Published in July 2018.

 

 
  This module is a resource for lecturers  

 

Key issues

 

The international framework governing counter-terrorism responses recognizes the importance and associated challenges for all States in ensuring national security, including against asymmetric terrorist activities, and the difficult choices that may need to be made. Consequently, it has inbuilt mechanisms for accommodating exceptional responses by States, including declarations of emergency, and the temporary suspension - known as derogation - of some (but not all) human rights protections. An underlying principle, however, is that any state of emergency should be within the law and not exceptional to the law.

Situations of armed conflict, governed by international humanitarian law (see Module 6), already represent exceptional contexts in which reduced human rights protection is permissible. Though not examined in any detail in this Module, throughout this E4J University Module Series many examples are given of when and how human rights protections differ in times of armed conflict compared with peacetime contexts.

Whenever emergency powers are invoked, and derogations are made, there is always the risk that what should be exceptional measures become more permanent and erode the rule of law in the process. Indeed, during its significant study in 2009, Assessing Damage: Urging Action, the International Commission of Jurists coined the phrase "the normalization" of exceptional responses to describe this risk. There is also the accompanying potential for the abuse of power resulting in human rights violations for which it may be more difficult to secure redress. Therefore, international, regional and many national legal frameworks (e.g., national constitutions) have inbuilt safeguards to limit the circumstances in which human rights protection may be reduced, including through the declaration of a state of emergency and any resultant derogations.

This Module introduces and explains international and regional legal frameworks governing states of emergency and any resultant derogation from human rights. It further sets up key themes of tension between security imperatives and the rule of law which can result in the erosion of the latter. This can range from denial of the right to life or commission of torture or other forms of ill-treatment (despite their non-derogable status), discriminatory measures, unlawful detention, dilution of due process in relation to the right to a fair trial, or restrictions on the fundamental democratic freedoms of religion, expression, assembly or association. Examples of counter-terrorism related excesses and abuses, including in the context of emergency powers, are explored in subsequent, topic specific, Modules.

The sub-pages to this section provide a descriptive overview of the key issues that lecturers might want to cover with their students when teaching on this topic.

 
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