States of Emergency - Centre for Policy Alternatives

cornerstone of the Convention, sets out States’ undertakings to
respect, protect and promote the rights established by the
Convention. Article 3 prohibits gender discrimination and Article
4 establishes the rules of derogation and the list of non‐derogable
rights.
Article 2 establishes a tripartite set of responsibilities in States in
respect of its treaty obligations under the ICCPR. Firstly, the State
undertakes the ‘negative’ obligation to respect human rights; that
is, to refrain from actions and omissions that contravene rights.
Secondly, the State must protect human rights, and involves
executive, legislative and judicial action to actively protect the
right of persons within its jurisdiction. Thirdly, the State is obliged
as a ‘positive’ duty to take measures to ensure the promotion,
enjoyment and fulLilment of human rights, including the creation
of an atmosphere conducive to this.
Article 4 (1) sets out the objective conditions that must be met,
where in exceptional circumstances a State may derogate from its
obligations under the Covenant. There must be a public
emergency, ofLicially proclaimed, that threatens the life of the
nation. Derogations must only be pursued to the extent strictly
required by the exigencies of the situation, must not be
inconsistent with the State’s other obligations under international
law and cannot undertake prohibited forms of discrimination.
Article 4 (2) lists the non‐derogable rights. Article 4 (3)
establishes the signiLicant obligation, that where a State avails
itself of the right of derogation, it must through the UN Secretary
General inform other States Parties to the Covenant, of the treaty
provisions from which it has derogated and the reasons by which
it was actuated. A similar communication must be made at the
termination of the period of derogation. It will be seen below that
the emergency regulations currently in force (as well as the PTA)
223