States of Emergency - Centre for Policy Alternatives

adaptation in human rights law of the doctrine of necessity in
international law. 187
A related and particularly signiLicant issue is the question of
enforcement of international human rights law within the
domestic jurisdiction, in both the substantive and procedural
dimensions. International human rights law is characterised by
the assumption of separation between normalcy and emergency,
as well as the attempt to legally regulate states of emergency by
balancing the tension between the protection of human rights
under the ordinary rule of law, and the legal provision of
emergency powers (i.e., through allowing for derogations in
exceptional circumstances). Accordingly, international human
rights law is broadly a model of legislative accommodation. Some
regional human rights instruments, speciLically the European
Convention on Human Rights and Fundamental Freedoms (ECHR),
have assumed a character akin to a constitutional bill of rights,
either through domestic legislative incorporation or through
habitual ofLicial interpretive compliance, especially by domestic
courts. This development has also been inLluenced by the distinct
but closely related dynamics of the European Union legal order. 188
The ECHR is thus more properly a model of constitutional
accommodation. In the context of international human rights
instruments establishing treaty bodies for their authoritative
interpretation, international human rights law is also a model of
interpretive accommodation. Therefore, an important source of
developing standards is the jurisprudence of these treaty bodies,
187
See Jaime Oraá (1992) Human
Rights
in
States
of
Emergency
in
International
Law
(Oxford: Clarendon Press): pp.7‐10, Ch.10; hereinafter
Oraá
188
Patrick Birkinshaw (2003) European
Public
Law (London:
Butterworths): Ch.9
114