By: Abby Oakland, Volume 104 Staff Member
Hong Kong was under siege. Mass protests had been ongoing for months, and the government’s attempts to resolve the dispute had fallen short. Tensions between police and protesters continued to escalate, and in a move sparking global criticism, Hong Kong’s executive used a little-known emergency powers law to enact a ban on protester face masks. The government’s invocation of emergency powers marked another example of a concerning trend in international law. Increasingly, national governments are using emergency declarations to respond to threats and suspend human rights obligations. The trend represents a disturbing gap in human rights protection and requires a re-examination of the regulatory scheme surrounding emergency declarations. The events in Hong Kong preceding the declaration provide an illustrative case study on the need for a new approach. Analysis of Hong Kong’s declaration demonstrates that broadening the scope of state responsibility will allow human rights mechanisms to close loopholes that allow apparently lawful abrogations and to reassert human rights protections.
I. INTERNATIONAL LAW ALLOWS SUSPENSION OF HUMAN RIGHTS OBLIGATIONS IN EXCEPTIONAL CIRCUMSTANCES
International human rights law imposes a variety of obligations on states in regard to their own citizens, but states retain the ability to suspend those obligations under certain circumstances. The process of derogation under human rights treaties allows states to legitimately limit certain rights in times of emergency to respond to and end the emergency. However, treaties tightly regulate and restrict the derogation. Derogations must be in response to an emergency, and measures must be necessary, proportional, and non-discriminatory. Many treaties also restrict derogation by specifying that certain rights and protections are non-derogable under any circumstances.
A threshold matter for a state’s ability to derogate is whether the requisite circumstances exist. International mechanisms often defer to national governments in their determination that an emergency exists, but human rights law is clear that derogations must be limited, regulated, and in response to a grave and exceptional threat. The European Court of Human Rights has found that an emergency requires war or a threat to the life of the nation. The Human Rights Committee clarified that derogation measures can be invoked only in exceptional and temporary circumstances, and the Inter-American Court permits derogations in the face of “exceptional situations only” and never for certain fundamental rights. International mechanisms evaluating derogations analyze whether an emergency exists at the time of the declaration and also consider whether the preceding events add context and support. Existing jurisprudence, however, does not appear to consider whether the state’s actions leading up to the declaration contributed to the emergency and potentially limit the government’s right to derogate.
II. EXPANDING THE SCOPE OF STATE RESPONSIBILITY MORE EFFECTIVELY REGULATES DEROGATION
The process of derogation is tightly regulated to limit its use, prevent abuse, and enforce the underlying human rights protections, and these rationales support an expansive view of state obligation. A narrow interpretation of state obligation undermines both the efficacy of the regulatory scheme and the goals of human rights law. When international bodies focus solely on the moment of an emergency declaration, states can manipulate volatile situations and manufacture crises. Instead, international bodies should apply an expanded scope analysis and prevent states whose unlawful actions create or contribute to conflicts from suspending their human rights obligations. Thus, international mechanisms would evaluate whether an emergency exists, whether the state unlawfully acted to create the emergency, and then whether the derogation measures comply with international law. This expansive view of state responsibility prevents states from exploiting unrest to use harsh measures otherwise prohibited by their human rights obligations. The focus on unlawful action allows for a manageable and justiciable standard for international mechanisms to enforce.
Expanding state responsibility in the context of emergency declarations aligns with existing human rights jurisprudence. International mechanisms have expanded state responsibility in other contexts to fulfill the goals of human rights law and prevent states from choreographing circumstances to allow otherwise unlawful violations. In McCann v. United Kingdom, the European Court of Human Rights expanded right to life protections into the timeframe prior to death when it found the state had violated its obligations by planning a police operation in a manner that increased the likelihood of the use of force. In another case, Gonzalez “Cotton Field” v. Mexico, the Inter-American Court expanded state responsibility into actions both preceding and after death because the state allowed and perpetuated conditions conducive to violence against vulnerable groups.
