j,

INTERNATIONAL

HUMAN RIGHTS

THE SUCCESSOR TO INTERNATIONAL HUM AN

RIGHTS IN CONTEXT:

LAW, POLITICS AND MORALS

Text and Materials

PHILIP ALSTON

John Norton Pomeroy Professor of Law at New York University School of Law

RYAN GOODMAN

Anne and Joel Ehrenkranz Professor of Law at New York University School of Law

Professor of Politics and Professor of Sociology at New York University

The authors are co-directors of the

Center for Human Rights and Global Justice at New York University School of Law

OXFORD UNIVERSITY PRESS

160 Part B. Normative Foundation of International Human Rights

remedies when granted'. They undertake in particular 'to develop the possibilities of judicial remedy'.

(9) Two types of provisions in the ICCPR limit states' obligations thereunder:(a) Under closely stated conditions and limits, Article 4 dealing with a public

emergency ('which threatens the life of the nation and the existence of which is offi­cially proclaimed' ) permits a derogation, in the sense of a temporary adjustment to or suspension of the operation of some of the rights declared by the Covenant. Thus states may consciously, purposively depart from such rights as those in Article 9 relating to arrest and detention. Note that under Article 4(2) certain rights are non­derogable. This issue of derogation becomes a major concern in Chapter 5, which deals with national security issues.

(b) Several articles include limitation clauses -that is, provisions indicating thata given right is not absolute but may be adapted to take account of a state's need to protect public safety, order, health or morals, or national security. See, for example, Articles 18 and 19. In Articles 21 and 22, the limitation clause is phrased in terms of permitting those restrictions on a right 'which are necessary in a democratic soci­ety'. Compare the broad provision of Article 29(2) of the UDHR, which is not linked to a specific right. Note that the limitation clauses may overlap with but are not iden­tical with the common problem of resolving conflicts between rights (such as rights to speech and to privacy, as accommodated in the law of defamation) that also may lead to a 'limitation', in this case of one right to give space to the other.

(10) Article 5 of the UDHR bans 'cruel, inhuman or degrading' punishment,but that instrument does not refer to capital punishment as such. See Article 6(2) of the ICCPR. The Second Optional Protocol to the ICCPR, aiming at abolition of the death penalty, had 74 states parties as of May 2012. Article 1 provides that 'No one within the jurisdiction of a State Party to the present Protocol shall be executed .... Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction'. Recall the discussion about measures affecting capital pun­ishment at pp. 17-55, supra.

One can organize or classify the rights declared in the Declaration and Covenant in various ways, depending on the purpose of the typology. Consider the adequacy of the following scheme that embraces most of the Covenant's rights, although it excludes such distinctive provisions as ICCPR Article 1 on the self-determination of peoples and Article 27 on the enjoyment by minorities of their own cultures:

(a) Protection of the individual's physical integrity, as in provisions on tor­ture, arbitrary arrest and arbitrary deprivation of life;

(b) procedural fairness when government deprives an individual ofliberty, asin provisions on arrest, trial procedure and conditions of imprisonment

( c) equal protection norms defined in racial, religious, gender and other terms;,( d) freedoms of belief, speech and association, such as provisions on political

advocacy, the practice of religion, press freedom, and the right to holda1i1assembly and form associations; and

(e) the right to political participation.

162 Part B. Normative Foundation of International Human Rights

3. Article 2 of the ICCPR includes states' undertakings 'to respect and to ensure toall individuals' the recognized rights. States parties must 'ensure' that persons whose rights are violated have an 'effective remedy'. Competent authorities 'shall enforce such remedies when granted'.

( a) Is it accurate to say that rights are borne by individuals, and duties are borneonly by states since the ICCPR is concerned only with state violations? Whomay violate, say, your right to bodily security? Who may violate your rightto political participation under Article 25, or your right to procedural dueprocess under Article 14?

(b) Is it accurate to say that the duties of the state are entirely 'negative', in thesense of requiring no more than that the state generally keep its 'hands off'individuals, and refrains from certain conduct such as torture, discrimina­tion, or repression of hostile ( to it) political opinion? Is it accurate to say thatfulfilment by the state of its duties would then be cost-free?

