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  • Shaivy Maheshwari

Position of Right to Fair Trial and Permissible State Derogation in The International Law


For understanding the position of fair trials in the international regime, it is pertinent to first make sense of its customary and conventional standards. The said right is considered to be one of the cardinal rights guaranteed under the rule of law[1]. Fair trial has also been a crucial fragment to guarantee human rights which were first affirmed by the UDHR[2] and then recognized by a diverse number of human rights documents such as the ACHR, ICCPR, and ECHR. These instruments carry certain minimum standards which provide procedural safeguards to guarantee a fair trial[3]. A popular view suggests that human rights treaties have the disposition of jus cogens[4] i.e any kind of suspension or limitation would be impermissible to such norms[5]. Going by this view, one can deduce that the right to fair trial assumes the character of at least a compelling legal norm. However, in practice, derogation from the right to some extent is found to be permissible given they are “proportionate, crucial and are subjected to international scrutiny”[6].

Need for addressing the issue of fair trials

One of the most basic principles of rule of law is the maintenance of equality among the subjects. The right to a fair trial itself seeks to provide a level playing field to the victims as well as the accused[7]. If the core principles of a fair trial are not upheld, the rule of law is bound to lose its value. This is because the balance between the rights of both parties would not be maintained, ruling out the basic principle of equality which is key to the rule of law[8]. Further, as per the Vienna Declaration of 1993, “all human rights are universal” and the international community is obligated to treat human rights globally in a fair and equal manner. The complexity of the criminal procedural law in the international regime[9], possibility of lack of independence of the judiciary[10] , and the differences in the languages of the international texts guaranteeing fair trial rights may pose problems if the ascertainment of the placement of fair trial rights remains ambiguous. Further, the differences in substantive interpretations and state volitions are likely to affect uniformity in the practice of guaranteeing fair trial rights.

This paper first ascertains the character and placement of fair trial rights in the international legal domain. It then determines whether the exercise of such rights is subject to some kind of permissible derogations and the extent to which such derogations have been recognized by the courts. Lastly, it tries to deduce if fair trial rights assume the character of jus cogens given their nature, position and judicial recognition in the international domain.

Placement of Right to Fair Trial in International Law

The substantive content predominantly reflects various normative rights to ensure a fair trial which are given due recognition in the international law[11]. For instance, to be treated as an “innocent until proven guilty” is a customary norm under the international law[12]. This is reflected by article 14(2) of the ICCPR. Article 14 in fact enumerates much of the substantive standards pertaining to the right which are accompanied with various other procedural guarantees through article 7 read with article 1 of the Convention against Torture[13]; and article 9, article 10, article 13, and article 15 of the ICCPR. The Rome Statute apart from providing several basic rights of a fair trial under part 6 provides for the “right to remain silent”[14], a notable addition that was absent in the earlier drafts. The ECHR through article 6 also protects certain minimum fair trial rights of a person. Additionally, some specific guarantees such as those provided under article 6 of the additional protocol II are found to be diffused under international humanitarian law. There are also much shreds of evidence to suggest that the right to a fair trial has attained a customary character[15].

Thus, from a fundamental principle of the rule of law to a tool to guarantee human rights, the right to fair trial can be said to have been scattered around in international law. At one place, fair trial rights have been properly specified both in substantive and procedural terms, and at the other, these seem to be upheld because of their normative and customary character.

Permissible Derogation of the Right by a State

Fair trial is conventionally believed to be a well-established principle in international law from which no derogation is permissible except in accordance with the mechanism set out under various articles[16]. The presence of these substantive provisions does not however indicate that there is an absence of any kind of digression. These provisions are also prone to different kinds of interpretations and hence may have distinct applications[17]. For instance, having been created by the means of a treaty, the rights which are guaranteed under the ICC are not always inviolable[18]. Derogation to a certain extent is permissible, provided the circumstances governing the derogation follow the standards which have been enshrined under the instrument. Also, under the ICCPR, article 14 is kept outside the purview of the rights which cannot be derogated as per article 4 of the treaty. In such a case, it is important to identify the extent to which such derogation can be made possible and to see if the actual trend demonstrates the assurance of some basic minimum guarantees to a fair trial nonetheless.

The Vienna Convention too allows the treaties to be interpreted by placing a good faith which should cater to the general meaning that can be given to its terms and following the object and purpose of the Convention[19]. Yet, given the nature and somewhat fragmented substantive position, a palpable way to perceive the character and disposition of fair trial rights in international law can be to observe the interpretations given by the courts.

Judicial Interpretations regarding permissible derogations

In the case of ICCPR, ACHR, and ECHR, certain common standards have been enumerated to justify a ‘valid derogation’ from the right. For instance, in the event of a national emergency, a state is allowed to derogate from the principle in order to balance the rights of the population with the necessity of ensuring the safety of the state itself[20]. In Lawless v. Ireland[21], the court pondered if, by the means of detaining the petitioner for five months before his trial, his fair trial guarantees which have been provided under article 5(1)(c) and (3) of the ECHR were violated. This was because bringing him before an appropriate legal authority was not the purpose of his detention. Yet, the court used the ordinary meaning of the term ‘emergency’ to suggest that the government rationally presumed the state of affairs to be an imminent state of emergency[22]. In the Greek case[23], the court concluded that political instability coupled with communist activities does not qualify as being the state of a public emergency. It becomes pertinent to note that while derogation has been made permissible to a certain extent, the states still need to justify the facts and circumstances which made them interpret the situation as one qualifying a national emergency. The courts’ interpretation also suggests that it gives due regard to the government’s discernment of considering a particular situation as that of an emergency. Furthermore, in the case of Ireland v. United Kingdom[24], the court opined that additional guarantees have to be made available to assuage the excessiveness of the derogation if the normal guarantees to a fair trial have been taken away[25].In this manner, the court sought to provide only a limited leeway to the states while striving to balance the rights of the population at the same time.

