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Lecture MA program

Advanced Course Spring 2005


HUMR 4503: Human Rights and Counter-terrorism: Striking a Balance?

Derogations in Times of States of Emergency

Introduction

A definition of terrorism has not yet been agreed upon in the international community,
but in order to illustrate what is meant:

Terrorism includes criminal acts intended or calculated to provoke a state of terror in


the general public, a group of persons or particular persons for political purposes. Such
acts are in any circumstances unjustifiable, whatever the consideration of a political,
philosophical, ideological, racial, ethnic, religious, or other nature that may be invoked to
justify them.

Declaration on Measures to Eliminate International Terrorism, Annex to GA Res. 49/60,


9 December 1994.

Terrorism can in specific circumstances lead to a situation which may be considered as a


state of emergency which makes it necessary to take exceptional measures to restore
the normal order.

Facing terrorist acts States may wish to take counter-terrorism measures which would be
considered to be contrary to obligations undertaken under international human rights
treaties. International human rights law allows for derogations from undertaken
obligations to take place under certain circumstances and sets standards for when and
how such measures can be taken.

A derogation measures are only allowed in exceptional circumstances and should be of


temporary nature.
Only in a situation when the life of the nation is at stake, States may unilaterally
derogate from some of its obligations.

Exceptional circumstances
Strictly required proportionality
Temporary
Procedure international and domestic

WHEN?

War and state of emergency

Threat to the existence of the State


Lawless case (ECHR):

an exceptional situation or crisis of emergency which affects the whole population and
constitutes a threat to organised life in the community of which the State is composed

See kommissionens rapport, 19 Dec 1959, B.1 (1961), p.. 82, and, Judgment of 1 July
1961, s. 56)

The court or monitoring body determines whether the actual circumstances are such.

In Greece v. the UK the Commission and the Court developed the criteria for scrutiny:

1.It must be actual or imminent.


2.Its effects must involve the whole nation.
3.The continuance of organised life in the community must be threatened
4.The crisis or danger must be exceptional, in that the normal measures or restrictions,
permitted by the Convention for the maintenance of pubic safety, health and order, are
plainly inadequate.
See report of the Commissionen, 5 November 1969, YB XII (1969), p. 72 and pp.. 76,
100 (also pp. 45-71)

Measures derogating from obligations under international human rights law

HOW?

Necessary in a democratic society

In relation to the margin of appreciation

Ireland v. the UK, Judgment of 18 January 1978, A. 25, s. 78-79, 81-82, 92-93; Lawless,
Merits, Judgment of 1 July 1961, A. 3, s. 55-56.)

See also Brannigan och McBride, Judgment of 26 May 1993, A. 258-B, s. 29, 33, 40-42
for critique of the wide margin of appreciation

strictly required.

Lawless, Judgment, s. 58, para. 36, Ireland v. the UK, Judgment, s. 80-81, para. 212,
Brannigan and McBride, s.53-54, para. 56-60..

Proportionality
the rule of law,
Lawless, s.58, para.36; Ireland v. the UK, s. 81, para. 212; Brannigan v. McBride, s. 53-
54, para. 56-59.
FOR HOW LONG?

Temporary

Brannigan and McBride, s. 52

The validity of the derogation cannot be called into question for the sole reason that the
Government had decided to examine whether in the future a way could be found of
ensuring greater conformity with the Convention obligations. Indeed, such a process of
continued reflection is not only in keeping with Article 15 para. 3 which requires
permanent review of the need for emergency measures but is also implicit in the very
notion of proportionality.

LAWFUL or NOT?

Requirements in Article 4 of ICCPR and Article 15 of the ECHR


And in the domestic legal order

Brannigan och McBride, Judgment of 26 May 1993, A. 258-B, s.56-57; Lawless, s. 60,
Ireland v. the UK, s.84

Derogations may neither be contrary to other obligations under international law nor to
the rights which are listed as non-derogable under Art 15 of the ECHR or Article 4 of
the ICCPR. (for an interpretation of which rights are non-derogable under international
law, see Human Rights Commttee Gen. Comment 29, on states of emergency)

A balance between State discretion and the supervisory organs competence


The requirements for a permissible derogation under ECHR and the ICCPR are tested by
the Court or the Committee despite the recognized margin of appreciation of states to
determine their situation and which necessary measures to adopt.

See Ireland v. the UK, Judgment of 18 January 1978, A. 25, p. 78-79, 81-82, 92-93;
Lawless, Merits, Judgment of 1 July 1961, A. 3, p. 55-56. and cf. Gen. Comment 29, on
states of emergency, para. 5)

Margin of appreciation discussion in Brannigan och McBride, Judgment of 26 May


1993, A. 258-B, p. 29, 33, 40-42)

For a recent understanding of derogations, see the Human Rights Committees Gen.
Comment 29, on states of emergency.