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  This module is a resource for lecturers  

 

Derogation in times of public emergency

 

In extreme circumstances, "in time of public emergency which threatens the life of the nation" (article 4(1) ICCPR), States may take measures to derogate from the Covenant, i.e. to temporarily suspend or adjust their obligations under the treaty, provided a number of conditions are met. The importance of adhering to these criteria has been emphasized by inter alia the United Nations General Assembly (e.g. United Nations General Assembly, (2005), Para. 3). At the regional level, article 15 European Convention on Human Rights (ECHR) and article 27 Inter-American Convention on Human Rights contain similar provisions. Their overarching principles and approaches are largely the same, though some regional variations exist.

For example, in delineating strict limits to the utilization of executive power in this way, the Inter-American Court of Human Right (IACtHR) has stated that "[t]he starting point for any legally sound analysis of Article 27 [American Convention] and the function it performs is the fact that it is a provision for exceptional situations only. It applies solely "in time of war, public danger, or other emergency that threatens the independence or security of a State Party" ( Durand and Ugarte, 2000, para. 99). Furthermore, the Court has stated, in the important case of Habeas corpus in Emergency Situations, that the American Convention "permits the suspension of certain rights and freedoms only 'to the extent and for the period of time strictly required by the exigencies of the situation'" (1987(a), para. 43). Notably, under article 27 American Convention, the right of habeas corpus is non-derogable.

Similarly, in articulating the threshold to be crossed, the European Court of Human Rights (ECtHR) has determined that three conditions are necessary: there must exist an exceptional situation of crisis or emergency; which affects the whole population; and which constitutes a threat to the organized life of the community ( Lawless v. Ireland (No 3), 1961, para. 28). As with the approach of the Inter-American Court, the ECtHR permits States some discretion - a "margin of appreciation" in their assessment of perceived security threats and responses to them ( A and others v. the United Kingdom, 2009, paras. 171 and 173). Both Courts require that a formal state of emergency be declared before any suspension of rights is made ( Lawless v. Ireland (No 3), 1961, para. 28; Zambrano Velez v. Ecuador, 2007, paras. 45-47). States must also report which rights have been suspended as a result of this declaration.

In contrast, the African Charter on Human and Peoples' Rights does not provide for states of emergency nor the possibility of derogations being made. This reflects the text of article 22 of the 1999 OAU Convention on the Prevention and Combating of Terrorism (discussed in Module 4) which states that "[n]othing in this Convention shall be interpreted as derogating from the general principles of international law, in particular the principles of international humanitarian law, as well as the African Charter on Human and Peoples' Rights". Article 22 is regarded to be a 'safeguard' clause to prevent States parties from invoking any provisions under the Convention to justify diluting or even violating human rights protections.

The absence of an ability to derogate under the African Charter on Human and Peoples' Rights has been confirmed by the African Commission on Human and Peoples' Rights (ACommHPR), which has found that the rights recognized in the African Charter cannot be limited or restricted on account of emergency or special situations. For example, in Media Rights Agenda and Others v. Nigeria, the African Commission stated that:

In contrast to other international human rights instruments, the African Charter does not contain a derogation clause. Therefore, limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances. The only legitimate reasons for limitations of the rights and freedoms of the African Charter are found in article 27(2), that is, that the rights of the Charter 'shall be exercised with due regard to the rights of others, collective security, morality and common interest' (2000, paras. 68 and 69).

