States of Emergency - Centre for Policy Alternatives

The point has often been made, with justiLication, that the list of
non‐derogable rights in the ICCPR betrays a quality of ad
 hoc
selection. In the long drafting period of the ICCPR, this was due to
the various compromises that had to be made between various
States, which is true also of the ECHR and ACHR (although to a
lesser extent because they are regional instruments negotiated
between like‐minded neighbour States, sharing inter
 alia
 a
common regional history). In the result, Article 4 (2) of the ICCPR
contains seven non‐derogable rights, Article 15 (2) of the ECHR
has four, and Article 27 (2) of the ACHR has eleven (including
judicial safeguards to enforce the non‐derogable quality of the
rights so classiLied).
As Oraá explains, “In the drafting of the [ICCPR, the ECHR and the
IACHR] there was unanimity on the necessity of including that
principle in the derogation clause…Even though there was total
agreement on this principle, the problem of establishing which
rights should be made non‐derogable was far from an easy task for
the drafters [of the three treaties]. One of the striking features of
the derogation clause of these treaties is that they contain a
different list of non‐derogable rights…The difLiculty of agreeing on
a concrete list non‐derogable rights is well illustrated in the
travaux
préparatoires
of the treaties.” 244
By contrast, in the more ‘homogenous’ environment of national
constitution‐making, the example of South Africa, born out of a
long and bitter experience of the abuse of emergency powers by
the former apartheid State, illustrates not only the central
signiLicance given to this principle in the design of its bill of rights,
244
Oraá: pp.87‐88
153