CIVIL DISTURBANCES

The Limits of Legally Invoking a Public Emergency to Derogate from Human Rights

The Case Study of Thailand

Annika van Beek University of Amsterdam

6032435 Thesis supervisor: mw. dr. C.M. Brölmann

29 July 2015

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Preface

In front of you is my thesis for the master International and European Law: Public International

Law (LLM). The subject concerns the possibility of declaring a public emergency to derogate from

human rights in the case of political turmoil and civil disturbances.

While studying law at the University of Amsterdam both in national and international law, I mostly

focused on liabilities and accountabilities. In the context of public international law, I specifically

concentrated on (international) security issues. The courses I took were – among others –

International Humanitarian Law, Law and Practice of the United Nations and multiple international

criminal law courses. In addition I took courses from the minor Intelligence Studies to ascertain the

role of intelligence agencies in a State’s internal security.

The inspiration for this thesis did not come from any courses, however, but from my fascination

with Thailand. As an avid traveler, I have visited Thailand multiple times and have noticed each

time the political turmoil the country seemed to constantly face: protests, the invocation of martial

law, coups d’état in which governments were overthrown and the subsequent restrictions on

human rights, such as the right to freedom of expression. Last year, I went back to Thailand as an

intern for the Embassy of the Kingdom of the Netherlands in Bangkok. It was two months after the

Thai army invoked martial law and declared a state of emergency, exercised its ‘right’ to derogate

from human rights and staged a coup d’état. I knew this was my chance to delve deeper into both

the international and Thai legal and political framework relating to public emergencies. Given that I

always had a keen interest in (international) security issues I wondered if – and if so under what

conditions – (political) civil disturbances with the potential for violent outbursts could lead to

human rights being legally restricted. Finding myself amid this ‘action’ inspired me to write this

thesis.

Finally, I would like to take this opportunity to express my gratitude. First of all to my thesis

supervisor mw. dr. C.M. Brölmann for her encouragement, knowledge and expert guidance. Not

only was she a great help during the writing of this thesis, but it was a great pleasure to have her as

a lecturer and to be her academic assistant. Additionally, I would like to thank my (former)

colleagues from the Embassy: former Ambassador Joan Boer, Guillaume Teerling, Doris Voorbraak

en Nick Peulen for the intellectual sparring sessions about the exact scope of this thesis. Lastly, but

certainly not least, I would like to thank my family, Rick and all my friends for their unconditional

love and support throughout my studies.

Enjoy reading!

Annika van Beek

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Abbreviations

2007 Constitution Constitution of the Kingdom of Thailand, BE 2550 (2007)

ACHR American Convention on Human Rights (adopted 22 November

1969, entered into force 18 July 1978) 1144 UNTS 123

ECHR Convention for the Protection of Human Rights and Fundamental

Freedoms (adopted 4 November 1950, entered into force 3

September 1953) 213 UNTS 222

First Optional Protocol Optional Protocol to the International Covenant on Civil and Political

Rights (adopted 16 December 1966, entered into force 23 March

1976, in accordance with article 9)

ICCPR International Covenant on Civil and Political Rights (adopted 16

December 1966, entered into force 23 March 1976) 999 UNTS 171

ICESCR International Covenant on Economic, Social and Cultural Rights

(adopted 16 December 1966, entered into force 3 January 1976) 993

UNTS 3

NCPO National Council for Peace and Order

NPOMC National Peace and Order Maintaining Council

Rome Statute Rome Statute of the International Criminal Court (adopted 17 July

1998, entered into force 1 July 2002) 2187 UNTS 90

Second Optional Protocol Second Optional Protocol to the International Covenant on Civil and

Political Rights, aiming at the abolition of the death penalty (adopted

15 December 1989, entered into force 11 July 1991) 1642 UNTS 414

UDHR Universal Declaration of Human Rights (adopted 10 December 1948)

UNGA Res 217 A(III)

UN Charter Charter of the United Nations (adopted 26 June 1945, entered into

force 24 October 1945) 1 UNTS XVI

UNGA United Nations General Assembly

UNSC United Nations Security Council

UNSG United Nations Secretary-General

VCLT Vienna Convention of the Law of Treaties (adopted 23 May 1969,

entered into force 27 January 1980) 1155 UNTS 331

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Table of Contents

Preface ............................................................................................................................................................................................ i

Abbreviations ............................................................................................................................................................................ ii

Table of Contents .................................................................................................................................................................... iii

Chapter 1: Introduction ........................................................................................................................................................ 1

1.1. Introduction ........................................................................................................................................................... 1

1.2. Introductory remarks ......................................................................................................................................... 3

1.2.1. Focus on the ICCPR .................................................................................................................................... 3

1.2.2. Terminology: restrictions, limitations and derogations............................................................. 3

1.2.3. The normative framework: human rights, democracy and the rule of law ........................ 4

Chapter 2: The Overall International Legal Framework ......................................................................................... 5

2.1. Historical background of the institution of a state of emergency .................................................... 5

2.2. Introducing article 4 ICCPR and its origin ................................................................................................. 5

2.3. Interpretations ...................................................................................................................................................... 7

2.3.1. General rules of interpretation ............................................................................................................. 7

2.3.2. The Human Rights Committee .............................................................................................................. 8

2.3.3. Minimum standards proposed by the international community ........................................... 9

2.3.4. Summary: relationship between interpretations of article 4 ICCPR ................................... 10

Chapter 3: The Substantive Law of Public Emergencies ....................................................................................... 11

3.1. Prerequisites for Derogation ......................................................................................................................... 11

3.1.1. A public emergency that threatens the life of the nation ......................................................... 12

3.1.2. Official proclamation of the public emergency ............................................................................ 15

3.2. Permissible derogation measures ............................................................................................................... 16

3.2.1. Proportionality: to the extent strictly required by the exigencies of the situation ....... 17

3.2.2. Consistency with other obligations under international law ................................................. 18

3.2.3. Prohibition of discrimination .............................................................................................................. 20

3.2.4. Non-derogable rights .............................................................................................................................. 21

3.3. Procedural aspect of notifying the international community .......................................................... 26

Chapter 4: The Case Study of Thailand ......................................................................................................................... 27

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4.1. Political background ......................................................................................................................................... 27

4.2. The international legal framework applied ............................................................................................ 30

4.2.1. Meeting the requirements for lawful derogation ........................................................................ 30

4.2.2. Taking permissible derogation measures ...................................................................................... 33

4.2.3. The failure of Thailand to a adhere to its ICCPR responsibilities ......................................... 37

Chapter 5: Conclusion .......................................................................................................................................................... 38

Bibliography ............................................................................................................................................................................ 41

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Chapter 1: Introduction

1.1. Introduction

Political struggles, continuous (violent) protests, explosions and gunfire. Twenty-eight persons

killed and more than eight-hundred others injured.1 On 20 May 2014, after months of political

instability and civil disturbances, the Thai army qualified the situation in Thailand as a public

emergency and invoked martial law ‘in order to ensure effective maintenance of peace and order

and to ensure a prompt return to normalcy for the people of all sides’.2 Two days later, the army

staged a coup d’état and took control of the national administration.3 Soon after, several news

articles appeared, with headlines such as ‘[g]rim outlook for human rights after a month of martial

law’.4

It has long been recognized in international law that human rights may justifiably be restricted in

exceptional situations. The most universally applicable human rights treaty – the International

Covenant on Civil and Political Rights (ICCPR)5 – contains article 4, which allows a State to take

measures that derogate from its ICCPR obligations in times of public emergency, which threaten the

life of the nation. Although it is thus clear that a State can derogate from the ICCPR as an exception,

the circumstances under which it can do so are not. States have relied on article 4 ICCPR to

derogate from human rights because of situations of war and environmental disasters. Political

upheaval leading to (violent) civil disturbances and civil war situations, however, are by far the

most often reclined grounds for invoking a public emergency.6

It is exactly in these kinds of emergency situations that there exists a vast tension. On the one hand,

States are sovereign and have the legitimate right to protect their national legal order. If that order

is at risk, States may defend it, for instance by resorting to emergency measures. On the other hand,

1 Amnesty International, Amnesty International Report 2014/15: The State of the World's Human Rights (Amnesty

International 2015) 363, 363-64. 2 Royal Thai Armed Forces (RTA) Announcement No 1/2557 ‘Announcement of the Royal Thai Army On the

Enforcement of Martial Law’ (20 May 2014); F Wade, ‘Thai army declares martial law’ The Guardian (Bangkok, 20 May 2014) <www.theguardian.com/world/2014/may/20/thai-army-declares-martial-law> accessed 31 March 2015. 3 National Peace and Order Maintaining Council (NPOMC) Announcement No 1/2557 ‘Announcement On the

Control of National Administration’ (22 May 2014). 4 Amnesty International, ‘Thailand: Grim outlook for human rights after a month of martial law’ (20 June 2014)

<www.amnesty.org/en/latest/news/2014/06/thailand-grim-outlook-human-rights-after-month-martial-law> accessed 22 May 2015. 5 The International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force (23

March 1976) 999 UNTS 171 (ICCPR). 6 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, Link Kehl 2005) 90; almost all

States that have invoked article 4 ICCPR (n 5) did so on those grounds. States’ notifications use words as ‘civil war’ (Poland and Sudan), ‘social unrest’ (Bolivia and El Salvador) and ‘internal disturbance’ (Paraguay, Colombia and Ecuador).

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some governments, such as (military) dictatorships, may not have the people’s best interests at

heart and may use their power for their own interests. Even though they are obligated to give full

effect to human rights, as representatives of the legal concept of a ‘State’, they continuously violate

them.7 When people, as a last resort, resort to rebellion against the tyranny and oppression those

governments can misuse the emergency powers to maintain their own position of power.8 The

practice shows us that such a misuse often occurs. Strange political maneuvers are made whereby

States declare a public emergency that lasts for years and years and are in an almost continuous

state of emergency, thereby trying to legitimize the ongoing restrictions of human rights. The

question arises as to whether this is legal. After all, if it is not, a State is directly violating human

rights and its international obligations. This thesis seeks to answer the following research question:

What are the limits – under the law of international human rights – of legally invoking a

public emergency in the sense of article 4 ICCPR in the case of civil disturbances?

By employing a pragmatic method, this thesis provides a critical analysis of the international law

regarding public emergencies and its current practical application. The research question will be

answered by determining what the law is regarding public emergencies and by looking at the

practice of States which invoked a public emergency to derogate from human rights. This thesis will

establish a normative framework, by taking into account democracy as the core value of the United

Nations (UN) and the principles of legality and the rule of law, which are inherent in the ICCPR as a

whole and are safeguards that underlie article 4.9 To that end, in this thesis, Thailand will serve as a

contemporary case study for both the practical application of article 4 as well as the inherent

tensions that may arise when a State derogates from human rights. It is important to keep in mind

that because of this narrow scope, this thesis cannot be exhaustive.

After these initial introductory remarks on the scope of this thesis and on the background

information (section ‎1.2), Chapter 2: The Overall International Legal Framework first introduces

the international legal framework in which emergency powers operate. It offers an insight into the

historical background of the institution of a state of emergency and introduces article 4 of the

ICCPR and its interpretations. Chapter 3: The Substantive Law of contains a substantive discussion

on when a State can legally invoke a public emergency as a ground to derogate from human rights.

It dives into the prerequisites for derogation, the permissible derogation measures and the

procedural aspect of notifying other States of its derogation. To illustrate the contemporary use of

article 4 and the tensions that can arise, Chapter 4: The Case Study of Thailand is a case study on the

7 ICCPR (n 5) art 2.

8 See preamble of the Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III)

(UDHR). Even though the UDHR does not bind States under international law, it did served as a minimum standard and a vast steppingstone to forthcoming binding human rights treaties such as the ICCPR. ICCPR (n 5) preamble. 9 See UN Human Rights Committee, General Comment No 29 ‘States of Emergency (Article 4)’ (adopted at the

1950th meeting on 24 July 2001) CCPR/C/21/Rev.1/Add.11 (31 August 2001) para 16.

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invocation of article 4 by Thailand in which it concludes whether or not Thailand acted within the

international framework of emergency powers. Finally, Chapter 5: Conclusion contains a conclusion

on what the limits are of legally invoking a public emergency to derogate from human rights.

1.2. Introductory remarks

1.2.1. Focus on the ICCPR

Currently there are a number of (regional) human rights treaties in existence, several of which have

provisions that allow for derogation in case of emergency situations. 10 As this thesis seeks to

examine the law that is applicable in the most countries, it focuses on the ICCPR, the treaty that is

almost universally applicable.11 The ICCPR is the most comprehensive and renowned UN treaty on

civil and political rights. It holds States obligated to the principles enshrined in the UN Charter. 12

The ICCPR contains a wide range of so-called ‘classical’ human rights: civil and political rights that

protect the individual against the power of the State. These rights include – among many others –

the right to self-determination, life, privacy, freedom of expression and freedom of assembly.13 By

becoming a party to the ICCPR, States are bound to give full effect to the rights enshrined therein.14

Besides the substantive rights, the ICCPR also specifies when State Parties can legally restrict those

rights: either via limitations or derogations. This thesis focuses on derogations.

1.2.2. Terminology: restrictions, limitations and derogations

A small number of ICCPR rights are absolute and therefore can never be restricted. Most rights,

however, can legally be restricted by a State if the ICCPR allows for such restriction. There are two

ways in which a State can legally restrict ICCPR rights: via either limitations or derogations. As both

means of restriction can possibly be legally exercised in case of a public emergency situation,

understanding the difference between them is essential for this thesis.

Limitations are less stringent than derogations: they reflect the idea that hardly any human rights

are absolute and that a balance must be struck between individual and public interests.15 The ICCPR

rights that can be limited, contain limitation clauses that allow limitation either expressly (on

grounds such as ‘interests of national security or public safety’, ‘public order’ and ‘protection of the

10 eg ICCPR (n 5) art 4, Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4

November 1950, entered into force 3 September 1953) 213 UNTS 222 (ECHR) art 15 and American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (ACHR) art 27. 11

As of 2 April 2014 – with the accession of the State of Palestine – the ICCPR has 168 State Parties <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en> accessed 18 April 2015. 12

Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter); ICCPR (n 5) preamble. 13

Except for the right of self-determination (art 1, p I), all substantive rights are found in p III, arts 6-27 ICCPR (n 5). 14

ICCPR (n 5) art 2; see Nowak (n 6) 37-41 on the threefold obligation of States to respect, ensure and protect. 15

D McGoldrick, ‘The Interface between Public Emergency Powers and International Law’ (2004) 2 International Journal of Constitutional Law 380, 383.