In other words, even a civil war cannot "be used as an excuse by the state [for] violating or permitting violations of rights in the African Charter" ( Commission Nationale v. Chad, 2000, para. 21). That said, a number of its provisions are described as 'claw-back' clauses, which only relate to civil and political, but not economic, social or cultural treaty rights (Olowu, 2009, p. 55). Critics of the Charter commonly regard these clauses as having been deliberately included to reduce the treaty's overall efficacy. The critical provisions and wording of the African Charter containing such clauses are: article 6 (liberty and security of the person and freedom from arbitrary arrest) "except for reasons and conditions previously laid down by law"; article 8 (freedom of conscience and religion) "subject to law and order"; article 9(2) (freedom of expression and the right to disseminate one's opinion) "within the law"; article 10(1) (freedom of association) "provided that he abides by the law"; article 11 (freedom of assembly) "subject only to necessary restrictions provided for by law in particular those enacted in the interests of national security, the safety, health, ethics and rights and freedoms of others"; article 12(1) (freedom of movement and residence within one's state) "provided that he abides by the law"; article 12(2) (the right to leave any country and to return to one's own country) "provided that he abides by the law"; article 13 (freedom to participate in the government of one's own country) "in accordance with the provisions of the law"; and article 14 (the right to property) "in accordance with the provisions of appropriate laws". A primary concern here is that references to "the law" in this context may mean that any national laws which are inconsistent and incompatible with the more expansive provisions of the African Charter will prevail over it, thereby diluting the Charter's overall impact and effectiveness in strengthening human rights protection across the continent. Indeed, while it is a matter of interpretation, some consider the reach and effect of these 'claw-back' clauses to be more expansive than derogation clauses found in other human rights instruments. (Okere, 1984, pp. 142-158; Bondzie-Simpson, 1988, pp. 643-660; Okere and Mutua, 1999, p. 342; Okafor, 2007, pp. 63-75).

In response to these and other concerns, the ACommHPR has been robust in resisting any attempts by States to use claw-back clauses in the African Charter as substitute derogation clauses ( Free Legal Assistance and Others v. Zaire, 1995, and Amnesty International v. Zaire, 1999). In addition, in 2015 it adopted the Principles and Guidelines on Human and Peoples' Rights while Countering Terrorism in Africa, which are based on African regional as well as international treaty law, jurisprudence, standards, African Commission on Human and Peoples' Rights and United Nations resolutions and so forth. The core of the Principles and Guidelineson Human and Peoples' Rights while Countering Terrorism in Africa is the assertion that the essence of lawful State action, when countering terrorism, requires States to protect national security and public safety in full respect of individuals' human rights and fundamental freedoms, while recognizing that many rights are absolute and that human rights abuses often lead to or exacerbate pre-existing tension and instability. The document emphasized that in the exceptional circumstances when rights-limiting measures are considered, their potential impact on women, children, migrants, ethnic and religious communities or any other specific group must also be considered.

Notably too, the African Charter has a unique provision in article 23 regarding the right of all peoples to national and international peace and security. This places obligations on its State parties under article 23(2) to ensure that no-one enjoying the right to asylum engages in subversive activities against his country of origin or any other State party; and that their territories are not used as bases for "subversive or terrorist activities" against the people of any other State party.

A number of rights are 'non-derogable', meaning that they may not be suspended even in times of the most serious public emergency. It should be noted too that non-derogable rights exist not only under the ICCPR, but also under customary international law which bind all States including those which are non-State Parties to the Covenant.

Non-derogable rights in the International Covenant on Civil and Political Rights 1966

Article 4(2) specifies those rights which are non-derogable:

  • Article 6 (right to life);
  • Article 7 (prohibition on torture, cruel, inhuman or degrading treatment);
  • Article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude);
  • Article 11 (prohibition on imprisonment on the basis of inability to pay a contractual obligation);
  • Article 15 (principle of legality in the field of criminal law);
  • Article 16 (right to recognition as a person before the law); and
  • Article 18 (freedom of thought, conscience and religion).

According to the Human Rights Committee (General Comment No. 29, paragraphs 13-16), there are elements in some of the rights not listed in article 4(2) which cannot be lawfully derogated from. Of particular relevance to human rights while countering terrorism, these include:

  • All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person (article 10);
  • Prohibition against taking of hostages, abductions and unacknowledged detention; and
  • The fundamental requirements of a fair trial.

Certain other rights are also considered to be non-derogable under general international law and/or in practice too despite not being provided for expressly under article 4(2). These include the right to a fair trial (article 14) and elements of the principle of non-discrimination e.g. to the extent that this protects non-derogable rights. (See, e.g. United Nations, Human Rights Committee (2001). General Comment No. 29: Article 4: Derogations during a State of Emergency . 31 August. CCPR/C/21/Rev.1/Add.11. paras. 7-8.)

