The State Of Emergency Under The Protection Of Human Rights

In case of state emergency threatening the life of a state,the government of the state has to resort to emergency power including invoking some derogation measures to rescue the state at stake.Usually the administration will take advantage of such emergency to expand its scope of power,invading the harbor of individual rights,which interrupts the balance of power. History indicates the minimum balance of power is indispensable even in state emergency; otherwise the administration will exhaust every domain where it may poke into,prolong the duration of emergency at will,and establish a military committee to override courts,wherein an individual would be deprived of right of fair trial to some extent.Since an individual has devoted his rights and liberty to the life of state,the administration shall not keep on expanding its power in name of protecting the life of state regardless of the depression of emergency.So the non-derogable rights,to which the value and dignity of human being give birth,shall acts as a mine field for the administration;besides the administration undertakes to abide by the proportionality principle and its other obligation arising from international law when it derogates rights other than non-derogable ones.This paper is consist of five parts and starts from a special report of United Nation Human Rights Committee concerning human rights under state emergency,focusing on the protection of human rights in the state of emergency.In the first chapter,the definition and denotation of the state emergency is to be discussed. Firstly,shown is the analysis on the definition of the state emergency under International Covenant on Civil and Political Rights(ICCPR) and other regional conventions concerned with human rights protection;secondly,the legislation status on this issue in many countries is taken for reference to find the denotation of state emergency;thirdly,illuminated is the relation between war and state emergency;Lastly,the initiation and termination of state emergency is discussed in detail.In the second chapter,based on the relativity of human rights,some human rights may be derogated conditionally,because the relativity of culture and the relativity of human rights are two faces of one coin.However it shall be born in mind that some human rights concerned directly with the value and dignity of human being shall be immune from any derogation. Furthermore it sheds light on the reservation of human rights conventions,which gives arise of a question whether a reservation is acceptable when it aims at some provisions possibly being of the nature of international compulsory law or international customary law thanks to the particularity of human rights conventions.Lastly,it emphasizes the five principles,namely legitimacy,necessity,proportionality,non-discrimination and conformity with obligations arising from international law,shall be followed in case of derogation. In the third chapter,the focus is international supervision of state emergency.Firstly,some cases from European Court of Human Rights and Inter-America Court of Human Rights are selected as samples to find the performance and function of international supervision mechanism;secondly,the role of International Court of Justice is to be indicated by citing and analyzing its advisory opinion on construction of wall in the occupied territory of Palestine as well as the Case Congo v.Uganda.In the fourth chapter,domestic supervision on state emergency is discussed in detail, including legislative and judicial supervision.In the part of judicial supervision,jurisdiction of Military Committee is subject to detailed analysis,which clarifies the relation between court and military committee and shows the path of analysis of US Federal Court within the domain of domestic supervision.In the fifth chapter,a conclusion emerges from all above discussion.Meanwhile the author pays attention to the legislation of state emergency in China.Hereby expected is a possible analysis and discussion in depth on the protection of human rights under state emergency.