in a way that not only respects the principle of legality, but also ensures
that it is restricted to its legitimate purpose. Article 19 of the International
Covenant on Civil and Political Rights allows only limitations on the freedom
of expression that are “necessary” for the achievement of the purposes
listed in its paragraph 3. Prohibiting incitement to terrorism must therefore
be limited to what is actually required to protect national security or public
order. The provision, and the way in which it is applied, must also be
proportional, i.e., for each measure, one must determine whether, given
the importance of the right or freedom, the impact of the measure on the
enjoyment of that right or freedom is proportional to the importance of
the objective being pursued by the measure and its potential effectiveness
in achieving that objective.43 The merit of any measure will depend on the
importance of the counter-terrorism objective it pursues, as well as on its
potential efficacy in achieving it. The imposition of a limitation on rights
and freedoms for the purpose of countering terrorism, but by ineffective
means, is unlikely to be justifiable. In assessing the impact of a counterterrorism measure on rights and freedoms, consideration must be given,
case by case, to the level to which it limits the right or freedom, and also
to the importance and degree of protection offered by the human right
being limited.44
2. Derogations
In a limited set of circumstances, such as a public emergency which
threatens the life of the nation, States may take measures to derogate
from certain human rights provisions under the International Covenant on
Civil and Political Rights. Its article 4 sets out the formal and substantive
requirements which a State party must fulfil to derogate legitimately from
certain obligations under the Covenant.45 A state of emergency must
be understood as a truly exceptional, temporary measure to which may
be resorted only if there is a genuine threat to the life of the nation.
Short of such extreme situations, States must develop and implement
effective domestic legislation and other measures in compliance with their
international human rights obligations.
Through the intermediary of the United Nations Secretary-General, a
derogating State must immediately inform other States parties to the
Covenant of the provisions from which it has derogated and of the reasons
for which it has done so. Moreover, the State party must be faced with a
situation which constitutes a threat to the life of the nation and may take
only such measures as strictly required by the exigencies of that situation.
This requirement relates to the degree of interference as well as to the
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