» by Kristina Roepstorff
When international human rights law was codified and treaties were drafted, a general recognition of the necessity to allow states the restriction or suspension of some human rights in emergency situation resulted in the inclusion of derogation clauses into the relevant human rights treaties. Yet, some of the rights were considered as being so fundamental that even in an emergency situation derogation from the obligations under human rights treaties is not justifiable. The human right treaties therefore provide provisions listing non-derogable rights.
The inclusion of derogation clauses into the human rights treaties necessitated the identification of the meaning, scope and effect of the treaty obligations. As states may derogate from their human rights obligations under states of emergency, abuse of these special emergency powers had to be prevented. Safeguards and guidelines thus have been elaborated.
States of emergency may have various causes, one of which is terrorism. As terrorism constitutes a threat to the state, the declaration of a state of emergency may become necessary. Thus, in order to combat terrorism, a state may suspend certain rights and derogate form its obligations under international human rights law.
In many countries terrorist activities have occurred and are occurring. Frequently states were and are being forced to take emergency measures to maintain law and order.
After the terrorist attacks of September 11th the international community stressed the threat of international terrorism. As a response, new Acts were passed and laws were changed in order to combat international terrorism.
In this essay I want to discuss the way in which terrorism can constitute a public emergency and therefore can justify the declaration of a state of emergency. As a public emergency allows states to derogate from their obligations under international human rights treaties, I want to look at the dangers of human rights violations and possible safeguards during states of emergency.
I will therefore first determine the concept of states of emergency and expose possible safeguards. Then I will set out the international legal regulations of derogation from human rights obligations under states of emergency and the non-derogable rights.
Terrorism as a public emergency may justify derogations from human rights treaties. Thus, a definition of what is regarded as terrorism is prerequisite.
With the “war on terrorism” the international community adopted several documents calling for counter-terrorism measures. In reference to these documents I will look at the impact of measures taken at the international level on the national level and how human rights have been safeguarded or may be undermined in this context. I will conclude that adequate safeguards have to be implemented both at the national and the international level, as some states excuse violations of human rights in the name of the “war on terrorism”.
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© Kristina Roepstorff 2004.
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