New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 16 April 2015
When does an Emergency Threaten the Life
of the Nation? Derogations from Human
Rights Obligations and the War on
The current threat from international terrorism has been conceived by many states as a direct threat to the life of the nation and to the security of society. In order to respond to this threat, it is believed, it is necessary to bypass on a range of human rights obligations as these stand in the way of ensuring that national authorities are able to respond to the terrorist threat. The threat from international terrorism following the events of 11 September 2001 has already posed a number of difficult questions for international law as efforts are made to define and determine the scope of terms such as the 'war' on international terrorism or 'enemy combatants'. It seems that international law's previous understanding of these and related terms is no longer applicable to the current environment and it is necessary to either reconceptualise the terms and the resulting legal implications or try to use the traditional models to fit the new grey areas.'
The issue of derogations from international human rights obligations is a further area of international law that is being challenged by the threat from international terrorism. Derogation provisions in international human rights law allow for a state to lawfully suspend human rights guarantees in order to respond to some extraordinary situation that threatens the life of the nation. This creates some difficulties
Dr. Richard Burchill, Director, McCoubrey Centre for International Law, Law School, University of Hull, UK
See Vaughn Lowe, 'Clear and Present Danger': Reponses to Terrorism, 54 ICLQ 2005 185; Thomas Franck 'Criminals, Combatants, or What? An Examination of the Role of Law in Responding to the Threat of Terror' 98 AJIL 2004, 686.
100 Yearbook of New Zealand Jurisprudence Vol 8.1
for international human rights law as it clearly sanctions the ability of states to disregard express treaty obligations. At the same time, derogation provisions recognise the primary responsibilities of the state as the protector of society and that in extraordinary situations certain human rights guarantees need to be suspended, but within defined limits. The question now faced is whether or not the current threat from international terrorism constitutes an emergency that threatens the life of the nation? This paper will look at the challenges poised by the responses to the threat from international terrorism to derogation regimes focussing on the European Convention on Human Rights and the International Covenant on Civil and Political Rights.
DEROGATIONS AND INTERNATIONAL HUMAN RIGHTS LAW
Derogations have been described as a 'necessary evil' in international human rights law.2 Derogations may be viewed in two contrasting ways. The first view is that derogation provisions demonstrate the continued primacy of state sovereignty in international human rights law. While international human rights treaties speak of the importance of restraining the state, they also contain tools available to the state to limit rights based on the sovereign prerogative. Derogations allow for state interest to prevail over human interests. The second view is that derogation provisions are necessary to ensure states sign up to the treaty regime as it is unlikely any state would accept restraints upon the ability to
act in all circumstances. Also, this view holds that
derogation provisions do not just enshrine the sovereign prerogative, but they work to limit this prerogative because by invoking a derogation provision a state is following a particular legal path that is subject to international monitoring.
S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 1st ed. (Oxford: Oxford University Press, 2000) p. 623.
By definition derogations are deliberate acts by states to disregard accepted international human rights obligations in
response to extraordinary circumstances. Derogation
provisions in international human rights treaties attempt to limit the actions of states as obligations may only be set aside in order to respond to a specific emergency that is temporary in nature, that threatens the day to day functioning of the state and cannot be addressed through normal legislative provisions. Derogation provisions will also set out that particular rights can never be derogated from, and that any reliance upon derogation provisions must be reported to the body responsible for monitoring the treaty. This latter aspect is crucial for it allows monitoring bodies to have a role at a time when human rights obligations are most likely to be disregarded. Derogating from human rights obligations in times of emergency is easily seen as the end of the rule of law and evidence of unbridled government power, but when a state adheres to the procedures and substance of a derogation provision it is actually a demonstration of a belief in the importance of law.3 That belief may not be played out in practice but at least the minimal recognition will allow international law to have a role. In this regard it is better that states make use of derogation clauses as it will allow for some form of international oversight to be exercised. When a state does not bother with derogation provisions in times of emergencies where human rights are suspended, then it is a situation of unbridled state power. This has been graphically demonstrated by the anti-terrorism measures of the USA and Russia's action in Chechnya. In both cases no derogation to an international monitoring body has been lodged even though the states in question are disregarding human rights obligations in order to respond to what is conceived as an emergency threatening the life of the nation.
