EU-China Dialogue Seminar on Human Rights
Ratification and Implementation of the ICCPR;
and Right to Health
The Hague, 8th-9th November 2004
W.G. I: Ratification and Implementation of ICCPR
Issue B: Compare the derogations mechanisms of the main international human rights
treaties: the ICCPR, the ECHR.
Non-derogability of judicial guarantees: the American Convention and the Covenant
by Marco Pedrazzi
1. Introduction.
In a wide sense, we can call “judicial guarantees” both the judicial remedies available to
persons alleging a violation of their rights, or the mere risk of such a violation, and the due
process and fair trial guarantees that have to be respected in the administration of justice, in
particular “in the determination of a criminal charge against” any person or of his or her
“rights and obligations in a suit at law” (ICCPR, Art. 14). The widespread confrontation
with international terrorism which started after 9/11 2001, has led to some instances of
derogations affecting, among others, those guarantees: these instances have come to the
fore of public attention and have being thoroughly examined by judges and debated by
legal scholars in various countries1. But any public emergency, in most parts of the world,
tends to be an ideal situation inducing governments to limit access to judges and to curtail
some basic fair trial parameters and thus the capacity of the judicial to interfere with the
free and unimpeded disposal by the executive of those considered to constitute a threat for
public order and the survival of public institutions. The issue is, therefore, of general
importance and highly relevant in assessing the limits affecting derogatory powers of
governments in states of emergency.
The catalogue of non-derogable rights, i.e. of rights which are not subject to any
derogation in times of war or other public emergency, is different in the three main
international instruments protecting civil and political rights: the International Covenant on
Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR)
and the American Convention on Human Rights (ACHR). While there is a core of four
fundamental rights expressly non-derogable under the three conventions (the right to life,
the prohibition of torture, the ban on slavery or servitude, and the principle nullum crimen
sine lege, nulla poena sine lege2), the lists contained in the Covenant and in the American
See, inter alia, J.J. Paust, “Judicial Power To Determine the Status and Rights of Persons Detained Without
Trial”, in Harvard International Law Journal., vol. 44, n. 2, 2003, p. 503 ff.
2
See ICCPR, Art. 4.2; ECHR, Art. 15.2; ACHR, Art. 27.2.
1
Convention add some other (not entirely coinciding) non-derogable rights3. In particular,
only the American Convention refers to “the judicial guarantees essential for the protection
of such [the other non-derogable] rights”4. The jurisprudence of inter-American organs
elaborating on this requirement is particularly worth considering, both because it is the
most developed with relation to this issue, and because it has a value extending well
beyond the limits of the inter-American system5. Notwithstanding the different formulation
of Art. 4, ICCPR, the HRC has recently come to similar conclusions.
2. The jurisprudence of the Inter-American Court and Commission with regard to the
derogability of judicial guarantees: a) habeas corpus and amparo.
Three documents have a particular importance in order to assess the doctrine of interAmerican organs with regard to the derogability of judicial guarantees: the Court advisory
opinions of January 306 and October 6, 19877, and the Commission report on terrorism and
human rights of October 22, 20028.
The Inter-American Court has established that the writs of habeas corpus and of amparo,
provided for by articles 7.69 and 25.110 of the Convention, are non-derogable. The first
3
Protocols 6 and 7, ECHR, add to the list of non-derogable rights of Art. 15, ECHR, the prohibition of the
death penalty and the principle of ne bis in idem.
4
Art. 27.: “1. In time of war, public danger, or other emergency that threatens the independence or security
of a State Party, it may take measures derogating from its obligations under the present Convention to the
extent and for the period of time strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with its other obligations under international law and do not involve
discrimination on the ground of race, color, sex, language, religion, or social origin. 2. The foregoing
provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical
Personality), Article 4 (Right to Life), Art. 5 (Right to Humane Treatment), Art. 6 (Freedom from Slavery),
Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Art. 17
(Rights of the Family), Art. 18 (Right to a Name), Art. 19 (Rights of the Child), Article 20 (Right to
Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for
the protection of such rights. …”.
5
On fair trial under the American Convention see, generally, J. Kokott, “Fair Trial – the Inter-American
System for the Protection of Human Rights”, in D. Weissbrodt, R. Wolfrum (eds.), The Right to a Fair Trial,
Berlin, 1997, p. 133 and ff.; H. Tigroudja, I.K. Panoussis, La Cour interaméricaine des droits de l’homme.
