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

imposition and the time frame or period that is being proclaimed, (d) an explanation
of the reasons, including a brief description of the actual events or factual situation
leading up to the event that has taken place, (e) a description of the anticipated effect
of the derogations on the rights recognized by the Covenant. The failure to provide
this information to the Secretary-General is a breach of its obligations to other
states. 347 The state that is in derogation must terminate the derogations in the shortest
time required to bring an end to public safety. 348 On termination of the derogation
under Article 4, all rights and freedoms must be restored in full. Steps must be taken
to correct injustices and compensate those that have suffered injustice during the
derogation measures. 349 In the Lawless case the courts ruled that the proclamation must
be “without delay”.
In regards to the limits on derogations under the exigencies of the situation, Article 4
(1) some authors say that the measures must be proportionate. This includes the
Human Rights Council who held that proportionality must include severity, duration
and geographic scope:
“The legal obligation to narrow down all derogations to those strictly required
by the exigencies of the situation establishes both for states parties and for the
Committee a duty to conduct a careful analysis under each article of the
Covenant based on the objective assessment of the actual situation”. 350
The Siracusa Principles also outline the same prerequisites including that the
“severity, duration and geographic scope of any derogation measure shall be such as
are strictly necessary to deal with the threat to the life of the nation and are
proportionate to its nature and extent”. 351 It also explains that the “principle of strict
necessity shall be applied in an objective manner. Each measure shall be directed to
an actual, clear, present or imminent danger and may not be imposed merely because
347 Article 47
348 Article 49
349 Article 50
350350 Citation from the “Rule of law in Armed conflicts,” (2011) website of the Graduate institute,
Geneva, page 2, last accessed on 3 rd October 2011, http://www.adh-­geneva.ch/rulac/derogation_from_human_rights_treaties_in_situations_of_emergency.php
351 Article 51
106