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rights and freedoms of others’)16 or implicitly (through terms such as ‘fair’, ‘reasonable’ and non-

arbitrary limitation)17. In any case, limitations must be prescribed by national law, proportionate

and protect a countervailing community benefit.18 Accordingly, limitations can be allowed in

emergency situations, but also during ‘normal’ times.

Derogation of ICCPR rights on the other hand is only allowed in the exceptional situation of a public

emergency, which threatens the life of the nation.19 In order for a State to legally derogate it has to

adhere to the strict requirements set out by article 4 ICCPR. Derogation means the complete or

partial elimination of the right concerned as an international obligation.20 Derogation thus has more

far-reaching implications on human rights.

In an emergency situation, the ratio between limitations and derogations is that a State must first

limit rights rather than directly resort to derogation.21 This thesis focuses on derogations and

therefore the term ‘derogation’ will be consistently used. Limitations are only cited in so far as to

clarify the law regarding derogations. Whenever a conjugation of the word restriction is used, it

refers to the overall concepts of restricting human rights.

1.2.3. The normative framework: human rights, democracy and the rule of law

Democracy is one of the universal core values and principles of the UN.22 It is based on the idea that

the freely expressed will of people is the basis of the authority of government.23 Essential

requirements of democracy include respect for human rights and fundamental freedoms, the

separation of powers, accountability of the administration and power that is exercised in

accordance with the rule of law.24 The principle of legality is intrinsically linked to the rule of law,

which is inherent in the principle of democracy. These principles provide a basic framework and

will help define the limits of legally invoking a public emergency to derogate from human rights in

case of (political) civil disturbances.

16 eg ICCPR (n 5) art 22.

17 eg ICCPR (n 5) art 14, 25 and 9.

18 S Joseph and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and

Commentary (3rd edn, OUP 2013) paras 1.82-1.86. 19

ICCPR (n 5) art 4. 20

McGoldrick (n 15) 383. 21

GenCom 29 (n 27) para 7; Siracusa Principles (n 61) para 53; McGoldrick (n 15) 384. 22

Even though the UN Charter (n 12) does not explicitly mentions ‘democracy’, the phrasing ‘we the peoples’ indicates that democracy is indeed a fundamental principle. See similarly UDHR (n 8) and ICCPR (n 5). 23

UDHR (n 8) art 21. 24

UN Commission on Human Rights (UNCHR) Res 2002/46 (23 April 2002) para 1; see also UN Human Rights Commission (UNHRC) Res 19/36 (19 April 2012) UN Doc A/HRC/RES/19/36; see UN Security Council (UNSC) ‘Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies’ (23 August 2004) UN Doc S/2004/616 para 6, for an extensive definition of the rule of law.

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Chapter 2: The Overall International Legal Framework

Prior to discussing the substantive law and the prerequisites of a public emergency (in Chapter 3:

The Substantive Law of ), this chapter gives an overview of the international legal framework

regarding public emergencies. It first offers an inside in the historical background of the concept of

a state of emergency (section ‎2.1). Subsequently, it introduces article 4 ICCPR and its origin

(section ‎2.2) and briefly discusses the various interpretation mechanisms utilized to clarify the

provision (section ‎2.3). It is not intended as a substantive discussion of the interpretations and the

prerequisites of a public emergency. Such a discussion takes place in the next chapter, Chapter 3:

The Substantive Law of .

2.1. Historical background of the institution of a state of emergency

The overall institution of a state of emergency dates back to the Roman times, where a dictator

dealt with the extraordinary case of an external attack or internal rebellion.25 It encapsulates the

idea that extraordinary measures may be required to deal with a threat to the life of a nation.

Before the ICCPR was adopted in 1966, most States already had a constitutional system, which

empowered governments to take exceptional measures during times of war or other catastrophic

situations. Such a constitutional right of emergency offers a State’s legitimate constitutional organs

the possibility to avoid damages to the general public resulting from, for instance, environmental

disasters, civil wars or attempts to subvert the constitutional order. However, in practice military

dictatorships tended to misuse this instrument to retain their positions of power and to oppress

their political opponents. To find a balance between a State’s legitimate right to defend its

constitutional order and preventing a State from misusing its emergency powers to destroy

government opponents and violating their human rights, the ICCPR – and other human rights

conventions – contain public emergency provisions.26

2.2. Introducing article 4 ICCPR and its origin

‘1. In time of public emergency which threatens the life of the nation and the existence of

which is officially proclaimed, the States Parties to the present Covenant may take measures

derogating from their obligations under the present Covenant to the extent strictly required

by the exigencies of the situation, provided that such measures are not inconsistent with

their other obligations under international law and do not involve discrimination solely on

the ground of race, colour, sex, language, religion or social origin.

25 J Oraá, Human Rights in States of Emergency in International Law (OUP 1992) 7; see further A-L Svensson-

McCarthy, The International Law of Human Rights and States of Exception (Martinus Nijhoff 1998) 11-19. 26

Nowak (n 6) 84-85; see further Oraá (n 25); ICCPR (n 5) art 4, ECHR (n 10) art 15 and ACHR (n 10) art 27; see extensively on emergency powers in a historic perspective Svennsson-McCarthy (n 25) 9-45.

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2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made

under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall

immediately inform the other States Parties to the present Covenant, through the

intermediary of the Secretary-General of the United Nations, of the provisions from which it

has derogated and of the reasons by which it was actuated. A further communication shall

be made, through the same intermediary, on the date on which it terminates such

derogation.’

Article 4 is the ICCPR’s public emergency provision and ‘of paramount importance for the system of

protection for human rights’.27 On the one hand it offers States the possibility to unilaterally

derogate from its ICCPR obligations and on the other hand it subjects both the measures of

derogation and its consequences to a specific regime of safeguards.28

The origin of article 4 can be traced back to 1947, when the United Kingdom presented a draft

International Bill of Human Rights. The draft contained an article which would allow derogation

from human rights ‘in time of war or other national emergency’.29 A long substantive discussion

about the provision followed, trying to clarify its meaning and scope. Even though it seemed that

war was the main kind of public emergency the drafters initially had in mind when formulating

article 4, eventually the word ‘war’ was stricken, since the whole purpose of the UN precisely is the

prevention of war. Emphasis on even the possibility of war was thus to be avoided.30 Unfortunately

there was not much discussion about the other kinds of emergencies that could arise. From the

preparatory work it seems that the drafters did have in mind that public emergencies at all times

must link to situations brought about by some sort of violence (or grave natural disasters).31 Time

has taught us though that public emergencies are most often resorted to because of reasons of civil

unrest.32

Another point of interest is the later addition of the words ‘threatening the life of the nation’.33 The

views relating to this phrasing, illustrates that the drafters were already concerned with the tension

between protecting the interests of the people by preventing misuse of a public emergency by

27 UN Human Rights Committee, General Comment No 29 ‘States of Emergency (Article 4)’ (adopted at the 1950th

meeting on 24 July 2001) CCPR/C/21/Rev.1/Add.11 (31 August 2001) (GenCom 29). 28

GenCom 29 (n 27) para 1. 29

UN Commission on Human Rights Drafting Committee (5 June 1947) UN Doc E/CN.4/AC.1/4, 7. 30

UN Charter (n 12) art 1; UN Commission on Human Rights Drafting Committee (17 June 1949) UN Doc E/CN.4/SR.126, 6; the public emergency of ‘war’ was discussed in eg UN Commission on Human Rights Drafting Committee (17 June 1949) UN Doc E/CN.4/SR.126, 4-5, 8, UN Commission on Human Rights Drafting Committee (17 June 1949) UN Doc E/CN.SR.127, 3-5, 7 and UN Commission on Human Rights Drafting Committee (1 July 1952) UN Doc E/CN.SR.330, 4-5, 7, 8 etc. 31

See also Svensson-McCarthy (n 25) 215-216. 32

Nowak (n 6) 90. 33

UN Commission on Human Rights Drafting Committee UN Doc E/CN.4/L.139/Rev.1.

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governments and States’ right to protect their constitutional order. As Chile submitted it ‘was

significant that the text did not relate to the life of the government or of the state’.34 This shows that

even in a situation where derogation is legal, the interests of the nation and its people still should

prevail. At the same time, the addition makes it less relevant that the drafters did not clarify all the

possible public emergencies that could occur: as long as the situation is severe enough to threaten

the life of the nation, derogation might be legal. A substantive discussion as to when this will be the

case for civil disturbances takes place in the next chapter (Chapter 3: The Substantive Law of ).

Thus, a State may derogate from human rights in the case of a public emergency. However, the exact

scope of the provision is not directly clear. Interpretation is needed to clarify its meaning and limits.

2.3. Interpretations

Over the years various bodies have interpreted article 4. This section introduces the diverse

interpretation initiatives.

2.3.1. General rules of interpretation

The provisions of the ICCPR are interpreted according to the general rules of interpretation from

the Vienna Convention on the Law of Treaties (VCLT).35 Even though the VCLT is a treaty and thus,

in principle, is only legally binding for its State Parties, most of its provisions reflect customary

international law and thus are legally binding for the international community as a whole.36

According to the VCLT the ICCPR is interpreted ‘in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the light of its object and

purpose’.37 Of primary importance are thus the textual, contextual, systematic and teleological

interpretation.38 The systematic interpretation gives way for considering the specific interpretation

articles of the ICCPR,39 as well as other regional human rights treaties and jurisprudence of its

courts.40 Reservations, declarations and comments deriving from State Parties should be taking into

consideration as ‘subsequent practice’ of State Parties.41 Regarding the teleological interpretation,

the nature of international human rights treaties is noteworthy. Unlike traditional international

treaties, which mostly regulate relationships between States, human rights treaties by definition

34 UN Commission on Human Rights Drafting Committee (1 July 1952) UN Doc E/CN.SR.330, 4.

35 Vienna Convention of the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155

UNTS 331 (VCLT) arts 31-33. 36

See O Dörr and K Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (Springer 2012) 82-84. 37

VCLT (n 35) art 31 (1). 38

Nowak (n 6) XXVI, para 18. 39

ICCPR (n 5) arts 5, 46 and 47 40

eg the ECHR (n 10) and the ACHR (n 10). 41

VCLT (n 35) art 31 (3); Nowak (n 6) XXVI, para 18.

8

govern the relationship between States and individuals.42 The object and purpose of the ICCPR is

therefore to offer effective protection of human rights.43 As is characteristic for other human rights

treaties, ‘effectiveness’ is used as an overarching principle to interpret the ICCPR. The ICCPR is thus

interpreted more dynamically and attention is paid to the practical protection of rights, instead of

formal protection.44 Furthermore the ICCPR should be interpreted liberally, while its limitations

and derogations are to be interpreted narrowly.45

If the primary means of interpretation still leave the meaning ‘ambiguous or obscure’ or lead ‘to a

result which is manifestly absurd or unreasonable’, the preparatory work of the ICCPR can be

considered as well.46 As human rights treaties by definition often use vague and abstract terms,

historical interpretation of ICCPR provisions occurs regularly.47

2.3.2. The Human Rights Committee

The body that is of great value when clarifying the scope of article 4 ICCPR is the Human Rights

Committee (the Committee). The Committee is the independent monitoring body of the ICCPR, that

oversees the implementation by the State Parties and interprets its provisions.48 Even though its

decisions and documents are not internationally binding, they rank highly in the interpretation of

the ICCPR and are in practice authoritative.49 Some authors even argue in favor of universal

jurisprudence.50

The essential sources of the Committee’s jurisprudence are its General Comments, Concluding

Observations and decisions under the First Optional Protocol51. First, it has issued two ‘General

Comments’ on article 4. General Comments are interpretations of ICCPR provisions on thematic

issues and can be seen as general statements of law from the Committee.52 General Comment 5

42 Note the formulation of in ICCPR (n 5) art 2 (1): ‘all individuals within its territory and subject to it jurisdiction’.

43 See also ICCPR (n 5) preamble.

44 See further B Cali, ‘Specialized Rules of Treaty Interpretation: Human Rights’ in Hollis DB (ed), The Oxford Guide

to Treaties (OUP 2012). 45

Joseph and Castan (n 18) 28, para 1.77. 46

Historical interpretation is of a supplementary nature; VCLT (n 35) art 32. 47

For more on ICCPR interpretation, see Nowak (n 6) XXVI, paras 17-21. 48

ICCPR (n 5) art 28. The Committee consists of eighteen independent experts, who are nationals of the States parties and who are ‘persons of high moral character and recognized competence in the field of human rights’. Most members of the Committee have legal experience (UN Human Rights Committee, ‘Civil and Political Rights: The Human Rights Committee (Fact Sheet No. 15 (Rev.1))). They act in their personal capacity and cannot be instructed by their governments; The Committee has its own Rules of Procedure: UN Human Rights Committee ‘Rules of procedure of the Human Rights Committee’ (12 January 2012) UN Doc CCPR/C/3/Rev.10. 49

Nowak (n 6) XXVII, para 21. 50

Nowak (n 6) XXVII, para 21; McGoldrick (n 15) 382. 51

Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (First Optional Protocol). 52

The basis for the Committee’s authority to clarify provisions is ICCPR (n 5) art 40 (4), which states that the Committee ‘shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties’.

9

(GenCom 5)53 was issued in 1981 and only contained three paragraphs, therefore hardly clarifying

the provision. In 2001, the Committee issued General Comment 29 (GenCom 29)54, which replaced

GenCom 5. This time the General Comment was much more comprehensive. It drew upon the

Committee’s own experience when dealing with individual claims under the First Optional Protocol

and the reporting procedure, as well as it took into account other private initiatives that over the

years sought to clarify the provision (see section below).55 Nowadays, GenCom 29 is the main

document for public emergencies: it analyzes the legal requirements of article 4 ICCPR and

provides an extensive interpretation of its scope.56 GenCom 29 establishes guidelines that State

Parties are required to respect during a state of emergency. Second, the Committee receives and

examines reports from States Parties on how the States are giving full effect to the ICCPR rights in

their jurisdiction and about their law and practice in the field of emergency powers.57 It addresses

its concerns to the State Parties and gives recommendations in the form of ‘Concluding

Observations’. 58 Lastly, the Committee considers individual complaints (known as

Communications) regarding violations of the ICCPR, but only for the States who are a party to the

First Optional Protocol.59

2.3.3. Minimum standards proposed by the international community

The lack of clarification of the Committee regarding article 4 ICCPR during the years between the

issuance of GenCom 5 and 29 did not go unnoticed. Besides scholarly attention, several private

initiatives and expert conferences were organized, in order to fill the void.60 All initiatives

mentioned in this section were launched in an effort to produce minimum human rights standards

and to clarify the scope of the of the ICCPR’s derogation provision. These initiatives contain many

valuable references for interpreting article 4 and can be used to supplement the Committee’s

jurisprudence.