Analyse de la jurisprudence consultative et contentieuse, Bruxelles, 2003, p. 252 and ff. On derogations in
the inter-American system see J. Fitzpatrick, “States of Emergency in the Inter-American System”, in D.J.
Harris, S. Livingstone (eds.), The Inter-American System of Human Rights, Oxford, 1998, p. 371 and ff.; A.
Di Stasi, Il sistema americano dei diritti umani. Circolazione e mutamento di una international legal
tradition, Torino, 2004, p. 106 and ff.
6
Advisory Opinion OC-8/87 of January 30, 1987, “Habeas corpus in emergency situations (Arts. 27(2),
25(1) and 7(6), American Convention on Human Rights)”.
7
Advisory Opinion OC-9/87 of October 6, 1987, “Judicial guarantees in states of emergency (Arts. 27(2), 25
and 8, American Convention on Human Rights)”.
8
OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr., 22 October 2002.
9
“Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the
court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest
or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be
threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may
decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party
or another person in his behalf is entitled to seek these remedies”.
10
“Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent
court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution
2
main reason that drives the Court to this conclusion is that these guarantees, especially
habeas corpus, which can be considered a subspecies of amparo, play an essential role for
the protection of other non-derogable rights, and thus fall under the prescription of Art.
27.2 of the American Convention. Following the Court’s words:
“In order for habeas corpus to achieve its purpose, which is to obtain a judicial
determination of the lawfulness of a detention, it is necessary that the detained person
be brought before a competent judge or a tribunal with jurisdiction over him. Here
habeas corpus performs a vital role in ensuring that a person’s life and physical
integrity are respected, in preventing his disappearance or the keeping of his
whereabouts secret and in protecting him against torture or other cruel, inhumane, or
degrading punishment or treatment”11.
The need to ensure, also during emergency situations, and all the more so, the effective
enjoyment of non-derogable rights, shall also be deduced, according to the Court, from
Art. 1.1 of the Convention, where States parties “undertake” not only “to respect the rights
and freedoms recognized” therein, but also “to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms”: a general provision
that cannot evidently be affected by derogations12.
All that is true even if the primary purpose of habeas corpus is the protection of personal
liberty against arbitrary interferences, which is not listed among non-derogable rights. The
Court, however, underlines that even the suspension of derogable guarantees “may not
exceed the limits of that strictly required to deal with the emergency”, which means that
“any action on the part of the public authorities that goes beyond those limits, which must
be specified with precision in the decree promulgating the state of emergency, would also
be unlawful notwithstanding the existence of the emergency situation”. It follows that “in a
system governed by the rule of law”, it falls upon “an autonomous and independent
judicial order to exercise control over the lawfulness of such measures by verifying for
example, whether a detention based on the suspension of personal freedom complies with
the legislation authorized by the state of emergency”13.
Here the second main reason for guaranteeing an unrestricted access to amparo and habeas
corpus, even in emergency situations, emerges: these guarantees “serve to preserve legality
in a democratic society”14. As, according to the principles of the inter-American system,
the only legitimate purpose of introducing derogations to some rights during states of
emergency is “to preserve the highest values of a democratic society”, obviously “the
suspension of guarantees” cannot imply “a temporary suspension of the rule of law, nor
does it authorize those in power to act in disregard of the principle of legality by which
they are bound at all times”, there being “an inseparable bond between the principle of
legality, democratic institutions and the rule of law”15.
or laws of the state concerned or by this Convention, even though such violation may have been committed
by persons acting in the course of their official duties”.
11
Advisory Opinion OC-8/87 (note 6, above), par. 35. See also IACtHR, Neira Alegría et al. case, judgment
of January 19, 1995, par. 77; Durand and Ugarte case, judgment of August 16, 2000, par. 95 and ff.
12
See ibid., par. 25; Advisory Opinion OC-9/87 (note 7, above), par. 22.
13
Advisory Opinion OC-8/87, pars. 38 and 40. See also IACtHR, Loayza Tamayo case, judgment of
September 17, 1997, par. 50 and ff.
14
Ibid., par. 42.
15
Ibid., pars. 20, 24. See also IACtHR, Castillo Páez case, judgment of November 3, 1997, par. 82.
3
Summing up, amparo and habeas corpus are non-derogable because they are “judicial
guarantees essential for the protection” of non-derogable rights, as the right to life and the
right not to be subjected to torture; and because they are guarantees essential to the
preservation of the rule of law, as they permit a judicial control on the non-arbitrary
exercise by the executive of its exceptional powers in situations of emergency.
b) due process and fair trial guarantees.
