The following points can be extrapolated from international human rights case law on derogation:220 • courts will be reluctant to overrule the executive in relation to the existence of an emergency threatening the life of the nation; • however, the courts will not give government a carte blanche and will retain the power to review the need to derogate; • the derogation needs to be made publicly, and its nature, extent and purpose explained; • the derogation can be reviewed; • that review includes scope, duration, and manner of implementation; • once it has been established that there is a threat to the nation requiring derogation, that response must still be a proportionate and necessary one. If it goes too far, the derogation will be unlawful. Reviewing the extent of non-derogable rights: HRC General Comment 29 221 In July 2001, the Human Rights Committee addressed the issue of derogation. General Comment 29 sets out a number of non-derogable rights, noting that “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.” It also points out that even during states of emergency, “States parties may in no circumstance invoke Article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law.” The rights that, as a matter of international law, cannot be made subject to lawful derogation, beyond those already contained in Article 4, ICCPR are: • all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person (Article 10 ICCPR); • prohibitions against taking of hostages, abductions or unacknowledged detention; • protection of specific minority rights such as prohibition against genocide; 220 In Brannigan and McBride, the applicants had been arrested under the Prevention of Terrorism Act 1984 and detained for six days and four days respectively, without being brought before a court. The European Court of Human Rights therefore found that the requirement of promptness had not been respected. However, the UK Government pointed out that the failure to observe these requirements of Article 5 had been met by their derogation under Article 15, ECHR. The Court, therefore, despite finding a breach of Article 5(3), also accepted that the derogation from that provision was within the ambit of Article 15 of the European Convention. The UK had therefore acted lawfully, see ECtHR, Brannigan and McBride v. UK, Applications nos. 14553/89 and 14554/89, 25 May 1993, para. 66. These cases need to be compared with more recent Turkey cases. In Aksoy, the Court, while agreeing with Turkey that there was a public emergency which threatened the life of the nation, considered that the measure taken, with regard to unsupervised detention, could not be justified as being strictly required by the exigency of the situation. In Aksoy, the applicant was detained for fourteen days without judicial supervision, which the Court considered unnecessary. The Court pointed out that “this period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture”, ECtHR, Aksoy v. Turkey, Case no. 100/1995/606/694, 26 November 1996, para. 78. Making reference to Brannigan and McBride the Court noted that safeguards in Northern Ireland had protected against “arbitrary behaviour and incommunicado detention” (ECtHR, Brannigan and McBride, para. 62). In Aksoy, the Court acknowledged “that the investigation of terrorist offences undoubtedly presented the authorities with special problems”, but went on to say, “in this case insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him”, ECtHR, Aksoy, para. 83. 221 HRC, General Comment No. 29: States of Emergency (article 4), doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para 6. Countering Terrorism, Protecting Human Rights 89