States of Emergency - Centre for Policy Alternatives

treaty‐based international human rights regime applicable to Sri
Lanka. Where necessary, reference will be made to the other
instruments.
In this context, of fundamental signiLicance is the proper
appreciation of the difference between the concepts of ‘limitation’
and ‘derogation’ of fundamental rights. This is a pivotal
consideration in the current state of the art in the design of
modern constitutional bills of rights. Indeed, the particular
schema of the ICCPR (and of the ECHR and ACHR) which
establishes speciLic limitation clauses attaching to discrete rights,
and a general derogation clause enumerating non‐derogable
rights, is now regarded as outmoded. The preferred approach is to
provide for a scheme of derogation during states of emergency
listing non‐derogable rights, but in respect of ordinary limitations,
to set out a single general limitations clause that limits
permissible limits. 223 In any event, the ICCPR uses both limitation
clauses and a derogation clause, which in the ICCPR schema is
differentiated by three factors:
1. Circumstances
 of
 operation: Limitations of rights are those
that are allowed in normal times by ordinary legal measures.
Derogations are only possible during a state of emergency
that constitutes an exceptional threat to the life of the nation.
2. Legal
 effects
 on
 rights: Limitation clauses attach to speciLic
rights and serve as permissible restrictions on the exercise of
223
See for the South African approach: Halton Cheadle & Dennis Davis,
‘Structure
of
the
Bill
of
Rights’, Dennis Davis, ‘Rights’, Halton Cheadle,
‘Limitation
of
Rights’ and Nicholas Haysom, ‘States
of
Emergency’ in Halton
Cheadle, Dennis Davis & Nicholas Haysom (2002) South
African
Constitutional
Law:
The
Bill
of
Rights
(Durban: Butterworths): Chs.
1,30,31
139