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Max Planck Encyclopedia of Public International Law [MPEPIL]

Emergency, State of

David Kretzmer

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 24 September 2022

Subject(s):
Equality before the law — Torture — Right to fair trial — Right to liberty and security of person — Right to liberty of movement — Right to life — Derogations — Insurgents and insurrection — Armed conflict — Act of state

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

A.  Notion

Recognition of a state of emergency, or state of siege, in the domestic legal order dates back at least to Roman times and has been recognized since then in many legal systems (Loevy [2016]). Such recognition encapsulates the idea that when a threat to the life of the nation exists, extraordinary measures departing from the normal legal and constitutional order may be required to cope with the threat. These measures should be temporary and last only until the threat has passed, at which time the State should revert to the regular legal order. Many domestic constitutions contain provisions allowing for extraordinary measures in times of emergency (Greene [2018]; Gross [2003]; Venice Commission ‘Observatory of Situations of Emergency in Venice Commission Member States’).

Regulation of states of emergency became an issue in international law with the development of international human rights law, which obligates States to respect and ensure the rights of individuals subject to their jurisdiction. Fearful that in situations of war and other emergencies States might attempt to invoke the general doctrine of necessity (Necessity, State of) in order to preclude liability for acts not in conformity with their human rights obligations, major human rights conventions recognize and delimit the right of States Parties to derogate from certain of their obligations in emergency situations. The specific regulation of states of emergency in a treaty excludes the right of a State Party to invoke the general doctrine of necessity as a justification for non-compliance with its treaty obligations. Practice reveals, however, that the resort of States to emergency powers is far wider than that allowed under human rights conventions (UN Commission on Human Rights ‘Study of the Implications for Human Rights of Recent Developments concerning Situations Known as State of Siege or Emergency’ [‘Questiaux Report’]). Many States have proclaimed emergencies without following the procedures established in human rights conventions; many more States resort to the use of emergency powers without proclaiming an emergency at all (de facto states of emergency) (Fitzpatrick [1994] 22–23; Greene [2018] 61; Gross and Ní Aoláin [2006] 304–10). Measures taken under the guise of emergency powers do not always conform to the standards required under human rights conventions. In numerous cases, states of emergency are not temporary situations, but have become entrenched in the domestic legal order (UN Commission on Human Rights ‘Administration of Justice, Rule of Law and Democracy: Question of Human Rights and States of Emergency: List of States Which Have Proclaimed or Continued a State of Emergency: Report of the Office of the High Commissioner for Human Rights Submitted in Accordance with Commission on Human Rights Decision 1998/108’; Greene [2018]). This trend was exacerbated after the terrorist attacks on the United States on 11 September 2001, and the subsequent resolutions of the United Nations Security Council (‘UNSC’; United Nations, Security Council) requiring States to take measures to combat terrorism (UN HRCouncil ‘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’). In many cases, rather than declaring a state of emergency States regard the threat of terrorism as a permanent emergency that justifies incorporating emergency measures into their laws (Greene [2018] 54–57; Roach [2008]; Bjornskov and Voigt [2020]). These developments have called into question the binary distinction between normal and emergency situations (Agamben [2005]; Loevy [2016]).

B.  Treaty Provisions

Article 4 International Covenant on Civil and Political Rights (‘ICCPR’; International Covenant on Civil and Political Rights [1966]) provides:

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.

No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Similar provisions appear in Art. 15 European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’; European Convention for the Protection of Human Rights and Fundamental Freedoms [1950]), Art. 27 American Convention on Human Rights (‘ACHR’; American Convention on Human Rights [1969]) and Part V Art. F European Social Charter (Revised) (European Social Charter). While there are some important differences between the provisions in these conventions, specifically in relation to the range of non-derogable rights, the fundamental principles are identical. A State Party may proclaim a state of emergency when defined exceptional circumstances exist. There must be international notification of the proclamation (see also Diplomatic Communications, Forms of). During a state of emergency, a State Party may derogate from certain of its obligations under the specific convention to the extent strictly required by the exigencies of the situation. Some obligations are non-derogable. Rights protected by non-derogable obligations may not be restricted, over and above any restrictions that may be permissible under the regular provisions of the particular convention. A state of emergency is a temporary situation and derogations must be ended when the exceptional circumstances no longer exist.

The African Charter on Human and Peoples’ Rights (1981) (‘Banjul Charter’) does not include a provision allowing States to derogate from some of their obligations in times of emergency. The African Commission on Human and Peoples’ Rights (ACommHPR) has held that this means that States Parties to the Banjul Charter may not derogate from any of their Charter obligations during a state of emergency (Commission Nationale des Droits de l’Homme et des Libertés v Chad; Malawi African Association and others v Mauritania). States Parties that regard it as necessary to take special measures during emergency situations, such as civil war, must justify those measures under the limitations clauses in the Charter.

C.  Definition of State of Emergency

Article 4 ICCPR contains both substantive and procedural conditions for a State’s right to derogate from some of its treaty obligations. The situation must be exceptional, involving a threat to the life of the nation, and the state of the emergency must be officially proclaimed.

1.  Threat to the Life of the Nation

Article 15 ECHR, which was based on an early draft of Art. 4 ICCPR, refers to ‘time of war or other public emergency threatening the life of the nation’. The reference to ‘war’ was dropped from the final version of Art. 4 ICCPR, which mentions only a ‘public emergency which threatens the life of the nation’.

