Dr. Angelika Siehr, LL.M. (Yale)
State practice with respect to derogations
I. Introduction
II. Article 4 of the ICCPR in the Light of State Practice
1. In General
2. Legal Requirements for Derogations under article 4 of the ICCPR
a) Existence of a Public Emergency Threatening the Life of the Nation
b) Official Proclamation of a State of Emergency
c) Duty of Notification
3. Limits to Derogation Measures in Accordance with article 4 of the ICCPR
a) Non-Derogable Rights
b) Proportionality
c) Compatibility with other Obligations under International Law
d) Prohibition of Discriminatory Measures
III. “War against International Terrorism” under article 4 of the ICCPR
IV. Outlook
I. Introduction
Article 4 is a key provision of the ICCPR and, at the same time, its implementation is a
touchstone for the crucial question whether human rights are taken seriously in the most
critical of human rights situations, in a state of public emergency. Since article 4 of the
ICCPR regulates the (admittedly paradoxical) possibility of legally suspending the exercise of
certain human rights as the only means of guaranteeing the effective enjoyment of the most
fundamental ones,1 it is obvious that this provision is open to misuse. Indeed, experience
shows that public emergencies are commonly characterized by severe human rights
violations.2 On the other hand, the protection of human rights through States parties depends
on the maintenance of a constitutional, democratic order which effectively guarantees human
rights and this needs to be defended in case of public emergency. International law has to
cope with the challenge of finding a middle course between the recognition of the legitimate
right of sovereign States to defend their constitutional, democratic order and the prevention of
misuse of the tool of emergency rights.3 For this reason article 4 of the Covenant allows for a
State party unilaterally to derogate temporarily from parts of its obligations under the
1
L. Despouy, The Administration of Justice and the Human Rights of Detainees: Question of Human
Rights and States of Emergency, 10th annual Report for the Sub-Commission on Prevention of
Discrimination and Protection of Minorities of the Commission on Human Rights of the UN
Economic and Social Council, E/CN.4/Sub.2/1997/19, June 23, 1997, para. 42; see also R. Lorz,
Possible Derogations from Civil and Political Rights under Article 4 of the ICCPR, Isr. HRY, Vol. 33
(2003), 85. For other paradoxical aspects of the protection of human rights through nation states and
the attempts of public international law to take, if possible, countermeasures, see A.. Siehr, Die
Deutschenrechte des Grundgesetzes. Bürgerrechte im Spannungsfeld von Menschenrechtsidee und
Staatsmitgliedschaft, 2001, 132 ff., 142 ff., 147 ff., 302 ff.
2
D. McGoldrick, The Human Rights Committee. Its Role in the Development of the International
Covenant on Civil and Political Rights, 1994, 301, para. 7.2. with further references.
3
Manfred Nowak, U.N. Covenant on Civil and Political Rights. CCPR Commentary, 1993, Art. 4,
para. 2, 3.
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Dr. Angelika Siehr, LL.M. (Yale)
Covenant, but subjects both this very measure of derogation, as well as its material
consequences, to a specific regime of safeguards.
II. Art. 4 of the ICCPR in the Light of State Practice
1. In General
By the end of the year 2003 there have been 151 States parties and 67 signatories to the
ICCPR.4 Out of the impressive number of 151 States parties 26 States parties have notified a
state of emergency to the Secretary General of the United Nations, starting in 1979, 5 and none
of them did so just once – except for Israel. But in fact the notification of Israel, received by
the Secretary General on 3 October 1991, contained the information that “Since its
establishment, the State of Israel has been the victim of continuous threats and attacks on its
very existence as well as on the life and property of its citizens (…).” 6 Therefore the state of
emergency which was proclaimed in May 1948 has remained in force ever since. This is still
true today, notably in the occupied territories. The measure is extended regularly for 12
months.7 On the other hand Peru has transmitted 84 notifications under article 4 of the
Covenant concerning the establishment, extension or termination of a state of emergency in
different parts of the country, the first one dated 18 March 1983, the latest one (up to the end
of December 2003!) has been transmitted to the Secretary General 1 December 2003. In
addition, it must be mentioned that some of these notifications do not simply concern the
proclamation of just one state of emergency, they rather give a report about a whole bunch of
proclamations of this kind. Certainly extreme is the case of a notification, received by the
Secretary General 19 March 1992, which comprised 64 different declarations or extensions of
a state of emergency in different Provinces of the Peru during August 1990 and March 1992,
mostly with a duration of 60 days, sometimes only of 30 days.
In 2003 there has been only one “new” notification of derogation from rights guaranteed by
the Covenant: On 13 March 2003, the Secretary General received from the Government of
Serbia and Montenegro a notification, made under article 4 of the Covenant, concerning the
declaration of a state of emergency in the Republic.8 Of course, this does not mean that there
has been no state of emergency in this region before: Two times the predecessor State of
Serbia and Montenegro, the former Yugoslavia, notified the existence of a state of emergency
4
See Multilateral Treaties Deposited with the Secretary-General. Status as at 31 December 2003, Vol.
I, Part I, Chapters I to XI, New York 2003, 169 f..
5
The Covenant entered into force Mar. 23, 1976, but the Secretary General did not receive a
notification of a state of emergency until 30 July 1979 (from Uruguay).
6
See Multilateral Treaties, supra note 4, Status as at 31 December 2002, 191.
7
See List of States which have proclaimed or continued a state of emergency. Report of the Office of
the High Commissioner for Human Rights submitted in accordance with Commission on Human
Rights decision 1998/108; E/CN.4/Sub.2/2003/39, 16 June 2003, 3 f. and E/CN.4/Sub.2/2001/6, 12
June 2001, 3.
