The Interface Between Public Emergency Powers and International Law

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ARTICLE
The interface between public emergency

powers and international law
Dominic McGoldrick*
Downloaded from https://academic.oup.com/icon/article/2/2/380/665861 by guest on 30 November 2020

1. Introduction
This article is concerned with the interface between emergency powers and
international law. When are international law principles relevant? What guid-
ance or constraints does international law impose on emergency powers?
What is the relationship between national and international control mecha-
nisms? How do international law mechanisms supervise or monitor the
exercise of emergency powers and how effective are they?
2. Determining the applicable international law

Different states may be subject to different international legal obligations with
respect to emergencies.1 To determine the obligations a particular state is
under it would be necessary to answer a number of questions. First, are there
any obligations under customary international law and is that state bound by
them?2 Second, is the state a party to any international treaties that contain
limitations on emergency powers? These treaties would include the regional
human rights treaties—American Convention on Human Rights (ACHR), the
European Convention on Human Rights (ECHR), African Charter on Human
and Peoples Rights (AFHR), the universal UN human rights treaties, and the
international humanitarian treaties, in particular the four Geneva
Conventions of 1949 and the two protocols of 1977.3 Participation in those
treaties would also determine the answer to the third question, namely, the
degree of international supervision and monitoring to which the particular
state was subject in its exercise of emergency powers.
* Professor of Law, Liverpool Law School

1
For reviews of the particular standards and mechanisms, see JAIME ORAA, HUMAN RIGHTS IN STATES
OF EMERGENCY IN INTERNATIONAL LAW (Oxford Univ. Press 1992); JOAN FITZPATRICK, HUMAN RIGHTS IN
CRISIS (Univ. of Pennsylvania Press 1994); ANNA-LENA SVENSSON-MCCARTHY, THE INTERNATIONAL LAW
OF HUMAN RIGHTS AND STATES OF EXCEPTION (Nijhoff 1998).
2
See ORAA, supra note 1, at 214–72.
3
American Convention on Human Rights, opened for signature Nov. 22, 1969, 1144 U.N.T.S. 123,
entered into force July 18, 1978 [hereinafter ACHR]; Convention for the Protection of Human
© Oxford University Press and New York University School of Law 2004, 380
I.CON, Volume 2, Number 2, 2004, pp. 380–429
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The interface between public emergency powers and international law 381
3. A universal jurisprudence?
Instead of seeking to determine the relevant obligations for a particular state,
this essay seeks to determine the principles of international law that apply to
the greatest number of states. It does so by taking as its basis the obligations
under the International Covenant on Civil and Political Rights (ICCPR).4
Rightly or wrongly, the ICCPR is regarded as the primus inter pares of the uni-
versal international human rights treaties. It has been widely ratified by states
from all continents. As of November 2, 2003, there were 151 states parties.
For all those states, it constitutes a binding treaty obligation. For non-states

parties, the ICCPR is often used as evidence of customary international law
and of general principles of law. UN nontreaty mechanisms often apply the
ICCPR standards.5
The ICCPR itself has a number of monitoring mechanisms. First, states par-
ties submit periodic written reports on their implementation of the ICCPR
rights, including the effect on them of emergency powers.6 A committee of
independent experts, the Human Rights Committee (HRC), examines those
reports.7 The HRC conducts a “constructive dialogue” with the state party
Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221, entered
into force Sept. 3, 1953 [hereinafter ECHR]; African Charter on Human and Peoples’ Rights, opened
for signature June 27, 1981, 21 I.L.M. 9, entered into force Oct. 21, 1986; International Covenant
on Civil and Political Rights, G.A. Res. 2200 A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N.
Doc. A/6316 (1966) [hereinafter ICCPR]; International Covenant on Economic, Social and
Cultural Rights, G.A. Res. 2200 A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316
(1966); Arab Charter on Human Rights, Sept. 15, 1994, reprinted in 18 HUM. RTS. L.J. 151 (1997)
[hereinafter Arab Charter]; Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31;
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva
Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75
U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of
12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,
opened for signature Dec. 12, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International
Armed Conflicts, opened for signature Dec. 12, 1977, 1125 U.N.T.S. 609.
4
ICCPR, supra note 3.
5
See FITZPATRICK, supra note 1, at 115–77, on the ECOSOC Resolution 1503 procedure and theme
mechanisms; Jose Cutiliero, Human Rights Commission Special Representative, Report on Bosnia
and Former Republic of Yugoslavia, UN Doc. E/CN.4/2002/38/Add.1; UN Doc. A/56/40, Vol. I,
Annex III, ¶¶ 3–6.
6
See INEKE BOEREFIJN, THE REPORTING PROCEDURE UNDER THE COVENANT ON CIVIL AND POLITICAL RIGHTS
316–19 (Intersentia-Hart 1999); THE UN HUMAN RIGHTS TREATY SYSTEM IN THE 21ST CENTURY (Anne
F. Bayefsky ed., Brill 2000).
7
The HRC has had some noted constitutional scholars and judges as members, for example,
Sarath Cooray (Sri Lanka) and Walter Tarnopolsky (Canada).
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382 D. McGoldrick
through oral proceedings. At the conclusion of the examination, the HRC

adopts formal Concluding Observations.8 These often indicate the HRC’s legal
concerns or analysis. States parties can be asked to respond within one year to
urgent concerns where remedial action could be expected within a short time
frame.9 Derogations have often been identified as a matter of concern in
Concluding Observations.10 The HRC also adopts general comments on the
ICCPR, which are concerned with interpreting and explaining the covenant
obligations, thereby assisting states in meeting its requirements. The HRC has
adopted two general comments on states of emergency.11 The second moni-

toring mechanism is a system for individual petitions under the First Optional
Protocol to the ICCPR (OP1).12 This system has also been widely accepted. As
of November 2, 2003, there were 104 states parties, again from all conti-
nents.13 The HRC’s decisions on the admissibility and merits of petitions,
although nonbinding, determine the scope of ICCPR obligations. A number of
petitions have concerned actions taken in de jure or de facto states of emergen-
cies. Only on a few occasions has the state party concerned formally derogated
from treaty obligations. The HRC has consistently given a strict interpretation
to derogations and, in some cases, has determined that—notwithstanding the
derogation—the state was responsible for violations of the ICCPR.14 Adding
these implementation processes together allows for the extraction of a kind of
universal jurisprudence on rights, limitations, and derogations.15 This essay
thus argues for a universal jurisprudence on derogations.16 The jurisprudence
under national17 or regional systems18 and the standards asserted by
8
It has only done this since 1991.
9
See HRC Revised Rules of Procedure, rule 70(5), UN Doc. A/56/40, Vol. I, 168; Follow-Up to
Concluding Observations, UN Doc. A/57/40, Vol. I, Annex III.
10
UN Doc. A/57/40, Vol. I, ¶ 30.
11
General Comment 5(13), UN Doc. A/36/40, 110, adopted in July 1981, replaced by General
Comment 29(72), UN Doc. A/56/40, Vol. I, 202, adopted in July 2001 [hereinafter General
Comment 29].
12
See P. R. (SANDY) GHANDHI, THE HUMAN RIGHTS COMMITTEE AND THE RIGHT OF INDIVIDUAL
COMMUNICATION (Ashgate/Dartmouth 1998).
13
As of August 22, 2003, 1,200 communications (petitions) had been received from 74 countries.
14
UN Doc. A/57/40, Vol. I, ¶ 31.
15
There is a third implementation mechanism for interstate complaints under articles 41–42 of
the ICCPR, but it has never been used. See ICCPR, supra note 3, arts. 41, 42.
16
See SARAH JOSEPH ET AL., THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES,
MATERIALS, AND COMMENTARY 622–33 (Oxford Univ. Press 2000); BOEREFIJN, supra note 6, at 316–19.
17
See NIHAL JAYAWICKRAMA, THE JUDICIAL APPLICATION OF HUMAN RIGHTS LAW 202–14 (Cambridge
Univ. Press 2002).
18
See Robert Norris & Paula Desio Reiton, The Suspension of Guarantees, 30 AM. U. L. REV. 189
(1980); Brendan Mangan, Protecting Human Rights in National Emergencies: Shortcomings in the
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nongovernmental bodies19 are used to support or contrast with that universal

jurisprudence as seems appropriate.
4. Limitations and Derogations

In the universal and regional human rights treaties, there is a common lang-
uage that differentiates between limitations and derogations. A number of
ICCPR rights are subject to express or implied limitation. The scope of those limit-

ations is specified in the text of the ICCPR and determined by their interpreta-
tion by states parties and by the HRC.20 The idea of limitations is based on the
recognition that most human rights are not absolute but rather reflect a bal-
ance between individual and community interests.21 Consistent with this is the
possibility that the limitations could be permanent. The ICCPR allows substan-
tial scope for states parties to respond to emergency situations by limiting
specific rights rather than derogating from them.22 A derogation of a right or
an aspect of a right is its complete or partial elimination as an international
obligation.23 Rather than there being hard-and-fast boundaries between limi-
tations and derogations, there tends to be an overlap with similar principles
European System and a Proposal for Reform, 10 HUM. RTS. Q. 372 (1988); Colin Warbrick, The
Principles of the European Convention on Human Rights and the Response of States to Terrorism, 7 EUR.
HUM. RTS. L. REV. 287 (2002).
19
Symposium, The Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR,
7 HUM. RTS. Q. 1 (1985) [hereinafter Siracusa Principles], reprinted in UN Doc. E/CN.4/1985/4
(Sept. 1984); SUBRATA ROY CHOWDHURY, RULE OF LAW IN A STATE OF EMERGENCY: THE PARIS MINIMUM
STANDARDS OF HUMAN RIGHTS NORMS IN A STATE OF EMERGENCY (St. Martin’s Press 1988) [hereinafter
PARIS STANDARDS]; Anthony Carty, Human Rights in a State of Exception: The I.L.A. Approach and the
Third World, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 60 (Tom Campbell et al. eds., Blackwell
1986); Joan Hartman, Working Paper for the Committee of Experts on the Article 4 Derogation
Provision, 7 HUM. RTS. Q. 89 (1985).
20
See, e.g., General Comment 23 on article 27 (minority rights), UN Doc. A/49/40, Vol. I, Annex V.
21
See Erica Daes, The Individual’s Duties to the Community and the Limitations on Human Rights
and Freedoms under Article 29 of the U.D.H.R., UN Doc. E/CN.4/Sub.2/432/Rev.2 (1983) (part 3
of which deals with derogations).
22
See Alexandre Kiss, Permissible Limitations on Rights, in THE INTERNATIONAL BILL OF RIGHTS: THE
COVENANT ON CIVIL AND POLITICAL RIGHTS 290 (Louis Henkin ed., Columbia Univ. Press 1980) [here-
inafter INTERNATIONAL BILL OF RIGHTS].
23
General Comment 29, supra note 11, ¶5; text accompanying note 170 infra (suggesting that in
practice no provision will be entirely inapplicable to the behavior of the state party so there will
not be complete elimination). See Joan Hartman, Derogations from Human Rights Treaties in Public
Emergencies, 22 HARV. INT’L L.J. 1 (1981); Rosalyn Higgins, Derogations under Human Rights Treaties,
48 BRIT. Y.B. INT’L L. 281 (1978); Leslie Green, Derogations of Human Rights in Emergency Situations,
16 CAN. Y.B. INT’L L. 92 (1978); PAUL SIEGHART, THE INTERNATIONAL LAW OF HUMAN RIGHTS 110–18
(Oxford Univ. Press 1983).
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384 D. McGoldrick
(e.g., proportionality, nondiscrimination) being applicable.24 Many of the

limitations are used in dealing with emergency situations, for example, restric-
tions on freedom of information based on national security considerations.
However, derogation from some ICCPR obligations in emergency situations is
legally distinct from restrictions or limitations allowed even in normal times under
several provisions of the ICCPR.25 The logic of the ICCPR is that, if possible, states
should limit rights rather than derogate from them.26 A number of states parties
have not derogated in states of emergency on the basis that the limitations gave
them sufficient scope, for example, Cyprus,27 Suriname,28 Mexico,29 and Iraq.30

In May 1976, the U.K. gave notice under article 4(3) of the ICCPR to the UN
secretary-general of the existence in the U.K. of a public emergency threaten-
ing the life of the nation arising from campaigns of organized terrorism related
to Northern Irish affairs. The notice indicated the intention of the government
to take and continue measures that might be inconsistent with certain provi-
sions of the covenant and would, to that extent, derogate from the U.K.’s obli-
gations. In so far as any of the measures taken were inconsistent with
the provisions of articles 9, 10(2), 10(3), 12(1), 14, 17, 19(2), 21, or 22 of the
covenant, the U.K. derogated from those provisions.31 In August 1984, the
U.K. withdrew its notice of derogation. The notification stated, inter alia, that
the United Kingdom Government, taking account of developments in
the situation since the notice . . . [of derogation] . . . and in measures
taken to deal with it, [has] come to the conclusion that it is no longer
24
See IAIN CAMERON, NATIONAL SECURITY AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS (Iustus
Forlag 2000) (particularly sections 4.5, 4.6, and 4.10 on the overlap of human rights law and
international humanitarian law).
25
General Comment 29, supra note 11, ¶ 5, citing ICCPR article 21 as an example.
26
The HRC may find that the limitation is not justified. In Tae Hoon Park v. Republic of Korea, the
HRC found that restrictions on freedom of expression based on the national security situation and
the threat from North Korean Communists were not compatible with the limitations in article
19(3) of the ICCPR because they were not sufficiently precise. UN Doc. A/54/40, Vol. II, Annex
XI(K).
27
UN Doc. A/34/40, ¶ 383 (1979).
28
UN Doc. A/35/40, ¶ 297 (1980).
29
“[A]lthough a state of emergency has not been proclaimed in areas of conflict, the population
has suffered derogations from rights corresponding to a state of emergency, such as control points
that impede freedom of movement.” UN Doc. A/54/40, Vol. I, ¶ 324.
30
See UN Doc. A/46/40, ¶¶ 618–56.
31
HUMAN RIGHTS: STATUS OF INTERNATIONAL INSTRUMENTS 84 (United Nations 1987) [hereinafter
HUMAN RIGHTS: STATUS]; Hartman, supra note 23, at 19–20 (criticizing the covenant’s requirements
that notice only need be given of the provisions from which there have been derogations rather
than of the derogation measures taken as under article 15(3) of the ECHR). Hartman also refers
to the “U.K.’s ‘shotgun’ approach of suspending all articles even remotely implicated by the emer-
gency measures.” Id.
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necessary, in order to comply with its obligations under the Covenant, for
the United Kingdom to continue, at the present time, to avail itself of the
right of derogation under article 4.32
In addressing the HRC, the state representative stated that the government had
withdrawn the notice of derogation because it believed that the rights in the
covenant were fully observed throughout the United Kingdom. “That did not
mean that there was no longer an emergency but simply that there had been
changes in the situation in Northern Ireland and in the measures taken to deal
with it.”33 The state representative indicated why the U.K. felt able to withdraw

its derogations.34 After the examination of its second periodic report, the U.K.
has derogated from article 9(3) of the covenant in response to the judgment of
the European Court in Brogan and Others v. United Kingdom.35 The derogation
was withdrawn for U.K. territory in 2001 after new legislation was introduced.36
5. The ICCPR and derogations