The application of emergency measures derogating from human rights obligations is subject to strict requirements and principles in an attempt to prevent their abuse. As the United Nations Human Rights Committee observed in its General Comment No. 29 regarding article 4 ICCPR:

On the one hand, it allows for a State party unilaterally to derogate temporarily from a part of its obligations under the Covenant. On the other hand, article 4 subjects both this very measure of derogation, as well as its material consequences, to a specific regime of safeguards. 'The 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.' (CCPR/C/21/Rev.1/Add.11, Para. 1)

Significantly, "[n]ot every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation" (para. 3), thereby permitting derogations to be made. This applies equally to terrorist acts which need to be assessed on a case by case basis to see if the criteria are fully met before any state of emergency may be declared, essentially whether they threaten the very independence and integrity of the nation.

Regarding situations of armed conflict, article 4(1) requires that no measure derogating from the provisions of the Covenant may be inconsistent with the State Party's other obligations under international law. This extends to international humanitarian law which governs any reliance upon emergency powers, including to prevent their being abused by States. Even in this context, derogations may only be permitted to the extent that the situation poses a threat to the life of the nation (paras. 3 and 9). They are subject to the same principles of constraint detailed below. That said, the practice of derogations in the context of an armed conflict is not common. For example, though several Contracting Parties to the ECHR have been involved since 2001 in extra-territorial armed conflicts, no derogations have been made in relation to them. Consequently, the ECtHR has not had the occasion to consider whether any interpretative differences exist between "war" and "other public emergency" in relation to article 15 of the European Convention (see Hassan v. UK, 2014, para. 101). In situations of armed conflict, the Court has though determined that the starting point is the established jurisprudence of the International Court of Justice (ICJ) that "the protection offered by human rights conventions does not cease in cases of armed conflict, save through the effect of provisions for derogation" (ICJ, 2004, para. 106).

Requirements for permissible derogation under the International Covenant on Civil and Political Rights

 

Substantive requirements and principles *

  • Existence of a public emergency: there must be a "public emergency which threatens the life of the nation", such as armed conflict, civil and violent unrest, a terrorist emergency, or a severe natural disaster, such as a major flood or earthquake.
  • Principle of conformity with international obligations: Derogations should not be inconsistent with other obligations under international law. In no circumstances can the right to derogate from human rights obligations be invoked to justify a violation of international humanitarian law or of a peremptory norm of international law (see Module 3). For instance, while derogations from article 14 (right to a fair trial) may be permissible to the extent strictly required by the emergency situation created by an armed conflict, they are not permissible in relation to the fair trial rights of prisoners of war under the Third Geneva Convention relative to the treatment of prisoners of war which already are minimum standards reflecting the exigencies of armed conflict.
  • Principle of proportionality: Permissible derogation measures must limit the derogated rights only to the extent strictly required by the exigencies of the situation (see article 4(1)). In determining whether a derogation is proportionate, the question to be asked is whether there are other means, less restrictive of the rights in question, which would provide a similarly effective means of responding to the exigencies of the situation.
  • General Comment No. 29 of the Human Rights Committee makes clear that the requirement of strict necessity relates to the duration, geographical coverage and material scope of the derogation. In particular, in relation to the duration of a derogation, the Human Rights Committee states that "measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature".
  • Principle 54 of the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (which have been endorsed by the United Nations Economic and Social Council) states that "[t]he principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger".
  • Principle of non-discrimination : Derogation must be applied in a non-discriminatory manner, without a distinction solely founded on grounds of race, colour, sex, language, religion or social origin.
 

Procedural requirements

  • Official proclamation: Derogation measures are only permissible in respect of public emergencies which are "officially proclaimed". When proclaiming a public emergency, States must abide by their constitutional and other provisions of law which govern such a proclamation. As the Human Rights Committee stated in General Comment No. 29, this "requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed".
  • International notification: article 4(3) requires States seeking to declare a public emergency and to derogate from the requirements of the Covenant to inform the United Nations Secretary General of this position.
* United Nations, Human Rights Committee (2001). General Comment No. 29: Article 4: Derogations during a State of Emergency . 31 August. CCPR/C/21/Rev.1/Add.11.
 

