2. HUMAN RIGHTS PROTECTION DURING TIMES OF EMERGENCY During emergencies, states may temporarily suspend or alter some government functions, take on special powers and place limits on human rights in order to address specific threats.11 Even without formally declaring a state of emergency, national governments can adopt “exceptional measures” to protect the public that restrict human rights, under certain conditions that will be further explained below. For most countries, the declaration of a state of emergency is an extraordinarily rare occurrence. The extraordinary measures that a country imposes depend on a number of factors, including the domestic legal framework that defines the scope of emergency powers, the organizational structure and available resources for dealing with the emergency, the particular circumstances that give rise to the emergency, and whether and in what manner the state has responded to prior crises. State authorities have a margin of discretion in determining whether a public emergency exists, the nature of the response and, specifically, whether the measures also warrant derogations from human rights obligations. Emergency actions, however, must comply with international law. 2.1. DEROGATION FROM HUMAN RIGHTS OBLIGATIONS International human rights law and international humanitarian law define the acceptable use of extraordinary powers during publicly declared states of emergency or of equivalent status. States are permitted to temporarily derogate from some of their obligations to secure rights and freedoms, but they may not totally abandon their substantive human rights obligations or their procedural obligations (i.e., the duty to provide sufficient remedies for human rights violations). Certain fundamental rights are non-derogable even in times of emergency. These rights are outlined in international human rights treaties (the International Covenant on Civil and Political Rights [ICCPR] and the European Convention on Human Rights [ECHR])12. The UN Human Rights Committee has noted that the non-derogable provisions of the ICCPR are not an exhaustive list, as the Covenant makes clear that measures taken during public emergencies must be consistent with other obligations under international law, including international humanitarian law.13 11 12 13 Geneva Centre for the Democratic Control of Armed Forces (DCAF), States of Emergency Backgrounder, October 2005, <https://www.files.ethz.ch/isn/14131/backgrounder_02_states_emergency.pdf>. Of the OSCE participating States, all but one is a party to the ICCPR (Holy See). Forty-seven OSCE participating States are also members of the Council of Europe and party to the ECHR. UN Human Rights Committee (UNHRC), “General Comment No. 29 on States of Emergency (Article 4)”, 31 August 2001, CCPR/C/21/Rev.1/Add.11, <https://www.refworld.org/docid/453883fd1f.html>. 8