NOTE

Note the following observations about the progressive or immediate character of the state's obligations under the ICCPR, in Dominic McGoldrick, The Human Rights Committee (1991), at 12:

There were marked differences of opinion during the drafting on the matter of the obligations that would be incurred by a State party to the ICCPR. Some repre­sentatives argued that the obligations under the ICCPR were absolute and imme­diate and that, therefore, a State could only become a party to the ICCPR after, or simultaneously with, its taking the necessary measures to secure those rights. If there were disparities between the Covenant and national law they could best be met by reservations ....

Against this view it was argued that the prior adoption of the necessary meas­ures in domestic law was not required by international law ....

Proposals to provide that the necessary measures be taken within a specified time limit or within a reasonable time were rejected as was a suggestion that each State fix its own time limit in its instrument of ratification. The only clear intentions of the [UN Commission on Human Rights] that emerged were those of avoiding excessive delays in the full implementation of the Covenant and of not introducing the general notion of progressiveness that was a feature of the obligations under the then draft [International Covenant on Economic, Social and Cultural Rights].

The objections to the draft article 2(2) were again voiced in the Third Committee but the provision remained unchanged. The Committee's report stated that:

It represented the minimum compromise formula, the need for which, par­ticularly in new States building up their body of legislation, was manifest. The notion of implementation at the earliest possible moment was implicit in arti­cle 2 as a whole. Moreover, the reporting requirement in article 49 (later article 40) would indeed serve as an effective curb on undue delay.

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3. Civil and Political Rights 163

NOTE

· freq;m.ently stated that all rights declared in the ICCPR are 'equal and inter­

de.nt�. Within that formulation, the right of an indigent person to be assigned

assistance in a criminal case in Article 14(3) (c) is of the same rank as and

terc!Qsndent with the right not to be tortured in Article 7. The following read­

ex:,lo:re this issue of equality or hierarchy, and implicitly the notion of inter­

depelild©11ce and indivisibility of all rights ( terms that have come to describe the

, tire 6orpus of international human rights in more recent official documents).

ote how the answer may change with the purpose for which the question is asked.

These-r©adings are concerned primarily with derogation during emergencies.

ANTONIO CASSESE, A PLEA FOR A GLOBAL

COMMUNITY GROUNDED IN THE CORE OF

HUMAN RIGHTS

in Realizing Utopia: The Future oflnternational Law (2012), 137, at 139

We should first of all draw a distinction between (i) a core of fundamental values which must be common to all nations, states, and individuals and may not, there­fore, be derogated from and (ii) other values, the application of which may need to take into account national conditions. The fundamental values of the world society are those enshrined in that core of rules that constitute the international jus co gens, a set of peremptory norms that may not be derogated from.

[I]n the 1960s for the first time in world history the notion was accepted thatthere should be a hierarchy in the body of rules of the international community and that some principles or norms should be at the summit of the legal system. States could not transgress or derogate from these principles inter se ....

With this new development came a clear understanding that jus cogens rules included norms concerning human rights: those banning genocide, slavery, racial discrimination, and forcible denial of self-determination. Over the years national or international bodies have suggested that other international rules also enjoy the status of peremptory norms: the ban on torture, the prohibition of the slave trade, the right to life, the right of access to justice, the right of any person arrested or detained to be brought promptly before a judge (the so-called habeas corpus right), the ban on refoulement (refusal of entry of refugees at the frontier), the prohibition of collective penalties, and the principle of personal responsibility in criminal mat­ters. I would also add the right to a fair trial. Other norms are likely gradually to rise to the level of jus co gens through a process of accretion. This normative process unfolds through judicial decisions (be they national or international), pronounce­ments by collective bodies such as the UN General Assembly, and declarations of states and other international legal subjects. The formation of a norm possessed with jus cogens force results from the convergence of a wide number of factors, all expressing in different forms and to varying degrees the legal view ( the opinio juris) that the international rule at issue enshrines values so fundamental that no devi­ation from it is admissible.

