Getting to Phi: The Case for Excusatory Derogations from ICCPR Rights

Authors

Benjamen F. Gussen, Swinbume Law School

Abstract

This Article highlights the need for excusatory derogations from human rights. Currently, there is exclusive reliance on justification when upholding derogations from International Covenant on Civil and Political Rights ("ICCPR ) rights. In contrast, an excusatory derogation accentuates the requisite international policy intervention to assist national and subnational governments toward a proportional response to public emergencies. The right to mobility under the ICCPR, and its renditions in the constitutions of Australia and Canada, are used to illustrate this proposition. Border closures in response to the coronavirus pandemic provide context to elucidate how different types of public emergencies dictate different approaches to analyzing government responses. Recent case law from Australia and Canada on the validity of border closures in response to the pandemic evinces a conflation of excusatory and justificatory reasoning. The consequence is that there is no requirement on government to seek assistance to devise alternative responses to minimize infringement on human rights. International instruments such as the ICCPR need to distinguish public emergencies that require excusatory derogation from those requiring justificatory derogation to help improve the response to future pandemics, and public emergencies more generally. To this end, the Article explains the theoretical underpinnings of the principles of (excusatory and justificatory) necessity, proportionality, and precaution.

Disciplines

Comparative and Foreign Law | Criminal Law | Criminal Procedure | International Law | Jurisprudence | Law | Legal Remedies

Recommended Citation

Benjamen F. Gussen, Getting to Phi: The Case for Excusatory Derogations from ICCPR Rights, 5 Cardozo Int’l & Compar. L. Rev. 801 (2022).
Available at: https://larc.cardozo.yu.edu/ciclr/vol5/iss3/4