exceptionalism and the
Schmittian “exception,” the U.S. executive branch is asserting
sole stewardship by unilaterally defining, legislating, and
interpreting the conditions of the detentions; assuming functions
usually outside the executive branch’s competence. Under
executive fiat, the U.S. has managed to evade several important
principles of international law and U.S. constitutional law. The
detainees are being held for an indefinite period without formal
charges and continually interrogated without recourse to a
“competent tribunal” under the Third Geneva Convention or a
writ of habeas corpus under U.S. law. Detainees are also denied
access to legal counsel, consular representatives, and family
members. Across the board, the executive branch has attempted
to evade any legal or institutional checks and balances on its own
prudence and prerogative, effectively blocking out any meaningful
form of emergency governance. As emergency measures, the
detentions in Guantanamo are especially disturbing because they
are not restorative or preservationist in purpose and are instead
linked to an indefinite war. It is unclear how they will sunset with
the end of hostilities, which has been declared not against a
delimited threat, but broadly against a pervasive tactic (“terror”)
or only slightly more concretely, an ill-defined ideology (Al
Qaeda and similar groups). It would appear that in Guantanamo,

the Bush administration has nearly succeeded in creating a zone
of anomie, where in effect the only law that governs is the
sovereign mercy of the executive who will grant or withhold
protection according to the dictates of “necessity.” For this
reason, a number of commentators have referred to Guantanamo
as a legal “black hole” citing an apparent gap or lacunae in
measures protecting prisoners detained there by the United
States. In terms of international law, however, this must be seen
not so much as a gap but as an instance of the oversupply and
overlap of legal regimes, which has allowed for selectivity and
cynical forms of legalism by the current administration of the
United States. As time has gone by, it has become clearer that in
practice, the legal “black hole” in Guantanamo is more like a
collision of partially persuasive jurisdictional claims and normative
principles.
The U.S. Supreme Court recently took consideration of
jurisdictional issues in two cases, Al Odah v. United States and
Rasul v. Bush, which remain unresolved as of this writing.102 Thus
far, these cases have laid bare the complex architecture of relevant
international and constitutional law, but have also revealed how
easily the Bush Administration could sweep these aside as fragile
sandcastles. First, the Administration has sought to convince the
Supreme Court that U.S. courts may not apply U.S constitutional
law or the writ of habeas corpus (the fundamental principle of
common law that a person who is imprisoned must be physically
brought to court) outside of the territorial borders of the United
States. Second, international human rights law has been cabined
off and largely ignored. Third, international humanitarian law—
still the most resilient and persuasive source of emergency
governance in the present situation—is being deformalized and
treated by the administration as prudent policy rather than
binding law. From their own point of view, the Bush
Administration has unilaterally resolved the fragmentation of
international norms by supporting the normative principles of
the Geneva Conventions. By attempting to create considerable
exceptions so that they themselves are not bound, they refuse to

commit to this regime of “minimum standards” on the plane of
legality.
The most consistent strategy the Bush Administration has
used to avoid both domestic and international law is the denial of
any review of the detainees’ cases by competent tribunals. The
detentions in Guantanamo are driven by an unusual confluence:
a high concentration of sovereignty over the bodies of the
prisoners and the simultaneous denial of the U.S.’s territorial
sovereignty. Following the 1950 case Johnson v. Eisentrager, the
Administration argues that U.S. courts lack the jurisdiction to
issue writs of habeas corpus for aliens captured abroad and then
detained outside the “sovereign territory” of the United States.103
This reference to “extraterritoriality” is also the main strategy
blocking U.S. courts’ application of the ICCPR104 and proper
review of the Administration’s use of the Geneva Conventions.
Similarly, the Administration refuses to recognize the authority
of any international tribunal. The Administration has thus far
ignored the March 13, 2002 request from the Inter-American
Commission on Human Rights that the U.S. Government convene
competent tribunals to determine the detainees’ legal status. In
short, the Administration does not consider any existing court
competent to review any claims based on an alleged violation of
the United States Constitution or international law. Though the
U.S. Supreme Court posed something of a challenge to this
position by agreeing to consider the limited (but crucial) question
of jurisdiction in the Odah and Rasul cases, if they do not
ultimately recognize the jurisdictional claims of the detainees,
they may be the last court to hear any such case.
The U.S. has deflected human rights law altogether and
partially suppressed humanitarian law. While it is hard to
imagine that President Bush has ever uttered or even heard the
words “lex specialis,” the Administration has a range of reasons—
principled, pragmatic, or indifferent—to privilege humanitarian
law over human rights law. It is perhaps unsurprising that the
Bush Administration has given very limited attention to the
ICCPR and its derogation regime. In fact, it was not mentioned

in the White House’s Fact Sheet regarding international law
covering the Guantanamo Prisoners in February 2002. Before
the plaintiffs in the Odah and Rasul cases raised it in U.S. Courts,
the only place the ICCPR is explicitly mentioned by the Bush
Administration is in answering the Inter-American Commission
on Human Rights’ petition for information regarding the
prisoners. The administration claimed that the humanitarian law
of the Geneva Conventions is the appropriate lex specialis covering
the prisoners.
If the U.S. took human rights law more seriously as a source
of emergency standards, the question of the extra-territorial
protection of the detainees would already be resolved. We would
see that Article 2(1) of the ICCPR applies to all persons within the
jurisdiction of a state party. The U.S. would be defined as a
detaining power and held accountable for violations of rights
under the Covenant.105 While treaties “normally do not have
extraterritorial application unless such an intent is clearly
manifested,”106 and the Administration would be certain to read
this provision as a territorial limitation, the Human Rights
Committee has interpreted Article 2(1) to mean that if prisoners
of war are taken or other persons are detained, those persons are
within the effective control of the detaining state.107 While the
U.S. has signed and ratified the ICCPR, it is still an open question
whether this provides a basis for U.S. courts’ jurisdiction over the
detainees. 108 There is a more fundamental issue than
extraterritoriality that accounts for the U.S.’s isolation and
disregard of ICCPR human rights standards. As a matter of
practice, the U.S. does not submit its practices to international
judicial bodies for binding adjudications concerning human
rights compliance. In contrast to the European Human Rights
System, in which human rights claims are reviewed by an
international court,109 the United States has pointed to the reliable
powers of its Supreme Court and Bill of Rights to declare the
ICCPR non-self-executing and non-enforceable by domestic courts
unless and until Congress acts to domesticate the treaty’s terms.110
While some scholars have insisted that nothing prevents U.S.

courts from treating the ICCPR as law, it is unlikely to occur
without separate legislation fully implementing the ICCPR’s
provisions directly into domestic law. The ICCPR does not
create judicially enforceable rights in this country.111
The dividing line between the Administration and its
opponents is not neatly or necessarily one between formalism
and contingency. It is important to understand that both sides in
this dispute marshal legal arguments as well as normative
arguments. Each side blocks its opponent with the shield of
legality and strikes swiftly with the sword of morality.
Those seeking to protect the fundamental rights of the
Guantanamo detainees, many of whom are lawyers, can be
characterized as “transnational norm entrepreneurs” who
intervene on the legal plane with moral and practical goals. They
would hope that even if the Administration does not enter the
formal derogation regime, it would informally adopt minimal
standards, drawing on human rights law as much as humanitarian
law and military necessity. The petitioners in the Odah case cite
in general terms a principle of international law that humanitarian
law does not “exclude or displace” the application of international
human rights law, since both share a “common nucleus of non-
derogable rights and a common purpose of protecting human life
and dignity.”112 At the same time, the Administration could have
used a formal-legal argument to designate humanitarian law lex
specialis over human rights law. In context of the detentions, the
Inter-American Commission on Human Rights has emphasized
the relevance of international humanitarian law in analyzing
counter-terrorism measures taken by States in certain
circumstances:
[I]n situations of armed conflict, the protections under

international human rights and humanitarian law may
complement and reinforce one another, sharing as they do a
common nucleus of non-derogable rights and a common
purpose of promoting human life and dignity. In certain
circumstances, however, the test for evaluating the observance

of a particular right, such as the right to liberty, in a situation
of armed conflict may be distinct from that applicable in time
of peace. In such situations, international law, including the
jurisprudence of this Commission, dictates that it may be
necessary to deduce the applicable standard by reference to
international humanitarian law as the applicable lex specialis.113
Whether or not the Administration would take the formality of

