The International Covenant on Civil and Political Rights and United Kingdom Law

By David Harris; Sarah Joseph | Go to book overview

derogation. This the United Kingdom has done. Failureto notify may not necessarily mean that a measure of derogation not so notified is impermissible (albeit such an omission would be a technical violation of the obligation to notify). Moreover, as has been seen above, the United Kingdom position is that all the measures it has taken, other than that in respect of which it has derogated, are compatible with its obligations under the Covenant. To the extent that any such measure may contravene any particular provision--either because, as in Brogan, the United Kingdom has misinterpreted the scope of its obligations or because it may on the facts be found to be in violation of the provision--then therein will lie the treaty violation, rather than in non-compliance with the obligation to notify.

Moreover, once a state has notified a derogation from a part of the Covenant, it will not be able to argue that it has derogated from other provisions even without notification.126 This means that if the United Kingdom were to be found in violation of certain provisions which it thought or hoped did not cover a specific special measure, then it would again face the embarrassment of the sort it faced in the wake of Brogan.

It is also doubtful whether the reluctance to derogate from provisions of which emergency measures could well fall foul is consistent with a longer- range human rights perspective. Essentially it involves the government taking a narrow view of the scope of protection afforded by specific provisions, for example, Article 9(3) before Brogan or possibly Articles 9(2) (immediate provision of reasons for arrest) or 14(3)(g) (non-self- incrimination) even now. A more generous interpretation of the scope of the obligations in question could well be in the interest of the overall protection of human rights. Appropriate notification of derogation from provisions whose scope could reasonably be interpreted as covering the measures in question would help promote such an interpretation.


CONCLUSION

A number of concerns regarding the emergency legislation were expressed by individual HRC members in 1991, on the occasion of the review of the United Kingdom's Third Periodic Report. Thus, for Mr Wako, the 'situation in Northern Ireland' was among a number of 'causes of concern'.127 MS Chanet observed that 'a permanent state of emergency was in effect' in Northern Ireland. She affirmed that '[d]erogations . . . should be limited to the extent strictly required by the exigencies of the situation.' Here she was presumably referring to measures of derogation rather than

____________________
126
See e.g. Suarez de Guerrero v. Colombia (45/ 1979), para. 12.1.
127
CPR/C/SR.1050, para. 59.

-152-

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