States of Emergency - Centre for Policy Alternatives

proportionate, in addition to conformity with domestic legal and
constitutional stipulations.
There has been some debate about the legal effect of a failure by a
derogating State to fulLil the requirement of notiLication, in regard
to which there are two different aspects: (a) total failure to submit
a notiLication, and (b) the partial failure to do so (i.e., where the
notice of derogation is incomplete, contains insufLicient
information, or has not been sent within a reasonable time
period.)
The total failure to notify a derogation raises an interesting legal
problem. Does the State concerned entirely lose its right of
derogation because of a failure of procedural compliance, or can
the treaty body apply the derogation provisions to the State
notwithstanding the failure In principle, the right of derogation is
a sovereign right of the State, not of any treaty body, and the
failure to notify does not allow a treaty body to exercise a right
that it does not posses. On the other hand, it is absurd that where
a state of emergency in fact exists within a State, that the treaty
body should apply standards applicable in a state of normalcy,
merely because the State in question has failed, inadvertently or
deliberately, to communicate its derogation.
The Human Rights Committee has maintained that under the
reporting procedure, 239 if a State has not notiLied a state of
emergency, it is unable to take into account the difLiculties faced
by that State in the crisis in order to apply the leeway offered by a
valid derogation. For example, in the dialogue following the
signiLicant 1983 report of Sri Lanka, Mr. Opsahl of the Committee
stated that because there was a total failure of notiLication by Sri
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Article 40 ICCPR
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