States of Emergency - Centre for Policy Alternatives

All three instruments contain a list of non‐derogable rights. 198
However, the Human Rights Committee has clearly stated that a
State may not derogate from the obligation to protect a derogable
right except without a high standard of justiLication, which will be
subject to the Committee’s anxious scrutiny. It has also stated that
even where a right may be derogable under the ICCPR, it may not
in effect be derogable if it is part of the peremptory norms of
international law. 199
Like in the national constitutional systems we considered before,
the ICCPR and the regional regimes require an explicit declaration
or proclamation of a state of emergency. While some national
systems also extend this procedural safeguard by requiring public
notice, notiLication has a prominent role in the international
regimes. The ICCPR, the ECHR and the ACHR require notiLication
of derogations to the relevant treaty bodies as well as to other
state parties to the treaty (except the ECHR). They also require
States to provide reasons for the derogation and to notify
termination. In General Comment No. 29, the Human Rights
Committee has stressed the importance of these procedural
safeguards to ensure that States are not permitted excessive
recourse to Article 4 ICCPR, so that emergencies must be ‘ofLicially
proclaimed’, and that notiLication of derogation should “…include
full information about the measures taken and a clear explanation
of the reasons for them, with full documentation attached
regarding their law.” 200
198
Article 4 (2) ICCPR; Article15 (2) ECHR; Article 27 (2) ACHR
199
UN Human Rights Committee (2001) General Comment No. 29: States
of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11 (31 st August 2001):
para.11; hereinafter General Comment No.29
200
Ibid, para.17
122