to be treated as such and no disadvantage shall result from this choice or from the exercise of
the rights which are connected to that choice.216
Human rights within a state of emergency
Article 4, ICCPR:
Article 15, ECHR:
1. In time of public emergency which threatens the life of
the nation and the existence of which is officially proclaimed,
the States Parties to the present Covenant may take measures derogating from their obligations under the present
Covenant to the extent strictly required by the exigencies of
the situation, provided that such measures are not inconsistent with their other obligations under international law and
do not involve discrimination solely on the ground of race,
colour, sex, language, religion or social class.
1. In time of war or other public emergency threatening the
life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to
the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its
other obligations under international law.
2. No derogation from Articles 6, 7, 8 (paragraphs 1 ands 2),
11, 15, 16 and 18 may be made under this provision.
3. Any High Contracting Party availing itself of this right of
derogation shall keep the Secretary General of the Council
of Europe fully informed of the measures which it has taken
and the reasons therefore. It shall also inform the Secretary
General of the Council of Europe when such measures have
ceased to operate and the provisions of the Convention are
again being fully executed.
3. Any State Party to the present Covenant availing itself of
the right of derogation shall immediately inform the other
States Parties to the present Covenant through the intermediary of the Secretary General of the United Nations of the
provisions from which it has derogated and of the reasons
by which it was actuated. A further communication shall be
made, through the same intermediary on the date on which
it terminates such derogation.
2. No derogation from Article 2, except in respect of deaths
resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
Under exceptional circumstances, it may be possible to derogate from certain obligations
under international human rights standards. Article 4 ICCPR and Article 15 ECHR (see box
above) allow states to go beyond simply limiting rights where it is lawful to do so, to derogating from them or suspending them in times of emergency that threaten the life of the nation.
In the context of countering terrorism, the circumstance under which such power can be
relied upon needs to be carefully considered. Any policies that go beyond what is provided for
by human rights standards need to be considered in the context of derogation and whether
it is lawful to derogate under the circumstances. It is essential, therefore, to understand how
and when it is permissible lawfully to derogate from international human rights standards.
Derogations are a temporary measure
The power to derogate in human rights treaties is a temporary measure that permits the suspension of certain rights in times of grave emergency. These rights should be suspended only
in order to be able to return to a situation of normalcy as soon as possible. Once that objective
has been realized, adherence to the human rights treaty should be restored in full.
216 See ibid. 1990 Copenhagen Document, para.32(6), ibid., Article 3(2) UN Declaration on Minorities, and Article 3(1)
FCNM.
Countering Terrorism, Protecting Human Rights
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