There are a limited number of contexts in which conditions justifying proclamation of a state of emergency might conceivably prevail: political crises created by armed conflict, severe internal unrest or subversion; natural disasters such as earthquakes; epidemics; and severe economic crises. However, the mere existence of any of these situations, including armed conflict or severe internal unrest, does not necessarily imply that there is a threat to the life of the nation that cannot be contained without the need to derogate from the State’s human rights obligations. Hence in its ‘General Comment No 29: Derogations from Provisions of the Covenant during a State of Emergency’ (‘General Comment No 29’) on Art. 4 ICCPR, in relating to the most extreme set of circumstances that may create a state of emergency, the Human Rights Committee (‘HRC’) explained that Art. 4 ICCPR ‘requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation’ (para. 3). This principle applies in other situations, such as epidemics or terrorist attacks, which could potentially create a threat to the life of the nation. As the HRC stressed, ‘not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation’ (ibid). When a State considers invoking Art. 4 ICCPR other than in an armed conflict situation it ‘should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances’ (ibid). The fundamental question is always whether a threat to the life of the nation exists that cannot be contained unless the State derogates from some of its treaty obligations. In many, if not most, cases, States faced with exceptional situations should be able to deal with those situations by relying on limitation clauses in the specific treaty, which allow restrictions on liberties, such as freedom of movement and freedom of assembly, that are provided by law and are necessary on grounds of national security, public order, or public health.

The term ‘an emergency threatening the life of the nation’ does not necessarily imply a threat to the nation’s very existence. Nevertheless, the term’s meaning is indeterminate, thus leaving much leeway for States to interpret it as they see fit (Loevy [2016]). International human rights bodies and tribunals have attempted to clarify the term’s meaning. In Lawless v Ireland (Commission Report) the now-defunct European Commission of Human Rights (ECommHR) opined that the term referred to ‘a situation of exceptional and imminent danger or crisis affecting the general public, as distinct from particular groups, and constituting a threat to the organized life of the community which composes the State in question’ (at 82). When this case reached the European Court of Human Rights (ECtHR), the Court somewhat modified this definition, and spoke of ‘an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed’ (Lawless v Ireland [No 3] para. 28). Later, in the Greek Case (para. 113), the ECommHR laid down the conditions that must exist in order to meet the required standard:

  1. a)  the emergency must already exist or be imminent;

  2. b)  it must affect the whole of the nation;

  3. c)  the organized life of the community must be threatened;

  4. d)  the situation must be such that normal measures permitted under the Convention will not be adequate to address that situation.

10  In the United Kingdom (‘UK’) case of A and others v Secretary of State for the Home Department, one of the judges in the highest domestic court of the UK opined that the UK declaration of a state of emergency following the terrorist attacks on the US in September 2001 was not justified. He reasoned that there was not a threat to the organized life of the community and to the institutions of government that went beyond the threat of serious physical damage and loss of life. When the case reached it, the ECtHR rejected this view. The ECtHR held that it had always considered a broader range of factors determining the threat to the life of the nation, and that emergency situations do not necessarily require that the institutions of the State be threatened to the extent demanded by the judge in the domestic court (A and others v United Kingdom [ECtHR] para. 179).

11  The fact that a State has been subjected to terrorist attacks, or that it has information that terrorist attacks against it are planned, does not necessarily mean that a threat to the life of the nation exists. A short time after the 9/11 terrorist attacks on the US, the Parliamentary Assembly of the Council of Europe (COE) passed a resolution that in their fight against terrorism COE members should not derogate from their obligations under the ECHR (Parliamentary Assembly Resolution No 1271 [2002]: Combating Terrorism and Respect for Human Rights). In a number of cases relating to the situation in Northern Ireland, the ECtHR accepted the UK’s assessment that a threat to the life of the nation existed since the extent of the terrorism in Northern Ireland at the time created a far-reaching and acute danger to the territorial integrity of the State Party and to the lives of the people in Northern Ireland (Ireland v United Kingdom; Brannigan and McBride v United Kingdom; Marshall v United Kingdom). In the case of A and others v United Kingdom the State had declared a state of emergency because it feared on the basis of intelligence information that terrorist attacks were ‘imminent’, in the sense ‘that an atrocity might be committed without warning at any time’ (para. 177). In interpreting the demand of ‘imminence’ mentioned in the Greek Case, the ECtHR held that imminence in this context could not be interpreted to mean that the State had to wait until a disaster occurred before taking measures to prevent it. In holding that the State’s assessment of the situation was justified, the ECtHR took into account terrorist attacks that occurred in the State’s territory almost four years after the emergency had been declared. The Court mentioned that while the existence of a threat to the life of the nation must be assessed primarily on the basis of the facts that were known at the time of the derogation, in assessing the State’s decision to declare a state of emergency the Court is not precluded from having regard to information that comes to light subsequently, or even to developments after the derogation. This ruling is not very helpful in setting standards for when a State may justifiably conclude that intelligence information on future terrorist attacks justifies the conclusion that a threat to the life of the nation exists. Clearly a State does not have to sit idly by and wait until it is attacked. However, it is far from clear why the conclusion should be that well-based intelligence that it may be attacked at some unknown time in the future implies that a threat to the life of the nation exists that justifies derogations from the State’s human rights obligations.

12  When taken too literally the demand that the emergency affects the whole of the nation may be problematic. In some cases, internal strife or an earthquake in one region of a country may create a threat to the life of the whole nation. In other cases the threat itself may be restricted towards the life of the population in a given geographical area. In General Comment No 29 the HRC stated that a State Party’s declaration of an emergency must relate to ‘the duration, geographical coverage and material scope of the state of emergency’, thereby implying that a proclamation may be justified when the threat to the life of the nation is restricted geographically (para. 4). The ECtHR has also accepted that an emergency restricted to one area of a country may be justified (Ireland v United Kingdom; Aksoy v Turkey). In such a case, derogation from rights of persons in other areas of the State will be unlawful (Sakik and others v Turkey; Abdülsamet Yaman v Turkey). The Inter-American Court of Human Rights (IACtHR) and the Inter-American Commission on Human Rights (IACommHR) have both held that in declaring a state of emergency the State must define the geographic area in which the measures derogating from the State’s treaty obligations will apply (Vélez et al v Ecuador para. 48; IACommHR ‘Annual Report 2015: Chapter IV.A: The Use of Force’ para. 139). The Paris Minimum Standards of Human Rights Norms in a State of Emergency, adopted in 1984 by the International Law Association (ILA), also take the view that a threat to the life of the whole population in a specific area may justify proclamation of a state of emergency in that area alone.

