States of Emergency - Centre for Policy Alternatives

that it would “…take a State party’s other international obligations
into account when it considers whether the Covenant allows the
State party to derogate from speciLic provisions of the
Covenant.” 203
4.1.3
Common
Themes
of
Treaty
Body
Jurisprudence
In their survey of the jurisprudence of the judicial and quasijudicial
treaty bodies of the ICCPR, the ECHR and the ACHR, Gross
and Ní Aoláin identify several ‘strategic concentrations in juridical
thinking’, which are essentially commonalities of approach among
these bodies to similar emergency related problems across the
systems they monitor and enforce. In brief, these are as follows:
(a) international courts and quasi‐judicial bodies give greater
leeway in derogation cases to democratic States than to nondemocratic
or illiberal ones; (b) they are also unable to
satisfactorily deal with ‘problem’ emergencies, particularly
permanent or enduring emergencies. This is because of a
‘profound conceptual lacuna’ in international human rights law
which regulates an ‘ideal type emergency’ which in practice hardly
ever exists. In reality, emergencies are ‘permanent, complex and
de
facto’, which the international regulatory regime cannot come
to terms with jurisprudentially; (c) judicial examination of
emergency powers have focussed on the substantive measures
impacting on treaty guaranteed rights, but have generally not
questioned the initial act of a declaration of emergency, and
thereby the entire legal validity of the state of emergency and
resultant derogations; (d) that regional systems are more robust
than the Human Rights Committee in reviewing both the
procedural and substantive aspects of a state of emergency within
203
General Comment No. 29, para.10; see for section 4.3, infra
124