In chronological order, the relevant initiatives are i) the Siracusa Principles on the Limitation and

Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa

53 UN Human Rights Committee, General Comment No 5 ‘Derogations (Article 4)’ (adopted at the Thirteenth

Session) UN Doc 31/07/81 (1981) (GenCom 5). 54

GenCom 29 (n 27). 55

GenCom 29 (n 27), fn 6. 56

Nowak (n 6) 88. 57

ICCPR (n 5) art 28. 58

ICCPR (n 5) art 40; As of November 2010, the Committee uses a new simplified optional reporting procedure (LOIPR procedure), where States answers to the Committee’s ‘Lists of Issues’ also qualifies as a report in the meaning of article 40 ICCPR and thus fulfills their reporting obligation. The LOIPR Procedure runs for a pilot period of five years, after which the Committee appoints a working group to assess the procedure. UN Human Rights Committee, ‘Focused reports based on replies to lists of issues prior to reporting (LOIPR): Implementation of the new optional reporting procedure (LOIPR procedure)’ UN Doc CCPR/C/99/4 (29 September 2010). 59

First Optional Protocol (n 51). 60

eg S Dolezal, ‘Systematic Failure to Interpret Article IV of the International Covenant on Civil and Political Rights: Is There a Public Emergency in Nigeria?’ (1999-2000) 15 American University of International Law Review 1163

10

Principles),61 the Paris Minimum Standards of Human Rights Norms in a State of Emergency (Paris

Minimum Standards),62 the Oslo Statement on Norms and Procedures in Time of Public Emergency

or Internal Violence (Oslo Statement)63 and the Turku Declaration of Minimum Humanitarian

Standards (Turku Declaration).64

2.3.4. Summary: relationship between interpretations of article 4 ICCPR

It may have taken some years, but evidently there are nowadays many interpretations of article 4

ICCPR available. So how do these interpretations relate to each other?

First of all it is important to keep in mind that even though the ICCPR itself is a legally binding

international treaty, its interpretations are not. Only the general rules of interpretation from the

VCLT are binding as they reflect customary international law. The Committee’s jurisprudence

however, merely has obtained the status as being authoritative. Same goes for the private

interpretation initiatives.

The Committee’s jurisprudence is the basic foundation for interpreting article 4 ICCPR, more

specifically, GenCom 29, which extensively clarifies the provision.65 Similarly, the Committee’s

Concluding Observations and case law under the First Optional Protocol are part of the Committee’s

jurisprudence and therefore carry authoritative weight.66 Even though they are not binding, they

place a moral obligation on States, as they committed themselves to complying to the treaty. Other

interpretations, such as minimum standards, are used to supplement the Committee’s

jurisprudence or can be used to contrast it. The fact that GenCom 29 already took into account the

minimum human rights standards has to some extent already reduced the need for referral to those

documents. However, where necessary, they still can be taken into consideration. The same applies

to comparable case law from other international (regional) bodies.67

61 ECOSOC, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil

and Political Rights, UN Doc E/CN.4/1985/4 (Siracusa Principles). 62

The Paris Minimum Standards of Human Rights Norms in a State of Emergency (Paris Minimum Standards) were approved and adopted in 1984 by the 61st Conference of the International Law Association. The Paris Minimum Standards are reprinted and accompanied by comments in RB Lillich, ‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985) 79 AJIL 1071. 63

Oslo Statement on Norms and Procedures in Time of Public Emergency or Internal Violence, UN Doc E/CN.4/Sub.2/1987/31 (Oslo Statement). In June 1987 the Norwegian Institute of Human Rights (now Norwegian Centre for Human Rights) convened the expert meeting were the Oslo Statement was adopted. 64

Turku Declaration of Minimum Humanitarian Standards, UN Doc E/CN.4/1995/116 (Turku Declaration). 65

GenCom 29 (n 27). 66

ICCPR (n 5) arts 40 and First Optional Protocol (n 51). 67

Nowak (n 6) 87; eg the jurisprudence from the European Court of Human Rights (ECtHR) on the ECHR (n 10) and Inter-American Court of Human Rights regarding the ACHR (n 10); for more on interpreting the ICCPR, see S Sun, ‘The Understanding and Interpretation of the ICCPR in the Context of China's Possible Ratification’ (2007) 6 Chinese Journal of International Law 19-34.

11

The fact that none of the ICCPR’s interpretations have binding force may prove problematic in

enforcing ICCPR rights and thus preventing unlawful derogation.

Chapter 3: The Substantive Law of Public Emergencies

As briefly mentioned in the previous chapter (Chapter 2: The Overall In), States that are confronted

with heavy political resistance that lead to severe civil disturbances might be able to declare a state

of emergency and derogate from human rights. To define the limits of legally invoking a public

emergency in the case of civil disturbances, a substantive discussion of the prerequisites is

required, which this chapter provides. It takes into account the previously mentioned

interpretations: the Committee’s jurisprudence, including invocations of states of emergencies by

State Parties and responses to it,68 the developed minimum standards for human rights and in some

cases jurisprudence from regional human right bodies.69

To clearly identify the rules regarding a state of emergency, this chapter is divided into three main

sections: the first section discusses the prerequisites for lawful derogation (section ‎3.1), namely

that there is a public emergency that threatens the life of the nation (section ‎3.1.1) and that the

public emergency is officially proclaimed (section ‎3.1.2). If there is in fact a public emergency that

meets the necessary prerequisites, a State may take derogating measures, but up to a certain extent.

The second section discusses the permissible derogation measures (section ‎3.2): measures must be

strictly required by the exigencies of the situation (section ‎3.2.1), may not be inconsistent with the

States’ other obligations under international law (section ‎3.2.2), may not involve discrimination on

the grounds of race, color, sex, language, religion or social origin (section ‎3.2.3) and no derogation

is allowed from the human rights enumerated in article 4 (2) ICCPR or human rights which have

non-derogable elements (section ‎3.2.4). Finally, the third section discusses the procedural matter of

notifying other States of its derogation (section ‎3.3).

3.1. Prerequisites for Derogation

In order for a State Party to lawfully invoke article 4 ICCPR, two fundamental conditions have to be

met. The situation must be a ‘public emergency that threatens the life of the nation’ (section ‎3.1.1)

and the existence of such a situation must be ‘officially proclaimed’ (section ‎3.1.2). Only if both

conditions are met, can a state lawfully take emergency measures that derogate from human rights

68 So far officially 33 States have notified the Committee – under art 4 ICCPR (n 5) – that they have declared a state

of emergency and derogated from some of its rights: Algeria, Argentina, Armenia, Azerbaijan, Bahrain, Bolivia (Plurinational State of), Chile, Colombia, Ecuador, El Salvador, France, Georgia, Guatemala, Israel, Jamaica, Namibia, Nepal, Nicaragua, Panama, Paraguay, Peru, Poland, Russian Federation, Serbia, Sri Lanka, Sudan, Suriname, Thailand, Trinidad and Tobago, United Kingdom of Great Britain and Northern Ireland, Uruguay, Venezuela (Bolivarian Republic of) and Yugoslavia (former). 69

See section ‎2.3 about interpreting article 4 ICCPR (n 5).

12

enshrined in the ICCPR. If it derogates of ICCPR rights when one or both of these requirements are

not met, the State is in violation of international law.

3.1.1. A public emergency that threatens the life of the nation

A civil disturbance might in some cases justify derogation from the ICCPR; however, not every

disturbance however amounts to a public emergency that threatens the life of a nation. 70 The

threshold for this requirement is relatively high and is only met in exceptional situations of crisis or

public danger.71 First, the aspects of a public emergency are discussed, such as the terminology

used by States, the objective of relying on article 4 and the situations that would qualify as a public

emergency (section ‎3.1.1.1). Secondly, this chapter delves into the question of what constitutes ‘the

life of the nation’ and when a situation is of sufficient gravity to constitute a serious threat to it

(section ‎3.1.1.2).

3.1.1.1. Aspects of a ‘public emergency’ First, regarding the terminology of a ‘state of emergency’ or ‘public emergency’. Over the time,

States have used different terminologies to describe their state of emergencies.72 To analyze

whether article 4 can be applicable, the phrasing is indeed irrelevant. The Committee does not focus

on the terminology used by states, but does so on the legal effects of the different forms of a public

emergency.73 If the legal effect is that the State derogates from human rights, the Committee will

analyze if the situation threatens the life of the nation.

Secondly, regarding the objective of invoking a public emergency the Committee has stated that the

main objective should be the ‘restoration of a state of normalcy, where full respect for the [ICCPR]

can again be secured’. 74 It is true that governments often misuse the public emergency and that

their objective actually is to maintain their own position of power and to repress human rights.

Nevertheless, this requirement is difficult to use as a benchmark to define whether a State lawfully

derogates: after all, one has to rely on the considerations the governments choses to share with the

public as one cannot see into the ‘mind’ of the governments to ascertain their actual objective.

Thirdly, regarding the situations that would qualify as a public emergency the drafters of article 4

did not specify which situations would constitute a public emergency, but it seems the drafters

70 GenCom 29 (n 27) para 3.

71 Paris Minimum Standards (n 62) s A, para 1 (b).

72 McGoldrick (n 15) 394; examples of different terminology are: ‘(severe) state of (national/public) emergency’,

‘state of siege’ (eg Algeria, Argentina) and ‘state of national safety’ (Bahrein); Other States that used the terms ‘Martial Law’ in their notification to the UNSG are Argentina (Letter by Argentina to the UNSG, received by the UN 4 January 2002) Bolivia (Letter by Bolivia to the UNSG, received by the UN 16 August 1995), El Salvador (Letter by El Salvador to the UNSG, received by the UN 2 August 1985) and Poland (Letters by Poland to the UNSG, received by the UN 1 February 1982 and 22 December 1982). 73

McGoldrick (n 15) 394. 74

GenCom 29 (n 27) para 1.

13

mostly had situation in mind that were brought about by some sort of violence.75 Civil disturbances

do not always involve violence. It is therefore up to States to carefully justify the invocation of

article 4 ICCPR and why measures are necessary and legitimate in those circumstances.76 As the

subject of this thesis is a public emergency caused by a civil disturbance, regarding other

emergencies, it suffices to note that those are i) armed international conflicts, which by definition

would constitute a public emergency that threatens the life of the nation77 and ii) environmental

disasters and iii) major industrial accidents, although in the latter two cases, derogation is less self-

evident.78 Economic problems within a State do not justify derogation.79

3.1.1.2. A threat to the life of a nation The Committee has not tried to give a definition or clarify the meaning ‘life of a nation’ or what

exactly threatens it. As the European Court of Human Rights has stated, there is a public emergency

which threatens the life of a nation if it ‘affects the whole population and [threatens] the organized

life of [its] community’.80 The Siracusa Principles state that a threat to the nation is one that ‘affects

the whole of the population and either the whole or part of the territory of the state’.81 In any case,

it is clear that the life of a nation is about the population and the community, not about the life of

the government or of the state.82 A government represents the legal notion of a State, and should act

in the interests of the nation, meaning its people. This requirement is in that way a safeguard

against possible misuse by governments.

Civil disturbances mostly occur in specific areas of a State, for instance violent protests in the

State’s capital. The question arises as to whether a situation threatens the life of the nation, when

the protests and unrest are geographically limited. The answer is twofold. If the civil disturbance is

confined to a part of the territory of the State, it can still affect the whole population. If that occurs,

there thus is a threat to the life of the nation and a public emergency.83 There can, however, also be

civil disturbances in a part of the State, which effects do remain confined to that same part of the

territory. In those situations, the whole population is not affected. Whether this situation would

constitute a public emergency remains unconfirmed. This thesis argues that emergency situations

for which the effects are confined to a part of the State can still qualify as a situation threatening the

nation and allowing for derogation, as long as it meets the requirements that it is extremely serious.

First of all, because the Committee has indicated that measures of derogation can be limited in

75 See also Svensson-McCarthy (n 25) 215-216.

76 GenCom 29 (n 27) para 3.

77 Nowak (n 6) 89, para 12.

78 GenCom 29 (n 27) para 5.

79 Siracusa Principles (n 61) para 39 (41); Paris Minimum Standards (n 62) s A, para 1 (b).

80 Lawless, ECtHR (1961) Series A no 3, para 28.

81 Siracusa Principles (n 61) para 39 (a).

82 See UN Commission on Human Rights Drafting Committee (1 July 1952) UN Doc E/CN.SR.330, 4 (Chile).

83 Northern Ireland, ECtHR (1978) Series A no 25; Nowak (n 6) 91, para 14.

14

geographical coverage and second, because of practical considerations: if invocation of article 4 in

such cases would not be allowed, States with large territories would never be able to utilize it.84

As to the seriousness of the threat, the civil unrest must be extremely serious and exceptional

before it threatens the life of the nation. Both the Siracusa principles and the Paris Minimum

Standards speak of situations where a State is faced with a situation of ‘exceptional’, ‘actual’ or

‘imminent’ danger. Accordingly, simply fearing for the life of the nation is not enough.85 The

organized life of the community must be significantly disrupted.86 Low-level civil disturbances,

which are common in contemporary democracies, would thus not meet this requirement.87 But

even if the civil disturbances involve a high level of violence which and is an actual threat,

derogation may not always be legal: the threat must be to the nation, thus, to the interest of the

people and not to the interests of the governments as representatives of States (as a legal identity).

The inherent tension again surfaces between the state right to protect its constitutional legal order

and the people it is supposed to protect.

Most interesting is that it the constitutional order and manner in which the government operates

can be relevant to determine whether the life of the nation is threatened. Civil disturbances often

occur because people do not share the political view of the government. Here again the tension

surfaces between States’ right to protect its constitutional legal order and the prevention of misuse

by governments as representatives of the State. Full effect should be given to the human rights

enshrined in the ICCPR.88 If a government does not do so, the State is not only in violation of the

ICCPR,89 but also the people can, as a last resort, resist the oppression by having recourse to

rebellion.90 In such a situation the life of the nation is not threatened. After all, the treat must be to

the life of the nation, meaning its people, and not to the life of the government.91 Only if the public

emergency is invoked to swiftly create a constitutional order in which the people can in fact

effectively enjoy their rights and freedoms, may the invocation in such a situation be legal.92

84 S Joseph, ‘Human Rights Committee: General Comment 29’ (2002) 2 Human Rights Law Review 81, 83; Joseph

and Castan (n 18) 911. 85

Nowak (n 6) 90, para 14; See J Hartman, ‘Derogation from Human Rights Treaties in Public Emergencies’ (1981) 22 Harvard International Law Journal 1, 16, who notes that ‘merely potential, latent, or speculative’ danger is not enough to justify derogation. 86

See Paris Minimum Standards (n 62) s A, para 1 (b) and Hartman (n 85) 16. 87

Hartman (n 85) 16. 88

ICCPR (n 5) art 2. 89

It is important to keep in mind that art 2 ICCPR (n 5) has an accessory character: ‘[t]he accessory character means that Art. 2 can be violated only in conjunction with some other (substantive) provision of the Covenant’. See more extensively Nowak (n 6) 35-37. 90

See UDHR (n 8) preamble. 91

UN Doc E/CN.4/L.139/Rev.1 (n 33) and UN Doc E/CN.SR.330 (n 34) 4. 92

Svensson-McCarthy (n 25) 215.

