States of Emergency - Centre for Policy Alternatives

national security, and the protection of the rights and freedoms of
others. The European regime is exemplary in this regard and the
legality of a limitation is determined by (a) whether the purported
limitation pursues an aim speciLically allowed by the relevant
limitation clause, and (b) whether the means used to so limit the
exercise of a right is proportionate to the aim, i.e., whether the
State’s action in limitation is ‘necessary in a democratic society.’
Thus the principle of proportionality is inherent to the concept of
necessity in a democratic society.
However, it is in respect of the legal regime governing derogations
that proportionality assumes paramount importance, because, as
Oraá has pointed out, it is the ‘main substantive criterion’
employed to assess the legality of derogating measures taken by a
State in a state of emergency. Thus in ICCPR Article 4 (1),
proportionality is embodied in the requirement that the
derogation is only ‘to the extent strictly required by the exigencies
of the situation.’ Oraá contends that two theoretical bases form the
foundation of the principle of proportionality in the derogation
clause. The Lirst is derived from the principles set out in Article 29
(2) of the UDHR and Article 5 (1) of the ICCPR, “which embody a
fundamental theory of limitation and imply that the extent of
every limitation or derogation should be strictly proportionate to
the need of defending the higher interest of society”, 254 and the
second is found in the principle of self‐defence in international
law. 255
In the application of the proportionality principle in respect of
derogations, it is important to distinguish between four
dimensions and sets of issues. The Lirst is a situation in which a
254
Ibid, p.142
255
Paris Minimum Standards: para.5; Questiaux (1982), op cit, para. 60
162