WHY ARTICLE 25 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS SHOULD BE EXPLICITLY EXCLUDED FROM DEROGATION UNDER ARTICLE 4.

• Author: Towle, Zachary

1. INTRODUCTION

   On July 15, 2016, a coup d'etat was attempted in Turkey. (1) The Turkish government swiftly suppressed the coup with military force, but declared a state of emergency regardless. (2) Allegedly reacting to the coup, Turkey seized upon the derogation provision of the International Covenant on Civil and Political Rights (ICCPR), one of the touchstone international agreements protecting human rights, and asserted its intent to suppress its citizens' participation in government until the "emergency" was under control. (3) United Nations experts question the validity of the "coup" because of the Turkish government's use of "coups" in the past to suppress opposition, and Turkey's response to the alleged coup has garnered condemnation from the international community. (4) What has not been addressed, however, is whether Turkey is in fact authorized to forgo its ICCPR obligations and why the ICCPR would authorize Turkey to suppress its citizens' involvement in government at all. (5)

   This Note explores Article 25 of the ICCPR with its guarantee of citizen participation in government, and why Article 4 of the ICCPR should explicitly prohibit states from derogating Article 25. (6) Part II of this Note details the history and contemporary interpretations of the ICCPR, Article 4, and Article 25. (7) Part III of this Note discusses how the Human Rights Committee and other human rights commissions define, explain, and apply Article 25 and Article 4. (8) Part IV of this Note analyzes the hypocrisy of allowing derogation of Article 25 under Article 4, the parallels between Article 25 and the non-derogable ICCPR articles identified in Article 4, and why derogating Article 25 should be prohibited under Article 4. (9) Part V of this Note concludes by highlighting how state derogation of the rights enumerated in Article 25 is an inherent threat to all human rights. (10)

2. HISTORY

   1. The International Covenant on Civil and Political Rights

      1. The History of the ICCPR

         In 1945, the allied powers assembled in San Francisco, California for the founding of the United Nations. (11) This conference resulted in the drafting of the United Nations Charter, but pressure from the United States, United Kingdom, and Soviet Union, all resistant to a human rights-centric organization possessing binding authority, systematically diminished the Charter's focus on human rights. (12) As a concession for diminishing the Charter's emphasis on human rights, Article 68 was incorporated into the Charter, requiring the formation of the United Nations Commission on Human Rights charged with "promoting" human rights. (13) By 1948, the Commission formulated the Universal Declaration of Human Rights (UDHR), and, by 1954, the Commission codified the provisions of the UDHR in two treaties: the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR). (14) The United Nations General Assembly adopted the ICCPR in 1966, and in 1976 the treaty entered into force. (15) Since then, 168 states have become parties. (16)

      2. Applying the ICCPR Today

         The purpose of the ICCPR is to protect "traditional human rights," commonly defined as civil and political rights, as enumerated under the UDHR. (17) Both the UDHR and the ICCPR are built on a foundation of pro-democratic institutions, considered one of the "universal core values and principles of the United Nations." (18) The ICCPR operates as a support mechanism for the international spread of democracy, reinforcing its tenants, and operating with the understanding that democracy best secures and protects human rights. (19)

         The ICCPR is principally enforced and interpreted through the Human Rights Committee (HRC) as established in Article 28 of the ICCPR. (20) An ICCPR Member State undertakes to provide regular reports to the HRC summarizing the state's human rights situation, and the HRC in response provides detailed assessments of states' adherence to the ICCPR and suggestions on remedying any deficiencies. (21) The ICCPR's assessments carry no binding authority, though states are expected to remedy deficiencies as they are identified by the HRC. (22) Additionally, the HRC formulates and distributes general comments, wherein the scope and meaning of the ICCPR and its articles are expounded and explained. (23) While the ICCPR is intended to expand human rights, it also embraces certain limitations under specific circumstances: the ICCPR expressly allows Member States to restrict citizen's freedom of expression; prohibit war propaganda and advocacy of discrimination based on race, nationality, or religion; and impose reasonable restrictions on participation in public affairs. (24) The most expansive restriction allowed under the ICCPR is contained in Article 4 which allows Member States to forgo a majority of the ICCPR obligations. (25)

