Research Paper Number

19/2010

John Reynolds

Document Type

Article

Publication Date

2010

Keywords

British empire; colonialism; derogation; emergency powers; martial law; rule of law; state of emergency; state of exception

Abstract

Amidst the post-war turn to transcend international law’s traditional power structures in the narration and codification of individual rights, colonial interests and legal philosophies retained an influence on the framing of human rights discourse. This essay explores the extent to which the particular conception of the ‘state of emergency’ that was distilled into the normative framework of international human rights law at its inception stemmed specifically from Britain’s traditions of colonial governance and legislation. The evolution of emergency law is traced from martial law in England and the ‘first empire’, through British emergency legislative codes in Ireland and India in the nineteenth century, to the wholesale resort to emergency powers in the colonies as the empire began to fragment. The genesis of the emergency derogation provisions in the International Covenant on Civil and Political Rights and European Convention on Human Rights is appraised in the light of the colonial emergency context that formed the backdrop to their drafting. The essay argues that the accommodation of colonial interests at that point embedded a hegemonic legal tool that remains ripe for exploitation by regimes of all stripes inclined to repress opposition and dissent in a ‘post-colonial’ era. In the illumination of the colonial shadows from which the doctrine of emergency emerged, the state of emergency is revealed as a vehicle for law’s violence, grounded in dynamics of domination.

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