Similarly, derogation of the states must be proportional to a legitimate aim which is to be pursued by the means of the limitation upon the right[26]. Conventionally, the courts believe that governments are better equipped to determine the kind of measures that are pivotal to handling the emergency[27]. In the case of Lawless, the court propounded that given the circumstances created by the situation, administrative detention was justified for handling the emergency[28]. There have been a number of several similar instances in which the court has reviewed responses of the governments. This suggests that though a margin has been provided to the governments to act according to their discretion yet international scrutiny is done to evaluate states’ action based upon acceptable limits, and to see if such action was indeed taken in good faith.

The International Criminal Tribunal for the Former Yugoslavia in the Tadic case[29] indicated to some extent that digression from the procedural guarantees may be allowed even if there is no specific derogation clause[30]. This suggests that although the right to fair trial assumes a lot of importance in both substantive and customary international law, its specificity in terms of its permissible derogation is lacking. The courts’ evaluation helps in the assessment of a particular situation as to whether it qualifies as a legitimate derogation from the fair trial rights. Yet, the absence of any precise standard to review[31] to see if there was indeed necessity, proportionality and good faith on the part of government makes it difficult to sufficiently conclude whether this right can be upheld at all times.


From the above analysis, it becomes clear that any kind of derogation from the right to fair trial cannot be done arbitrarily on the part of the states but has to be legitimized. Even though it cannot be said that such practice would help in upholding all the substantive or customary fair trial rights at all times yet it’s fairly universal character and the practice of court evaluations can help in maintaining state consciousness regarding the existence of the right. This is particularly true because fair trial rights also find their place under the UDHR. A plain reading of article 6 of the ICCPR clearly demonstrates the intention of the existing legal regime to beseech the international community against practice of death penalty and persuade it to gradually abolish capital punishments. However, there is absence of any such additional persuasion, apart from the existing legal provisions adopted in the ICCPR, to strongly advocate in favor of upholding fair trial rights in the international regime. It is pertinent to note that such absence is coupled with its non-appearance under article 4 of the ICCPR among the rights which cannot be derogated even in cases of a public emergency.

Article 38(1)(d) of the ICJ statute treats the court’s discernment of a particular issue as a secondary source of law. The court interpretations discussed above are indicative of the positive trend to recognize this principle as a legal mandate wherein any kind of derogation is to be justified for its validity. Yet, due to its imprecise placement, differing interpretations, absence of clear standards of review, and the existence of discretionary power that is given to the states, a lot needs to be done before the right to fair trial assumes the character of jus cogens. As discussed in the introduction of the paper, the resulting non-observance or illegitimate derogations which can occur due to the reasons mentioned above can have persistent negative implications for the rule of law and human rights in the international platform.


[2] Louis B. Sohn, John A Sibley Lecture: The Shaping of International Law, 8 GA. J. INT’L & COMP. L.1, 18-22 (1978).

[3] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 535 (1999).

[4] Karen Parker, Jus Cogens: Compelling the Law of Human Rights 12 HASTINGS INT'L & COMP. L. REV. 411,417 (1989).


[6] Rosalyn Higgins, Derogations Under Human Rights Treaties 48 BRIT. Y.B.I.L. 281,282-283 (1976-77).

[7] The Rule of Law, FAIR TRIALS.ORG,

[8] The Rule of Law, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, June 22, 2016,

[9] Nicolas A. J. Croquet, The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence? 11 HUM. RIGHTS LAW REV. 91, 93 (2011).

[10] David Harris, The Right to a Fair Trial in Criminal Proceedings as a Human Right 16 INT COMP LAW Q 352, 355 (1967).

[11] WW Burke White, Regionalization of International Criminal law Enforcement: A Preliminary Exploration 38 TEXAS INT’L LAW J. 729,760 (2003).

[12] UN Human Rights Committee (HRC), CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, UN Doc CCPR/C/21/Rev.1/Add.6, (November 4, 1994).



[15] Amal Clooney and Philippa Webb, THE RIGHT TO A FAIR TRIAL IN INTERNATIONAL LAW (2021 ).

[16] Patrick Robinson, The Right to a Fair Trial in International Law, with Specific Reference to the Work of the ICTY 8 BERKELEY J. INT. LAW 1,5-7 (2010).

[17] JK Cogan, International Criminal Courts and Fair Trials: Difficulties and Prospects 27 YALE J INT'L L. 111 (2002).

[18] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 535 (1999).


[20] Joan F. Hartman, Derogations From Human Rights Treaties in Public Emergencies 22 HARV. IRR'L L.J.1, 11 (1981).

[21] Lawless v. Ireland 1 ECHR 15 (1961).

[22] Lawless v. Ireland 1 ECHR 21 (1961).


[24] Ireland v. The United Kingdom 2 EHRR 25 (1977).

[25] Stephanos Stavros, The Right to a Fair Trial in Emergency Situations 41 INT COMP LAW Q 343, 347 (1992).


[27] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 590 (1999).

[28] Lawless v. Ireland 1 ECHR 22 (1961).

[29] Prosecutor v. Dusko Tadic ICL 93 ICTY (1999).

[30] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 600 (1999).

[31] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 597 (1999).

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