The ICCPR expressly recognizes that there can be emergency situations in
which derogation from ICCPR rights can be justified.37 In terms of historical
experience38 and international practice, this is a realistic view.39 As the ICCPR
provides for primary obligations of states parties in states of emergency, they
cannot then have recourse to the principles of state responsibility that could
32
UN Doc. CCPR/C/2/Add.8, App. II, 2. The U.K. derogations under article 15 of the ECHR were
withdrawn at the same time. See infra n.188.
33
UN Doc. CCPR/C/SR.594, ¶ 3.
34
Id. ¶¶16–33.
35
11 Eur. H.R. Rep. 117 (1989). The third periodic report of the U.K. was submitted in October
1989 and dealt very briefly with article 4. See UN Doc. CCPR/C/58/Add.6, ¶¶ 57–60; UN Doc.
A/40/40, ¶ 529.
36
UN Doc. A/56/40, Vol. I, ¶ 32.
37
For other derogation provisions, see ECHR, supra note 3, art. 15; AMHR, supra note 3, art. 27;
Arab Charter, supra note 3, art. 4(C). Note that there are no derogation provisions in the ICESCR,
the AFR, and the CRC. See supra note 3.
38
“The historical origin of the institution [of a state of emergency] goes back to Roman times, and
is found in the nomination of a ‘dictator’ in exceptional circumstances of external attack or inter-
nal rebellion.” ORAA, supra note 1, at 7.
39
See Symposium, Security of the Person and Security of the State: Human Rights and Claims of
National Security, 9 YALE J. WORLD PUB. ORD. 1 (1982); BARRY BUZAN, PEOPLE, STATES AND FEAR: AN
AGENDA FOR INTERNATIONAL SECURITY IN THE POST-COLD WAR ERA (Longman 1991); Nicole Questiaux,
Study of the Implications for Human Rights of Recent Developments Concerning Situations
Known as States of Siege or Emergency, UN Doc. E/CN.4/Sub.2/1982/15 (July 1982);
International Commission of Jurists, States of Emergency: Their Impact on Human Rights
(International Commission of Jurists 1983) [hereinafter ICJ Study]; THEODOR MERON, HUMAN
RIGHTS IN INTERNAL STRIFE: THEIR INTERNATIONAL PROTECTION (Grotius 1987).
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386 D. McGoldrick
otherwise operate to preclude wrongfulness (for example, self-defense or

necessity).40 Similarly, there is a general principle of international law that a
state cannot rely on its constitution, constitutional order, or other internal law
as justification for its failure to perform a treaty.41 In ratifying the covenant, a
state party accepts the obligations contained in article 2 of the ICCPR to ensure
to all individuals subject to its jurisdiction the rights recognized in the covenant
and to take the necessary steps to adopt, if they do not already exist, measures
to give effect to those rights.42 The options for a state with a constitutional
incompatibility are (1) not to become a party to the treaty or (2) to enter a

reservation if that is legally possible, or (3) to change the constitution. In 2001,
the HRC expressed concern about the claim by Guatemala that the principles of
its Constitution prevent it from giving effect to the provisions of the ICCPR, as
well as concern, for example, about the fact that personal jurisdiction has been
maintained for members of the military and that some rights of members of
indigenous communities are not being recognized. The HRC stated that “[t]he
State party should not put forward the limitations of its Constitution as a rea-
son for non-compliance with the Covenant, but should draw up the necessary
reforms to achieve such compliance.”43 The HRC expressed concern that the
“notwithstanding” clause in section 33 of the Canadian Constitution did not
appear to be compatible with article 4 of the ICCPR.44
One of the tasks of the HRC is to monitor the relevant national laws with
respect to whether they enable and secure compliance with article 4.45 States
parties are directed to include in their reports “sufficient and precise informa-
tion about their law and practice in the field of emergency powers.”46 This has
generally involved a kind of comparative analysis between the terms of the
covenant and the terms of the respective state’s constitution and legislative
acts.47 The HRC recommended that Gabon “urgently adopt and incorporate all
relevant provisions of Article 4 of the Covenant into the Constitution.”48 In
40
See THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY (James Crawford ed.,
Cambridge Univ. Press 2002).
41
See Vienna Convention on the Law of Treaties, art. 27, May 23, 1969, 1155 U.N.T.S. 331,
entered into force Jan. 27, 1980 [hereinafter VCLT].
42
See Anje Seibert-Fohr, Domestic Implementation of the International Covenant on Civil and Political
Rights Pursuant to its Article 2 para. 2, 5 MAX PLANCK Y.B. U.N. L. 399 (2001).
43
UN Doc. A/56/40, Vol. I, ¶ 85(10)–(11).
44
UN Doc. A/46/40, ¶¶ 56–58, 99. In Singer v. Canada, UN Doc. A/49/40, 155, Canada submitted
that section 33 was compatible with Canada’s obligations under the ICCPR, in particular with
article 4. The HRC’s decision did not deal with the arguments on section 33.
45
UN Doc. A/46/40, ¶¶ 56–58, 99.
46
General Comment 29, supra note 11, ¶ 2.
47
For an analysis of the AMR on similar lines, see Norris & Reiton, supra note 18.
48
UN Doc. A/52/40, Vol. I, ¶ 136.
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2001, the HRC was concerned that article 17 of the Croatian Constitution,
dealing with a state of emergency, was not entirely compatible with the
requirements of article 4 of the covenant,
in that the constitutional grounds justifying a derogation are broader
than the “threat to the life of the nation” mentioned in article 4; that
measures of derogation are not restricted to those strictly required by the
exigencies of the situation; and that nonderogable rights do not include
the rights under article 8, paragraphs 1 and 2, article 11, and article 16
of the Covenant. Furthermore, the committee is concerned that article

101 of the Constitution, which allows the president to issue decrees in
“the event of a state of war or an immediate threat to the independence
and unity of the State,” has been employed so as to derogate de facto
from covenant rights in a manner that would seem to circumvent the
restrictions in article 17 of the Constitution.49
Croatia was to ensure that its constitutional provisions regarding a state of
emergency were compatible with article 4 and that, in practice, no derogation
from rights should be permissible unless the conditions of article 4 had been
met. In 1996, the HRC recommended to Nigeria that its measures, which abro-
gated or suspended constitutional rights, themselves be abrogated and any
future derogation comply strictly with article 4 of the ICCPR. In 1995, with
regard to Estonia, the HRC noted that although there were constitutional pro-
visions related to a state of emergency, no legislation had been adopted in con-
formity with the requirements of the ICCPR.50 It urged the enactment of the
necessary legislation. Laws governing states of emergency should be clear and
precise.51
Although some states would have preferred a general limitation clause or a
series of limitations clauses, the inclusion of an article on derogations was not
controversial,52 though there was disagreement about its terms and scope.53
49
UN Doc. A/56/40, Vol. I, ¶ 80(9).
50
UN Doc. A/51/40, Vol. I, ¶ 114.
51
UN Doc. CCPR/C/79/Add.38, ¶ 7 (Azerbaijan), UN Doc. C/79/Add.42, ¶ 9 (Nepal), UN Doc.
A/51/40, Vol. I, ¶ 197 (Zambia).
52
“It was important that states parties should not be left free to decide for themselves when and
how they would exercise emergency powers because it was necessary to guard against states abus-
ing their obligations under the Covenant. Reference was made to the history of the past epoch dur-
ing which emergency powers had been invoked to suppress human rights and to set up dictatorial
regimes.” UN Doc. A/2929, ¶ 37.
53
On the drafting of article 4, see UN Doc. A/2929, ch.5, ¶¶ 35–47; UN Doc. A/5655, ¶¶
37–56; MARC BOSSUYT, GUIDE TO THE “TRAVAUX PRÉPARATOIRES” OF THE ICCPR 81–102 (Nijhoff 1987);
THEODOR MERON, HUMAN RIGHTS LAW-MAKING IN THE UNITED NATIONS 86–100 (Oxford Univ. Press
1986).
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388 D. McGoldrick
Derogations are addressed in article 4 of the ICCPR.54 Article 4 provides:

1. In a 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 obliga-
tions under the present Covenant to the extent strictly required by the
exigencies of the situation, provided that such measures are not incon-
sistent with their other obligations under international law and do not
involve discrimination solely on the ground of race, colour, sex, lan-
guage, religion or social origin.

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 pres-
ent 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 termi-
nates such derogation.55
Article 4 is a key provision of the ICCPR.56 Its terms regulate the measures
open to states parties in the most critical of human rights situations, public
emergencies.57
A derogation provision raises, in an especially acute way, issues of the scope
of international implementation procedures and their relationship with the
concept of state sovereignty.58 The response of a state to a public emergency is
an acid test of its commitment to the effective implementation of human rights.
Experience demonstrates that such situations are commonly characterized by
severe human rights violations, including rights that are asserted to be non-
derogable.59 States of emergency and their effects on human rights increas-
ingly attracted international attention in the 1970s and 1980s, particularly
54
See Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations,
in INTERNATIONAL BILL OF RIGHTS, supra note 22, at 78–86; P. R. (Sandy) Ghandhi, The Human Rights
Committee and Derogation in Public Emergencies, 32 GERMAN Y.B. INT’L L. 323 (1989).
55
ICCPR, supra note 3, art. 4.
56
See MANFRED NOWAK, UN COVENANT ON CIVIL AND POLITICAL RIGHTS 72–93 (Engel 1993).
57
“In times of emergency, the protection of human rights becomes all the more important, par-
ticularly those rights from which no derogation can be made.” General Comment 5(13), supra note
11, ¶ 3. See Siracusa Principles, supra note 19, at 59–60.
58
See A. W. BRIAN SIMPSON, HUMAN RIGHTS AND THE END OF EMPIRE (Oxford Univ. Press 2001).
59
See supra note 1.
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within the United Nations.60 It appears that they have become less of a concern
in light of the greater spread of democracy since the end of the Cold War.61
State parties are obliged to ensure that their rules on states of emergency
are in full conformity with all the requirements of the covenant.62 While not
questioning the right of states parties to derogate from certain obligations in
states of emergency, in conformity with article 4 of the covenant, the HRC
always urges states parties to withdraw the derogations as soon as possible.63
Even when derogating from the ICCPR, the ultimate objective for the state
must be to return to normalcy as soon as possible.

Article 4 of the Covenant is of paramount importance for the system of
protection for human rights under the Covenant. On the one hand, it
allows for a State party unilaterally temporarily to derogate 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 pre-
dominant objective of a State party derogating from the Covenant.64
As noted, it was impossible for the ICCPR not to recognize that derogations
may be necessary in public emergencies. Rather than approach the matter
from the basis that exceptional situations cannot be the subject of legal regu-
lation, international human rights law accepts the idea of derogations but
then overlays it with an integral set of principles that constrain their scope and
operation—necessity, proportionality, nondiscrimination, and consistency
with other obligations under international law. Many of these general princi-
ples are familiar to constitutional lawyers. Indeed, international human rights
law is often like a process of judicial review applying principles and rules. In
addition, there are some articles that are expressly nonderogable, and some
articles that have been interpreted as being wholly or partly nonderogable
because of their customary international law or jus cogens (international
public policy norm) status.
60
Beginning in 1987, the UN Sub-Commission on the Prevention of Discrimination and the
Protection of Minorities prepared an annual report of the respect for rules governing the declara-
tion of states of exception. The report followed the definition and guidelines in the study by
Questiaux, supra note 39, and attempted to evaluate the effects of states of emergency on the prac-
tical observance of human rights. See 39 REV. INT’L COMM’N JURISTS 29 (1987).
61
By 2001, approximately 63 percent of states were democratic. See also Joan Fitzpatrick,
Protection Against Abuse of the Concept of “Emergency,” in HUMAN RIGHTS: AN AGENDA FOR THE NEXT
CENTURY 203 (Louis Henkin & John Hargrove eds., American Society of International Law 1994).
62
UN Doc. A/56/40, Vol. I, ¶ 82(16) (Netherlands Antilles).
63
UN Doc. A/56/40, Vol. I, ¶ 30.
64
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390 D. McGoldrick
6. State reports on article 4

When the HRC was preparing guidelines for the submission of reports under
article 40(1)(a) a number of members expressed the view that the subject of
derogations should not be mentioned, particularly because to do so might be
misinterpreted as weakening the provision in article 4(3) of the covenant that
requires immediate notification to the secretary-general of any derogation and
of the reasons for it. Unfortunately, it was decided not to refer expressly to dero-
gations in the general guidelines.65 The objections had confused two separate
obligations, to report (article 40(1)) and to notify (article 4(3)). The defect was

remedied when the HRC adopted Consolidated Guidelines for State Reports
under the ICCPR.66 These require that “[t]he date, extent and effect of, and
procedures for imposing and for lifting any derogation under article 4 should
be fully explained in relation to every article of the Covenant affected by the
derogation.”67
In the first decade or so of HRC practice, very few state reports provided
adequate information on article 4, and in almost all cases members asked
questions, made comments, and requested further additional information.68
The primary emphasis in much of the HRC’s consideration has appeared to be
on the collection of further detailed information relevant to article 4.
Any reporting procedure is dependent on information. At its worst, there
would be no information in a state report;69 or, alternatively, no questions
made or comments put by members regarding article 4; inadequate and
sporadic questioning; inadequate replies by state representatives or no reply at
all;70 a failure by states to supply such information in supplementary
reports;71 the absence of HRC procedures to determine whether or not ques-
tions have received a satisfactory reply; an initial failure of the HRC to develop
procedures for requesting ad hoc reports from states parties undergoing states
of emergency; or no formal determinations of whether the requirements of
article 4(1) and (3) have been satisfied or the terms of article 4(2) have been
65
See the discussion in UN Doc. CCPR/C/SR.43, ¶¶ 54–57; UN Doc. CCPR/C/SR.44,
¶¶ 1–9; UN Doc. A/32/44, ¶ 138. By implication, the guidelines covered derogations, see part II, b,
at ch. 3, ¶ 3.3.
66
UN Doc. A/56/40, Vol. I, Annex III (as amended at the seventieth session, October–November
2000 (CCPR/C/GUI/Rev.2)).
67
Id. at C3.
68
See General Comment 5(13), supra note 11, ¶ 2.
69
See, e.g., the initial USSR report, UN Doc. CCPR/C/1/Add. 2.
70
E.g., the representative of Iraq (UN Doc. CCPR/C/SR.203; UN Doc. CCPR/C/SR.204) did not
reply to questions concerning article 4. UN Doc. CCPR/C/SR.199, ¶13 (Vincent Evans).
71
States parties have often failed to supply promised supplementary reports.
Icon-73.qxd 3/19/04 11:12 AM Page 391
violated.72 In 1981, the HRC summed up its experience under the reporting
procedure as follows:
States parties have generally indicated the mechanism provided in their
legal systems for the declaration of a state of emergency and the appli-
cable provisions of the law governing derogations. However, in the case
of a few States which had apparently derogated from Covenant rights, it
was unclear not only whether a state of emergency had been officially
declared but also whether rights from which the Covenant allows no
derogation had in fact been derogated from and further whether the

other States parties had been informed of the derogations and of the rea-
sons for the derogations.73
The HRC’s procedures appear in a better light in the committee’s consideration
of the second and subsequent periodic reports. The quality of state reports also
tends to improve as successive periodic reports are presented. The quality of
the dialogue improves, in turn. Attention has been more adequately focused
on states of emergency and the concomitant situations subjected to a more
critical and exacting analysis as was the case with the United Kingdom, for
example. The consideration by the committee of the second periodic reports
tends to be done in a more intelligible and systematic manner. Outside sources
of information are frequently used when evaluating states of emergency. The
continued stress on the importance of article 4(3) appears to be eliciting more
response from states parties.
It was patently inadequate for the HRC to be unable to consider derogations
made by states parties except in accordance with the established five-year
schedule for reporting.74 The HRC’s initial failure to resolve this matter meant,
for example, that the state of emergency in Poland from 1981 to 1983 was
never considered by the HRC while the emergency was in effect. The HRC had
no opportunity to enter into a dialogue with Poland until the state of emer-
gency had ended. Moreover, states parties often request a postponement of the
consideration of their report if a state of emergency does exist. Since 1992, the
HRC has requested special reports from states parties outside of the normal
periodic report, and the existence of a state of emergency can be grounds for
such a request. Yugoslavia was the first state to receive such a request, followed
by Bosnia, Croatia, and then the Former Republic of Yugoslavia. The HRC indi-
cates what information it wishes in the special reports, for example, with
regard to a selected number of articles.
It is quite clear, then, that the HRC sees its role as that of examining
the compliance of states parties with the provisions of article 4 of
72
Cf. ICJ Study, supra note 39.
73
General Comment 5(13), supra note 11, ¶ 2.
74
Id. See Siracusa Principles, supra note 19, princ. 73.
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392 D. McGoldrick
the ICCPR.75 There has been no question of simply accepting the judgment
and determinations of the national authorities as conclusive.76
7. The First Optional Protocol (OP1)

