States of Emergency - Centre for Policy Alternatives

of that case in Part II, we discuss the ICCPR framework of
enforcement in some detail later in this chapter.
4.1.1
Debinition
of
Emergency
As we saw in relation to the experience of national jurisdictions,
one of the Lirst problems that require to be dealt with in a legal or
constitutional framework for the accommodation of emergencies
is that of deLining generally when a crisis has reached a stage that
merits the engagement of emergency powers. 189 Article 4 of the
ICCPR, which deals with states of emergency, deLines a ‘public
emergency’ as one that ‘threatens the life of the nation.’ The
Human Rights Committee has set a high bar for what qualiLies as a
threat to the life of the nation through the development of the
other limitation principles of Article 4, including the duty of
justiLication for derogations placed on States (particularly in cases
of individual complaints to the Committee under the First
Optional Protocol; see below). The applicable principles for the
invocation of Article 4 are now set out in the Committee’s General
Comment No. 29, which emphasise the temporary and exceptional
nature of states of emergency.
Article 15 of the European Convention on Human Rights (ECHR)
deLines a state of emergency as ‘war or other public emergency
threatening the life of the nation.’ In Lawless
 v.
 Ireland, 190 the
majority in the European Commission of Human Rights
189
See Chapter 3, section 3.1.1
190
Lawless
v.
Ireland (1960‐1961) 1 Eur.Ct.HR (ser. B) 56 (Commission
Report) Lawless
v.
Ireland
(1960‐1961) 3 Eur.Ct.HR (ser. A); see also Oren
Gross and Fionnuala Ní Aoláin (2006) Law
in
Times
of
Crisis:
Emergency
Powers
in
Theory
and
Practice
(Cambridge: Cambridge UP): p.249;
hereinafter Gross and Ní Aoláin
117