국가의 긴급한 상황하에서의 인권보호의무의 일탈(Derogation)

Abstract

In case of State’s emergency situation, the State may, first of all, seek ‘limitations’ of rights according to the permitted conditions under the International Covenant on Civil and Political Rights(the ICCPR); and thereafter when such limitations are not considered enough, ‘derogation’ measures will be sought. However, most of derogation measures which are taken under the public emergency situation cause a critical obstacle to the protection of its people’s human rights. Until now, evidently, most States that have taken the derogation measures under article 4 of the ICCPR, have been criticized of not entirely fulfilling all the requirements. Today, more than ever, is a time when international rule of law is more emphasized. It is not an exception to say when a public emergency situation has occurred. The validity of derogation measures is subject to the fulfillment of several requirements set by the ICCPR. Such requirements are namely the severeness of the situation, proclamation of public emergency and the notification to other State parties, adherence to the principle of legality, principle of necessity, principle of proportionality and principle of nondiscrimination, consistency with other obligations under international law, and non-derogability of certain specific rights recognized as in the ICCPR and the Human Rights Committee(the HRC). As such, the ICCPR follows the concept that the derogation measures are not permitting the state of legal vacuum. The derogation measures taken in case of public emergency should be strictly limited to the bare minimum necessary to achieve the goal of merely overcoming the emergency situation. Once the threat to the life of a nation is ended, should the State-party immediately comply with the original obligations under the ICCPR to protect its people’s human rights. Moreover, nowadays, the scope of derogation measures is becoming narrowed down even under emergency situation. It must be taken into consideration that the HRC, especially, through interpretation of the relevant provisions of the ICCPR, is expanding the range of non-derogable human rights. Recently there is also a strong tendency to set reasonable limit to the emergency power of State-parties. The range of derogation which is permitted in case of public emergency will be concretely determined in the midst of strained relations between the protection of individual human rights and freedoms and the protection of the interest in the preservation of national life. In any case, derogation measures should be in the ways of enhancing or promoting the human rights of its people within the framework of rule of law.