Provision under UN and Regional Conventions

Possibility for the States parties to resort to derogations in particularly serious emergency situations.

  • International Covenant on Civil and Political Rights (art. 4),
  • American Convention on Human Rights (art. 27)
  • European Convention on Human Rights (art. 15)

African Charter on Human and Peoples’ Rights and Commission’s view

  • There is no provision of emergency in the charter
  • According to the African Commission on Human and Peoples’ Rights “ the restriction of human rights is not a solution to national difficulties”
  • “the legitimate exercise of human rights does not pose dangers to a democratic State governed by the rule of law”
  • The civil war could not therefore be used as a legal shield for failure to fulfil the legal obligations under the African Charter,
  • (3ACHPR, Commission Nationale des Droits de l’Homme et des Libertés v. Chad, Communication No. 74/92, decision adopted
  • during the 18th Ordinary session, October 1995, para. 40 of the text of the decision as published at: http://www.up.ac.za/chr/)

Article 4 (1) of ICCPR

  • “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
  • The introduction of a derogation provision into the Covenant was first proposed by the United Kingdom in a Drafting Committee of the United Nations Commission on Human Rights in June 1947.
  • United Kingdom expressed the view that “if such a provision were not included, in time of war it might leave the way open for a State to suspend the provisions of the Convention.” It was “most important that steps should be taken to guard against such an eventuality”.
  • The arguments for and against the advisability of a derogation provision continued during the subsequent sessions of the Commission on Human Rights.
  • The USSR was “in favour of the least possible limitation” by adding the phrase “directed against the interests of the people” after “in time of war or other public emergency”
  • United States and Philippines were against the derogation provision.
  • the condition of a “public emergency which threatens the life of the nation.
  • the condition of strict necessity
  • official proclamation
  • non-derogability of certain Rights and obligations (Art. 4(2) ICCPR)
  • consistency with other international legal obligations
  • The condition of non-discrimination:
  • The measures of derogation may not “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin” (art. 4(1) of ICCPR)

International Notification:

  • a State party must immediately submit a notification of derogation to the other States parties through the Secretary-General.
  • describe “the provisions from which it has derogated and … the reasons by which it was actuated”.
  • A second notification must be submitted “on the date on which it terminates such derogation”

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