8
See Multilateral Treaties, supra note 4. Status as at 31 December 2003, 209. The rights from which
Serbia and Montenegro has derogated are articles 9, 12, 14, 17, 19, 21 and 22 (2) ICCPR.
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Dr. Angelika Siehr, LL.M. (Yale)
to the Secretary General.9 Nor does it mean that there are no other States in which a state of
emergency – whether or not in compliance with article 4 of the Covenant – has continued or
has been newly proclaimed in 2003, either by non-member States or by States parties who fail
to comply with their obligation of notification under article 4 (3) of the ICCPR.
In order to get a clearer picture of the situation the Commission on Human rights has
requested the Office of the United Nations High Commissioner for Human Rights to submit
pursuant to the Commission’s decision 1998/108 for the fifty-first session of the SubCommission on the Prevention of Discrimination and Protection of Minorities, and every
second year thereafter, a list of States which have proclaimed or continued a state of
emergency. In 2003 that list included 9 States in which a state of emergency had been
proclaimed before June 2001 and continued thereafter (Algeria, Egypt, Israel, Pakistan, Sierra
Leone, Sri Lanka, Syrian Arab Republic, Sudan and Turkey) and 11 States in which a state of
emergency was proclaimed between June 2001 and May 2003 (Argentina, Columbia,
Ecuador, Ghana, Guatemala, Indonesia, Liberia, Nepal, Peru, Serbia and Montenegro and the
United Kingdom of Great Britain and Northern Ireland).10 Against this factual background we
will deal now with the question which are the legal prerequisites and limits of derogation
measures under article 4 of the Covenant.
2. Legal Requirements for Derogations under Art. 4 of the ICCPR
When a public emergency which threatens the life of the nation arises and it is officially
proclaimed, a State party may, according to article 4 (1) of the ICCPR, derogate from a
number of rights to the extent strictly required by the situation. The State party, however, is
not allowed to derogate from certain specific rights, namely those listed in article 4 (2) of the
Convention, and may not take discriminatory measures on a number of grounds. According to
article 4 (3) of the ICCPR the State party is also obliged to inform the other States parties
immediately, through the Secretary General of the United Nations, of the provisions from
which it has derogated and of the reasons by which it was actuated. In the same way it has to
notify the date on which the derogations are terminated. Among regional human rights
treaties, the 1950 European Human Rights Convention (ECHR) as well as the 1969 American
Convention on Human Rights (ACHR) contain similar provisions (article 15 of the ECHR,
article 27 of the ACHR); the terms in which they regulate the measures open to States in
public emergencies differ only slightly.11
a) Existence of a Public Emergency Threatening the Life of the Nation (Art. 4 (1) of the
ICCPR)
9
Multilateral Treaties, supra note 4. Status as at 31 December 1996, 156: the first notification dated
14 April 1989, the second one dated 19 March 1990.
10
List of States supra note 7, E/CN.4/Sub.2/2003/39, 3-8. It must be mentioned that Indonesia and
Liberia are no State parties to the Covenant (although Liberia belongs to the signatories), and that
Turkey became a State party only on 23 September 2003, but the state of emergency was lifted on 30
November 2002.
11
For a comprehensive analysis see M. Maslaton, Notstandsklauseln im Regionalen
Menschenrechtsschutz, 2002.
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Dr. Angelika Siehr, LL.M. (Yale)
The basic prerequisite of any human rights derogation stated in article 4 of the Covenant is a
“time of public emergency which threatens the life of the nation”. In contrast to article 15 of
the ECHR, article 27 of the ACHR and the original drafts in the Human Rights Commission
article 4 of the ICCPR refers only to “public emergency”, the original express reference to
“war” was struck to make clear that the United Nations according to article 2 (4) of its Charter
do not accept war. However, this does not mean that derogations are not permitted in times of
war: During the drafting of article 4 of the ICCPR it has been emphasized several times 12 that
an armed, international conflict still represents the prototype of a public emergency that
threatens the life of the nation.13 But so far only three States have justified derogations from
the Covenant by the reason of external aggression In its notification, dated 11 November
1985, Nicaragua cited military aggression of the United States of America to justify the
derogation from certain of the provisions of the Covenant for a period of one year starting on
30 October 1985.14 Azerbaijan cited aggression by the armed forces of Armenia threatening
the very existence of the Azerbaijani State to justify the proclamation of the state of
emergency for a period of 60 days as from 3 April 1993.15 And Israel mentioned in its
notification, received 3 October 1991, threats of war and armed attacks.16
In practice, States have mostly referred to internal difficulties like insurrectional situations
(Algeria, Ecuador), vandalism and the use of firearms (Argentina), serious political and social
disturbances (Bolivia, former Yugoslavia), terrorist activities (Chile, Colombia, Israel, Nepal;
Peru, United Kingdom of Great Britain and Northern Ireland), subversive activities (Ecuador,
Bolivia), serious internal unrest caused by an economic crisis (Ecuador; similar Bolivia:
general strike, hyperinflationary crisis), natural disasters (Guatemala: Hurricane Mitch;
Ecuador: severe storm), outbreaks of violence, clashes between demonstrators and units of
defence forces (Panama), acts of sabotage (Peru, Sri Lanka), violence caused by drug
traffickers (Colombia, Peru), the need to ensure the rational use of national resources (Peru),
the need to avert a civil war, economic anarchy as well as destabilization of state and social
structures (Poland), violent nationalistic clashes (Russian Federation), civil war, a very
chaotic socio-economic and political situation, lawlessness and armed robbery (Sudan), the
12
See E/CN.4/SR.126, 6, SR. 330,4; A/2929, 23 (§ 39); A/C.3/SR.1260, 257
Cf. Nowak supra note 3, Art. 4, para. 12; S. Schmahl, Derogation von
Menschenrechtsverpflichtungen in Notstandslagen, in: D. Fleck (ed.), Rechtsfragen der
Terrorismusbekämpfung durch Streitkräfte, 2004, 125, 126, both with further references.