The approach of the HRC under OP1 has complemented the approach pre-
vailing under the reporting process. The HRC has clearly put the burden of
proof on the derogating state to show compliance with the requirements of
article 4.77 Such an approach is necessarily dictated by the HRC’s minimal

fact-finding opportunities in the absence of oral hearings and fact-finding mis-
sions. An international supervisory role is assumed, in order to see to it that
states parties live up to their commitments under the covenant.78 Derogation
provisions are strictly examined in terms of necessity, proportionality, and the
specific provisions in article 4.
8. Article 4(1)
8.1. A public emergency that threatens the life of the nation
The existence of a situation amounting to a public emergency that threatens
the life of the nation is a fundamental condition that must be met before a state
can invoke article 4.79 There has been no attempt by the HRC to provide an
abstract definition of or criterion for a “public emergency.”80 It has, however,
made the point that “[n]ot every disturbance or catastrophe qualifies as a pub-
lic emergency which threatens the life of the nation, as required by article 4,
paragraph 1.”81 The HRC has referred to a number of situations that could, in
principle, constitute a “state of emergency” (note that it uses this language
rather than “public emergency”)—international and noninternational armed
conflict, a natural catastrophe, a mass demonstration including instances of
75
See Siracusa Principles, supra note 19, princ. 71.
76
See id. princ. 57.
77
See infra text accompanying note 126.
78
79
80
Cf. the criteria adopted by the European Court in the Lawless v. Ireland, Eur. Ct. Hum. Rts. (Series A)
No. 3 (1961), ¶¶ 23–30. See Siracusa Principles, supra note 19, princ. 39–41. It is interesting to
note the following explanation in the second periodic report of Australia concerning whether a
state of emergency in Queensland, as a result of a strike by electricity supply workers in the south-
east of that state should have resulted in a notification of derogation under article 4(3) of the
Covenant: “as the Queensland situation was confined to that State, it was not an emergency
‘threatening the life of the nation’ within the terms of article 4, paragraph 3 of the Covenant.” UN
Doc. CCPR/C/42/Add.2, at 36.
81
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violence, or a major industrial accident.82 Wars are clearly included even

though the notion of war per se was not included in article 4 because of the
argument that “the Covenant should not envisage, even by implication, the
possibility of war, as the United Nations was established with the object of
preventing war.”83 The HRC has stated that “[w]omen are particularly vulner-
able in times of internal or international armed conflicts.”84 States are
required to inform the HRC of all measures taken during these situations to
protect women from rape, abduction, and other forms of gender-based
violence.85

While economic circumstances per se may not justify a derogation, their
consequences may do so.86 In 2001, Ecuador derogated on the basis of a state
of emergency declared for the entire territory of the republic. The measure was
adopted to overcome the adverse consequences of the economic crisis affecting
Ecuador, which had created a situation of serious internal unrest. The state of
emergency was lifted after one week.87
The qualification that the “public emergency” must threaten the “life of the
nation” was intended to limit the possibility of abuse by states. Reference to “life
of the nation” was preferred to expressions referring to the “people” because of
doubts about whether or not the latter expression denoted all of the people or
just some of them. The European Court of Human Rights has considered that
the natural and customary meaning of “public emergency threatening the life
of the nation” was sufficiently clear. It referred to “a situation of crisis or
emergency which affects the whole population and constitutes a threat to the
organized life of the community of which the state is composed.”88 The threat
to the life of the nation could be to the physical population,89 its territorial
82
Id. ¶¶ 3, 5. In 1989, Canada declared a state of emergency when major forest fires had affected
the territory of Manitoba. UN Doc. A/46/40, ¶ 59. The measures taken by Spain under a state of
emergency were in response to terrorist threats. UN Doc. A/46/40, ¶¶ 150–52.
83
UN Doc. A/2929, supra note 53, ¶ 39.
84
General Comment 28, Equality of Rights Between Men and Women, U.N. Doc.
CCPR/C/21/Rev.1/Add.10, ¶ 8 (2000).
85
Id.
86
Siracusa Principles, supra note 19, princ. 41, states that, “Economic difficulties per se cannot
justify derogation measures.”
87
UN Doc. A/56/40, Vol. I, ¶ 33. There had been a similar derogation in 1999, UN Doc. A/55/40
Vol. I, ¶ 30.
88
Lawless, Eur. Ct. Hum. Rts. (Ser. A) No. 3 (1961), ¶ 28.
89
In 2001, Guatemala derogated on the basis of an escape, from a maximum security prison, of
seventy-eight prisoners considered extremely dangerous, in whose trials a large number of
Guatemalan citizens were involved as witnesses or against whom many citizens had filed com-
plaints. Those citizens were said to be subject to threats and intimidation by the escaped prisoners.
UN Doc. A/56/40, Vol. I, ¶ 34.
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394 D. McGoldrick
integrity,90 or to the functioning of the organs of the state.91 The specific crisis
or emergency can be geographically limited and still affect the whole popula-
tion. In 2001, Sudan justified the extension of a state of emergency by
the “exceptional circumstances prevailing in some regions” of the country that
were considered to represent a serious threat to the stability and security of
the country.92 In 2002, Peru derogated on the basis of a state of emergency
in the province of Arequipa.93
The nomenclature used by a state does not determine compatibility with
article 4. The HRC’s analysis concentrates on the precise legal effects of the dif-

ferent forms and degrees of public emergency; for example, state of siege,94
state of alarm,95 economic state of emergency,96 state of war,97 or state of
national necessity.98 Had constitutional or legislative provisions been partially
suspended or abrogated altogether? The HRC indicates concern at general
restrictions and limitations based on vague and undefined concepts—such as
public order, public safety, public security, necessity, national security, interna-
tional terrorism, latent subversion, perverse delinquency, and internal distur-
bance—and requested explanations as to the domestic understandings of
these concepts.99 It has stressed that measures derogating from the provisions
of the covenant must be of an exceptional and temporary nature,100 and “may
only last as long as the life of the nation concerned is threatened.”101 Can
there be a permanent threat to the life of the nation? After September 11?
90
In 1999, Namibia derogated on the basis of a state of emergency in the Caprivi region, which it
submitted threatened the life of the nation and the constitutional order. UN Doc. A/55/40, Vol. I, ¶ 29.
91
92
UN Doc. A/57/40, Vol. I, ¶ 32.
93
UN Doc. A/57/40, Vol. I, ¶ 35.
94
UN Doc. A/45/40, Vol. I, ¶ 219; UN Doc. A/57/40, Vol. I, ¶ 34 (Argentina); UN Doc. A/52/40,
Vol. I, ¶ 204 (Bolivia); UN Doc. CCPR/C/SR.222, ¶ 3 (Colombia).
95
UN Doc. CCPR/C/SR.142, ¶ 5 (Spain).
96
UN Doc. CCPR/C/SR.442, ¶ 7 (Nicaragua).
97
UN Doc. CCPR/C/SR.170, ¶ 84 (Finland); reply at UN Doc. CCPR/C/SR.172, ¶ 7.
98
UN Doc. CCPR/C/SR.83, ¶ 27 (Madagascar); UN Doc. CCPR/C/SR.84, ¶ 11 (Madagascar).
99
UN Doc. CCPR/C/SR.355, ¶ 28 (Uruguay); UN Doc. CCPR/C/SR.356, ¶¶ 31–32 (Uruguay); UN
Doc. CCPR/C/SR.127, ¶¶ 23–44; UN Doc. CCPR/C/SR.128, ¶ 17 on Chile, UN Doc.
CCPR/C/SR.888, ¶¶ 44–48 (New Zealand); UN Doc. A/52/40, Vol. I, ¶ 204 (Bolivia). See Siracusa
Principles, supra note 19, princ. 22–34.
100
101
General Comment 5(13), supra note 11, ¶ 3. See Siracusa Principles, supra note 19, princ. 48.
The European Commission of Human Rights stated in the De Becker case that continued deroga-
tion of rights will not be justifiable under the convention after the emergency has ceased. See De
Becker v. Belgium, 1 Eur. H.R. Rep. 43 (1979). The institutionalization of emergency measures
into ordinary laws is a technique used by many states, e.g., Chile and Syria. The HRC was disturbed
Icon-73.qxd 3/19/04 11:12 AM Page 395
The HRC has not strictly confined its considerations to events after the entry
into force of the ICCPR for the state concerned. State representatives have fre-
quently been asked for information concerning any state of emergency occur-
ring at any time during the existence of the state or in some more recent
period, for example, the last twenty years.102 In 2001, the HRC expressed con-
cern that a Syrian Legislative Decree of 1963 declaring a state of emergency
had remained in force ever since that date, placing the territory of the Syrian
Arab Republic under a quasi-permanent state of emergency, thereby jeopard-
izing the guarantees of article 4 of the covenant. It regretted that the delega-

tion had not provided details of the application of the state of emergency in
actual situations and cases. The committee also noted in the information given
by the state party’s delegation, that the state of emergency was rarely put into
effect, and recommended that the emergency be formally lifted as soon as
possible.103
The HRC uses any relevant examples to determine whether appropriate
national procedures and mechanisms existed to ensure compliance with the
terms of article 4, and whether any elements of emergency regimes had per-
sisted after their termination (this is a common feature of emergency laws).104
Similarly, the HRC expresses concern at the constitutional or legislative pro-
posals that would be inconsistent with article 4 of the ICCPR and recommends
their withdrawal or amendment.105
8.2. The existence of the emergency must be officially proclaimed

The second fundamental condition that must be satisfied before article 4 can
be invoked is that the existence of a state of emergency must have been offi-
cially proclaimed.106 The requirement of proclamation “is essential for the
by the fact that the state of emergency proclaimed by Egypt in 1981 was still in effect in 2002,
meaning that the state party has been in a semipermanent state of emergency ever since. It
recommended that Egypt should consider reviewing the need to maintain the state of emergency.
UN Doc. CCPR/CO/76/EGY, ¶ 6.
102
See UN Doc. CCPR/C/SR.199, ¶ 13 (Iraq); UN Doc. CCPR/C/SR.200, ¶ 2 (Iraq); UN Doc.
CCPR/C/SR.222, ¶ 49 (Colombia); UN Doc. CCPR/C/SR.387, ¶ 11 (Mexico); UN Doc. A/45/40,
Vol. I, ¶ 463 (Vietnam).
103
UN Doc. A/56/40, Vol. I, ¶ 81(6)–(7).
104
UN Doc. CCPR/C/SR.118, ¶ 12 (Ecuador); UN Doc. A/45/40, Vol. I, ¶¶ 176–77 (Chile).
105
See UN Doc. A/52/40, Vol. I, ¶¶ 286, 299 (Colombia).
106
ORAA, supra note 1, at 34–57. The requirement of an official proclamation in article 4 ICCPR
represents an important advance on article 15 of the ECHR. In Lawless v. Ireland, Eur. Ct. Hum. Rts.
(Ser. A) No. 3 (1961), the European Court noted that “the Convention does not contain any spe-
cial provision to the effect that the Contracting State concerned must promulgate in its territory
the notice of derogation addressed to the Secretary-General of the Council of Europe.” Id. ¶ 47. See
Resolution 56(16) of the Council of Ministers, EUROPEAN COURT OF HUMAN RIGHTS: COLLECTED TEXTS
200 (1987) [hereinafter ECHR: COLLECTED TEXTS].
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396 D. McGoldrick
maintenance of the principles of legality and rule of law at times when they
are most needed.”107 Proclamation is aimed at transparency, preventing arbi-
trary derogations, and reducing the incidence of de facto emergencies. If the
consequences of a state of emergency could entail derogation from any provi-
sion of the covenant then in making the proclamation “[s]tates must act
within their constitutional and other provisions of law that govern such
proclamation and the exercise of emergency powers.”108 In Brannigan &
MacBride v. United Kingdom,109 the applicants argued that the U.K. had never
officially proclaimed its state of emergency relating to Northern Ireland. The

U.K. argued, inter alia, that the existence of the emergency and the fact of
derogation were publicly and formally announced by the secretary of state in
the House of Commons. It also noted that there had been no suggestion by the
HRC that its derogation did not satisfy the terms of article 4. The European
Court considered that there was no basis for the applicants’ argument. The
statement in Parliament was formal in character and made public the govern-
ment’s intentions as regards derogation. The statement was well in keeping
with the notion of an official proclamation.110
Article 4 does not specify which state organ should be competent to pro-
claim a state of emergency. In practice, it is a matter for the executive and/or
the legislature. States are asked how a public emergency is officially pro-
claimed, who is entitled to make the proclamation, on what grounds, and by
what procedures?111 Was the official proclamation of a state of emergency a
precondition to the constitutionality or legality of the measures taken there-
under?112 Particular attention has been directed to the circumstances that
permit the proclamation of a public emergency, for example, political, social,
economic factors, or natural disasters.113
The HRC has sought to determine the role and function of national
authorities charged with the implementation of the state of emergency.114 It
has expressed concern at the concentration of power in the hands of a single
individual, for example, the king, president, or prime minister, or in the hands
107
108
Id. The HRC expressed concern that urgent legislation that had no constitutional basis was
permitted under article 165 of the Swiss Constitution. UN Doc. A/57/40, Vol. I, ¶ 76(7).
109
17 Eur. H.R. Rep. 539 (1993).
110
Id. ¶¶ 72–73.
111
UN Doc. CCPR/C/SR.29, ¶ 6 (Tunisia). See Siracusa Principles, supra note 19, princ. 42, 43, 62.
112
UN Doc. CCPR/C/SR.170, ¶ 58 (Finland).
113
See, e.g., UN Doc. CCPR/C/SR.84, ¶ 11 (Madagascar); UN Doc. CCPR/C/SR.87, ¶ 11
(Madagascan State Representative); UN Doc. CCPR/C/SR.258, ¶ 48 (Italy); UN Doc.
CCPR/C/SR.222, ¶ 3 (Colombia). Derogations in the event of natural disasters were envisaged dur-
ing the drafting, see UN Doc. A/2929, supra note 53, ¶ 39.
114
See UN Doc. CCPR/C/SR.213, ¶ 11 (Senegal).
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of a single organ of government, for example, the executive or the armed

forces, particularly where this has been at the expense of a parliamentary
body.115
Article 4 of the ICCPR has been considered in a number of the HRC’s views
under OP1. A high proportion of those views concerned the situation in
Uruguay in the 1970s and 1980s, where multiple violations of rights under
the ICCPR have been alleged. The communications have generally concerned
the application of “prompt security measures” under the state of emergency in
Uruguay.116 Uruguay has often made general reference to the state of emer-

gency in its submissions. The established approach of the HRC is exemplified
by its view in Ramirez v. Uruguay:117
The Human Rights Committee has considered whether any acts and
treatment, which are prima facie not in conformity with the Covenant,
could for any reason be justified under the Covenant in the circum-
stances. The Government has referred to provisions of Uruguayan law,
including the Prompt Security Measures. However, the Covenant
(article 4) does not allow national measures derogating from its provi-
sions except in strictly defined circumstances, and the Government has
not made any submissions of fact or law to justify such derogation.
Moreover, some of the facts referred to above raise issues under
provisions from which the Covenant does not allow derogation under
any circumstances.118
This view clearly indicates that the HRC will consider ex officio the possible
application of article 4 even when the state party does not specifically rely
upon it.119 The obvious question raised is what the approach of the HRC would
be if there were possible justifications under the covenant for alleged viola-
tions. The above view clearly places the burden of proof on the state party, so
presumably the HRC could do no more than invite the state party to submit
115
See UN Doc. CCPR/C/SR.248, ¶ 30 (Venezuela); UN Doc. CCPR/C/SR.265, ¶ 35 (Barbados); UN
Doc. CCPR/C/SR.327, ¶ 40 (Morocco); UN Doc. CCPR/C/SR.128, ¶ 66 (Chile); UN Doc.
CCPR/C/SR.442, ¶ 39 (Lebanon); UN Doc. A/45/40, Vol. I, ¶¶ 397–98, 425 (Nicaragua); UN Doc.
A/46/40, ¶¶ 241–42 (Morocco).
116
See also the consideration of the Uruguayan reports in UN Doc. CCPR/C/SR.355–56; UN Doc.
CCPR/C/SR.357, ¶ 18; UN Doc. CCPR/C/SR.359; UN Doc. CCPR/C/SR.373. See also ICJ Study,
supra note 39.
117
UN Doc. A/35/40, 121.
118
Id. ¶ 17.
119
However, the HRC did not consider the possibility of derogation being a justification in De Polay
v. Peru, UN Doc. A/53/40, Vol. II, Annex XI, F (trial by faceless judges, instituted to prevent judges
from being targeted by terrorist groups, violated article 14 of the ICCPR (fair trial) ). The HRC
expressed the same view in its Concluding Observations on Peru in 1996, see UN Doc. A/51/40,
Vol. I, ¶¶ 350, 363.
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398 D. McGoldrick
evidence of fact or law justifying the derogations concerned. Such an

approach on the part of a human rights body of inviting justifications for dero-
gations would have little to commend it.120 The HRC’s view in Silva v.
Uruguay,121 discussed below, suggests that if a state party could justify its dero-
gations under the terms of article 4(1) and (2) of the ICCPR, then the fact that
it had not complied with the notification requirements under article 4(3) of
the ICCPR would not preclude it from raising a defense based on its
derogations.
In Silva v. Uruguay,122 the state party expressly relied on the terms of article 4.

