Civil disturbances : the limits of legally invoking a public emergency to derogate from human rights

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CIVIL DISTURBANCES

The Limits of Legally Invoking a Public Emergency

to Derogate from Human Rights

The Case Study of Thailand

Annika van Beek

University of Amsterdam

6032435

Thesis supervisor: mw. dr. C.M. Brölmann

29 July 2015

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Preface

In front of you is my thesis for the master International and European Law: Public International Law (LLM). The subject concerns the possibility of declaring a public emergency to derogate from human rights in the case of political turmoil and civil disturbances.

While studying law at the University of Amsterdam both in national and international law, I mostly focused on liabilities and accountabilities. In the context of public international law, I specifically concentrated on (international) security issues. The courses I took were – among others – International Humanitarian Law, Law and Practice of the United Nations and multiple international criminal law courses. In addition I took courses from the minor Intelligence Studies to ascertain the role of intelligence agencies in a State’s internal security.

The inspiration for this thesis did not come from any courses, however, but from my fascination with Thailand. As an avid traveler, I have visited Thailand multiple times and have noticed each time the political turmoil the country seemed to constantly face: protests, the invocation of martial law, coups d’état in which governments were overthrown and the subsequent restrictions on human rights, such as the right to freedom of expression. Last year, I went back to Thailand as an intern for the Embassy of the Kingdom of the Netherlands in Bangkok. It was two months after the Thai army invoked martial law and declared a state of emergency, exercised its ‘right’ to derogate from human rights and staged a coup d’état. I knew this was my chance to delve deeper into both the international and Thai legal and political framework relating to public emergencies. Given that I always had a keen interest in (international) security issues I wondered if – and if so under what conditions – (political) civil disturbances with the potential for violent outbursts could lead to human rights being legally restricted. Finding myself amid this ‘action’ inspired me to write this thesis.

Finally, I would like to take this opportunity to express my gratitude. First of all to my thesis supervisor mw. dr. C.M. Brölmann for her encouragement, knowledge and expert guidance. Not only was she a great help during the writing of this thesis, but it was a great pleasure to have her as a lecturer and to be her academic assistant. Additionally, I would like to thank my (former) colleagues from the Embassy: former Ambassador Joan Boer, Guillaume Teerling, Doris Voorbraak en Nick Peulen for the intellectual sparring sessions about the exact scope of this thesis. Lastly, but certainly not least, I would like to thank my family, Rick and all my friends for their unconditional love and support throughout my studies.

Enjoy reading!

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Abbreviations

2007 Constitution Constitution of the Kingdom of Thailand, BE 2550 (2007)

ACHR American Convention on Human Rights (adopted 22 November

1969, entered into force 18 July 1978) 1144 UNTS 123

ECHR Convention for the Protection of Human Rights and Fundamental

Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 222

First Optional Protocol Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976, in accordance with article 9)

ICCPR International Covenant on Civil and Political Rights (adopted 16

December 1966, entered into force 23 March 1976) 999 UNTS 171

ICESCR International Covenant on Economic, Social and Cultural Rights

(adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3

NCPO National Council for Peace and Order

NPOMC National Peace and Order Maintaining Council

Rome Statute Rome Statute of the International Criminal Court (adopted 17 July

1998, entered into force 1 July 2002) 2187 UNTS 90

Second Optional Protocol Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (adopted 15 December 1989, entered into force 11 July 1991) 1642 UNTS 414

UDHR Universal Declaration of Human Rights (adopted 10 December 1948)

UNGA Res 217 A(III)

UN Charter Charter of the United Nations (adopted 26 June 1945, entered into

force 24 October 1945) 1 UNTS XVI

UNGA United Nations General Assembly

UNSC United Nations Security Council

UNSG United Nations Secretary-General

VCLT Vienna Convention of the Law of Treaties (adopted 23 May 1969,

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Chapter 1: Introduction

1.1. Introduction

Political struggles, continuous (violent) protests, explosions and gunfire. Twenty-eight persons killed and more than eight-hundred others injured.1_{On 20 May 2014, after months of political}

instability and civil disturbances, the Thai army qualified the situation in Thailand as a public emergency and invoked martial law ‘in order to ensure effective maintenance of peace and order and to ensure a prompt return to normalcy for the people of all sides’.2_{Two days later, the army}

staged a coup d’état and took control of the national administration.3_{Soon after, several news}

articles appeared, with headlines such as ‘[g]rim outlook for human rights after a month of martial law’.4

It has long been recognized in international law that human rights may justifiably be restricted in exceptional situations. The most universally applicable human rights treaty – the International Covenant on Civil and Political Rights (ICCPR)5_{– contains article 4, which allows a State to take}

measures that derogate from its ICCPR obligations in times of public emergency, which threaten the life of the nation. Although it is thus clear that a State can derogate from the ICCPR as an exception, the circumstances under which it can do so are not. States have relied on article 4 ICCPR to derogate from human rights because of situations of war and environmental disasters. Political upheaval leading to (violent) civil disturbances and civil war situations, however, are by far the most often reclined grounds for invoking a public emergency.6

It is exactly in these kinds of emergency situations that there exists a vast tension. On the one hand, States are sovereign and have the legitimate right to protect their national legal order. If that order is at risk, States may defend it, for instance by resorting to emergency measures. On the other hand,

1

Amnesty International, Amnesty International Report 2014/15: The State of the World's Human Rights (Amnesty International 2015) 363, 363-64.

2_{Royal Thai Armed Forces (RTA) Announcement No 1/2557 ‘Announcement of the Royal Thai Army On the} Enforcement of Martial Law’ (20 May 2014); F Wade, ‘Thai army declares martial law’ The Guardian (Bangkok, 20 May 2014) <www.theguardian.com/world/2014/may/20/thai-army-declares-martial-law> accessed 31 March 2015.

3

National Peace and Order Maintaining Council (NPOMC) Announcement No 1/2557 ‘Announcement On the Control of National Administration’ (22 May 2014).

4_{Amnesty International, ‘Thailand: Grim outlook for human rights after a month of martial law’ (20 June 2014)} <www.amnesty.org/en/latest/news/2014/06/thailand-grim-outlook-human-rights-after-month-martial-law> accessed 22 May 2015.

5_{The International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force (23} March 1976) 999 UNTS 171 (ICCPR).