Requirements for permissible derogation under the European Convention on Human Rights*

 

Substantive requirements and principles*

  • Existence of a war or other public emergency threatening the life of the nation: there must be a "public emergency which threatens the life of the nation".
  • Principle of conformity with international obligations: Derogations should not be inconsistent with the State's other obligations under international law.
  • Principle of proportionality: only derogating from Convention obligations "to the extent strictly required by the exigencies of the situation".
  • Certain Convention rights do not allow for any derogation.

Procedural requirements

  • The State availing itself of this right of derogation must keep the Secretary General of the Council of Europe fully informed.
* European Court of Human Rights (2017). Guide on Article 15 of the European Convention on Human Rights: Derogation in time of emergency . Updated on 30 April.
 

Constitutional safeguards

In some States, there are additional constitutional safeguards to prevent the abuse of emergency powers. One example is article 137 of the Peruvian constitution which provides that the right to habeas corpus and "amparo" (a remedy through the courts for acts of authority that violate fundamental rights, which also forms the basis of Inter-American Convention on Human Rights article 25 (right to judicial protection) (IACtHR, 1987(b), paras. 38-40) may never be suspended even in times of national emergency. Another example is article 165 of the Ecuadorian constitution. This specifies that during any state of exception, the President of the Republic may only suspend or limit the exercise of the right to the inviolability of domicile, inviolability of correspondence, freedom of movement, freedom of association, freedom of assembly and freedom of information.

A contrasting approach is adopted under article 14 of the Constitution of Pakistan: (1) "[t]he dignity of man and, subject to law, the privacy of home, shall be inviolable"; and (2) "[n]o person shall be subjected to torture for the purpose of extracting evidence". Under article 233 of the Constitution, however, during an emergency period some other fundamental rights may be suspended, namely freedom of movement, freedom of assembly, freedom of association, freedom of trade, business or profession, freedom of speech (including the right to information) and protection of property rights. One in-built constitutional safeguard is provided for in article 232 (7) which requires that any "[p]roclamation of Emergency shall be laid before a joint sitting which shall be summoned by the President to meet within thirty days of the Proclamation being issued and, (a) shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting" or under article 232(7)(b) a resolution "disapproving the Proclamation" has been passed.

Other constitutions guarantee basic rights during states of emergency whilst permitting some fundamental rights to be suspended or even for limited violations of them to exceptionally occur on national security grounds, while other constitutions seek to ensure blanket protection of human rights. In the Philippines, for instance, constitutional protections are embedded within relevant security related laws, illustrated by sect. 2 of Republic Act No. 9372 Human Security Act of 2007. This provides that "[n]othing in this Act shall be interpreted as a curtailment, restriction or diminution of constitutionally recognized powers of the executive branch of the government. It is to be understood, however, that the exercise of the constitutionally recognized powers of the executive department of the government shall not prejudice respect for human rights which shall be absolute and protected at all times."

 

Inherent tensions

Whenever a state of emergency is declared, and human rights protections are derogated from, the potential for States to misuse their power exists, including under the auspices of countering terrorism. Such sentiments were captured by the International Commission of Jurists in its Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism in 2004 (Berlin Declaration), which stated that:

These [rule of law] principles, standards and obligations define the boundaries of permissible and legitimate state action against terrorism. The odious nature of terrorist acts cannot serve as a basis or pretext for states to disregard their international obligations, in particular in the protection of fundamental human rights.

A pervasive security-oriented discourse promotes the sacrifice of fundamental rights and freedoms in the name of eradicating terrorism. There is no conflict between the duty of states to protect the rights of persons threatened by terrorism and their responsibility to ensure that protecting security does not undermine other rights (p. 1).

