States of Emergency - Centre for Policy Alternatives

Covenant.” 266
4.3.7
The
Principle
of
Consistency
Article 4 (1) of the ICCPR provides that the right of derogation
during an emergency is limited by the requirement that any such
measures must not be inconsistent with the State’s other
international obligations. As Oraá explains, “The operation of this
legal criterion of the validity of the derogating measures can only
come after all the other conditions of the derogation clause have
been satisLied; in other words, after the [Human Rights
Committee] has accepted that (1) there exists a public emergency
threatening the life of the nation, (2) that the emergency has been
ofLicially proclaimed, (3) that there has been a valid notice of
derogation, (4) that it has not affected a non‐derogable right, (5)
that the measure is strictly required by the exigencies of the
situation, and (6) that it does not involve discrimination. Once the
[Human Rights Committee] has been satisLied that these
conditions have been met, it should check, in order to accept the
validity of the derogating measure, that the latter does not conLlict
with the State’s other obligations under international law.” 267
As the Human Rights Committee has observed in General
Comment No. 29, “…article 4, paragraph 1, requires that no
measure derogating from the provisions of the Covenant may be
inconsistent with the State party’s other obligations under
international law, particularly the rules of international
humanitarian law. Article 4 of the Covenant cannot be read as
justiLication for derogation from the Covenant if such derogation
266
para.8, emphasis added
267
Oraá: p.190
169