The issue of derogations and the ability of international human rights law to regulate this area represents a site of
3 International Commission of Jurists, States of Emergency: Their Impact
on Human Rights (Geneva: International Commission of Jurists, 1983) p.
102 Yearbook of New Zealand Jurisprudence Vol 8.1
tension between the sovereign rights of states and the ability of international law to limit the behaviour of states. States exist, it is argued, to provide security for the society that inhabits the territory. When that society is under threat it is the responsibility and duty of the state to take what measures are necessary to protect society. While it may be wished that states would never need recourse to suspending rights guarantees there is a need to remain realistic on this issue and recognise that when there is a threat to the state, the most powerful of motivations is at work.' As Judge Maridakis from the European Court of Human Rights (ECtHR) has explained
When the State is engaged in a life and death struggle, no one can demand that it refrain from taking special emergency measures: salus rei publicae suprema lex est. Article 15 is founded on that principle.5
While there can be little doubt as to the accuracy of this statement there remains the question as to how a public emergency threatening the life of the nation is determined?
It is clear that for some states the threat poised by international terrorism constitutes a threat to the life of the nation. But the current belief that there is an actual public emergency threatening the nation does not appear to meet the standards already established in international human rights law. It is essential that treaty monitoring bodies work to prevent the abuse of derogation provisions through appeals to the existence of an emergency situation allowing states to disregard human rights obligations. Since the events of 11 September 2001 states are powerfully asserting the primacy of security over human rights obligations or concerns. In response international human rights monitoring bodies are attempting to ensure that human rights are not sacrificed in the name of security. In this situation of competing concerns, any form of involvement by outside bodies into matters of
International Commission of Jurists, States of Emergency, p.
Lawless v Ireland Series A No. 3 (1961), Individual Opinion of G. Maridakis
state security will be seen as unwarranted intervention. However, international monitoring bodies are of the position that they are able to undertake authoritative and substantive scrutiny of the actions of states during a public emergency that has necessitated a derogation from treaty obligations. When derogations are entered into a government will justify its actions based on its sovereign right to act as it sees appropriate in order to protect the state. Governments see derogations clauses in human rights treaties as legitimising this sovereign right. International human rights monitoring bodies do not feel that derogation provisions justify the violation of human rights based solely upon an unlimited sovereign right of states to act in their own interests.' Monitoring bodies will take the position that international law creates limitations on the sovereign rights of states, especially when they involve human rights issues in extraordinary situations.' In the current international legal environment where the sovereignty of the state remains a fundamental element, the ability of international monitoring bodies to counter expressions of sovereign rights is clearly constrained.'
This does not mean that governments are essentially free to act as they see fit when a threat to the state is identified. Treaty monitoring bodies have exercised significant oversight in determining whether or not derogation measures are strictly required, but they have been less assertive in questioning whether or not an emergency exists allowing for a state to invoke a derogation provision in the first place. The
6 See M. Delmas-Marty, ed., The European Convention for the Protection of Human Rights: International Protection versus National Restrictions (Martinus Nijhoff, 1992) p. 2.
7 D. McGoldrick, 'The Interface between Public Emergency Powers and International Law' 2 International Journal of Constitutional Law (2004) p. 389.