164 Part B. Normative Foundation of International Human Rights

... [P] eremptory norms ... can be considered as those which have universal scope and bearing. They must be obeyed by all nations, states, and individuals of the planet. Other values, consecrated instead in international rules deprived of the nature of jus cogens, although still important, can be restrained in their incidence and scope by individual states, or adjusted to some extent to national conditions - as long as, however, such interpretation or adjustment does not appear to be absolutely arbitrary or unwarranted to other states or the relevant international bodies.

The existence of two different sets of values and corresponding international norms can make allowance for the coexistence of a core of indispensable and abso­lute values and a set of other, less imperative values. The gradual expansion over time of the first group of norms might eventually lead in the future to the forma­tion of a global community where all the basic norms on human rights must be equally respected by everyone in any part of the planet.

NOTE

Compare Cassese's observations with those in Theodor Meron, On a Hierarchy of International Human Rights, 80 Am. J. Int'l. L. 1 (1986), at 21:

... Hierarchical terms constitute a warning sign that the international commu­nity will not accept any breach of those rights. Historically, the notions of 'basic rights of the human person' and 'fundamental rights' have helped establish the erga omnes principle, which is so crucial to ensuring respect for human rights. Eventually, they may contribute to the crystallization of some rights, through custom or treaties, into hierarchically superior norms, as in the more developed national legal systems.

Yet the balance of pros and cons does not necessarily weigh clearly on the side of the pros. Resort to hierarchical terms has not been matched by careful con­sideration of their legal significance. Few criteria for distinguishing between ordinary rights and higher rights have been agreed upon. There is no accepted system by which higher rights can be identified and their content determined. Nor are the consequences of the distinction between higher and ordinary rights clear. Rights not accorded quality labels, i.e., the majority of human rights, are relegated to inferior, second-class, status. Moreover, rather than grapple with the harder questions of rationalizing human rights lawmaking and distinguish­ing between rights and claims, some commentators are resorting increasingly to superior rights in the hope that no state will dare - politically, morally and perhaps even legally- to ignore them. In these ways, hierarchical terms con­tribute to the unnecessary mystification of human rights, rather than to their greater clarity.

Caution should therefore be exercised in resorting to a hierarchical termin­ology. Too liberal an invocation of superior rights such as 'fundamental rights' and 'basic rights,' as well as jus cogens, may adversely affect the credibility of human rights as a legal discipline.

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5. National Security, Terrorism and the Law of Anned Conflict 397

00 add Article 20, the non-discrimination article to the list of non-derogable rights .in.Article 4. Objections were immediately raised that disparate treatment of enemy aliens would be necessary during wartime, and the decision was reversed the follow­ing day. A way around this impasse was found in 1952 when a non-discrimination clause not including the classification of national origin was added to the draft dero­gation article.

The idea that only arbitrary discrimination is outlawed by Article 4( 1) is under­ked by the deliberate inclusion of the word "solely" in its text. 8 Even without this term, however, the reference to discrimination in Article 4 conveys the implication that only arbitrary and unjustifiable distinctions in the application of emergency measures would be outlawed. Thus, where an identifiable racial or religious group poses a distinct security threat not posed by other members of the community, pre­sumably, emergency measures could be deliberately targeted against the group, des­pite the non-discrimination clause.

The absence of the word "solely" from the non-discrimination clause in Article 27(1) of the American Convention on Human Rights apparently has no intended significance. The word was included in the draft prepared by the IACHR but "dis­appeared from the final text, and the records of the conference provide no clue as to the reason." Thus, the three treaties would seem to impose a virtually identical nondiscrimination obligation, despite disparate phraseology.

The three treaties diverge dramatically with respect to defining absolute rights aever subject to suspension. The process of defining non-derogable rights has been amarkedly progressive one, with each later drafted instrument expanding the core efnon-derogable rights. The European Convention begins with just four, sparely defined: the right to life, excepting deaths resulting from lawful acts of war (Article 2); the ban on torture or inhuman or degrading treatment or punishment (Article 3); the prohibition on slavery or servitude (Article 4( 1) ); and the prohibition on retroactive criminal penalties (Article 7).