13  Rather than a threat to the life of the nation, Art. 27 ACHR refers to ‘time of war, public danger, or other emergency that threatens the independence or security of a State Party’. A threat to the independence or security of the State could be regarded as less demanding than a threat to the very life of the nation. However, the IACommHR has emphasized that in order to justify resort to derogation from rights ‘there must be an extremely grave situation of such a nature that there is a real threat to law and order or the security of the state, including an armed conflict, public danger, or other emergency that imperils the public order or security of a member state’ (IACommHR ‘Report on Terrorism and Human Rights’ para. 51). The IACtHR has also stressed that the suspension of guarantees under Art. 27 ACHR is a provision for strictly exceptional situations only, when such suspension is the only way ‘to preserve the highest values of a democratic society’. The Court has emphasized that an emergency situation does not allow ‘temporary suspension of the rule of law, nor does it authorize those in power to act in disregard of the principle of legality by which they are bound at all times’ (Habeas Corpus in Emergency Situations [Arts 27(2), 25(1) and 7(6) of the American Convention on Human Rights] [Advisory Opinion] [‘Habeas Corpus Advisory Opinion’] para. 24; see also Rule of Law). Furthermore, use of emergency powers ‘lacks all legitimacy whenever it is resorted to for the purpose of undermining the democratic system’ (Habeas Corpus Advisory Opinion para. 20). The IACtHR and IACommHR have both stressed that resort to the state of emergency mechanism is not a legitimate means of fighting common crime (Vélez et al v Ecuador para. 52; IACommHR ‘Annual Report 2015: Chapter IV.A: The Use of Force’ para. 129).

14  The issue of an emergency due to an epidemic arose in States throughout the world in 2020. On 30 January 2020 the World Health Organization (WHO) declared a public health emergency of international concern over the outbreak of the novel coronavirus (WHO ‘Director-General’s Statement on IHR Emergency Committee on Novel Coronavirus [2019-nCoV]’). On 11 March 2020 the WHO announced that it had made the assessment that what had become known as COVID-19 could be characterized as a pandemic (WHO ‘Director-General’s Opening Remarks at the Media Briefing on COVID-19’). In the following months many States faced with domestic manifestation of the pandemic declared states of emergency or resorted to emergency measures without such a declaration. Some of these States informed the other State Parties through the relevant treaty depositary of the emergency and the derogations which they were invoking (CCPR ‘States of Emergencies in Response to the COVID-19 Pandemic’; COE ‘Reservations and Declarations for Treaty No 005: Convention for the Protection of Human Rights and Fundamental Freedoms’; OAS ‘Recent Suspensions of Guarantees regarding Multilateral Treaties’). The fact that States saw fit to declare an emergency under their domestic legal system did not necessarily imply that they were required to invoke their right to declare an emergency under the human rights treaties to which they were party. Invocation of an emergency under human rights treaties is required if the State intends to derogate from its obligations under the particular treaty. If the State is able to contain the emergency without derogating from its treaty obligations it need not invoke the emergency provision in the treaty, and it is therefore obviously not required to inform the other States Parties to the treaty that it has declared an emergency.

15  In the case of the COVID-19 pandemic many States in the world imposed far-reaching restrictions on the liberties of persons in their territory. These usually included restrictions on freedom of movement, family life and privacy, freedom of assembly, and freedom of association. To the extent that such restrictions were provided by law, were indeed necessary for protection of public health, and were proportionate, they could be justified under the ICCPR, ECHR, and ACHR without the need to derogate from the State’s obligations under these treaties. If they were imposed for other reasons, or were not proportionate to the public health danger involved, they could not have been justified as strictly required by the exigencies of the situation.

16  A state of emergency should not reflect a permanent situation that allows the State to adopt measures that derogate from its treaty obligations on a long-term or permanent basis. In its General Comment No 29 (para. 4) and in its concluding observations on States Parties’ reports, the HRC has taken the view that states of emergency must be temporary situations and should not continue when derogation measures are not strictly required (UN HRC ‘Concluding Observations on the Fourth Periodic Report of Israel’; UN HRC ‘Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Egypt’; UN HRC ‘Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Syrian Arab Republic’). The IACommHR has expressed its view that repeated declarations of a state of emergency for an indefinite time contravene ‘the nature of states of exception, which are exceptional measures that should be restricted to precisely the length of time needed to achieve their purpose’ (‘Report on the Situation of Human Rights in Venezuela’ para. 385). In its judgment in A and others v United Kingdom the ECtHR stated that under its case-law the notion of temporariness has never been regarded as a requirement for the validity of a state of emergency. It mentioned cases relating to the situation in Northern Ireland that demonstrated, in the Court’s view, that an emergency under Art. 15 ECHR could continue for many years (A and others v United Kingdom para. 178).

