States of Emergency - Centre for Policy Alternatives

ights under any circumstances, and include those of
proportionality, non‐discrimination, and consistency with other
international obligations. The principle of exceptional threat is a
mixture of procedural and substantive requirements. We may now
discuss each of these in turn.
4.3.1
The
Principle
of
Exceptional
Threat
As we have seen, legally articulating what constitutes an
emergency is a deLinitional problem in the theory relating to
states of emergency, and different countries have various ways of
dealing with it within their domestic legal regimes. At
international law, the ICCPR deLines this as a ‘public emergency
which threatens the life of the nation’. 226 The drafters’ intention
was to formulate a deLinition that encapsulates the idea of an
exceptional threat affecting the whole nation, and thereby to
reduce, if not avoid the possibility of abuse of emergency powers
by State Parties through availing themselves of the right of
derogation too easily. What must be clearly understood is that
what is permitted under domestic legal regimes does not
necessarily allow State Parties to exercise the right of derogation
under the framework of Article 4, in which the requirement of
‘exceptional threat’ must be established with evidence.
With regard to the apposite provision to Article 4 in the ECHR
(Article 15), the European organs in the Lawless
Case
have deLined
the concept of exceptional threat as ‘a situation of exceptional and
imminent danger or crisis affecting the general public, as distinct
226
Article 4 (1)
142