lex specialis seriously, it does appear to be making a parallel move
toward excluding human rights law and establishing humanitarian
law (or a deformalized permutation of it) as the applicable
minimum standard.
The U.S. is a party to the Geneva Conventions of 1949,
which are the principal agreements comprising international
humanitarian law. Though the Geneva Conventions are not self-
executing, they are codified in military regulations duly adopted
and binding on the United States military. The Administration’s
reference to humanitarian law probably reflects the influence of
a more durable, if minimal, law-regarding culture within the
Pentagon that transcends particular political administrations and
their views on international law.114 This organizational culture
respects the law of war, which has been codified and formalized
in similar terms since the American Civil War, and the practical
mutuality of these rules in combat make them more relevant and
more meaningful than any others—far surpassing any commitment
to international human rights law. For emergency governments,
however, humanitarian law appears to be more palatable than
human rights law because it seems so deceptively simple to apply.
It lists a few things a state cannot do under the rubric of “military
necessity” and seems to give blanket permission otherwise. Even
as the Administration privileges humanitarian law as the only
possible body of law applicable, they have deformalized the
Geneva conventions and demoted them into prudent policy
based on the standard of military necessity.
Finally, in a situation of fragmentation, political actors may

move toward either increasing centralism or increasing pluralism.
If the Administration fails to gain support for their current
strategy of extreme centralism—where all decisions can be traced
to a single sovereign driver—they will probably eventually move
toward a strategy of legal pluralism. For now, all authority
regarding the status, treatment, and fate of the detainees is
concentrated in the President. While Article 5 of the Geneva
Conventions grants the detainees “a competent tribunal” to
address the prisoner of war question, parallel American military
regulations state that “all persons taken into custody by U.S.
forces will be provided with the protections of the Third Geneva
Convention until some other legal status is determined by
competent authority.” At present, without the U.S. Courts
exercising jurisdiction, that “competent authority” is President
Bush. In response to Al Odah v. United States, the Solicitor
General issued a legal memorandum stating that the government’s
position “does not mean that aliens detained by the military
abroad are without rights, but rather that the scope of those rights
are to be determined by the Executive and the military, not by the
courts.”115 In short, the President asserts absolute discretion to
interpret and reshape the Geneva Conventions, even as he claims
“[t]he United States is treating and will continue to treat all of the
individuals detained at Guantanamo humanely and, to the extent
appropriate and consistent with military necessity, in a manner
consistent with the principles of the Third Geneva Convention
of 1949.”116 In making such a statement, the President reaffirms
that the application of the Convention is considered a prudent
policy117 and not the rule of law. In a troubling move, this also
pulls the reading of the Geneva Conventions away from emerging
international minimal standards for humane treatment and brings
“necessity” to the foreground. In the history of emergency
measures, “necessity” often plays the role of a vacant imperative,
a man-made “must”; it justifies expediency in terms of inevitability
and can often be linked to an attempt to over-determine
outcomes.118 But even under a standard of “necessity,” it would
be difficult to argue that the U.S. government can hold human

beings in prison for the rest of their lives without access to any
tribunal to determine whether such detention is appropriate.119
This restates the continuing problem of emergency governance
as the search for alternative safeguards to the self-justifying
character of a government’s emergency measures.
If centralism becomes unconvincing, or if the Supreme Court
decides against them, political and diplomatic pressures will
probably move the Administration toward increasing legal
pluralism and the proliferation of specialized tribunals. The
pressure for a competent tribunal, at least to determine the status
of the prisoner, will only increase. Already, to pre-empt a
jurisdictional entry by the Supreme Court, the Defense
Department recently announced that it is going to set up its own
tribunals to start reviewing the cases of these individuals. This
decision is driven by the partial resilience of a formal source—the
Geneva Conventions—combined with contingent pressures. In
general, it is not surprising that an emergency government, let
alone an exceptionally powerful one, would make explicit
arguments from prudence, attempting to be unbound by
international law while at the same time appealing to aspects of
it to give their decisions the texture of “legality.” But only in a
state as powerful as the United States could minor interpretative
decisions have a ripple effect on international law that seems so
systematic and widespread. It is worth noting the emerging and
competing frameworks being dubbed “the global war on terror”
in this context.
2. The Emergence of an International Counter-Terrorism

Regime
On July 2001, the Human Rights Committee adopted General

Comment 29, offering a view on coordinating humanitarian and
human rights norms in states of emergency. This represented a
restatement and renewal of the project of emergency governance,
and it seemed like a new synthesis was underway in understanding
the role of the derogation regime and the human rights system as
a whole. However, just as this system was gaining visibility, its
continuing viability was called into question. Following
September 11, 2001, when ideological followers of Al Qaeda
killed 3,000 civilians in the United States, President George W.
Bush declared an American led “global war on terrorism.” Bush’s
version of the “war on terror” was neither the first nor the only
existing normative effort to establish international co-operation
against terrorism. Taken together, however, these overlapping
efforts stand in an uneasy relation to the project of emergency
governance.
In her final academic article, Professor Joan Fitzpatrick
predicted that the possible “reconceptualization of counter-
terrorism as a new species of international armed conflict may
displace human rights law and international criminal law, and
substitute new rules that are less detailed than those that apply to
conventional armed conflicts.”120 She also predicted the
“marginalization of human rights treaty bodies as effective
monitors of counter-terrorist policies.” We could say that a local
but significant version of this has already come to pass in
Guantanamo. As for international law as a whole, it remains
possible that the emergence of a coherent international counter-
terrorism regime could displace the derogation system altogether.
We have already seen that at the formal level, fragmentation of
human rights law and humanitarian law will be resolved by the
slow reconciliation of norms (such as through the Nuclear Cases);
at the political level, it will be resolved through selective
enforcement by powerful actors (such as the U.S. actions at
Guantanamo). Similarly, we can imagine other formal and
contingent contexts where a more widespread fragmentation
might further demote human rights law in favor of other systems.
On the formal side, a Comprehensive Convention Against
Terrorism could coordinate more closely with humanitarian law
and international criminal law, leaving the formal status of
applicable human rights norms uncertain. On the contingent
side, there may be more bursts of realist audacity, and the “war
against terror” might take a more ad hoc form driven by the

priorities of powerful states.
Over the last few years, the UN has been negotiating a
Comprehensive Convention Against Terrorism. These
negotiations were stalled due to conflicting views on the definitions
of terrorism and legitimate struggles for liberation, but following
September 11, 2001, the process began again in earnest. This was
just one part of a new motivation to pursue the issue multilaterally
and in a coordinated way. On September 28, 2001, the UN
Security Council adopted Resolution 1373 (2001), calling upon
all States to become parties as soon as possible to the existing
international conventions and protocols relating to terrorism, to
fully implement all relevant international conventions and
protocols relating to terrorism. This resolution jumpstarted the
moribund Convention and initiated various less formal efforts at
coordination.
If the derogation regime is indeed becoming supplanted by
the proliferation of international counter-terrorism frameworks,
some of the formal relationships developing between discrete
regimes might indeed change. Already, this danger is suggested
where the derogation regime has been enlisted for symbolic
support by the Security Council’s emerging Counterterrorism
Cooperation regime without any reference to the specific
procedures demanded of states. A Comprehensive Convention
would almost certainly limit the commonalities developing
between humanitarian law and human rights law by shrinking
the purview of human rights law and criminalizing more acts
under humanitarian law. At the same time, the treaty could
complicate or undercut humanitarian law by criminalizing acts
committed in an internal armed conflict that are not prohibited
by humanitarian law. Human rights advocates are demanding
some kind of consistency clause stating that “nothing in the
Convention should be construed as impairing, contradicting, or
restricting from the provisions of the Universal Declaration of
Human Rights, the International Covenants on Human Rights,
and other international instruments of human rights law, refugee
law, and international humanitarian law applicable to the specific

situations and circumstances dealt with by the Convention.” The
postulated universality of rights has benefited from the successes
of regional and national systems, which have been instrumental
in the development of international law and typically speak in
universalistic language within their own jurisdictions. As the
momentum behind the Comprehensive Convention has once
again slowed, regional conventions have emerged. One existing
regional framework, Article 15 of the Inter-American Convention
against Terrorism, already provides a model for a consistency
clause:
Nothing in this Convention shall be interpreted as affecting

other rights and obligations of states and individuals under
international law, in particular the Charter of the United
Nations, the Charter of the Organization of American States,
international humanitarian law, international human rights
law, and international refugee law.121
Other regional organizations, such as the Council of Europe, are

