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The protection of human rights under the national emergency

Author: ZhangZuoHong
Tutor: LuZhiAn
School: Fudan University
Course: International law
Keywords: National emergency Derogation of human rights Protection of human rights
CLC: D99
Type: Master's thesis
Year: 2008
Downloads: 203
Quote: 1
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Abstract


National emergency endangering the life of the nation, and to this end, national governments need to use emergency powers derogable human rights of individuals, in order to save the country from destruction. In this process, the administrative power to the rapid expansion of touching the individual rights of all levels, and thus break the balance of power in the normal pattern. Proved, even in times of national emergency, we must maintain a minimum balance of power, otherwise, executive power is bound to one of dominance, wanton extend the period of national emergency, and even the establishment of the Military Commission took the responsibilities of the judiciary, to enable individuals to obtain greatly reduced the opportunity of a fair trial and judicial remedies. Since individuals for the continued existence of the life of the nation paid a consideration of the rights and freedoms, then as the urgency of reducing administrative powers can not ignore the fact that, continue to protect the life of the nation, the expansion of the real powers of the nominal line. To this end, the State Administration must line to have ended, the fundamental value and dignity of those directly related to the non-derogable rights \. The special report on the issue to the United Nations Human Rights Committee to cut to the chase, expand divided into five parts of the state of emergency under the protection of human rights discourse. The first part discusses the connotation and extension of a state of emergency, the first analysis of the \national emergency epitaxy; once again, analyzed the relationship between war and state of emergency; clarify national emergency start and termination. The second part from the relative starting to investigate the human rights, cultural diversity and relative human rights is the relationship of the two sides of the same coin, which for some human rights can be derogation under certain conditions, but the derogation of human rights must only some of the line, some direct relationship between basic human values ??and dignity is strictly prohibited derogation this boundary clear derogation of human rights; led to a turn, this paper analyzes the question of reservations to human rights conventions - the particularity of human rights treaties some provisions are likely to rise to the status of jus cogens, or constitute customary international law, member states the reservations can accept such terms? Finally, to investigate the implementation of the derogation measures for derogation of human rights to be respected The five principles, namely the principle of legality, necessity principle, the principle of proportionality, the principle of non-discrimination and the principle of compliance with their obligations under international law. The third part of international supervision of the state of emergency, first select the European Court of Human Rights, the jurisprudence of the Inter-American Court of Human Rights, as an example, the effects of the operation and function of the international monitoring mechanism; Second, select the consultation of the International Court of Justice on Israel's construction of the wall views as well as the judgment of the Congo v. Uganda case as a reference, and discuss the role of the International Court of Justice for the protection of human rights of national emergency. Part IV discussed domestic surveillance of national emergency, including legislative oversight and judicial oversight, and the part of the judicial oversight and detailed analysis of the question of jurisdiction of the Military Committee, combing the relationship between the Judiciary and the Military Commission, combined with the Supreme Court of the United States jurisprudence shows the analysis of the path of the domestic supervisory bodies. The fifth part of the whole research process, summarize, and combination of analysis. This article aims to do whatever discussion on human rights protection under the state of emergency, and expect to take this opportunity to conduct a more in-depth and comprehensive grasp of the issue.

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