6

M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, Link Kehl 2005) 90; almost all States that have invoked article 4 ICCPR (n 5) did so on those grounds. States’ notifications use words as ‘civil war’ (Poland and Sudan), ‘social unrest’ (Bolivia and El Salvador) and ‘internal disturbance’ (Paraguay, Colombia and Ecuador).

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some governments, such as (military) dictatorships, may not have the people’s best interests at heart and may use their power for their own interests. Even though they are obligated to give full effect to human rights, as representatives of the legal concept of a ‘State’, they continuously violate them.7_{When people, as a last resort, resort to rebellion against the tyranny and oppression those}

governments can misuse the emergency powers to maintain their own position of power.8_The

practice shows us that such a misuse often occurs. Strange political maneuvers are made whereby States declare a public emergency that lasts for years and years and are in an almost continuous state of emergency, thereby trying to legitimize the ongoing restrictions of human rights. The question arises as to whether this is legal. After all, if it is not, a State is directly violating human rights and its international obligations. This thesis seeks to answer the following research question:

What are the limits – under the law of international human rights – of legally invoking a public emergency in the sense of article 4 ICCPR in the case of civil disturbances?

By employing a pragmatic method, this thesis provides a critical analysis of the international law regarding public emergencies and its current practical application. The research question will be answered by determining what the law is regarding public emergencies and by looking at the practice of States which invoked a public emergency to derogate from human rights. This thesis will establish a normative framework, by taking into account democracy as the core value of the United Nations (UN) and the principles of legality and the rule of law, which are inherent in the ICCPR as a whole and are safeguards that underlie article 4.9_{To that end, in this thesis, Thailand will serve as a}

contemporary case study for both the practical application of article 4 as well as the inherent tensions that may arise when a State derogates from human rights. It is important to keep in mind that because of this narrow scope, this thesis cannot be exhaustive.

After these initial introductory remarks on the scope of this thesis and on the background information (section ‎1.2), Chapter 2: The Overall International Legal Framework first introduces the international legal framework in which emergency powers operate. It offers an insight into the historical background of the institution of a state of emergency and introduces article 4 of the ICCPR and its interpretations. Chapter 3: The Substantive Law of contains a substantive discussion on when a State can legally invoke a public emergency as a ground to derogate from human rights. It dives into the prerequisites for derogation, the permissible derogation measures and the procedural aspect of notifying other States of its derogation. To illustrate the contemporary use of article 4 and the tensions that can arise, Chapter 4: The Case Study of Thailand is a case study on the

7_{ICCPR (n 5) art 2.} 8

See preamble of the Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR). Even though the UDHR does not bind States under international law, it did served as a minimum standard and a vast steppingstone to forthcoming binding human rights treaties such as the ICCPR. ICCPR (n 5) preamble. 9

See UN Human Rights Committee, General Comment No 29 ‘States of Emergency (Article 4)’ (adopted at the 1950th meeting on 24 July 2001) CCPR/C/21/Rev.1/Add.11 (31 August 2001) para 16.

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invocation of article 4 by Thailand in which it concludes whether or not Thailand acted within the international framework of emergency powers. Finally, Chapter 5: Conclusion contains a conclusion on what the limits are of legally invoking a public emergency to derogate from human rights.

1.2. Introductory remarks

1.2.1. Focus on the ICCPR

Currently there are a number of (regional) human rights treaties in existence, several of which have provisions that allow for derogation in case of emergency situations. 10_{As this thesis seeks to}

examine the law that is applicable in the most countries, it focuses on the ICCPR, the treaty that is almost universally applicable.11_{The ICCPR is the most comprehensive and renowned UN treaty on}

civil and political rights. It holds States obligated to the principles enshrined in the UN Charter. 12

The ICCPR contains a wide range of so-called ‘classical’ human rights: civil and political rights that protect the individual against the power of the State. These rights include – among many others – the right to self-determination, life, privacy, freedom of expression and freedom of assembly.13_By

becoming a party to the ICCPR, States are bound to give full effect to the rights enshrined therein.14

Besides the substantive rights, the ICCPR also specifies when State Parties can legally restrict those rights: either via limitations or derogations. This thesis focuses on derogations.

1.2.2. Terminology: restrictions, limitations and derogations

A small number of ICCPR rights are absolute and therefore can never be restricted. Most rights, however, can legally be restricted by a State if the ICCPR allows for such restriction. There are two ways in which a State can legally restrict ICCPR rights: via either limitations or derogations. As both means of restriction can possibly be legally exercised in case of a public emergency situation, understanding the difference between them is essential for this thesis.

Limitations are less stringent than derogations: they reflect the idea that hardly any human rights

are absolute and that a balance must be struck between individual and public interests.15_{The ICCPR}

rights that can be limited, contain limitation clauses that allow limitation either expressly (on grounds such as ‘interests of national security or public safety’, ‘public order’ and ‘protection of the

10_{eg ICCPR (n 5) art 4, Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4} November 1950, entered into force 3 September 1953) 213 UNTS 222 (ECHR) art 15 and American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (ACHR) art 27. 11_{As of 2 April 2014 – with the accession of the State of Palestine – the ICCPR has 168 State Parties} <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en> accessed 18 April 2015.

12_{Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN} Charter); ICCPR (n 5) preamble.

13

Except for the right of self-determination (art 1, p I), all substantive rights are found in p III, arts 6-27 ICCPR (n 5). 14_{ICCPR (n 5) art 2; see Nowak (n 6) 37-41 on the threefold obligation of States to respect, ensure and protect.} 15

D McGoldrick, ‘The Interface between Public Emergency Powers and International Law’ (2004) 2 International Journal of Constitutional Law 380, 383.

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rights and freedoms of others’)16_{or implicitly (through terms such as ‘fair’, ‘reasonable’ and}

non-arbitrary limitation)17_{. In any case, limitations must be prescribed by national law, proportionate}

and protect a countervailing community benefit.18_{Accordingly, limitations can be allowed in}

emergency situations, but also during ‘normal’ times.

Derogation of ICCPR rights on the other hand is only allowed in the exceptional situation of a public

emergency, which threatens the life of the nation.19_{In order for a State to legally derogate it has to}

adhere to the strict requirements set out by article 4 ICCPR. Derogation means the complete or partial elimination of the right concerned as an international obligation.20_{Derogation thus has more}

far-reaching implications on human rights.

In an emergency situation, the ratio between limitations and derogations is that a State must first limit rights rather than directly resort to derogation.21_{This thesis focuses on derogations and}

therefore the term ‘derogation’ will be consistently used. Limitations are only cited in so far as to clarify the law regarding derogations. Whenever a conjugation of the word restriction is used, it refers to the overall concepts of restricting human rights.