The alleged victims claimed that Uruguay had violated article 25 of the ICCPR
(the right of citizens to take part in public affairs, to vote, and have access to
the public service). Under article 1(a) of Institutional Act No. 4 of September
1, 1976, the alleged victims had been deprived of the right to engage in
any activity of a political nature, including the right to vote, for fifteen years
because they had been candidates for elective office on the lists of certain polit-
ical groups in the 1966 and 1971 elections.123 The groups concerned had
subsequently been declared illegal by the Uruguayan government.
Uruguay submitted to the HRC that it had derogated from the ICCPR and
had informed the secretary-general of the United Nations of this in accord-
ance with article 4(3) of the ICCPR.124 Moreover, “[a]rticle 25, on which the
authors of the communication argue their case, is not mentioned in the text of
article 4(2). Accordingly, the Government of Uruguay, as it has a right to do,
has temporarily derogated from some provisions relating to political par-
ties.”125 The government submitted no further information to the HRC. The
HRC expressed the view that it felt unable to accept that the requirements set
forth in article 4(1) had been met. After noting the terms of article 4(1) and
the notification submitted by Uruguay under article 4(3), the HRC stated that
[t]he Government of Uruguay has made reference to an emergency situ-
ation in the country which was legally acknowledged in a number of
“Institutional Acts.” However, no factual details were given at that time.
The note confined itself to stating that the existence of the emergency
situation was “a matter of universal knowledge”; no attempt was made
to indicate the nature and the scope of the derogations actually resorted
120
In McVeigh et al. v. United Kingdom, the European Commission of Human Rights stated
that where there is a critical situation in the country concerned, it will not take article 15 into
consideration if it has not been relied upon by the respondent government. Application 8022/77,
25 D. & R.15.
121
UN Doc. A/36/40, 130.
122
Id.
123
Id. at 131, n.(a).
124
See HUMAN RIGHTS: STATUS, supra note 31, at 84–85.
125
UN Doc. A/36/40, 131–32, ¶ 6.
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to with regard to the rights guaranteed by the Covenant, or to show that

such derogations were strictly necessary. Instead, the Government of
Uruguay declared that more information would be provided in connec-
tion with the submissions of the country’s reports under article 40 of the
Covenant. To date neither has this report been received, nor the infor-
mation by which it was to be supplemented.126
This approach indicates that the HRC will take account of information con-
cerning article 4 submitted in the reports of states parties under article 40.
The HRC continued with the following critically important passage:

Although the sovereign right of a State party to declare a state of emer-
gency is not questioned, yet, in the specific context of the present com-
munication, the Human Rights Committee is of the opinion that a State,
by merely invoking the existence of exceptional circumstances, cannot
evade the obligations which it has undertaken by ratifying the Covenant.
Although the substantive right to take derogation measures may not
depend on a formal notification being made pursuant to article 4(3) of
the Covenant, the State party concerned is duty-bound to give a suffi-
ciently detailed account of the relevant facts when it invokes article 4(1)
of the Covenant in proceedings under the Protocol. It is the function of
the Human Rights Committee, acting under the Optional Protocol, to see
to it that States parties live up to their commitments under the Covenant.
In order to assess whether a situation of the kind described in article 4(1)
of the Covenant exists in the country concerned, it needs full and com-
prehensive information. If the respondent Government does not furnish
the required justification itself, as it is required to do under article 4(2)
of the Optional Protocol and article 4(3) of the Covenant, the
Human Rights Committee cannot conclude that valid reasons exist to
legitimize a departure from the normal legal regime prescribed by the
Covenant.127
This passage represents a strong assertion of the HRC’s assessment function
under the OP1; a clear statement that the burden of proof is on the respondent
state to provide “full and comprehensive information” to the HRC; and a defi-
nite warning that, in default of justification, the respondent state’s derogations
will not be accepted as legitimate under the terms of the covenant. More gen-
erally, the HRC, while acknowledging the sovereign right of a state to declare a
state of emergency, asserts a measure of international supervision over that
126
Id. ¶ 8.2.
127
Id. ¶ 8.3. Similarly, in De Montejo v. Colombia, “[t]he State party concerned is duty bound, when
it invokes article 4(1) of the Covenant in proceedings under the Optional Protocol, to give a suffi-
ciently detailed account of the relevant facts to show that a situation of the kind described in
article 4(1) of the Covenant exists in the country concerned.” UN Doc. A/37/40, 168, ¶ 10.3.
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400 D. McGoldrick
national determination.128 This approach closely parallels that of the

European Court of Human Rights.
It falls in the first place to each contracting State, with its responsibility
for the “life of [its] nation,” to determine whether that life is threatened
by a “public emergency” and, if so, how far it is necessary to go in
attempting to overcome the emergency. By reason of their direct and
continuous contact with the pressing needs of the moment, the national
authorities are in principle in a better position than the international
judge to decide both on the presence of such an emergency and on the

nature and scope of derogations necessary to avert it. In this matter,
Article 15(1) leaves those authorities a wide margin of appreciation.
Nevertheless, the States do not enjoy an unlimited power in this respect.
The Court, which, with the Commission, is responsible for ensuring
the observance of the States’ engagements (Art. 19), is empowered to
rule on the question of whether the States have gone beyond the
“extent strictly required by the exigencies” of the crisis. The domes-
tic margin of appreciation is thus accompanied by a European
supervision.129
The most notable difference in the jurispudential approaches is that the HRC
has maintained that it does not use a margin-of-appreciation approach even
though express reference to this doctrine was made during the discussions of
the UN’s Third Committee in 1963.130
In the HRC’s considerations under article 4 there have been no clear
indications of the application of any criteria by committee members to the
128
For a comparable approach to other provisions, see Maroufidou v. Sweden, UN Doc. A/36/40, 160,
¶¶ 10.1–10.2 (expulsion law applied and interpreted in good faith and in a reasonable manner: no
violation of article 13); Aumeeruddy-Cziffra v. Mauritius, UN Doc. A/36/40, 134, ¶ 9.2(b)2(ii)3 (“the
legislation . . . is discriminatory with respect to Mauritian women and cannot be justified by security
requirements”); Hammel v. Madagascar, UN Doc. A/42/40, 130, ¶ 20 (Hammel’s expulsion violated
article 13 because the grounds of expulsion were not those of compelling national security);
V.R.M.B. v. Canada, UN Doc. A/43/40, 258, ¶ 6.3 (“It is not for the Committee to test a sovereign
State’s evaluation of an alien’s security rating [in the context of deportation]”).
129
Republic of Ireland v. United Kingdom, Eur. Ct. Hum. Rts. (Ser. A) No. 25, ¶ 207 (1978).
130
UN Doc. A/5655, ¶ 49. On the doctrine of the margin of appreciation, see YUTAKI ARAI-
TAKAHASHI, THE MARGIN OF APPRECIATION DOCTRINE AND THE PRINCIPLE OF PROPORTIONALITY IN THE
JURISPRUDENCE OF THE ECHR (Intersentia 2002); Michael R. Hutchinson, The Margin of Appreciation
Doctrine in the European Court of Human Rights, 48 INT’L & COMP. L.Q. 632 (1999); Nicholas
Lavender, The Problem of the Margin of Appreciation, 2 EUR. HUM. RTS. L. REV. 380 (1997); Aileen
McHarg, Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal
Uncertainty in the Jurisprudence of the European Court of Human Rights, 62 MOD. L. REV. 671 (1999);
CHARLES YOUROW, THE MARGIN OF APPRECIATION DOCTRINE IN THE DYNAMICS OF EUROPEAN HUMAN RIGHTS
JURISPRUDENCE (Kluwer 1996); Seminar Report on the Margin of Appreciation: Its Legitimacy in Theory
and Application in Practice, 19 HUM. RTS. L.J. 1 (1998).
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declaration of a public emergency although there is useful comparative

jurisprudence under the ECHR in this respect.131 In specific cases, individual
members have expressed doubts as to the justification for a particular
emergency regime or its continuation,132 while some have suggested that
article 4 allowed states parties considerable latitude in deciding when a public
emergency justified derogation133 and that the decision concerning the
emergency situation was a sovereign act.134

9. The applicability of the ICCPR in armed conflicts
An international or noninternational armed conflict could constitute a public
emergency for the purposes of article 4. The HRC has accepted that there can
be an overlap between human rights law and international humanitarian law.
It considered the relationship to be as follows:
During armed conflict, whether international or non-international,
rules of international humanitarian law become applicable and help, in
addition to the provisions in article 4 and article 5, paragraph 1, of the
Covenant, to prevent the abuse of a State’s emergency powers. The
Covenant requires that even during an armed conflict measures dero-
gating from the Covenant are allowed only if and to the extent that the
situation constitutes a threat to the life of the nation. If States parties
consider invoking article 4 in other situations than an armed conflict,
they should carefully consider the justification and why such a measure
is necessary and legitimate in the circumstances. On a number of occa-
sions the Committee has expressed its concern over States parties that
appear to have derogated from rights protected by the Covenant, or
whose domestic law appears to allow such derogation in situations not
covered by article 4.135
131
See Lawless, Eur. Ct. Hum. Rts. (Series A) No. 3 (1961); Ireland v. United Kingdom, Eur. Ct. Hum.
Rts. (Ser. A) No. 25 (1978); The Greek Case, 12 Y.B. Eur. Ct. Hum. Rts. 41–42 (1969).
132
See UN Doc. CCPR/C/SR.127–30; UN Doc. CCPR/C/SR.527–31; UN Doc. CCPR/C/SR.546–48
on Chile. See Marc Bossuyt, The United Nations and Civil and Political Rights in Chile, 27 INT’L COMP.
L.Q. 462 (1978). On the situation in Chile after the ending of the state of emergency in 1988, see
UN Doc. CCPR/C/SR.942–45.
133
See, e.g., UN Doc. CCPR/C/SR.128 ¶ 40 (Chile). See the judgments of the European Court in the
cases of Lawless and Ireland v. UK.
134
See, e.g., UN Doc. CCPR/C/SR.284 ¶ 34 (Mali); UN Doc. CCPR/C/SR.421 ¶¶ 36–8a (Nicaragua).
See also UN Doc. CCPR/C/SR.224, ¶ 47 (Suriname).
135
General Comment 29, supra note 11, ¶ 3, citing the comments/concluding observations from
United Republic of Tanzania, Dominican Republic, U.K., Peru, Bolivia, Colombia, Uruguay, and
Israel.
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402 D. McGoldrick
10. The extraterritorial application of human rights

treaties
Some human rights treaties, like the ICCPR and the ECHR, have jurisdictional
provisions that limit their application. For example, under 2(1) of the ICCPR,
“[e]ach State Party to the present Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the rights rec-
ognized in the present Covenant, without distinction of any kind . . .”136 Article 1
of the ECHR provides that “[t]he High Contracting Parties shall secure to every-
one within their jurisdiction the rights and freedoms . . . in this Convention.”137

The meaning of the phrase “within its jurisdiction” arose in the Bankovic case
before the European Court of Human Rights.138 The applicants complained
about the bombing of a television and radio building in Belgrade on April 23,
1999, by NATO forces. The Court was satisfied that
from the standpoint of public international law, the jurisdictional com-
petence of a State is primarily territorial. While international law does
not exclude a State’s exercise of jurisdiction extra-territorially, the sug-
gested bases of such jurisdiction (including nationality, flag, diplomatic
and consular relations, effect, protection, passive personality and uni-
versality) are, as a general rule, defined and limited by the sovereign terri-
torial rights of the other relevant States.139
A state’s competence to exercise jurisdiction over its own nationals abroad is
subordinate to that state’s and other states’ territorial competence.140 Because
article 1 of the ECHR reflected this ordinary and essentially territorial notion
of jurisdiction, other bases of jurisdiction were exceptional and required spe-
cial justification in the particular circumstances of each case.141
For the court, the responsibility of a contracting party came into effect, on
an exceptional basis, when, as a consequence of military action (lawful or
unlawful), it exercised effective control of an area outside its national terri-
tory.142 Recognition of the exercise of extraterritorial jurisdiction by a con-
tracting state was exceptional: the court has done so when the respondent
136
ICCPR, supra note 3, art. 2(1).
137
ECHR, supra note 3, art. 1.
138
Bankovic and Others v. Belgium and 16 other NATO States (No.52207/99), Eur. Ct. Hum. Rts.,
December 12, 2001, 41 I.L.M. 517 (2002).
139
Id. ¶ 59.
140
Id. ¶ 60.
141
Id. ¶ 61.
142
Id. ¶ 70, as exemplified by Loizidou v. Turkey, 20 Eur. H.R. Rep. 99 (1995) and Cyprus v. Turkey,
Eur. Ct. Hum. Rts., 2001-IV REPORTS OF JUDGMENTS AND DECISIONS (concerning Turkish control of
Northern Cyprus).
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state, “through the effective control of the relevant territory and its inhabi-
tants abroad as a consequence of military occupation or through the consent,
invitation or acquiescence of the Government of that territory, exercises all or
some of the public powers normally to be exercised by that Government.”143
The court essentially agreed with the observations of the respondent states. It
also relied on the travaux préparatoires to find a clear confirmation of an essen-
tially territorial notion of jurisdiction in article 1 of the ECHR.
Bankovic was clearly a “political” case given its significance in international
politics. A decision the other way would have raised additional institutional

questions about the appropriateness of the European Court of Human Rights
directly or indirectly applying aspects of international humanitarian law,
through the medium of ECHR rights, and its exercising review of military
actions by individual states or by an international institution (NATO). In addi-
tion, there would have been further questions about whether or not a more
expansive jurisdictional approach would divert the court from its hitherto pri-
mary focus on the application of the ECHR within the territorial jurisdiction of
the states parties. The Bankovic decision avoided these questions for the time
being. For some it may be seen as a hard case that made bad law and must be
understood in the context of the attacks on the United States in September
2001.144 I would submit that when understood its proper legal context—as a
jurisdictional question within a specific international human rights treaty—it
is a hard case that made good law. And that this good law is consistent with
previous jurisprudence on the possible, exceptional extraterritorial application
of the ECHR in situations of “authority and responsibility” and “effective con-
trol,” and that Bankovic should not be read as undermining that jurisprudence.
Where there is some degree of extraterritorial application, this should be seen
as a positive addition to the ECHR regime of protection rather than as merely
creating arbitrary distinctions between particular situations where there is or
is not effective control.145
10.1. Would the HRC follow Bankovic?

