States of Emergency - Centre for Policy Alternatives

Nothing turns on the question whether such behaviour is
motivated by strategic considerations or principled commitments
– formal accession provides an appropriate complementarity for
the adjudicative, norms‐based and politically‐neutral approach of
the Human Rights Committee, provided that an institutional
support structure for political and diplomatic follow through is
developed.
4.3
 International
 Human
 Rights
 Standards
 in
 States
 of
Emergency:
The
Legal
Regime
of
Derogations
As stated at the outset, the foregoing serves as a background to the
discussion in this section on the legal regime of derogations as set
out in international human rights law. Before embarking on this
discussion, however, several preliminary clariLications are in
order, the Lirst of which must be the caveat that what follows is a
descriptive and analytical account, and not a theoretically critical
discussion. Thus, for example, the well known critiques of the
theoretical assumptions of the international derogation regimes as
being based on abstract ideal‐types of what constitutes an
emergency, and which do not accord with the reality of States’
internal practices and other critical perspectives, are not
discussed here. The purpose of the previous sections was to give
an indication of some of these problems.
The derogation clause is a fundamental lynchpin of the three
international human rights instruments (viz., the ICCPR, the ECHR
and the ACHR) that embody the model of legal accommodation of
states of emergency. We noted that the African Charter does not
contain a derogation clause and that for this and other reasons, it
is not a model of accommodation. The main purpose of this
section is to give an introduction to the principles underpinning
and governing Article 4 of the ICCPR, the derogation clause of the
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