A right of state to depart from some human right standards in the time of public emergency

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The article makes analysis of the possibility of state to derogate from provisions of the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Also, the conditions of such derogation are analyzed.

Key words: international law, human rights, derogation, state practice

 

Стаття аналізує можливість держави відступити від положень Міжнародного пакту про громадські та політичні права та Європейської конвенції з прав людини. Також досліджуються необхідні умови для такого відступлення.

Ключові слова: міжнародне право, права людини, відступлення, державна практика

 

 

            As it was stated in the Preamble for the Universal Declarations of the Human Rights, recognition of human rights constitute the basis for the freedom, justice, and peace in the world.[2] Besides, the human right sphere is aligned with ethics and morality, so quality of its protection is proportionate to society development level and is the mirror of values of the community.  Consequently, development of the human right standards, its implementation in the state practice involves a concurrent improvement of its own community.
According to the view adopted by the Western world with regard to international human rights law in general terms has tended to emphasize the basic civil and political rights of individuals, that is to say those rights that take the form of claims limiting the power of government over the governed. [8; 249] The European Convention of Human Rights (ECHR) and in the International Covenant on Civil and Political Rights (ICCPR) contain a list of basic civil, political, cultural and other rights, example gratia: the right to life; to liberty and freedom of movement; to equality before the law; to presumption of innocence; freedom of thoughts, conscience, religion and belief; freedom of opinion, expression, assembly and association; prohibition of discrimination, slavery and so on.
Despite fact that both the ECHR and the ICCPR obligates parties to ensure all rights and freedoms defined in those treaties, they also gives to states a right to derogate from its provisions in accordance with article 15 of the ECHR and article 4 of the ICCPR.
Both instruments have a quite unified formulation of the articles of departure which states that in time of war or other public emergency (in the ICCPR – only in the time of public emergency [1]) threatening the life of the nation any High Contracting Party may take measures derogating from  its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. [3] Also, the ICCPR contain an additional condition about absence of discrimination on any ground in providing of derogation.

It should be mentioned that derogation is limited prerogative of a State in order to allow it to respond adequately to a threat to the life of nation. [10]
Both international instruments contain a list of non-derogable rights and freedoms, such as:

  • In the ICCPR: right to life; prohibition of torture and inhuman treatment; prohibition of slavery and servitude; prohibition to adjudicate person for acts or omission which weren’t a crime at the moment of its commitment etc.; right for recognition as a person before the law; complex of rights related to freedom of thoughts, conscience and religion;
  • In the ECHR: right to life (except deprivation of life as a result of lawful acts of war [3]); prohibition of torture and inhuman treatment; prohibition of slavery and servitude (except service of military character, work which forms part of normal civic obligation etc. [3]); complex of rights related to criminal procedure.

As we could see, provisions of the ICCPR gives wider understanding of the non-derogable rights and it would be rational for state-parties of both the ICCPR and the ECHR use in the  derogation procedure.
In 28 September 1984 year a group of international human right experts and few international associations created the Siracusa Principles on Derogation and Limitation Provisions in the International Covenant on Civil and Political Rights (the Siracusa Principles) which brought forward a certain requirements for the subject of derogation.           
First condition of derogation demands an existence of time of public emergency (or war). It should be mentioned that the scopes of the “public emergency” conception aren’t clearly established, so presence of emergency must therefore be assessed on a case-by-case basis [10]. The Siracusa Principles contain such conditions of public emergency:

  • Derogating party must make an official proclamation of the public emergency existence in accordance with its entire legislation;
  • Derogating state must notify other parties of the ICCPR about derogation and identify certain provisions of the Covenant from which state depart. Also, notification must contain derogation period, reasons,  description of results which derogating party expect.

Another important derogation element is existence of a threat for the life of a nation. This element must be observed in connection with condition of public emergency. The Siracusa Principles declares that there should be stated an presence of threat to the life of nation if it affects the whole population and whole or part of the State’s territory (1), and if it threatens the physical integrity of the population, territorial integrity or the political independence or the existence or basic functioning of state institutions (2) [9] for derogation from any provisions of ICCPR.

For example, in the case Lawless v. Ireland the European Court of Human Rights (the ECtHR) found a threat to the life of nation based on the combination of the following conditions: presence of the secret army which used violence to attain the purpose at the State’s territory (1); international character of those activities (2); increase of terrorist’s activity (3).

However, as the ECtHR in other decisions stated that in determination of the existence of a threat to life of nation governments enjoy a wide margin of appreciation [6], so the Siracusa Principles didn’t create a strong rule in that sphere.

As it was stated in the ICCPR and the ECHR any derogation must be provided at the extent strictly required by the exigencies of the situation. In the other words, it should be necessary and proportional. This requirement relates to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency. [7] Also, derogation could not be observed as “strictly required by the exigencies of the situation” if the ordinary measures permissible under the specific limitations clauses of the Covenant would be adequate to deal with the threat to the life of the nation. [1]

In the mid of XX century existed the doctrine that states authorities are in better position than international courts in appreciation of scopes and nature of necessary derogations as it was stated in the case Ireland v. the United Kingdom by the ECtHR. But after creation of the Siracusa Principles where para 57 which proclaims that judgment of states bodies cannot be accepted as conclusive. [9] So, in the case Brannigan and McBride v. the United Kingdom the ECtHR found exaggeration of departure and endorsed the rule of the Siracusa Principle.

Conclusion. So, despite that fact that the grate attention of international community is giving for the ensuring of basic human rights standards the international instruments contain a mechanism of derogation from those standards.

The Siracusa Principles contain a number of demands for derogation but they are not obligatory and states often pay no regard to them.

 

REFERENCES:

 

  1. The International Covenant on Civil and Political Rights: [Electronic resource]. – Access: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
  2. The Universal Declaration of Human Rights: [Electronic resource]. – Access: http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf
  3. The European Convention on Human Rights: [Electronic resource]. – Access: http://www.echr.coe.int/pages/home.aspx?p=basictexts
  4. Case Brannigan and McBride v. the United Kingdom: Judgement, the ECtHR report 1993: [Electronic resource]. – Access: http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-57819&filename=001-57819.pdf
  5. Case Lawless v. Ireland: Judgement, the ECtHR report 1960: [Electronic resource]. – Access: http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-57516&filename=001-57516.pdf&TID=epcmxtpacx
  6. Case of A. and Others v. UK: Judgement, the ECtHR report 2009: [Electronic resource]. – Access: https://www.unodc.org/tldb/pdf/CASE_OF_A._AND_OTHERS_v._THE_UNITED_KINGDOM-2.doc
  7. Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001): [Electronic resource]. – Access: https://www1.umn.edu/humanrts/gencomm/hrc29.html
  8. Shaw, Malcolm N. (Malcolm Nathan) – International law / Malcolm N. Shaw. – Cambridge: 1947, 5th edn. – 1288 p.
  9. UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4: [Electronic resource]. – Access: https://www.unodc.org/documents/terrorism/Handbook_on_Criminal_Justice_Responses_to_Terrorism_en.pdf
  10. United Nation Office of Drugs and Crime, Handbook on Criminal Justice Responses to terrorism: [Electronic resource]. – Access: https://www.unodc.org/documents/terrorism/Handbook_on_Criminal_Justice_Responses_to_Terrorism_en.pdf
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