States of Emergency - Centre for Policy Alternatives

Covenant (e.g., articles 6 and 7). However, it is apparent
that some other provisions of the Covenant were included
in the list of non‐derogable provisions because it can
never become necessary to derogate from these rights
during a state of emergency (e.g., articles 11 and 18).
Furthermore, the category of peremptory norms extends
beyond the list of non‐derogable provisions as given in
article 4, paragraph 2. States parties may in no
circumstances invoke article 4 of the Covenant as
justiLication for acting in violation of humanitarian law or
peremptory norms of international law, for instance by
taking hostages, by imposing collective punishments,
through arbitrary deprivations of liberty or by deviating
from fundamental principles of fair trial, including the
presumption of innocence.” 250
It is obvious that there is little meaning in classifying rights as
fundamental and non‐derogable, if provision is also not made for
their enjoyment. In this respect, speciLically important
considerations are that they should be enforceable through the
availability of an effective remedy, and that they should be enjoyed
without discrimination. In the logic of the scheme of the ICCPR,
therefore, during a state of emergency these two principles also
become non‐derogable in their application to those rights
expressly entrenched as non‐derogable. Thus, a State cannot deny
an effective remedy against the violation of non‐derogable rights,
and a State cannot in fact discriminate in the enforcement or
application of non‐derogable rights, on the pretext that it cannot
in law derogate from those rights. 251
250
para.11
251
General Comment No. 29 afLirms the right to an effective remedy in
paras.14, 15 and 16, and the principle of non‐derogation in para.8
156