States of Emergency - Centre for Policy Alternatives

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CHAPTER IV STANDARDS GOVERNING STATES OF  EMERGENCY AT INTERNATIONAL LAW AND  PRACTICE 4. Standards governing States of Emergency at International Law and Practice 4.1. General Observations: International Human Rights Law as a Legislative and Interpretive Framework of Accommodation 4.1.1. DeLinition of Emergency 4.1.2. Derogations 4.1.3. Common Themes of Treaty Body Jurisprudence 4.1.4. Overview of the Derogation Jurisprudence and Commentary of the Human Rights Committee 4.2. I n t e r n a t i o n a l P r o t e c t i o n v s . N a t i o n a l Implementation: The Enforcement Framework of the ICCPR 4.2.1. The Human Rights Committee 4.2.2. The Reporting Procedure 4.2.3. Inter‐State Communications 4.2.4. Individual Communications 110
4.3. International Human Rights Standards in States of Emergency under the ICCPR: The Legal Regime of Derogations 4.3.1. The Principle of Exceptional Threat 4.3.2. The Principle of Proclamation 4.3.3. The Principle of NotiLication 4.3.4. The Principle of Non‐Derogability 4.3.5. The Principle of Proportionality 4.3.6. The Principle of Non‐Discrimination 4.3.7. The Principle of Consistency 111
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A State of Permanent Crisis Constit
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This book is dedicated to J.S. Tiss
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3.   The Neo‐Roman Cons
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6. Fundamental Rights  ....
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security has been prioritised and t
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The year 2008 also marks the twenty
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nationalist political ideology (mir
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Needless to say, responsibility for
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those who believe in the democratic
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the exception discussed below. None
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independence or capacity to ensure
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einterpretation of its constitution
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issues from comparative experience
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PART I  The Theory and Practice
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In their recent comprehensive study
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in the process, destroy democracy.
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appointment of a dictator according
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dictator. 15 The dictator enjoyed a
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was the cultural and political etho
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siege is therefore a legal institut
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In Dicey’s view, the idea of mart
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diminish, the acknowledged prerogat
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Legislative Accommodation One of
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judges to resolve competing claims
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other vastly disparate contextual r
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than undermine, the rule of law in
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Carl  Schmitt:  Sovereign  Di
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Schmitt thought that, “…liberal
Page 59 and 60: The centrepiece of Schmitt’s mode
Page 61 and 62: exception has been declared by the
Page 64 and 65: CHAPTER III THE NEO‐ROMAN C
Page 66 and 67: 3.1  Comparative  Experience:
Page 68 and 69: of emergency. It is true that the d
Page 70 and 71: emergency’. 87 The former remains
Page 72 and 73: legislation for the peace, order an
Page 74 and 75: the problem of deLinition plagues t
Page 76 and 77: to undertake, these jurisdictions m
Page 78 and 79: whereby each successive extension o
Page 80 and 81: may override ordinary statutes. As
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Page 84 and 85: However, the signiLicance of this p
Page 86 and 87: demonstrate this. 137 Other federat
Page 88 and 89: two classic constitutional devices
Page 90 and 91: may be curbed by the judiciary.”
Page 92 and 93: each department the necessary const
Page 94 and 95: normative expectations of the accom
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Page 112 and 113: The past Live decades - the post Wo
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Page 116 and 117: interpreting these provisions. Subs
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Page 120 and 121: were the result of an initiative by
Page 122 and 123: All three instruments contain a lis
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Page 126 and 127: ‘views’ are dependent on the at
Page 128 and 129: terms, but also that it provides fo
Page 130 and 131: incomplete reports. Perhaps unsurpr
Page 132 and 133: has also issued guidelines regardin
Page 134 and 135: advocacy role for its own views, wi
Page 136 and 137: The relevant State Party has an opp
Page 138 and 139: Nothing turns on the question wheth
Page 140 and 141: these rights. Derogation involves p
Page 142 and 143: ights under any circumstances, and
Page 144 and 145: population, to the territorial inte
Page 146 and 147: neither the ECHR nor the ACHR syste
Page 148 and 149: proclaimed a state of emergency. Th
Page 150 and 151: proportionate, in addition to confo
Page 152 and 153: elation to  the termination
Page 154 and 155: ut also the deeply conceptualised b
Page 156 and 157: Covenant (e.g., articles 6 and 7).
Page 158 and 159: Statute of the International Crimin
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derogability.  Even  in  time
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national security, and the protecti
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The Human Rights Committee has repe
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equires that States parties provide
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The only occasion in which the Huma
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would entail a breach of the State
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PART II  The Sri Lankan Experie
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CHAPTER V SRI  LANKA’S  CON
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emergency without having to look ov
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A state of emergency is brought int
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Chapter XVIII was predicated on the
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Regulations No. 1 of 2005 286 and E
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that of the person committing the a
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mens  rea  requirement for any
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extraordinary powers to the executi
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of almost every human rights norm 2
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question whether executive law‐ma
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merits as well as the statement of
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struck down a detention order after
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ecognised in Article 15 may be vali
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its underlying policy and motivatio
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Firstly, the problem of the deLinit
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extension requires a special majori
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ebellion, the President is empowere
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CHAPTER VI FUNDAMENTAL RIGHTS 6
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Permissible restrictions on these r
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6.2.1 Structure and Content V
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eLlection of the high importance ac
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unduly conservative and restrictive
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Lilanthi  de Silva  v.  The
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provided for by the ICCPR Article 4
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suppressing opposition aimed at suc
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considerably diverge from, and in s
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The court’s reasoning with regard
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embrace judicial activism, in not o
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With regard to the Linding of uncon
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own judgment in Singarasa reLlect
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legal assistance, interpreter and s
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CHAPTER VI CONCLUSION “…unsee
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certain commitments, and then actin
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TABLE OF CASES A  Publication
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Nagamani  Theivendran  v.  Th
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PROCLAMATIONS  AND EMERGENCY 
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Yala National Park Regulation 7 of
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Establishment of a new Department o
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BIBLIOGRAPHY A Bruce Ackerman (2004
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J.A.L. Cooray (1995) Constitutional
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European Commission for Democracy t
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Oren Gross and Fionnuala Ní Aolái
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K Robert N. Kearney (1971) Trade 
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Herbert Marx (1970) ‘The  Emerg
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Eugene V. Rostow (1945) ‘The Ja
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UN Special Rapporteur on the Indepe
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