17  It would seem that while states of emergency are indeed meant to be temporary situations, temporariness itself is not a requirement for a state of emergency. All depends on whether there is a threat to the life of the nation that continues to demand derogating measures strictly required by the exigencies of the situation. The continuation of a state of emergency for a prolonged period of time may cast doubts both as to whether such a threat continues to exist, and as to whether derogation from the State’s obligations is still strictly required. While there may indeed be situations in which the threat to the life of the nation continues for a long period, during which derogation remains strictly required, the danger clearly exists that having declared a state of emergency the government in a State will find its continuation convenient even though it is no longer justified under the relevant treaty. Thus States should be required not only to justify the original declaration of an emergency, but they should also be required to justify continuation of the emergency over time. This involves showing that a threat to the life of the nation continues to exist, and that in order to cope with this threat the State has to derogate from its treaty obligations in order to adopt measures strictly required by the exigencies of the situation. The HRC has opined that ‘[t]he restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party derogating from the Covenant’ (General Comment No 29, para. 1). Thus States should be required to show that the aim of continued resort to derogations is to enable them to return to normalcy and full protection of all rights.

2.  Compliance with Domestic Constitution and Law

18  In order to ensure compliance with their international legal obligations States Parties to the ICCPR, ECHR, and ACHR must ensure that the domestic constitutional and legal provisions relating to states of emergency do not allow resort to derogation measures in circumstances not permitted under those conventions (see also International Law and Domestic [Municipal] Law). In General Comment No 29 the HRC observed (at para. 2):

When proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers; it is the task of the Committee to monitor the laws in question with respect to whether they enable and secure compliance with article 4.

19  In considering the States Parties’ reports the HRC has frequently expressed concern that the States Parties’ constitutional provisions are not compatible with their obligations under the ICCPR, and has stated that the States Parties concerned should amend their domestic law provisions to ensure that they do not allow derogation from rights that is incompatible with Art. 4 ICCPR (UN HRC ‘Concluding Observations on the Fifth Periodic Report of Mexico’; ‘Concluding Observations on the Third Periodic Report of Guatemala’; ‘Concluding Observations on the Third Periodic Report of Lebanon’). Similarly, in considering country situations the IACommHR has voiced concern that domestic law on states of emergency is not consistent with Art. 27 ACHR or Art. 4 ICCPR (IACommHR ‘Report on the Human Rights Situation in Suriname’; ‘Report on the Situation of Human Rights in Chile’).

3.  Discretion of States Parties

20  The ECtHR has held that in deciding whether a threat to the life of the nation exists, the States Parties to the ECHR enjoy a wide margin of appreciation. In the case of Ireland v United Kingdom, it stated that ‘it falls in the first place to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency”’ (para. 207). The ECtHR has stressed that this does not imply that the margin of appreciation is unlimited; it is accompanied by European supervision to ensure that there was a firm basis for the State’s assessment (Brannigan and McBride v United Kingdom; Aksoy v Turkey; Demir v Turkey; Marshall v United Kingdom; A and others v United Kingdom; Mehmet Hasan Altan v Turkey; Şahin Alpay v Turkey). In exercising the ‘European supervision’ the ECtHR has displayed marked deference to the assessment of States that a threat to the life of the nation exists. The Court has never held that a State’s declaration of a state of emergency did not meet the demands of Art. 15 ECHR. In the initial cases dealing with states of emergency the Court refrained from examining whether the conditions justifying declaration of a state of emergency pertained, and concentrated on whether the derogations from the State’s obligations were justified. In more recent cases the Court has positively affirmed the view taken by the highest domestic courts in the States involved that a threat to the life of the nation existed that justified declaring a state of emergency (Mehmet Hasan Altan v Turkey para. 93; A and others v United Kingdom para. 181; Şahin Alpay v Turkey para. 77).

21  The HRC has always avoided reference to a margin of appreciation. It requires States Parties to the ICCPR to provide it with sufficient and precise information about their law and practice so as to allow the HRC to assess whether they have complied with all the requirements set out in Art. 4 ICCPR, including information which will enable the HRC to assess whether a threat to the life of the nation existed when a state of emergency was declared. While the HRC has been reluctant to reject the assessment of States that a threat to the life of the nation exists, when a State Party to the Optional Protocol to the ICCPR relied on a derogation without providing sufficient information to show that the conditions which justify invoking Art. 4 ICCPR existed, the HRC refused to accept that there were valid reasons for departing from the normal legal regime (UN HRC ‘Communication No R 8/34, Jorge Landinelli Silva v Uruguay; ‘Communication No R 15/64, Salgar de Montejo v Colombia).

22  In considering country situations (see also Human Rights, State Reports) the IACommHR has sometimes positively determined that the declaration of a state of emergency was justified (IACommHR ‘Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin’). On a few occasions it has found that there was no justification for declaring a state of siege under the ACHR or under the constitution of the State itself (IACommHR ‘Report on the Situation of Human Rights in the Republic of Bolivia’; ‘Report on the Situation of Human Rights in Paraguay’). It has also recommended that a State should consider lifting the proclaimed state of emergency, as the reasons for which it was imposed no longer existed (IACommHR ‘Report on the Situation of Human Rights in Argentina’). Generally, however, the IACommHR has refrained from deciding whether the conditions prevailing in a country justified the declaration of a state of emergency, and has either made a general statement that the State should limit states of emergency to situations that represent a threat to the life of the nation (IACommHR ‘Situation of Human Rights in Guatemala: Diversity, Inequality and Exclusion’), or has preferred to examine whether the derogation measures were legitimate (IACommHR ‘Report on the Status of Human Rights in Chile’; ‘Report on the Situation of Human Rights in Haiti’; ‘Report on the Situation of Human Rights in Nicaragua’; ‘Report on the Situation of Human Rights in the Republic of Bolivia’).

4.  Domestic Proclamation

23  Article 4 ICCPR requires that the state of emergency must be officially proclaimed. The HRC has explained that this procedural requirement ‘is essential for the maintenance of the principles of legality and rule of law at times when they are most needed’ (General Comment No 29 para. 2). The HRC added that when proclaiming a state of emergency, ‘States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers’ (ibid).