Due to the risk of human rights abuses and rule of law violations occurring in emergency situations, it is important that they are kept under regular review to ensure that the threshold criteria are still met. As the Siracusa Principles envisage, "[t]he national constitution and laws governing states of emergency shall provide for prompt and periodic independent review by the legislature of the necessity for derogation measures." (Principle 55). Similarly, the importance of such ongoing review was reiterated by the Council of Europe Parliamentary Assembly Committee on Legal Affairs and Human Rights in its State of emergency: proportionality issues concerning derogations under article 15 of the European Convention on Human Rights Information Note:

The judicial supervision of derogations is necessary to preserve the rule of law, protect non-derogable rights and prevent arbitrariness. As a former Council of Europe Commissioner for Human Rights has noted, 'It is precisely because the Convention presupposes domestic controls in the form of a preventive parliamentary scrutiny and posterior judicial review that national authorities enjoy a large margin of appreciation in respect of derogations.' This is, indeed, the essence of the principle of subsidiarity in the protection of Convention rights (para. 9).

As the Information Note further observes, all human rights, including those subject to derogations, remain justiciable by the courts. Therefore, any individual alleging the violation of their Convention rights retains the right to an effective domestic remedy under article 13 ECHR (para. 2). This principle is of wider applicability to other jurisdictions too, reflected in Siracusa Principle 56 that "[e]ffective remedies shall be available to persons claiming that derogation measures affecting them are not strictly required by the exigencies of the situation." (See further Module 14).

Another core aspect of preserving adequate safeguards is ensuring that the rule of law is maintained within national legal systems, notably the separation between the roles of the executive, legislature and judiciary in order to maintain appropriate levels of checks and balances.

The issue of terminology becomes very important. Often, in the discourse and the jurisprudence of courts regarding the utilization of derogations as a counter-terrorism tool, references are made to the need for the 'balancing' of national security needs against international obligations, including human rights law.  The notion of 'balancing' such considerations, might invite an inference that the higher the perceived security threats including from terrorism, the greater the justification for exceptionality and departure from established rule of law norms, with the associated risks to adherence to the rule pf law. It might therefore be preferable to use the alternative language of 'accommodating' security imperatives within existing rule of law obligations, to better reflect the ultimate goal underpinning any declaration of emergency and resultant derogations, namely to enable a State's executive branch to re-establish law and order whether a danger or threat to public order, such as that posed by terrorist acts, or other risks to national security and social peace.

Once again, the courts have a key role to play here. It is important that the courts ensure that strict limitations are maintained regarding the exercise of such discretion (see e.g. Klass and others v. Germany, 1978, para 48-49; A and others v. the United Kingdom, 2009, para. 173). That said, seeking to reconcile national security requirements with preserving the integrity of the rule of law can be a fine line to tread and is often a source of significant tension between the executive and judiciary.

 

Martial law and deployment of the military

One especially sensitive area can be the declaration of martial law in situations of emergency which affords a government special powers, normally through the substitution of civil authority by military authority in a designated territory. Sometimes martial law is declared in a mixed context of internal armed conflict and terrorist activities, which may be intertwined.  In such circumstances, tension can potentially arise between the role of the executive in ensuring national security, and that of the judiciary in upholding the rule of law, in determining whether the threshold test for declaring a state of emergency has been crossed.

An example is the declaration of a state of martial law in May 2017 in the Philippines, in response to the threat posed by the Maute Group (supporters of ISIL) in the City of Marawi, which is examined in the case study. In other instances of terrorist activity, a de facto state of martial law may follow without a formal declaration thereof, which may last from a few days to years. For example, there may be a de facto 'lockdown' of a city or area, and/or military (or similar) forces may be deployed as part of law and order responses. In some circumstances, it is possible that a State may be in an almost constant state of emergency and/or under martial law (whether de facto or de jure) for months, years or even decades.

A closely related, equally sensitive, issue concerns the deployment of the military in situations of national emergency. An important underpinning principle governing such circumstances was articulated by the Inter-American Court of Human Rights in the Case of Montero-Aranguren et al. (Detention Center of Catia) v Venezuela. In this case, the Court was of the opinion that "States must restrict to the maximum extent the use of armed forces to control domestic disturbances, since they are trained to fight against enemies and not to protect and control civilians, a task that is typical of police forces" (2006, para. 78).

 

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