Human Rights Committee : jurisprudence

  • Even if not listed in article 4(2), some rights may not be derogated from because they are considered to be “inherent to the Covenant as a whole”
  • one such example is the right to judicial remedies in connection with arrests and detentions as set out in article 9(3) and (4)
  • Right to a fair trial for persons threatened with the death penalty.
  • The Committee has further held under the Optional Protocol that “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception”

General Comment 29 (2001)

  • In General Comment No. 29 adopted in July 2001, which replaces General Comment No. 5 of 1981, the Human Rights Committee confirms that “article 4 subjects both this very measure of derogation, as well as its material consequences, to a specific regime of safeguards.
  • With regard to the purpose of derogation, the Committee states that:
  • “The restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party derogating from the Covenant.”
  • As noted by the Committee, a State party must comply with “two fundamental conditions” before invoking article 4(1) of the Covenant, namely
  • (1) “the situation must amount to a public emergency which threatens the life of the nation” and(2) “the State party must have officially proclaimed a state of emergency”
  • condition of exceptional threat
  • The Covenant requires that even during an armed conflict measures derogating from the
  • Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation.
  • If States parties consider invoking article 4
  • in other situations than an armed conflict, they should carefully consider the justification.
  • “In order to discharge its function and to assess whether a situation of the kind described in article 4 (1) of the Covenant exists in the country concerned, it needs full and comprehensive information.

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