CCPR/C/21/Rev.1/Add.11
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GENERAL COMMENT ON ARTICLE 4
(adopted at the 1950th meeting, on 24 July 2001)
1.
Article 4 of the Covenant is of paramount importance for the system of protection for
human rights under the Covenant. On the one hand, it allows for a State party unilaterally to
derogate temporarily from a part of its obligations under the Covenant. On the other hand,
article 4 subjects both this very measure of derogation, as well as its material consequences, to a
specific regime of safeguards. The restoration of a state of normalcy where full respect for the
Covenant can again be secured must be the predominant objective of a State party derogating
from the Covenant. In this general comment, replacing its General Comment No 5, adopted at
the thirteenth session (1981), the Committee seeks to assist States parties to meet the
requirements of article 4.
2.
Measures derogating from the provisions of the Covenant must be of an exceptional and
temporary nature. Before a State moves to invoke article 4, two fundamental conditions must be
met: the situation must amount to a public emergency which threatens the life of the nation, and
the State party must have officially proclaimed a state of emergency. The latter requirement is
essential for the maintenance of the principles of legality and rule of law at times when they are
most needed. When proclaiming a state of emergency with consequences that could entail
derogation from any provision of the Covenant, States must act within their constitutional and
other provisions of law that govern such proclamation and the exercise of emergency powers; it
is the task of the Committee to monitor the laws in question with respect to whether they enable
and secure compliance with article 4. In order that the Committee can perform its task, States
parties to the Covenant should include in their reports submitted under article 40 sufficient and
precise information about their law and practice in the field of emergency powers.
3.
Not every disturbance or catastrophe qualifies as a public emergency which threatens the
life of the nation, as required by article 4, paragraph 1. During armed conflict, whether
international or non-international, rules of international humanitarian law become applicable and
help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to
prevent the abuse of a State’s emergency powers. The Covenant requires that even during an
armed conflict measures derogating from the Covenant are allowed only if and to the extent that
the situation constitutes a threat to the life of the nation. If States parties consider invoking
article 4 in other situations than an armed conflict, they should carefully consider the
justification and why such a measure is necessary and legitimate in the circumstances. On a
number of occasions the Committee has expressed its concern over States parties that appear to
have derogated from rights protected by the Covenant, or whose domestic law appears to allow
such derogation in situations not covered by article 4.1
4.
A fundamental requirement for any measures derogating from the Covenant, as set forth
in article 4, paragraph 1, is that such measures are limited to the extent strictly required by the
exigencies of the situation. This requirement relates to the duration, geographical coverage and
material scope of the state of emergency and any measures of derogation resorted to because of
the emergency. Derogation from some Covenant obligations in emergency situations is clearly
distinct from restrictions or limitations allowed even in normal times under several provisions of
the Covenant.2 Nevertheless, the obligation to limit any derogations to those strictly required by