15

A clear limit lies thus in the fact that States in their normal state of affairs give full effect to the

ICCPR rights and do not oppress their people. After all, the core value of democracy demands that

human rights be respected.

3.1.2. Official proclamation of the public emergency

Besides the requirement that a public emergency must ‘threaten the life of the nation’, the public

emergency must also be ‘officially proclaimed’.93 The official proclamation mentioned in article 4

(1) is the notification in the domestic legal order, and must not be confused with the procedural

requirement of notifying the international community under article 4 (3) ICCPR. The requirement

of proclamation is an essential prerequisite for applying article 4, while the notification of other

State Parties merely is a procedural requirement.94 As to the proclamation, the Committee noted it

‘is essential for the maintenance of the principles of legality and the rule of law at times when they

are most needed’.95

The proclamation of a public emergency is governed by the domestic law of the State Party. The

State must act within the powers offered by their constitution and their emergency laws and a

competent body must proclaim the public emergency.96 In practice this will be either the executive

and/or the legislature.97 On multiple occasions Committee members have stated concern about the

concentration of powers in the hands of one person or single organ, explicitly the Prime Minister

and King.98 It thus seems that domestic laws should make the proclamation of a public emergency

subject to parliamentary or legislative control.99 As democracy requires the separation of powers

and the exercise of power in accordance with the rule of law, some sort of parliamentary scrutiny is

indeed a very welcoming addition: it can work as a safeguard to prevent arbitrary and unlawful

derogation.

Furthermore, the principle of legality is served with the proclamation requirement. The

consequence of proclaiming a public emergency is that constitutional or legislative provisions of

the State may be partially suspended or even abrogated altogether. At the same time the

93 ICCPR (n 5) art 4 (1); Siracusa Principles (n 64) para 42, 43 and 62.

94 For the procedural requirement of notification see section ‎3.3.

95 GenCom 29 (n 27) para 2; but see, M Olivier, ‘Revisiting General Comment No. 29 of the United Nations Human

Rights Committee: About Fair Trial Rights and Derogations in Times of Public Emergency’ (2004) 12 Leiden Journal of International Law 405. 96

GenCom 29 (n 27) para 2. 97

McGoldrick (n 15) 396. 98

See eg UN Human Rights Committee (2 April 1981) UN Doc CCPR/C/SR.265 para 35 (Barbados), where a Committee member notes ‘[h]e had some difficulty in accepting [a provision of Barbados’ Constitution], according to which it would seem that a Prime Minister would retain supreme authority in a state of public emergency and that the role of Parliament would be minimal’; see UN Human Rights Committee (27 October 1981) UN Doc CCPR/C/SR.327 (1981) (Morocco) para 40 about the concern relating to the King having unlimited power. 99

See UN Human Rights Committee (22 August 1977) UN Doc CCPR/C/SR.29 para 6 (Tunesia); UN Human Rights Committee (11 April 1979) UN Doc CCPR/C/SR.128 (Chile) para 65.

16

distribution and division of powers may be (temporarily) changed: certain State organs may lose

their powers, while others gain them. The Committee should be informed about how the

declaration of a state of emergency affects the provisions of States’ Constitution.100 From the

perspective of the people of the derogating State, proclamation serves the important purpose of

informing them about this alteration and restriction of human rights that from that moment on may

occur.101 Only if people know the law and acts that constitute criminal offenses, can they conform to

the law. Both in considering whether the derogation is justified and whether States’ national

emergency legislation is in conformity with the international emergency law of article 4 ICCPR, the

Committee considers if the proclamation of a public emergency is required before the competent

body legally can take emergency measures.102 It thus prevents a State from trying to retroactively

legitimize its violations of human rights. In the same way the principle of legality demands that

domestic emergency laws must be clear and precise.103 If the terms are overly broad and vague the

domestic law is inconsistent with the non-derogable criminal legality principle of article 15 ICCPR,

under which no one shall be held guilty of criminal offences, which did not constitute a criminal

offence at the time it was committed.104

Thus, unfortunately no specific concrete reference points have been established to ascertain if a

State has lawfully derogated from human rights. It is clear, however, that the limits of legally

derogating from the ICCPR lie in the interdependent principles of democracy, the rule of law,

legality and the separation of powers. Determining if a public emergency exists remains a matter

over of applying these broader principles.

3.2. Permissible derogation measures

If a State indeed can legally derogate because it meets the requirements discussed in section ‎3.1,

this does not automatically mean that all types of measures are permissible. In any case, measures

must be of an exceptional and temporary nature.105 This subsection seeks to determine what the

conditions and limits for permissible derogation measures are. It discusses the condition that the

measures can only be taken to the extent strictly required by the exigencies of the situation

(section ‎3.2.1), that they must be consistent with other international law obligations (section ‎3.2.2),

100UN Doc CCPR/C/SR.327 (Morocco)(n 98) para 40.

101 A de Guttry, M Gestri and G Venturini (eds), International Disaster Response Law (Springer 2012) 334.

102 UN Human Rights Committee (13 August 1979) UN Doc CCPR/C/SR.170 para 58 (Finland).

103 Joseph and Castan (n 18) 919; eg in the Committee’s Concluding Observations on Azerbaijan (1994) the

Committee noted it was ‘concerned by the lack of clarity in the law governing the conditions in which the state of emergency can be implemented’. UN Human Rights Committee, Concluding Observations on Azerbaijan (1994) UN Doc CCPR/C/79/Add.38 (13 August 1994), para 7; See also Siracusa Principles (n 61) para 43 which notes that ‘procedures under national law for the proclamation of a state of emergency shall be prescribed in advance of the emergency’. 104

See UN Human Rights Council, ‘Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism’ (24 February 2009) UN Doc A/HRC/10/3/Add.1 paras 285-86. 105

GenCom 29 (n 27) para 2.

17

the prohibition of discriminatory measures (section ‎3.2.3) and the non-derogable rights

(section ‎3.2.4), which are divided into a subsection about the non-derogable rights of article 4 (2)

ICCPR (section ‎3.2.4.1) and the additional non-derogable measures deriving from the Committee’s

interpretations, which focuses mainly on the right to a fair trial (section ‎3.2.4.2).

3.2.1. Proportionality: to the extent strictly required by the exigencies of the situation

The Committee has emphasized that the fact that some provisions are listed as non-derogable (see

section ‎3.2.4 below), does not mean that other provisions of the ICCPR may be derogated from at

will.106 If a public emergency exists, a fundamental requirement is that measures that derogate from

ICCPR provisions may only be taken ‘to the extent strictly required by the exigencies of the

situation’.107 This requirement reflects the principle of proportionality and is the most important

limitation on permissible derogation measures.

The requirement concerns the duration, geographical coverage and material scope of both the state

of emergency and the measures. Both States and the Committee have to carefully analyze each

situation and ICCPR article, based on an objective assessment of the actual situation.108 This means

a double test: first, if the derogation itself is strictly required by the exigencies of the situation, and

second, if the measures are strictly required by the exigencies of the situation.109

First of all, when determining what kind of measures are strictly required by the exigencies of the

situation, it is important to note that a clear limit of invoking public emergencies lies in the

supplementary nature of derogations on the basis of article 4. In situations of a public emergency, in

addition to the possibility of derogation, the possibilities of limiting certain rights according to the

requirements of that provision itself, remain intact.110 According to the Committee, prior to taking

emergency measures, a State must first exhaust the limitations that are allowed under the ICCPR in

normal situations.111 Only after doing so, may derogation be possible. In situations, where mass

demonstrations – including instances of violence – take place, governments often derogate from

the right to freedom of movement (article 12) and freedom of assembly (article 21).112 The

Committee, however, has noted that in those instances limiting those rights is generally sufficient

and thus no derogation would not be justified by the exigencies of the situation.113 This suggests

that the requirement that derogation must be strictly required by derogation itself is not easily met

106 GenCom 29 (n 27) para 6; see section ‎3.2.1 about the condition that measures must be ‘strictly required by the

exigencies of the situation’. 107

ICCPR (n 5) art 4 (1); GenCom 29 (n 27) para 3. 108

GenCom 29 (n 27) para 6. 109

GenCom 29 (n 27) para 3 and 5. 110

For the difference between limitations and derogations see section ‎1.2.2. 111

GenCom 29 (n 27) para 7; Siracusa Principles (n 61) para 53. 112

See also Nowak (n 6) 95-96. 113

GenCom 29 (n 27) para 5.

18

in situations of civil disturbances, at least not regarding the right to freedom of movement and

assembly.

Regarding the scope of the state of emergency both the duration and territorial application should

be limited. The state of emergency and its measures can only exist for as long it is necessary to

restore the State to its normal affairs. This ensures that none of the provisions from which States

derogate, completely become inapplicable.114 To prevent prolonged derogation and misuse by

States the Committee always urges states parties to withdraw the measures that derogation from

ICCPR rights as soon as possible.115 The same goes for the geographical coverage of the emergency:

the territorial applicability and the associated derogation of rights’ should be limited as far as

possible.116 A state of emergency and its measures must regularly be reviewed to assess whether

they should still be in place. In practice this seems to be a hardly followed interpretation of article 4.

Specifically in countries with an authoritarian regime, governments have the tendency to almost

permanently impose a state of emergency, over which the Committee has multiple times notes its

concern.117 This is highly problematic as it is essential for maintaining a democratic society to give

full effect to human rights. If a state of emergency in practice becomes the normal state of affairs,

the protection of human rights suffers. The principle of proportionality is thus one of the most

important limitations on the permissible derogation measures.

The condition of proportionality regarding specific measures has led the Committee to the

conclusion that some measures can never be ‘strictly required by the exigencies of the situation’

and are therefore non-derogable.118

3.2.2. Consistency with other obligations under international law

Under article 4 (1) ICCPR, no measures may be ‘inconsistent with [State Parties] other obligations

under international law’.119 This means that a State cannot lawfully take measures if taking such

measures would breach its obligations either under customary international law or under the other

international treaties it is a Party to. In particular, the Committee notes that States cannot breach

rules of international humanitarian law.120 If a norm under another treaty or customary law is

114 GenCom 29 (n 27) para 4.

115 McGoldrick (n 15) 389.

116 Concluding Observations on Israel 1998 (n 117), para 11ff.

117 eg Brazil, Colombia, Malaysia, Syria, Thailand, Taiwan, South Korea and Uruguay; see further UN Doc A/35/40

(18 September 1980), para 247 in which the Committee noted concern about the state-of-siege which consisted for more than 30 years; UN Human Rights Committee, Concluding Observations on Israel (1998) UN Doc CCPR/C/79/Add.93 (18 August 1998) (Concluding Observations on Israel 1998), para 11ff about the concern about the state of emergency that has been in effect since Israel’s independence; see also Nowak (n 6) 98. 118

See section 3.2.4 about non-derogable rights. 119

ICCPR (n 5) art 4 (1). 120

GenCom 29 (n 27) paras 9-10; art 5 (2) ICCPR (n 5) reflects this principle as well (‘there shall be no […] derogation from any of the fundamental human rights recognized or existing in any State Party to the [ICCPR]

19

absolute and does not allow for derogation, such derogation similarly is unlawful under article 4

ICCPR. Regarding the obligations under treaties, human rights and humanitarian treaties are

especially important. Relevant treaties include the Convention on the Rights of the Child,121 regional

human rights conventions,122 the UN Charter,123 the Geneva Conventions of 1949,124, the VLCT,125

the Rome Statute of the International Criminal Court126 and ILO Conventions on forced labor,

freedom of association and equal rights of workers. 127

Almost all states that derogate in times of civil disturbances, derogate from the freedom of

assembly. Therefore, in the context of civil disturbances, the ILO Convention of the Freedom of

Association is particularly interesting, since it does not contain a derogation clause.128 To date, 153

States have ratified the Convention. If a State is a party to both and derogates from the right of

assembly of the ICCPR (article 22 ICCPR) it thus breaches the ILO Convention since it does not allow

for restricting the rights of workers and employers.129 The possibilities for States Parties of the ILO

Convention to derogate from article 21 ICCPR thus are greatly reduced.

Another example, relates to the CRC. Almost all states have ratified the CRC, which does not contain

a derogation clause. Joseph notes that art 24 ICCPR (the right of every child to special protection

without discrimination) is a shortened version of the CRC. Derogating from article 24 ICCPR would

pursuant to law, conventions, regulations or custom on the pretext that the [ICCPR] does not recognize such rights or that it recognized them to a lesser extent’); See also Siracusa Principles (n 61) paras 66-69. 121

Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC). The CRC does not contain a clause that allows derogation and art 38 states that the CRC is applicable in emergency situations; GenCom 29 (n 27) para 10, fn 5. 122

eg ECHR (n 10) and ACHR (n 10). 123

UN Charter (n 12). 124

Geneva Conventions for the Protections of War Victims (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31. The Conventions comprise of the following conventions: Geneva Convention (I) on Wounded and Sick in Armed Forces in the Field, Geneva Convention (II) on the Wounded, Sick and Shipwrecked of Armed Forces at Sea; Geneva Convention (III) on Prisoners of War, 1949 and its commentary; and Geneva Convention (IV) on Civilians; See specifically common art 3, containing the minimum guarantees of the rule of law; Siracusa Principles (n 61) para 67. 125

VCLT (n 35). 126

Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute), specifically arts 6 (genocide) and 7 (crimes against humanity); GenCom 29 (n 27) para 12, fn 7; The Committee gives two examples. A violation to the rights of minorities under art 27 ICCPR (n 5), may constitute genocide (Rome Statute art 6), if it concerns grave violations. In turn, art 7 Rome Statute, covers practices that are related to the non-derogable rights of art 4 (2) ICCPR (arts 6, 7 and 8), but also arts 9 (liberty) , 12 (movement), 26 (equality before the law) and 27 (minorities) ICCPR. 127

eg the Convention concerning Forced or Compulsory Labour (ILO No 29) (adopted 28 June 1930, entered into force May 1, 1932) 39 UNTS 55; Abolition of Forced Labour Convention (ILO No 105) (adopted 25 June 1957, entered into force 17 January 1959) 320 UNTS 291; Freedom of Association and Protection of the Right to Organise Convention (ILO No 87) (adopted 9 July 1949, entered into force 4 July 1950) 68 UNTS 17 (ILO Convention on the Freedom of Association); Siracusa Principles (n 61) para 68 (stating that the rights in the conventions dealing with forced labor, freedom of association and equality in employment cannot be derogated from during an emergency). 128

Freedom of Association and Protection of the Right to Organise Convention (n 127). 129

ILO Convention on the Freedom of Association (n 126) as a whole and art 3 (2) and 7.