104 Yearbook of New Zealand Jurisprudence Vol 8.1
Paris Minimum Standards of Human Rights Norms in a State of Emergency' define a public emergency as
an exceptional situation of crisis or public danger, actual or imminent, which affects the whole population or the whole population of the area to which the declaration applies and constitutes a threat to the organized life of the community of which the state is composed.10
While this appears to be a straightforward determination there is the problem of measuring the gravity of a threat as it will be a subjective determination made by the state itself." Other commentators recognise that a threat to the life of the nation should be understood in restrictive terms but given the matter at hand it is difficult to determine acceptable parameters. In turn Fitzpatrick suggests that 'An emergency that threatens the life of the nation must imperil some fundamental element of statehood or survival of the population ...'. 12 The threat from international terrorism, as currently conceived, poses a threat not to a particular state or society but more to a perceived cultural, social phenomenon classified as 'Western' and the targets so far have not been particular states but rather symbols of the Western world. The attacks to date have certainly entailed a horrific loss of life and damage to property but they have not necessarily impacted any fundamental elements of a particular state or society. But in a number of states there continue to be exhortations to the effect that an attack could occur that would seriously damage some fundamental elements of state and society.
9 The Paris Standards are a product of the International Law Association,
reprinted in 79 American Journal of International Law (1985) p.
10 Paris Standards, Article 1 (b).
12 Fitzpatrick, Human Rights in Crisis, p. 56.
There can be no doubt determinations of what constitutes a public emergency threatening the life of the nation is mainly a political determination. But given that the place of law and its ability to constrain behaviour depends upon this determination, law does have a role to play in determinations of a public emergency." Determinations of threats or public emergencies will give rise to new legal regimes that are likely to restrain human rights. Therefore determination of the existence of a public emergency cannot be solely left to the political. It is incumbent upon international monitoring bodies to exert their supervisory role to determining whether or not a state's belief in the existence of a public emergency is legitimate or not. The role of international monitoring bodies in determinations of public emergencies will be crucial in order to avoid the subjectivity that appears to currently define the existence of threats from international terrorism.
INTERNATIONAL SCRUTINY OF DEROGATIONS AND THE EXISTENCE OF A PUBLIC EMERGENCY
When faced with derogation situations the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (HRC) have, for the most part, focused their scrutiny on whether or not the derogation measures adopted are strictly necessary to meet the threat. There has been limited treatment to whether or not the threat in question constitutes an emergency allowing for derogation. For the most part this has been primarily due to the fact that when derogations have been entered into there has been a clear existence of a threat and actual emergency, mainly due to terrorist activity. Both monitoring bodies have shown a tendency to exercise more assertive oversight in dealing with the appropriateness of the measures taken by states in response to the threats. It will be necessary for these bodies to continue to assert themselves when dealing with derogations involved with the war against international
See G. Agamben, State of Exception, trans. K. Attell (Chicago,
University of Chicago Press, 2005) p. 1.
106 Yearbook of New Zealand Jurisprudence Vol 8.1
terrorism. However, it will become important for the monitoring bodies to not only give attention to whether or not derogations measures are strictly necessary to meet the real or perceived threat, but it will also become increasingly important for these bodies to ask whether or not a threat to the life of the nation actually exists.
DEROGATIONS AND THE ECHR
The derogation provision of the ECHR is contained in Article 15. Paragraph 1 sets out when derogations may be entered into
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.
The ECtHR has established that states have a significant margin of appreciation in making determinations as to whether the life of the nation is under threat and whether or not measures are strictly required by virtue of 'their direct and continuous contact with the pressing needs of the moment' .14 However, the ECtHR has also made it clear that this margin is not absolute and that the Court does have a role in monitoring derogation situations. But it appears that the Court has limited its role only to addressing whether or not the derogation measures are appropriate. It has explained
It falls in the first place to each Contracting State, with its responsibility for the life of [its] nation', to determine whether that life is threatened by a 'public emergency' and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge
Ireland v UK, Series A No. 25 (1970) para. 207.
to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter, Article 15(1) leaves those authorities a wide margin of appreciation. Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission, is responsible for ensuring the observance of the States' engagements (Art. 19), is empowered to rule on whether the States have gone beyond the 'extent strictly required by the exigencies' of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision.
By leaving to the state the primary determination if there is a public emergency the Court is clearly deferring to the sovereignty of the state. Even though the Court emphasises its role in supervising the measures taken in a derogation situation it appears to accept that states themselves will be able to decide when an emergency exists and when it is legitimate to invoke Article 15.
