States of Emergency - Centre for Policy Alternatives

The Human Rights Committee has repeatedly, and without
challenge, afLirmed its competence to review a State Party’s
compliance with the principle of proportionality. In this regard, it
has held that the legitimacy and legality of resorting to derogating
measures is justiLied only in cases where ordinary legislation and
normal executive powers for maintaining law and order are
insufLicient for dealing with the emergency. Moreover, in
consonance with the principle of exceptional threat discussed
before, and the fundamental assumption throughout, that
emergencies are exceptions to normalcy, derogating measures are
justiLied only so long as the emergency lasts. Derogations must
have a direct bearing and relation to the emergency. Thus, for
example, the restriction of political rights in dealing with a natural
disaster will not be regarded as valid. The Human Rights
Committee has striven to assess speciLic measures of derogation
for proportionality and necessity, although the insufLiciency of
detailed information has made this difLicult. It has also attempted
to examine not only the extent of derogating measures (in the
context of the constitutional and legal frameworks of States
Parties), but also how such measures operate in practice.
Therefore, mere reference to abstract legal frameworks would not
be sufLicient; States Parties must also demonstrate the practical
effect of how restrictions of rights under derogation actually
operate. In this regard, the Committee would also examine the
procedural and other safeguards in place to prevent abuses of
human rights, even where a State has (validly) invoked the right of
derogation.
In General Comment No. 29, the Committee made the following
important observations with regard to the manner in which it
applies the principle of proportionality: “A fundamental
requirement for any measures derogating from the Covenant, as
set forth in article 4, paragraph 1, is that such measures are
164