The Inter-American Court is not as clear with regard to the due process and fair trial
guarantees enunciated by Art. 8 of the Convention16. According to the Court:
“The concept of due process of law expressed in Article 8 of the Convention should be
understood as applicable, in the main, to all judicial guarantees referred to in the
American Convention, even during a suspension governed by Article 27 of the
Convention. Reading Article 8 together with Article 7(6), 25 and 27(2) of the
Convention leads to the conclusion that the principles of due process of law cannot be
suspended in states of exception insofar as they are necessary conditions for the
procedural institutions regulated by the Convention to be considered judicial
guarantees”17.
Obviously, the remedies of amparo and habeas corpus shall abide by all the procedural
guarantees of due process, otherwise they wouldn’t be effective, they couldn’t even be
considered “judicial guarantees”. But, according to the Court, due process and fair trial
guarantees enshrined in Art. 8 of the Convention shall generally be non-derogable, as an
indispensable component of all judicial guarantees granted by the Convention. The Court
is not ready, however, “to list all the possible “essential” judicial guarantees that cannot be
suspended under Article 27(2)”:
“Those will depend in each case upon an analysis of the juridical order and practice of
each State Party, which rights are involved, and the facts which give rise to the
question”18.
Thus, also a precise determination of which aspects of a fair trial might possibly be
suspended and in which circumstances will depend on the particularities of the case at
issue.
The Inter-American Commission gives a contribution in further clarifying applicable rules:
in the first place, it recalls the necessity for States of complying with all due process and
fair trial guarantees in cases where the death penalty is imposed, even in situations of
emergency. Obviously, “the nonobservance of an individual’s right to the guarantees of
due process of law resulting in the imposition of the death penalty constitutes a violation of
the right not to be “arbitrarily” deprived of one’s life”, and thus a violation of the non“1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the determination of his rights and obligations of a
civil, labor, fiscal, or any other nature”. The subsequent paragraphs enunciate the minimum guarantees in
criminal trials.
17
Advisory Opinion OC-9/87 (note 7, above), pars. 29-30.
18
Ibid., par. 40. See also pars. 38-39.
16
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derogable nature of the right to life19. In the second place, it reminds States of their
obligations arising from the humanitarian law conventions and customary rules in times of
armed conflict: in particular, those treaty and customary rules establish clear and in some
cases detailed fair trial guarantees with regard to all persons in the power of a party to the
conflict, be they privileged or unprivileged combatants or civilians. They are absolutely
non-derogable20. In the third place, even in emergency situations not amounting to armed
conflicts, according to the Commission:
“although Article 8 of the Convention is not explicitly mentioned in Article 27(2),
states are not free to derogate from the fundamental due process or fair trial
protections referred to in Article 8 and comparable provisions of other international
instruments. … The Commission … notes … that no human rights supervisory body
has yet found the exigencies of a genuine emergency situation sufficient to justify
suspending even temporarily basic fair trial safeguards. Rather, the Inter-American
human rights organs have long emphasized the importance of maintaining due process
safeguards at all times, and in times of emergency in particular in order to guard
against the enhanced risk of abuse of a state’s exceptional authority and to protect
other rights that are non-derogable. In this sense, due process rights form an integral
part of the judicial guarantees essential for the protection of non-derogable rights and
may therefore be considered non-derogable under the express terms of Article 27(2) of
the American Convention”21.
But the real novelty with regard to the Court’s approach is due to the fact that the
Commission specifies which components of the right to a fair trial cannot justifiably be
suspended:
“These protections include in particular the right to a fair trial by a competent,
independent and impartial court for persons charged with criminal offenses, the
presumption of innocence, the right to be informed promptly and intelligibly of any
criminal charge, the right to adequate time and facilities to prepare a defense, the right
to legal assistance of one’s own choice or free legal counsel where the interests of
justice require, the right not to testify against oneself and protection against coerced
confessions, the right to attendance of witnesses, the right of appeal, as well as the
principle of non-retroactive application of penal laws”22.
It also goes on to specify those “limited aspects of the right to due process and to a fair trial
from which derogation might in the most exceptional circumstances be permissible”,
indicating the right to a public trial, the right of a defendant to examine or have examined
witnesses presented against him or her, and the right to a hearing within a reasonable
time23.
