Where is R2P grounded in international law? Anne-Marie Judson A ...

provisions set out under the state of emergency can these rights be derogated from.
The states are only limited by their agreements in international law to other binding
contracts that may be in breach if they choose to carry out these derogations during a
time of emergency. Other state parties to similar treaties protecting these rights can
bring the violations or breaches of these rights to the attention of the United Nations
or the International Court of Justice. These breaches and/or derogations that contain
both compliance with one Treaty and non-compliance with another come under the
conflict of laws and would be decided on within the court of the parties’ choosing.
It can be seen how rights of civilians that are protected in international law as
customary can also constitute derogations from the provisions of this convention in a
state of emergency. However the state must comply within the strict application of the
provisions from which they are derogating including all the steps that ensure the rights
of the civilians are being protected. This includes firstly identifying that a state of
emergency exists then sending a letter to the Secretary-General and providing the
articles from which they are derogating, why and at what date they stopped. If the
state violates the provisions then the state is liable for attribution. On this note there
are several qualifications given by different courts and organisations on the
application of state of emergency. These will be discussed in the next section before
the analysis of actual state derogations under this Covenant.
CRITERIA FOR A STATE OF EMERGENCY/ FOR DEROGATIONS
A situation that constitutes a state of emergency must be examined. The United
Nations Economic and Social Council provides definitions within the Siracusa
Principles. 339 Derogations in a state of emergency must only be made when the state
is faced with an imminent danger that threatens the life of the nation. This is
explained as a situation that affects the whole of the population and part or whole of
the territory of the state in question. Second, the situation must be classified as a
threat to the physical integrity of the population, either the political independence or
the territory itself. This may include the basic functioning of the state and its
339 United Nations Economic and Social Council. (1985). Siracusa Principles on the Limitation and
Derogation provisions in the Covenant on Civil and Political Rights (E/CN.4/1985/4) . United
Nations .
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