Chapter 2 • The Major Universal Human Rights Instruments and the Mechanisms for Their Implementation 2.1.4 Permissible derogations from legal obligations The question of derogations from international legal obligations in the human rights field will be given a more thorough treatment in Chapter 16 of this Manual, but it may be useful at this early stage briefly to outline the strict conditions that govern the right of the States parties to resort to derogations from their legal obligations under article 4 of the Covenant: v the condition of a “public emergency which threatens the life of the nation”: the State party envisaging a derogation must be facing a situation of exceptional threat that jeopardizes the nation’s life, thus excluding minor or even more serious disturbances that do not affect the functioning of the State’s democratic institutions or people’s lives in general; v the condition of official proclamation: the existence of a public emergency which threatens the life of the nation must be “officially proclaimed” (art. 4(1)); as was explained during the drafting of article 4, the purpose thereof was “to prevent States from derogating arbitrarily from their obligations under the Covenant when such an action was not warranted by events”;23 v the condition of non-derogability of certain obligations: article 4(2) of the Covenant enumerates some rights from which no derogation can ever be made even in the direst of situations. These rights are: the right to life (art. 6), the right to freedom from torture or cruel, inhuman or degrading treatment or punishment (art. 7), the right to freedom from slavery, the slave-trade and servitude (art. 8(1) and (2)), the right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation (art. 11), the prohibition of ex post facto laws (art. 15), the right to legal personality (art. 16) and, lastly, the right to freedom of thought, conscience and religion (art. 18). However, it follows from the work of the Human Rights Committee that it is not possible to conclude a contrario that, because a specific right is not listed in article 4(2), it can necessarily be derogated from. Consequently, some rights may not be derogated from because they are considered to be “inherent to the Covenant as a whole”; one such example is the right to judicial remedies in connection with arrests and detentions as set out in article 9(3) and (4);24 others may also be non-derogable because they are indispensable to the effective enjoyment of the rights that are explicitly listed in article 4(2), such as the right to a fair trial for persons threatened with the death penalty.25 The Committee has further held under the Optional Protocol that “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception”;26 23 UN doc. E/CN.4/SR.195, p. 16, para. 82; explanation given by Mr. Cassin of France. 24 See in particular the reply of the Human Rights Committee to the request by the Sub-Commission on Prevention of Discrimination and Protection of Minorities that the Committee consider a draft protocol for the purpose of strengthening the right to a fair trial, UN doc. GAOR, A/49/40(vol. I), pp. 4-5, paras. 22-25. 25 Cf. article 6(2) which provides that the death penalty cannot be imposed “contrary to the provisions of the present Covenant”; as to the case-law, see e.g. Communication No. 16/1977, D. Monguya Mbenge v. Zaire (views adopted on 25 March 1983), GAOR, A/38/40, p. 139, para. 17. The requirement concerns “both the substantive and the procedural law in the application of which the death penalty was imposed”. 26 Communication No. 263/1987, M. González del Río v. Peru (views adopted on 28 October 1992, at the 46th session), GAOR, A/48/40 (vol. II), p. 20, para. 5.2; emphasis added. 36 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers