States of Emergency - Centre for Policy Alternatives

A broad conLluence of opinion about the nature and applicable
principles with regard to human rights in states of emergency are
evident from these sources. As Gross and Ní Aoláin note with
regard to the deLinitions outlined above, “These deLinitions point
to a broad international consensus on the general contours of the
term emergency, particularly with respect to its contingent and
exceptional nature. Notwithstanding differences in nuance and
emphasis, they accentuate the capacity for deLinitional agreement
and the possibility for meaningful and robust oversight and
accountability by law over claims of ‘public emergency’”. 197
4.1.2
Derogations
As we discussed above, the provision for derogating from certain
treaty obligations during a state of emergency (i.e., to restrict
certain rights protected by treaty) is the characteristic that makes
the international regime of human rights applicable to Sri Lanka,
the ICCPR (as well as of course the regional instruments
elsewhere), a model of accommodation. Under the model of
accommodation, furthermore, we know that legally recognising
and providing for states of emergency is subject to several
conceptual requirements. The three common features in this
regard of the ICCPR and the regional instruments are (a) the
distinction made between derogable and non‐derogable rights, so
that the latter set of rights cannot be restricted or suspended even
in a state of emergency; (b) similar procedural requirements,
namely those of declaration and notiLication; and (c) the principles
of proportionality and consistency with the State’s other
international obligations.
197
Gross and Ní Aoláin: pp.251‐252
121