Office for Democratic Institutions and Human Rights

A country may declare a state of emergency in cases of disturbances and demonstrations, including violent ones, or natural catastrophes. A state of emergency may also be declared during internal or international armed conflict. Not every disturbance or catastrophe, however, qualifies as a public emergency that threatens the life of the nation.

When a state of emergency is declared, international and regional human-rights documents allow countries to unilaterally derogate from some of their obligations on a temporary basis, subject to a specific regime of safeguards.

Measures derogating from the provisions of key international human-rights documents must be of an exceptional and temporary nature and are subject to two fundamental conditions: the situation must amount to a public emergency that threatens the life of the nation, and the state party must have officially proclaimed a state of emergency.

International standards provide that a fundamental requirement for such measures is that they be limited to the extent strictly required by the exigencies of the situation and that states must provide well-considered justification, not only of their decision to proclaim a state of emergency but also of any specific measures based on such a proclamation.

Certain rights have been identified as non-derogable under any circumstances, including the right to life; the prohibition of torture; the principle of legality in the field of criminal law; and the freedom of thought, conscience, and religion; among others.

In accordance with the 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, OSCE participating States reaffirmed that any derogations from obligations relating to human rights and fundamental freedoms during a state of public emergency must remain strictly within the limits provided for by international law, in particular the relevant international instruments by which they are bound, especially with respect to rights from which there can be no derogation (Copenhagen Document, Paragraph 25).

Further considerations for the conditions for the justifiability of any derogation include that measures not involve discrimination solely on the grounds of race, colour, sex, language, religion, social origin, or of belonging to a minority (Copenhagen Document, Paragraph 25.4).

In addition, in its authoritative comment on Article 4 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee has recognized that, in those provisions of the Covenant that are not listed in Article 4(2), there are elements that cannot be made subject to lawful derogation, for example, the treatment of all persons deprived of their liberty with humanity and with respect for the inherent dignity of the human person; prohibitions against taking hostages, abductions, or unacknowledged detention; the international protection of the rights of persons belonging to minorities; the prohibition of propaganda for war or in advocacy of national, racial, or religious hatred that would constitute incitement to discrimination, hostility, or violence; and procedural guarantees and safeguards related to, for example, fair trials.

The ODIHR: A clearing house for states of emergency

OSCE participating States have committed themselves to inform the OSCE Secretariat of a decision to declare or lift a state of emergency (1991 Moscow Meeting of the Conference on the Human Dimension, Paragraph 28.10). With respect to this, the 1992 Concluding Document of Helsinki assigns an important task to the ODIHR to act as a clearing house regarding information on states of emergency (Helsinki Document, Paragraph 5b).

This commitment also requires a participating State to inform of the OSCE of any derogation made from international human rights obligations. This clearing-house function enhances the framework of co-operation between states and provides the ODIHR with an excellent opportunity to "strengthen and monitor compliance with CSCE commitments", as well as to "promote progress in the Human Dimension" developments within the context of a national emergency.

In addition to recognizing that a state of emergency is only justified in the most grave and exceptional circumstances, consistent with the state's international obligations and OSCE commitments, a state of public emergency may not be used to subvert the democratic constitutional order nor may it be aimed at the destruction of internationally recognized human rights and fundamental freedoms (Moscow Document, Paragraph 28.1).

Furthermore, the participating State concerned will make available to its citizens without delay information about the measures that have been taken (Moscow Document, Paragraph 28.3) and will endeavour to ensure that the normal functioning of legislative bodies will be guaranteed to the highest possible extent during a state of public emergency (Moscow Document, Paragraph 28.5).