20

thus mean derogating from the CRC, and thus breach an international obligation. Therefore, she

concludes that derogation from article 24 ICCPR is no longer possible.130

The requirement of consistency with other international legal obligations thus requires extensive

knowledge from States about the international obligations it is bound to according to treaties and

customary international law. Only very specific treaties or rules – some of which were mentioned

above – will probably be helpful in determining the limits of legally imposing a public emergency

and taking derogating measures, perhaps even in the sense that it can be helpful do determine if the

measures are ‘strictly required by the exigencies of the situation’ (section ‎3.2.1).131

3.2.3. Prohibition of discrimination

Article 4 (1) ICCPR states that derogating measures may not involve ‘discrimination solely on the

ground of race, colour, sex, language, religion or social origin’.132 Besides this anti-discrimination

provision that is explicitly applicable in a state of emergency, the ICCPR contains a general

prohibition of discrimination (article 26) and various other provisions relating to non-

discrimination (articles 2, 3, 14 (1), 23 (4), 24 (1) and 25). None of these provisions are listed as

non-derogable in article 4 (2) ICCPR. As discrimination often takes place exactly during state of

emergencies, to prevent that States can discriminate against for example the governments political

opposition, the non-discrimination part of article 4 was added.133 The Committee has noted that

there are elements of the right to non-discrimination that cannot be derogated from in any

circumstances.134 The prohibition of discrimination in article 4 must particularly be complied with

if a State takes derogating measures that distinguish between persons, as is often the cases in civil

disturbance situations.135 The usages of the term ‘solely’ seems to imply that derogations which

inadvertently discriminate are lawful.136 As a former Committee member stated, the intention of

parties is of crucial importance.137

Interestingly enough, while discrimination on the basis of political opinion is listed in some ICCPR

articles,138 political opinion is not enumerated in the exhaustive list of article 4 (1) ICCPR. It thus

seems that derogating measures that discriminate on the basis of political opinion are thus

permissible. This is remarkable as States that misuse public emergencies to remain in power often

130 Joseph (n 84) 89.

131 See also Svensson-McCarthy (n 25) 639.

132 ICCPR (n 5) art 4 (1); GenCom 29 (n 27) para 8.

133 Nowak (n 6) 100, para 29.

134 GenCom 29 (n 27) para 8.

135 GenCom 29 (n 27) para 8.

136 R Higgins, ‘Derogations Under Human Rights Treaties’ (1976-77) 48 British Yearbook of International Law 281 in

R Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in International Law (OUP 2009) 461; Higgins was a member of the Human Rights Committee from January 1985 until December 1996; UNGA, ‘Draft International Covenants on Human Rights’ (10th session) UN Doc A/2929 (1 July 1955) para 44. 137

Higgins (n 136) para 44. 138

eg art 2 and 26 ICCPR (n 5); See also art 2 UDHR (n 8).

21

use the concept to oppress their political opposition.139 Democracy requires a pluralistic system of

political parties140 and the rights enshrined in the ICCPR itself are likewise essential as they ensure

inclusivity for all groups. Discriminating against political opponents in my view would defeat the

core principle of democracy of the UN and therefore it should not be lawful to take measures that

distinguish between people holding different political opinions.

3.2.4. Non-derogable rights

Even though the taking of derogation measures is in principle legal if the above-mentioned

prerequisites and conditions of article 4 (1) are met, some rights never allow for derogation. This

section starts with briefly discussing the human rights listed in as being non-derogable in article 4

(2) ICCPR (section ‎3.2.4.1). Subsequently it analyzes the expansion of non-derogable rights by the

Committee in GenCom 29 (section ‎3.2.4.2), where it focuses on the right to a fair trial. It concludes

with a short summary on the non-derogable rights (section‎3.2.4.3).

3.2.4.1. Article 4 (2) ICCPR Article 4 (2) ICCPR lists the rights from which no derogation is allowed. These rights are the right to

life (article 6), prohibition of torture (article 7), prohibitions of slavery (article 8), prohibitions of

imprisonment following breach of contractual obligation (article 11), prohibition of retroactive

criminal law (legality)(article 15), the right to recognition as a person before the law (article 16)

and freedom of thought, conscience and religion (article 18). States that have ratified the Second

Optional Protocol141 are also prohibited to derogate from the prohibition of the death penalty.142

There seem to be two criterions of why these rights were proclaimed as being non-derogable. First,

there are the rights that are fundamental. The fact that they are listed as non-derogable, is seen as a

recognition of the peremptory norm in that provision: they are jus cogens norms in international

law. The right to life (article 6) and freedom from torture (article 7) are such examples. Second,

there are the rights that are not fundamental, but their nature is such that it can never become

necessary to derogate from these rights in emergency situations.143 In other words, it can never be

‘strictly required by the exigencies of the situation’ (see section ‎3.2.1) to derogate from these

provisions. For example, the prohibition of imprisonment for breaching a contractual obligation

(article 11) and freedom of thought (article 18).144

139 Joseph (n 84) 88.

140 UNHRC Res 19/36 (19 April 2012) UN Doc A/HRC/RES/19/36 (n 24) para 1.

141 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of

the death penalty (adopted 15 December 1989, entered into force 11 July 1991) 1642 UNTS 414. (Second Optional Protocol). 142

Second Optional Protocol (n 141) arts 1 and 6; GenCom 29 (n 27) para 7. 143

GenCom 29 (n 27) para 11. 144

GenCom 29 (n 27) para 11.

22

In light of the core principle of democracy especially the non-derogability of the principle of legality

in the field criminal law (article 15 ICCPR) is interesting. The overall principle of legality is inherent

in the ICCPR and a basis for the safeguards of article 4.145 Same as the previously mentioned

prerequisite of officially proclaiming a public emergency (section ‎3.1.2) it prevents a State from

trying to retroactively legitimize its violations of human rights. Legal certainty is required by the

rule of law and a functioning democratic society in which human rights are respected. The fact that

article 15 is non-derogable is thus in line with the core principle of democracy of the UN and

effective protection of human rights.

3.2.4.2. Additional non-derogable rights In GenCom 29 the Committee adopted a fairly broad interpretation to the scope of non-derogable

rights and sought to further expand the non-derogable rights that were already listed in article 4

(2).146 Here the Committee departed most clearly from the text from article 4 ICCPR, making it the

most controversial aspect of the General Comment.147This subsection first discusses ICCPR

provisions of which the Committee has stated that they contain elements that in the opinion of the

Committee ‘cannot be made subject to lawful derogation’. Subsequently it delves into the

procedural guarantees of which it has noted that in order to protect the previously mentioned non-

derogable rights enshrined in article 4 (2) ICCPR derogating from the guarantees also may never be

necessary.

Regarding certain elements of ICCPR provisions, the Committee noted that the following rights

‘cannot be made subject to lawful derogation’:148 i) the right of detained persons to human

treatment (article 10), because it expresses a norm of customary international law, ii) the

prohibition of taking of hostages, abductions and unacknowledged detention (element of article

(1)), because it is a norm of customary international law, iii) the rights of minorities (article 27),

because of the coherence with the non-derogable nature of the freedom of religion (article 18), non-

discrimination in article 4 and the prohibition of genocide in international law, iv) forced

displacement by coercive means from the area in which the persons are lawfully presiding (element

of article 12), because under the Rome Statute149 this constitutes a crime against humanity, v)

propaganda for war, or in advocacy of national, racial or religious hatred that would constitute

incitement to discrimination, hostility or violence (article 20)150 and vi) freedom of opinion (article

145 GenCom 29 (n 27) para 16.

146 It took into account the multiple recommendations of experts and non-governmental organizations, above all

the International Commission of Jurists; Nowak (n 6) 96, para 24; GenCom 29 (n 27). 147

See Joseph (n 84) 91, for more on the possible justification for this departure from the text of article 4. 148

ICCPR (n 5) art 4 and GenCom 29 (n 27) paras 11-13. 149

Rome Statute (n 126) arts 7 (1)(d) and 7 (2)(d). 150

GenCom 29 (n 27) paras 13, examples (a)(b)(c)(d) and (e).

23

9).151 In situations of political upheaval it is not inconceivable that military authoritarian

governments have resorted to measures that resulted in (temporary) unacknowledged detention

and derogated from the right to freedom of opinion. Such measures would be unlawful.

The Committee is further of the opinion that certain procedural guarantees, a lot of which relate to

the right to a fair trial, are necessary to protect non-derogable rights of article 4 (2) ICCPR. As a

result, these guarantees themselves are also non-derogable.

First, the right to an effective remedy. Article 2 (3) ICCPR entails the obligation that State Parties

must ensure that an effective remedy is provided to persons whose rights and freedoms under the

ICCPR are violated.152 According to the Committee this is a fundamental obligation. Even if a State

may legally take emergency measures that adjust the national functioning of obtainable remedies,

States still must provide effective remedies for human rights violations.153 In cases of political

unrest and civil disturbances the practice shows that receiving an effective remedy is not always

possible under the national law of the State who took derogating measures.154 Remedies can be

seen as a form of accountability in administration, which is an essential element of democracy.155

Secondly, according to article 9 (4) ICCPR a person has the right to have the lawfulness of one’s

detention reviewed (habeas corpus).156 The application of habeas corpus according to the UNGA is

of fundamental importance for protecting persons against arbitrary arrest, unlawful attention and

for arranging the release of persons who are detained because of political reasons or opinions.157

Accordingly, a state cannot derogate from this right. 158 It was even discussed to draft a third

optional protocol which purpose was to add article 9 (3) and (4) and article 14 to the non-

derogable rights of article 4 (2) ICCPR. Although the Committee did not find this necessary, it was

satisfied that States understood that habeas corpus should not be restricted in case of public

151 UN Human Rights Committee, General Comment No 34 ‘Article 19: Freedoms of opinion and expression’

(adopted at the 102nd session from 11-29 July 2011) UN Doc CCPR/C/GC/34 (12 September 2011) (GenCom 34) para 5; GenCom 29 (n 27) paras 11 and 13. 152

ICCPR (n 5) art 2 (3)(a). 153

GenCom 29 (n 27) para 14; ICCPR (n 5) art 2 (3)(a); UN Human Rights Committee, General Comment No 31 ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (adopted at the 2187th meeting on 29 March 2004) UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) (GenCom 31) para 15. 154

See eg Chapter 4: The Case Study of Thailand. 155

UNCHR Res 2002/46 (23 April 2002) (n 24) para 1. 156

ICCPR (n 5) art 9 (4). 157

UNGA Res 34/178 (17 December 1979) UN Doc A/RES/34/178. 158

See Concluding Observations on Israel 1998 (n 116), para 21, stating that ‘[t]he Committee takes due note that Israel has derogated from article 9 [ICCPR]. The Committee stresses […] that a State party may not depart from the requirement of effective judicial review of detention. The Committee recommends that the application of detention be brought within the strict requirements of the [ICCPR] and that effective judicial review be made mandatory’.

24

emergencies. Furthermore, the article 9 (3) and (4) in conjunction with article 2 were ‘inherent to

the Covenant as a whole’.159

Thirdly, the Committee has noted that deviating from fundamental principles of the right to a fair

trial is prohibited at all times.160 Derogating from the right of trial can never be ‘strictly required by

the exigencies of the situation’. Indeed, derogating from the right to a fair trial would be contrary to

the rule of law, the principle of legality and the existence of a democracy.161 The law should always

be applied in fairness. When looking at the general rules of interpretation from the VCLT, the same

can be concluded: unfair trials would make the effective enjoyment of human rights impossible,

while it the object and purpose of the ICCPR.162 Derogating from the right to a fair trial is thus

inconsistent with the object and purpose of the ICCPR and ‘inconsistent with their other obligations

under international law’, namely with the VCLT which embodies customary international law. Still,

some aspects of the right to a fair trial may still allow derogation. An overview of the aspects of the

right to a fair trial follows below.

The presumption of innocence enshrined in article 14 (2) ICCPR is found to be fundamental to the

protection of human rights and accordingly no derogation will be allowed.163

Regarding the right of appeal (article 14 (5) ICCPR ), also an aspect of the right to a fair trial, the

matter is not as clear cut. Article 14 (5) states that every person that is convicted of a crime, has the

right to have his conviction and sentence reviewed by a higher tribunal according to the law.164

Some time ago the Committee already noted that the guarantee of the right of appeal should not

only be confined to the most serious offences. The Committee deems sentences of a year already to

be serious enough, that they require review by a higher tribunal.165 More than once (military)

authoritarian governments have used derogating measures to establish specific (military) tribunals

to convict their political opponents in a manner which would otherwise be contrary to article 14.

The case of Thailand – discussed in Chapter 4: The Case Study of Thailand – is highly illustrative of

the establishments of military tribunals and the relation to the tension with the people’s right to a

fair trial.

159 UNGA ‘Report of the Human Rights Committee (28 September 1994) 49th Session UN Doc A/49/40 (I) para 23.

160 GenCom 29 (n 60) para 11; GenCom 32 (n 168) para 6; GenCom 13 (n 163) para 7;

161 See also Olivier (n 95) 415.

162 VCLT (n 35) art 31 (1); see section ‎2.3.1.

163 ICCPR (n 5) art 14 (2); UN Human Rights Committee, General Comment No 13 ‘Article 14: Administration of

justice’ (1984) UN Doc HRI/GEN/1/Rev.1, 14 (GenCom 13) para 7; See D Weissbrodt, The Right to a Fair Trial: Articles 8, 10 and 11 of the Universal Declaration of Human Rights (Martinus Nijhoff 2001) 114-15. See Nowak (n 6) 97, para 24. Siracusa Principles (n 61) paras 67 (d) and 70 (g). 164

ICCPR (n 5) art 14 (5). 165

Salgar De Montejo v Colombia, Communication No R.15/64 (18 December 1979) UN Doc A/37/40 (1981) 168, 179, para 10.4.