1.2.3. The normative framework: human rights, democracy and the rule of law

Democracy is one of the universal core values and principles of the UN.22_{It is based on the idea that}

the freely expressed will of people is the basis of the authority of government.23_Essential

requirements of democracy include respect for human rights and fundamental freedoms, the separation of powers, accountability of the administration and power that is exercised in accordance with the rule of law.24_{The principle of legality is intrinsically linked to the rule of law,}

which is inherent in the principle of democracy. These principles provide a basic framework and will help define the limits of legally invoking a public emergency to derogate from human rights in case of (political) civil disturbances.

16

eg ICCPR (n 5) art 22.

17_{eg ICCPR (n 5) art 14, 25 and 9.}

18_{S Joseph and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and}

Commentary (3rd edn, OUP 2013) paras 1.82-1.86.

19

ICCPR (n 5) art 4. 20_{McGoldrick (n 15) 383.} 21

GenCom 29 (n 27) para 7; Siracusa Principles (n 61) para 53; McGoldrick (n 15) 384. 22

Even though the UN Charter (n 12) does not explicitly mentions ‘democracy’, the phrasing ‘we the peoples’ indicates that democracy is indeed a fundamental principle. See similarly UDHR (n 8) and ICCPR (n 5).

23

UDHR (n 8) art 21. 24

UN Commission on Human Rights (UNCHR) Res 2002/46 (23 April 2002) para 1; see also UN Human Rights Commission (UNHRC) Res 19/36 (19 April 2012) UN Doc A/HRC/RES/19/36; see UN Security Council (UNSC) ‘Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies’ (23 August 2004) UN Doc S/2004/616 para 6, for an extensive definition of the rule of law.

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Chapter 2: The Overall International Legal Framework

Prior to discussing the substantive law and the prerequisites of a public emergency (in Chapter 3: The Substantive Law of ), this chapter gives an overview of the international legal framework regarding public emergencies. It first offers an inside in the historical background of the concept of a state of emergency (section ‎2.1). Subsequently, it introduces article 4 ICCPR and its origin (section ‎2.2) and briefly discusses the various interpretation mechanisms utilized to clarify the provision (section ‎2.3). It is not intended as a substantive discussion of the interpretations and the prerequisites of a public emergency. Such a discussion takes place in the next chapter, Chapter 3: The Substantive Law of .

2.1. Historical background of the institution of a state of emergency

The overall institution of a state of emergency dates back to the Roman times, where a dictator dealt with the extraordinary case of an external attack or internal rebellion.25_{It encapsulates the}

idea that extraordinary measures may be required to deal with a threat to the life of a nation. Before the ICCPR was adopted in 1966, most States already had a constitutional system, which empowered governments to take exceptional measures during times of war or other catastrophic situations. Such a constitutional right of emergency offers a State’s legitimate constitutional organs the possibility to avoid damages to the general public resulting from, for instance, environmental disasters, civil wars or attempts to subvert the constitutional order. However, in practice military dictatorships tended to misuse this instrument to retain their positions of power and to oppress their political opponents. To find a balance between a State’s legitimate right to defend its constitutional order and preventing a State from misusing its emergency powers to destroy government opponents and violating their human rights, the ICCPR – and other human rights conventions – contain public emergency provisions.26

2.2. Introducing article 4 ICCPR and its origin

‘1. 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.

25

J Oraá, Human Rights in States of Emergency in International Law (OUP 1992) 7; see further A-L Svensson-McCarthy, The International Law of Human Rights and States of Exception (Martinus Nijhoff 1998) 11-19.

26

Nowak (n 6) 84-85; see further Oraá (n 25); ICCPR (n 5) art 4, ECHR (n 10) art 15 and ACHR (n 10) art 27; see extensively on emergency powers in a historic perspective Svennsson-McCarthy (n 25) 9-45.

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

3. 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.’

Article 4 is the ICCPR’s public emergency provision and ‘of paramount importance for the system of protection for human rights’.27_{On the one hand it offers States the possibility to unilaterally}

derogate from its ICCPR obligations and on the other hand it subjects both the measures of derogation and its consequences to a specific regime of safeguards.28

The origin of article 4 can be traced back to 1947, when the United Kingdom presented a draft International Bill of Human Rights. The draft contained an article which would allow derogation from human rights ‘in time of war or other national emergency’.29_{A long substantive discussion}

about the provision followed, trying to clarify its meaning and scope. Even though it seemed that war was the main kind of public emergency the drafters initially had in mind when formulating article 4, eventually the word ‘war’ was stricken, since the whole purpose of the UN precisely is the prevention of war. Emphasis on even the possibility of war was thus to be avoided.30_{Unfortunately}

there was not much discussion about the other kinds of emergencies that could arise. From the preparatory work it seems that the drafters did have in mind that public emergencies at all times must link to situations brought about by some sort of violence (or grave natural disasters).31_Time

has taught us though that public emergencies are most often resorted to because of reasons of civil unrest.32

Another point of interest is the later addition of the words ‘threatening the life of the nation’.33_The

views relating to this phrasing, illustrates that the drafters were already concerned with the tension between protecting the interests of the people by preventing misuse of a public emergency by

27_{UN Human Rights Committee, General Comment No 29 ‘States of Emergency (Article 4)’ (adopted at the 1950th} meeting on 24 July 2001) CCPR/C/21/Rev.1/Add.11 (31 August 2001) (GenCom 29).

28

GenCom 29 (n 27) para 1.

29_{UN Commission on Human Rights Drafting Committee (5 June 1947) UN Doc E/CN.4/AC.1/4, 7.} 30

UN Charter (n 12) art 1; UN Commission on Human Rights Drafting Committee (17 June 1949) UN Doc E/CN.4/SR.126, 6; the public emergency of ‘war’ was discussed in eg UN Commission on Human Rights Drafting Committee (17 June 1949) UN Doc E/CN.4/SR.126, 4-5, 8, UN Commission on Human Rights Drafting Committee (17 June 1949) UN Doc E/CN.SR.127, 3-5, 7 and UN Commission on Human Rights Drafting Committee (1 July 1952) UN Doc E/CN.SR.330, 4-5, 7, 8 etc.