considering passing “comprehensive” anti-terrorist conventions
at the regional level as intermediate measures on the way to
passing a comprehensive universal anti-terrorist convention at
the UN level. However, without some insistence on consistency,
the proliferation and pluralism of these less than universal
conventions against terrorism may become intolerable or might
provide for selective interpretations. One can imagine cynical
states at play in this fragmented multi-verse of “comprehensive”
frameworks.
Of course, most realists should realize that the threat of
international terrorism tests the limits of protection any national
government can provide for its citizens. Not even the most
trenchant realist or sovereigntist would deny the international
character of either modern terrorism or its necessarily coordinated
response. But how should coordination be achieved? A classic
realist argument would be to cast doubt on the efficacy of formal
measures. For example, they would point out that the United
States has given only symbolic support to various meetings,
discussions, and organizations proliferating within the UN system.
Meanwhile, the U.S. is referring to a pre-emptive war in Iraq that
enjoyed little international support as the central front in the
“Global War on Terror.” Realists would also rightly point out
that the inefficacy of existing legal treaties does not make a case
for another one. Twelve international treaties and conventions
addressing terrorism have been passed during a period in which
the incidence of terrorist attacks has escalated. So what is the
alternative? In the short term it may lie, as humanitarian
interventions have, in a combination of conventional wars and
police actions by coalitions of self-driven and willing states, along
a more comprehensive system of global governance. The United
Nations still maintains a comparative advantage against any
single state (and at this moment particularly the United States) in
its competence at dissuading potential terrorists, bringing terrorists
into peaceful political processes, and sustaining broad-based
international cooperation in the struggle against terrorism.
Still, cosmopolitans clamor for consistency, and realists
complain about effectiveness. Perhaps the most orderly
mechanism for reconciling various "comprehensive" regimes of
international legal order and offering the most heirarchical and
centralized means to prosecute terrorism within a system of due
process, a mechanism which combines effectiveness and universal
jurisdiction, is the emerging International Criminal Court. As
with any attempt at coordination, there may be formal costs to
other subsystems. But the ICC is at present the option least
favored by the United States. We should contrast the “black
hole” in Guantanamo that the Bush Administration justifies with
reference to international law with the fact that the U.S. has taken
the precaution to pass legislation to invade The Hague and
liberate American soldiers held for prosecution at the ICC. This
is exceptionalism in extremis. If the “war on terror” serves as a
guide, the questions that are slowing the Comprehensive
Convention are not likely to be resolved soon.
Conclusion
Do the above examples better describe imperfect realizations

of a global system of governance and cooperation, or do they
describe a complex but still anarchical society of states? Any
generalization would be misleading. Clearly, the state of
international emergency governance seems modestly effective as
a form of constructive engagement with potentially abusive
governments but it is more disappointing if we expect a global,
comprehensive “system” of governance. Although this paper did
not directly engage with the drastic differences in regional efficacy
of emergency governance systems, we can note that the counter-
example to the de-formalized humanitarian law based emergency
governance of the United States would be the relatively formalized
human rights-based emergency governance of Europe. Despite
appropriate realist descriptions of the developments in
Guantanamo, it must still be said that the derogation regime is
alive and well in Europe. The contentious jurisdiction of the
ECHR continues to provide the most meaningful contact with
the decisions of a few emergency governments, and the Human
Rights Committee continues to gather important information
about a large number of states and keeps them engaged in a
dialogue concerning how they can better conform to human
rights standards.
Like Williams’ poem, perched on the precipice of a driverless
world, I hope to have communicated the ambivalence of
fragmentation in the context of international law in general with
emergency governance in particular. As I have noted, it is not
necessarily a negative phenomenon. Fragmentation may detract
from the normative and aesthetic coherence of the international
legal order, but it may also invite potentially greater responsiveness
to the changing needs of the international community. Indeed,
the various institutions of that atypical and disaggregated regime
have had much to learn from each other though they are not
related in a hierarchical way. Though states could potentially cite
conflicts between systems as reasons for non-compliance, they
are much more likely not to comply based on their domestic

interests. Moreover, diversification has been advantageous for
other transnational actors, such as lawyers and activists, who seek
continual negotiated settlements or to persuade emergency
governments to adopt different courses of behavior. From the
perspective of human rights advocacy, a fragmentary system
might be as good as any. There is a danger in insular institutions
blinding themselves to evolving dangers as well as evolving moral
demands, but this is as true of self-contained regimes as it is of a
coherent system. If the goal of emergency governance is to
contribute essential forms of agonism into an otherwise
complacent system, then fragmentation offers as many possibilities
as it does dangers.
It is true that the uneasy overlap of functions between these
human rights bodies and institutions applying humanitarian law
are potentially more troublesome. Formally, the density of
contacts between these systems will probably increase because of
the definitional malleability of violent crises and because they
have been put into a possible relation by the ICJ’s Nuclear
Weapons Case. In a more realist mode, the U.S. demonstrated this
in its Guantanamo detentions by ignoring human rights standards
and only gesturing towards humanitarian law. The greatest
danger to a system is that it will become isolated and irrelevant,
or else tokenized. It also remains possible that the emergence of
a coherent international counter-terrorism regime could displace
this patchwork of human rights norms altogether. These
questions, still far from resolution, demonstrate the urgency and
intricacy of fragmentation as a phenomenon that transcends
narrow doctrinal problems of international law. Cosmopolitans
may take heart as long as their opponents are willing to pick up
their fragmented tools. In fact, the so-called enemies of
international law are no longer truly outside the system but
willing to use its provisions cynically, strategically, and effectively.
Theories of emergency, which have always teetered on the
fulcrum between formalism and contingency, must now also be
retextured by pluralism and fragmentation. The “pure products”
are continually going crazy. For the theorist, international

emergency governance poses a number of crises of categorization:
“sovereignty”, “exception”, “necessity”, “morality”, and “legality”
all occur in hybrid, polemical forms. For the international
lawyer, there are other zones of indistinction: between law
enforcement and military operations, between crime and war,
between international law and domestic prudence, between
power and principle, between formalism and the force of
persuasion. International lawyers may engage these challenges
on the plane of a wiser, more disenchanted formalism and a more
pragmatic cosmopolitanism.
Notes
This paper—a version of which was presented in February 2003 at the

conference “The Turn to Scholarship: The Inaugural Conference of
Doctorate of Juridical Science Candidates at NYU School of Law”—
owes its inspiration and improvement to David Golove, Benedict
Kingsbury, Martti Koskenniemi, Nathaniel Berman, Cade Mosely,
Nico Krisch, Mattias Kumm, J.H.H. Weiler, Janet Halley, Lacey
Torge, Joy Kanwar, Paul Hurh, Jack Jackson, Matt Baxter, Derek
Jinks, Oren Gross, the late Joan Fitzpatrick, and members of the JSD
Colloquium at NYU. My conception of emergency powers was
influenced by separate seminars by Pasquale Pasquino and Andrew
Arato in 2001 and 2002. All inaccuracies, idiosyncrasies, ambivalences,
and misplaced enthusiasms are my own.
1
Joan Fitzpatrick, Human Rights in Crisis: The International System for
Protecting Rights During States of Emergency (Philadelphia: University
of Pennsylvania Press, 1994), 36. From 1985 to 1991 Professor Fitzpatrick
was Rapporteur to the Committee on the Enforcement of Human
Rights Law of the International Law Association, which was responsible
for drafting The Queensland Guidelines for Bodies Monitoring Respect
for Human Rights During States of Emergency (1990), establishing

