Derogation from human rights treaties in situations of emergency
 
 
 
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Derogation from human rights treaties in situations of emergency
 

Certain human rights treaties envisage a system of derogations allowing states parties to adjust their obligations temporarily under the treaty in exceptional circumstances, i.e. in times of public emergency threatening the life of nation. Examples of emergency situation include, but are not limited to, armed conflicts, civil and violent unrest, environmental and natural disasters, etc.

Although, exceptional measures are permissible, their validity is subject to the fulfilment of a number of requirements set by the treaty law, such as qualifications of severity, temporariness, proclamation and notification, legality, proportionality, consistency with other obligations under international law, non-discrimination, and lastly, non-derogability of certain rights recognized as such in the relevant treaty. In essence derogation clauses express the concept that states of emergency do not create a legal vacuum.  The derogation regime aims at striking a balance between the protection of individual human rights and the protection of national needs in times of crisis (1) by placing reasonable limits on emergency powers. (2)  

Derogation clauses are provided for in Article 4 of the International Covenant on Civil and Political Rights (ICCPR), Article 15 of the European Convention on Human Rights (ECHR) (3) and Article 27 of the American Convention of Human Rights (ACHR). (4) Therefore, different states may be subject to different emergency derogation regimes, depending on the states’ adherence to these treaties as the list of non-derogable rights may vary from treaty to treaty. (5) 

In addition to texts of treaty law, the most important interpretations of how derogations may or may not be undertaken are provided by the case law of treaty bodies as well as the interpretation adopted by Human Rights Committee (the treaty’s supervisory body, hereinafter referred to as HRC) (6) in General Comment 29. (7) As a subsidiary source, it may also be noted that several sets of standards for states of emergency have been elaborated by expert meetings, (8) these texts are not in themselves legally binding but they offer valuable recommendations on interpretations of existing derogation provisions in legally binding treaties and the interpretative texts are directed to national authorities and international monitoring bodies. (9) 

Criteria essential for valid derogation


(a) Existence of a public emergency that threatens the life of the nation


The existence of a situation amounting to public emergency is a fundamental requirement for triggering the derogation clause. Absent specific definition of ‘public emergency’ in the ICCPR and ECHR, interpretations of its meaning and scope were provided by the HRC and jurisprudence of the ECHR. According to HRC ‘[n]ot every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation’. Unlike the regional conventions,(10) the ICCPR does not make reference to war, yet civil war and other cases of serious, violent internal unrest are by for the reasons most asserted for declaring a state of emergency. (11) An armed conflict, however, does not automatically satisfy the criteria a derogation should meet as there is also a qualitative measure of severity that demands that derogations are permissible ‘only if and to the extent that the situation constitutes a threat to the life of the nation’. (12) 

The European Court of Human Rights (ECtHR) in Lawless v. Ireland, qualified the time of public emergency as ‘an exceptional situation of crisis or emergency which afflicts the whole population and constitutes a threat to the organised life of the community of which the community is composed’. (13) This definition was further developed in the Greek case, in which the European Commission on Human Rights pronounced that ‘public emergency’ 1) must be actual or imminent, 2) the effects of emergency must involve the whole nation, 3) the continuance of the organised life of the community must be threatened and 4) the crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by [European] Convention for the maintenance of public safety, health and order, are plainly inadequate. (14) The recent judgement on A and others v. UK by the ECHR has further defined the criteria set by its previous pronouncements. First, the European Court of Human Rights agreed that the 9/11 attacks and the threat of international terrorism were an emergency threatening, the life of the nation within the meaning of Article 15 of the ECHR.