31_{See also Svensson-McCarthy (n 25) 215-216.} 32

Nowak (n 6) 90. 33

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governments and States’ right to protect their constitutional order. As Chile submitted it ‘was significant that the text did not relate to the life of the government or of the state’.34_{This shows that}

even in a situation where derogation is legal, the interests of the nation and its people still should prevail. At the same time, the addition makes it less relevant that the drafters did not clarify all the possible public emergencies that could occur: as long as the situation is severe enough to threaten the life of the nation, derogation might be legal. A substantive discussion as to when this will be the case for civil disturbances takes place in the next chapter (Chapter 3: The Substantive Law of ). Thus, a State may derogate from human rights in the case of a public emergency. However, the exact scope of the provision is not directly clear. Interpretation is needed to clarify its meaning and limits.

2.3. Interpretations

Over the years various bodies have interpreted article 4. This section introduces the diverse interpretation initiatives.

2.3.1. General rules of interpretation

The provisions of the ICCPR are interpreted according to the general rules of interpretation from the Vienna Convention on the Law of Treaties (VCLT).35_{Even though the VCLT is a treaty and thus,}

in principle, is only legally binding for its State Parties, most of its provisions reflect customary international law and thus are legally binding for the international community as a whole.36

According to the VCLT the ICCPR is interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.37_{Of primary importance are thus the textual, contextual, systematic and teleological}

interpretation.38_{The systematic interpretation gives way for considering the specific interpretation}

articles of the ICCPR,39_{as well as other regional human rights treaties and jurisprudence of its}

courts.40_{Reservations, declarations and comments deriving from State Parties should be taking into}

consideration as ‘subsequent practice’ of State Parties.41_{Regarding the teleological interpretation,}

the nature of international human rights treaties is noteworthy. Unlike traditional international treaties, which mostly regulate relationships between States, human rights treaties by definition

34

UN Commission on Human Rights Drafting Committee (1 July 1952) UN Doc E/CN.SR.330, 4.

35_{Vienna Convention of the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155} UNTS 331 (VCLT) arts 31-33.

36

See O Dörr and K Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (Springer 2012) 82-84.

37

VCLT (n 35) art 31 (1). 38

Nowak (n 6) XXVI, para 18. 39_{ICCPR (n 5) arts 5, 46 and 47} 40

eg the ECHR (n 10) and the ACHR (n 10). 41

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govern the relationship between States and individuals.42_{The object and purpose of the ICCPR is}

therefore to offer effective protection of human rights.43_{As is characteristic for other human rights}

treaties, ‘effectiveness’ is used as an overarching principle to interpret the ICCPR. The ICCPR is thus interpreted more dynamically and attention is paid to the practical protection of rights, instead of formal protection.44_{Furthermore the ICCPR should be interpreted liberally, while its limitations}

and derogations are to be interpreted narrowly.45

If the primary means of interpretation still leave the meaning ‘ambiguous or obscure’ or lead ‘to a result which is manifestly absurd or unreasonable’, the preparatory work of the ICCPR can be considered as well.46_{As human rights treaties by definition often use vague and abstract terms,}

historical interpretation of ICCPR provisions occurs regularly.47

2.3.2. The Human Rights Committee

The body that is of great value when clarifying the scope of article 4 ICCPR is the Human Rights Committee (the Committee). The Committee is the independent monitoring body of the ICCPR, that oversees the implementation by the State Parties and interprets its provisions.48_{Even though its}

decisions and documents are not internationally binding, they rank highly in the interpretation of the ICCPR and are in practice authoritative.49_{Some authors even argue in favor of universal}

jurisprudence.50

The essential sources of the Committee’s jurisprudence are its General Comments, Concluding Observations and decisions under the First Optional Protocol51_{. First, it has issued two ‘General}

Comments’ on article 4. General Comments are interpretations of ICCPR provisions on thematic issues and can be seen as general statements of law from the Committee.52_{General Comment 5}

42

Note the formulation of in ICCPR (n 5) art 2 (1): ‘all individuals within its territory and subject to it jurisdiction’. 43_{See also ICCPR (n 5) preamble.}

44

See further B Cali, ‘Specialized Rules of Treaty Interpretation: Human Rights’ in Hollis DB (ed), The Oxford Guide

to Treaties (OUP 2012).

45

Joseph and Castan (n 18) 28, para 1.77.

46_{Historical interpretation is of a supplementary nature; VCLT (n 35) art 32.} 47

For more on ICCPR interpretation, see Nowak (n 6) XXVI, paras 17-21.

48_{ICCPR (n 5) art 28. The Committee consists of eighteen independent experts, who are nationals of the States} parties and who are ‘persons of high moral character and recognized competence in the field of human rights’. Most members of the Committee have legal experience (UN Human Rights Committee, ‘Civil and Political Rights: The Human Rights Committee (Fact Sheet No. 15 (Rev.1))). They act in their personal capacity and cannot be instructed by their governments; The Committee has its own Rules of Procedure: UN Human Rights Committee ‘Rules of procedure of the Human Rights Committee’ (12 January 2012) UN Doc CCPR/C/3/Rev.10.

49

Nowak (n 6) XXVII, para 21.

50_{Nowak (n 6) XXVII, para 21; McGoldrick (n 15) 382.} 51

Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (First Optional Protocol).

52_{The basis for the Committee’s authority to clarify provisions is ICCPR (n 5) art 40 (4), which states that the} Committee ‘shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties’.

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(GenCom 5)53_{was issued in 1981 and only contained three paragraphs, therefore hardly clarifying}

the provision.In 2001, the Committee issued General Comment 29 (GenCom 29)54_{, which replaced}

GenCom 5. This time the General Comment was much more comprehensive. It drew upon the Committee’s own experience when dealing with individual claims under the First Optional Protocol and the reporting procedure, as well as it took into account other private initiatives that over the years sought to clarify the provision (see section below).55_{Nowadays, GenCom 29 is the main}

document for public emergencies: it analyzes the legal requirements of article 4 ICCPR and provides an extensive interpretation of its scope.56_{GenCom 29 establishes guidelines that State}

Parties are required to respect during a state of emergency. Second, the Committee receives and examines reports from States Parties on how the States are giving full effect to the ICCPR rights in their jurisdiction and about their law and practice in the field of emergency powers.57_{It addresses}

its concerns to the State Parties and gives recommendations in the form of ‘Concluding Observations’. 58 _{Lastly, the Committee considers individual complaints (known as}

Communications) regarding violations of the ICCPR, but only for the States who are a party to the First Optional Protocol.59

2.3.3. Minimum standards proposed by the international community

The lack of clarification of the Committee regarding article 4 ICCPR during the years between the issuance of GenCom 5 and 29 did not go unnoticed. Besides scholarly attention, several private initiatives and expert conferences were organized, in order to fill the void.60_{All initiatives}

mentioned in this section were launched in an effort to produce minimum human rights standards and to clarify the scope of the of the ICCPR’s derogation provision. These initiatives contain many valuable references for interpreting article 4 and can be used to supplement the Committee’s jurisprudence.