norms of enforcement for relevant emergency governance institutions.
Her posthumously published piece on these topics appears as Joan
Fitzpatrick, Speaking Law to Power: The War Against Terrorism and
Human Rights, 14 European Journal of International Law 241 (2003).
2
Joan Fitzpatrick, Speaking Law to Power.
3
The International Law Commission is the UN organ established by
Article 13, paragraph 1, of the Charter of the United Nations responsible
for the codification and progressive development of international law.
A Working Group on Fragmentation was originally established under
the Chairmanship of Professor Bruno Simma, who had written on
related issues a decade and a half earlier. See Bruno Simma, Self-
Contained Regimes, Netherlands Yearbook of International Law 16
(1985). The group was subsequently led by Professor Martti Koskenniemi
and has led to some interdisciplinary work on the topic outside of the
ILC. See Martti Koskenniemi and Paivi Leino, Fragmentation of
International Law? Postmodern Anxieties, 15 Leiden Journal of
International Law 553 (2002).
4
See Martti Koskenniemi, Hierarchy in International Law: A Sketch, 8
European Journal of International Law 566 (1997); Joseph H.H. Weiler
and Andreas L. Paulus, The Structure of Change in International Law or
Is There a Hierarchy of Norms in International Law?, 8 European Journal
of International Law 545 (1997); Juan Antonio Carrillo Salcedo,
Reflections on the Existence of a Hierarchy of Norms in International Law,
8 European Journal of International Law 583 (1997).
5
The fragmentation of international judicial institutions was the
subject of a conference on International Courts and Tribunals at the
NYU School of Law entitled “The Proliferation of International
Tribunals: Piecing Together the Puzzle.” See generally Benedict
Kingsbury, Foreword: Is the Proliferation of International Courts and
Tribunals a Systemic Problem?, 31 NYU Journal of International Law
and Politics 679 (1999); Pierre-Marie Dupuy, The Danger of Fragmentation
or Unification of the International Legal System and the International
Court of Justice, 31 NYU Journal of International Law and Politics 791
(1999). See especially Monica Pinto, Fragmentation or Unification
Among International Institutions: Human Rights Tribunals, 31 NYU
Journal of International Law and Politics 833 (1999); Eyal Benvenisti,
Margin of Appreciation, Consensus, and Universal Standards, 31 NYU
Journal of International Law and Politics 843 (1999).
6
Martti Koskenniemi, Outline of the ILC’s Working Group on
Fragmentation, available from http://www.un.org/law/ilc/sessions/
55/fragmentation_outline.pdf. (last checked June 7, 2004).
7
The international order arose from historical conditions of crisis, fear,
and disorder. Even where it has become attenuated from these origins,
evolving into relatively orderly relations between states behaving in
accordance with mutual expectations, a shadow of that disorder persists.
See Hedley Bull, The Anarchical Society: A Study of Order In World
Politics (New York: Columbia University Press, 1977).
8
See James N. Rosenau and Ernst-Otto Czempiel, eds., Governance
Without Government: Order and Change in World Politics (Cambridge:
Cambridge University Press, 1992); Christoph Moellers, Policy, Politics
or Political Theory?, 6 Jean Monnet Working Paper (2000).
9
Jürgen Neyer, Discourse and Order: On the Conditions of Governance
in Non-Hierarchical Multi-Level Systems, 19 Arena Working Papers
(2002). Unlike fragmentation, “heterarchy” generally describes an
institutionalization of coordination where actors cannot unilaterally
pursue their goals without finding the approval of all other actors. This
is another way of being “driverless.”
10
This is following an interdisciplinary tradition that stretches from
Machiavelli’s conceptual metaphor of “brokenness” to F.R. Ankersmit’s
aesthetic insights on political “representation.” F. R. Ankersmit, Aesthetic
Politics: Political Philosophy Beyond Fact And Value (Stanford: Stanford
University Press, 1996).
11
In terms of the theories presented in this paper, Machiavelli was at
times a realist, republican, sovereigntist and formalist. He warned that
a republic ought to provide by law “for every emergency, [by] having
a remedy for every emergency and fixed rules for applying it.” Niccolo
Machiavelli, The Discourses of Niccolo Machiavelli (New Haven: Yale
University Press, 1950), ch. 34.
12
Duöan I. Bjelic, Balkan as Metaphor (Cambridge: MIT Press, 2002).
13
See Leino and Koskenniemi, “Fragmentation of International Law,”
553-579.
14
William Carlos Williams, Spring and All (West Newbury, Mass.:
Frontier Press, 1970). For an account of “fragmentation” as a modernist
trope, particularly in the works of the social thinkers Simmel, Krakauer,
and Benjamin, see David Frisby, Fragments of Modernity: Theories of
Modernity in the Work of Simmel, Kracauer, and Benjamin (Cambridge:
MIT Press, 1986). For a typical contrast between modernity and a
recent mythic past see Stefan Zweig, The World Of Yesterday: An

Autobiography, trans. Harry Zohn (Lincoln: University of Nebraska
Press, 1964), where the author describes in the first chapter “the golden
age of security” before the first World War. This was perhaps the same
kind of anxiety that would bend some of Williams’ more skittish peers,
including the vanguard of high-modernist poets, closer to fascism by
the end of the 1920s. Though Carl Schmitt famously attended, and was
particularly influenced by, Weber’s pair of public lectures on science
and politics as kinds of “vocation,” both Weber and Williams stand at
the point of ambivalence, and refuse to collapse into the same abyss of
“reactionary modernism” as Eliot, Pound, Schmitt, or Heidegger. See
Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt
(London: Verso, 2000). The Nazis’ appropriation of cultural
fragmentation was “degeneration”, which was in turn subverted into a
critical concept and given a positive valence by the aesthetic modernists
they criticized.
15
Harvey C. Mansfield, Taming the Prince: The Ambivalence of Modern
Executive Power (New York: Free Press, 1989). Mansfield explains the
development of executive power as a kind of banalization of the
“energies” of the dictator or sovereign. He recalls the image of the
emergency regime or the sovereign as an “expert steward,” citing
Cicero’s protagonist Scipio in Republic: “in grave crises one seeks the
help of an expert, a pilot or a doctor for example.”
16
William Scheuerman and Hartmut Rosa, Social Acceleration: Concepts,
Causes, Consequences (New York: Verso Press, forthcoming). Zygmunt
Bauman describes a sped-up “liquid modernity”. See Zygmunt Bauman,
Liquid Modernity (Cambridge Malden, MA: Polity Press; Blackwell,
2000). In contrast to modernist anxieties and ambivalences, postcolonial
and postmodern theories celebrate the aesthetic of fragmentation. See
Homi K. Bhabha, The Location of Culture (New York: Routledge,
1994).
17
This description has affinities with the concept of “autopoeisis” and
the metaphor of “automobility.” See Karl-Heinz Ladeur, The Theory of
Autopoiesis. An Approach to a BetterUnderstanding of Postmodern Law:
From the Hierarchy of Norms to the Heterarchy of Changing Patterns of
Legal Interrelationships, 1999/03 European Union Institute Working
Paper (1999).
18
In a series of books and articles, sociologist John Urry describes
“automobility” is “a hybrid assemblage, of humans (drivers, passengers,
pedestrians), as well as machines, roads, buildings, signs and entire

cultures of mobility with which it is intertwined.” See John Urry,
Sociology Beyond Societies:: Mobilities for the Twenty-First Century (New
York: Routledge, 2000). Similarly, Anthony Giddens has described
modern social life as being like a driverless out-of-control “juggernaut”
(1990). Anthony Giddens, Modernity and Self-Identity: Self and Society in
the Late Modern Age (Stanford: Stanford University Press, 1991).
19
This stage is the point at which H.L.A. Hart stopped his consideration
of international law, regarding it as the “primitive” equivalent of a small
tribe with some primary rules but no secondary rules. See Thomas M.
Franck, Legitimacy in the International System, 82 American Journal of
International Law 705 (1988). International lawyers took this criticism
seriously and have characterized some of the institutional aspects of
international law as “secondary rules” ever since.
20
Axel Marschik, Too Much Order? The Impact of Special Secondary
Norms on the Unity and Efficacy of the International Legal System, 9
European Journal of International Law 240 (1998).
21
Martti Koskenniemi and Paivi Leino-Sandberg, Fragmentation of
International Law? Postmodern Anxieties, 15 Leiden Journal of
International Law 553 (2002).
22
Ibid.
23
Thomas M. Franck, Fairness in International Law and Institutions
(New York: Oxford University Press, 1996), 6.
24
Thomas M. Franck, The Courts, the State Department and National
Policy: A Criterion for Judicial Abdication, 44 Minnesota Law Review
1101, 1101-2 (1960).
25
Thomas M. Franck, The Empowered Self: Law and Society in The Age
Of Individualism (New York: Oxford University Press, 1999), 75. Here
Franck aims to describe how we come to know ourselves as individuals
through post-modern systems of fealty, through the proliferation and
democratization of multiple loyalty references, and increasingly through
“a right of persons to compose their own identity by constructing the
complex of loyalty references that best manifest who they want to be.”
“In this sense,” says Franck, “we may already have entered an era of
freely imagined identities, one in which personal choice is no longer
circumscribed by accidents or manipulations of genetics, class, place, or
history.” I mean “aesthetic” in the sense explored by F.R. Ankersmit,
Aesthetic Politics: Political Philosophy Beyond Fact and Value (Stanford:
Stanford University Press, 1996). See also Pierre Schlag, The Aesthetics
of American Law, 115 Harvard Law Review 1047, 1050 (2002). Schlag
writes that an aesthetic view “pertains to the forms, images, tropes,
perceptions, and sensibilities that help shape the creation, apprehension,
and even identity of human endeavors, including, most topically, law.”
26
I am borrowing this language from Weber, who lamented a world in
which there would remain only “specialists without spirit, sensualists
without heart.” Max Weber, The Protestant Ethic and The Spirit Of
Capitalism, ed. Talcott Parsons (Mineola, N.Y.: Dover Publications,
2003).
27
I define emergency powers as legal rules or quasi-legal orders that
temporarily suspend pre-existing legal or constitutional provisions
(e.g., rights or separation of powers) during exceptional circumstances
of crisis in order to respond to a more fundamental necessity, such as
the ultimate survival of the political community.
28
This is a form of rational delegation that differs from self-regulation
by transferring some of the resources of emergency governance outside
of the domestic order. When it is questionable whether a constitution
can survive usurpation, let alone govern an emergency situation, there
may be a comparative advantage in locating emergency moderating
effects in durable bodies outside the constitutional state, bodies that
would not be incapacitated or distorted by the emergencies.
29
Niccolo Machiavelli, Discourses on Livy, trans. Julia Conaway
Bondanella and Peter E. Bondanella (New York: Oxford University
Press, 1997), ch. 34.
30
See Anthony Giddens, “Fate, Risk and Security,” Modernity and Self-
Identity: Self and Society in the Late Modern Age (Stanford: Stanford
University Press, 1991), 109-143. In the discipline and vocation called
“crisis management”, the term is taken as a situation that urgently
requires an immediate decision.
31
This is a conceptual distinction that disqualifies the collective
security system from being considered an “international emergency
power”, even though the Security Council has shown an increasing
inclination to consider internal matters “threats to the peace” in the case
of “exceptional” humanitarian disasters. I suppose that under a
fundamentally different normative framework, it would be possible to
consider international interventions, from the League of Nations’
mandate system to present-day nation building projects to be considered
“international emergency powers.” In any case, this would remain a
separate consideration from what I define as the activity of “emergency
governance” here and elsewhere.