HUMAN RIGHTS COMMITTEE, STATES OF EMERGENCY,

GENERAL COMMENT 29 (ON ARTICLE 4)

(24 July 2001)

1. · · . The restoration of a state of normalcy where full respect for the Covenant:in again be secured must be the predominant objective of a State party derogating1 0m. the Covenant. ...

be 2· ···Before a state moves to invoke Article 4, t\vo fundamental conditions must

th lllet: the situation must amount to a public emergency that threatens the life of

'enation, and the state party must have officially proclaimed a state of emergency.

�:i'arate vote was taken on the UK proposal to frame the clause in terms of discrimination 'solely' on one of the·oJ: gr�unds_- Support of the i�clusion of 's_olely' was premised on the no_tion that wa:time me_asures aimed at a nationality, for example, might predominantly affect persons of a particular race without bemg race-based.

398 Part B. Normative Foundation of International Human Rights

The latter requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed. When proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers; it is the task of the Committee to monitor the laws in question with respect to whether they enable and secure compliance with Article 4. In order that the Committee can per­form its task, States parties to the Covenant should include in their reports submit­ted under Article 40 sufficient and precise information about their law and practice in the field of emergency powers.

3. Not every disturbance or catastrophe qualifies as a public emergency whichthreatens 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 occasions 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. [The Committee cites to situations in Tanzania, the Dominican Republic, the United Kingdom, Peru, Bolivia, Colombia, Lebanon, Uruguay and Israel.]

4. . .. [The requirement that derogation measures are limited to the extent strictlyrequired by the exigencies of the situation ] 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. Derogation from some Covenant obligations in emergency situations is clearly distinct from restrictions or limitations allowed even in normal times under several provisions of the Covenant. Nevertheless, the obligation to limit any derogations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers. Moreover, the mere fact that a permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the requirement 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 ensure that no provision of the Covenant, however validly derogated from will be entirely inapplicable to the behaviour of a State party ....

5. The issues of when rights can be derogated from, and to what extent, cannotbe separated from the provision in Article 4, paragraph 1, of the Covenant accord­ing to which any measures derogating from a State party's obligations under the Covenant must be limited 'to the extent strictly required by the exigencies of the situation'. This condition requires that States parties 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. If States purport to invoke the right to derogate from the Covenant during, for instance, a natural catastrophe, a mass demonstration including instances of violence, or a major industrial accident, the.y 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,

,f legalitya state ofvision of risions of ,; it is the:ther they� can per­s submit­:l practiceicy which�tide 4 in� justifica­ances. On;tates par­' or whosef Article 4.:he United

ent strictlyJhical cov­ierogation>bligationsns allowedheless, theicies of the:lerogationation fromlation doesderogation�actice, thisd from will

ent, cannotmt accord­; under theicies of theustificationor any spe­ke the rightphe, a masscident, theyto the life oft are strictly1mittee, theor instance

5. National Security, Terrorism and the Law of Armed Conflict 399

freedom of movement (Article 12) or freedom of assembly (Article 21) is generallysufficient during such situations and no derogation from the provisions in questionwould be justified by the exigencies of the situation.

7 . ... Conceptually, the qualification of a Covenant provision as a non-derogableone does not mean that no limitations or restrictions would ever be justified. Thereference in Article 4, paragraph 2, to Article 18, a provision that includes a spe­cific clause on restrictions in its paragraph 3, demonstrates that the permissibility ofrestrictions is independent of the issue of derogability. Even in times of most seriouspublic emergencies, States that interfere with the freedom to manifest one's reli­gion or belief must justify their actions by referring to the requirements specified inArticle 18, paragraph 3 ....

