Thirteenth session (1981)
General comment No. 5: Article 4 (Derogations)
[General comment No. 5 has been replaced by general comment No. 29]
1.
Article 4 of the Covenant has posed a number of problems for the Committee when
considering reports from some States parties. When a public emergency which threatens the life of a
nation arises and it is officially proclaimed, a State party may derogate from a number of rights to
the extent strictly required by the situation. The State party, however, may not derogate from
certain specific rights and may not take discriminatory measures on a number of grounds. The State
party is also under an obligation to inform the other States parties immediately, through the
Secretary-General, of the derogations it has made including the reasons therefor and the date on
which the derogations are terminated.
2.
States parties have generally indicated the mechanism provided in their legal systems for the
declaration of a state of emergency and the applicable provisions of the law governing derogations.
However, in the case of a few States which had apparently derogated from Covenant rights, it was
unclear not only whether a state of emergency had been officially declared but also whether rights
from which the Covenant allows no derogation had in fact not been derogated from and further
whether the other States parties had been informed of the derogations and of the reasons for the
derogations.
3.
The Committee holds the view 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 and
that, in times of emergency, the protection of human rights becomes all the more important,
particularly those rights from which no derogations can be made. The Committee also considers that
it is equally important for States parties, in times of public emergency, to inform the other States
parties of the nature and extent of the derogations they have made and of the reasons therefor and,
further, to fulfil their reporting obligations under article 40 of the Covenant by indicating the nature
and extent of each right derogated from together with the relevant documentation.
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