19
IACHR, Report on terrorism and human rights (note 8, above), par. 94.
Ibid., par. 57 and ff.; par. 254 and ff. Reference is mainly to the Third and Fourth Geneva Conventions of
1949; to Art. 75.4, Additional Protocol I to the Geneva Conventions, of 1977; to common Art. 3 to the
Geneva Conventions and to Art. 6, Additional Protocol II, as far as non-international armed conflicts are
concerned. Non-derogability of those rules shall also be respected on account of Art. 29 of the American
Convention, which reads: “No provision of this Convention shall be interpreted as: … b. restricting the
enjoyment or exercise of any right or freedom recognized … by virtue of another convention to which one of
the said states is a party; …”.
21
Ibid., pars. 245-246.
22
Ibid., par. 247.
23
Ibid., pars. 249-253. Par. 252 also mentions the need that States may have in situations of emergency of
adopting particular measures to protect judges’ life, physical integrity and independence, without however
20
5
3. General Comment no. 29: the position of the HRC.
As mentioned before, Art. 4.2, ICCPR24 does not list among non-derogable rights the right
to amparo25 nor the right to habeas corpus (Art. 9, paragraphs 3 and 4) or the fair trial
guarantees enshrined in Art. 14. However, the HRC has taken a position that is quite
similar to the one adopted by the inter-American organs.
In 1993 the Sub-Commission on Prevention of Discrimination and Protection of Minorities
proposed to the States parties to the Covenant the adoption of a third optional protocol in
order to establish the non-derogability of articles 9 and 14. However, the HRC did not
welcome the proposal, with the following motivations:
“The Committee is satisfied that States parties generally understand that the right to
habeas corpus and amparo should not be limited in situations of emergency.
Furthermore, the Committee is of the view that the remedies provided in article 9,
paragraphs 3 and 4, read in conjunction with article 2 are inherent to the Covenant as a
whole. Having this in mind, the Committee believes that there is a considerable risk
that the proposed draft third optional protocol might implicitly invite States parties to
feel free to derogate from the provisions of article 9 of the Covenant during states of
emergency if they do not ratify the proposed optional protocol. Thus, the protocol
might have the undesirable effect of diminishing the protection of detained persons
during states of emergency. The Committee is also of the view that it would simply
not be feasible to expect that all provisions of article 14 can remain fully in force in
any kind of emergency. Thus, the inclusion of article 14 as such into the list of nonderogable provisions would not be appropriate”26.
The position of the Committee has been further clarified in General Comment n. 29, on
States of emergency (Article 4), adopted on 24 July 200127. The HRC confirms the nonderogable nature of the rights to amparo, and especially habeas corpus, and of the
“fundamental requirements of fair trial”, on the following grounds: firstly, derogating
measures may not be inconsistent with the States parties’ other obligations under
international law (Art. 4.1), particularly the rules of international humanitarian law, nor
may they violate peremptory norms of international law. Inter alia, arbitrary deprivations
of liberty or deviations from fundamental principles of fair trial, including the presumption
compromising “a defendant’s right to fundamental fairness”. See also par. 398 and ff., with regard to
procedures relating to the exclusion, expulsion or extradition of aliens.
24
“No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this
provision”.
25
See Art. 2.3, ICCPR, where the right to a remedy for violations of human rights is recognised in fairly
different terms with respect to Art. 25, ACHR.
26
HRC 1994 Report to the General Assembly, Vol. I, p. 120, Official Records, Forty-ninth Session, Suppl.
No. 40 (A/49/40). The text is reproduced in A de Zayas, “The United Nations and the Guarantees of a Fair
Trial in the International Covenant on Civil and Political Rights and the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment”, in D. Weissbrodt, R. Wolfrum (eds.), The
Right to a Fair Trial (note 5, above), p. 669 and ff., at p. 677. See also, on the issue of derogation to fair trial
guarantees in the Covenant, prior to General Comment n. 29, inter alia, F. Qilleré-Majzoub, La défense du
droit à un process equitable, Bruxelles, 1999, p. 254 and ff.; D. Weissbrodt, The Right to a Fair Trial under
the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights,
The Hague/Boston/London, 2001, p. 139 and ff.
27
CCPR/C/21/Rev.1/Add.11.
6
of innocence, would thus be prohibited at any times28. Secondly, the HRC refers to Art.
2.3, ICCPR, requiring States parties to provide effective remedies for any violation of the
provisions of the Covenant: while not included in the list of non-derogable provisions in
Art. 4.2, the clause, according to the Committee, “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”29.