8. According to Article 4, paragraph 1, one of the conditions for the justifiabil­ity of any derogation from the Covenant is that the measures taken do not involvediscrimination solely on the ground of race, colour, sex, language, religion or socialorigin. Even though Article 26 or the other Covenant provisions related to nondis­c;rimination (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 bederogated from in any circumstances.

10. Although it is not the function of the Human Rights Committee to reviewthe conduct of a State party under other treaties, in exercising its functions underthe Covenant the Committee has the competence to take a State party's other inter­national obligations into account when it considers whether the Covenant allowsthe State party to derogate from specific provisions of the Covenant. Therefore,when invoking Article 4, paragraph 1, or when reporting under Article 40 on thelegal framework related to emergencies, States parties should present informationon their other international obligations relevant for the protection of the rights inquestion, in particular those obligations that are applicable in times of emergency.In this respect, States parties should duly take into account the developments�tltin international law as to human rights standards applicable in emergency1:tu.ations. 9

!2. In assessing the scope of legitimate derogation from the Covenant, one cri­ten?n can be found in the definition of certain human rights violations as crimes�t h_um_anity. If action conducted under the authority of a State constitutes a'asis �or md1vidual criminal responsibility for a crime against humanity by the per­�lilS mvolved in that action, Article 4 of the Covenant cannot be used as justifica­.' on th�t a state of emergency exempted the State in question from its responsibilityIll relation to the same conduct. Therefore, the recent codification of crimes against

�-: In a footnote, the Committee refers to UN and other international initiatives involving the identification of R.ed�tal standards of humanity applicable in all circumstances, and the report of the International Committee of ross on customary international humanitarian law.]

400 Part B. Normative Foundation of International Human Rights

humanity, for jurisdictional purposes, in the Rome Statute of the International Criminal Court is of relevance in the interpretation of Article 4 of the Covenant, Io

13. In those provisions of the Covenant that are not listed in Article 4, paragraph2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under Article 4. Some illustrative examples are presented below.

( a) All persons deprived of their liberty shall be treated with humanity andwith respect for the inherent dignity of the human person ... a norm ofgeneral international law not subject to derogation ....

(b) The prohibitions against taking of hostages, abductions or unacknowl­edged detention ... justified by their status as norms of general intema­tional law.

( c) ... [T]he rights of persons belonging to minorities includes elements thatmust be respected in all circumstances ....

( d) ... [D] eportation or forcible transfer of population without grounds permitted under international law ....

( e) No declaration . . . may be invoked as justification for a State party toengage itself, contrary to Article 20, in propaganda for war, or in advocacyof national, racial or religious hatred that would constitute incitement todiscrimination, hostility or violence.

14. Article 2, paragraph 3, of the Covenant requires a State party to the Covenantto provide remedies for any violation of the provisions of the Covenant. This clause is not mentioned in the list of non-derogable provisions in Article 4, paragraph 2, but it constitutes a treaty obligation inherent in the Covenant as a whole. Even ifa State party, during a state of emergency, and to the extent that such measures ar strictly required by the exigencies of the situation, may introduce adjustments tm the practical functioning of its procedures governing judicial or other remedies 1lhe State party must comply with the fundamental obligation, under Article 2, pa11a­graph 3, of the Covenant to provide a remedy that is effective.

15. It is inherent in the protection of rights explicitly recognized as non-deroga­ble in Article 4, paragraph 2, that they must be secured by procedural guarantees, including, often, judicial guarantees. The provisions of the Covenant relating_ procedural safeguards may never be made subject 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 exam,pl as Article 6 of the Covenant is non-derogable in its entirety, any trial leading te th imposition of the death penalty during a state of emergency must conform to th provisions of the Covenant, including all the requirements of Articles 14 and 15'.