14
Cf. Nicaragua, Second periodic report, 29 November 1988, Official Records of the Human Rights
Committee 1989/90, Vol. II, 185 ff., CCPR/C/42/Add.8, para. 27 ff., 53 ff., 160 ff.; see also
Multilateral Treaties, supra note 4, Status at 31 December 2002, 192.
15
The Secretary General received the notification on 16 April 1993, cf. Multilateral Treaties supra
note 4. Status at 31 December 2002, 185.
16
As Israel points out those attacks have taken the form of threats of war, of actual armed attacks, and
campaigns of terrorism resulting in the murder of and injury of human beings, cf. Multilateral Treaties
supra note 4. Status at 31 December 2002, 191.
13
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Dr. Angelika Siehr, LL.M. (Yale)
threat from international terrorism (United Kingdom of Great Britain and Northern Ireland),
the attempt to assassinate the President of the Republic (Venezuela).17
Pursuant to article 4 (3) of the Covenant States parties are obliged to inform the other States
parties, through the Secretary General, inter alia, of the reasons by which derogations from
provisions of the Covenant were actuated. The Human Rights Committee (HRC) has from the
outset in the exercise of its powers to study, report and make general comments on States
parties’ reports under article 40 of the Covenant also examined whether States parties comply
with article 4 of the Covenant. If we consider the above-mentioned reasons given by States
parties in their notifications under article 4 (3) of the Covenant it cannot surprise that the
Committee has not always been satisfied by them in terms of a justification for a (prolonged)
state of emergency.18 Some of the formulations are very vague and abstract. This becomes
even more obvious in view of the notification of El Salvador, dated 31 July 1985: It refers to
the “need to maintain a climate of peace and tranquillity, which has been disturbed through
the commission of acts designed to create a state of instability and social unrest which
affected the economy and public peace by persons seeking to obstruct the process of structural
change, thus seriously disrupting public order”.19 Equally vague is the notification of Trinidad
and Tobago, dated 11 August 1995, which states that “action has been taken or is immediately
threatened by persons or bodies of persons of such nature and on so extensive scale as to be
likely to endanger the public safety or to deprive the community of services essential to life”.
Some notifications of States parties transmitted to the Secretary General under article 4 (3) of
the Covenant do not mention any reason at all like the ones of Guatemala (dated 26 July
2001), Namibia (dated 5 August 1999),20 Serbia and Montenegro (dated 12 March 2003),
Suriname (date of receipt 18 March 1991), and Uruguay (date of receipt 30 July 1979).21
Article 4 of the ICCPR has also been considered in a number of the Committee’s views under
article 5 (4) of the Optional Protocol to the ICCPR (OP). Several of those views related to the
17
Cf. Multilateral Treaties supra note 4. Status as at 31 December 2002, 185-206; s. also
CCPR/C/2/Rev.3; especially for the former Yugoslavia see Multilateral Treaties (n. ). Status as at 31
December 1996, 156: “disorders which led to the loss of human lives and which had threatened the
established social system”.
18
Cf. e.g. Colombia (1997), CCPR/C/79/Add.76, para. 25: Here the Committee expresses its concern
that resort to declaration of status of emergency is still frequent and seldom in conformity with article
4 (2) of the ICCPR. In view of the prolonged state of emergency in Chile the HRC has justified doubts
as to the existence of a state of emergency threatening the life of the nation, see CCPR/C/SR. 128, §§
17, 40; A/34/40, paras. 17, 29. And it has also expressed its deep concern at the continued state of
emergency prevailing in Israel, see CCPR/C/79/Add.93, para. 11.
19
Cf. Multilateral Treaties supra note 4. Status as at 31 December 2002, 191.
20
Namibia indicated in its notification that the derogation measures were prompted by circumstances
arisen in the Caprivi region causing a public emergency threatening the life of the nation and the
constitutional order” (cf. Multilateral Treaties supra note 4. Status as at 31 December 2002, 191).This
cannot be seen as information about the reason, it merely reiterates the text of article 4 (1) of the
Covenant.
21
For references concerning all States mentioned in this paragraph see Cf. Multilateral Treaties supra
note 4. Status as at 31 December 2002, 185-206; especially for Serbia and Montenegro, see ibid.,
Status as at 31 December 2003, 209.
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Dr. Angelika Siehr, LL.M. (Yale)
situation in Uruguay where multiple violations of rights under the Covenant have been
alleged. The communications have generally concerned the application of “prompt security
measures” under the state of emergency in Uruguay. In the Ramirez v. Uruguay the HRC
stated that “the Covenant (article 4) does not allow national measures derogating from any of
its provisions except in strictly defined circumstances, and that the Government has not made
any submission of fact or law to justify such derogation.”22 In the Landinelli Silva v. Uruguay
case23 where candidates for elective office had been deprived of their right to engage in any
activities of a political nature, the Committee made once again clear that it needs full and
comprehensive information in order to assess whether a situation of the kind described in
article 4 (1) of the Covenant exists and that a Government cannot evade its obligations under
the Covenant simply by proclaiming a state of emergency.