In chronological order, the relevant initiatives are i) the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa

53_{UN Human Rights Committee, General Comment No 5 ‘Derogations (Article 4)’ (adopted at the Thirteenth} Session) UN Doc 31/07/81 (1981) (GenCom 5).

54_{GenCom 29 (n 27).} 55_{GenCom 29 (n 27), fn 6.} 56 Nowak (n 6) 88. 57 ICCPR (n 5) art 28.

58_{ICCPR (n 5) art 40; As of November 2010, the Committee uses a new simplified optional reporting procedure} (LOIPR procedure), where States answers to the Committee’s ‘Lists of Issues’ also qualifies as a report in the meaning of article 40 ICCPR and thus fulfills their reporting obligation. The LOIPR Procedure runs for a pilot period of five years, after which the Committee appoints a working group to assess the procedure. UN Human Rights Committee, ‘Focused reports based on replies to lists of issues prior to reporting (LOIPR): Implementation of the new optional reporting procedure (LOIPR procedure)’ UN Doc CCPR/C/99/4 (29 September 2010).

59_{First Optional Protocol (n 51).} 60

eg S Dolezal, ‘Systematic Failure to Interpret Article IV of the International Covenant on Civil and Political Rights: Is There a Public Emergency in Nigeria?’ (1999-2000) 15 American University of International Law Review 1163

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Principles),61_{the Paris Minimum Standards of Human Rights Norms in a State of Emergency (Paris}

Minimum Standards),62_{the Oslo Statement on Norms and Procedures in Time of Public Emergency}

or Internal Violence (Oslo Statement)63_{and the Turku Declaration of Minimum Humanitarian}

Standards (Turku Declaration).64

2.3.4. Summary: relationship between interpretations of article 4 ICCPR

It may have taken some years, but evidently there are nowadays many interpretations of article 4 ICCPR available. So how do these interpretations relate to each other?

First of all it is important to keep in mind that even though the ICCPR itself is a legally binding international treaty, its interpretations are not. Only the general rules of interpretation from the VCLT are binding as they reflect customary international law. The Committee’s jurisprudence however, merely has obtained the status as being authoritative. Same goes for the private interpretation initiatives.

The Committee’s jurisprudence is the basic foundation for interpreting article 4 ICCPR, more specifically, GenCom 29, which extensively clarifies the provision.65_{Similarly, the Committee’s}

Concluding Observations and case law under the First Optional Protocol are part of the Committee’s jurisprudence and therefore carry authoritative weight.66_{Even though they are not binding, they}

place a moral obligation on States, as they committed themselves to complying to the treaty. Other interpretations, such as minimum standards, are used to supplement the Committee’s jurisprudence or can be used to contrast it. The fact that GenCom 29 already took into account the minimum human rights standards has to some extent already reduced the need for referral to those documents. However, where necessary, they still can be taken into consideration. The same applies to comparable case law from other international (regional) bodies.67

61

ECOSOC, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4 (Siracusa Principles).

62

The Paris Minimum Standards of Human Rights Norms in a State of Emergency (Paris Minimum Standards) were approved and adopted in 1984 by the 61st Conference of the International Law Association. The Paris Minimum Standards are reprinted and accompanied by comments in RB Lillich, ‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985) 79 AJIL 1071.

63

Oslo Statement on Norms and Procedures in Time of Public Emergency or Internal Violence, UN Doc E/CN.4/Sub.2/1987/31 (Oslo Statement). In June 1987 the Norwegian Institute of Human Rights (now Norwegian Centre for Human Rights) convened the expert meeting were the Oslo Statement was adopted.

64

Turku Declaration of Minimum Humanitarian Standards, UN Doc E/CN.4/1995/116 (Turku Declaration). 65_{GenCom 29 (n 27).}

66

ICCPR (n 5) arts 40 and First Optional Protocol (n 51). 67

Nowak (n 6) 87; eg the jurisprudence from the European Court of Human Rights (ECtHR) on the ECHR (n 10) and Inter-American Court of Human Rights regarding the ACHR (n 10); for more on interpreting the ICCPR, see S Sun, ‘The Understanding and Interpretation of the ICCPR in the Context of China's Possible Ratification’ (2007) 6 Chinese Journal of International Law 19-34.

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The fact that none of the ICCPR’s interpretations have binding force may prove problematic in enforcing ICCPR rights and thus preventing unlawful derogation.

Chapter 3: The Substantive Law of Public Emergencies

As briefly mentioned in the previous chapter (Chapter 2: The Overall In), States that are confronted with heavy political resistance that lead to severe civil disturbances might be able to declare a state of emergency and derogate from human rights. To define the limits of legally invoking a public emergency in the case of civil disturbances, a substantive discussion of the prerequisites is required, which this chapter provides. It takes into account the previously mentioned interpretations: the Committee’s jurisprudence, including invocations of states of emergencies by State Parties and responses to it,68_{the developed minimum standards for human rights and in some}

cases jurisprudence from regional human right bodies.69

To clearly identify the rules regarding a state of emergency, this chapter is divided into three main sections: the first section discusses the prerequisites for lawful derogation (section ‎3.1), namely that there is a public emergency that threatens the life of the nation (section ‎3.1.1) and that the public emergency is officially proclaimed (section ‎3.1.2). If there is in fact a public emergency that meets the necessary prerequisites, a State may take derogating measures, but up to a certain extent. The second section discusses the permissible derogation measures (section ‎3.2): measures must be strictly required by the exigencies of the situation (section ‎3.2.1), may not be inconsistent with the States’ other obligations under international law (section ‎3.2.2), may not involve discrimination on the grounds of race, color, sex, language, religion or social origin (section ‎3.2.3) and no derogation is allowed from the human rights enumerated in article 4 (2) ICCPR or human rights which have non-derogable elements (section ‎3.2.4). Finally, the third section discusses the procedural matter of notifying other States of its derogation (section ‎3.3).