32
For an overview of what might be called “international emergency
powers”, including post-conflict mandate systems, see Outi Korehonen
and Jutta Gras, International Governance in Post-Conflict Situations, 9/
2001 Erik Castren Institute of International Law and Human Rights
Research Reports (2001).
33
Mattias Kumm, among others, has identified this dynamic as the
institutionalization of an “international rule of law.” See Mattias
Kumm, International Law in National Courts: The International Rule of
Law and the Limits of the Internationalist Model, 44 Virginia Journal of
International Law 19, 25 (2003).
34
In political-theological terms, “constitution” can be understood as a
secularization of “creation” just as the “exception” is a secularization of
the religious “miracle.” Moreover, like “sovereignty”, the term connotes
a kind of supremacy. However, a constitution is typically an order that
emerges not from mystical foundations, but on historical moments of
crisis, fear, and disorder. From the beginning, a constitution incarnates
collective demands for security, citizenship, structured government,
and also (here’s the specific difference from earlier conceptions of
sovereignty) limitations on the holders of power, whom the constitution
itself legitimates. At the moment we begin to speak of a constitution,
we must begin to abandon the earlier discourse of sovereignty denoting
actual or potential supremacy which, by its very definition, accepted no
limits, least of all external limits. In contrast, the historical moment of
constitution resituates claims to supremacy by imposing limitations as
conditions of possibility for the exercise of power. The purpose of
valorizing limits over limitlessness is that reasoned deliberation should,
or will replace passion as the basis of political community.
35
Those who insist on playing out this game see it as a conflict between
two views of supremacy: dualism and monism. Under a dualist view,
for all its normative legitimacy, international law cannot simply seize
the mantle of legality by its very presence; it must rely on specific
instances of compliance by the internal organisms of the plural
constitutional orders. This may be the surest and steadiest method of
incorporating international norms into a domestic legal culture. Dualists
typically view domestic law and international law as two distinct legal
systems, existing in two separate spheres of influence. For international
law rules to be used by domestic courts, the international laws in
question must first be formally “transformed” into the domestic legal
system by the proper domestic legal authorities. This aspect carries

with it the further effect that international law rules so transformed
into domestic law are, by that process, made subject to constitutional
constraints which are placed on any other domestic laws enacted.
However, a parallel claim to sovereignty can be detected in monist
discourse that privileges the international system. Monists believe that
domestic law and international law are both part of the same legal
system. However, this is often just a way of declaring supremacy within
that single system, so that domestic law is seen as secondary, deriving
its validity from international law. If international law is not subject to
domestic law limitations, including those in national constitutions,
then it could be thought of as “sovereign.”
36
Dominic McGoldrick, The Interface between Public Emergency Powers
and International Law, 2 The International Journal of Constitutional
Law 380, 383 (2004).
37
Despite countless studies, the issue of states’ entry and compliance
with human rights treaties is still a puzzle of the discipline. Yet states
must still find that retaining a nexus to the international human rights
system during a state of emergency is desirable for some reason or
another. For recent attempts to answer this question, see generally
Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111
Yale Law Journal 1935 (2002); Peter M. Haas, “Choosing to Comply:
Theorizing from International Relations and Comparative Politics,”
Commitment and Compliance: The Role of Non-Binding Norms in the
International Legal System, ed. Dinah Shelton (New York: Oxford
University Press, 2000), 43-64.
38
Catechism of the Catholic Church (1883); most recently reformulated
Pope John Paul II. cf, Centesimus Annus, 48.4.
39
This resembles Rawls’ non-ideal conditions of “burdened societies”
and “non-compliance.” See John Rawls, The Law Of Peoples: With “The
Idea Of Public Reason Revisited” (Cambridge: Harvard University
Press, 1999).
40
Otto Kirchheimer, “The Socialist and Bolshevik Theory of the
State,” Social Democracy and the Rule of Law (New York: Routledge,
1987), 14.
41
Pasquale Pasquino, “Locke on King’s Prerogative,” Political Theory
2 (1998): 198-208. John Locke,
Two Treatises of Government, ed. Peter Lasslett (Cambridge: Cambridge
Univ. Press, 1993), 393.
42
The following dictum from
The Spirit of the Laws has become famous: “[T]he practice of the freest
nation that ever existed induces me to think that there are cases in which
a veil should be drawn for a while over liberty, as it was customary to
cover the statues of the gods.” Quoted in Gabriel L. Negretto and Jose
Antonio Aguilar Rivera, Liberalism and Emergency Powers in Latin
America: Reflections on Carl Schmitt and the Theory of Constitutional
Dictatorship, 21 Cardozo Law Review 1797, 1799 (2000).
43
In his theoretical writings, Martti Koskenniemi has recast this
dichotomy between formalism and contingency as one between
“sources” and “sovereignty.” According to Koskenniemi, however,
there is a constant referral between sovereignty/sources, facts/law, and
formal/material. See generally Martti Koskenniemi,
From Apology to Utopia: The Structure of International Legal Argument
(Helsinki: Finnish Lawyers’ Publishing Co., 1989).
44
Gerald Fitzmaurice, The United Nations and the Rule of Law, 38
Transactions Of The Grotius Society 135, 149 (1953). See also Pierre
Bourdieu, The Force of Law, 38 Hastings Law Journal 805, 831 (1987).
(“The juridical field is a social space organized around the conversion
of direct conflict between directly concerned parties into juridically
regulated debate between professionals acting by proxy. It is also the
space in which such debate functions. These professionals have in
common their knowledge and their acceptance of the rules of the legal
game, that is the written and the unwritten laws of the field itself, even
those required to achieve victory over the letter of the law... a third
person mediator. In this definition, the essential idea is mediation, not
decision.”).
45
Andrew Moravcsik, “The Origins of International Human Rights
Regimes: Democratic Delegation in Postwar Europe,” International
Organization 54, 2 (2000): 217–252.
46
Steven Ratner, Precommitment Theory and International Law: Starting
a Conversation, 81 Texas Law Review 2055 (2003).
47
Anna-Lena Svensson-McCarthy, “The International Law Of Human
Rights And States Of Exception : With Special Reference To The
Travaux Préparatoires And The Case-Law Of The International
Monitoring Organs,” International Studies In Human Rights v. 54.
(The Hague: Martinus Nijhoff Publishers, 1998); Joan Fitzpatrick,
“Human Rights In Crisis: The International System For Protecting
Rights During States Of Emergency,” Procedural Aspects of International
Law Series v. 19 (Philadelphia: University of Pennsylvania Press, 1994);