In its very elaborated General Comment No. 29 on States of Emergency, adopted in 2001,
which replaces the rather brief General Comment No. 5 on Derogations of Rights, adopted in
1981, the Committee reminds all States parties of the fact that not every disturbance or
catastrophe qualifies as a public emergency which threatens the life of the nation, as required
by article 4 (1) of the ICCPR.24 Already the so-called “Siracusa Principles”, developed at a
Conference of Experts in Siracusa in spring 1984, state that, “Economic difficulties per se
cannot justify derogation measures”.25 Now the Committee emphasizes that especially 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.” It points out that on a number of occasions it 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 4.26
b) Official Proclamation of a State of Emergency (Art. 4 (1) of the ICCPR)
22
Communication No. R. 1/ 4 (13 February 1977), UN Doc. Supp. No. 40 (A/35/40) at 121 (1980),
para. 17; in para. 18 the HRC comes to the conclusion that articles 7, 9 (1) (4), 10 (1), and 14 (3) of the
ICCPR have been violated in view of the detention of Mr. Ramirez, the alleged torture and the fact
that he was barred from habeas corpus and no remedies had been available to him.
23
Communication No. R.8/34 (May 30, 1978), UN Doc. Supp. No. 40 (A/36/40) at 130 (1981), para.
8.3; see also McGoldrick supra note 2, 312 f., para. 7.37-7.41; Lorz, supra note 1, 90.
24
General Comment No. 29: States of emergency (Article 4), adopted at the 1950 meeting, on 24 July
2001, CCPR/C/21/Rev,1/Add.11, 31 August 2001, para. 3; concerning the function of general
comments as an instrument used by organs of implementation see Eckart Klein, General Comments.
Zu einem eher unbekannten Instrument des Menschenrechtsschutzes, in: J. Ipsen / E. Schmidt-Jortzig
(eds.)Recht – Staat – Gemeinwohl, Festschrift für D. Rauschning, 2001, 301 ff.; see also C.
Tomuschat, Human Rights Between Idealism and Realism, 2003, 156-158.
25
See No. 41 of the Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights, E/CN.4/1985/4, 7.
26
The Committee refers here to the following comments/concluding observations: United Republic of
Tanzania (1992), CCPR/C/79/Add.12, para. 7; Dominican Republic (1993), CCPR/C/79/Add.18, para.
4; United Kingdom of Great Britain and Northern Ireland (1995), CCPR/C/79/Add.55, para. 23; Peru
(1996), CCPR/C/79/Add.67, para. 11; Bolivia (1997), CCPR/C/79/Add.74, para. 14; Colombia (1997),
CCPR/C/79/Add.76, para. 25; Lebanon (1979), CCPR/C/78/Add.12, para. 10; Uruguay (1998),
CCPR/C/79/Add.90, para. 8; Israel (1998), CCPR/C/79/Add.93, para. 11.
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Dr. Angelika Siehr, LL.M. (Yale)
In contrast to emergency clauses in regional human rights conventions, article 4 of the ICCPR
states that a State Party is only allowed to derogate from provisions of the Covenant when the
existence of an public emergency “is officially proclaimed”. In other words: prior official
proclamation is a conditio sine qua non for the application of article 4. This condition is
designed to force derogating States parties to act openly from the outset of the emergency and
to delegitimize after-the-fact justifications for violations of human rights.27 At the same time
it serves domestic supervision, in particular, by the legislative and judicial branches. 28 In this
sense the HRC states in its General Comment No. 29 that this requirement is “essential for the
maintenance of the principle of legality and rule of law at times when they are most needed.
(…) States must act within their constitutional and other provisions of law that govern (…)
the exercise of emergency powers; it is the task of the Committee to monitor the laws in
question with respect 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.”29
c) Duty of Notification (Art. 4 (3) of the ICCPR)
The restrictions of the emergency clause are effective only when their observance is subject to
international supervision. Therefore article 4 (3) of the Covenant requires that a State party
availing itself to the right of derogation shall immediately inform the other States parties to
the Covenant, through the Secretary General, of the provisions from which it has derogated
and the reason for these measures. Members of the Committee have consistently referred to
the requirements of article 4 (3) of the Covenant and stressed that they are not a “mere
formality”30. In addition, not only the Siracusa Principles 44 to 47 but also the General
Comment No. 29 puts emphasis on the importance of an immediate, comprehensive
notification by a derogating State party which should include full information about the
measures taken, a clear explanation of the reasons and full documentation regarding the
applicable law.31 In a number of occasions members of the HRC have indicated that
notifications have not met the requirements of article 4 (3) of the Covenant: States parties
have failed to notify the other States parties, through the Secretary General, the proclamation
of a state of emergency and the resulting measures of derogation from provisions of the
Covenant, or of territorial or other changes in the exercise of their emergency powers. 32 For
27
Lorz, supra note 1, 91 f.
Nowak supra note 3, Art. 4, para. 17.
29
General Comment No. 29, supra note 24, para. 2.
30
SR 469 para. 9 (Tomuschat on El Salvador); cf. also SR 355 para. 24 (Prado-Vallejo on Uruguay).p.
31
Siracusa Principles, supra note 25, 7-8; General Comment No. 29, supra note 24, para. 17.
32
Cf. comments/concluding observations on Peru (1992) CCPR/C/79Add.8, para.10; Ireland (1993)
CCPR/C/79Add.21, para.11; Egypt (1993) CCPR/C/79Add.23, para.7; Cameroon (1994)
CCPR/C/79Add.33, para.7; the Russian Federation (1995) CCPR/C/79Add.54, para.27; Zambia
(1996) CCPR/C/79Add.62, para.11; Lebanon (1997) CCPR/C/79Add.78, para.10; India (1997)
CCPR/C/79Add.81, para.19; and Mexico (1999) CCPR/C/79Add.109, para.12.
