Derogation from Human Rights Treaties in Situations of Natural or Man-Made Disasters
Certain natural or technological disasters may have exceptionally severe consequences that call for the adoption of extraordinary measures. Some of these may restrict individual rights and freedoms to an extent which is not compatible with the affected St
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Derogation from Human Rights Treaties in Situations of Natural or Man-Made Disasters Emanuele Sommario
Abstract Certain natural or technological disasters may have exceptionally severe consequences that call for the adoption of extraordinary measures. Some of these may restrict individual rights and freedoms to an extent which is not compatible with the affected State’s international obligations under human rights law. Yet, the existence of a public emergency of significant magnitude may temporarily exonerate States from the duty to fully respect their human rights commitments, either through the operation of specific clauses that are included in the relevant treaties (so-called ‘‘derogation clauses’’), or—where no such provision is present—by invoking certain justifications recognized in international law as valid excuses for the non-performance of legal obligations. This chapter intends to look at the practice of States and treaty monitoring bodies in order to ascertain what substantial and procedural requirements States must fulfill if they deem it necessary to suspend individual rights while coping with a public emergency prompted by a natural or man-made disaster. The purpose is to ascertain what features a disaster must present in order to trigger the right to derogate, to what extent human rights may be suspended, what formal steps must be undertaken by authorities which choose to derogate from human rights treaties, and which are the legal parameters under general international law with regard to the suspension of treaties which do not explicitly provide for a right to derogate.
Keywords International disaster response law Human rights Non-derogable rights State of emergency State responsibility
Derogation
E. Sommario (&) Scuola Superiore Sant’Anna, Piazza Martiri della Libertà 33, 56127 Pisa, Italy e-mail: [email protected]
A. de Guttry et al. (eds.), International Disaster Response Law, DOI: 10.1007/978-90-6704-882-8_14, T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author(s) 2012
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E. Sommario
Contents 14.1 14.2 14.3 14.4
Introduction................................................................................................................... Human Rights in Disaster Situations: Ordinary Limitations or Derogation? ............ The Use of Derogation Clauses in Response to Disasters ......................................... Conditions for the Exercise of the Right to Derogate ................................................ 14.4.1 The Principle of Exceptional Threat.............................................................. 14.4.2 The Need for an ‘‘Official Proclamation’’..................................................... 14.4.3 The Condition that Derogation Measures be ‘‘Strictly Required by the Exigencies of the Situations’’ ............................................................. 14.4.4 The Prohibition on Discriminatory Measures................................................ 14.4.5 The Requirement that Derogation Measures be in Conformity with
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