CCPR/C/21/Rev.1/Add.6
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10.
The Committee has further examined whether categories of reservations may
offend the "object and purpose" test. In particular, it falls for
consideration as to whether reservations to the non-derogable provisions of
the Covenant are compatible with its object and purpose. While there is no
hierarchy of importance of rights under the Covenant, the operation of certain
rights may not be suspended, even in times of national emergency. This
underlines the great importance of non-derogable rights. But not all rights
of profound importance, such as articles 9 and 27 of the Covenant, have in
fact been made non-derogable. One reason for certain rights being made
non-derogable is because their suspension is irrelevant to the legitimate
control of the state of national emergency (for example, no imprisonment for
debt, in article 11). Another reason is that derogation may indeed be
impossible (as, for example, freedom of conscience). At the same time, some
provisions are non-derogable exactly because without them there would be no
rule of law. A reservation to the provisions of article 4 itself, which
precisely stipulates the balance to be struck between the interests of the
State and the rights of the individual in times of emergency, would fall in
this category. And some non-derogable rights, which in any event cannot be
reserved because of their status as peremptory norms, are also of this
character - the prohibition of torture and arbitrary deprivation of life are
examples. 4/ While there is no automatic correlation between reservations
to non-derogable provisions, and reservations which offend against the object
and purpose of the Covenant, a State has a heavy onus to justify such a
reservation.
11.
The Covenant consists not just of the specified rights, but of important
supportive guarantees. These guarantees provide the necessary framework for
securing the rights in the Covenant and are thus essential to its object and
purpose. Some operate at the national level and some at the international
level. Reservations designed to remove these guarantees are thus not
acceptable. Thus, a State could not make a reservation to article 2,
paragraph 3, of the Covenant, indicating that it intends to provide no
remedies for human rights violations. Guarantees such as these are an
integral part of the structure of the Covenant and underpin its efficacy. The
Covenant also envisages, for the better attainment of its stated objectives, a
monitoring role for the Committee. Reservations that purport to evade that
essential element in the design of the Covenant, which is also directed to
securing the enjoyment of the rights, are also incompatible with its object
and purpose. A State may not reserve the right not to present a report and
have it considered by the Committee. The Committee’s role under the Covenant,
whether under article 40 or under the Optional Protocols, necessarily entails
interpreting the provisions of the Covenant and the development of a
jurisprudence. Accordingly, a reservation that rejects the Committee’s
competence to interpret the requirements of any provisions of the Covenant
would also be contrary to the object and purpose of that treaty.
12.
The intention of the Covenant is that the rights contained therein should
be ensured to all those under a State party’s jurisdiction. To this end
4/ Reservations have been entered to both article 6 and article 7, but
not in terms which reserve a right to torture or to engage in arbitrary
deprivation of life.