16. Safeguards related to derogation, as embodied in Article 4 of the Covrufialllare based on the principles of legality and the rule of law inherent in the Co�

10 [T]he category of crimes against humanity as defined in [the Rome Statute] covers ... violations of

provisions of the Covenant that have not been mentioned in the said provision of the Covenant. For example, grave violations of Article 27 may at the same time constitute genocide under Article 6 [genocide] of the Rom�

and Article 7 [ crimes against humanity], in turn, covers practices that are related to, besides Articles 6, 7 an1ll 8

[ICCPR], also Articles 9, 12, 26 and 27.

ights

groundsper

,tate party r in advoca .ncitement to

he Covenant t. This clauseparagraph2Jle. Even i] aneasures areustments to:medies, tlieicle 2, para-

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tions of some ample, certain Rome Statute, 7 and 8 of the

5. National Security, Terrorism and the Law of Armed Conflict 401

le.� c@rtain elements of the right to a fair trial are explicitly guaranteed

teniaitional humanitarian law during armed conflict, the Committee findsca1li.0,nfor derogation from these guarantees during other emergency situa­

e committee is of the opinion that the principles of legality and the rule of· ,€that fundamental requirements of fair trial must be respected during a

eiilil�gency. Only a court of law may try and convict a person for a criminal'tlaapresumption of innocence must be respected. In order to protect non­Je tights, the right to take proceedings before a court to enable the court to without delay on the lawfulness of detention, must not be diminished by a

part(s decision to derogate from the Covenant. 11

• Ilil. paragraph 3 of Article 4 ... [ s] uch notification is essential not only for thearg@ofthe Committee's functions, in particular in assessing whether the meas-taken by the State party were strictly required by the exigencies of the situation,alS© to permit other States parties to monitor compliance with the provisions of

, venant. ... Sometimes, the existence of a state of emergency and the question wh€1lher a State party has derogated from provisions of the Covenant have come the a'tltention of the Committee only incidentally, in the course of the considera­n of ai State party's report. The Committee emphasizes the obligation of imme­te m.tBrnational notification whenever a State party takes measures derogating

fromits 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 whethru- that State party has submitted a notification.

NOTE

If 1lhe ICCPR contained no derogation clause, could states parties lawfully suspend particular treaty obligations in the event of a public emergency? Two areas of interna­t!i0nal law are relevant to answering this question: rules governing the suspension of treaties and rules governing circumstances precluding wrongfulness. As to the former, the Vienna Convention on the Law of Treaties sets forth default rules for treaty inter­pr�tation. Article 62 provides that a state can suspend its treaty obligations due to a liundamental change in circumstances'. The suspension may apply to the treaty as a whole or to a single clause or provision. See Vienna Convention, Article 44. In the

11 See the Committee's concluding observations on Israel: 'The Committee considers the present application of-administrative detention to be incompatible with Articles 7 and 16 of the Covenant, neither of which allows for derogation in times of public emergency .... The Committee stresses, however, that a State party may not depart from the requirement of effective judicial review of detention.' See also the recommendation by the Committee to the Sub­Commission on Prevention of Discrimination and Protection of Minorities concerning a draft third optional protocol fo the Covenant: 'The Committee is satisfied that States parties generally understand that the right to habeas corpus and amparo should not be limited in situations of emergency. Furthermore, the Committee is of the view that the remedies provided in Article 9, paragraphs 3 and 4, read in conjunction with Article 2 are inherent to the Covenant as a whole.' [Eds.: The Human Rights Committee provided the latter comments in response to a proposal for a draft optional protocol to the ICCPR which would have added Art. 9 paras. 3 and 4 (arrest and detention) and Art. 14 (criminal procedure) to the list of nonderogable provisions under Art. 4(2). The Committee also commented that there was a co�i�erable risk' that such an optional protocol 'might implicitly invite States parties to feel free to derogate from the

rOVIsions of article 9 of the Covenant during states of emergency if they do not ratify the proposed optional protocol' DNDoc.A/49/40, paras. 22-5.)]

402 Part B. Normative Foundation of International Human Rights

drafting process, states can elect to modify the default rules with respect to a specific treaty. For example, treaty drafters could narrow ( or expand) the scope of conditions that permit a state to suspend its obligations. Likewise, treaty drafters could condition the ability to suspend a treaty obligation on the satisfaction of procedural criteria.