Both the Court and European Commission on Human Rights have provided some guidance as to what constitutes a public emergency for the purposes of Article 15. In Lawless v Ireland (No. 3) the issue before the Court was the appropriateness of domestic legislation targeted at the prevention of terrorist activity, primarily involving the activities of the IRA and other groups towards continued UK rule in Northern Ireland. Even though the bulk of terrorist activity was carried out in the North, there existed in Ireland members of the IRA who, in the Court's words, were `engaged in unconstitutional activities and using violence to attain its purposes', along with presence of a 'steady and alarming increase in terrorist activities' in the whole of Ireland. The Court felt there was an 'the imminent danger to the nation caused by the continuance of unlawful activities in Northern Ireland by the IRA and various associated groups, operating from the territory of the Republic of Ireland'.15 Even though Ireland itself was not necessarily the target of the terrorist activity, the actions being carried out constituted
Lawless v Ireland, para. 29.
108 Yearbook of New Zealand Jurisprudence Vol 8.1
a significant emergency that the Court felt there was a threat to the life of the nation. In coming to this determination the Court stated that
the natural and customary meaning of the words "other public emergency threatening the life of the nation" is sufficiently clear; whereas they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed;...16
In the French language judgment, which is the authoritative judgment, the term 'imminent' comes after exceptional. This added term does create a higher standard as there needs to be a clear, direct and recognisable threat to the nation.
The definition of a public emergency set out in Lawless has been
further developed by the European Commission of Human Rights with its report in
the Greek Case" which
concerned the 1967 military coup in Greece. The
Commission, relying on the Court's views in Lawless, set out that a public emergency for the purposes of Article 15 must contain the following characteristics:
The Commission's criteria emphasises the exceptional nature of a public emergency as being a situation where 'normality' is clearly impossible and the day to day life of society cannot be pursued. In the Greek Case, the majority of the Commissioners, there were five dissenting views on this
16 Lawless v Ireland, para. 28.
17 (1969) 12 Yearbook of the European Convention on Human Rights.
18 The Greek Case, paras. 152453.
point, did not feel that the political unrest in Greece at the time posed an exceptional situation nor was there an imminent threat to the life of the nation, even though there was evidence of armed groups set on the overthrow of the government operating on Greek territory. The Commission's decision was clearly influenced by the fact that the government in power at the time had taken power through non-democratic means as similar circumstances facing a democratically elected government would clearly constitute a public emergency allowing for recourse to Article 15.
The criteria set out in Lawless and The Greek Case has not been developed any further as derogation cases before the Court have involved situations where the existence of a public emergency was 'perfectly clear from the facts"' or was not challenged by the applicants.' In cases involving responses to terrorist threats in the UK and Turkey the Court pointed to the significant numbers in terms of loss of life or injured and damage to property from terrorist activity as clear evidence of a public emergency. In the admissibility decision of Marshall v UK where the applicant argued that there had been a substantial decrease in terrorist activity in the UK context to the extent that a public emergency no longer existed, meaning the derogation provisions could no longer be justified. The Court rejected the applicant's claim explaining
the authorities continued to be confronted with the threat of terrorist violence notwithstanding a reduction in its incidence. It cannot but note that the weeks preceding the applicant's detention were characterised by an outbreak of deadly violence. This of itself confirms that there had been no return to normality since the date of the Brannigan and McBride judgment such as to lead the Court to controvert the authorities' assessment of the situation in the province in terms of the threats which organised violence posed for the life
Ireland v UK, para. 205.
Aksoy v Turkey Reports 1996-VI.
of the community and the search for a peaceful settlement.21
The Marshall explanation again leaves it to the state to determine the existence of an emergency as what constitutes `normal' will be a subjective determination left to the state. This aspect of the Court's monitoring is likely to become very important as the threat from international terrorism has been seen as constituting a permanent emergency. At the time of Marshall there had been significant developments in the Northern Ireland peace process but there was also the continuance of violent attacks on property and individuals. The continued threat from international terrorism has been evidenced by actual attacks but determination of the intensity of threat has mainly come from governments based on secretive security information that is not publicly accessible. In other words, states will be able to continue to declare the existence of a threat unless they are forced to demonstrate the actual existence of a threat.
