1. Threat to the Life of the Nation
7 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’.
8 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.
9 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 ). 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:
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 : 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.
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’).