States of Emergency - Centre for Policy Alternatives

ut also the deeply conceptualised basis on which the rights
included in the list of non‐derogable rights were selected. 245
If there was international unanimity with regard to the inclusion
of the non‐derogation principle in the derogation clause of the
ICCPR, what then was the rationale for the choice of the particular
list of rights which were eventually included Citing Hartman,
Oraá suggests two criteria: “First, to include those rights which are
absolutely fundamental and indispensable for the protection of
the human being. Secondly, to include those rights the derogation
of which by the State in public emergencies would never be
justiLied because they have no direct bearing on the emergency.”
246
While it is implicitly apparent that both criteria were at work in
the ICCPR selection, it also appears that they have not been
applied very consistently or coherently. Thus certain rights which
are fundamental and requiring special protection have been
excluded, whereas others which are not so fundamental and may
not in any case be especially endangered during a state of
emergency, have been included.
However, there are four non‐derogable rights common to the
ICCPR, the ECHR and the IACHR. These are the right to life, the
freedom from torture, the freedom from slavery and servitude,
and the non‐application of retroactive penal laws. These rights are
to be considered so important and fundamental that they are
considered part of both customary international law and jus
245
Nicholas Haysom (1989) ‘States
of
Emergency
in
Post‐Apartheid
South
Africa’ Columbia
Human
Rights
Law
Review
140
246
Oraá: p.94; General Comment No. 29 makes direct reference to the
second rationale in para.11
154