3.1. Prerequisites for Derogation

In order for a State Party to lawfully invoke article 4 ICCPR, two fundamental conditions have to be met. The situation must be a ‘public emergency that threatens the life of the nation’ (section ‎3.1.1) and the existence of such a situation must be ‘officially proclaimed’ (section ‎3.1.2). Only if both conditions are met, can a state lawfully take emergency measures that derogate from human rights

68

So far officially 33 States have notified the Committee – under art 4 ICCPR (n 5) – that they have declared a state of emergency and derogated from some of its rights: Algeria, Argentina, Armenia, Azerbaijan, Bahrain, Bolivia (Plurinational State of), Chile, Colombia, Ecuador, El Salvador, France, Georgia, Guatemala, Israel, Jamaica, Namibia, Nepal, Nicaragua, Panama, Paraguay, Peru, Poland, Russian Federation, Serbia, Sri Lanka, Sudan, Suriname, Thailand, Trinidad and Tobago, United Kingdom of Great Britain and Northern Ireland, Uruguay, Venezuela (Bolivarian Republic of) and Yugoslavia (former).

69

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enshrined in the ICCPR. If it derogates of ICCPR rights when one or both of these requirements are not met, the State is in violation of international law.

3.1.1. A public emergency that threatens the life of the nation

A civil disturbance might in some cases justify derogation from the ICCPR; however, not every disturbance however amounts to a public emergency that threatens the life of a nation. 70_The

threshold for this requirement is relatively high and is only met in exceptional situations of crisis or public danger.71_{First, the aspects of a public emergency are discussed, such as the terminology}

used by States, the objective of relying on article 4 and the situations that would qualify as a public emergency (section ‎3.1.1.1). Secondly, this chapter delves into the question of what constitutes ‘the life of the nation’ and when a situation is of sufficient gravity to constitute a serious threat to it (section ‎3.1.1.2).

3.1.1.1. Aspects of a ‘public emergency’

First, regarding the terminology of a ‘state of emergency’ or ‘public emergency’. Over the time, States have used different terminologies to describe their state of emergencies.72_{To analyze}

whether article 4 can be applicable, the phrasing is indeed irrelevant. The Committee does not focus on the terminology used by states, but does so on the legal effects of the different forms of a public emergency.73_{If the legal effect is that the State derogates from human rights, the Committee will}

analyze if the situation threatens the life of the nation.

Secondly, regarding the objective of invoking a public emergency the Committee has stated that the main objective should be the ‘restoration of a state of normalcy, where full respect for the [ICCPR] can again be secured’. 74_{It is true that governments often misuse the public emergency and that}

their objective actually is to maintain their own position of power and to repress human rights. Nevertheless, this requirement is difficult to use as a benchmark to define whether a State lawfully derogates: after all, one has to rely on the considerations the governments choses to share with the public as one cannot see into the ‘mind’ of the governments to ascertain their actual objective. Thirdly, regarding the situations that would qualify as a public emergency the drafters of article 4 did not specify which situations would constitute a public emergency, but it seems the drafters

70

GenCom 29 (n 27) para 3.

71_{Paris Minimum Standards (n 62) s A, para 1 (b).} 72

McGoldrick (n 15) 394; examples of different terminology are: ‘(severe) state of (national/public) emergency’, ‘state of siege’ (eg Algeria, Argentina) and ‘state of national safety’ (Bahrein); Other States that used the terms ‘Martial Law’ in their notification to the UNSG are Argentina (Letter by Argentina to the UNSG, received by the UN 4 January 2002) Bolivia (Letter by Bolivia to the UNSG, received by the UN 16 August 1995), El Salvador (Letter by El Salvador to the UNSG, received by the UN 2 August 1985) and Poland (Letters by Poland to the UNSG, received by the UN 1 February 1982 and 22 December 1982).

73

McGoldrick (n 15) 394. 74

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mostly had situation in mind that were brought about by some sort of violence.75_{Civil disturbances}

do not always involve violence. It is therefore up to States to carefully justify the invocation of article 4 ICCPR and why measures are necessary and legitimate in those circumstances.76_{As the}

subject of this thesis is a public emergency caused by a civil disturbance, regarding other emergencies, it suffices to note that those are i) armed international conflicts, which by definition would constitute a public emergency that threatens the life of the nation77_{and ii) environmental}

disasters and iii) major industrial accidents, although in the latter two cases, derogation is less self-evident.78_{Economic problems within a State do not justify derogation.}79

3.1.1.2. A threat to the life of a nation

The Committee has not tried to give a definition or clarify the meaning ‘life of a nation’ or what exactly threatens it. As the European Court of Human Rights has stated, there is a public emergency which threatens the life of a nation if it ‘affects the whole population and [threatens] the organized life of [its] community’.80_{The Siracusa Principles state that a threat to the nation is one that ‘affects}

the whole of the population and either the whole or part of the territory of the state’.81_{In any case,}

it is clear that the life of a nation is about the population and the community, not about the life of the government or of the state.82_{A government represents the legal notion of a State, and should act}

in the interests of the nation, meaning its people. This requirement is in that way a safeguard against possible misuse by governments.

Civil disturbances mostly occur in specific areas of a State, for instance violent protests in the State’s capital. The question arises as to whether a situation threatens the life of the nation, when the protests and unrest are geographically limited. The answer is twofold. If the civil disturbance is confined to a part of the territory of the State, it can still affect the whole population. If that occurs, there thus is a threat to the life of the nation and a public emergency.83_{There can, however, also be}

civil disturbances in a part of the State, which effects do remain confined to that same part of the territory. In those situations, the whole population is not affected. Whether this situation would constitute a public emergency remains unconfirmed. This thesis argues that emergency situations for which the effects are confined to a part of the State can still qualify as a situation threatening the nation and allowing for derogation, as long as it meets the requirements that it is extremely serious. First of all, because the Committee has indicated that measures of derogation can be limited in

75_{See also Svensson-McCarthy (n 25) 215-216.} 76 GenCom 29 (n 27) para 3. 77 Nowak (n 6) 89, para 12. 78_{GenCom 29 (n 27) para 5.} 79

Siracusa Principles (n 61) para 39 (41); Paris Minimum Standards (n 62) s A, para 1 (b). 80

Lawless, ECtHR (1961) Series A no 3, para 28. 81_{Siracusa Principles (n 61) para 39 (a).} 82