Second, the Articles on Responsibility of States for International Wrongful Acts drafted by the International Law Commission 12 describe rules for 'circumstances precluding wrongfulness'. The draft articles of state responsibility define conditions under which a state may justify its failure to perform an international legal obliga­tion. In the preceding analysis of derogation clauses, Joan Fitzpatrick alludes to one such justification: necessity. According to the articles of state responsibility,' [n]eces­sity may not be invoked by a State as a ground for precluding the wrongfulness of an act unless the act [i]s the only way for the State to safeguard an essential interest against a grave and imminent peril.'

Another justification that may be relevant is force majeure. This principle excuses a state from legal responsibility if 'the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, mak[ es] it materially impossible in the circumstances to perform the obligation', according to the draft articles. The practice of the International Labour Organization, for example, suggests that states can derogate from ILO conventions in the event of an armed conflict by invoking force majeure - whether or not the convention contains an explicit suspension clause. These issues have begun to receive attention as part of a general study by the International Law Commission under the heading 'effects of armed conflicts on treaties'. The Law Commission's Special Rapporteur, Professor Ian Brownlie, issued a handful of insightful reports that serve as a useful resource on the topic.

In addition to the substantive scope of the right to derogate, consider the spe­cific procedures a state is supposed to follow in derogating from its treaty obliga:­tions. Article 4 contains two procedural elements: official proclamation of a public emergency and notification to other states parties. In a landmark decision, Silva

v. Uruguay, Communication No. 34/1978 (1981), the Human Rights Committeeelaborated its views on the notification requirement:

Although the sovereign right of a State party to declare a state of emergency is not questioned, yet, in the specific context of the present communication, 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 sufficiently 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 comprehensive information. If the respondent Government does

12 The International Law Commission is a body of 34 independent experts created by the UN General Assembly

the purpose of helping to promote and codify international law.

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. , ©t conclude that valid reasons exist to legitimize a departure fromt.,�e prescribed by the Covenant.

QUESTIONS

sta;tts fuilure to satisfy the notification requirement forfeit its right to the TCCFR? lii Silva v. Uruguay, the Committee clearly concludes no. tJher proeedural element of Article 4 as well. General Comment 29 sug­,r0clamation of a public emergency constitutes one of two 'fundamental

Jj€ a state can avail itself of Article 4. What purposes does such a condi­oulcl.a government lose its right to adopt a derogation measure to address a

.. ·tytrueat simply because it failed to proclaim an emergency?

us c:Qgens norms are nonderogable under Article 4, but not all nonderogable r Article 4 are jus cogens norms. In other words, there is a residual category

4: IC PR provisions that do not reflect jus cogens norms but nevertheless may en�ed due to a public emergency. What are the general features of such provi­

Vhat ·. tihe logic behind their receiving this extraordinary protection if they do not t peremptory norms?

In <Gsneral Comment 24, the Committee provides an expanded list of nonderogable e,yond those explicitly enumerated in Article 4(2). Did the Committee go too far

t &I-enough? What would you exclude or include?

. o y0u agree with the Committee's reasoning that other international legal norms, h 'lh@se contained in the Rome Statute for the International Criminal Court, should · ptiea in interpreting the Covenant? These appear to be international instruments

t diire�y relate to human rights, but what defines 'human rights' for this purpose andwcli!rectdoes the relationship have to be? Are environmental treaties, peace agreements,

r 1iher:instruments also relevant to assessing states' human rights obligations? Note thatOr&ing to a general rule of treaty interpretation, sources to be consulted in interpreting eatyinalude 'any relevant rules of international law applicable in the relations between

the panies' (Vienna Convention, Art. 31).

ADDITIONAL READING

N.C. Lazar, States of Emergency in Liberal Democracies (2009); D. McGoldrick, 'TheInterface Between Public Emergency Powers and International Law', 2 Int'l. J. Const.r.. 380 (2004);A.-L. Svensson-McCarthy, The International Law of Human Rights andStates of Exception (1998); 0. Gross & F. N. Aolain, Law in Times of Crisis: EmergencyPowers in Theory and Practice (2006).