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Article 4: States of Emergency 2001, para. 11
- Paragraph text
- The enumeration of non-derogable provisions in article 4 is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law. The proclamation of certain provisions of the Covenant as being of a non derogable nature, in article 4, paragraph 2, is to be seen partly as recognition of the peremptory nature of some fundamental rights ensured in treaty form in the Covenant (e.g., articles 6 and 7). However, it is apparent that some other provisions of the Covenant were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency (e.g., articles 11 and 18). Furthermore, the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, paragraph 2. States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
- Date added
- Aug 19, 2019
Paragraph
Nature of the General Legal Obligation Imposed on States Parties to the Covenant - replaces GC No. 3 2004, para. 11
- Paragraph text
- As implied in General Comment 29, the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2004
- Date added
- Aug 19, 2019
Paragraph
Article 4: States of Emergency 2001, para. 13b
- Paragraph text
- [In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under article 4. Some illustrative examples are presented below.] The prohibitions against taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
- Date added
- Aug 19, 2019
Paragraph
Article 9: Liberty and security of person 2014, para. 64
- Paragraph text
- With regard to article 4 of the Covenant, the Committee first observes that, like the rest of the Covenant, article 9 applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While rules of international humanitarian law may be relevant for the purposes of the interpretation of article 9, both spheres of law are complementary, not mutually exclusive. Security detention authorized and regulated by and complying with international humanitarian law in principle is not arbitrary. In conflict situations, access by the International Committee of the Red Cross to all places of detention becomes an essential additional safeguard for the rights to liberty and security of person.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2014
- Date added
- Aug 19, 2019
Paragraph
Article 19: Freedoms of opinion and expression 2011, para. 5
- Paragraph text
- Taking account of the specific terms of article 19, paragraph 1, as well as the relationship of opinion and thought (article 18), a reservation to paragraph 1 would be incompatible with the object and purpose of the Covenant. Furthermore, although freedom of opinion is not listed among those rights that may not be derogated from pursuant to the provisions of article 4 of the Covenant, it is recalled that, "in those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under article 4". Freedom of opinion is one such element, since it can never become necessary to derogate from it during a state of emergency.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Article 4: States of Emergency 2001, para. 17
- Paragraph text
- In paragraph 3 of article 4, States parties, when they resort to their power of derogation under article 4, commit themselves to a regime of international notification. A State party availing itself of the right of derogation must immediately inform the other States parties, through the United Nations Secretary General, of the provisions it has derogated from and of the reasons for such measures. Such notification is essential not only for the discharge of the Committee's functions, in particular in assessing whether the measures taken by the State party were strictly required by the exigencies of the situation, but also to permit other States parties to monitor compliance with the provisions of the Covenant. In view of the summary character of many of the notifications received in the past, the Committee emphasizes that the notification by States parties should include full information about the measures taken and a clear explanation of the reasons for them, with full documentation attached regarding their law. Additional notifications are required if the State party subsequently takes further measures under article 4, for instance by extending the duration of a state of emergency. The requirement of immediate notification applies equally in relation to the termination of derogation. These obligations have not always been respected: States parties have failed to notify other States parties, through the Secretary-General, of a proclamation of a state of emergency and of the resulting measures of derogation from one or more provisions of the Covenant, and States parties have sometimes neglected to submit a notification of territorial or other changes in the exercise of their emergency powers. Sometimes, the existence of a state of emergency and the question of whether a State party has derogated from provisions of the Covenant have come to the attention of the Committee only incidentally, in the course of the consideration of a State party's report. The Committee emphasizes the obligation of immediate international notification whenever a State party takes measures derogating from its obligations under the Covenant. The duty of the Committee to monitor the law and practice of a State party for compliance with article 4 does not depend on whether that State party has submitted a notification.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
- Date added
- Aug 19, 2019
Paragraph
Article 4: States of Emergency 2001, para. 14
- Paragraph text
- Article 2, paragraph 3, of the Covenant requires a State party to the Covenant to provide remedies for any violation of the provisions of the Covenant. This clause is not mentioned in the list of non-derogable provisions in article 4, paragraph 2, but it constitutes a treaty obligation inherent in the Covenant as a whole. Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is effective.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
- Date added
- Aug 19, 2019
Paragraph
Article 4: States of Emergency 2001, para. 12
- Paragraph text
- In assessing the scope of legitimate derogation from the Covenant, one criterion can be found in the definition of certain human rights violations as crimes against humanity. If action conducted under the authority of a State constitutes a basis for individual criminal responsibility for a crime against humanity by the persons involved in that action, article 4 of the Covenant cannot be used as justification that a state of emergency exempted the State in question from its responsibility in relation to the same conduct. Therefore, the recent codification of crimes against humanity, for jurisdictional purposes, in the Rome Statute of the International Criminal Court is of relevance in the interpretation of article 4 of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
- Date added
- Aug 19, 2019
Paragraph
Article 4: States of Emergency 2001, para. 10
- Paragraph text
- Although it is not the function of the Human Rights Committee to review the conduct of a State party under other treaties, in exercising its functions under the Covenant the Committee has the competence to take a State party's other international obligations into account when it considers whether the Covenant allows the State party to derogate from specific provisions of the Covenant. Therefore, when invoking article 4, paragraph 1, or when reporting under article 40 on the legal framework related to emergencies, States parties should present information on their other international obligations relevant for the protection of the rights in question, in particular those obligations that are applicable in times of emergency. In this respect, States parties should duly take into account the developments within international law as to human rights standards applicable in emergency situations.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
- Date added
- Aug 19, 2019
Paragraph
Article 4: States of Emergency 2001, para. 9
- Paragraph text
- Furthermore, article 4, paragraph 1, requires that no measure derogating from the provisions of the Covenant may be inconsistent with the State party's other obligations under international law, particularly the rules of international humanitarian law. Article 4 of the Covenant cannot be read as justification for derogation from the Covenant if such derogation would entail a breach of the State's other international obligations, whether based on treaty or general international law. This is reflected also in article 5, paragraph 2, of the Covenant according to which there shall be no restriction upon or derogation from any fundamental rights recognized in other instruments on the pretext that the Covenant does not recognize such rights or that it recognizes them to a lesser extent.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
- Date added
- Aug 19, 2019
Paragraph
Article 4: States of Emergency 2001, para. 6
- Paragraph text
- The fact that some of the provisions of the Covenant have been listed in article 4 (paragraph 2), as not being subject to derogation does not mean that other articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists. The legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- N.A.
- Year
- 2001
- Date added
- Aug 19, 2019
Paragraph
Article 4: States of Emergency 2001, para. 2
- Paragraph text
- 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.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- N.A.
- Year
- 2001
- Date added
- Aug 19, 2019
Paragraph
Article 4: States of Emergency 2001, para. 1
- Paragraph text
- 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.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 10
- Paragraph text
- 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. 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.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
Paragraph
Article 4: Derogations 1981, para. 3
- Paragraph text
- 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.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
Article 4: Derogations 1981, para. 2
- Paragraph text
- 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.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
Article 4: Derogations 1981, para. 1
- Paragraph text
- 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.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
17 shown of 17 entities