25

So does the ICCPR allow for derogation of article 14 (5) ICCPR in a state of emergency? The Siracusa

Principles offer some guidance: they acknowledge that the right to fair trial can be subjected to

certain derogations, but ‘the denial of certain rights fundamental to human dignity can never be

strictly necessary in any conceivable emergency.’ 166 It continues by stating that a person who is

charged of a criminal offence shall at least have the right to appeal to a higher court.167 The view

that the right to appeal is fundamental and that derogation from it can never be strictly required by

the exigencies of the situation in my opinion seems to be preferable and should be upheld.

In cases where capital punishment can be imposed, the issue of the right of appeal becomes an even

more urgent matter, because of the grave repercussions it has for individuals charged with such

offences.168 In this respect articles 4 (2) (non-derogable rights) and 6 (the right to life) ICCPR are

highly relevant. The Committee in its GenCom 29 has noted that ‘procedural safeguards may never

be made subject to measures that would circumvent the protection of non-derogable rights’.169

Accordingly, any trial that imposes capital punishment during a state of emergency, must conform

to all the ICCPR provisions, including the fair trial requirements of article 14, and thus also to the

right of appeal.170

3.2.4.3. Summary: non-derogable rights Even though article 4 (2) ICCPR is the only formal basis for non-derogable rights under the ICCPR,

section ‎3.2.4 has shown that it is in no way exclusive. Rights and principles that are inherent in the

ICCPR and the UN as a whole likewise seem to be non-derogable. Not only are the principles of

legality and the rule of law inherent in the ICCPR, however, so are the right to liberty and habeas

corpus (article 9 (3) and (4)), the right to a legal remedy (article 2) and certain elements of the right

to a fair trial (article 14), including, for example, the presumption of innocence and possibly the

right to appeal. If derogation of those rights would be allowed this would be in clear contrast with

the rule of law, the principle of legality and the existence of a democracy. As that would be against

the core value of the UN, it cannot be legal.

166 Siracusa Principles (n 61) para 70 (g) (last hyphen); see also UN Human Rights Committee, General Comment No

24 ‘Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant’ UN Doc CCPR/C/21/Rev.1/Add.6 (1994) (GenCom 24) para 8 in which the Committee notes that a general reservations to the peremptory norm of a fair trial is not compatible with the object and purpose of the ICCPR, but that reservations in certain cases can be acceptable. 167

Siracusa Principles (n 61) para 70 (g) (last hyphen). 168

See GenCom 32 (n 168) para 51; UN Human Rights Committee, General Comment No 32 ‘Article 14: Right to Equality before Courts and Tribunals and to Fair Trial’ (adopted at the 90th session from 9 to 27 July 2007) UN Doc CCPR/C/GC/32 (23 August 2007) (GenCom 32). 169

GenCom 29 (n 27) para 15. 170

GenCom 29 (n 27) para 15; GenCom 32 (n 168) para 6.

26

3.3. Procedural aspect of notifying the international community

When State Parties derogate because of a state of emergency, they have the obligation to

immediately inform the other State Parties of this derogation through the intermediary of the UN

Secretary General (UNSG) under article 4 (3) ICCPR.

Initially the Committee noted it could monitor whether a State has complied with all of the article 4

obligations, irrespective of whether notification took place.171 This meant that notification barely

had any legal effect: if States failed to comply with the procedural obligation of notification, it would

not deprive them of their substantive rights of derogation, as long as they met the substantive

requirements discussed in the previous sections.172 There is however an indication that the

Committee has ceased this practice: when an Individual Complaint was brought before the

Committee in 2007, about the national proclamation of a state of emergency in Algeria of which it

did not notify the UNSG, the Committee did not even discuss the possibility of derogating under

article 4.173 This seems to indicate the Committee now is of the view that notification – or at least

the mentioning of article 4 – must take place, in order for it to consider the possibility of derogating

under article 4. The exact legal effect of notification thus is unclear and clarification from the

Committee would be recommended.

In any case, notification must ‘immediately’ take place. In its notification the State must i) state it

has imposed a state of emergency, ii) clearly state the reason why it did so, iii) give full information

about the measures taken and the provisions from which it derogates, iv) give a clear explanation of

the reasons for such measures and v) attach full documentation regarding its domestic emergency

laws.174 Additional notification must take place when a State extends the duration of the state of

emergency, takes further measures and immediately after a State terminates the state of

emergency.

171 GenCom 29 (n 27) para 17.

172 Joseph and Castan (n 18) P 921, para 26.78

173 Aber v Algeria, Communication No 1439/05 (2007) UN Doc CCPR/C/90/D/1439/2005 (16 August 2007).

174 ICCPR (n 5) art 4 (3); GenCom 29 (n 27) para 17.

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Chapter 4: The Case Study of Thailand

In the previous chapters the international framework in which article 4 ICCPR operates has been

determined and several points of tension have been indicated to try to define the limits of imposing

a public emergency in case of civil disturbances. The recent political upheaval in Thailand is a

contemporary example of how military regimes (mis)use the invocation of a public emergency to

justify the restriction of human rights. In this chapter, the rules relating to public emergencies are

applied to the practical situation of Thailand to highlight the inherent tensions and to test the limits

of invoking a public emergency in a practical sense.

As seen in the previous chapters, the situation that preceded the invocation of a public emergency

can be crucial in determining whether derogation was lawful. Therefore, this chapter first offers an

insight in the political background of Thailand and the 2014 imposing of a public emergency

(section ‎4.1). It then applies the prerequisites and conditions on the practice of Thailand after

which it conclude whether Thailand lawfully derogated from human rights under the ICCPR

(section ‎4.2), constantly keeping in tensions that occur and the core principles of the UN.

4.1. Political background In order to use the Thai political situation of 2014 as a case study a general understanding of

Thailand’s political history and the recent political turmoil is needed.

Thailand has a long history of political instability and coup d’état.175 It is a constitutional monarchy:

Thailand’s King is Head of State, but its powers are restricted by the constitution.176 Since 2001, the

country faced almost constant political turmoil and has globally been divided into two groups: the

overall poorer working population from the rural areas and the up and coming middle class,

generally known as the ‘red shirts’ who support the Shinawatra family. The opposition of the

Shinawatra family are known as the ‘yellow shirts’, a loose group of businessman and royalists,

mostly part of the traditional elite and urban middle class with links to the military and royal

family.177 Since former Prime Minister Thaksin Shinawatra was ousted by a bloodless military coup

175 The exact amount of coup is disputed. Harding and Leyland (n 176) xxix, call the 2006 coup the 17th coup,

meaning the 2014 coup would be the 18th. Other sources call the 2014 the 12th coup, eg A Taylor and A Kaphle, ‘Thailand’s army just announced a coup. Here are 11 other Thai coups since 1932’ The Washington Post (first published 20 May 2014, republished 22 May 2014) <www.washingtonpost.com/blogs/worldviews/wp/2014/05/20/thailands-army-says-this-definitely-isnt-a-coup-heres-11-times-it-definitely-was> accessed 30 March 2015. 176

Constitution of the Kingdom of Thailand, BE 2550 (2007), English text as translated by the House of Representatives: Gazette vol 124, pt 27a, BE 2550 (2007) (2007 Constitution) s 2; see generally, A Harding and P Leyland, The Constitutional System of Thailand: A Contextual Analysis (Hart Publishing 2011); the current King of the Kingdom of Thailand is King Bhumibol Adulyadej (Rama IX). 177

See on extensively on the underlying conflict M Saxer, ‘Building the Good Society in Thailand: Resolving transformation conflict through inclusive compromise’ (October 2014) Economy of Tomorrow, Friedrich Ebert Stiftung.

28

in 2006 the country saw political crisis after political crisis, with red and yellow opposing each

other via almost continuous protests and riots.

The events leading up to the 2014 invocation of martial law, the corresponding state of emergency

and the ensuing coup d’état can be traced back to October 2013, when Prime Minister Yingluck

tried to pass an amnesty bill that would allow amnesty for persons responsible for political violence

and corruption since 2004, including her brother, Thaksin. In November 2013, tens of thousands of

people – both the red and yellow shirts – went to the streets to protest. Even though the bill was

defeated that same month by Thailand’s Senate, the opposition of yellow shirts still continued its

protest.178 What started out as a protest against an amnesty bill, gradually shifted towards protests

against Yingluck’s whole government, blaming them of being an elective dictatorship and simply

being a proxy for Thaksin. What followed were months of civil disturbances where yellow shirts

occupied government buildings, ministries and business districts and threw of petrol bombs.

Regularly the protests ended in violence. Yingluck’s attempts to restore the order by announcing

early elections179 and resorting to emergency powers180 failed: from January to May 2014 alone, 28

people were killed and 825 other injured.181

To bring an end to the ongoing protest, on 20 May 2014 the Royal Thai Army (RTA) intervened. It

declared nationwide martial law ‘in order to ensure effective maintenance of peace and order and

to ensure a prompt return to normalcy for the people of all sides’.182 It was a fact: Thailand

exercised its right of derogation under article 4 ICCPR.183 What happened next, is a unique feature

of the Thai constitutional system. Whereas in most States declaring martial law and/or a state of

emergency would be seen as sufficient to restore the order within the country, Thailand has a

178 ‘Thailand: anti-Thaksin protesters set new targets after amnesty bill defeat’ The Guardian (12 November 2013)

<www.theguardian.com/world/2013/nov/12/thailand-anti-thaksin-protesters-amnesty-bill-defeat> accessed 30 March 2015. 179

T Fuller, ‘Protests Continue in Thailand After Election is Set’ The New York Times (New York, 9 December 2013) <www.nytimes.com/2013/12/10/world/asia/thailand-protests.html> accessed 30 March 2015. 180

In November 2013 Yingluck imposed the Internal Security Act, BE 2551 (2008) (ISA), unofficial English translation <http://thailaws.com/law/t_laws/tlaw0342.pdf> accessed 30 March 2015 (Thailand) and on 21 January 2014 the Emergency Decree on Public Administration in Emergency Situation, BE 2548 (2005)(Emergency Decree), unofficial English translation <www.refworld.org/docid/482b005f2.html> accessed 31 March 2015; ‘Thailand to lift Bangkok state of emergency’ Al Jazeera (18 March 2014) <www.aljazeera.com/news/asia-pacific/2014/03/thailand-lift-bangkok-state-emergency-201431862033939528.html> accessed 31 March 2015. 181

Amnesty International, Amnesty International Report 2014/15: The State of the World's Human Rights (Amnesty International 2015) 363, 363-64. 182

RTA Announcement No 1/2557 ‘Announcement of the Royal Thai Army On the Enforcement of Martial Law’ (20 May 2014); F Wade, ‘Thai army declares martial law’ The Guardian (Bangkok, 20 May 2014). <www.theguardian.com/world/2014/may/20/thai-army-declares-martial-law> accessed 31 March 2015. 183

Letter by Permanent Mission of Thailand to the Secretary-General of the UN, received by the UN 8 July 2014 (Thai Notification of 8 July 2014) under their obligation of art 4 (3) ICCPR (n 5).

29

tendency to deal with exceptional political situation through coup d’état.184 It comes as no surprise

that two days after invocation of the Martial Law,185 the RTA staged a (bloodless) coup.186

The National Council for Order and Peace (NCPO) was established and took control of Thailand’s

administration.187 General Prayuth Chan-Ocha – both the Commander-in-Chief of the RTA and head

of the NCPO – became Prime Minister.188 The NCPO issued numerous announcements, which altered

Thailand’s constitutional framework. Among others, it abrogated all but one chapter of the 2007

Constitution, including the removal of all human rights provisions,189 replaced it with an Interim

Constitution,190 and it terminated Thailand’s Cabinet and Senate.191 Furthermore, human rights

were either restricted or derogated from. For example, restrictions were imposed on the movement

of persons by imposing a curfew,192 broadcasting or publication of certain content193 and political

assembling was prohibited.194

184 See K Tan, ‘From Myanmar to Manila: a Brief Study of Emergency Powers in Southeast Asia’ in VV Ramraj and

AK Thiruvengadam (eds), Emergency Powers in Asia: Exploring the Limits of Legality (CUP 2009)149, 185, who notes that ‘Thailand deals with exceptional political situation through coup d’état rather than through the invoking of emergency powers’. 185

Thai Martial Law, BE 2457 (1914), unofficial English translation <www.thailawforum.com/laws/Martial%20Law.pdf> accessed 31 March 2015. 186

NPOMC Announcement No 1/2557 ‘On the Control of National Administration‘ (22 May 2014); Note that in NPOMC Announcement No 2/2557 ‘Declaration of Martial Law Nationwide’ (22 May 2014), the military again declared martial law, even though it had already done so two day earlier. See RTA Announcement No 1/2557 (n 2); G Botelho, P Hancocks and K Olarn, ‘Thai military takes over in coup – again’ CNN (22 May 2014) <http://edition.cnn.com/2014/05/22/world/asia/thailand-martial-law> accessed 31 March 2015. 187

The NCPO acted from 22-24 May 2014 under the name NPOMC. The NCPO comprises the Royal Thai Army, the Royal Thai Armed Forces, the Royal Thai Navy, the Royal Thai Air Force and the Royal Thai Police. For its composition and structure, see NPOMC Announcement No 6/2557 ‘Appointment of High-Level Officials to the National Peace and Order Maintaining Council’ (22 May 2014); NPOMC Announcement No 22/2557 ‘Administrative arrangements, determination of duties and responsibilities of the National Peace and Order Maintaining Council’ (23 May 2014); and NCPO Announcement No 34/2557 ‘Amendments to the administrative arrangements of the NCPO’ (24 May 2014). 188

NPOMC Announcement No 10/2557 ‘Head of the National Peace and Order Maintaining Council to assume powers and duties of the Prime Minister’ (22 May 2014). 189

The chapter of the 2007 Constitution (n 176) that remains in force, is chapter 2, which is about the monarchy and the status of the King; NPOMC Announcement No 11/2557 ‘Termination of the Constitution of the Kingdom of Thailand’ (22 May 2014). 190

Constitution of the Kingdom of Thailand (Interim), B.E. 2557 (2014), enacted on 22 July 2014, unofficial English translation by Pakorn Nilprapunt (Office of the Council of State)(Thai Interim Constitution). 191

NPOMC Announcement No 11/2557 (n 189); NPOMC Announcement No 30/2557 ‘Termination of the Senate’ (24 May 2014). 192

NPOMC Announcement No 3/2557 ‘Restrictions on Movement of Persons’ (22 May 2014). 193

NPOMC Announcement No 4/2557 ‘Broadcasts of Radio Broadcasting Stations, TV Broadcasting Services and Community Radio Stations’ (22 May 2014). 194

NPOMC Announcement No 7/2557 ‘Prohibition of Political Assembling’ (22 May 2014).