24  Neither the ECHR nor the ACHR contains an express provision demanding that the state of emergency be officially proclaimed. In Cyprus v Turkey, the ECommHR opined that Art. 15 ECHR ‘requires some formal and public act of derogation, such as a declaration of martial law or state of emergency’ (para. 527). Later, in Brannigan and McBride v United Kingdom, the petitioners argued that as the State involved was also a party to the ICCPR, such a proclamation of the state of emergency was required. Rather than ruling on this argument, the ECtHR noted that on the facts of the particular case there had been a pronouncement in parliament that met the demands of an official proclamation. It is fair to conclude that an official proclamation is required under the ECHR as well. Given the fact that all parties to the ACHR are also parties to the ICCPR it would seem that this requirement would also apply under that convention.

D.  Derogation Measures

1.  Strictly Required by the Exigencies of the Situation

25  The existence of a state of emergency does not in itself justify measures derogating from a State’s human rights obligations. A derogating measure is legitimate only if it is strictly required by the exigencies of the situation. This demand is twofold: both the derogation from the particular provision in the convention and application of the derogating measure in concrete circumstances must be strictly required. Thus, for example, if a State wishes to derogate from its obligations under human rights conventions regarding personal liberty of the individual, it is not sufficient for it to show that some form of preventive detention is strictly required by the exigencies of the situation; it must also show that use of this form of detention is required in each particular case in which it is employed.

26  Whether a derogation measure exceeds the extent strictly required by the exigencies of the situation is judged by a test of proportionality. The State must show first and foremost that the derogation is necessary to cope with the threat to the life of the nation. This means not only that the threat to the life of the nation strictly requires measures restricting rights protected in the particular treaty, but that those measures could not be applied without derogating from the State’s treaty obligations. The ECtHR has explained that

where a derogating measure encroaches upon a fundamental Convention right, such as the right to liberty, the Court must be satisfied that it was a genuine response to the emergency situation, that it was fully justified by the special circumstances of the emergency and that adequate safeguards were provided against abuse (A and others v United Kingdom para. 184; Alparslan Altan v Turkey para. 116).

27  The ECtHR has granted States a wide margin of appreciation in assessing whether measures were strictly demanded by the exigencies of the situation. As the Court itself noted: ‘When the Court comes to consider a derogation under Article 15, it allows the national authorities a wide margin of appreciation to decide on the nature and scope of the derogating measures necessary to avert the emergency’ (A and others v United Kingdom para. 184). This has generally meant that the Court displays deference to the State and is not prepared to rule that a derogating measure was not strictly required (Gross and Ní Aoláin [2001]; Greene [2011]). In recent years there have been a few exceptions. In one case, the State had given a wide interpretation to the concept of in flagrante delicto, which allowed a person’s detention under domestic law. The ECtHR held that ‘an extensive interpretation of the concept of in flagrante delicto can clearly not be regarded as an appropriate response to the state of emergency’ and that the detention of an individual based on this interpretation was therefore not strictly required by the exigencies of the situation (Alparslan Altan v Turkey para. 118). In another somewhat unusual case, the government of a State contested the view of its own highest domestic court that the derogating measures of detention against complainants ‘were disproportionate in that they discriminated unjustifiably between nationals and non-nationals’. In ruling that the derogating measures were not strictly required, the ECtHR accepted the view of the State’s domestic court rather than of its government (A and others v UK para. 190). Similarly, in a case against another State, the ECtHR relied on the decision of that State’s constitutional court in ruling that allowing pre-detention of a person without strong evidence that the detainee had committed an offence was not strictly required by the exigencies of the situation (Şahin Alpay v Turkey paras 32, 108, 119).

28  Under the proportionality test, even if special measures are strictly required, the measures adopted must be the least invasive measures necessary to deal with the threat. The harm to the rights from which the State has derogated should never be excessive in relation to the danger which the measure is designed to contain. The ECtHR has stated that in making this assessment, appropriate weight must be given ‘to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation’ (Aksoy v Turkey para. 68). The existence of safeguards against abuse of the measure of derogation will also be taken into account in assessing whether the measure is excessive. In the case of detention that relies on derogation from ordinary provisions of the ECHR regarding personal liberty, such safeguards will include the remedy of habeas corpus, the enforceable right to consult a lawyer, the right to inform a relative or friend about the detention, and the right of access to a doctor (Brannigan and McBride v United Kingdom; Marshall v United Kingdom; A and others v United Kingdom para. 184).

29  The element of time, specifically mentioned in Art. 27 ACHR, is an important element in examining whether measures are strictly required by the exigencies of the situation. The prolonged nature of a state of emergency might call into question both whether a threat to the life of the nation exists over such a long period of time and whether the derogation measures are strictly required by the exigencies of the situation.

30  The power to derogate from some rights never implies that those rights may be abrogated. The HRC has stressed that ‘no provision of the Covenant, however validly derogated from will be entirely inapplicable to the behaviour of a State party’ (General Comment No 29 para. 4). Similarly, the IACtHR, addressing the meaning of Art. 27 ACHR, which allows ‘suspension’ of certain rights, has declared that what may be suspended are not the rights themselves, but only their ‘full and effective exercise’ (Habeas Corpus Advisory Opinion para. 18). The Court held that ‘suspension of certain rights does not mean that they will be entirely inapplicable’ (J v Peru para. 141). In a number of cases the ECtHR considered the demand under Art. 5 (1) (c) ECHR for a reasonable suspicion against a person in order to justify their arrest on a criminal charge. While a State may derogate from Art. 5 ECHR, the ECtHR held that a State may not waive this demand, and that a measure allowing arrest of a person without ‘the minimum level of reasonableness’ was not strictly required by the exigencies of the situation (Alparslan Altan v Turkey para. 148; Mehmet Hasan Altan v Turkey para. 140; Şahin Alpay v Turkey para. 119). The IACtHR held that although the right under Art. 7 (5) ACHR of a person arrested on a criminal charge to be brought promptly before a judicial authority had been suspended due to a state of emergency, measures that prevented bringing a person before a judge for fifteen days were not ‘strictly necessary’ (J v Peru para. 144).