Given that the analysis in Bankovic was founded on principles of public inter-
national law; relied on state practice (which would be equally relevant to the
interpretation of the ICCPR); that the court did not find sufficient support for
an alternative interpretation in the text of other international human rights
instruments or the jurisprudence under them;146 and that the decision was
143
Bankovic, Eur. Ct. Hum. Rts., Dec. 12, 2001, 41 I.L.M. 517, ¶ 71 (2002).
144
See Rick Lawson, Life After Bankovich, in THE EXTRA-TERRITORIAL APPLICATION OF HUMAN RIGHTS
TREATIES (Menno Kamminga & Fons Kooman eds., Intersentia 2004).
145
The argument is that if an individual who is arrested and detained is “within the jurisdiction”
because they are under the effective control of the state, but an individual who is simply shot is not
“within the jurisdiction,” this creates an incentive to shoot the individuals concerned.
146
Id. ¶ 78.
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404 D. McGoldrick
unanimous147 it would be surprising if the HRC, considering the same facts,

mutatis mutandis, took a different view in relation to the ICCPR. Although not
explicitly mentioned by name, the European Court was clearly referring to
jurisprudence such as that in Lopez Burgos148 when it noted that the HRC “has
sought to develop, in certain limited contexts, the contracting States’ responsi-
bility for the acts of their agents abroad.”149 The respondent governments in
Bankovic submitted that the arrest and detention of individuals outside the ter-
ritory of a state party constituted “a classic exercise of . . . legal authority or
jurisdiction over those persons by military forces on foreign soil.”150 The exam-

ples given were the decisions in Issa v. Turkey151 (Issa was allegedly detained
and killed by Turkish forces in Northern Iraq) and Ocalan v. Turkey152 (Ocalan
was arrested in Kenya by Turkish state agents acting in cooperation with
Kenyan authorities). The detention and kidnapping in Lopez Burgos by security
and intelligence forces would, consistently with these cases, have brought
Lopez Burgos within the jurisdiction of Uruguay.
In Bankovic, the court found that state practices, since the ratification of the
ECHR, did not suggest any apprehension on the part of the contracting states
regarding their extraterritorial responsibility in contexts similar to the case
under consideration here. In a number of military missions involving con-
tracting states acting extraterritorially (inter alia, in the Persian Gulf, in Bosnia
and Herzegovina, and in the Former Republic of Yugoslavia), no state had indi-
cated a belief that its extraterritorial actions involved an exercise of jurisdic-
tion within the meaning of article 1 of the ECHR by making a derogation
pursuant to article 15 of the convention.153 Where the state concerned was
147
Cf. Al-Adsani v. United Kingdom, 34 Eur. H.R. Rep. 273 (2002) (on state immunity preventing
a remedy for alleged victims of torture, where the decision on article 6 was by a nine to eight
majority).
148
HRC, July 29, 1981, UN Doc. A/36/40, 176 (regarding the alleged detention and mistreatment
of individuals by Uruguayan government agents carried out in a foreign territory, the HRC held
that the reference in article 1 of the Optional Protocol to “individuals subject to its jurisdiction”
was not to the place where the violation occurred, but rather to the relationship between the indi-
vidual and the state in relation to a violation of any of the rights set forth in the covenant, wher-
ever they occurred).
149
Bankovic, Eur. Ct. Hum. Rts., Dec. 12, 2001, 41 I.L.M. 517, ¶ 24 (2002). See United States v.
Duarte-Acero, 296 F.3d 1277 (11th Cir. 2002) (extraterritorial conduct of U.S. government
agents not regulated by the ICCPR).
150
Bankovic, Eur. Ct. Hum. Rts., Dec. 12, 2001, 41 I.L.M. 517, ¶ 37 (2002).
151
Eur. Ct. Hum. Rts., No.31821/96 (May 30, 2000).
152
Eur. Ct. Hum. Rts., No.46221/99 (Mar. 12, 2003).
153
Bankovic, Eur. Ct. Hum. Rts., Dec. 12, 2001, 41 I.L.M. 517, ¶ 62 (2002). Iraq had made no
derogation from article 4 of the ICCPR with respect to its invasion of Kuwait or during the Gulf
War of 1990–91. See UN Doc. A/46/40, ¶¶ 618–56.
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also a party to the ICCPR then that practice on derogations is equally relevant
for the interpretation of the ICCPR.
The consequence of the Bankovich approach is that applicants could not
complain to the European Court of Human Rights about a bombing campaign
against Iraq in 2003 or other aspects of military attacks.
10.2. Position under ICCPR of people held in Guantanamo Bay?

If prisoners of war are taken or other persons are detained, in principle, the
ICCPR comes into play on the basis that those persons are within the effective

control of the detaining state (assuming it is a state party to the ICCPR).
The U.K. submission in Bankovic appeared to concede this point.
10.3. Position under ICCPR of military occupation of Iraq in 2003?

In relation to a postconflict situation, this is covered by the reference to
“effective control of the relevant territory and its inhabitants abroad as a
consequence of military occupation.”154
10.4. Legal space

One of the intriguing elements in the court’s judgment in Bankovic was its ref-
erence to spatial limitations on the protective scope of the ECHR.
In short, the Convention is a multilateral treaty operating, subject to
Article 56 of the Convention, in an essentially regional context and
notably in the legal space (espace juridique) of the Contracting States. The
FRY [Former Republic of Yugoslavia] clearly does not fall within this legal
space. The Convention was not designed to be applied throughout the
world, even in respect of the conduct of Contracting States. Accordingly,
the desirability of avoiding a gap or vacuum in human rights’ protection
has so far been relied on by the Court in favour of establishing jurisdic-
tion only when the territory in question was one that, but for the specific
circumstances, would normally be covered by the Convention.155
The notion of legal space is an intriguing one. On a limited reading, it is no
more than a response to the argument of the applicants in the Bankovic case
that “any failure to accept that they fell within the jurisdiction of the respon-
dent States would defeat the ordre public mission of the Convention and leave a
regrettable vacuum in the Convention system of human rights’ protec-
tion.”156 The court recalled its jurisprudence supporting the notion that it was
obliged “to have regard to the special character of the Convention as a consti-
tutional instrument of European public order for the protection of individual
154
Id. ¶ 71.
155
Id. ¶¶ 79–80.
156
Id. ¶ 79.
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406 D. McGoldrick
human beings, and its role, as set out in Article 19 of the Convention, is to
ensure the observance of the engagements undertaken by the Contracting
Parties.”157 However, the notion of “legal space” seems to be a new addition to
the court’s jurisprudence and invites some broader speculation. What is a legal
space? Is the space coordinate with the territorial application of the ECHR? The
legal space is related to some notion of regional application—“essentially
regional context.” This is an idea that is a substantial part of the philosophical
and diplomatic understanding of the American Declaration and Convention
on Human Rights, which is that it only applies in the Western Hemisphere?158

Is the same philosophical and diplomatic understanding to be taken to apply to
the ECHR? The paragraph in the judgment on legal space also expressly refers
to article 56 of the ECHR,159 so, presumably, the overseas territories of the
states parties are only within the legal space when the ECHR has been
extended to them. How does the notion of legal space relate to that of effective
control? Can there be any gaps in the legal space if there is no effective
control?160
The notion of legal-space judgment also raises a number of issues for the
ICCPR. What is the legal space (espace juridique) of the ICCPR? To what extent,
if at all, was the ICCPR designed to be applied throughout the world with
respect to the conduct of the states that are parties to it? Iraq has been a party
to the ICCPR since it entered into force in 1976 so its the territory would
“normally be covered” by the ICCPR. Could the desirability of avoiding a “gap
or vacuum in human rights” protection be relied upon in favor of establishing
jurisdiction? That would seem rather doubtful. Effective control seems to be the
key to jurisdiction.
11. “The States parties to the present Covenant may

take measures derogating from their obligations under
the present Covenant”
State representatives have often been invited to explain how the legal regime
under a public emergency conforms to the requirements of the covenant. Were
157
Id. ¶ 80, citing Loizidou, 20 Eur. H.R. Rep., ¶ 93 (preliminary objections).
158
On November 3, 2002, a U.S. drone killed the passengers in a car in the desert in Yemen. Could
the victims have recourse to the American Commission on Human Rights? An affirmative answer
seems doubtful. The U.S. has not accepted the ACHR but is considered by the commission to be
under legal obligations under the American Declaration on Human Rights.
159
Formerly article 63.
160
The Court in Bankovic did not find that there was a lacuna in the law, but, rather, that the law
applied but did not protect the applicants. Cf. the argument as to whether the Advisory Opinion of
the ICJ, in Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, is to be interpreted as
finding a lacuna in the applicable international law. See Daniel Bodansky, Non Liquet and the
Icon-73.qxd 3/19/04 11:12 AM Page 407
there any controls or restrictions upon the organs concerned with implement-
ing the state of emergency?161 In particular, was there any parliamentary
supervision or legislative control over the proclamation of a public emergency,
its continuance, extension, or termination?162 Could the constitutionality or
legality of the emergency measures be challenged in a constitutional court or
in the ordinary courts?163 Was judicial review available and did remedies
exist for those who alleged that their rights under the ICCPR had been
violated?164 What was the role of military courts and was habeas corpus
available?165 How would conflicts between the constitutional powers and the

terms of the covenant be resolved? Was there a maximum duration of a state
of emergency?166
11.1. The limitation derogating from obligations under the present

covenant to the extent strictly required by the
exigencies of a situation
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.”167 The obligation to limit any derogations to those
strictly required by the exigencies of the situation “reflects the principle of pro-
portionality which is common to derogation and limitation powers.”168 The
HRC has expressed its concern over insufficient attention being paid to the
principle of proportionality.169 In addition to a derogation from a specific pro-
vision being justified by the exigencies of the situation, there is also a require-
ment that “specific measures taken pursuant to the derogation must also be
shown to be required by the exigencies of the situation. In practice, this will
Incompleteness of International Law, in INTERNATIONAL LAW, THE INTERNATIONAL COURT OF JUSTICE AND
NUCLEAR WEAPONS 153 (Laurence Boisson de Chazournes & Philippe Sands eds., Cambridge Univ.
Press 1999).
161
See, e.g., UN Doc. CCPR/C/SR.29, ¶ 6 (Tunisia). See also Siracusa Principles, supra note 19.
162
See, e.g., UN Doc. CCPR/C/SR.52, ¶ 49 (Sweden); UN Doc. A/45/40, Vol. I, ¶¶ 219, 232
(Argentina). See Siracusa Principles, supra note 19, at 49–50, 55. In Lawless v. Ireland, the
European Court noted the number of safeguards designed to prevent abuses in the operation of
the system of administrative detention. Eur. Ct. Hum. Rts. (Series A) No. 3 (1961), ¶ 37.
163
See Siracusa Principles, supra note 19, princ. 56, 60. See also George Alexander, The Illusory
Protection of Human Rights by National Courts during Periods of Emergency, 5 HUM. RTS. L.J. 1 (1984).
164
See, e.g., UN Doc. CCPR/C/SR.331, ¶ 39. See IACT, Judicial Guarantees in States of Emergency,
Advisory Opinion OC-9/87, 9 HUM. RTS. L.J. 204–12 (1988).
165
UN Doc. A/45/40, Vol. I, ¶¶ 134–35 (Portugal).
166
UN Doc. A/45/40, Vol. I, ¶¶ 508–9 (Tunisia).
167
168
Id.
169
Id., citing the concluding observations on Israel (1998), UN Doc. CCPR/C/79/Add.93, ¶ 11.
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408 D. McGoldrick
ensure that no provision of the Covenant, however validly derogated from, will
be entirely inapplicable to the behaviour of a State party.”170
States parties must provide careful justification not only for their decision to
proclaim a state of emergency but also for any specific measures based on such
a proclamation.171 If limitation of the relevant rights would be sufficient then
derogation from them would not be justified.
If States purport to invoke the right to derogate from the Covenant dur-
ing, for instance, a natural catastrophe, a mass demonstration including
instances of violence, or a major industrial accident, they must be able to

justify not only that such a situation constitutes a threat to the life of the
nation, but also that all their measures derogating from the Covenant
are strictly required by the exigencies of the situation. In the opinion of
the Committee, the possibility of restricting certain Covenant rights
under the terms of, for instance, freedom of movement (article 12) or
freedom of assembly (article 21) is generally sufficient during such
situations and no derogation from the provisions in question would be
justified by the exigencies of the situation.172
The principles of necessity and proportionality were applied in Silva v.
Uruguay,173 where the HRC considered the situation on the assumption that a
state of emergency did exist in Uruguay. It expressed the view that even on that
assumption it could not see
[w]hat ground could be adduced to support the contention that, in order
to restore peace and order, it was necessary to deprive all citizens, who as
members of certain political groups had been candidates in the elections
of 1966 and 1971, of any political rights for a period as long as 15 years.
This measure applies to everyone, without distinction as to whether he
sought to promote his political opinions by peaceful means or by resort-
ing to, or advocating the use of, violent means. The Government of
Uruguay has failed to show the interdiction of any kind of political dis-
sent is required in order to deal with the alleged emergency situation and
pave the way back to political freedom.174
Here, the HRC is assessing the actions of the state party in terms of the neces-
sity and proportionality of the measures applied and the onus is on the state
party to justify its measures in those terms. On the basis of the foregoing,
the HRC expressed the view that the prohibition on the complainants
170
Id.
171
Id. ¶ 5.
172
Id.
173
UN Doc. A/36/40, 130.
174
Id. ¶ 8.4.
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unreasonably restricted their rights under article 25 of the ICCPR, and that
the state party was, therefore, under an obligation to take steps to enable these
citizens to participate again in the political life of the nation.175
Emergency situations potentially affect all of the other rights in the ICCPR.
The HRC’s considerations, then, must be seen in the context of its detailed
consideration of other rights in the ICCPR. Even within the specific context of
article 4, committee members have frequently required information and expla-
nations of the effect of measures taken under public emergencies on the exer-
cise and enjoyment of the rights and remedies in the ICCPR, from article 1 to

article 27, including articles from which derogation had been made.176 For
example, during consideration of the second periodic report of Spain,177 a
number of members expressed concern about the effect on articles 9 and 14 of
the ICCPR of the operation of Organic Law No. 8/1984, concerning exten-
sions of the permissible period of police detention and limitations on access to
counsel.178 Similarly, during consideration of the report of Sri Lanka,179 a
number of members expressed doubts about the compatibility of the
Prevention of Terrorism Act 1979 with the provisions of the covenant, partic-
ularly articles 9, 14, and 15.180 During the consideration of U.K. reports, ques-
tions have covered, inter alia, the Diplock Courts;181 convictions based on
confessions or on the evidence of accomplices;182 drawing negative inferences
from the silence of the accused;183 detention without access to lawyers for up
to forty-eight hours;184 the degree of political progress toward resolution of
the conflict;185 police complaints boards; the control of the actions of and the
use of force by the police and security forces;186 inquiries into civilian
175
Id. ¶¶ 9–10.
176
See, e.g., UN Doc. CCPR/C/SR.224, ¶ 47 (Suriname); UN Doc. CCPR/C/SR.282, ¶ 21
(Tanzania); UN Doc. CCPR/C/SR.442, ¶ 15 (Nicaragua); UN Doc. CCPR/C/SR.128, ¶ 66 (Chile);
UN Doc. CCPR/C/SR.221, ¶ 23 (Colombia).
177
UN Doc. CCPR/C/32/Add. 3.
178
See UN Doc. CCPR/C/SR.586, ¶¶ 34–44; UN Doc. CCPR/C/SR.587, ¶¶ 1–33.
179
UN Doc. CCPR/C/14/Add. 4 and 6 (1984).
180
See UN Doc. CCPR/C/SR.471–73; UN Doc. CCPR/C/SR.477. Similarly see the summary of the
HRC’s discussion on the special powers in the Indian Constitution in UN Doc. A/39/40, ¶ 251.
181
UN Doc. CCPR/C/SR.594, ¶¶ 6, 8; UN Doc. A/57/40, Vol. I, ¶ 75(18).
182
See STEVEN C. GREER, SUPERGRASSES: A STUDY IN ANTI-TERRORIST LAW ENFORCEMENT IN NORTHERN
IRELAND (Oxford Univ. Press 1995).
183
UN Doc. A/57/40, Vol. I, ¶ 75(17).
184
UN Doc. A/46/40, ¶¶ 370–1, 411; UN Doc. A/57/40, Vol. I, ¶ 75(19).
185
UN Doc. A/57/40, Vol. I, ¶ 75(4) (welcoming the Belfast Agreement). See HUMAN RIGHTS,
EQUALITY AND DEMOCRATIC RENEWAL IN NORTHERN IRELAND (Colin Harvey ed., Hart 2001).
186
UN Doc. CCPR/C/SR.594, ¶¶ 7, 9, 12.
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410 D. McGoldrick
deaths;187 why it was thought possible to work within the provisions of the
covenant rather than derogating from them;188 parliamentary control over
the emergency powers of the executive; the consequences of the period
of derogation;189 the possibility of recourse to the covenant to determine the
legitimacy of measures taken by the government; action being taken in
the political and social fields to solve the problems of Northern Ireland and the
situation of violence in Northern Ireland;190 and the matter of self-determination
in Northern Ireland.191
In 2001, the U.K. derogated from article 9 of the ICCPR because of the

extended powers of arrest and detention under the Anti-Terrorism, Crime and
Security Act 2001, adopted in response to the attacks on the U.S. on
September 11, 2001.192
11.2. Reservations to the derogation provision