Second, in response to an argument that ‘terrorism’ could not conceivably be a threat to the UK’s institutions or the UK’s existence as a civil community, the Court held that it had been ‘[…] prepared to take into account a much broader range of factors in determining the nature and degree of the actual and imminent threat to the “nation” and has in the past concluded that emergency situations have existed even though the institutions of the State did not appear to be imperilled…’. (15) The existence of the ‘public emergency’ should be proved by the state derogating from its obligations. (16) Although, the ECtHR has of granted a ‘margin of appreciation’ to states in determining whether a ‘public emergency’ exists, (17) nonetheless the Court held that the discretion of states is ‘accompanied by a European supervision’. (18) In contrast the HRC has made no such reference to a margin of appreciation to that  in Silva v Uruguay, found the State Party to be ‘duty-bound to give a sufficiently detailed account of the relevant facts when it invokes Article 4(1)’ and that it is the Committee’s function ‘to see to it that States parties live up to their commitments under the Covenant’. (19)

(b) The requirements of proclamation and notification

The requirements of proclamation and notification are not ‘simply technical and dispensable formalities’ as both procedural guarantees are important for the purposes of national and international supervision. (20) The ICCPR requires an official proclamation of the existence of a public emergency, which is an essential technical prerequisite for the application of derogation. (21) General Comment 29 specifies that states ‘must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers’. (22) The duty to proclaim (23) should be distinguished from the duty to notify under Article 4(3) of ICCPR and Article 15(3) of ECHR. The duty to proclaim the state of emergency is designed to prevent arbitrary or de facto derogation and to obligate derogating states “to act openly from the outset of the emergency and to deligitimate after-the-fact justifications for violation of fundamental rights” (24) and also serves a domestic supervision as opposed to international which is tied to the duty of notification. (25) Although, the ECHR does not contain the requirement of proclamation. (26)

The notification requirement serves as a guarantee for supervision by international bodies of the legality of the establishment of a state of emergency. States parties to the Covenant are bound to inform the other parties immediately. Notwithstanding the silence of the European Convention regarding the issue, in the Lawless case, the European Court found an implicit requirement that notification be “without delay”.(27) 

Notification procedures impose the duty on the state to provide information about the ‘provisions from which it has derogated’ (28) and the states parties are to include in their reports “sufficient and precise information about their law and practice in the field of emergency powers”.(29) To this point, the approach of the supervisory bodies in determining whether violation of the notification requirement renders derogation invalid has not been consistent. The HRC, however in a number of individual applications under the first Optional Protocol adopted an approach of declining to recognize the legitimacy of particular invasions of protected rights in the absence of “submissions of fact or law to justify such derogation”. (30) 

(c) Measures strictly required by the exigencies of situation: the principle of proportionality

Derogation measures must be limited ‘to the extent strictly required by the exigencies of the situation’,(31) i.e. they need to be proportionate.  The requirement of proportionality constitutes one of the substantive limits to the emergency powers ‘requiring specific scrutiny and specific justification of each measure taken in response to an emergency, rather than an abstract assessment of the overall situation’. (32) 

The HRC highlights three factors in proportionality: severity, duration and geographic scope. The HRC also submits that restrictions that are already allowed with the treaty provisions on certain freedoms, e.g., to freedom of movement (Article 12) or freedom of assembly (21) are ‘generally sufficient’ to cover situations of ‘mass demonstration including instances of violence, or a major industrial accident’. (33) Further, the HRC is of view that ‘no provision of the Covenant, however validly derogated from will be entirely inapplicable to the behaviour of a State party’.(34) The HRC confirms that:

‘The legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation’.(35)

States parties to the ICCPR are required to provide careful justification, not only for their decision to proclaim a state of emergency, but also for any specific measures based on such a proclamation.(36) By contrast, the European Court of Human Rights allows states a ‘wide margin of appreciation’ in the context of proportionality as well. The Court in Ireland v. UK held that it falls to the national authorities to decide ‘how far it is necessary to go in attempting to overcome emergency’(37) and confirmed the approach in Brannigan and McBride v. UK granting discretion to the state to determine ‘the nature and the scope of derogations necessary’. (38) Nevertheless, the European Court will only accept specific measures if the State has made a convincing case as to why they are necessary. In several cases concerning Turkey, the Court did not accept a period of up to fifteen days for a criminal suspect to be held without appearance before the judge, despite the existence of an emergency. (39)