2.  Non-Derogable Rights

31  The ICCPR, ECHR, and ACHR all provide that certain rights are non-derogable. As no rights may be derogated from unless such derogation is strictly required by the exigencies of the situation, the status of a right as non-derogable necessarily implies that States may not derogate from the treaty provisions protecting that right, even though they claim that derogation is strictly required by the exigencies of the situation. There are significant differences between the lists of rights regarded as non-derogable under the ICCPR, ECHR, and ACHR. Four fundamental rights are non-derogable under all three treaties: the right to life (Life, Right to, International Protection), the right not to be subjected to torture or to other forms of cruel, inhuman or degrading treatment or punishment (Torture, Prohibition of), the right to be free from slavery and servitude, and the right not to be subjected to retroactive punishment. The right not to be subject to the death penalty is non-derogable for parties to Protocol No 6 to the ECHR concerning the Abolition of the Death Penalty and Protocol No 13 to the ECHR, concerning the Abolition of the Death Penalty in All Circumstances, and the Second Optional Protocol to the ICCPR, Aiming at the Abolition of the Death Penalty. The ICCPR and ACHR also include freedom of conscience and religion (Religion or Belief, Freedom of, International Protection), and the right to a legal personality as non-derogable rights. Protocol No 7 to the ECHR adds the principle of ne bis in idem, and the ICCPR includes the right not to be imprisoned for the mere inability to fulfil a contractual obligation. The ACHR includes even more rights: rights of the family (Family, Right to, International Protection), the right to a name, rights of the child (Children, International Protection), right to a nationality, and the right to participate in government (see also Democracy, Right to, International Protection). It also provides that a State Party may not suspend the judicial guarantees essential for protection of non-derogable rights. Thus the right of detained persons to challenge their detention in court is non-derogable (Habeas Corpus Advisory Opinion; Osorio Rivera and Family Members v Peru para. 120).

32  The status of a right as non-derogable does not necessarily imply that it may not be subject to limitations. All depends on the terms of the provision protecting the particular right in the specific treaty. Thus, for example, the right to freedom of conscience and religion is non-derogable under both Art. 4 ICCPR and Art. 27 ACHR. Under both these treaties the right to manifest one’s religion or belief may be subject to limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the fundamental rights or freedoms of others. While a State may not derogate from the provisions protecting this right in times of emergency, it may place limitations on the rights that are compatible with the limitations provision. Similarly, under the Second Optional Protocol to the ICCPR, which prohibits the death penalty, States Parties may at the time of ratification or accession make a reservation (see also Treaties, Multilateral, Reservations to) that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime (see also War Crimes). While States Parties to the Second Optional Protocol to the ICCPR may not derogate from their obligation not to impose the death penalty, States Parties which submitted such a reservation will not be prevented from imposing the death penalty covered by the reservation.

33  The fact that a particular right is not listed among the non-derogable rights does not mean that a State Party to the particular treaty is free to derogate from all aspects of that right. In the Habeas Corpus Advisory Opinion the IACtHR opined that even though the right to personal liberty is not listed among the non-derogable rights, a State Party to the ACHR may not derogate from the right to the judicial remedy of habeas corpus. It reasoned that this remedy is essential for the protection of other non-derogable rights, especially the right not to be subjected to torture. It also serves to preserve legality in a democratic society. The view that a State may not derogate from the right to habeas corpus since this right is needed to protect the non-derogable right against torture was supported by the HRC in General Comment No 29 (para. 16). The IACtHR and the HRC have also stressed that while the articles protecting the right to personal liberty under the ICCPR and the ACHR are not listed amongst the non-derogable articles, a State may not derogate from its obligation not to subject persons to arbitrary detention (UN HRC ‘General Comment No 35: Article 9 [Liberty and Security of Person]’ [‘General Comment No 35’] para. 66; Osorio Rivera and Family Members v Peru para. 120). A detention may never be arbitrary, but the threat to the life of the nation might ‘be relevant to a determination of whether a particular arrest or detention is arbitrary’ (UN HRC ‘General Comment No 35’ para. 66) (Detention, Arbitrary).

34  The right to a fair trial (Fair Trial, Right to, International Protection) is not listed among the non-derogable rights. Nevertheless, the HRC has taken the view that ‘the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected’ (General Comment No 29 para. 16). The IACommHR has taken a similar position, stating that derogations from the specific provisions in the ACHR relating to fair trial can never be justified ‘where they may compromise a defendant’s non-derogable due process protections, including the right to prepare a defense and to be tried by a competent, impartial and independent tribunal’ (IACommHR ‘Report on Terrorism and Human Rights’ Executive Summary para. 20).

35  In an Advisory Opinion, the IACtHR considered the scope of the prohibition on the suspension of essential judicial guarantees for the protection of non-derogable rights mentioned in Art. 27 (1) ACHR (Judicial Guarantees in States of Emergency [Arts 27(2), 25 and 8 of the American Convention on Human Rights] [Advisory Opinion]). It held that

the ‘essential’ judicial guarantees which are not subject to suspension, include those judicial procedures, inherent to representative democracy as a form of government … provided for in the laws of the States Parties as suitable for guaranteeing the full exercise of the rights referred to in Article 27(2) of the Convention and whose suppression or restriction entails the lack of protection of such rights (para. 41).

