Seminar 5 – Derogations
Page 113-114 – Derogations
Law of state responsibility contemplates that a defence of necessity is available to states in limited
circumstances
Human Rights treaties have their owns exceptions, known as the derogations regime, which takes into
account special nature of the obligations
Some obligations can be suspended in times of emergency.
State of public emergency needs to be declared in advance and its existence notified to relevant
international authorities (such as the Secretary General of the UN as a depository of the ICCPR and
ICESCR).
State can only be declared where there is a threat to the life of the nation itself – high threshold that
will not be met by every single catastrophe.
HRCom General Comment 29 – not even armed conflict will automatically justify state of emergency
Article 15 ECHR – public emergency as ‘an exceptional situation of crisis or emergency’
Public emergency should only be invoked insofar and for as long as it is strictly necessary to return
situation to normal
General Comment 29 – human rights can be suspended only in order for the state to be able to
guarantee them as soon as the danger has passed. Cannot be used to achieve something separate
from the rights
Derogations should specify territorial and temporal reach
National emergencies can only suspended a limited set of derogable rights. Will depend on wording of
the treaty
Non derogable rights – ICCPR – Life (Art 6), torture (Art 7), Slavery (8(1) and (2)), imprisonment for
failure to fulfil a contractual obligation (Art 11), nullum crimen sine lege (Article 15), recognition of
persons under the law (Article 16), freedom of thought, conscience and religion (Article 18)
Derogations cannot be discriminatory and used only against 1 set of people
States and their courts still have to provide remedies for non-derogated rights that are violated
Human Rights Committee General Comment No.29 (31st August 2001)
On Article 4 ICCPR - In time of public emergency which threatens the life of the nation and the existence of
which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from
their obligations under the present Covenant to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their other obligations under international law and do
not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this
provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform
the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the
United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A
further communication shall be made, through the same intermediary, on the date on which it terminates such
derogation.
To claim state of emergency there must be a) a threat to the life of the nation and b) officially
proclaimed state of emergency. In cases where satisfied then the task of the HRCom to monitor laws
to ensure compliance with Art 4.
Page 113-114 – Derogations
Law of state responsibility contemplates that a defence of necessity is available to states in limited
circumstances
Human Rights treaties have their owns exceptions, known as the derogations regime, which takes into
account special nature of the obligations
Some obligations can be suspended in times of emergency.
State of public emergency needs to be declared in advance and its existence notified to relevant
international authorities (such as the Secretary General of the UN as a depository of the ICCPR and
ICESCR).
State can only be declared where there is a threat to the life of the nation itself – high threshold that
will not be met by every single catastrophe.
HRCom General Comment 29 – not even armed conflict will automatically justify state of emergency
Article 15 ECHR – public emergency as ‘an exceptional situation of crisis or emergency’
Public emergency should only be invoked insofar and for as long as it is strictly necessary to return
situation to normal
General Comment 29 – human rights can be suspended only in order for the state to be able to
guarantee them as soon as the danger has passed. Cannot be used to achieve something separate
from the rights
Derogations should specify territorial and temporal reach
National emergencies can only suspended a limited set of derogable rights. Will depend on wording of
the treaty
Non derogable rights – ICCPR – Life (Art 6), torture (Art 7), Slavery (8(1) and (2)), imprisonment for
failure to fulfil a contractual obligation (Art 11), nullum crimen sine lege (Article 15), recognition of
persons under the law (Article 16), freedom of thought, conscience and religion (Article 18)
Derogations cannot be discriminatory and used only against 1 set of people
States and their courts still have to provide remedies for non-derogated rights that are violated
Human Rights Committee General Comment No.29 (31st August 2001)
On Article 4 ICCPR - In time of public emergency which threatens the life of the nation and the existence of
which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from
their obligations under the present Covenant to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their other obligations under international law and do
not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this
provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform
the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the
United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A
further communication shall be made, through the same intermediary, on the date on which it terminates such
derogation.
To claim state of emergency there must be a) a threat to the life of the nation and b) officially
proclaimed state of emergency. In cases where satisfied then the task of the HRCom to monitor laws
to ensure compliance with Art 4.
