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

of an apprehension of potential danger”. 352 “In determining whether derogation
measures are strictly required by the exigencies of the situation the judgment of the
national authorities cannot be accepted as conclusive”. 353 However in the Ireland v.
United Kingdom case it was held that the responsibility falls to the national authorities to
determine how far they need to go to determine how much is necessary to overcome a
public emergency. 354 In the Brannigan and McBride v. United Kingdom case the court also
declared that the discretion should lie with the state to decide the scope of derogations
that would be necessary in its particular circumstances. 355
As discussed in earlier chapters these derogations must not infringe the rights of other
state parties to treaties, statutes or other covenants to which they are also a party. The
derogating state for example cannot act or omit to act in breaches that could pose a
threat to international peace and security. Nor can a state act in a manner
inconsistent with the principles of the Charter of the United Nations or the
International Criminal Court of Justice Statute. This means that certain rights are
inalienable including the right to life, or freedom from torture, or cruel and inhumane
treatment or punishment as well as the right not to be subjected to medical or
scientific experimentation without free consent, freedom of thought, conscience and
religion. 356
The Siracusa Principles outline that derogation from rights recognized under
international law in order to respond to a threat to the life of the nation is not
exercised in a legal vacuum. 357 A proclamation of a state of emergency is made in
good faith pacta sunt servada based on an objective assessment of the situation at hand.
The Siracusa Principles also point out “Consequent derogations from Covenant
352 Article 54
353 Article 57
354 See Ireland v. United Kingdom case, supra note 20, para 207
355 See Brannigan and McBride v. United Kingdom, ECTHR (5/1992/350/423-­‐424), para 43 also
cited in the rule of Law in Armed conflicts website page, http://www.adh-­geneva.ch/rulac/derogation_from_human_rights_treaties_in_situations_of_emergency.php
last
accessed on 3 rd October 2011
356 See Siracusa principles on non-­‐derogable rights, Articles 58, 59 and 60, 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 .
357 Article 61
107