   2. Article 4: The Derogation Provision

      1. The History of Article 4

         Article 4 of the ICCPR authorizes states to derogate certain rights under certain circumstances. (26) First appearing in a 1947 United Kingdom proposal to the Drafting Committee of the UDHR and the ICCPR, the inclusion of a derogation clause generated immediate debate. (27) Original proposals for a derogation clause expressly identified war, natural disasters, internal public unrest, and other national emergencies as justifications for derogation, generating the question of whether the ICCPR should only enumerate positive rights with a general limitations clause like in Article 29 of the UDHR, or precisely define both rights and limitations. (28) Proponents of precise definition asserted that, lacking explicit allocation of rights and limitations, the ICCPR would be vague and fail to protect rights from arbitrary suspension. (29) Opponents contended that explicitly granting states authority to suspend rights set a negative tone and a U.N. treaty should not "contemplate and make provisions for war." (30) Ultimately, France proposed the compromise that is manifest in Article 4 today: the derogation article would include a general limitation on state's power to derogate rights, coupled with expressly defined controls on states, such as listing non-derogable rights, requiring notification, and nondiscrimination. (31)

      2. Applying Article 4 Today

         The purpose of Article 4 is to provide states with a means to preserve themselves in emergencies but control how states can derogate their ICCPR obligations in pursuit of this goal. (32) Article 4's purpose is intended to reinforce the overarching purpose of the ICCPR as a whole. (33) For a state to properly exercise a valid Article 4 derogation: (1) the provision to be derogated cannot be identified as non-derogable, and the state must (2) experience an emergency that threatens the life of the nation; (3) officially proclaim an emergency, and define what rights will be derogated and why; and, (4) ensure the derogation is proportional to the emergency, while adhering to all other international obligations and the non-discrimination requirements of the ICCPR. (34)

         1. Non-derogable Provisions

            Article 4(2) expressly identifies eight provisions of the ICCPR that a state cannot derogate, regardless of circumstances. (35) The HRC asserts that the non-derogable provisions identified in Article 4(2) are non-derogable because "their suspension is irrelevant to the legitimate control of the state of national emergency." (36) While Article 4(2) does contain several peremptory norms, the HRC asserts that the expressly identified non-derogable rights are not comprehensive of all peremptory norms, nor are all the identified provisions peremptory norms. (37) The HRC states that the identification of a narrow list of non-derogable provisions under Article 4(2) does not imply that all unidentified provisions are subject to derogation. (38)

            In addition to the expressly identified non-derogable provisions of the ICCPR, the HRC extends non-derogation status to several other provisions of the ICCPR. (39) Member states are prohibited from derogating provisions of the ICCPR pertaining to non-discrimination, including Article 4(1) that bars discrimination during the derogation process. (40) Article 2(3), which requires Member States to remedy their violations of the ICCPR, is also non-derogable as it is a fundamental obligation associated with membership in the ICCPR. (41) Article 10, which guarantees incarcerated individuals are treated with dignity and respect, is non-derogable because the provision expresses a norm of general international law and is closely tied to the non-derogable Article 7. (42) As forced or coercive displacement of lawfully present individuals is considered a crime against humanity under the Rome Statute, Article 12 is also considered non-derogable by the HRC. (43) The HRC also bars derogation of Article 20, stating that no state of emergency justifies war propaganda or advocacy of hatred constituting incitement to discrimination, hostility, or violence. (44)

         2. Emergency Threatening the Life of the Nation

            Expressly stated in Article 4(1), derogation of an ICCPR provision requires that a state experience such a catastrophe that its very "life" is threatened. (45) Following the drafting of Article 4, the Chilean representative noted that "it was difficult to give a precise legal definition of the life of the nation [but it] was significant that the text did not relate to the life of the government or of the state." (46) Article 4 allows for states to respond to threats, but simultaneously narrows what constitutes an "emergency" for the purpose of derogation. (47) To qualify as a life threatening catastrophe, an emergency (1) must be extraordinary and not a matter of habit or a symptom of chronic government tension; (2) the emergency must be a threat to the nation as a whole and the nation's democratic basis of government; and (3) the threat must be actual or exceedingly imminent, and cannot be merely speculative, potential, latent...