28
7
Dr. Angelika Siehr, LL.M. (Yale)
instance, the Syrian Arab Republic has declared a state of emergency by Legislative Decree
No. 51 of 9 March 1963 which is still in force33 but has – during a period of 41 years(!) –
never been notified to the Secretary General. In April 2001, the Committee expressed concern
over the State of Emergency Legislation (SEL) in Syria and recommended that it be “formally
lifted as soon as possible”. Another example is Egypt where the state of emergency, which
has been declared in 1981, is still in force.34
However, most of the States parties have notified the existence of a state of emergency
(though sometimes with considerable delay). – The problem is mainly that they do not always
provide sufficient information. As far as the reason for the proclamation of a state of
emergency is concerned, we have already dealt with it, but it exists also in view of the
notification of the provisions of the Covenant from which the respective State party derogates.
For example, the notification of Uruguay, received on 30 July 1979, and of Guatemala,
received on 23 November 1998, did not indicate any articles of the Covenant which were
derogated from.35 But here again: The overwhelming majority of States parties does furnish
the relevant information and it is interesting to see which provisions have in practice been the
targets of derogation measures: Out of 24 notifications of States parties, which did indicate
the provisions they have derogated from, 19 States parties mentioned articles 12 (freedom of
movement) and 21 (freedom of assembly) and 16 States parties article 9 (the rights to personal
liberty). 13 States parties referred to article 22 (freedom of association), 12 States parties to
article 19 (freedom of expression), 11 States parties to article 17 (privacy) and 6 States parties
mentioned article 14 (procedural guarantees). Only Nicaragua and Chile referred to article 13
(expulsion of aliens) and only Nicaragua and the United Kingdom to article 10 (the latter just
to 10 (2) and (3)). Only Chile derogated from article 25 (political rights of citizens), Sudan
from article 2 – and only Nicaragua listed all derogable articles (except article 25), including
articles 1-5, 20 and 26.36
3. Limits to Derogation Measures in Accordance with Art. 4 of the ICCPR
a) Non-Derogable Rights (Art. 4 (2) of the ICCPR)
According to article 4 (2) of the ICCPR only from certain rights, guaranteed by the Covenant,
no derogation may be made (articles 6, 7, 8 paras. 1 and 2, 11, 15, 16 and 18). In addition,
pursuant to article 6 (2) of the 2nd OP also the right not to be executed, guaranteed in article 1
(1) of the 2nd OP, shall not be subject to any derogation under article 4 of the Covenant.37 The
catalogue of article 4 (2) of the Covenant is the result of a compromise achieved after lengthy
33
List of States, supra note 7, 4.; see also Amnesty International, Public Statement, Al Index: MDE
24/016/2004, 8 March 2004, http://web.amnesty.org/library/print/ENGMDE240162004.
34
List of States, supra note 7, 3, based on concluding observations of the HRC, 28 November 2002.
35
Cf. Multilateral Treaties, supra note 4. Status as at 31 December 2002, 191 (Guatemala), 205
(Uruguay).
36
Cf. Multilateral Treaties, supra note 4. Status as at 31 December 2003, 190 et seq.; especially for the
former Yugoslavia see ibid. Status as at 31 December 1996, 156.
37
But article 6 (2) mentions the possibility of a reservation under article 2 of the 2nd OP.
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Dr. Angelika Siehr, LL.M. (Yale)
discussion:38 It exceeds the small catalogue of just four essential rights in article 15 (2) of the
ECHR, but it lags behind the extensive catalogue of article 27 (2) of the ACHR. In practice,
on a number of occasions members of the HRC have clearly stated their view that nonderogable rights have been violated, e.g. in Chile, Uruguay and El Salvador.39 Trinidad and
Tobago has made a reservation to article 4 (2) of the Covenant. This has been strongly
criticized by C. Tomuschat during consideration of the State report. He commented that such
a reservation was a serious inconsistency with the objectives and purposes of treaty law and
recommended that the Government should be asked to withdraw it.40p.
The enumeration of non-derogable provisions is related to (but not identical with) the question
whether certain human rights bear the nature of peremptory norms of international law: In
view of some fundamental rights, e.g. articles 6 (right to life) and 7 (prohibition of torture or
cruel, inhuman or degrading punishment) of the Covenant, their proclamation as being nonderogable in article 4 (2) of the Covenant is to be seen as recognition of their peremptory
nature ensured in treaty form in the Covenant. However, it is obvious that some other
provisions of the ICCPR were included in the list of article 4 (2) because it can never become
necessary to derogate from these rights during a state of emergency, e.g. articles 11
(prohibition to imprisonment because of inability to fulfil a contractual obligation) and 18
(freedom of thought, conscience and religion). On the other hand, the Committee emphasizes
in its General Comment No. 29 that the category of peremptory norms extends beyond the
catalogue of non-derogable rights as proclaimed in article 4 (2) of the Covenant: “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”.41
In fact, the United States and France had already from the outset tried to have the rights to
personal liberty and certain minimum guarantees of the rule of law, in particular the right to
fair and public trial, included in the catalogue of article 4 (2) of the Covenant.42 At first glance
it does appear astonishing that most of the judicial guarantees are missing in this list in view
of the fact that the Additional Protocols of the Geneva Conventions declared them valid even
38
Nowak, supra note 4, Art. 4, para. 21 with further reference.
See McGoldrick, supra note 2, 306, para. 7.16 with reference to Summary Record 128, para. 40,
(Tarnopolsky on Chile); Summary Record 355, 356, 357, 359, and 373 (on Uruguay), Summary
Record 468, 469, 474, and 485 (on El Salvador).