(d) The Principle of Consistency

Derogation measures should not be inconsistent with other obligations of the derogating state under international law. The principle of consistency is another safeguard of the derogation provision which is based ‘on the principles of legality and the rule of law inherent in the Covenant as a whole’. (40) The expression ‘other obligations under international law’ refers to customary international law and to international treaty law, most importantly to other human rights conventions and to treaties in the field of international humanitarian law (41) including the minimum guarantees found in Common Article 3 to 1949 Geneva Conventions, and in the two 1979 Additional Protocols. At this point it is important to underline that ‘there is no concept of derogation in humanitarian law’ as such (42)  since international humanitarian law is designed in essence to operate in ‘emergency’ situations, hence, the obligations stemming from humanitarian law treaties generally cannot be derogated from.

Other obligations also include the 1951 Convention on the Status of Refugees and its 1967 Protocol, the 1989 Convention on the Rights of the Child, ILO Conventions on Forced Labour, Freedom of Association and Equal Rights of Workers. (43) In addition, the Human Rights Committee has proposed examples of ‘other obligations’ as including the Rome Statute of the International Criminal Court, and certain rules of customary international law, such as the prohibition of refoulement. Article 5 (1) of the ICCPR states that ‘there shall be no restriction upon or derogation from any fundamental rights recognized in other instruments on the pretext that the Covenant does not recognize such rights or that it recognizes them to a lesser extent’.

(e) Non-derogable rights

The relevant treaty provisions provide a list of rights that in absolute terms cannot be derogated from. The list varies in different treaties, yet common to all treaties are: the right to life, the prohibition of slavery, prohibition of torture or to cruel, inhuman or degrading treatment or punishment and prohibition of retroactive penal measures. The HRC stresses that the list of non-derogable rights ‘does not mean that other articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists’. (44) General Comment 29 gives an expanded interpretation on the scope of non-derogable rights. The addition of further non-derogable rights can be explained by the HRC’s professed authority to assess compatibility of derogations with states’ “other obligations under international law” and also due to the view of the HRC that derogations from certain rights could never be proportionate, so those rights are effectively non-derogable. (45) In doing so, the HRC discerns elements of rights not listed under Article 4 that cannot be made subject to derogation. (46) 

Accordingly, derogations can never authorize acts of genocide (47) or crimes against humanity (the HRC refers to elements of crimes against humanity such as deportation or forcible transfer of population through identifying non-derogable elements of Article 12 under ICCPR on freedom of movement (48)) as defined by the Rome Statute of the International Criminal Court. (49) As ‘a norm of general international law not subject to derogation’, the HRC lists the right of all persons deprived of liberty to be treated with humanity (under Article 10(1)) supported by reference to its close connection with the prohibition of torture (Article 7). In the Committee’s opinion, this category also includes prohibition against taking of hostages, abductions, or unacknowledged detention. 

Article 27 on the protection of the rights of minorities are referred to as ‘non-derogable’ due to the inclusion of non-discrimination clause in Article 4 as well as in reference to the prohibition of crimes of genocide.  The Committee in addition states that the right to an effective remedy for a violation guaranteed by Article 2(3) of the Covenant is non-derogable, since it constitutes ‘a treaty obligation inherent in the Covenant as a whole’ and therefore would also breach the inviolability of non-derogable rights. (50) The Committee recognizes that procedural safeguards such as judicial guarantees should be upheld in order to protect the non-derogable rights in a state of emergency. (51) The Committee asserts that certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, there could be no justification for derogation from these guarantees during other emergency situations. (52)  Most significantly, procedural rights secured in Article 9(4) (i.e. supervision by a judicial body of the lawfulness of detention) are functionally non-derogable as this is indispensable to protect other non-derogable rights. (53)  