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4.2. The international legal framework applied

In 2014, Thailand derogated twice from the ICCPR by invoking emergency measures.195 This section

applies the rules of a public emergency to the case of Thailand to determine if Thailand breached its

international obligation and to illustrate the tensions in a practical manner. For reasons of clarity, it

follows the same structure as the chapter that outlines the rules of a public emergency (Chapter 3:

The Substantive Law of ) first it discusses whether Thailand met the prerequisites for derogation,

namely if there was a situation that threatened the life of the nation and whether the public

emergency was officially proclaimed (section ‎4.2.1). Subsequently if focuses on the question

whether the measures it took were in fact permissible (section ‎4.2.2). This chapter concludes with

the determination that not all aspects of Thailand’s invocation of a public emergency to derogate

from human rights were lawful (section ‎4.2.3).

4.2.1. Meeting the requirements for lawful derogation

In 2014, Thailand used different terminology to derogate from human rights. In January 2014

Yingluck noted it had declared a ‘severe emergency situation’.196 The most recent notification of

Thailand by the RTA stated that ‘Martial Law has been invoked throughout the Kingdom of Thailand

on 20 May 2014’.197 The reasons for this difference in terminology is that the power the Thai

government, respectively the Thai Army, exercised to declare these forms of a public emergency,

emanated from different domestic laws. The declaration of a severe emergency situation in January

2014 was done in accordance with the Thai Emergency Decree, while the invocation of martial law

was done in accordance with the Thai Martial Law.198 Even though Thailand in the latter situation

did not use the phrasing of declaring emergency situation, the effects are the same. From the fact

that Thailand notified the UNSG under article 4 (3) ICCPR, it can also be deduced that Thailand’s

aim of the invocation of Martial Law was in fact the same as the declaration of a state of emergency:

namely derogating from human rights. It should thus be tested whether Thailand complied with the

other aspects of article 4 ICCPR.

As to the objective of invoking the public emergency, in January 2014, Thailand invoked the

Emergency Decree ‘in order to quickly resolve and put an end to the situation of turmoil as well as

to restore normalcy in the country’.199 The May 2014 invocation of Martial Law was done ‘to ensure

an effective maintenance of peace and order, solely on the grounds of affording vital national

195 Letter by Permanent Mission of Thailand to the UNSG, received by the UN 28 January 2014 (Thai Notification of

28 January 2014) <https://treaties.un.org/doc/Publication/CN/2014/CN.479.2014-Eng.pdf> accessed 24 April 2015 and Thai Notification of 8 July 2014 (n 183) 196

Thai Notification of 28 January 2014 (n 195). 197

Thai Notification of 8 July 2014 (n 183). 198

Thai Notification of 14 April 2010 (n 196); Thai Notification of 28 January 2014 (n 195); Emergency Decree (n 180) ss 5, 6 and 11; Thai Martial Law (n 185) s 2. 199

Thai Notification of 28 January 2014 (n 195).

31

security protection’.200 As the ‘restoration to a state of normalcy’ should be the objective, the first

mentioned objective certainly meets the objective required by the Committee. The second objective

can be called into question, as the term ‘national security’ is a vague and undefined concept. It is

true that in both cases Thailand derogated from the ICCPR because of reasons of violent protests.201

However, the fact that two days after the imposing of a Martial Law the RTA staged a coup, might be

seen as an indication that its actual objective was taking over the administration. Looking at the

political situation of the last fourteen years, this does not seem inconceivable. Furthermore, the

situation in Thailand is unique in that in May 2014 it was not the administration that resorted to

emergency powers, but the military. The RTA is responsible for Thailand’s sovereignty, so in

principle this could be possible. Protecting their constitutional legal order as a sovereign State is a

legitimate interest, but it cannot misuse its power to fight its political opponents. Unfortunately

whether this was the case can in no way be irrefutably determined: one cannot see into the ‘minds’

of the government.

Regarding the geographical coverage and seriousness of the public emergency the following can be

said. In January 2014 the public emergency was only proclaimed in the greater Bangkok area and

its surrounding provinces, while in May 2014 Martial Law was invoked ‘throughout the Kingdom of

Thailand’. This difference is noteworthy because the civil unrest was of almost equal intensity and

confined to the same area: (violent) protests taking place mostly in the greater Bangkok area with

occasional deaths. Lawful derogation requires that the threat to the nation was extremely serious

and exceptional and that the organized life of the Thai community was significantly disrupted. In

the Greater Bangkok area this was probably the case: continuous violent protest greatly influenced

life in Bangkok and the civil disturbances were in fact severe in that deaths occurred. The situation

in Bangkok may thus have qualified as disrupting the life of the nation. The invocation of martial

law throughout the whole country, was most likely not legal as it was not of enough seriousness to

effect the whole country.

Further, the Thai emergency laws seem to be inadequate in that they do not guarantee full

implementation of article 4 ICCPR. First, the definitions of a ‘state of emergency’ in both the Thai

Emergency Decree and Martial Law are too overly broad and vague.202 They go beyond what the

200 Thai Notification of 8 July 2014 (n 183).

201 In January 2014 Thailand declared a state of emergency ‘to deal effectively with the actions of a group of

persons that caused grave disturbances and led to disorder in certain parts of the country’ (Thai Notification of 28 January 2014 (n 195)); Regarding the May 2014 invocation of martial law, it did not state the reason, but only gave the objective (Thai Notification of 8 July 2014 (n 183). 202

UN Human Rights Committee, Concluding Observations on Thailand (2005) UN Doc CCPR/CO/84/THA (28 July 2005) (Concluding Observations on Thailand 2005) para 13; According to the Emergency Decree (n 180), ss 4-5 and 11 there is a public emergency if a there is a situation that ‘[…] may affect the public order of the people or endangers the security of the State or may cause the country […] to fall into a state of difficulty […], pursuant to which it is necessary to enact emergency measures to preserve’ amongst others ‘the democratic regime of

32

ICCPR allows, which would allow derogation according to Thai law is situations that in fact do not

‘threaten the life of the nation’.203 Martial Law can for example be invoked if there is ‘internal

danger’, but in its Concluding Observations to Bolivia the Committee found a similar wording –

‘internal disturbance’ too wide to fall within the scope of article 4 ICCPR.204 Second, the Emergency

Decree and Martial Law give almost unlimited powers to the Prime Minister respectively

Commander, as they can ‘prohibit any act or any instruction to perform an act to the extent that it is

necessary for maintaining the security of the state’.205 This is inconsistent with the principle of

legality – also embedded in the non-derogable article 15 ICCPR – which requires laws to be clear

and precise. 206 Thailand should thus change its emergency laws in order to meet its ICCPR

obligations.

As to the prerequisite of official proclamation, under the Emergency Decree the Prime Minister is

the competent body to declare a public emergency. The Cabinet has to approve the declaration of a

public emergency, but it cannot impact the actual decision of declaring a state of emergency.207

Under the Martial Law proclamation is done by the King or the Military, with no parliamentary

scrutiny whatsoever.208 While the proclamation of the emergency in both January 2014 and May

2014 was invoked by the competent bodies, the lack of separation of powers is of concern. The

principle of separation of powers is essential in a democracy and emergency powers should not be

concentrated in the hands of one organ, especially not in those of the Prime Minister or King.209

Again Thailand should change its emergency law so that it is in line with the one of the essential

requirements of democracy: the separation of powers.

government’, ‘the interests of the nation’, ‘the protection of rights, liberties and public order or public interest’; Martial law can be declared ‘to preserve good order so as to be free from external or internal danger’. 203

See for the Emergency Decree UN Human Rights Council, ‘Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism’ (24 February 2009) UN Doc A/HRC/10/3/Add.1, paras 283-84. 204

Martial Law (n 185) s 2; UN Human Rights Committee, Second Periodic Report of Bolivia (1996) UN Doc CCPR/C/63/Add 4 (22 November 1996) para 20-21 and UNGA ‘Report of the Human Rights Committee (21 September 1997) 52th Session (2002) UN Doc Supp No 40 (A/52/50), para 204 (Bolivia). 205

Emergency Decree (n 180) s 11 (6) in case of a ‘serious state of emergency’; see similarly Thai Martial Law (n 185) s 11 (8). 206

Joseph and Castan (n 22) 919; eg the Committee noted it was ‘concerned by the lack of clarity in the law governing the conditions in which the state of emergency can be implemented’ in UN Human Rights Committee, Concluding Observations on Azerbaijan (1994) UN Doc CCPR/C/79/Add.38 (13 August 1994), para 7; see also Siracusa Principles (n 61) para 43. 207

Emergency Decree (n 180) ss 4-5 and 11; See more on accountability to parliament, International Commission of Jurists, More Power, Less Accountability: Thailand’s New Emergency Decree (ICJ 2005) 4-5. 208

2007 Constitution (n 176) s 188 and Martial Law (n 185) ss 2 and 4; Emergency Decree (n 180) ss 5, 6 and 11. 209

See eg UN Human Rights Committee (2 April 1981) UN Doc CCPR/C/SR.265 para 35 (Barbados); see UN Doc CCPR/C/SR.327 (Morocco)(n 98) para 40.

33

In so far the application of the rules on the resent political crisis of Thailand shows that January

2014 invocation of a public emergency with limited coverage may have been legal, but that the May

2014 invocation of martial law should have had a more limited in geographical coverage and

contained itself to the Greater Bangkok area. The fact that the latter invocation was possibly done

with another objective than to restore the State to normalcy unfortunately does not help in

determining the legality of the derogation. In any case, Thailand should change its emergency laws

in order to give full effect to the ICCPR.

4.2.2. Taking permissible derogation measures

With its declaration of a public emergency in January 2014 Thailand derogated specifically from the

right to freedom of movement (article 12 (1)) by imposing a curfew, from the freedom of

expression (article 19) by prohibiting certain broadcasts and publications and from the right of

peaceful assembly (article 21) by limiting political gatherings.210 In May 2014, it took the same

measures plus it derogated from the right of appeal (article 14 (5)), where jurisdiction was

conferred to the Martial Court.211

In Thailand, mass demonstrations took place with instances of violence. Limiting right to freedom of

expression, freedom of movement and right of peaceful of assembly those rights because of reasons

of ‘national security’ and ‘public order’ would have generally been sufficient and no derogation

would be ‘required by the exigencies of the situation’.212 As to the right of freedom of peaceful

assembly Thailand it is further noteworthy that Thailand is not a party to the ILO Convention of the

Freedom of Association,213 so derogation from article 21 ICCPR will probably not be allowed, but

not on the ground that it is ‘inconsistent with [its] other international law obligations’.

In May 2014 Thailand also derogated from the right of appeal (article 14 (5) ICCPR).214 This Thai

derogation illustrates a vast problem with the establishments and utilization of military courts.

After invoking martial law in May 2014, the NCPO empowered military courts to conduct trials and

to adjudicate criminal cases, regarding i) offences under the Thai Penal Code215 ii) offences under

the NCPO Announcements,, iii) cases with multiple charges of which some of the charges otherwise

would fall outside of the jurisdiction of the military court and iv) cases relating to weapons.216

210 Thai Notification of 28 January 2014 (n 195).

211 Thai Notification of 8 July 2014 (n 183).

212 ICCPR (n 5) arts 19 (b), 12 (2) and 21; GenCom 29 (n 27) para 5; see also S Joseph and M Castan, The

International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, OUP 2013) paras 1.82-1.86. 213

Freedom of Association and Protection of the Right to Organise Convention (n 127). 214

Thai Notification of 8 July 2014 (n 183). 215

Thai Penal Code BE 2499 (1956) ss 107-12, consisting of offences against the monarchy, and ss 113-118 offences against the internal security of the Kingdom. 216

Thai Martial Law (n 185) s 7; NCPO Announcement’s: No 37/2557 ‘Offences under Jurisdiction of the Military Court’ (25 May 2014), No 38/2557 ‘Cases comprising various related acts to come under jurisdiction of the Military Court’ (25 May 2014), No 43/2557 ‘Offences under the jurisdiction of the Military Court’ (27 May 2014), No

34

Civilians can be tried before those courts, and no right of appeal exists, not even to another higher

military court. 217 In the cases where Thai military courts have jurisdiction over civilians, the

possible sentences are overall very high. The penalties for most of the crimes against the King and

some against the internal security can even be death or life imprisonment.218 They would thus be

serious enough to in principle require the possibility of appeal. 219

The Thai military courts are authorized to impose death penalties and no right of appeal exists if

such a penalty is imposed. The right to life (article 6) is however non-derogable and must be

secured by procedural guarantees, such as the right to a fair trial. If the Thai military courts would

thus impose a death penalty during a state of emergency, they should conform to all the rights of a

fair trial, including the right of appeal.220 Thailand would be in clear violation of the ICCPR if it did

not offer such rights. For as far as known the military courts have not imposed a death penalty

relating to the state of emergency. The law itself, however, should in any case be amended as

Thailand should ensure that all requirements of article 4 are complied with, both in its practice and

in its law.

With regard to the other penalties the Thai military courts can impose without the right to appeal,

unfortunately it cannot be irrefutable put that this this is in violation of the ICCPR. I do find the

Siracusa Principles most logical when stating that the persons charged with a criminal offense are

always allowed the right to a the right of appeal.221 The same goes for Amnesty International’s

statements which specifically relate to the Thai situation: derogation is unacceptable, because it

defeats the object and purpose of the ICCPR.222 If convictions cannot be reviewed, the effective

protection of human rights cannot be guaranteed. It also adds that the Thai legal system is perfectly

capable of hearing appeals without it interfering with Thailand’s objective of ensuring ‘an effective

maintenance of peace and order, solely on the grounds of affording vital national security

44/2557 ‘Prisons under the Department of Corrections, Ministry of Justice, are to enforce writs of the Military Court’ (27 May 2014) and No 50/2557 (30 May 2014). 217

Thai Martial Law (n 185) s 7; The Act on the Organization of the Military Court BE 2498 (1955) (Military Court Act) ss 13, 16, 36, 61. Usually only soldiers can be convicted before a military court, but when the Martial Law is imposed, civilians can also be placed within the jurisdiction of the military court. During this ‘extraordinary period’ there is no right of appeal against their judgements. 218

eg Thai Penal Code (n 215) ss 107-111, 113; Ironically, s 113 makes acts of violence to overthrow or change the Constitution and to overthrow the legislative, executive or judicial power punishable with death or life imprisonment. 219

Salgar De Montejo v Colombia, Communication No R.15/64 (18 December 1979) UN Doc A/37/40 (1981) 168, 179, para 10.4. 220

ICCPR (n 5) arts 6 and 14 221

Siracusa Principles (n 61) para 70 (g) (last hyphen). 222

Amnesty International, ‘Thailand: Attitude Adjustment – 100 days under martial law’ (September 2014) <www.amnesty.nl/sites/default/files/public/amnesty_report_thailand_september_2014.pdf> accessed 23 April 2015, 48; UN Human Rights Council, 28th Session 27 February 2015 ‘Written statement submitted by Amnesty International. Thailand: Post-coup violations continue: is a “temporary situation” becoming chronic?’ (16 February 2015) UN Doc A/HRC/28/NGO/162, 2.