40
See Summary Record, 555, para. 1.
41
General Comment No. 29, supra note 24, para. 11.
42
J. F. Hartman, Working Paper for the Committee of Experts on the Article 4 Derogation Provision,
HRQ 1985, 116. See also Lorz, supra note 1, 96 f. The non-derogability of the right to a fair trial has
also been supported by Israel. Cf. A. Zimmermann, The Right to a Fair Trial in Situations of
Emergency and the Question of Emergency Courts, in: D. Weissbrodt /R. Wolfrum (eds.), The right to
a Fair Trial, 1998, 747, 758.
39
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Dr. Angelika Siehr, LL.M. (Yale)
in the case of war or non-international conflict.43 But if two thirds of the notifications of
States parties contain a derogation form article 9 of the Covenant, 44 it is obvious that they are
not ready to accept that this provision is declared non-derogable. However, in its General
Comment No. 29, adopted on July 2001, the Committee made finally clear that a minimum
standard of due process is not only – as already the “Siracusa Principles”45 have pointed out –
secured by the international humanitarian law during armed conflict46 but since it flows from
the principles of legality and the rule of law it is also inherent in the Covenant as a whole: The
recognition of non-derogable rights requires that they are secured by procedural guarantees,
including, often, judicial guarantees. “The provisions of the Covenant relating to procedural
safeguards may never be made subject to measures that would circumvent the protection of
non-derogable rights.”47
Furthermore, also in other provisions of the Covenant that are not listed in article 4 (2) there
are elements that cannot be made subject to lawful derogation under article 4. A number of
examples are given in General Comment No. 29:48 For instance, pursuant to article 10 of the
Covenant all persons deprived of their liberty shall be treated with humanity and with respect
for the inherent dignity of the human person. Although article 10 is not expressively
mentioned in article 4 (2) of the Covenant, the Committee is right when it believes that here
the Covenant expresses a norm of general international law not subject to derogation. This is
supported by the reference to the inherent dignity of the human person in the preamble to the
Covenant and by the close connection between articles 7 and 10.
Another barrier is erected by the principle of proportionality (see below under b)), according
to which rights whose suspension is pointless for combating states of emergency are in fact
non-derogable, too, even if they are not mentioned in article 4 (2) of the Covenant or cannot
be characterized as being of peremptory nature, e.g. the right of a child to a name and
recording in a birth register (article 24 (2) of the Covenant). On the other hand, an extension
of the catalogue of non-derogable rights in article 4 (2) of the Covenant to these rights would
trivialize this provision49 and obscure its underlying idea that certain essential rights of men
that are particularly endangered in emergency situations must be protected under all
circumstances, including war or civil war.
b) Proportionality(Art. 4 (1) of the ICCPR)
43
K. J. Partsch, Human Rights, Covenants and their Implementation, in: Wolfrum (ed.), United
Nations: Law, Policies and Practice, Vol. 1, § 59, para. 31.
44
See supra in the text near note 36.
45
See , in particular, No. 60, 64, 66, 67, 70 of the Siracusa Principles (supra, note 25).
46
Particularly by article 3, common to all 1949 Geneva Conventions and the above-mentioned
Additional Protocols, see No. 67 of the “Siracusa Principles” (supra, note 25). The right to fair trial,
guaranteed in article 3 of the Geneva Conventions, is part of the non-derogable minimum
humanitarian standard, see Schmahl, supra, note 13, 133 f.
47
General Comment No. 29, supra, note 24, para. 15, see also para. 16.
48
General Comment No. 29, supra, note 24, para. 13.
49
See Hartman, supra, note 42, 113 f.
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Dr. Angelika Siehr, LL.M. (Yale)
According to article 4 (1), rights may be derogated from only “to the extent strictly required
by the exigencies of the situation”. This is an express reference to the principle of
proportionality, which is subject to review by the Committee. In addition to the enumeration
of non-derogable rights in article 4 (2), it represents the most important limitation on
permissible derogation measures.50 Similar to the proportionality requirement in national
constitutions it demands that the degree of interference and the scope of the measure (both
territorially and temporally) must stand in a reasonable relation to what is actually necessary
to cope with a public emergency which threatens the life of the nation. Moreover, the mere
fact that a permissible derogation from a specific provision may, of itself, be justified by the
exigencies of the situation does not obviate the necessity to scrutinize whether the specific
measures taken pursuant to the derogation are also required by the exigencies of the
situation.51 Furthermore, since permissible limitations (during normal periods) have been
formulated individually for some of the rights protected by the Covenant (e.g. articles 12 (3)
and 19 (3)), these are to be exhausted prior to the taking of emergency measures.52
The principle of proportionality also requires that the necessity of derogation measures be
reviewed at regular intervals by independent national organs, in particular, by the legislative
bodies and the courts. As exceptional measures, they may be imposed only for a limited
period of time.53 Several times the HRC has expressed its concern over insufficient attention
being paid to the principle of proportionality so, for example, in its concluding observations
on Israel where it recommended to review the necessity of the continued state of emergency
with a view to limiting its scope, the territorial applicability and the associated derogations of
rights.54 The Committee has also expressed its reservations with regard to the duration of
derogation measures taken by Chile, Syria, Colombia, Uruguay, Peru and El Salvador.55
Although, the Committee has usually been reluctant to state a clear violation of the
proportionality requirement, it did so in cases where the misuse of emergency powers has
been evident, for instance, in the Guerrero v. Colombia case, where the Colombian police had
raided a house because of the suspicion that it had been used for kidnapping, and despite the
fact that no evidence was found, had stayed in the house and killed seven innocent people as
they arrived at their home.56 The General Comment No. 29, however, indicates that the
Committee will in future take a closer look at the proportionality requirement even in cases in
which the misuse is less evident.57
50
Nowak, supra, note 3, Art. 4, para. 24.
