States of Emergency - Centre for Policy Alternatives

and legitimate in the circumstances. On a number of occasions
the Committee has expressed its concern over States parties
that appear to have derogated from rights protected by the
Covenant, or whose domestic law appears to allow such
derogation in situations not covered by article 4.” 231
4.3.2
The
Principle
of
Proclamation
In addition to the proper determination of the existence or
imminence of an exceptional threat, a further requirement of
Article 4 in the invocation of the right to derogation by States is
that of ‘ofLicial proclamation’. 232
As we have seen, the requirement of ofLicial proclamation is a key
feature of domestic regimes of constitutional and legislative
accommodation of emergencies. One of the main rationales for
requiring an ofLicial proclamation in Article 4 during its drafting
was precisely the fact that most domestic regimes established this
as a formal requirement. Inclusion of this requirement in Article 4
was thus a way of ensuring that States Parties complied with their
own domestic procedures for the declaration of emergencies, and
correspondingly to ensure against the incidence of extra‐legal, de
facto
states of emergency without proper legal authority. As Oraá
argues, “With this requirement, the [ICCPR] tries to prevent States
which have not ofLicially proclaimed the emergency from relying
on the right of derogation.” 233 However, it should be noted that
231
para.3
232
Article 4 (1)
233
Oraá: p.35
145