Can a state make a reservation to article 4 of the ICCPR? The approach of
France to article 4 has attracted some interesting comments. France’s ratifica-
tion was accompanied by the following reservation:
[f]irst, the circumstances enumerated in article 16 of the Constitution in
respect of its implementation, . . . are to be understood as meeting the
purpose of article 4 of the Covenant; and secondly, for the purposes of
interpreting and implementing article 16 of the Constitution of the
French Republic, the terms “to the extent strictly required by the exigen-
cies of the situation” cannot limit the power of the President of the
Republic to take “the measures required by circumstances.”193
The HRC has asked for clarification of the reservation and its consistency with
article 4 of the ICCPR.194 It is difficult to reconcile a considerable broadening
of the scope of emergency powers with the object and purpose of the ICCPR.
It has been argued that a similar French reservation to the ECHR is invalid as
187
UN Doc. A/57/40, Vol. I, ¶ 75(8).
188
189
Id. ¶¶ 13–14.
190
Id. ¶ 15.
191
Id. ¶ 42; UN Doc. A/46/40, ¶¶ 364–65.
192
UN Doc. A/57/40, ¶ 33. The act allowed for the extended detention of nonnationals who could
not be deported.
193
HUMAN RIGHTS: STATUS, supra note 31, at 34–35. For the French Report, see UN Doc.
CCPR/C/22/Add.2. Further information is provided in France’s second periodic report, UN Doc.
CCPR/C/46/Add.2, 17–19 (1987).
194
UN Doc. CCPR/C/SR.440, ¶¶ 55, 23, 47; UN Doc. CCPR/C/SR.441, ¶ 35 (as corrected); UN
Doc. CCPR/C/SR.445, ¶ 32.
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incompatible with the objects and purposes of the ECHR.195 The HRC has
asserted that it can determine the validity of reservations when it is necessary
for it to do so to exercise its functions.196 Moreover, it considers that “a reser-
vation to the provisions of Article 4 itself, which precisely stipulates the bal-
ance to be struck between the interests of the State and the rights of the
individual” would be contrary to the object and purpose of the ICCPR and
therefore invalid.197
11.3. Other obligations under international law

The measures derogating from ICCPR obligations must not be inconsistent
with the states “other obligations under international law.”198 Those other
obligations can vary from state to state.
Furthermore, article 4, paragraph 1, requires that no measure derogat-
ing from the provisions of the Covenant may be inconsistent with the
State party’s other obligations under international law, particularly the
rules of international humanitarian law. Article 4 of the Covenant can-
not be read as justification for derogation from the Covenant if such
derogation would entail a breach of the State’s other international obli-
gations, whether based on treaty or general international law. This is
reflected also in article 5, paragraph 2, of the Covenant according to
which there shall be no restriction upon or derogation from any funda-
mental rights recognized in other instruments on the pretext that the
Covenant does not recognize such rights or that it recognizes them to a
lesser extent.199
Although it is not the function of the Human Rights Committee to review
the conduct of a state party under other treaties, in exercising its functions
under the covenant, the committee has the competence to take a state party’s
other international obligations into account when it considers whether the
covenant allows the state party to derogate from specific provisions of the
covenant. Therefore, when invoking article 4, paragraph 1, or when reporting
195
See ECHR: COLLECTED TEXTS, supra note 106, at 77; Higgins, supra note 23, at 317, n.5. Article
64 of the ECHR permits reservations other than those of a general character.
196
General Comment 24, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994). See Ryan Goodman, Human
Rights Treaties, Invalid Reservations, and State Consent, 96 AM. J. INT’L L. 531 (2002); Dominic
McGoldrick, Approaches to the Assertion of International Jurisdiction: The Human Rights Committee, in
ASSERTING JURISDICTION ch.12 (Patrick Capps et al. eds., Hart 2003).
197
198
See UN Doc. A/2929, supra note 53, ¶ 43. In the Lawless Case, the European Court considered
the same expression. The court stated that no facts had come to its knowledge to suggest that this
condition had not been satisfied. Lawless, Eur. Ct. Hum. Rts. (Ser. A) No. 3 (1961), ¶¶ 39–41.
Similarly, see United Kingdom v. Ireland, Eur. Ct. Hum. Rts. (Ser. A) No. 25, ¶ 222 (1978).
199
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412 D. McGoldrick
under article 40 on the legal framework related to emergencies, states parties

should present information on their other international obligations relevant
for the protection of the rights in question, in particular those obligations that
are applicable in times of emergency.200 In this respect, states parties should
duly take into account the developments within international law as to human
rights standards applicable in emergency situations.201
The General Comment highlights the “rules of international humanitarian
law.” During the examination of state reports, the HRC has referred to
the terms of the 1949 Geneva Conventions on the Law of War and the 1977

Protocols thereto202 with reference to the situations in, for example,
Afghanistan203 and in El Salvador.204 Commentators have indicated that
the expression would cover, for example, obligations for states parties under
the United Nations Charter, humanitarian law treaties, regional human rights
conventions, and customary international law.205
11.4. Nondiscrimination
The measures derogating from ICCPR obligations must not involve discrimina-
tion solely on the ground of race, color, sex, language, religion, or social origin.
According to article 4, paragraph 1, one of the conditions for the justifi-
ability of any derogation from the Covenant is that the measures taken
do not involve discrimination solely on the ground of race, colour, sex,
language, religion or social origin. Even though article 26 or the other
Covenant provisions related to non-discrimination (articles 2, 3, 14,
paragraph 1, 23, paragraph 4, 24, paragraph 1, and 25) have not been
listed among the non-derogable provisions in article 4, paragraph 2,
there are elements or dimensions of the right to non-discrimination that
cannot be derogated from in any circumstances. In particular, this
200
“Reference is made to the Convention on the Rights of the Child which has been ratified by
almost all States parties to the Covenant and does not include a derogation clause. As article 38 of
the Convention clearly indicates, the Convention is applicable in emergency situations.” Id. at n.5.
201
Id. ¶ 10.
202
For the text of these, see ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR
169–337 (Oxford Univ. Press 1949); id. 387–468 (Oxford Univ. Press, 2nd ed. 1989). See Charles
Lysaght, The Scope of Protocol II and its Relation to Common Article 3 of the Geneva Conventions of
1949 and Other Human Rights Instruments, 33 AM. U. L. REV. 9 (1983); Hernan Montealegre, The
Compatibility of a State Party’s Derogation Under Human Rights Conventions with its Obligations Under
Protocol II and Common Article 3, 33 AM. U. L. REV. 41 (1983); Siracusa Principles, supra note 19,
princ. 67.
203
See UN Doc. CCPR/C/SR.604, ¶36; reply at UN Doc. CCPR/C/SR.608, ¶ 25 (“there was no civil
war in Afghanistan”); and UN Doc. CCPR/C/SR.608, ¶ 51.
204
See UN Doc. CCPR/C/SR.469, ¶ 33.
205
See Siracusa Principles, supra note 19, princ. 66–69; Advisory Opinion of the IACT on Other
Treaties Subject to the Advisory Jurisdiction of the Court, 3 HUM. RTS. L.J. 146 (1982).
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provision of article 4, paragraph 1, must be complied with if any dis-

tinctions between persons are made when resorting to measures that
derogate from the Covenant.206
Criticism has been directed at national provisions that appear to violate this
provision. For example, article 23(3)(d) of the Constitution of Barbados was
objected to on the basis that it allowed distinctions to be made in terms of a
public emergency on some prohibited grounds.207 Only measures that dis-
criminate “solely” on the prohibited grounds are prohibited. Intentional or
direct discrimination are covered but not measures that indirectly impact on

particular groups.208 The grounds of prohibited discrimination are shorter
than those in article 2 of the ICCPR (the general guarantee of ICCPR rights).
The omitted grounds are “political or other opinion,” “national origin,” “prop-
erty,” “birth,” and “other status.” The absence of a reference to “other status”
(as there is in articles 2 and 26 of the ICCPR) means that the enumerated
grounds of discrimination are exhaustive.209
Sex discrimination is expressly covered. The HRC has commented that
[t]he equal enjoyment of human rights by women must be protected
during a state of emergency (article 4). States parties which take mea-
sures derogating from their obligations under the Covenant in time of
public emergency, as provided in article 4, should provide information to
the Committee with respect to the impact on the situation of women of
such measures and demonstrate that they are non-discriminatory.210
During the drafting of article 4 it was accepted that “national origin” could
not be a prohibited ground of discrimination because nationals of enemy
states were often discriminated against in war time.211 In A, X and Y v. United
Kingdom,212 the English Court of Appeal considered legislation enacted after
the attacks on the U.S. on September 11, 2001, which gave the secretary of
state powers to detain nonnationals who resided in the U.K. if the secretary of
state suspected that they were terrorists but was precluded from deporting
206
207
See, e.g., UN Doc. CCPR/C/SR.265, ¶ 6 (Barbados). See also the second periodic report of
Barbados, UN Doc. CCPR/C/42/Add.3, 4–5. Similarly, see UN Doc. CCPR/C/SR.292, ¶ 39
(Jamaica); UN Doc. A/39/40, ¶ 326 (Gambia).
208
See Higgins, supra note 23, at 287; Buergenthal, supra note 54, at 83. On ratification, the U.S.
expressed its understanding that article 4(1) did not “bar distinctions that may have a dispropor-
tionate effect upon persons of a particular status.”
209
UN Doc. A/2929, supra note 53, ¶ 44.
210
211
Id.; UN Doc. A/5655, ¶ 51.
212
[2002] U.K. HUM. RTS. REV. 1141.
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414 D. McGoldrick
them because of human rights considerations.213 The legislation did not give
the same power with respect to terrorists who were nationals. The Court
held that there were objective, justifiable, and relevant grounds for selecting
only the alien terrorists and, therefore, they did not constitute discrimination.
The grounds were the fact that the aliens who could not be deported, unlike
nationals, had no right to remain. They only had a right not to be removed.
This meant that they were legally in a different class from those with a right of
abode. By contrast, nationals could not be detained pending deportation. The
Court pointed to the absence of any reference in article 4(1) to discrimination

on the grounds of nationality or national origin.214 It considered that both
customary international law and international treaties (including the ICCPR
and the ECHR) expressly reserve to a state, in time of war or similar public
emergency, the power to detain aliens on grounds of national security when it
would not necessarily detain its own nationals on those grounds.215
12. Article 4(2): Nonderogable rights

It is not easy to determine the criteria for express nonderogability. The ECHR
has four nonderogable rights, the ICCPR has seven, and the ACHR has at least
eleven.
The fact that some of the provisions of the Covenant have been listed in
article 4 (paragraph 2), as not being subject to derogation does not mean
that other articles in the Covenant may be subjected to derogations at
will, even where a threat to the life of the nation exists. The legal obliga-
tion to narrow down all derogations to those strictly required by the exi-
gencies of the situation establishes both for States parties and for the
Committee a duty to conduct a careful analysis under each article of the
Covenant based on an objective assessment of the actual situation.216
Article 4, paragraph 2, of the Covenant explicitly prescribes that no
derogation from the following articles may be made: article 6 (right to
life), article 7 (prohibition of torture or cruel, inhuman or degrading
punishment, or of medical or scientific experimentation without con-
sent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade
and servitude), article 11 (prohibition of imprisonment because of
inability to fulfil a contractual obligation), article 15 (the principle of
legality in the field of criminal law, i.e. the requirement of both criminal
213
For example, that they faced a real possibility of treatment contrary to article 3 of the ECHR if
they were deported.
214
Id. ¶ 128.
215
Id. ¶¶ 112–33.
216
General Comment 29, supra note 11, ¶ 6 (emphasis added).
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liability and punishment being limited to clear and precise provisions in

the law that was in place and applicable at the time the act or omission
took place, except in cases where a later law imposes a lighter penalty),
article 16 (the recognition of everyone as a person before the law), and
article 18 (freedom of thought, conscience and religion). The rights
enshrined in these provisions are non-derogable by the very fact that
they are listed in article 4, paragraph 2. The same applies, in relation to
States that are parties to the Second Optional Protocol to the Covenant,
aiming at the abolition of the death penalty, as prescribed in article 6 of

that Protocol.217 Conceptually, the qualification of a Covenant provision
as a non-derogable one does not mean that no limitations or restrictions
would ever be justified. The reference in article 4, paragraph 2, to article
18, a provision that includes a specific clause on restrictions in its para-
graph 3, demonstrates that the permissibility of restrictions is independ-
ent of the issue of derogability. Even in times of most serious public
emergencies, States that interfere with the freedom to manifest one’s reli-
gion or belief must justify their actions by referring to the requirements
specified in article 18, paragraph 3. On several occasions the Committee
has expressed its concern about rights that are non-derogable according
to article 4, paragraph 2, being either derogated from or under a risk
of derogation owing to inadequacies in the legal regime of the State
party.218
For the ICCPR, the criterion appears to be that some of the rights are funda-
mental while others are not fundamental but their nature is such that their
derogation could never be justified.
The enumeration of non-derogable provisions in article 4 is related to,
but not identical with, the question whether certain human rights obli-
gations bear the nature of peremptory norms of international law. The
proclamation of certain provisions of the Covenant as being of a non-
derogable nature, in article 4, paragraph 2, is to be seen partly as recog-
nition of the peremptory nature of some fundamental rights ensured in
treaty form in the Covenant (e.g., articles 6 and 7). However, it is appar-
ent that some other provisions of the Covenant were included in the list
of non-derogable provisions because it can never become necessary to
derogate from these rights during a state of emergency (e.g., articles 11
and 18). Furthermore, the category of peremptory norms extends
beyond the list of non-derogable provisions as given in article 4, para-
graph 2. States parties may in no circumstances invoke article 4 of the
217
As of November 2, 2003, there were fifty states parties to OP2.
218
General Comment 29, supra note 11, ¶ 7 citing comments/concluding observations on
Dominican Republic, Jordan, Nepal, Russian Federation, Zambia, Gabon, Colombia, Israel, Iraq,
Uruguay, Armenia, Mongolia, and Kyrgyzstan.
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416 D. McGoldrick
Covenant as justification for acting in violation of humanitarian law or

peremptory norms of international law, for instance by taking hostages,
by imposing collective punishments, through arbitrary deprivations of
liberty or by deviating from fundamental principles of fair trial, includ-
ing the presumption of innocence.219
12.1. Nonderogable by interpretation