See UN Commission on Human Rights Drafting Committee (1 July 1952) UN Doc E/CN.SR.330, 4 (Chile). 83

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geographical coverage and second, because of practical considerations: if invocation of article 4 in such cases would not be allowed, States with large territories would never be able to utilize it.84

As to the seriousness of the threat, the civil unrest must be extremely serious and exceptional before it threatens the life of the nation. Both the Siracusa principles and the Paris Minimum Standards speak of situations where a State is faced with a situation of ‘exceptional’, ‘actual’ or ‘imminent’ danger. Accordingly, simply fearing for the life of the nation is not enough.85_The

organized life of the community must be significantly disrupted.86_{Low-level civil disturbances,}

which are common in contemporary democracies, would thus not meet this requirement.87_But

even if the civil disturbances involve a high level of violence which and is an actual threat, derogation may not always be legal: the threat must be to the nation, thus, to the interest of the people and not to the interests of the governments as representatives of States (as a legal identity). The inherent tension again surfaces between the state right to protect its constitutional legal order and the people it is supposed to protect.

Most interesting is that it the constitutional order and manner in which the government operates can be relevant to determine whether the life of the nation is threatened. Civil disturbances often occur because people do not share the political view of the government. Here again the tension surfaces between States’ right to protect its constitutional legal order and the prevention of misuse by governments as representatives of the State. Full effect should be given to the human rights enshrined in the ICCPR.88_{If a government does not do so, the State is not only in violation of the}

ICCPR,89_{but also the people can, as a last resort, resist the oppression by having recourse to}

rebellion.90_{In such a situation the life of the nation is not threatened. After all, the treat must be to}

the life of the nation, meaning its people, and not to the life of the government.91_{Only if the public}

emergency is invoked to swiftly create a constitutional order in which the people can in fact effectively enjoy their rights and freedoms, may the invocation in such a situation be legal.92

84

S Joseph, ‘Human Rights Committee: General Comment 29’ (2002) 2 Human Rights Law Review 81, 83; Joseph and Castan (n 18) 911.

85_{Nowak (n 6) 90, para 14; See J Hartman, ‘Derogation from Human Rights Treaties in Public Emergencies’ (1981)} 22 Harvard International Law Journal 1, 16, who notes that ‘merely potential, latent, or speculative’ danger is not enough to justify derogation.

86_{See Paris Minimum Standards (n 62) s A, para 1 (b) and Hartman (n 85) 16.} 87

Hartman (n 85) 16. 88

ICCPR (n 5) art 2.

89_{It is important to keep in mind that art 2 ICCPR (n 5) has an accessory character: ‘[t]he accessory character} means that Art. 2 can be violated only in conjunction with some other (substantive) provision of the Covenant’. See more extensively Nowak (n 6) 35-37.

90_{See UDHR (n 8) preamble.} 91

UN Doc E/CN.4/L.139/Rev.1 (n 33) and UN Doc E/CN.SR.330 (n 34) 4. 92

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A clear limit lies thus in the fact that States in their normal state of affairs give full effect to the ICCPR rights and do not oppress their people. After all, the core value of democracy demands that human rights be respected.

3.1.2. Official proclamation of the public emergency

Besides the requirement that a public emergency must ‘threaten the life of the nation’, the public emergency must also be ‘officially proclaimed’.93_{The official proclamation mentioned in article 4}

(1) is the notification in the domestic legal order, and must not be confused with the procedural requirement of notifying the international community under article 4 (3) ICCPR. The requirement of proclamation is an essential prerequisite for applying article 4, while the notification of other State Parties merely is a procedural requirement.94_{As to the proclamation, the Committee noted it}

‘is essential for the maintenance of the principles of legality and the rule of law at times when they are most needed’.95

The proclamation of a public emergency is governed by the domestic law of the State Party. The State must act within the powers offered by their constitution and their emergency laws and a competent body must proclaim the public emergency.96_{In practice this will be either the executive}

and/or the legislature.97_{On multiple occasions Committee members have stated concern about the}

concentration of powers in the hands of one person or single organ, explicitly the Prime Minister and King.98_{It thus seems that domestic laws should make the proclamation of a public emergency}

subject to parliamentary or legislative control.99_{As democracy requires the separation of powers}

and the exercise of power in accordance with the rule of law, some sort of parliamentary scrutiny is indeed a very welcoming addition: it can work as a safeguard to prevent arbitrary and unlawful derogation.

Furthermore, the principle of legality is served with the proclamation requirement. The consequence of proclaiming a public emergency is that constitutional or legislative provisions of the State may be partially suspended or even abrogated altogether. At the same time the

93

ICCPR (n 5) art 4 (1); Siracusa Principles (n 64) para 42, 43 and 62. 94_{For the procedural requirement of notification see section ‎3.3.}

95_{GenCom 29 (n 27) para 2; but see, M Olivier, ‘Revisiting General Comment No. 29 of the United Nations Human} Rights Committee: About Fair Trial Rights and Derogations in Times of Public Emergency’ (2004) 12 Leiden Journal of International Law 405.

96_{GenCom 29 (n 27) para 2.} 97

See eg UN Human Rights Committee (2 April 1981) UN Doc CCPR/C/SR.265 para 35 (Barbados), where a Committee member notes ‘[h]e had some difficulty in accepting [a provision of Barbados’ Constitution], according to which it would seem that a Prime Minister would retain supreme authority in a state of public emergency and that the role of Parliament would be minimal’; see UN Human Rights Committee (27 October 1981) UN Doc CCPR/C/SR.327 (1981) (Morocco) para 40 about the concern relating to the King having unlimited power.

99

See UN Human Rights Committee (22 August 1977) UN Doc CCPR/C/SR.29 para 6 (Tunesia); UN Human Rights Committee (11 April 1979) UN Doc CCPR/C/SR.128 (Chile) para 65.

