States of Emergency - Centre for Policy Alternatives

provided for by the ICCPR Article 4 (2), and more signiLicantly, are
also inconsistent with ICCPR standards in terms of the content of
protection. For example, whereas Article 4 (2) recognises the
Article 15 prohibition of retroactive criminal liability as a nonderogable
right under the ICCPR, Article 15 (1) of the constitution
permits restrictions on the apposite prohibition in Article 13 in
the interests of national security.
The only procedural safeguard provided by Article 15 for the
imposition of restrictions on fundamental rights, is that they are
required to be prescribed by law, which, however, includes
executive‐made emergency regulations having an overriding effect
over ordinary legislation. As we have seen, even in older
instruments such as the ICCPR, restrictions have to meet
requirements other than prescription by law and include higher
thresholds of substantive justiLication, such as necessity in a
democratic society. While reference is made in Article 15 (7) to
‘the just requirements of the general welfare of a democratic
society’, this is set out as a separate ground of restriction rather
than as an inherent justiLicatory requirement of restrictions that
are aimed at securing national security.
6.3
 Restrictions
 on
 Fundamental
 Rights:
 International
Standards
The Siracusa Principles on Limitations and Derogations, based on
the ICCPR, are generally considered as representative of United
Nations and international best practice in this area (although the
Constitution of South Africa advances these basic standards into a
much more robust regime in many respects).
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