Jaime Ora·, Human Rights In States Of Emergency In International Law
(Oxford: Oxford University Press, 1992).
48
Dominic McGoldrick, The Interface Between Public Emergency Powers
and International Law, 383.
49
Article 4(1) of the International Covenant on Civil and Political
Rights [ICCPR] states: “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, provided that such measures
are not inconsistent with their other obligations under international
law and do not involve discrimination solely on the ground of race,
colour, sex, language, religion or social origin.” Article 15(1) of the
European Convention for Human Rights [ECHR] states: “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.” Article
27(1) of the Inter-American Convention on Human Rights [IACHR]
states: “In time of war, public danger, or other emergency that threatens
the independence or security of a State Party, it may take measures
derogating from its obligations under the present Convention to the
extent and for the period of time strictly required by the exigencies of
the situation, provided that such measures are not inconsistent with its
other obligations under international law and do not involve
discrimination on the ground of race, colour, sex, language, religion or
social origin.”
50
These non-derogable rights are: the right to life, recognition as a
person before the law, freedom of thought and religion, freedom from
torture, freedom from slavery and retroactive criminal laws and
punishments, and a ban on imprisonment for the inability to fulfill a
contractual obligation. In practice, however, it is routinely alleged that
non-derogable rights have been derogated during states of emergency,
indicating that the disincentives of non-compliance with these obligations
have not been fully internalized or that enforcement mechanisms are
incomplete.
51
For example, the European Court of Human Rights has suggested
that “human rights” can be understood in terms of a self-contained

regime of reservations.
52
For a more complete account of the emergency governance activities
of the Human Rights Committee, see Dominic McGoldrick, The
Interface Between Public Emergency Powers and International Law, 380.
53
Case studies include Oren Gross, Once More unto the Breach: The
Systemic Failure of Applying the European Convention on Human Rights
to Entrenched Emergencies, 23 Yale Journal of International Law 437
(1998); Michael O’Flaherty, “Treaty Bodies in States of Emergency:
The Case of Bosnia and Herzegovina,” The Future of UN Human Rights
Treaty Monitoring, eds. Philip Alston and James Crawford (London:
Cambridge University Press, 2000); Fionnuala Ni Aolain, The
Fortification of an Emergency Regime, 59 Albany Law Review 1353
(1996); Eyal Benvenisti, Margin of Appreciation, Consensus, and Universal
Standards, 31 NYU Journal of International Law and Politics 843
(1999).
54
Lawless v. Ireland, 1 Eur. Ct. H.R. 15 (1961); Ireland v. United
Kingdom, 25 Eur. Ct. H.R. (ser. A) 25 (1978); The Greek Case, 1969 Y.B.
Eur. Conv. on H.R. 71-72 (Eur. Comm’n on H.R.).
55
See “Regional Promotion and Protection of Human Rights: Twenty-
Eighth Report of the Commission to Study Organizations of Peace”
(1980), reprinted in Henry Steiner and Philip Alston, International
Human Rights in Context (Oxford: Clarendon Press, 1996), 567.
56
W. Vierdag, “Some Remarks About Special Features of Human
Rights Treaties,” Diversity in Secondary Rules and the Unity of
International Law, eds. L.A. Barnhoorn and K.C. Wellens (The Hague:
Martinus Nijhoff Publishers, 1995), 138.
57
So far the parallel framework of the European Union has not
displaced the ECHR’s role in Europe, though the two treaty frameworks
are independent of each other. Treaty on European Union, Nov. 10,
1997, art. 6(2) (requiring Union to respect ECHR rights).
58
Article 44 of the International Covenant on Civil and Political
Rights.
59
A menu of these principles could include: (1) the principle of
exceptional threat, (2) the principle of non-derogation of fundamental
rights, (3) the principle of proportionality, (4) the principle of declaration,
(5) the principle of notification, (6) the principle of non-discrimination,
and (7) the principle of consistency. A case would then be made for how
and why we would construe any of these principles as general principles
of customary international law. The pragmatic reason behind extending

any such principles could only be to bind the behavior of actors who
have not stated their pre-commitments and preferences, or not stated
the “right” ones.
60
As Oona Hathaway has noted, “the major engines of compliance that
exist in other areas of international law are for the most part absent in
the area of human rights....The forces that induce compliance with
other law ... do not pertain equally to the law of human rights.” See
Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 1935.
61
Jaime Ora·, Human Rights in States of Emergency in International
Law.
62
David Makinson, “In Memoram Carlos Eduardo Alchourron,”
Nordic Journal of Philosophical Logic 1, no. 1 (1996): 3-10. The term
derogation (“derogare”) first was introduced by the third century
Roman juris consult Modestinus and later transposed to canon law,
civil law, and international law, as “the partial revocation of a law, as
opposed to abrogation or the total abolition of a law.”
63
Domini McGoldrick, The Interface Between Public Emergency Powers
and International Law, 383.
64
As a matter of grammatical usage, it is unclear whether we should say
rights are “derogated” or “derogated from.” It seems that rights are
derogated, but commitments are derogated from. This ambiguity issues
from separate meanings of the term and still leads to confusion: if a state
derogates a right, it is curtailing or depriving a person of a part of his
rights; however, if a state formally derogates from an obligation to
protect that person’s rights, it may be derogating from (or complying
with) a different obligation. See Oxford English Dictionary, 2nd Ed.
65
Alan Gewirth, “Are There Any Absolute Rights?,” Theories of Rights,
ed. Jeremy Waldron (Oxford: Oxford University Press, 1984), 77, 87-
88.
66
Joan Hartman, Derogations from Human Rights Practices in Public
Emergencies, 22 Harvard International Law Journal 1 (1981).
67
In the so-called “Siracusa Principles,” the U.N. Sub-Commission on
Prevention of Discrimination and Protection of Minorities makes the
distinction between “derogations” and “limitation clauses.” Siracusa
Principles on the Limitation and Derogation of Provisions in the
International Covenant on Civil and Political Rights, Annex, UN Doc
E/CN.4/1985/4 (1985).
68
Beyond the distinction between primary and secondary rules, we can
analytically separate out three moments of articulation in the complex
statement of a rule that includes both emergency exceptions and

limitations to these exceptions: (1) A rule is the articulation of a general
and binding norm. (These are “explicit rules” rather than other rule-like
articulations: presumptions, guidelines, standards, factors, or principles,
but the content of the explicit rule may be rights or institutional
competencies). Here the rule is an enumerated human right. Cass R.
Sunstein, Problems with Rules, 83 California Law Review 953 (1995). (2)
An exception is a subsequent rule-like articulation (in the form of an
explicit rule, presumption, guideline, standard, or factor) modifying or
governing application of the rule in particular circumstances, supported
by a claim of necessity. In this sense, an exception is an alternative
norm, a redirection, rather than an interruption. Here, the exception
would be the state’s derogation of the human right, as well as the facts
leading to this derogation. Frederick Schauer, Exceptions, 58 University
of Chicago Law Review 871 (1991).Third, and finally, an emergency
regulation is yet another rule-like articulation modifying, moderating,
or governing application of the exception, particularly where the
circumstance triggering the exception is an emergency. Here, the
emergency regulation would be the secondary rule allowing or
disallowing the derogation of the rights. This analytic separation
notably parcels out these articulations as if they were on a timeline, as
well as in a spatial separation of powers. The rule is first in time and
corresponds to a normal regime; the exception is second in time and
corresponds to the emergency measures; and the emergency regulation
is third in time and corresponds to emergency governance. If we keep
in mind these three articulations, emergency governance is not merely
the system of derogations, but the system that controls derogations.
69
Hans Kelsen, “Derogation,” Essays in Jurisprudence in Honor of Roscoe
Pound, ed. R.A. Newman (Indianapolis, IN: American Society of Legal
History 1962), 339-361.
70
Jan Mus, Conflicts Between Treaties in International Law, 45
Netherlands International Law Review 208, 209, 217-18 (1998).
71
Hans Kelsen, “Derogation,” Essays in Jurisprudence in Honor of Roscoe
Pound, 339-361.
72
Oxford English Dictionary, 2nd Edition : “accommodate: of fitting,
adapting, adjusting, suiting; adaptation, adjustment. conformity to
circumstance; conciliatory disposition or conduct: obligingness. An
arrangement of a dispute; a settlement, composition, treaty, or
compromise. To adapt, fit, suit, or adjust (one thing or person to
another) either actually or in idea to make consistent, to harmonize.”

