State of exception

Categories: International law of the human rights Public international law Constitutional law Compared right

" The conditions and the criteria which determine the legality of the state of exception and make that the correct application of this mode can be compatible with the respect of the human rights and a democratic form of government . " were defined in the study (E/CN.4/Sub.2/1982/15) presented by Mrs. Nicole Questiaux (France), Special protractor on this question, Independent expert and member of the Sous-Commission of the promotion and the protection of the human rights of UNO with its 35ème session in 1982. They were supplemented by the final Study written by Mr. Leandro Despouy (Argentinian), Special protractor on this question, Independent expert member of the Sub-commission, in his 10th annual report with the Sub-commission with its 49ème session in Geneva (document of UNO E/CN.4/Sub.2/1997/19, of June 23rd, 1997; to reach this document, to see http://documents.un.org; for reference, to see: Office of the High Commission of the United Nations to the human rights, http://www.ohchr.org/english; like: UNO: http://www.un.org/).

Work of the CID

According to work of two meetings of international experts organized by the Association of international consultants in human rights (CID; Geneva), " The state of exception is a reality of the political life and legal nations. Almost all the States have a relevant legislation in this respect and international conventions on the human rights contain provisions in the matière."

The experts who contributed to this work are: Philip Alston, Federico Andreu, Alejandro Artucio, Bassiouni Sherif, Laurence Drink of Chazourne, Volodymyr Boutkevitch, Antonio Augusto Cançado Trindade, Alfred de Zayas, Matar Diop, Peter Duffy, Osman El-Hajjé, Ibrahima Fall, Hans Peter Gasser, Victor-Yves Ghebali, Patrice Gillibert, Julia Iliopoulos Strangas, Louis Joinet, Umesh V. Kadam, Viviana Krsticevic, Guennadi Lebakine, Marie-Francoise Lucker-Babel, Patrice Meyer-Bisch, Daniel O'Donnell, Isabelle Oseredczuk, John Packer, Denise Plattner, François Rigaux, Ingeborg Schwarz, Isabelle Scherrer, Wolfgang Strasser, Christian Tomuschat, Liliana Valiña, Michel Veuthey

When to resort to the state of exception?

" In many countries, to face the exceptional situations, the Governments have recourse to the state of exception and suspend the application of laws which protect the libertés" (cf: Foreword, " Intangible rights and states of exception/Non-Derogable Rights and States off Emergency" , collection International organization and international relations, directed by Victor-Yves Ghebali, general Writer Daniel Prémont, Edition Christian Stenersen, Co-ordinating Isabelle Oseredczuk, with the assistance of Liliana Valiña, Brussels, Establishment Emile Bruylant, 1996,644p.)

Principles of the state of exception

For the provisions adopted by States which extended a state of exception proclaimed before June 2003 (Algeria, Egypt, Israel, Syrian Arab Republic) and by States which proclaimed a state of exception between June 2003 and May 2005 (Iraq, Jamaica, Nepal, Peru, the United Kingdom of Great Britain and Northern Ireland) to see: E/CN.4/Sub.2/2005/6 document, " List States which proclaimed or extended a State of exception" , Report/ratio of the High commissionership to the human rights subjected pursuant to decision 1998/108 of the Commission of the human rights, not of about a day of the Sub-commission entitled “Administration of justice, rule of law, and democracy”, heading “Question of the human rights and the States of exception”.

The studies of Mrs. Questiaux and Mr. Despouy made it possible to release from the Principes which govern the states of exception:

• Principle of legality
• Principle of proclamation
• Principle of notification
• Principle of temporality
• Principle of exceptional threat
• Principle of proportionality
• Principle of non-discrimination
• Principle of compatibility, agreement and complementarity of the various legal provisions international

(cf: E/CN.4/Sub.2/1997/19)

By its resolution 1997/27 on the “Question of the human rights and the states of exception”, the Sub-commission thanked the Special protractor for his final report on protection for the human rights during the states for exception (E/CN.4/Sub.2/1997/19) and requested the General secretary to publish it in all the official languages. These Principles, which were not formally adopted yet by UNO, are used as reference for the doctrines and are used in practice States.

The two studies of the Special protractors, in 1982 and 1997, as well as work and publications of the two meetings of experts brought together by the CID on the recommendation of Mr. Leandro Despouy, made it possible to identify and specify which are the intangible rights, under which conditions it is possible or not to derogate from it, as well as the principal anomalies or deviations in the application of the state of exception (state of exception in fact; state of exception not notified; permanent state of exception; state of exception institutionalized; rupture of the institutional order) (cf: E/CN.4/Sub.2/1997/19)

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