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distribution and division of powers may be (temporarily) changed: certain State organs may lose their powers, while others gain them. The Committee should be informed about how the declaration of a state of emergency affects the provisions of States’ Constitution.100_{From the}

perspective of the people of the derogating State, proclamation serves the important purpose of informing them about this alteration and restriction of human rights that from that moment on may occur.101_{Only if people know the law and acts that constitute criminal offenses, can they conform to}

the law. Both in considering whether the derogation is justified and whether States’ national emergency legislation is in conformity with the international emergency law of article 4 ICCPR, the Committee considers if the proclamation of a public emergency is required before the competent body legally can take emergency measures.102_{It thus prevents a State from trying to retroactively}

legitimize its violations of human rights. In the same way the principle of legality demands that domestic emergency laws must be clear and precise.103_{If the terms are overly broad and vague the}

domestic law is inconsistent with the non-derogable criminal legality principle of article 15 ICCPR, under which no one shall be held guilty of criminal offences, which did not constitute a criminal offence at the time it was committed.104

Thus, unfortunately no specific concrete reference points have been established to ascertain if a State has lawfully derogated from human rights. It is clear, however, that the limits of legally derogating from the ICCPR lie in the interdependent principles of democracy, the rule of law, legality and the separation of powers. Determining if a public emergency exists remains a matter over of applying these broader principles.

3.2. Permissible derogation measures

If a State indeed can legally derogate because it meets the requirements discussed in section ‎3.1, this does not automatically mean that all types of measures are permissible. In any case, measures must be of an exceptional and temporary nature.105_{This subsection seeks to determine what the}

conditions and limits for permissible derogation measures are. It discusses the condition that the measures can only be taken to the extent strictly required by the exigencies of the situation (section ‎3.2.1), that they must be consistent with other international law obligations (section ‎3.2.2),

100_{UN Doc CCPR/C/SR.327 (Morocco)(n 98) para 40.} 101

A de Guttry, M Gestri and G Venturini (eds), International Disaster Response Law (Springer 2012) 334. 102

UN Human Rights Committee (13 August 1979) UN Doc CCPR/C/SR.170 para 58 (Finland).

103_{Joseph and Castan (n 18) 919; eg in the Committee’s Concluding Observations on Azerbaijan (1994) the} Committee noted it was ‘concerned by the lack of clarity in the law governing the conditions in which the state of emergency can be implemented’. UN Human Rights Committee, Concluding Observations on Azerbaijan (1994) UN Doc CCPR/C/79/Add.38 (13 August 1994), para 7; See also Siracusa Principles (n 61) para 43 which notes that ‘procedures under national law for the proclamation of a state of emergency shall be prescribed in advance of the emergency’.

104_{See UN Human Rights Council, ‘Report of the Special Rapporteur on the promotion and protection of human} rights while countering terrorism’ (24 February 2009) UN Doc A/HRC/10/3/Add.1 paras 285-86.

105

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the prohibition of discriminatory measures (section ‎3.2.3) and the non-derogable rights (section ‎3.2.4), which are divided into a subsection about the non-derogable rights of article 4 (2) ICCPR (section ‎3.2.4.1) and the additional non-derogable measures deriving from the Committee’s interpretations, which focuses mainly on the right to a fair trial (section ‎3.2.4.2).

3.2.1. Proportionality: to the extent strictly required by the exigencies of the situation

The Committee has emphasized that the fact that some provisions are listed as non-derogable (see section ‎3.2.4 below), does not mean that other provisions of the ICCPR may be derogated from at will.106_{If a public emergency exists, a fundamental requirement is that measures that derogate from}

ICCPR provisions may only be taken ‘to the extent strictly required by the exigencies of the situation’.107_{This requirement reflects the principle of proportionality and is the most important}

limitation on permissible derogation measures.

The requirement concerns the duration, geographical coverage and material scope of both the state of emergency and the measures. Both States and the Committee have to carefully analyze each situation and ICCPR article, based on an objective assessment of the actual situation.108_{This means}

a double test: first, if the derogation itself is strictly required by the exigencies of the situation, and second, if the measures are strictly required by the exigencies of the situation.109

First of all, when determining what kind of measures are strictly required by the exigencies of the situation, it is important to note that a clear limit of invoking public emergencies lies in the supplementary nature of derogations on the basis of article 4. In situations of a public emergency, in addition to the possibility of derogation, the possibilities of limiting certain rights according to the requirements of that provision itself, remain intact.110_{According to the Committee, prior to taking}

emergency measures, a State must first exhaust the limitations that are allowed under the ICCPR in normal situations.111_{Only after doing so, may derogation be possible. In situations, where mass}

demonstrations – including instances of violence – take place, governments often derogate from the right to freedom of movement (article 12) and freedom of assembly (article 21).112_The

Committee, however, has noted that in those instances limiting those rights is generally sufficient and thus no derogation would not be justified by the exigencies of the situation.113_{This suggests}

that the requirement that derogation must be strictly required by derogation itself is not easily met

106_{GenCom 29 (n 27) para 6; see section ‎3.2.1 about the condition that measures must be ‘strictly required by the} exigencies of the situation’.

107

ICCPR (n 5) art 4 (1); GenCom 29 (n 27) para 3. 108_{GenCom 29 (n 27) para 6.}

109

GenCom 29 (n 27) para 3 and 5. 110

For the difference between limitations and derogations see section ‎1.2.2. 111_{GenCom 29 (n 27) para 7; Siracusa Principles (n 61) para 53.}

112

3.2.2. Consistency with other obligations under international law

Under article 4 (1) ICCPR, no measures may be ‘inconsistent with [State Parties] other obligations under international law’.119_{This means that a State cannot lawfully take measures if taking such}

measures would breach its obligations either under customary international law or under the other international treaties it is a Party to. In particular, the Committee notes that States cannot breach rules of international humanitarian law.120_{If a norm under another treaty or customary law is}

114_{GenCom 29 (n 27) para 4.} 115

Concluding Observations on Israel 1998 (n 117), para 11ff.

117_{eg Brazil, Colombia, Malaysia, Syria, Thailand, Taiwan, South Korea and Uruguay; see further UN Doc A/35/40} (18 September 1980), para 247 in which the Committee noted concern about the state-of-siege which consisted for more than 30 years; UN Human Rights Committee, Concluding Observations on Israel (1998) UN Doc CCPR/C/79/Add.93 (18 August 1998) (Concluding Observations on Israel 1998), para 11ff about the concern about the state of emergency that has been in effect since Israel’s independence; see also Nowak (n 6) 98.

118

See section 3.2.4 about non-derogable rights. 119_{ICCPR (n 5) art 4 (1).}

120

GenCom 29 (n 27) paras 9-10; art 5 (2) ICCPR (n 5) reflects this principle as well (‘there shall be no […] derogation from any of the fundamental human rights recognized or existing in any State Party to the [ICCPR]

Civil disturbances : the limits of legally invoking a public emergency to derogate from human rights