73
For a more complete treatment of jus cogens and obligations erga
omnes, see Ian D. Seiderman, Hierarchy in International Law: The
Human Rights Dimension (Antwerp: Intersentia-Hart, 2001).
74
For a plausible endpoint to this extensive debate, see Teraya Koji,
Emerging Hierarchy in International Human Rights and Beyond: From
the Perspective of Non-Derogable Rights, 12 European Journal of
International Law 917 (2001). For the article that started it all, see
Prosper Weil, Towards Relative Normativity in International Law?, 77
American Journal of International Law 413 (1983).
75
Maurizio Ragazzi, The Concept of International Obligations Erga
Omnes (London: Oxford University Press, 2000).
76
In the history of Western political thought, the term “republicanism”
refers to a perspective based on the conviction that the aspiration for the
common good of the state or community should guide public action
rather than the protection of individual and private goods. The Roman
system’s influence on the republican tradition of emergency powers
was significantly defined by its particular constraints: (1) The dictator
was appointed for a limited time; (2) the dictator was never self-
appointed; (3) there was no power to legislate or amend permanent
laws; (4) the power was transferred only to achieve a specific goal. This
correlates with the republican philosophy of the Roman dictatorship,
Rousseau, Machiavelli, and others. For an overview of the literature,
see Wilfried Nippel, “Emergency Powers In The Roman Republic,” La
Théorie Politico-Constitutionnelle Du Gouvernment D’exception, eds. P.
Pasquino and B. Manin (Paris: Les Cahiers Du CREA, 2000), 5-23; A.
W. Lintott, The Constitution of The Roman Republic (Oxford:
Clarendon Press, 1999); Carl Schmitt, Die Diktatur (Berlin: Duncker &
Humbolt, 1964); Clinton L. Rossiter, Constitutional Dictatorship
(Princeton: Princeton University Press, 1948); Niccolo Machiavelli,
The Prince and The Discourses (New York: Modern Library, 1950); Jean-
Jacques Rousseau, Du Contrat Social, Facsimilé Inédit, …dition Originale
(Paris: Serpent à Plumes, 1998); Pasquale Pasquino and John Ferejohn,
Emergency Powers: A Typology, 2 International Journal Of Constitutional
Law 210 (2004).
77
The Human Rights Committee [HRC] adopted General Comment
29 which states that measures derogating from the provisions of the
Covenant must be of an exceptional and temporary nature. To qualify
as such, two fundamental conditions must be met: the situation must
amount to a public emergency that threatens the life of the nation, and
the state party must have officially proclaimed a state of emergency.
The HRC notes that the latter requirement is essential for the
maintenance of the principles of legality and rule of law at times when
they are most needed;
78
See Common Article 3 of the Geneva Conventions of 1949.
79
See Articles 6 (right to life), 7 (prohibition against torture and
degrading treatment), and 15 (prohibition against extra-judicial and
retroactive punishments) of the ICCPR.
80
Theodor Meron, Human Rights and Humanitarian Norms as
Customary Law (Oxford: Clarendon Press, 1989).
81
The Bush administration has thus far proceeded on a simplistic
account of humanitarian law, availing itself of convenient provisions
and duties. How should we deal with genuine conflicts between norms
that apply in the same emergency situations?
82
See Thomas Buergenthal, “To Respect and Ensure: State Obligations
and Permissible Derogations,” The International Bill of Rights: The
Covenant on Civil and Political Rights, ed. Louis Henkin (New York:
Columbia University Press, 1981), 523.
83
Wilfred Jenks, The Conflict of Law-Making Treaties, 30 The British
Yearbook of International Law 401, 446-447 (1953). The application of
the lex specialis principle goes back to the great founders of international
jurisprudence: Grotius, Vattel, and Pufendorf.
84
ICCPR (6) (1): “Every human being has the inherent right to life.
This right shall be protected by law. No one shall be arbitrarily
deprived of his life.”
85
Nuclear Weapons Case, paragraph 25.
86
Ibid.
87
Theodor Meron, On the Inadequate Reach of Humanitarian Norms
and Human Rights Law and the Need for a New Instrument, 77 American
Journal of International Law 589 (1983); R. Quentin Baxter, Human
Rights and Humanitarian Law- Confluence of Conflict?, 9 Australian
Yearbook of International Law 94 (1985). The confluence of human
rights and humanitarian law was first formally recognized in The
Proclamation of Teheran at International Conference on Human
Rights on May 13, 1958.
88
Dale Stephens, Human Rights and Armed Conflict—The Advisory
Opinion of the International Court of Justice in the Nuclear Weapons Case,
4 Yale Human Rights and Development Law Journal 1 (2001).
89
Article 15 of the ECHR may state the possibility of restrictions to the
human rights in war, but it goes on to list a catalogue of non-derogable
rights. These include the right to life (Art. 2), the prohibition of torture
(Art. 3), and the prohibition of slavery and forced labor (Art. 4).
90
Article 38 (1) (d) of the ICJ Charter states that “judicial decisions and
the teachings of the most highly qualified publicists of the various
nations” are “subsidiary means for the determination of rules of law.”
The ILC is considered to be chief among these. For a more skeptical
view regarding publicists, see Harold G. Maier, The Utilitarian Role of
a Restatement of Conflicts in a Common Law System: How Much Judicial
Deference Is Due to the Restaters or “Who Are These Guys, Anyway?”, 75
Indiana Law Journal 541 (2000).
91
For example, the Siracusa Principles are a proposal to enhance the fact
finding capacity of the Human Rights Committee. The Stockholm
Proposals are based on the principles that emergency legislation must
not contradict the basic values of a democratic state and emergency
legislation must provide a flexible, functional and effective basis for the
purposes of emergency management. The Turku Declaration “affirms
minimum humanitarian standards which are applicable in all situations,
including internal violence, disturbances, tensions, and public
emergency, and which cannot be derogated from under any
circumstances. These standards must be respected whether or not a state
of emergency has been proclaimed.” In practice, however, it is
routinely alleged that non-derogable rights have been derogated during
states of emergency.
92
General Comment 29, ICCPR/C/21/Rev.1/Add.11, paragraphs. 9,
11 (2001).
93
Joan Fitzpatrick, The Queensland Guide for Bodies Monitoring Respect
for Human Rights during States of Emergency, 224.
94
Wolfgang Gaston Friedmann,
The Changing Structure of International Law (New York: Columbia
University Press, 1964), 88.
95
Hugo Grotius,
The Law of War And Peace (De Jure Belli Ac Pacis), trans. Louise R.
Loomis (Roslyn, NY: W.J. Black Inc., 1949), Book II Sect. XXIX.
Grotius: “Among agreements which are equal... that should be given
preference which is most specific and approaches most nearly to the
subject in hand, for special provisions are ordinarily more effective than
those that are general.”
96
Martti Koskenniemi, Hierarchy in International Law: A Sketch, 566.
97
There is a deep link between “politics” and “worldliness.” “Politics”
has long been linked with the relativization of ethics and “ethics” with
the relativization of “political necessity.” Norberto Bobbio, one of the
few political theorists who credibly combined Schmittian realism with
Kelsenian idealism, consistently emphasized that political action is “of
this world” and not beyond it. The realist emphasis on collective
preservation is actually common to most non-revolutionary, non-
nihilistic traditions of political thought. In terms of theories of
emergency, both liberal and republican traditions avoid the extreme
moralism that is embodied in the maxim fiat iustitia pereat mundus [“let
there be justice even if the world perishes”]. See generally Norberto
Bobbio, In Praise of Meekness, trans. Teresa Chataway (Cambridge:
Polity Press, 2000).
98
In this “post-ontological” stage, realists do not deny that international
rules affect the behavior of states, but they do argue that the consciously
biased and value-oriented choices of states (“interests”) are at least as
legitimate as the biased and value-oriented choices (“morals”) that
international institutions attempt to foster.
99
The literature on American exceptionalism and self-exemption from
international law, which was a minor scholarly tributary before
September 11, 2001, developed into a steady stream soon afterwards,
and has grown into a flood since the Iraq War of 2003. However, we
must recognize that even the texture of hegemony is fragmented and
uneven. Thus macro-historical characterizations such as “Empire” and
“hyper-power” are probably less helpful than functional ones such as
unilateralism, pre-emption, and self-exemption.
100
The name “Camp X-Ray” is ironic for its lack of transparency.
Recent events in Iraq raise the even more disturbing possibility that
detainees at Guantanamo are being tortured. Indeed, one of the main
purposes of this site is the interrogation of prisoners. See Major General
Antonio M. Taguba, Article 15-6 Investigation of the 800th Military
Police Brigade; see also Delegates of the International Committee of the
Red Cross Report of the International Committee of the Red Cross [ICRC]
on the Treatment by the Coalition Forces of Prisoners of War and Other
Protected Persons by the Geneva Conventions in Iraq During Arrest,
Internment, and Interrogation, February 2004.
101
In The Supreme Court of the United States Shafiq Rasul, Et Al.,
Petitioners v. George W. Bush, Et Al (No. 03-334); Fawzi Khalid Abdullah
Fahad Al Odah, Et Al., Petitioners v. United States Of America, Et Al.

