Image source: United Nations Office of the High Commissioner for Human Rights
Article source: "État d’urgence : la France déroge aussi au Pacte international relatif aux droits civils et politiques" ('ONU soit qui mal y pense'), Marc Rees. Next INpact, 20/01/2016.
After passing the law extending and modifying the State of Emergency, the French government had warned the Secretary General of the Council of Europe that it was to contravene the European Convention on Human Rights (ECHR). Article 15 of the ECHR permits a derogation, in case of war or “other public emergency threatening the life of the nation.” It therefore allows the French authorities to suspend measures guaranteeing privacy or freedom of movement, to ride roughshod over them by holding people under house arrest, and by searching property and computer files without court orders.
A Derogation to “prevent new terrorist attacks”
As anticipated, the United Nations received an identical application on December 3, this time in order to obtain a derogation from the International Covenant on Civil and Political Rights (ICCPR): a covenant which contains similar protections of fundamental rights and freedoms.
François Delattre, ambassador and Permanent Representative of France to the UN, notes that the State of Emergency contravenes several articles of the ICCPR, including: Article 9, which guarantees freedom from arbitrary detention and protection of the rights to liberty and security; Article 12, which guarantees freedom of movement; and Article 17, forbidding “arbitrary or unlawful interference” with a person’s private life. “These kinds of measures seemed necessary to prevent further terrorist attacks,” the diplomat claimed.
A Threat to the Nation's Existence
As with the ECHR, the Convenant allows for such a temporary derogation: ‘In time of public emergency which threatens the life of the nation’, as long as the existence of the emergency is ‘officially proclaimed’.
Naturally, in order to conform to the Covenant, the French application cannot simply consist of a letter. While the UN's Special Rapporteurs have been very critical of the French decision, the task of judging the validity of the derogation request falls to to the UN Human Rights Committee, the body responsible for monitoring implementation of the Covenant. The committee has actually created several criteria – including a measure of proportionality – which are stated in this document, with the following core guideline: ‘the restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party derogating from the Covenant’.
Meanwhile, the Human Rights League (Ligue des droits de l’homme) has asked a constitutional judge sitting on the French Council of State to suspend the State of Emergency, in whole or in part. The organisation, represented by barrister Patrice Spinosi, argues that the State of Emergency no longer has any reason to be in force, especially in light of critical reports produced by the board of enquiry established by the French National Assembly. Nevertheless, François Hollande’s government seems set to prolong this situation beyond the end of February.
Translated by Alexandre Margat and Rachel Lagrou
Editing by Sam Trainor
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