36  Those ‘judicial guarantees should be exercised within the framework and the principles of due process of law, expressed in Article 8 of the Convention’ (para. 41). While the ICCPR does not include an express provision relating to non-derogation from judicial guarantees, the HRC has taken the view that a State must respect procedural safeguards, including judicial guarantees, that secure the protection of non-derogable rights (General Comment No 29 para. 15). Thus, since a State may not derogate from the right to life, any trial leading to the death penalty (in States in which such a penalty is not prohibited under the Covenant) must conform to all the provisions of the Covenant, including the requirements of a fair trial under Art. 14 of the Covenant (ibid).

3.  Non-Discrimination

37  The prohibition of discrimination is not listed among the non-derogable provisions. However, Art. 4 ICCPR states expressly that derogation measures must not involve discrimination solely on grounds of race, colour, sex, language, religion, or social origin and Art. 27 ACHR also mentions that such measures must not discriminate on these grounds (see also Equality of Individuals; Racial and Religious Discrimination). The HRC has opined that there are elements of the general right to non-discrimination that may not be derogated from in any circumstances. If distinctions between persons are made when derogating from derogable rights, States must ensure that the derogating measures comply with the prohibition of discrimination on the grounds mentioned above (General Comment No 29 para. 8). While the ECHR does not specifically forbid discrimination of derogation measures, such discrimination would generally be incompatible with Art. 14 ECHR, which prohibits discrimination in enjoyment of convention rights. Article 14 ECHR is not a non-derogable provision, but any derogation would have to be strictly required under the exigencies of the situation and not to involve violation of the State Party’s other international obligations. Furthermore, as non-discrimination is a principle of general international law (see also General International Law [Principles, Rules and Standards]), derogation measures that discriminated solely on the grounds mentioned in the ICCPR and ACHR would never be considered lawful.

4.  Compliance with Other International Obligations

38  Derogation from a State’s obligations under a human rights treaty must not involve violation of the State’s other obligations under international law. This has implications on three levels. When a State is party to two human rights conventions, the ICCPR and either the ECHR or the ACHR, it will be bound by the more demanding standards relating to states of emergency. Thus, for example, while the ICCPR does not include the right to a family or the rights of a child among the non-derogable rights, States Parties that are also parties to the ACHR may not derogate from these rights in times of emergency. Derogation from such rights will involve a violation not only of the ACHR itself, but of the ICCPR too. As the Banjul Charter does not include a provision permitting derogations in times of emergencies, States that are parties both to the Banjul Charter and to the ICCPR may not resort to derogations from the ICCPR which would involve violation of provisions under the Banjul Charter.

39  In times of armed conflict international humanitarian law will apply (Humanitarian Law, International). States may never invoke their right to derogate from obligations under human rights conventions in a manner that would bring them into violation of their obligations under customary or conventional international humanitarian law (see also Customary International Law).

40  Finally, certain human rights norms have become regarded as ius cogens, or peremptory norms of international law. The HRC has opined that a State Party may not derogate from ICCPR provisions in a manner that would allow the violation of peremptory norms of international law, such as the prohibitions on taking of hostages, abductions, or unacknowledged detention (General Comment No 29 para. 13; see also Abduction, Transboundary; Disappearances).

E.  International Notification

41  Over and above the duty to proclaim the state of emergency within the framework of the domestic legal system, States Parties to the various conventions mentioned are bound by a system of international notification. Under the ICCPR States Parties which have invoked the right to derogate from their obligations must inform the other States Parties of the provisions in the covenant from which they have derogated and the reasons for these derogations. Under the ECHR and ACHR the States Parties availing themselves of the right to derogate must inform the other States Parties of the measures they have taken and the reasons for the derogations. Notification is carried out through named intermediaries: the United Nations Secretary-General (United Nations, Secretary-General) under the ICCPR, the Secretary General of the COE under the ECHR, and the Secretary General of the Organization of American States (OAS) under the ACHR. Under the ICCPR and ECHR States Parties must inform the intermediary when the derogation is terminated. Under the ACHR States Parties resorting to declaration of a state of emergency, must, at the time of informing the intermediary of the proclamation of a state of emergency, inform him or her of the date set for termination of the suspension of rights.

F.  Assessment

42  The international norms relating to states of emergency allow States that face emergency situations to take measures required to deal with the exigencies of the situation. While a State’s power to restrict human rights remains curtailed there is no good reason to believe that this curtailment impedes the capability of States to cope with a real emergency. Thus, for example, if strictly required by the exigencies of the situation, a State faced with a situation that threatens the life of the nation may derogate from its obligations relating to the personal liberty of the individual (Liberty, Right to, International Protection), freedom of movement (Movement, Freedom of, International Protection), freedom of association (Association, Freedom of, International Protection), freedom of assembly (Assembly, Freedom of, International Protection), and privacy (Privacy, Right to, International Protection).

43  Notwithstanding the considerable leeway afforded to States under human rights conventions and the general reluctance of international tribunals and treaty bodies (see also Human Rights, Treaty Bodies) to question the permissibility of declaring a state of emergency in specific circumstances, there is a wide discrepancy between the formal legal regime and State practice. This discrepancy was exacerbated following the terrorist attacks in the US of 11 September 2001, and the consequent resolutions of the UNSC that mandated counter-terrorism measures. Although the original UNSC Resolution 1373 (2001) of 28 September 2001 did not expressly demand that counter-terrorism measures comply with States’ human rights obligations, the UNSC subsequently emphasized that all counter-terrorism measures must comply with States’ international obligations, ‘in particular international human rights, refugee, and humanitarian law’ (UNSC Res 1456 [2003] para. 6). Nevertheless, in the guise of anti-terrorism measures some States still resort to measures that are incompatible with the emergency provisions of international human rights conventions. Declaring a state of emergency is perceived by some States as legitimizing extreme measures that are incompatible with non-derogable obligations or are not strictly required by the exigencies of the situation (IACommHR ‘Annual Report 2015: Chapter IV.A: The Use of Force’).