Although article 4(2) indicates which of the articles are nonderogable, the
HRC has indicated to states parties that it would be difficult to justify deroga-

tions from some of the other articles of the covenant, for example, concerning
suspension of the political rights in articles 14 and 25.220 In its General
Comment on States of Emergency, the HRC significantly expanded its interpre-
tation of the scope of nonderogable rights.
First, it narrowed the scope of possible derogation by reference to the con-
cept of crimes against humanity.
In assessing the scope of legitimate derogation from the Covenant, one
criterion can be found in the definition of certain human rights viola-
tions as crimes against humanity. If action conducted under the author-
ity of a State constitutes a basis for individual criminal responsibility for
a crime against humanity by the persons involved in that action, article 4
of the Covenant cannot be used as justification that a state of emergency
exempted the State in question from its responsibility in relation to the
same conduct. Therefore, the recent codification of crimes against
humanity, for jurisdictional purposes, in the Statute of the International
Criminal Court is of relevance in the interpretation of article 4 of the
Covenant.221
The HRC referred to articles 6 (genocide) and 7 (crimes against humanity) of
the Rome Statute.222 It added that
[w]hile many of the specific forms of conduct listed in article 7 of the
Statute are directly linked to violations against those human rights
that are listed as non-derogable provisions in article 4, paragraph 2, of
219
Id. ¶ 11.
220
See, e.g., UN Doc. CCPR/C/SR.160, ¶ 51 (Syria); UN Doc. CCPR/C/SR.430, ¶ 32 (Peru); UN Doc.
CCPR/C/SR.528, ¶ 11 (Chile). Some studies have suggested that the list of nonderogable rights in
article 4(2) should be extended. See ICJ Study, supra note 39, at 38; and Siracusa Principles, supra
note 19, princ. 70. Article 27 of the AMHR contains a longer list of nonderogable rights than
article 4(2). For states parties to the AMHR, these would be covered by “other obligations under
international law” in article 4(2) of the ICCPR. Cf. the third Advisory Opinion of the IACT, supra
note 205.
221
222
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (July 17, 1998).
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the Covenant, the category of crimes against humanity as defined in that

provision covers also violations of some provisions of the Covenant that
have not been mentioned in the said provision of the Covenant. For
example, certain grave violations of article 27 may at the same time con-
stitute genocide under article 6 of the Rome Statute, and article 7, in
turn, covers practices that are related to, besides articles 6, 7 and 8 of the
Covenant, also articles 9, 12, 26 and 27.223
Second, the HRC considers that there are elements in provisions of the
ICCPR not listed in article 4(2) that cannot be made subject to lawful deroga-

tion.224 It gave some examples:
(a) All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person . . . the
Committee believes that here the Covenant expresses a norm of general
international law not subject to derogation. . . .
(b) The prohibitions against taking of hostages, abductions or unac-
knowledged detention are not subject to derogation. The absolute nature
of these prohibitions, even in times of emergency, is justified by their sta-
tus as norms of general international law.
(c) The Committee is of the opinion that the international protection of
the rights of persons belonging to minorities includes elements that must
be respected in all circumstances. This is reflected in the prohibition
against genocide in international law, in the inclusion of a non-discrimi-
nation clause in article 4 itself (paragraph 1), as well as in the non-
derogable nature of article 18.
(d) As confirmed by the Rome Statute of the International Criminal
Court, deportation or forcible transfer of population without grounds
permitted under international law, in the form of forced displacement by
expulsion or other coercive means from the area in which the persons
concerned are lawfully present, constitutes a crime against humanity.225
The legitimate right to derogate from article 12 of the Covenant during
a state of emergency can never be accepted as justifying such measures.
(e) No declaration of a state of emergency made pursuant to article 4,
paragraph 1, may be invoked as justification for a State party to engage
itself, contrary to article 20, in propaganda for war, or in advocacy of
national, racial or religious hatred that would constitute incitement to
discrimination, hostility or violence.226
223
General Comment 29, supra note 11, at n.7.
224
Id. ¶ 13.
225
Referring to article 7(1)(d) and 7(2)(d) of the Rome Statute.
226
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418 D. McGoldrick
Third, there is a core element of the right to remedies that cannot be

derogated.
Article 2, paragraph 3, of the Covenant requires a State party to the
Covenant to provide remedies for any violation of the provisions of the
Covenant. This clause is not mentioned in the list of non-derogable pro-
visions in article 4, paragraph 2, but it constitutes a treaty obligation
inherent in the Covenant as a whole. Even if a State party, during a state
of emergency, and to the extent that such measures are strictly required
by the exigencies of the situation, may introduce adjustments to the

practical functioning of its procedures governing judicial or other reme-
dies, the State party must comply with the fundamental obligation,
under article 2, paragraph 3, of the Covenant to provide a remedy that
is effective.227
Fourth, the protection of nonderogable rights cannot be circumvented by
derogation from the procedural safeguards that are necessary to secure them.
It is inherent in the protection of rights explicitly recognized as non-
derogable in article 4, paragraph 2, that they must be secured by proce-
dural guarantees, including, often, judicial guarantees. The provisions of
the Covenant relating to procedural safeguards may never be made sub-
ject to measures that would circumvent the protection of non-derogable
rights. Article 4 may not be resorted to in a way that would result in
derogation from non-derogable rights. Thus, for example, as article 6 of
the Covenant is non-derogable in its entirety, any trial leading to the
imposition of the death penalty during a state of emergency must con-
form to the provisions of the Covenant, including all the requirements of
articles 14 and 15.228
Fifth, there are elements of a fair trial that are nonderogable on the basis that
they are guaranteed under international humanitarian law during armed
conflict.
Safeguards related to derogation, as embodied in article 4 of the
Covenant, are based on the principles of legality and the rule of law
inherent in the Covenant as a whole. As certain elements of the right to
a fair trial are explicitly guaranteed under international humanitarian
law during armed conflict, the Committee finds no justification for dero-
gation from these guarantees during other emergency situations. The
Committee is of the opinion that the principles of legality and the rule of
law require that fundamental requirements of fair trial must be
227
Id. ¶ 14. “Gabon should establish effective remedies in legislation that are applicable during a
state of emergency.” UN Doc. A/56/40, Vol. I, ¶ 75(10).
228
General Comment 29, supra note 11, ¶ 15. See ACHR, art. 27(2) (the judicial guarantees essen-
tial for the protection of nonderogable rights is a nonderogable right).
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respected during a state of emergency. Only a court of law may try and
convict a person for a criminal offence. The presumption of innocence
must be respected. In order to protect non-derogable rights, the right to
take proceedings before a court to enable the court to decide without
delay on the lawfulness of detention, must not be diminished by a State
party’s decision to derogate from the Covenant.229
State representatives have been asked to explain how the relevant domestic
provisions ensure that the nonderogable rights in article 4(2) are protected in
times of public emergency.230 On a number of occasions, members have

clearly stated their view that nonderogable rights were being violated, for
example, in Chile,231 Uruguay,232 Iran,233 and El Salvador.234
The HRC stresses that states’ constitutional or legislative provisions must be
compatible with article 4(2) of the ICCPR. For example, it has expressed con-
cern that during the state of emergency envisaged in article 64 of the
Constitution of Ukraine the right to freedom of thought and to religion could
be restricted in a manner incompatible with article 4 of the ICCPR.235
12.2. Reservations to nonderogable provisions

It is difficult to see how a reservation to a derogation provision could be other
than contrary to the object and purpose of a human rights treaty. The HRC
considered the issue in a General Comment on reservations, stating
[t]he Committee has further examined whether categories of reserva-
tions may offend the “object and purpose” test. In particular, it falls for
consideration as to whether reservations to the non-derogable provisions
of the Covenant are compatible with its object and purpose. While there
is no hierarchy of importance of rights under the Covenant, the opera-
tion of certain rights may not be suspended, even in times of national
emergency. This underlines the great importance of non-derogable
rights. But not all rights of profound importance, such as articles 9 and
27 of the Covenant, have in fact been made non-derogable . . . some pro-
visions are non-derogable exactly because without them there would be
229
230
See, e.g., UN Doc. CCPR/C/SR.248, ¶ 4 (Venezuela); UN Doc. CCPR/C/SR.271, ¶ 28 (Kenya);
UN Doc. A/46/40, ¶¶ 267–71, 309 (India).
231
See supra note 99.
232
See UN Doc. CCPR/C/SR.355–57; UN Doc. CCPR/C/SR.359; UN Doc. CCPR/C/SR.373.
233
See UN Doc. CCPR/C/SR.364–66; UN Doc. CCPR/C/SR.368.
234
See UN Doc. CCPR/C/SR.468–69; UN Doc. CCPR/C/SR.474; UN Doc. CCPR/C/SR.485.
235
UN Doc. A/57/40, Vol. I, ¶ 74(11). See also UN Doc. A/54/40, Vol. I, ¶ 104 (Armenia); Id. ¶ 251
(Losotho); UN Doc. A/57/40, Vol. I, ¶ 77(8) (Azerbaijan).
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420 D. McGoldrick
no rule of law. A reservation to the provisions of article 4 itself, which

precisely stipulates the balance to be struck between the interests of the State
and the rights of the individual in times of emergency, would fall in this cate-
gory. And some non-derogable rights, which in any event cannot be
reserved because of their status as peremptory norms, are also of this
character—the prohibition of torture and arbitrary deprivation of life
are examples. While there is no automatic correlation between reserva-
tions to non-derogable provisions, and reservations which offend against
the object and purpose of the Covenant, a State has a heavy onus to jus-

tify such a reservation.236
Only one state, Trinidad and Tobago, has made a reservation to article 4(2).
That reservation stated that
[t]he Government of the Republic of Trinidad and Tobago reserves the
right not to apply in full the provision of paragraph 2 of article 4 of the
Covenant since section 7(3) of its Constitution enables Parliament to
enact legislation even though it is inconsistent with sections (4) and (5)
of the said Constitution.237
During consideration of the report of Trinidad and Tobago, this reservation
was criticized.238 The Federal Republic of Germany had also lodged a formal
objection to the reservation stating that in its opinion, “it follows from the text
and the history of the Covenant that the said reservation is incompatible with
the object and purpose of the Covenant.”239 The state representative replied
that in view of the serious nature of the question it would have to be put to the
relevant ministry.240 There needs to be an established mechanism to ensure
that a prompt reply is received from the state concerned rather than waiting
until consideration of that state’s next periodic report. In its concluding obser-
vations in 2000, the HRC stated that Trinidad and Tobago should reconcile the
limitations imposed by article 4 of the covenant with domestic measures to be
taken in cases of public emergency, including respecting the prohibition on
derogation in article 4(2).241
236
General Comment 24, Issues relating to reservations made upon ratification or accession to
the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of
the Covenant, Nov. 4, 1994, UN Doc. A/50/40, Vol. I, 119, ¶ 10 (emphasis added).
237
See HUMAN RIGHTS: STATUS, supra note 31, at 44–45.
238
239
See HUMAN RIGHTS: STATUS, supra note 31, at 51. On reservations, VCLT, supra note 41, arts. 19–23.
240
UN Doc. CCPR/C/SR.555, ¶ 2. When presenting the second periodic report of Trinidad and
Tobago, the state representative indicated that her government had not deemed it necessary to
withdraw the reservation to article 4(2), UN Doc. CCPR/C/SR.765, ¶ 15. The reservation again
attracted criticism. Id. ¶¶ 16–18, 20, 22.
241
UN Doc. A/56/40, Vol. I, ¶ 72(9).
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12.3. Application of nonderogable rights

In Guerrero v. Colombia,242 the complainant (Guerrero’s husband) alleged that
Guerrero and seven other persons had been arbitrarily killed by the police in a
raid, that the police action was unjustified and had been inadequately investi-
gated by the Colombian authorities. Criminal investigations into the cases
were defeated by recourse to Legislative Decree No. 0070 that justified the
actions taken by the police in the course of certain operations.243 The decree
law had been introduced in the context of an existing state of siege in
Colombia and had been upheld as constitutional by the Colombian Supreme

Court.244 The state party referred to that decision in its submissions to the
HRC. In an interim decision, the HRC decided to request information as to
“how, if at all, the state of siege proclaimed in Colombia affected the present
case.”245 The state party replied that the state of siege would affect the case
only if those involved in the police operation invoked the decree law in justifi-
cation of the act and if this was accepted by the military tribunal trying the
case. It was submitted that the state of siege had no effect on either criminal or
civil proceedings or on any administrative action brought by the injured party,
although it was acknowledged that no civil action could be instituted in con-
junction with military proceedings. The ultimate acquittal of all the accused
precluded the filing of a civil or an administrative suit.
The HRC stated that, in formulating its views, it took account of the refer-
ence to a situation of disturbed public order in Decree No. 0070 and took note
of the notification of Colombia under article 4(3) of the ICCPR.246 That notifi-
cation referred to the existence of a state of siege in all the national territory
since 1976 and to the necessity of adopting extraordinary measures to deal
with such a situation. The notification declared that “temporary measures
have been adopted that have the effect of limiting the application of article 19
paragraph 2 (freedom of expression) and article 21 (right of peaceful assem-
bly).”247 The HRC observed that the case was not concerned with either of
those articles and that under article 4(2) of the Covenant several rights were
nonderogable including articles 6 and 7, which had been invoked by the com-
plainant.248 The HRC then examined the facts and expressed the view that arti-
cle 6(1) (the right to life) had been violated in two respects and that any further
violations had been subsumed within the more serious violations of article 6.
242
UN Doc. A/37/40, 137.
243
For the text of the Decree, see id. 148–49.
244
Id. ¶ 3.2.
245
Id. ¶ 5.
246
UN Doc. CCPR/C/2/Add. 4.
247
UN Doc. A/37/40, 137, ¶ 12.2.
248
Id.
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422 D. McGoldrick
13. Article 4(3): Notification of derogation

The HRC has consistently referred to the requirements of article 4(3) of the
ICCPR and stressed that they are not a “mere formality.”249 In its first General
Comment on article 4, it stated that along with the protection of human
rights, “it was important that States parties, in times of public emergency,
inform other States parties of the nature and extent of the derogations they
have made and of the reasons therefore, and further, to fulfil their reporting
obligation under article 40 of the Covenant by indicating the nature and
extent of each right derogated from together with the relevant documenta-

tion.”250 General Comment 29 dealt with the requirements in more detail,
stating that
notification is essential not only for the discharge of the Committee’s
functions, in particular in assessing whether the measures taken by the
State party were strictly required by the exigencies of the situation, but
also to permit other States parties to monitor compliance with the provi-
sions of the Covenant. In view of the summary character of many of
the notifications received in the past, the Committee emphasizes that the
notification by States parties should include full information about the
measures taken and a clear explanation of the reasons for them, with full
documentation attached regarding their law. Additional notifications
are required if the State party subsequently takes further measures
under article 4, for instance by extending the duration of a state of
emergency. The requirement of immediate notification applies equally
in relation to the termination of derogation. These obligations have not
always been respected: States parties have failed to notify other States
parties, through the Secretary-General, of a proclamation of a state of
emergency and of the resulting measures of derogation from one or
more provisions of the Covenant, and States parties have sometimes neg-
lected to submit a notification of territorial or other changes in the exer-
cise of their emergency powers.251 Sometimes, the existence of a state of
emergency and the question of whether a State party has derogated from
provisions of the Covenant have come to the attention of the Committee
only incidentally, in the course of the consideration of a State party’s
report. The Committee emphasizes the obligation of immediate interna-
tional notification whenever a State party takes measures derogating
249
UN Doc. CCPR/C/SR.469, ¶ 19 (El Salvador). See also UN Doc. CCPR/C/SR.355, ¶ 24
(Uruguay).
250
General Comment 5(13), supra note 11, ¶ 3. See also Siracusa Principles, supra note 19, princ.
44–47.
251
See comments/concluding observations on Peru, Ireland, Egypt, Cameroon, Russian Federation,
Zambia, Lebanon, India, and Mexico.
Icon-73.qxd 3/19/04 11:12 AM Page 423
from its obligations under the Covenant. The duty of the Committee
to monitor the law and practice of a State party for compliance with
article 4 does not depend on whether that State party has submitted a
notification.252
Although states send derogation notices to the UN secretary-general, they are
then sent on to the relevant treaty bodies. The HRC notes that compliance with
article 4(3) permits other states parties to monitor compliance with the provi-
sions of the covenant. They could do this by an interstate application under
articles 41 and 42 of the ICCPR.253 However, this has never occurred. In prac-

tice, the significance of the derogation notices for the HRC has been in relation
to the reporting procedure and OP1.
Although committee members have stressed the importance of notification
of derogations and indicated on a number of occasions that certain notifica-
tions have not satisfied the requirements of article 4(3), there has been no real
suggestion that derogations made under article 4(1) have been invalid on the
basis of failure to comply or fully comply with the notification requirements in
article 4(3).254 The furthest that individual members have gone has been to
state their view that the derogations made have not satisfied the requirements
of article 4(1) as to, for example, proportionality, necessity, and official procla-
mation. For instance, during consideration of the second periodic report of
Chile255 a number of members were severely critical of measures taken under
the state of emergency. For example, Bernhard Graefrath commented, inter
alia, that
[i]n order to permit continuing violations of human rights, the uncon-
stitutional state of emergency had been institutionalized during an
interim period and subsequently in the new Constitution. As a result, the
Junta now disposed of various levels of emergency measures which
could be used whenever necessary to protect the existing regime. What
was called an emergency in Chile had nothing to do with what was
intended by the same term in article 4 of the Covenant. The so-called
emergency was being used to justify the discriminatory measures pro-
vided for in article 8 of the 1980 Constitution, which condemned as ille-
gal any action by an individual or group intended to propagate doctrines
of a totalitarian character or based on class warfare.256
252
253
ICCPR, supra note 3, arts. 41, 42.
254
See, e.g., UN Doc. CCPR/C/SR.355, ¶ 24 (Uruguay). See Silva case, UN Doc. A/36/40, 130.
255
UN Doc. CCPR/C/32/Add.1 (1981). For subsequent consideration of Chile after the restoration
of democracy see UN Doc. A/54/40, Vol. I, ¶¶ 197–222.
256
UN Doc. CCPR/C/SR.528, ¶ 28. See also his comments on Chile at UN Doc. CCPR/C/SR.128, ¶¶
8–9 and on Iran at UN Doc. CCPR/C/SR.366, ¶ 27. In the Greek Case, the European Commission
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424 D. McGoldrick
Inevitably, in its consideration of states of emergency under article 4, whether