Thirdly, a derogation from procedural or judicial guarantees could never be such to
circumvent the protection of non-derogable rights:
“Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any
trial leading to the imposition of the death penalty during a state of emergency must
conform to the provisions of the Covenant, including all requirements of articles 14
and 15”30.
For the same reason, the right to habeas corpus shall never be diminished31.
Derogations from fundamental requirements of fair trial, in the opinion of the HRC, are
prohibited for two reasons: because certain components of fair trial are guaranteed by
international humanitarian law, and “the Committee finds no justification” for derogating
from them “during other emergency situations”; and because that is required by the
principles of legality and by the rule of law”. It follows that “(o)nly a court of law may try
and convict a person for a criminal offence” and that “(t)he presumption of innocence must
be respected”32.
4. Concluding remarks.
Notwithstanding the differences in the formulation of the derogation clauses in the two
treaties, both the inter-American and ICCPR competent organs have proved to agree on the
non-derogability of a fundamental nucleus of judicial and procedural guarantees and on at
least some of the basic motivations leading to this result33. There is a wide agreement that
even in times of emergency the imposition of the death penalty, in those countries that
have not yet abolished it, can only be the outcome of a trial before an independent judge,
Ibid., par. 9 and ff. See also par. 13 (b), where it is stated: “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”. It
is not entirely clear whether the Committee asserts the peremptory nature of these norms (see also par. 11).
29
Ibid., par. 14.
30
Ibid., par. 15.
31
Ibid., par. 16.
32
Ibid., par. 16.
33
For an assessment of the differences in the approach of inter-American organs and of the HRC see C.
Olivier, “Revisiting General Comment No. 29 of the United Nations Human Rights Committee: About Fair
Trial Rights and Derogations in Times of Public Emergency”, in Leiden Journal of International Law, 17
(2004), p. 405 and ff.
28
7
respecting all the guarantees of fairness established as well in Art. 14, ICCPR as in Art. 8,
ACHR. There is also a wide convergence on the non-derogability of the right of habeas
corpus, which is always essential in order to protect non-derogable rights of detainees, and,
more generally, of the right to other judicial or non-judicial remedies, at least as far as they
relate to the protection of non-derogable rights. There is, finally, a substantial convergence
on the non-derogability of the most basic elements of the guarantees of fair trial, even if
there does not seem to be an agreement on the possible list of those basic elements or on
the opportunity of having a list, rather than deciding according to the specific
particularities of each case.
The agreement also touches on two fundamental reasons justifying the above conclusions:
the link of many judicial and procedural guarantees with the protection of non-derogable
rights, such as the right to life and the right to humane treatment, and the fact that the
primary aim during states of emergency shall always remain the protection of the
principles of legality and of the rule of law, which are fundamental principles underlying
the whole of both treaties.
Those conclusions are supported by the work done by various groups of experts, and by the
reflections of the Charter-based human rights bodies34; and their validity extends well
beyond the framework of the two treaties that have been considered here: in particular,
there are eloquent signs that they would be agreed upon by the European Court of Human
Rights35.
34
See, inter alia, the Siracusa Principles on the Limitation and Derogation of Provisions in the International
Covenant on Civil and Political Rights (1985), reproduced in UN Doc. E/CN.4/1985/4 (Annex), par. 58 and
ff.; and the Turku Declaration of 2 December 1990 (see www1.umn.edu/humanrts/instree/1990b.htm), Art.
4.3 and Art. 9. See also the reports of the Special Rapporteur on the Question of human rights and states of
emergency, Mr. Leandro Despouy: in particular the 8th, 9th and 10th annual reports (E/CN.4/Sub.2/1995/20
(1995); E/CN.4/Sub.2/1996/19 (1996); E/CN.4/Sub.2/1997/19 (1997)).
35
With regard to habeas corpus, see European Court of Human Rights, case of Al-Nashif v. Bulgaria (Appl.
no. 50963/99), judgment of 20 June 2002, at par. 94: “National authorities cannot do away with effective
control of lawfulness by the domestic courts whenever they choose to assert that national security and
terrorism are involved”. For the position of these principles in general international law see J. Oraá, “The
Protection of Human Rights in Emergency Situations under Customary International Law”, in The Reality of
International Law. Essays in Honour of Ian Brownlie, Oxford, 1999, p. 413 and ff., at p. 434 and ff.
8