Chapter 2 • The Major Universal Human Rights Instruments and the Mechanisms for Their Implementation
v the condition of strict necessity: this condition means that the State party can only
take measures derogating from its “obligations under the ... Covenant to the extent
strictly required by the exigencies of the situation”; as compared to the ordinary
limitation provisions dealt with above, the condition of strict necessity compels a
narrow construction of the principle of proportionality, in that the legislative
measures taken must as such be strictly required by the exigencies of the emergency
situation; and, secondly, any individual measure taken on the basis of that
legislation must likewise be strictly proportionate. It is thus necessary to consider
whether the measures concerned are strictly required in order to deal with the
emergency situation. The Committee has emphasized in general that “measures
taken under article 4 are of an exceptional and temporary nature and may only last as
long as the life of the nation concerned is threatened”;27
v the condition of consistency with other international legal obligations: on the
basis of this condition, the Human Rights Committee is, in principle, authorized to
examine whether measures of derogation might be unlawful as being inconsistent
with other international treaties, such as, for instance, other treaties for the
protection of the individual or even international humanitarian law or customary
international law;
v the condition of non-discrimination: the measures of derogation may not
“involve discrimination solely on the ground of race, colour, sex, language, religion
or social origin” (art. 4(1) in fine). This is an important condition since it is
particularly in emergency situations that there is a risk of imposing discriminatory
measures which have no objective and reasonable justification;
v the condition of international notification: in order to avail itself of the right of
derogation, a State party must, lastly, also fulfil the conditions set out in article 4(3)
of the Covenant, by immediately submitting a notification of derogation to the
other States parties through the Secretary-General. In this notification it must
describe “the provisions from which it has derogated and ... the reasons by which it
was actuated”. A second notification must be submitted “on the date on which it
terminates such derogation”.
General Comment No. 29, which was adopted by the Human Rights
Committee in July 2001, provides more details as to the interpretation of the various
conditions laid down in article 4 of the Covenant. This Comment will be dealt with in
Chapter 16, which will provide a more comprehensive analysis of States’ right to derogate
from their international human rights obligations in certain exceptional situations.
In certain exceptional situations amounting to a threat to the life of the
nation, the States parties to the International Covenant on Civil and
Political Rights may derogate from their legal obligations incurred
thereunder to the extent “strictly required by the exigencies of the situation”.
Such derogations must also comply with the principles of non-derogable
rights, non-discrimination, consistency with the State’s other international
obligations and the principle of international notification.
27 General Comment No. 5, in United Nations Compilation of General Comments, p. 114, para. 3.
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