(f) Prohibition of discrimination

Article 4 (1) of the ICCPR requires that derogation measures do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. The inclusion of the criteria of national origin in non-discrimination clause was rejected on the ground that disparate treatment of alien nationals would be necessary during wartime. As evident from the wording of the provision, measures that discriminate “solely” on the grounds enumerated are prohibited, and that the provision does not cover measures with indirect impact on particular groups. (54) Even though, provisions of the Covenant related to non-discrimination are not listed among the non-derogable rights elements of non-discrimination included in Article 4(1) cannot be derogated from in any circumstances. (55)  

By Tahmina Karimova

For questions or further discussion, contact Gilles Giacca at rulac (at) adh-geneva.ch

Notes

1 J. Hartman, ‘Derogations from Human Rights Treaties in Public Emergencies’ (1981) 22 Harvard International Law Journal, p. 2
2 Ibid., pp. 1, 11 
3 The European Convention on Human Rights and International Covenant on Civil and Political Rights vary in several respects but are mostly equivalent in criteria, theory and purpose. 
4 The African Charter on Human and Peoples Rights does not regulate states of emergency, nor does it contain derogation provision. The Charter envisages provisions, which permit the limitation of almost all the rights under certain conditions.
5  It may also be noted that the Inter-American Commission and Court have decided cases and issued Advisory Opinions which interpret restrictions to lawful derogations in a similar fashion to the UN Human Rights Committee.
6 Article 4(3) does not mention the Human Rights Committee; however the latter has considered the issues of emergency through study of State reports and individual communications. Similarly, the ECtHR has assumed its authority to review questions of emergency in individual and inter-State application with the first Cyprus case (Greece v. United Kingdom), Lawless v. Ireland and reaffirmed in Brannigan and McBride v. UK and Sakik et al. v. Turkey
7 General Comment 5(13), UN Doc. A/36/40, 110, adopted in July 1981 was replaced by General Comment 29(72), UN Doc. A/56.40, Vol. I, 202 adopted in July 2001 (hereinafter, General Comment 29). 
8 These standards include Paris Minimum Standards of Human Rights Norms in a State of Emergency, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ (1985), 1987 Oslo Statement on Norms and Procedures in Times of Public Emergency or Internal Violence, 1990 Queensland Guidelines for Bodies Monitoring Respect for Human Rights During States of Emergency and 1990 Turku/Abo Declaration of Minimum Humanitarian Standards. These standards reflect procedural and structural recommendations, however a common feature to these standards is ‘their attempt to expand and to refine the core of absolute rights never subject to suspension” (J. Fitzpatrick, supra no. 9, p.p. 71), partly owing to the due account of guarantees provided by international humanitarian law. 
9 J. Fitzpatrick, Human Rights in Crisis: the International System for Protecting Rights during States of Emergency, (Procedural Aspects of International Law Series: V. 19) 1994, p. 70-71
10  Article 15 of the ECHR and Article 27 of the ACHR
11 M. Nowak, UN Covenant on Civil and Political Rights. CCPR Commentary (2nd rev. ed.). Kehl am Rhein: Engel, 2005, pp. 89, 90
12 General Comment 29 (72), UN Doc. A/56.40, Vol. I, 202 adopted in July 2001, para. 3. Furthermore, General Comment 29 states that emergencies threatening the life of nation may include ‘natural catastrophe, a mass demonstration including instances of violence’ and ‘major industrial incidence’
13  Lawless v Ireland (No 3) (1961) 1 EHRR 15, p. 31
14  These criteria are recognized as general legal standards by the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985) 7(1) Human Rights Quarterly 3  and the Paris Minimum Standards of Human Rights Norms in a State of (1985) 79 AJIL 1072.
15  A and Others v. United Kingdom, Application no. 3455/05, Council of Europe: European Court of Human Rights, 19 February 2009, para 179
16 General Comment 29, paras 4, 5 and also see Case of Silva v. Uruguay, whereas Human Rights Committee held that: “[i]n order to assess whether a situation of the kind described in article 4 (1) of the Covenant exists in the country concerned, it needs full and comprehensive information” (emphasis added). Further “If the respondent Government does not furnish the required justification itself, as it is required to do under article 4(2) of the Optional Protocol and article 4(3) of the Covenant, the Human Rights Committee cannot conclude that valid reasons exist to legitimize a departure from the normal legal regime prescribed by the Covenant” (paras. 8.2, 8.3) 
17 The European Court held that states: ‘[b]y reason of their  direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter Article 15(1) leaves the authorities a wide margin of appreciation’ in Ireland v United Kingdom (1978) Series A No 35 at 78–9
18  Ireland v United Kingdom (1978) Series A No 35 at 78–9
19  Landinelli Silva v Uruguay (1981) HRC Comm. No 34/1978 at paras 8.3.
20 Hartman, supra note 17,  p.p. 89,99
21 Nowak, supra note 12, p. 92; General Comments 29, para 2: “The [official proclamation] requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed.
22  General Comment 29, para 2
23 Also referred to as ‘the principle of legality’ that is a proclamation made by a competent authority in accordance with the legislation in force.
24 Hartman, supra note 17, p. 99-100
25 Nowak, supra note 12, p. 92
26 In Lawless v Ireland, supra note 15, at paras 4–5, the ECtHR held that Article 15 does not oblige the state ‘to promulgate the notice of derogation within the framework of its municipal laws’.
27 Ibid.
28  Article 4(3) of the International Covenant on Civil and Political Rights (ICCPR).
29 General comments 29 (para 2), see also: HRC’s Consolidated Guidelines for State Reports under the ICCPR: require that “(t)he date, extent and effect of, and procedures for imposing and for lifting any derogation under article 4 should be fully explained in relation to every article of the Covenant affected by the derogation” CCPR/C/66/GUI/Rev.2, C3
30 Ramirez v. Uruguay, UN Doc. A/35/40, 121 at para 17.
31  Article 4(1) ICCPR and 15(1) ECHR 
32  Hartman, supra note 17, p. 106
33  General Comment 29, para 5
34  General Comment 29, para 4
35  General Comment, para 6
36  Ibid.
37  Ireland v. UK, supra note 20, para 207
38  Brannigan and McBride v. UK,  ECtHR (5/1992/350/423-424), para 43
39  Aksoy v. Turkey (1997) 23 EHRR 553 at para 78 and  Nuray Sen v. Turkey (2003) at paragraph 28 where the European Court held that ‘eleven day before being brought before a judge or other judicial officer was not strictly required by the crisis relied on by the Government’.
40  General Comment 29, para 16
41  Nowak, supra note 12, p. 99
42  L.Doswald-Beck, Sylvain Vite, "International Humanitarian Law and Human Rights Law", International Review of the Red Cross, No. 293, p.p. 94-119 at p 98
43  Supra note 16, Siracusa Principle 66, Nowak, supra note 12, p. 99
44  General Comment 29, para 2
45  S. Joseph, "Human Rights Committee: General Comment 29", 2 Human Rights Law Review (No. 1), p. 91
46  General Comment Para 13
47  General Comment 13 (c)
48  General Comment 13 (d)
49  General Comment 12
50  Joseph, supra note 52, p. 94
51  General Comment 29, para 16: “In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant”.
52  General Comment 29, para 16
53  The Siracusa Principles and Paris Standards also refer to these procedural guarantees as non-derogable.
54  D. McGoldrick, "The Interface between Public Emergency Powers and International Law", International Journal of Constitutional Law 2004 2(2), p. 413
55  A and Others v. United Kingdom, supra n. 15, para 186

   
 
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