Following the events of 11 September the UK entered a derogation to the ECHR on the basis that the attacks on the USA constituted a threat to the UK. The derogation and the measures taken were challenged in the domestic courts and it was found that the derogation measures adopted were not strictly necessary in the circumstances. Whether or not there was a threat to the life of the nation was also challenged but the House of Lords concluded that the determination of an existence of a threat was within the competence of the government to decide and it would be inappropriate for the court to substitute its judgment on this issue. Lord Bingham explained that if the ECtHR was willing to accept that the situation at the time of Lawless, terrorist attacks targeted at Northern Ireland but some activity coming from Ireland constituted a threat to the Irish nation, then it could be
Application No 41571/98 (10 July 2001) pp. 11-12.
concluded that 11 September created an even more dangerous threat to the UK.22
This view of the UK courts runs contrary to the opinion of the Council of Europe's Commissioner for Human Rights, who undertook a study of the UK's derogation. The Commissioner recognised that states have an essential obligation to protect both their institutions and their citizens against terrorist actions. But, he went on to say that 'general appeals to an increased risk of terrorist activity post September 11th 2001 cannot, on their own, be sufficient to justify derogating from the Convention.' And that the UK government would have to show that there is clear evidence of a direct and imminent threat to the life of the nation before availing itself of the right to derogation under Article 15.23 The Commissioner is not denying a state the right to derogate but is demanding that actual and real evidence of the threat be shown. This more assertive view is to be welcomed as the past four years have seen a continued reliance on the vague threat posed by Al-Qaida and related groups. Undoubtedly this will be difficult due to the sensitive nature surrounding evidence of terrorist threats but the potential for abusing the nature of the threat to maintain a state of emergency is all to real.
DEROGATIONS AND THE ICCPR
The UN Human Rights Committee's views on derogations are broadly similar to those of the ECtHR. Article 4 (1) ICCPR allows for derogations Jr) time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. As with the ECHR, what constitutes a public emergency is not set out in detail and the
A and Others v Secretary of State for the Home Department [2004} UKHL
56, paras. 28-29.
Opinion 1/2002 of the Commissioner for Human Rights, Mr Alvaro GIL-ROBLES, on certain aspects of the United Kingdom 2001 derogation from Article 5 par. 1 of the European Convention on Human Rights, CommDH(2002)7, paras. 30-32, available at <http://www.coe.int/T/E/ Commissioner_H.R/> .
HRC has provided only limited guidance on this point except for emphasising that they are of an 'exceptional and temporary nature' and that any measures taken must be strictly necessary."
The HRC issued a General Comment on Article 4 in 1981 that was extremely brief, consisting of only three paragraphs mainly repeating the terms of Article 4. The Comment provides no indication as to ascertaining the existence of an emergency except to say that they are to be exceptional and temporary in nature.' In 2001 an updated General Comment was released, just prior to the 11 September attacks, which was considerably extended to seventeen paragraphs with more detailed information. However, this later Comment primarily deals with measures taken in response to a public emergency and does not discuss in any detail what constitutes, or how to determine, an emergency situation. The Comment does state Not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation,...' It also adds that '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.' Through the General Comments the HRC clearly recognises the sovereign right of the state to determine the existence of an emergency situation allowing for Article 4 to be invoked. The Committee also appears to leave the initial determination of an existence of an emergency to the state, by only requiring that the state `carefully consider' the justification behind a derogation.