Cf. General Comment No. 29, supra, note 24, para. 4.
52
Nowak, supra, note 3, Art. 4, para. 24.
53
Nowak, supra, note 3, para. 25.
54
Cf. CCPR/C/79/Add.93, para. 11
55
Cf. A/34/40, §§ 78, 293 (Chile); A/34/40, § 247 (Syria); A/34/40, § 270 (Colombia); A/34/40, § 263
(Uruguay); A/34/40, § 449 (Peru); A/34/40, § 157 (El Salvador).
56
Communication No. R.11/45 (Feb. 5, 1979), UN Doc. Supp. No. 40 (A/37/40) at 137 (1982), para.
13.3. Cf. Mc. Goldrick, supra, note 2, 313 f., para. 7.42-7.43.
57
General Comment No. 29, supra, note 24, para. 4 et seq.
51
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Dr. Angelika Siehr, LL.M. (Yale)
c) Compatibility with other Obligations under International Law (Art. 4 (1) of the
ICCPR)
Article 4 (1) of the ICCPR sets the further condition that derogation measures must not be
inconsistent with other obligations under international law. This means, that 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.58 The idea behind the socalled “consistency requirement” is to harmonize the different obligations under international
law undertaken by the States, and especially to develop an interconnected system of various
human rights obligations which comprises universal and regional human rights treaties as well
as customary international law. This is supposed to strengthen the protection of human rights
in emergency situations through the complementary application of all available norms
whereas the norm most favourable to the protection of human rights shall prevail.59 – In
practice, the handling was sometimes quite different: Although article 27 of the ACHR holds
political rights to be non-derogable, Chile is the only State party that notified a derogation
from article 25 (b) of the Covenant,60 and Uruguay did so in practice as we know from the
above-mentioned Landinelli Silva v. Uruguay case,61 despite the fact that it had not mentioned
any provisions of the ICCPR from which it derogates in its notification.62
It is not the task of the HRC to review the conduct of a State party under other treaties, but in
exercising its function 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 it asks
the States parties in its new General Comment No. 29 to present information on their other
international obligations relevant for the protection of the rights in question and in particular
on those obligations that are applicable in times of emergency, when invoking article 4 (1) or
when reporting under article 40 of the Covenant.63 In this respect, States parties should duly
take into account the developments within international law as to human rights standards
applicable in emergency situations.64
d) Prohibition of Discriminatory Measures (Art. 4 (1) of the ICCPR)
According to article 4 (1) of the ICCPR, the permissibility of any derogation from the
Covenant is further limited by the requirement that the measures taken do not involve
58
General Comment No. 29, supra, note 24, para. 9.
See Lorz supra, note 1, 100 f.
60
Cf. Multilateral Treaties supra, note 4. Status as at 31 December 2002, 187.
61
See supra, note 23.
62
Cf. Multilateral Treaties supra, note 4. Status as at 31 December 2002, 205.
63
General Comment No. 29, supra, note 24, para. 10. The HRC refers here to the Convention on the
Rights of the Child which has been ratified by almost all States parties to the Covenant and does not
include a derogation clause. As article 38 of the Convention clearly indicates, it is applicable in
emergency situations.
64
Cf. Reports of the Secretary-General to the Commission on Human Rights submitted pursuant to
Commission resolutions 1998/29, 1996/65 and 2000/69 on minimum humanitarian standards,
E/CN.4/1999/92, E/CN.4/2000/94 and E/CN.4/2001/91.
59
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Dr. Angelika Siehr, LL.M. (Yale)
discrimination solely on the ground of race, colour, sex, language, religion or social origin.
But this requirement is somehow limited in itself: First, the distinctional criteria “national
origin” and “political opinion” were deliberately omitted due to the fact that in times of war
nationals of enemy States are often discriminated against, and, second, by the insertion of the
word “solely” which shows that it is the motive or intention that counts. Therefore, derogation
measures that – because of their geographically limited scope of application – primarily affect
members of a certain race or a certain religious or linguistic minority are permissible as long
as they do not aim at these population groups.65 Since discrimination is, unfortunately, often
witnessed during states of emergency, the express prohibition in article 4 (1) of ICCPR helps
to uphold prohibitions of discrimination otherwise derogable under the Covenant (articles 2,
3, 14 (1), 23 (4), 24 (1), 25 and 26). On the other hand, as the Committee points out, there are
elements or dimensions of the right to non-discrimination that cannot be derogated from in
any circumstances although the aforementioned Covenant provisions related to nondiscrimination have not been listed among the non-derogable provisions in article 4 (2) of the
Covenant.66 The derogation e.g. of Sudan from article 2 of the Covenant or the extensive
derogations made by Nicaragua, which refer in fact to all derogable rights of the Covenant
(except article 25), must accordingly be interpreted in conformity with this specific
prohibition of discrimination.67
III. “War against International Terrorism” under Article 4 of the ICCPR
International terrorism is a challenge to the international order in many respects – last not
least in view of the emergency clauses of human rights Covenants, including the provisions of
article 4 of the ICCPR. “Talking about legal aspects of emergency regimes takes us not only
at the limits of normality as far as the factual situation is concerned, but to the limits of law –
and the rule of law – as well.”68 This is especially true in view of the extremely complex
phenomenon of international terrorism. Of course, it is not possible to deal with it adequately
at the end of a paper which focuses on State practice with respect to derogations. However,
since the United Kingdom in its notification, dated 18 December 2001, availed itself of the
right of derogation from article 9 of ICCPR on the grounds of the terrorist attacks in New
York, Washington, D.C. and Pennsylvania on 11th September 2001, I would like to point out
some of the problems thereby posed to emergency clauses for further discussion.
