The Derogation Process under International Law
Module 9: National Security
Most of the key human rights instruments allow a temporary derogation from certain human rights obligations in situations of national emergency. For example, article 4 of the ICCPR states:
“In a 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.”(1)
International Covenant on Civil and Political Rights (1966) at article 4
Article 4 then proceeds to list a number of articles that may not be derogated from, even in times of public emergency. These include the rights not to be enslaved or tortured, and the right to freedom of opinion. It does not, however, include the right to freedom of expression.
The United Nations Human Rights Committee (UNHRCtte) has devoted two of its General Comments to explaining, in detail, the meaning of article 4 and the procedure and scope of derogation. The more recent of these, General Comment No. 29, can be taken as an authoritative interpretation of derogation during states of emergency. There are a number of key points to note:
- The state of emergency must be publicly proclaimed according to domestic legal requirements, and should also be accompanied by notification to other State Parties via the UN Secretary General or other body that serves as the technical secretariat of the treaty, explaining why it is necessary.(2)
- The situation leading to derogation must be “a public emergency which threatens the life of the nation.”(3) In terms of General Comment No. 29, the threshold of threatening “the life of the nation” is a high one, and the UNHRCttee has been highly critical of derogations that have taken place in situations that appear to fall short of the article 4 requirements.(4)
- The UNHRCtte emphasises the importance of the principle that derogations should be limited “to the extent strictly required by the exigencies of the situation.”(5) Even in instances where some form of derogation may be warranted, it should be limited to what is strictly required and necessary in the circumstances.