35

protection’.223 Basically, it argues that derogating from the right of appeal is not ‘strictly required by

the exigencies of the situation’. Also, if the Thai military courts try civilians, the requirements of due

process – required for the rule of law and democracy – need to be observed.224 All the

aforementioned makes me argue more in favor of the right of appeal not being derogable and

concluding that Thailand in this aspect has violated article 4 and article 14 (5) ICCPR.

The last problematic aspect of the Thai military courts relates to the separation of powers. After the

May 2014 coup d’état, the NCPO became the new interim government. It empowered military

courts to conduct trials. The NCPO itself however also consist of the military. Democracy and the

rule of law demand separation of powers with a system of checks and balances in order to prevent

one branch over government becoming supreme. With the 2014 coup d’état the military however

seems to have penetrated all branches of government in one way or another. Not only is this in

clear contrast with the principle of the separation of powers, it also causes problems as to the rule

of law, both principles which underlies the core value of the UN, namely democracy.

Another problem arises with the lack of effective remedies (article 2 (3) ICCPR) that are available

for victims of human rights violations in Thailand. With the invocation of Martial Law in May 2014,

a so called ‘culture of impunity’ was created in Thailand for state officials who violate human rights:

victims are unable to claim any form of compensation from the military authority as it enjoys both

civil and criminal immunity.225 As the Committee has noted that article 2 (3) ICCPR is a procedural

guarantee which is necessary to protect the non-derogable rights of article 4 (2) ICCPR, Thailand is

in violation of the ICCPR and at the same time should alter its legal framework, allowing remedies

for victims during emergency situations.226

The duration for which Thailand derogates from the ICCPR also presents a problem. Only on 1 April

2015, after more than 10 months, the now Prime Minister Prayuth lifted martial law.227 At that

point, Thailand has still not made a notification to the UNSG that it terminates the state of

emergency. Critics have argued that the lifting of martial law in Thailand in fact does not make a

difference to the measures that Thailand is imposing: Prime Minister Prayuth now utilizes section

223 Amnesty International, ‘Thailand: Attitude Adjustment’ (n 222) 48; Thai Notification of 8 July 2014 (n 183).

224 UN Doc CCPR/C/SR.128 (Chile) (n 99) para 70.

225 Amnesty International, ‘Thailand: Attitude Adjustment’ (n 222) 10. Martial Law (n 185) s 16; The Interim

Constitution provides a blanket amnesty for all NCPO members, its agents and any person relating to them that were involved in the 2014 coup: they are exempted from all liabilities (Thai Interim Constitution (n 190) s 48) 226

; ICCPR (n 5) art 2 (3)(a); GenCom 29 (n 27) para 14; GenCom 31 (n 153) para 15. 227

Martial Law was lifted after Prime-Minister Prayuth requested the King to lift Martial Law. According to Martial Law (n 185) s 5, the repeal of the Martial Law shall be made by the King; ‘Thai military government replaces martial law’ BBC <www.bbc.com/news/world-asia-32152893> accessed 25 April 2015; already before Thailand lifted Martial Law, the UN Human Rights Council and Amnesty had already noted its concern that the measures that were still in place were not, or at any rate no longer, required by the exigencies of the situation. UN Human Rights Council, ‘Written statement submitted by Amnesty International’ (n 222) 2.

36

44 of the Interim Constitution to order those same intrusive measures.228 According to section 44,

the head of the NCPO can has the power to make any orders, ‘regardless of the legislative, executive

or judicial force’, whenever he finds it necessary– among others – for the benefit of reform, to

strengthen public unity and harmony, or ‘for the prevention, disruption or suppression of any act

which undermines public peace and order or national security’.229 As the Committee is not

concerned with the terminology used but with the legal effects, it is not per definition wrong to

assume that the government – the military junta – is still imposing a public emergency to

derogating from human rights. In any case, imposing a public emergency for over 10 months is

already questionable and since ‘normal life’ had resumed the measures were no longer required by

the exigencies of the situation. It seems the military is misusing their powers to suppress peaceful

dissent, something that is in inconsistent with the core principle of democracy.

Furthermore, the measures the military, as interim government of Thailand, takes, should not

involve discrimination on the grounds listed in article 4 (2) ICCPR. The lèse-majesté230 cases in the

state of emergency in Thailand bring an interesting aspect to light regarding discriminatory

derogations in states of emergency. Since the NCPO took control of the country, a substantial

number of people have been charged with lèse-majesté offenses and have been detained awaiting

trial.231 According to article 9 (3) ICCPR, ‘it shall not be a general rule that persons awaiting trial

shall be detained in custody’. Pre-trial detention is thus an exception.232 Article 9 (3) also implicitly

states that pre-trial detainees are entitled to release from this detention in exchange for bail.233 In

Thailand, so many lèse-majesté detainees have been denied bail, that a practice of denying bail has

been established.234 This practice has been discriminatorily applied, currently against the red-

shirts.235 To the extent that the denial of bail can be seen as derogation from article 9 (3),236 the

derogation involves discrimination on the ground of ‘political opinion’, a ground not enumerated in

228 Associated Press, ‘Thailand 'still in the same boat' after martial law lifted’ The Guardian

<www.theguardian.com/world/2015/apr/01/thailand-lifts-martial-law-coup> accessed 26 April 2015; Thai Interim Constitution (n 190) s 44. 229

Thai Interim Constitution (n 190) s 44. 230

Under s 112 of the Thai Penal Code (n 215), person who defame, insult or threaten the King, the Heir-apparent or the Regent are punishable with imprisonment of three to fifteen years. 231

Amnesty International, ‘Thailand: Attitude Adjustment (n 222). 232

Nowak (n 6) 233, para 45. Reasons for pre-trial detention should be limited to essential reasons; See also WBE v The Netherlands, Communication No 432/1990 (1990) UN Doc CCPR/C/46/D/432/1990 para 6.3 (where the Committee noted that ensuring the presence of an accused at trial is such an essential reason). 233

ICCPR (n 5) art 9 (3); Nowak (n 6) 234, para 47. 234

Amnesty International, ‘Thailand: Attitude Adjustment’ (n 222) 37. 235

Amnesty International, ‘Thailand: Attitude Adjustment’ (n 222) 37. Depending on who was the governing party and who the opposition party at the time of the lese majesty cases, since the 2006 coup, alternately only red-shirts or yellow-shirts have been denied bail. 236

In practice State Parties enjoy broad discretion and the Committee only found the right to be released on bail violated in exceptional cases. Nowak (n 6) 234, para 48. Accordingly it is not likely that there is in fact a violation or derogation of article 9 (3) ICCPR (n 5).

37

article 4 (2) ICCPR. This seems to lead to the conclusion that by discriminating on these grounds

Thailand is not in violation of article 4. However, democracy requires a pluralistic system of

political parties.237 In my opinion discriminating and oppressing political opposition could defeat

the core principles of democracy of the UN and the discriminatory measures applied are not lawful.

4.2.3. The failure of Thailand to a adhere to its ICCPR responsibilities

As a State Party to the ICCPR, Thailand should make sure that it complies with all the requirements

of article 4 and the ICCPR as a whole, both in its law and in its practice. Reviewing the civil

disturbances and invocation of a public emergency in Thailand and testing it to the international

legal framework of states of emergency however has led to the conclusion that Thailand did not

adhere to its ICCPR responsibilities.

While invoking a public emergency in the Greater Bangkok area may have been justified, the

severity of the conflict did not extent to the whole country and invoking martial law throughout the

whole of Thailand was thus not legal. As to the measures it took, limiting the right to freedom of

movement, freedom of expression and the right of peaceful assembly would have most likely been

sufficient to restore the public order and therefore derogation was not required by the exigencies of

the situation. As to the right of appeal, it is not perfectly clear whether derogation is allowed or not,

but it seems most likely that it is non-derogable as derogation would defeat the object and purpose

of the ICCPR. The continuous use of measures that restrict human rights – even though the

government officially lifted martial law – in any case is also was not necessary. The fact that

Thailand does not offer remedies to victims of human rights violations under a public emergency is

in violation of the fundamental right to an effective remedy.

As to its law, the Thai emergency laws do not abide by the limits imposed via the ICCPR. They use

overly broad and vague terms which conflicts with the principle of legality. Additionally there is no

separation of power and a system of checks and balances is lacking. Proclaiming a public

emergency should be made subject to some sort of parliamentary review. Thailand should alter its

legal emergency framework to comply with the ICCPR and the essential requirements of

democracy.

It is noteworthy that on an international level the acts of the Thai government seem strange at best,

continuously acting in the grey area when it comes to public emergencies or even bluntly in black.

On a national level, however, Thailand does act within its legal framework. Perhaps because it has

altered its laws – even its constitutions – on a continuous basis more than once without any proper

legal basis? As a sovereign State though, the international community can only interfere up to a

certain extent. Further discussing the Thai legal framework would be outside of the scope of this

thesis.

237 UNHRC Res 19/36 (19 April 2012) UN Doc A/HRC/RES/19/36 (n 24) para 1.

38

Chapter 5: Conclusion

The aim of this thesis was to provide an overview of contemporary public emergencies in the

context of article 4 ICCPR as well as the underlying tensions. More specifically, it sought to answer

the following research question, by taking into account democracy as a universal core value, and

the inherent principle of the rule of law and legality:

What are the limits – under the law of international human rights – of legally invoking a

public emergency in the sense of article 4 ICCPR in the case of civil disturbances?

Even though civil disturbances and situations of political unrest are by far the most prevalent

justifications for declaring a state of emergency, to this day, the rules on this matter remain fairly

unclear. The Human Rights Committee has tried to clarify article 4 and its application in its

jurisprudence, but unfortunately, it was unable to develop clear and concrete reference points as to

civil disturbance issues. It remains overall fairly vague by mostly stating ‘concern’ on specific issues

and tensions.

That being said, there are some leads as to when civil disturbances constitute a public emergency,

which justifies derogation of ICCPR provisions. In any case, the threshold is relatively high and non-

violent protests are unlikely to meet the requirement of threatening the life of a nation. A low-level

disturbance in any case does not meet this requirement. Even if violence were used during

demonstrations, usually limitation of ICCPR rights would be sufficient to bring an end to the

violence, so no derogation would be justified by the exigencies of the situations. Overall, the general

rule is: the more violence is involved in the civil disturbances, the better chance the invocation of a

state of emergency will be legal. The practice of invoking a state of emergency in civil disturbance

situations therefore is remarkable: most states that resort to a public emergency are faced with civil

disturbances with a level of violence that would probably be too low to justify derogation.

If a state of emergency does exist, some other issues, characteristic for civil disturbances in

contemporary democracies are relevant. Often the power to proclaim a public emergency falls in

the hands of one executive organ. As democracy requires the separation of powers and exercise in

accordance with the rule of law, parliamentary or legislative control in order to prevent abuse of

power by said power would be preferred. Furthermore, States have had a tendency to continue a

state of emergency for substantial long periods of time. When declared, the states of emergencies

should only last for as long as necessary in order to restore a state of normalcy. Regarding

discrimination, discrimination on the basis of political opinion takes almost per definition place in

situations of civil political unrest but is not listed as a ground on which no discriminatory measures

are allowed. In my view however discriminating against political opponents would defeat the core

principles of democracy of the UN and therefore cannot be lawful.

39

To determine the limits, the vast tension that arises in the field of emergency powers has entered

into the equation. In practice a lot of civil disturbance situations occur because the people are not

contempt with the ruling government and do not share its political views. In principle the

government – as a representative of the sovereign State – has the legitimate right to defend the

State’s national constitutional order via the exercise of emergency powers if it is threatened.

However, emergency powers are there to protect the life of the nation, and thus the interests of the

people. If that government during the normal state of affairs is not giving full effect to the rights

enshrined in the ICCPR and people revolt against such oppression, the government cannot legally

use a state of emergency to further restrict human rights. After all, in such a case, the life of the

nation is not threatened, rather the government is simply (mis)using the state of emergency to

maintain its own position of power. A clear limit of invoking a public emergency to derogate from

human rights is thus that it cannot be used to oppress people’s right to effective enjoyment of

human rights, protection of which is the object and purpose of the ICCPR and a requirement for

democracy and the rule of law.

Regarding the specific measures, there also seems to be a contradiction. While most States that

derogate from the ICCPR derogate from – among others – the right of freedom of movement and

freedom of assembly, it is exactly these rights which no longer require/provide for derogation

according to the Committee. about which the Committee stated that they already can be limited in

such a way that derogation is no longer necessary. This means that States that restrict those rights,

still have to still have to adhere to the requirment that the limitation is prescribed by national law,

is proportional and protects a countervailling community benefit, even if there is a public

emergency.

The possibility to derogate from the freedom of assembly is further greatly restricted for State

Parties to the ILO Convention on Freedom of Association, since a State derogating from said

Convention would breach one of its other obligations under international law. Other relevant rights

from which no derogation is allowed, is that of the freedom of opinion and to an effective remedy.

When states of emergencies are declared in some contemporary democracies, the legal framework

is altered in such a way that the States evade their responsibility of providing victims of human

rights violations with remedies. Even if human rights are violated in a public emergency, victims are

still entitled to compensation. Lastly, certain aspects of the rights to a fair trial – such as the

presumption of innocence – are also non-derogable. The right to appeal is a bit more complicated,

but I argue that derogating from the right to appeal can never be ‘strictly required by the exigencies

of the situation’ as it is a fundamental aspect of the right to a fair trial.

This thesis has shown that the limits of legally invoking a public emergency in the case of civil

disturbances are difficult to define. A situation of civil disturbance must meet strict conditions in

order for it to qualify as a state of emergency, but there is a lot of uncertainty and ambiguity

between State practice and the Human Rights Committee’s view of the ICCPR articles. In any case

40

the limits lie in the interdependent principles of democracy, the rule of law, legality and the

separation of powers. The chances of a situation of civil unrest to actually meet the conditions of the

Committee are probably very slim. Still, States continue to invoke civil unrest as a reason for

derogating from ICCPR provisions. The authoritative value and the moral obligation of States to

follow the Committee’s interpretations apparently are not enough to create compliance and

perhaps a more imperative role would be more appropriate for the Committee. Furthermore, a

practice of ‘naming and shaming’ could help in the compliance with article 4 ICCPR. It remains to be

seen however, how far this would actually deter States from misusing the concept of a public

emergency to derogate from human rights to remain in a position of power.

41

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