The crucial question is whether “war against international terrorism” as it has been
proclaimed by President Bush after the attacks of 11 September 2001, constitutes a “public
emergency which threatens the life of the nation” under article 4 of the Covenant. These
terrorist attacks resulted in several thousands deaths, most of them nationals of the United
65
Cf. Nowak, supra, note 3., Art. 4, para. 28.
General Comment, No. 29 supra, note 24, para. 8.
67
Cf. Multilateral Treaties, supra, note 4. Status as at 31 December 2002, 203 (Sudan), 192
(Nicaragua).
68
Lorz, supra note 1, 85.
66
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Dr. Angelika Siehr, LL.M. (Yale)
States of America, bust also many British victims and others from 70 different countries. In its
resolutions 1368 (2001) and 1373 (2001), the United Nations Security Council recognised the
attacks as a threat to international peace and security. However, the Council continued to view
terrorist acts as primarily criminal offences committed by individuals or groups of individuals
and carefully avoided to define them as an “armed attack”.69 In the legal sense of the term
there is no “war” (resulting in the applicability of the Geneva Conventions!) or armed
international conflict.70
It has always been difficult to define terrorism, partly because of different values in the
International Community, but since the attacks of 11 September 2001 have been unanimously
condemned, in this case our problem is more one of a matter of facts: We do not know exactly
who the enemy is, where it is, what are its possible targets – and the conflict seems to be
open-ended, too. It appears at least very doubtful whether such a diffuse picture of a danger
constitutes a “public emergency which threatens the life of the nation” under article 4 (1) of
the Covenant, and if so: Who is entitled to refer to it? Only the United States of America
where the terrorist attacks took place – but who have never made a notification under article 4
(3) of the Covenant – or all States parties who have lost own nationals because of these
attacks? Or every State party because it could have lost own nationals?71 Supposed, the
proclamation of a state of emergency was justified immediately after the attacks had taken
place (despite the fact that the terrorists who committed them were dead) – is a continued
state of emergency still justified more than three years later? But it is not only difficult to
answer the question whether the terrorist attacks of 11 September 2001 constitute(d) a “state
of public emergency which threatens the life of the nation” under article 4 (1) of the
Covenant, it is likewise difficult to apply the safeguards provided by article 4 of the Covenant
in order to prevent a misuse of emergency powers. For instance, it is impossible to monitor
the admissibility and proportionality of concrete derogation measures in terms of their
material scope, their duration and territorial application if the problem they are supposed to
combat cannot not be defined precisely. But if its specific regime of safeguards cannot be
applied the whole provision of article 4 becomes pointless. This argument supports a rather
restrictive interpretation of the basic prerequisite of article 4 of the ICCPR, the existence of
“public emergency which threatens the life of the nation”, in view of international terrorism.
IV. Outlook
The different elements contained in article 4 of the ICCPR are designed to reconcile the
necessity to resort to extraordinary measures in times of public emergency on the one hand
and to combat the danger of misuse that is inherent in all emergency powers on the other
69
For the ambiguous character of these resolutions see B. Fassbender, The UN Security Council and
the International Terrorism, in: Andrea Bianchi (ed.), Enforcing International Law Norms Against
Terrorism, 2004, 83, 86 f.
70
See Tomuschat, Der 11. September 2001 und seine rechtlichen Konsequenzen, EuGRZ 2001, 535 f.
71
Cf. Schmahl, supra note 13, 128.
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Dr. Angelika Siehr, LL.M. (Yale)
hand. However, not all States parties play by the rules and provide full information about the
measures taken in emergency situations, a clear explanation of the reasons and full
documentation regarding the applicable domestic law. In General Comment No. 5, adopted in
1981, the Committee noted a lack of clarity in the information provided by States parties. But
after all, the continued stress on the importance of article 4 (3) appears to be eliciting more
response from States parties, than was evident in the beginning of the HRC’s work. 72 In
addition, the elaborated General Comment No. 29, adopted on 24 July 2001, in which the
Committee explains to States parties how certain problems arising in the implementation of
article 4 should be dealt with, has proven to be very helpful.
However, it is regrettable that the Committee which adopted General Comment No. 29 only a
few weeks before the terrorist attacks of 11 September 2001, did not define criteria for the
existence of a state of emergency under article 4 (1) of the Covenant. 73 During the drafting of
this provision an armed, international conflict still represented the prototype of a public
emergency which threatens the life of the nation, but during its implementation period only
three States parties have referred to this reason for the proclamation of a state of emergency.
Instead, most States parties have mentioned severe internal difficulties or, after 11 September
2001, in one case international terrorism. In more than one case it has been dubious whether
the requirements of article 4 (1) of the Covenant were met. The development of some criteria
– in full respect of the discretionary powers of States parties in view of the determination of a
state of emergency – could help to gain more clarity about the basic prerequisite for
derogation measures.
72
McGoldrick, supra note 2, 316, para. 7.46.
The absence of a definition has also been criticized by McGoldrick, supra note 2, 305, para. 7.14,
who refers to the useful comparative jurisprudence under the ECHR in this respect. In General
Comment No. 29, supra note 4, para. 5, the Committee gives some examples (natural catastrophe,
major industrial accident etc.), but it remains unclear under which conditions the requirements of
article 4 (1) of the ICCPR will be fulfilled.
73
15