proclaimed officially or de facto, members of the HRC have had to consider the
wider political context of interstate disputes and civil wars with or without the
involvement of outside states, for example, with regard to the situations in
Afghanistan,257 Colombia,258 Cyprus,259 Egypt,260 El Salvador,261 Jordan,262
Lebanon,263 Nicaragua,264 and Sri Lanka.265 It is notable that during consid-
eration of these situations members have generally, though not always,
avoided commenting on the political aspects and the relevance of actions of
other states.266 Normally, members have simply confined themselves to asking

how these factual situations affected the implementation of ICCPR rights in
the states concerned.267 Such an approach must be commended in light of the
HRC’s membership and status and the politicized nature of most other United
Nations human rights bodies.268
of Human Rights rejected the applicants’ view that a revolutionary government is barred from
derogating under article 15 of the ECHR because it created the crisis. Greek Case, 12 Y.B. Eur.
Convention Hum. Rts. 31–32 (1969). Only Felix Ermacora, who later became a member of the
HRC, dissented from this view. Id. at 102–3.
257
258
259
See UN Doc. CCPR/C/SR.27–28; UN Doc. CCPR/C/SR.165–66.
260
See UN Doc. CCPR/C/SR.499; UN Doc. CCPR/C/SR.500; and UN Doc. CCPR/C/SR.505.
261
See UN Doc. CCPR/C/SR.468–69; UN Doc. CCPR/C/SR.474; UN Doc. CCPR/C/SR.485;
UN Doc. CCPR/C/SR.716–17; and UN Doc. CCPR/C/SR.719.
262
See UN Doc. CCPR/C/SR.103; UN Doc. CCPR/C/SR.331–32; UN Doc. A/46/40, ¶¶ 576–78.
263
See UN Doc. CCPR/C/SR.442–44; UN Doc. CCPR/C/SR.446; UN Doc. A/52/40, Vol. I,
¶¶ 332–61.
264
See UN Doc. CCPR/C/SR.420–22; UN Doc. CCPR/C/SR.428; UN Doc. CCPR/C/SR.429; UN
Doc. A/45/40, Vol. I, ¶¶ 397–98, 425. See Case Concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), 1986 I.C.J. 14 (merits, judgment).
265
See UN Doc. CCPR/C/SR.471–73; UN Doc. CCPR/C/SR.477; UN Doc. A/46/40, ¶¶ 454–91. See
Patricia Hyndman, Human Rights, the Rule of Law and the Situation in Sri Lanka, 8 U. N.S.W. L.J. 337
(1985).
266
A good example of the judicious but critical approach of HRC members is the consideration of
the report of Afghanistan, supra note 203. A less successful consideration took place in the report
of the post-1979 regime in Iran. See UN Doc. CCPR/C/SR.364–66; UN Doc. CCPR/C/SR.368. See
also UN Doc. CCPR/C/SR.430, ¶ 46 (Peru).
267
For some exceptions to the HRC’s general approach, see the comments at UN Doc.
CCPR/C/SR.442, ¶¶ 9–19, 29–34; UN Doc. CCPR/C/SR.443, ¶¶ 15–36, 40–42, concerning the
Israeli presence in Lebanon; UN Doc. CCPR/C/SR.468, ¶ 25 (concerning U.S. interference in El
Salvador); reply at UN Doc. CCPR/C/SR.468, ¶ 36; UN Doc. CCPR/C/SR.604, ¶ 64 (Afghanistan);
UN Doc. CCPR/C/SR.604, ¶ 44 (on the Soviet occupation of Afghanistan).
268
On the UN Human Rights Commission, see HOWARD TOLLEY, THE UN COMMISSION ON HUMAN
RIGHTS (Westview 1987).
Icon-73.qxd 3/19/04 11:12 AM Page 425
The stress put on article 4(3) by HRC members has borne fruit. It appears
that states parties are increasingly complying with the notification obligations
in article 4(3), particularly after the state has appeared before the HRC.269 Of
the 149 states parties to the ICCPR as of February 2002, twenty-four of them
have given notification of derogations under article 4(3) while states of emer-
gency are known to exist or have existed, since entry into force of the ICCPR,
for a number of other states parties.270

14. Appraisal
The HRC’s work under article 4 is obviously of major importance as regards its
role in the implementation of the ICCPR.271 While its first General Comment
on article 4 was rather brief and inadequate, the second General Comment
was very detailed and provided clear guidance and interpretation on a range of
issues. Its terms have been noted above.
It was crucially important for the HRC to take a critical and restrictive
approach to the implementation of article 4 for two reasons. First, as we have
already noted, public emergencies present grave problems for the securing of
human rights.272 Second, in view of its very limited powers both under the
reporting and individual communications procedures, “[t]he most the imple-
mentation bodies can do is to adopt a scrupulous judicial attitude that will
influence world opinion by its objectivity and thoroughness.”273 The HRC has
established itself as an independent and respected international human rights
body able to bring a constructive analysis to bear on public emergencies.274
That analysis can be of considerable assistance to a government acting in good
faith and in cooperation with the HRC. Where those elements of good faith
and cooperation are lacking, the most the HRC’s considerations can achieve
is to stimulate international pressure through national and international
publicity.
269
ICJ study, supra note 39, at 454 (suggesting that during the first five years the covenant was in
force at least fifteen states parties failed to give any or timely notice of states of emergency includ-
ing Colombia, Peru, and Uruguay).
270
See United Nations Treaty Collection, Declarations and Reservations, available at
http://www.unhchr.ch/html/menu3/b/treaty5_as.htm; General Comment 5(13), supra
note 11, ¶ 2.
271
See Hartman, supra note 23, at 40–52; Jaap Walkate, The Human Rights Committee and Public
Emergencies, 9 YALE J. WORLD PUB. ORD. 133 (1982).
272
See supra note 1.
273
Hartman, supra note 23, at 49.
274
See Michael O’Flaherty, Treaty Bodies Responding to States of Emergency, in THE FUTURE OF UN
HUMAN RIGHTS TREATY MONITORING BODIES 439 (James Crawford & Philip Alston eds., Cambridge
Univ. Press 2000).
Icon-73.qxd 3/19/04 11:12 AM Page 426
426 D. McGoldrick
15. Derogations and terrorism: The effects of the

attacks on the U.S. on September 11, 2001
The then–UN High Commissioner for Human Rights, Mary Robinson, categorized
the attacks on the World Trade Center as a “crime against humanity.”275 In terms
of complexity theory the attacks on the U.S. might be considered a “turning point”
or “tipping point.”276 In a debate on Iraq, the U.K. prime minister stated that,
‘’What happened on 11 September has changed the psychology of America—
that is clear—but it should have changed the psychology of the world.”277 The
scale and significance of the attack was such that there is a serious debate about

whether the world after those attacks is different than the one before.278 The world
and its order, or disorder, are conceived of differently thereafter. The U.S. ambas-
sador for war crimes, Pierre-Richard Prosper, commented that
[i]t is clear that September 11th has changed the world and the way we
look at transnational threats and crimes. The tragic events of September
11th have forced us all to re-examine our traditional notions of security,
our understanding of our attackers, and our approaches to bringing the
perpetrators to justice.279
For Steve Smith, one of the implications “is that the events of September 11
shatter the key assumptions of many proponents of globalization that the
conveyor belt of economic development and the spread of liberal democracy
were in some way inevitable, irreversible and universal. They are not, and
notions of a direction, even a teleology, to history are simply wrong.”280
Andrew Hurrell was more cautious in his assessment and fits the attacks into
emerging trends, stating that “[t]he attacks on 11 September did not usher in
a new age. They reinforced powerful tendencies that were already visible in
the post-cold war order of the 1990s but also exacerbated the tensions and
contradictions within that order.”281
275
Mary Robinson, United Nations High Commissioner for Human Rights, Remarks at the United
States Institute of Peace (Oct. 17, 2001), available at http://usinfo.state.gov/topical/pol/ter-
ror/01101706.htm.
276
“Tipping points involve three notions: that events and phenomena are contagious, that little
causes can have big effects, and that changes can happen in a nonlinear way but dramatically at
a moment when the system switches.” JOHN URRY, GLOBAL COMPLEXITY 53 (Polity 2003). For Urry’s
references to September 11, 2001, see id. at x, 94, 130, 131, and 135.
277
House of Commons, Debate on Iraq, Mar. 18, 2003, Vol. 401, col. 768.
278
See LAW AFTER GROUND ZERO (John Strawson ed., Glasshouse Press 2002).
279
Pierre-Richard Prosper, Address at The Hague, Dec. 19, 2001, available at http://www.
state.gov/s/wci/rm/8053.htm.
280
Steve Smith, The End of the Unipolar Moment? September 11 and the Future of World Order, 16
INT’L REL. 171, 178 (2002).
281
Andrew Hurell, “There are no Rules” (George W. Bush): International Order After September 11, 16
INT’L REL. 185, 202 (2002). See also Chris Brown, The “Fall of the Towers” and International Order,
Icon-73.qxd 3/19/04 11:12 AM Page 427
Many states have responded to the attacks by introducing or extending

antiterrorist legislation. The terms of such legislation may or should require
the state to derogate from article 4 of the ICCPR, as, for example, the U.K. has
done.282 The legislation has been and will continue to be considered by the
HRC, as successive states appear before it.
The HRC was concerned, for example, that Estonia’s relatively broad defini-
tion of the crime of terrorism and of membership in a terrorist group under
the state party’s criminal code may have adverse consequences for the protec-
tion of rights under article 15 of the covenant, a provision that is nondero-

gable under article 4(2).283 The U.K. was asked to explain the compatibility of
its antiterrorist legislation with the ICCPR and with article 4, in particular.284
The HRC recognizes that the security requirements relating to the events of
September 11, 2001, have given rise to efforts by New Zealand to address ter-
rorism. The HRC was concerned that the impact of such legislative and other
measures to implement Security Council resolution 1373 or changes in policy
regarding New Zealand’s obligations under the ICCPR may not have been fully
considered. The committee was concerned about the possible negative effects
of the new legislation on asylum seekers, including such practices as remov-
ing the immigration risk offshore. Despite assurances that their human rights
would be respected, the absence of monitoring mechanisms in the expulsion of
those suspected of terrorism to their countries of origin could pose risks to the
safety and lives of the persons expelled (articles 6 and 7 of the covenant).285
In relation to Sweden, the HRC observed that
[w]hile it understands the security requirements relating to the events of
11 September 2001, and takes note of the appeal of Sweden for respect
for human rights within the framework of the international campaign
against terrorism, the Committee expresses its concern regarding the
effect of this campaign on the situation of human rights in Sweden, in
particular for persons of foreign extraction. The Committee is concerned
at cases of expulsion of asylum-seekers suspected of terrorism to their
countries of origin. Despite guarantees that their human rights would be
respected, those countries could pose risks to the personal safety and
lives of the persons expelled, especially in the absence of sufficiently
serious efforts to monitor the implementation of those guarantees
(two visits by the embassy in three months, the first only some five weeks
16 INT’L REL. 263 (2002) (arguing that the crimes of September 11 will not be seen as of world-
historical import).
282
See supra text accompanying note 192.
283
UN Doc. CCPR/CO/77/EST, ¶ 8.
284
UN Doc. CCPR/CO/73/UK, ¶ 40. See Responses by the U.K. to HRC’s Concluding Observations,
UN Doc. CCPR/CO/73/UK/Add.2.
285
UN Doc. CCPR/CO/75/NZL, ¶ 11.
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428 D. McGoldrick
after the return and under the supervision of the detaining authorities)
(arts. 6 and 7 of the Covenant). The Committee also stresses the risk of
violations of fundamental rights of persons of foreign extraction
(freedom of expression and privacy), in particular through more
frequent recourse to telephone tapping and because of an atmosphere of
latent suspicion towards them (arts. 13, 17 and 19 of the Covenant).
(a) The State party must ensure that measures taken under the interna-
tional campaign against terrorism are fully in conformity with the
Covenant. The State party is requested to ensure that the concern over

terrorism is not a source of abuse.
(b) In addition, the State party should maintain its practice and tradi-
tion of observance of the principle of non-refoulement. When a State
party expels a person to another State on the basis of assurances as to
that person’s treatment by the receiving State, it must institute credible
mechanisms for ensuring compliance of the receiving State with these
assurances from the moment of expulsion.
(c) The State party is also requested to undertake an educational cam-
paign through the media to protect persons of foreign extraction, in par-
ticular Arabs and Muslims, from stereotypes associating them with
terrorism, extremism and fanaticism.286
The response of the HRC, to date, has been to stress that states parties “are
under an obligation to ensure that counter-terrorism measures taken under
Security Council resolution 1373 (2001) are in full conformity with the
Covenant.”287 Definitions of terrorism should not lead to abuse and be in con-
formity with the ICCPR.288 The principle of nonrefoulment should be strictly
observed,289 and measures must stay within the limits of Resolution 1373; the
fear of terrorism should not become a source of abuse.290 Links between
and the Security Council’s Counter Terrorism Committee under Resolution
1373 the HRC are to be strengthened.291 Nonetheless, there is no doubt that
the multifaceted responses of states in the war against terrorism will strain
286
UN Doc. CCPR/CO/74/SWE, ¶ 12.
287
UN Doc. A/57/40, Vol. I, ¶ 84(8) (Moldova).
288
UN Doc. A/57/40, Vol. I, ¶ 81(11) (New Zealand).
289
Id.
290
UN Doc. A/57/40, Vol. I, ¶ 83(18) (Yemen). See Eric Rosand, Security Council Resolution 1373,
the Counter-Terrorism Committee, and the Fight Against Terrorism, 97 AM. J. INT’L L. 333 (2003).
291
Report of the Secretary-General on Implementation of General Assembly Resolution 57/129,
UN Doc. E/CN.4/2003/120; Briefing by Sir Nigel Rodley, Vice-Chairperson Human Rights
Committee, Human Rights and Counter-Terrorism Measures, to Security Council Counter-
Terrorism Committee, UN Headquarters, June 19, 2003.
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established international human rights norms and interpretations.292 As illus-

trated in this article, the interface between public emergency powers and inter-
national law is a complex and sophisticated one. It is at that interface that the
strength of international human rights law will be most severely tested in the
twenty-first century.
292
For an excellent analysis, see Joan Fitzpatrick, Speaking Law to Power: The War Against Terrorism
and Human Rights, 14 EUR. J. INT’L L. 241 (2003). See also DOMINIC MCGOLDRICK, FROM “9–11” TO THE
“IRAQ WAR 2003”—INTERNATIONAL LAW IN AN AGE OF COMPLEXITY ch. 3 (Hart 2a).

The Interface Between Public Emergency Powers and International Law

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The Interface Between Public Emergency Powers and International Law

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The interface between public emergency

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2. Determining the applicable international law

* Professor of Law, Liverpool Law School

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through oral proceedings. At the conclusion of the examination, the HRC

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nongovernmental bodies19 are used to support or contrast with that universal

4. Limitations and Derogations

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(e.g., proportionality, nondiscrimination) being applicable.24 Many of the

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5. The ICCPR and derogations

otherwise operate to preclude wrongfulness (for example, self-defense or

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Derogations are addressed in article 4 of the ICCPR.54 Article 4 provides:

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6. State reports on article 4

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7. The First Optional Protocol (OP1)

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violence, or a major industrial accident.82 Wars are clearly included even

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8.2. The existence of the emergency must be officially proclaimed

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of a single organ of government, for example, the executive or the armed

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evidence of fact or law justifying the derogations concerned. Such an

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to with regard to the rights guaranteed by the Covenant, or to show that

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national determination.128 This approach closely parallels that of the

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declaration of a public emergency although there is useful comparative

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10. The extraterritorial application of human rights

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10.1. Would the HRC follow Bankovic?

unanimous147 it would be surprising if the HRC, considering the same facts,

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10.2. Position under ICCPR of people held in Guantanamo Bay?

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10.3. Position under ICCPR of military occupation of Iraq in 2003?

10.4. Legal space

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11. “The States parties to the present Covenant may

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11.1. The limitation derogating from obligations under the present

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11.2. Reservations to the derogation provision

11.3. Other obligations under international law

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