State of Emergency and Armenian international obligations.

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State of Emergency and Armenian international obligations

Apart from the Constitution of the Republic Armenia regulating issues of state of emergency, Armenia is a party to the European Convention of Human Rights and the International Covenant of Civil and Political (ICCPR) rights. Those legal instruments, inter alia, enshrine provisions applicable to the issues of Human Rights protection during the public emergency.

The Article 15 of the ECHR provides:

1. In time of war or other public emergency threatening the life of the nation any High Contracting party may take measures derogating from its obligations under the Convention to the extent strictly required by the exigencies of the situation provided that such measures are not inconsistent with its other obligations under the international law.
2. No derogations from Article 2 (right to life), except in respect of deaths resulting from lawful acts of war, or from 3 (prohibition of torture), 4 (paragraph 1) (slavery or servitude) and 7 (punishment without law) shall be made under this provisions.
3. Any High Contracting Party availing itself of this right of derogations shall keep Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons thereof. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

So one may conclude from the relevant legal text that there are substantive and procedural requirements for a State for declaring state of emergency under European System:

1. There must be public emergency threatening life of the nations;
2. The measures taken in response to it must be strictly required by the exigencies of the situation;
3. The measures taken must be in compliance with the State’s other obligations

As far as the procedural requirements are concerned, the Contracting state there should be some formal or public act of derogation and the notice of the derogation, measures adopted in consequence of it, and of the ending of the derogation, is communicated to the Secretary General of the Council of Europe.

Turning to the obligations under international plane, one should refer to the ICCPR Convention under the auspices of the United Nations. Armenia is a contracting party to this international covenant.

The Article 4 of the ICCPR sets down:

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, color, sex, language, religion or social origin.
2. No derogation from articles 6 (right to life), 7 (torture or cruel, inhuman or degrading treatment or punishment), 8 (paragraphs 1 and 2) (slavery or servitude), 11 (imprisonment on the ground of inability to fulfill a contractual obligation), 15 (unfair criminal charges and sentencing), 16 (arbitrary or unlawful interference with privacy) and 18 (freedom of thought, conscience and religion) 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.

One may conclude, that the Article 4 of the Convention allows states to derogate from their normal human rights obligation in time of genuine public emergency, although it also seeks to ensure that the most basic rights remain respected by listing certain core rights from which no derogation is permitted, even in time of emergency.

When interpreting the Article 4 of the ICCPR one should refer to the General Comment 5 of the Human Rights Committee of the UN.

Human Rights Committee, General Comment 5, Article 4 (Thirteenth session, 1981). Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 5 (1994).

1. Article 4 of the Covenant has posed a number of problems for the Committee when considering reports from some States parties. When a public emergency which threatens the life of a nation arises and it is officially proclaimed, a State party may derogate from a number of rights to the extent strictly required by the situation. The State party, however, may not derogate from certain specific rights and may not take discriminatory measures on a number of grounds. The State party is also under an obligation to inform the other States parties immediately, through the Secretary-General, of the derogations it has made including the reasons thereof and the date on which the derogations are terminated.

2. States parties have generally indicated the mechanism provided in their legal systems for the declaration of a state of emergency and the applicable provisions of the law governing derogations. However, in the case of a few States which had apparently derogated from Covenant rights, it was unclear not only whether a state of emergency had been officially declared but also whether rights from which the Covenant allows no derogation had in fact not been derogated from and further whether the other States parties had been informed of the derogations and of the reasons for the derogations.

3. The Committee holds the view that measures taken under article 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that, in times of emergency, the protection of human rights becomes all the more important, particularly those rights from which no derogations can be made. The Committee also considers that it is equally important for States parties, in times of public emergency, to inform the other States parties of the nature and extent of the derogations they have made and of the reasons thereof and, further, to fulfill their reporting obligations under article 40 of the Covenant by indicating the nature and extent of each right derogated from together with the relevant documentation.