States of Emergency - Centre for Policy Alternatives

Article 4 (3), and the obligation to provide information under the
reporting procedure in Article 40 and, in the case of individual
communications, under Article 4 (2) of the First Optional Protocol.
The fact that a State Party provides information under Article 40
or Article 4 (2) of the First Optional Protocol should never be seen
as fulLilment of the obligation under Article 4 (3), because these
are two different types of obligation with completely different
aims. This is a salutary distinction.
The main rationale for the important procedural requirement of
notiLication is that other State Parties are aware of the derogating
State’s position (and the contextual circumstances of the
derogation), so as to be able to exercise their own rights under the
ICCPR, speciLically the inter‐state complaints procedure.
NotiLication also assists the Human Rights Committee in
ascertaining the extent of their jurisdiction, and in the
interpretation of Article 4, in respect of the particular factual
situation within the derogating State. While this might seem sound
as a theoretical proposition, as we saw before, there have been no
instances in which any State has engaged the inter‐state
complaints procedure under the ICCPR. The experience, by
contrast, under the ECHR has been markedly different, where the
inter‐state procedure has been the most successful mechanism of
ensuring compliance with ECHR standards during times of
emergency.
Nonetheless, there is a strong incentive behind the requirement of
notiLication. Derogating States are obliged by this requirement to
exercise that right publicly and with the knowledge of other States
Parties and the UN. They are compelled thereby to fulLil many of
the substantive requirements of Article 4, such as demonstrating
that the derogating measures are ‘strictly necessary’ and
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