An authoritative interpretation of the derogation provisions under the ICCPR has been provided in the Siracusa
24 General Comment No. 29, UN Doc. CCPR/C/21/Rev.1/Add.11 (31 August 2001), para. 2.
25 General Comment No. 5: UN Doc. A/36/40 (1981) Annex VII (31 July 1981)
26 General Comment 29, para. 3.
2005 When does an Emergency Threaten the Life of the Nation? 113
Principles." The Principles accept that states have a right to derogate but 'only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. The Principles go on to define a threat to the life of the nation as a situation that
Situations that do not reach the appropriate level of severity according to the Principles include internal conflict and unrest or economic difficulties.' Importantly the Principles also state that 'A proclamation of a public emergency shall be made in good faith based upon an objective assessment of the situation in order to determine to what extent, if any, it poses a threat to the life of the nation.' The emphasis on an objective assessment leaves open the possibility for a treaty monitoring body to become involved in determinations of a public emergency, removing the exclusive competence of the state in determining this matter.
In dealing with complaints under the Optional Protocol and through the periodic reporting procedures, the HRC has provided further details as to what legitimately constitutes a public emergency for the purposes of Article 4. Perhaps most crucially, the HRC has expressed the need for the existence of a threat to be real and not abstract and that specific details on the existence of a threat must be communicated with the derogation. In an individual communication involving
27 The Siracusa Principles on the Limitation and Derogation Provisions in the
ICCPR, UN Doc. E/CN.4/1985/4, reprinted in 7 Human Rights Quarterly
(1985) p. 1.
28 Siracusa Principles, para. 39.
29 Siracusa Principles, paras. 40-41.
30 Siracusa Principles, para. 62.
Uruguay the HRC stated that 'by merely invoking the existence of exceptional circumstances, [a State] cannot evade the obligations which it has undertaken by ratifying the Covenant.' A similar view was taken with regard to Colombia where the HRC stated that simply invoking the existence of an emergency does not remove a state's obligations and that a state must 'give a sufficiently detailed account of the relevant facts to show that a situation of the kind described in article 4 (1) of the Covenant exists in the country concerned.'"
Commentators on the ICCPR have also concluded that for article 4 to be invoked the threats constituting a public emergency must be must be real and not imagined or feared." This emphasis on the nature of the threat being real is crucial with regard to international terrorism as the threats identified appear to be rather vague and indeterminate. States are invoking the primacy of national security in order to justify deviation from human rights norms. The Siracusa Principles explain that national security concerns may justify derogation measures but 'only when they are taken to protect the existence of the nation, its territorial integrity or political independence against force or threat of force.'"
INTERNATIONAL TERRORISM AS A PUBLIC EMERGENCY
Previous studies have shown that defining what constitutes a public emergency is immensely difficult." The subjectivity inherent in individual states determining what constitutes a threat to the life of the nation perhaps cannot be overcome. However, the limited treatment given to what constitutes a public emergency threatening the life of the nation from the
31 Landinelli Silva v Uruguay Communication No 34/1978, UN Doc. CCPR/C/12/D/34/1978 (8 April 1981) para. 8.3.
32 Montejo v Colombia, Communication No. 64/1979, UN Doc. CCPR/C/15/D/64/1979
(24 February 1982) para. 10.3.
33 Siracusa Principles, para. 39.
34 Siracusa Principles, para. 29.
35 See Fitzpatrick, Human Rights in Crisis, pp. 1-28.
treaty monitoring bodies discussed above does provide some broad guidance. The ECtHR makes clear that the threat has to be actual or imminent, it cannot be vague or a mere possibility. A point reinforced by the HRC. Also the indication of severity is that the threat has to impact the day to day life of society in such a way that normality is no longer possible. This is potentially a very high threshold as it means that the normal law and normal institutions of government are no longer effective in controlling society. Based on this sort of criteria serious questions can be asked as to whether the currently perceived threat from international terrorism justifies derogations. The threat may be real and actual, it may also be imminent, but these determinations appear to depend heavily on secret information that is not publicly accessible. But has the threat prevented society from carrying out its day to day activities? For the most part, it appears not.