Taken together, these cases challenge the detentions under various
causes of action and alleged violations of statutory, constitutional, and
international law, including: The Alien Tort Statute, U.S. Code, vol.
28, sec. 1350; Arts. 9 & 14 of the ICCPR; and Arts. 18, 25, & 26 of the
American Declaration on the Rights and Duties of Man.
102
Johnson v. Eisentrager, 339 U. S. 763 (1950). In this case, the Supreme
Court denied a writ of habeas corpus to twenty-one enemy Germans in
China who were tried by a U.S. Military Commission in Nanking and
later transferred to a prison in Germany that was under the control of
the United States Army. According to the decision, “[t]hese prisoners
at no relevant time were within any territory over which the United
States is sovereign and the scenes of their offense, their capture, their
trial and their punishment were all beyond the territorial jurisdiction
of any court of the United States.”
103
The writ of habeas corpus is paralleled in international law by Article
9(4) of the ICCPR stating: “Anyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings before a court,
in order that that court may decide without delay on the lawfulness of
his detention and order his release if the detention is not lawful.” This
right is non-derogable in states of emergency.
104
The regional human rights bodies have taken a similar approach.
For example, in Cyprus v. Turkey (1975) the European Commission
found that because Cypriot nationals were under the “actual authority
and responsibility” of Turkey, the protections of the European
Convention on Human Rights applied, in spite of the alleged human
rights violations occurring in Cyprus and not Turkey.
105
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993).
106
After withdrawing its forces following the Spanish-American War
in 1903, the United States entered into a lease that continues in
perpetuity with the newly formed Republic of Cuba for the territory
that now forms Guantanamo, providing: “While on the one hand the
United States recognizes the continuance of the ultimate sovereignty of
the Republic of Cuba over [the military base at Guantanamo Bay], on
the other hand the Republic of Cuba consents that during the period of
occupation by the United States of said areas under the terms of this
agreement the United States shall exercise complete jurisdiction and
control over and within said areas.” Agreement Between the United States
and Cuba for the Lease of Lands for Coaling and Naval Stations, Feb. 16-
23, 1903, U.S.-Cuba, art. III, T.S. 418. (emphasis added).

107
The U.S. signed the ICCPR in 1977 under President Carter and
ultimately ratified the Treaty in 1992, 26 years after the conclusion of
the Treaty, with Senate reservations.
108
Christopher Harland, The Status of the International Covenant on
Civil and Political Rights (ICCPR) in the Domestic Law of State Parties:
An Initial Global Survey Through UN Human Rights Committee
Documents, 22.1 Human Rights Quarterly 187 (2000), and Christof
Heyns and Frans Viljoen, The Impact of the United Nations Human
Rights Treaties on the Domestic Level, 23 Human Rights Quarterly 483
(2001).
109
Congress has never implemented the ICCPR, but it has enacted
implementing criminal legislation for the Torture Convention, the
Genocide Convention, and the Geneva Convention.
110
See also, e.g., Flores v. Southern Peru Copper Corp., No. 02-9008, 2003
WL 22038598, at 18 n.35 (2d Cir. Sept. 2, 2003).
111
In The Supreme Court of the United States Shafiq Rasul, Et Al.,
Petitioners v. George W. Bush, Et Al., Fawzi Khalid Abdullah Fahad Al
Odah, Et Al., Petitioners v. United States Of America, Et Al. On Petitions
For A Writ Of Certiorari To The United States Court Of Appeals For
The District Of Columbia Circuit Brief For The Respondents In
Opposition Nos. 03-334 and 03-343.
112
Precautionary Measures in Guantanamo Bay, Cuba, Inter-American
Commission on Human Rights, March 13, 2002.
113
See R. S. Hartigan, Lieber’s Code and the Law of War (Chicago:
Precedent, 1983).
114
Defendants’ Reply in Support of Motion to Dismiss, Al Odah v.
United States, Civil Action No. 02-CV-828 (CKK) (D.D.C. 2002) .
115
Office of the White House Press Secretary, Fact Sheet, Status of
Detainees at Guantanamo 1 (Feb. 7, 2002), www.whitehouse.gov/
news/releases/2002/02/20020207-13.html.
116
To demonstrate the contrast, the Administration has treated the
Geneva Conventions “as law” in the case of Iraq, while in Guantanamo
they are exercising pure prerogative, and claim to be only ethically
bound by their own sense of honor. Alberto Gonzales, “The Rule of
Law and the Rules of War,” New York Times, May 15, 2004.
117
If, as Hegel said, “arbitrariness is contingency in the shape of will,”
perhaps necessity is sometimes well disguised as contingency. From
G.W.F. Hegel, Elements of the Philosophy of Right, trans. H.B. Nisbet
(Cambridge: Cambridge University Press, 1991), 48. Quoted in Nicholas

Onuf, “Tainted by Contingency: Retelling the Story of International
Law,” in Reframing the International: Law Culture, Politic, eds. Richard
Falk, Lester Edwin J. Ruiz and R.B.J Welker (London: Routledge, 2002),
37. Necessity should be understood as a polemical concept. It is not
inherently provable. As a polemical concept, it would be performatively
sufficient to call a proposed course of action “necessary.” Thus the
phrases, “necessity of jihad”, “necessity of war”, “necessity of genocide”,
and “necessity of domination of foreign markets” are all logically
coherent, but each invites a justifiable skepticism toward the actual
necessity of these actions. However, when necessity is given a more
minimal content–for example the “necessity of self-preservation” it
somehow seems more convincing, even axiomatic. This is only because
the moral appeal and the self-interested appeal of “self-preservation”
overlap and invite less controversy.
118
For a concise discussion of these issues, see George H. Aldrich, The
Taliban, Al Qaeda, and the Determination of Illegal Combatants, 96
American Journal of International Law 891 (2002). In February of 2002,
President Bush determined that Al Qaeda terrorists were not prisoners
of war under the Third Geneva Convention, since Al Qaeda did not
qualify as a state. The president also determined that while the Taliban—
Al Qaeda’s collaborators—were covered by the treaty, they did not
qualify as prisoners of war under the terms of the treaty since combatants
must distinguish themselves from the civilian population. However,
the Third Geneva Convention describes the rights of captured
combatants and defines POW status. The Fourth Geneva Convention
covers the treatment of both unlawful combatants and innocent civilians.
According to the International Committee of the Red Cross, there is no
gap between the Third and Fourth Geneva Conventions—no one can
fall outside the law.
119
Joan Fitzpatrick, Speaking Law to Power: The War Against Terrorism
and Human Rights, 241.
120
Inter-American Convention Against Terrorism, OAS General
Assembly Resolution AG/RES. 1840. In addition, the question of the
drafting of a comprehensive anti-terrorist convention in the Council of
Europe has been raised.

International Emergency Governance: Fragments of A Driverless System

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International Emergency Governance:

Fragments of a Driverless System

Long before September 11, 2001, international lawyers were

rights advocates to seek out authoritative rules and resources of

systems that seem to govern emergencies includes universal and

The Politics and Aesthetics of Fragmentation

In recent years, international lawyers have seized upon the

international and regional regimes, institutions, and jurisdictions.

bay some kind of fragmentation. Today, fragmentation is used

we confront it not as a directionless machine spinning out of

What Is Meant By “The Fragmentation Of International

In international law, fragmentation has become a term-of-art,

became more detailed, sets of primary and secondary rules were

system.23 Moreover, the danger of inconsistency is not limited to

of international law must greet its fragmentation with a gloomier

What Is Meant By “International Emergency

What I’m calling emergency governance (as opposed to

(1) It is not modeled on a domestic separation of powers, which

The main overestimation of the system is that the international

the pre-eminent notion and point of concentration for legitimacy

down the threat, and would therefore avoid complications of

Theories of Formalism and Contingency in Emergency

As Otto Kirchheimer has written, “[o]f fundamental

This tradition jettisons a strict observance of formal laws in favor

article, Sir Gerald Fitzmaurice emphasizes the special character

The social function which law has to perform is precisely that

This “legal element” resides in the internal understandings of

might be attractive to certain states because by doubling as a “legal

Realist theories regard international emergency governance as a

International Emergency Governance in the Human

Some commentators have described the emergency

provide an international law definition of “emergency”; (2) they

ICCPR framework marks its success not by the quality of these

(a) It must be actual or imminent.

In contrast to the ICCPR’s “universal” system, the ECHR’s

The High Contracting Parties agree that, except by special

The provisions for the implementation of the present Covenant

the field of human rights by or under the constituent

This heterogeneity actually aids our ability to conceive the two

uncertainty and therefore no explicit indications of the legal

What Is Meant By “Derogation”?

At the heart of the three treaty regimes on emergency

from an international obligation.65 Also, the term derogation is

the relation of all enumerated rights to contingent factual

“accommodation,” not simply to authorize or permit derogation,

“peremptory norms of international law.” The Vienna

clause is not the place to articulate a hierarchy of human rights.

Some Competing Sources of International Emergency

When different international resources are applied to the

derogation clause of the human rights treaties and similar minimum

or violent conflict that overlap in human rights and humanitarian

relationship between Article 4 of the ICCPR and the laws

The Court observes that the protection of the International

This decision has been hailed as countering the longstanding

internal relation between primary and secondary rules of a

Cosmopolitan culture is tethered to legal formalism, but is

Human Rights Norms in a State of Emergency, among others.92

Measures derogating from the provisions of the Covenant

The General Comment also emphasized that international

[A]rticle 4, paragraph 1, requires that no measure derogating

The enumerated “minimum standards” articulated in the General

all persons deprived of liberty must be treated with respect for

While this is an advance for the articulation of these principles,