III. CASE STUDY: HONG KONG
Hong Kong represents a recent example of state action preceding an emergency declaration that potentially undermines the state’s ability to derogate. Hong Kong’s mass demonstrations began in June 2019 in response to a proposed extradition bill that would have allowed the removal of individuals to mainland China. The bill has since been withdrawn, but protesters widened their demands to include, inter alia, acknowledgement of the legitimacy of the protests and an expansion of voting rights.
Clashes between protesters and police have been violent at times, with a particularly bloody period resulting from government crackdowns on college campuses. Through the course of the conflict, the government and the police have been criticized for escalating tensions, including illegitimately using force against protesters. Michele Bachelet, the United Nations High Commissioner for Human Rights, called for an independent investigation of the police use of force and opined that the government’s failure to peacefully engage with the protesters is likely prolonging and exacerbating the conflict.
In October, Hong Kong’s government invoked its rarely-used Emergency Powers Act. The law allows Hong Kong’s chief executive to enact any regulation for the purpose of responding to an emergency. Hong Kong’s leader utilized her broadened powers by banning protesters from wearing face masks during demonstrations. The ban potentially qualifies as a derogation from human rights protections including freedom of expression and freedom of assembly.
A. Legality Under Traditional Analysis
A traditional analysis of Hong Kong’s invocation of its Emergency Powers Act begins with a determination of whether a state of emergency “threaten[ing] the life of the nation” existed at the time of the declaration. Prior to its emergency declaration, Hong Kong faced sustained, large-scale protests that included violent clashes between protesters and the police. Protesters had disrupted economic activity within the territory, including occupying the airport and shutting down public transport. Further, the protests sought massive shifts in the territory’s political structure and governmental system. Arguably, the protests amounted to an emergency due to their sustained nature, significant impact on daily life, and demands for governmental change. The situation conceivably threatened the life of the nation and embodied precisely what emergency declarations were designed to counter.
B. Legality Under Expanded Scope
In contrast, analysis with an expansive view of state responsibility would consider the actions of Hong Kong’s government and preclude derogations if the state acted unlawfully to contribute to the emergency. The government likely contributed to the escalating protests and resulting violence both by its police response and by its failure to engage in a dialogue with protesters. Police use of force represents a key tension point, and the government’s inaction and apparent endorsement of the practice now represents a central protest complaint. The use of force appeared unnecessary and disproportionate, in violation of international law. Under an expanded-scope analysis, the unlawful use of force contributed to the unrest and waives the government’s ability to invoke emergency powers and derogate.
The government’s failure to engage with protesters in a substantive and meaningful dialogue also likely contributed to the conflict. Demonstrators continue to seek recognition of the legitimacy of the protests, amnesty for rioting charges, and universal suffrage. The government refuses to engage and asserts it will not yield to violence or political pressure. The government’s obstinance has inflamed tensions and pushed both sides to become more violent and extreme. However, the government is under no legal obligation to engage with protesters, and its refusal to negotiate is not unlawful. Thus, the failure to engage with protesters should not be considered detrimental to Hong Kong’s ability to derogate.
International law regulating the practice of derogation requires a paradigm shift. Failing to consider state action contributing to states of emergency allows states to manipulate unrest and circumvent the restrictions on derogation. Widening the lens of state responsibility to include events leading up to an emergency could provide a valuable tool to counteract the problematic and increasing use of emergency declarations. Focusing on unlawful state action narrows the scope and provides an enforceable standard. The application of this broader lens to situations such as Hong Kong could help combat illegitimate derogations, establish a justiciable standard for state obligation, and provide a more robust oversight mechanism for human rights protections.
 Jessie Yeung, From an Extradition Bill to a Political Crisis: A Guide to the Hong Kong Protests, CNN (Dec. 20, 2019), https://www.cnn.com/2019/11/15/asia/hong-kong-protests-explainer-intl-hnk-scli/index.html.
 Ian Marlow, Annie Lee & Natalie Lung, Hong Kong Invokes Rare Emergency Powers, Sparking Fresh Protests, Bloomberg (Oct. 4, 2019), https://www.bloomberg.com/news/articles/2019-10-04/hong-kong-invokes-rare-emergency-powers-to-ban-masks-at-protests.
 Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism on the Human Rights Challenge of States of Emergency in the Context of Countering Terrorism, ¶21–28, U.N. Doc. A/HRC/37/52 (Mar. 1, 2018).
 E.g., International Covenant on Civil and Political Rights, art. IV, Dec. 19, 1966, 999 U.N.T.S. 171.
 Fionnuala Ní Aoláin, Int’l Human Rights Law and Trump’s Invocation of Emergency Powers, Just Security (Jan. 14, 2019), https://www.justsecurity.org/62228/international-significance-trumps-invocation-emergency-powers/.
 E.g., Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87, Inter-Am. Ct. H.R. (ser. A), ¶21 (Jan. 30, 1987).
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 European Court of Human Rights, Guide on Article 15 of the European Convention on Human Rights: Derogation in Time of Emergency 6 (2019).
 Human Rights Committee, General Comment 5, Article 4, U.N. Doc. HRI/GEN/1/Rev.1 at 5 (1994).
 Habeas Corpus, OC-8/87 at ¶19.
 Brannigan and McBride v. United Kingdom, 5 Eur. Ct. H.R. 350, 423–24 (1992) (considering long-running terrorism in Northern Ireland as context for emergency declarations).
 Gross, supra note 8, at 627.
 McCann and Others v. United Kingdom, 21 Eur. Ct. H.R. 97, ¶192–214 (1996).
 Gonzalez et al. (“Cotton Field”) v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) (Nov. 16, 2009).
 Yeung, supra note 1.
 Austin Ramzy, Hong Kong Police End 2-Week Campus Siege, N.Y. Times (Nov. 29, 2019), https://www.nytimes.com/2019/11/29/world/asia/hong-kong-protests-polytechnic.html.
 Hong Kong: Investigate Shooting of Protesters After “Another Low” in Police Use of Force, Amnesty Int’l (Nov. 11, 2019), https://www.amnesty.org/en/latest/news/2019/11/hong-kong-investigate-shooting-protesters-another-low-police-use-force/.
 Michelle Bachelet, Hong Kong’s Leaders Have Only One Way Out of the Protest Crisis—A Broad, Open and Inclusive Dialogue with the Whole Community, South China Morning Post (Nov. 30, 2019), https://www.scmp.com/comment/opinion/article/3039705/hong-kongs-leaders-have-only-one-way-out-protest-crisis-broad-open.
 Marlow, supra note 2.
 Emergency Regulations Ordinance, (1999) Cap. 241, 1 § 2(1) (H.K.).
 Marlow, supra note 2.
 International Covenant on the Elimination of All Forms of Racial Discrimination, art. 5, Jan. 4, 1969, 660 U.N.T.S. 195 (China is a state party).
 European Court of Human Rights, supra note 9.
 Yeung, supra note 1.
 Andrew Jacobs, With No End to Unrest in Sight, Hong Kong’s Economic Pain Deepens, N.Y. Times (Oct. 13, 2019), https://www.nytimes.com/2019/12/13/world/asia/hong-kong-protest-economy; Fion Li, Karen Leigh & Iain Marlow, Why Hong Kong’s Still Protesting and Where It May Go, Bloomberg (Aug. 6, 2019), https://www.bloomberg.com/news/articles/2019-08-06/why-hong-kong-s-still-protesting-and-where-it-mmay-go-quicktake.
 Li, supra note 27.
 Bachelet, supra note 20.
 Yeung, supra note 1.
 Jeffie Lam & Christy Leung, In Hong Kong Protests, Did Police Use Excessive Force or Issue a Proportional Response?, South China Morning Post (June 14, 2019), https://www.scmp.com/news/hong-kong/politics/article/3014432/officers-used-excessive-force-contain-hong-kong-extradition.
 Yeung, supra note 1.
 Zoe Low, Hong Kong Protests: Government Should Hold Dialogue with Demonstrators Without Preconditions, International Peacemaking Experts Say, South China Morning Post (Nov. 16, 2019), https://www.scmp.com/news/hong-kong/politics/article/3038066/hong-kong-protests-government-should-hold-dialogue.
 Report of the Special Rapporteur, supra note 3.