44  The COVID-19 pandemic of 2020 exposed the tension between emergencies under the domestic law of States and states of emergency in international law. In many States emergencies were declared under the domestic constitutional system in order to give wide powers to the executive branch of government to adopt measures considered necessary to protect public health. While there is clearly a danger that continuation of such emergencies could weaken the democratic structure of States, unless a State resorted to measures that were incompatible with its international human rights obligations it was not required to inform the international community of the state of emergency and derogation from its treaty obligations.

45  Many of the measures adopted during the COVID-19 pandemic involved wide-scale restrictions on freedom of movement, association, assembly, privacy, and family life (Venice Commission ‘Observatory of Situations of Emergency in Venice Commission Member States’; C Ferstman and A Fagan [eds] COVID-19, Law and Human Rights: Essex Dialogues [University of Essex Colchester 2020]). Scholars were divided on the question of whether it was both necessary and preferable for States that instituted such measures to resort to the state of emergency mechanism. If restrictions placed on derogable rights were proportionate to the need to protect public health and the right to life they would generally be compatible with the State’s human rights obligations (Grogen [2020]). Some scholars therefore argued that the States should work within the framework of their treaty obligations and refrain from invoking the state of emergency mechanism (Scheinin [2020]). Others argued that given the extreme nature of the pandemic and the extent and scope of the limitations on human rights that States imposed, the state of emergency mechanism was clearly appropriate. This mechanism was also to be preferred since it stressed both the exceptional and temporary character of the limitations (Greene [2020]).

46  It would seem that part of the problem in assessing the very need to resort to the state of emergency mechanism may be a function of the difference in the way the rights themselves, and their legitimate limitations, are phrased in the various human rights treaties. The right most likely to be limited in times of emergency is the right to personal liberty. The ICCPR, ACHR, and Banjul Charter all protect the right not to be subject to arbitrary detention. The ECHR, on the other hand, provides that no one may be deprived of their liberty, save in a closed list of cases. If in exceptional circumstances States Parties to the former three conventions need to institute special forms of detention in order to protect security (such as preventive detention) they may do so provided the detention is not arbitrary. While all such forms of detention may be suspect, if they are indeed necessary and proportionate to the security need, the States Parties that institute them do not need to derogate from their treaty obligations (UN HRC ‘General Comment No 35’ para. 15). As the ECtHR held in the case of Lawless v Ireland, this option is not open to States Parties to the ECHR. Preventive detention will only be possible if a state of emergency is declared and this form of detention is strictly required by the exigencies of the situation.

47  Emergency provisions in international human rights conventions stipulate that derogation measures during a state of emergency must not be incompatible with other international obligations of the derogating State. This clearly implies that a State involved in an armed conflict may not derogate from its obligations under international humanitarian law (see also Human Rights and Humanitarian Law). However, since the established position of international law, as adopted by the International Court of Justice (ICJ) (Armed Activities on the Territory of the Congo Cases; Nuclear Weapons Advisory Opinions; Israeli Wall Advisory Opinion [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory]) is that human rights law continues to apply during an armed conflict, there are some unresolved issues relating to the connection between the emergency derogation regime and rules of international human rights law. Article 15 ECHR provides that during a state of emergency a State may not derogate from Art. 2 ECHR (which protects the right to life), ‘except in respect of deaths resulting from lawful acts of war’. This provision would seem to imply that in order for a State involved in an armed conflict to invoke rules of international humanitarian law that are incompatible with human rights norms it must resort to the emergency regime of derogations. Such a demand is incompatible both with State practice and with the notion that international humanitarian law applies automatically in any armed conflict. This was recognized by the ECtHR in the case of Hassan v United Kingdom, in which the Court accepted that State practice reveals that States involved in an armed conflict do not consider it necessary to invoke a state of emergency in order to conduct themselves in a manner that is compatible with the law of armed conflict. The Court held that during an armed conflict internment of an individual that is lawful under the law of armed conflict does not amount to a violation of the ECHR even though the grounds for detention are not included amongst the legitimate grounds for detention under the Convention. The HRC has opined that during an armed conflict detention that is compatible with international humanitarian law will not be regarded as arbitrary (UN HRC ‘General Comment No 35’ para. 64).

48  Application of international humanitarian law in cases of non-international armed conflicts (Armed Conflict, Non-International; see also Armed Conflict, International) raises the question of the borderlines between wide-scale rioting and violent disturbances that may threaten the life of the nation, thereby justifying resort to emergency measures, and low-intensity conflicts, in which rules of international humanitarian law come into play (see also Insurgency). Serious cases of transnational terrorist attacks have also stirred debate on the appropriate regime of international law that should be applied by States in combating such terror. There is a clear danger that States regard the real or imagined threat of terrorism as sufficient grounds for restrictions on protected rights that are not strictly required by the exigencies of the situation. This had led some scholars to cast doubts on the continued relevance of the distinction in international law between ‘normal’ situations and ‘states of emergency’.

49  The challenges to states of emergency in international law in the coming years are manifold. International bodies should refine the definition of the ‘threat to the life of the nation’ that justifies declaring a state of emergency, especially when it comes to the threat posed by terrorism and by epidemics. A workable and coherent system that takes account of both emergency powers under international human rights conventions and international humanitarian law that applies in armed conflicts that are not of an international character must be forged. Given the danger that the COVID-19 pandemic may continue to endanger life and disrupt the social and economic life of many communities, and that a chance of further pandemics cannot be ruled out, the line distinguishing between legitimate limitations on human rights and limitations that involved derogation from the State’s obligations should be clarified. On the institutional level mechanisms for strengthening international monitoring and enforcement of norms relating to states of emergency must be developed. International tribunals and treaty bodies should be encouraged to take a less deferential attitude in assessing the legitimacy both of declaring a state of emergency and of the derogating measures invoked by States.

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