The other major aspect of a public emergency leading to derogation from human
rights obligations is that they are temporary, with
the derogation provisions
having a limited existence. One of the greatest challenge posed by the threat
from international terrorism
is the permanent state of
emergency it appears to suggest. In the UK the
Parliamentary Joint Committee on Human Rights raised this issue:
Derogations from human rights obligations are permitted in order to deal with emergencies. They are intended to be temporary. According to the Government and the Security Service, the UK now faces a near-permanent emergency.36
The Government's response to the Joint Committee was that no arbitrary time limits could be placed on the existence of an
36 Eighteenth Report of the Session 2003-2004 (HL paper 158, HC 713, 21 July 2004) para 4, available at <http://www.publications. parliament.uk/pa/jt200304/jtselect/j trights/j trights.
emergency." The position has been exacerbated by statements from the Director General of the Security Services who said in a public speech
I see no prospect of a significant reduction in the threat posed to the UK and its interests from international terrorism over the next five years, and I fear for a considerable number of years thereafter.38
The United States Supreme Court has also raised concern with the Government's view that the war on terror may last for several generations and the impact this will have on human rights guarantees such as those concerning detention without trial."
The nature and source of the threat from international terrorism also appears to defy objective determination. The UK's recent derogation to the ECHR and ICCPR was based on the 11 September attacks in the USA and the belief that
There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.4°
In debates in Parliament, the Home Secretary certainly made a case that international terrorism posed a threat to the life of
37 See A and Others v Secretary of State for the Home Department, para. 25.
38 `Global Terrorism: Are we Meeting the Challenge?' speech by Eliza Manningham-Buller, Director General of the Security Service (16 October 2003) available at <http://www.mi5.gov.uk/output/Page 172.html> .
39 Hamdi v Rumsfield  USSC 2730; 124 S. Ct 2633 (2004) at 2646.
40 Human Rights Act 1998 (Amendment No. 2) Order 2001 SI 2001/4032.
the nation for the USA where there was the loss of life and destruction of property but there was little to suggest the UK was under a direct and imminent threat.' There is continual reference to the threat posed by Al-Qaida and associated groups, but Al-Qaida is a loosely used term that does not necessarily designate any particular source or definable group. The understanding of the threat from international terrorism as a justification for derogation clearly runs contrary to the views of the treaty monitoring bodies.
Determining whether or not a situation constitutes a public emergency threatening the life of the nation is seen primarily as a political judgment." However, the declaration of a public emergency has significant legal ramifications that too often have an adverse impact on human rights. Leaving the determination of the existence of a public emergency solely to states undermines the international protection of human rights, as current events are demonstrating. Monitoring bodies, and the international community more generally, must become more assertive in questioning whether or not the situation in question has reached the requisite severity to constitute a public emergency. As the Siracusa Principles explain, any state that is derogating from its international obligations 'shall have the burden of justifying its actions under law' .43 While it is necessary to remain realistic in measuring up threats to security and adherence to human rights, it is equally imperative to keep in mind and be guided by the overall object and purpose of international human rights treaties and not to rely purely on the sovereign rights of states to act as they see fit.
In light of recent events and the threat posed by international terrorism the UN has commissioned a special rapporteur to
41 12 H.C. Deb., col. 917 (12 December 2001).
42 See A and Others v Secretary of State for the Home Department
12004] UKHL 56, at para. 29.
43 Siracusa Principles, para. 64.
study the impact terrorism and responses to terrorism have upon human rights. In the report there is a recognition of the difficulties in determining what constitutes a public emergency. But the rapportuer goes on to recommend that guidelines be drawn up for determining whether or not a threat constitutes a threat to the life of the nation." Treaty monitoring bodies such as the ECtHR and the UN Human Rights Committee need to be at the forefront in developing such guidelines, recognising the sovereign rights of a state to protect itself, but also ensuring human rights are not forsaken.
`Specific Human Rights Issues: New Priorities, in Particular Terrorism and Counter-terrorism', Final report of the Special Rapporteur, Kalliopi K. Koufa, UN Doc. E/CN.4/Sub.2/2004/40 (25 June 2004) para. 77.