Derogations from rights refer to temporary measures taken by governments to restrict or limit certain human rights in exceptional circumstances. These measures are typically allowed under international human rights law, but they are subject to specific conditions and must be proportionate, necessary, and non-discriminatory.
The most prominent international human rights instrument that allows for derogations is the International Covenant on Civil and Political Rights (ICCPR). Article 4 of the ICCPR provides a framework for states to derogate from certain rights during times of public emergency that threatens the life of the nation. However, it imposes several important safeguards to prevent abuse and ensure that the rights are not unduly restricted.
According to Article 4 of the ICCPR, a state can only derogate from rights under specific circumstances, including during times of war, public emergency, or when there is a threat to the nation’s existence. Even in such situations, certain rights are considered non-derogable, meaning they cannot be suspended under any circumstances. These non-derogable rights include the right to life, freedom from torture, slavery, and retroactive criminal laws, and freedom of thought, conscience, and religion.
When derogating from rights, states must comply with certain requirements:
- Notification: States must promptly inform other states through the UN Secretary-General about the measures taken and the reasons for them.
- Non-Discrimination: Derogations must not be based on any grounds such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.
- Proportionality: The measures taken must be strictly necessary and proportionate to the exigencies of the situation.
- Public Emergency: Derogations are only permissible during a public emergency that threatens the life of the nation.
- No Retroactive Laws: Derogations cannot be used to justify the introduction of retroactive criminal laws.
- Good Faith: Derogations must not be invoked with the intention of evading obligations under the Covenant.
It’s important to note that derogations should be temporary and limited to the extent necessary to address the emergency situation. Once the threat has subsided, states are required to restore the rights and liberties that were derogated. Additionally, states are subject to ongoing scrutiny by international human rights bodies, and they may be held accountable for any human rights abuses resulting from the derogations.
While derogations from rights can be a contentious issue, they are meant to strike a balance between protecting individual rights and safeguarding the collective interests of society during exceptional circumstances. The key challenge lies in ensuring that such measures are necessary, proportionate, and temporary, and that they do not become a pretext for unchecked power or human rights violations.