States of Emergency - Centre for Policy Alternatives

a member State; (e) that derogation case law of all systems are
substantially concerned with due process rights; and (f) that all
systems are limited in their range of effective and genuinely
responsive remedies. 204
4.1.4
 Overview
 of
 the
 Derogation
 Jurisprudence
 and
Commentary
of
the
Human
Rights
Committee
Further below, we will deal with the derogations regime under the
ICCPR in some detail. 205 However, some preliminary observations
may be made here by way of explication of the general functional
framework of the Committee under the ICCPR and what it can and
cannot do in respect of derogations and states of emergency
within the scope of Article 4 of the ICCPR. It is to be noted that the
Committee’s position under the ICCPR as a supervisory and
enforcement mechanism is relatively weak in comparison to the
European Court of Human Rights and the Inter‐American Court.
We discuss the strengths and weaknesses of the enforcement
framework of the ICCPR in the next section. 206 In relation to the
Human Rights Committee, its role is encumbered with several
problems.
The Committee does not function as an international court under
the ICCPR which has the power to hand down binding decisions to
States Parties. Provided a State has acceded to the First Optional
Protocol, the Committee acts in an adjudicative capacity no doubt
with regard to individual complaints, but the enforcement of its
204
Gross and Ní Aoláin: pp.264‐268
205
Section 4.3, infra
206
Section 4.2, infra
125