to develop their culture, language, religion, traditions and customs, expect
where specific practices are in violation of national laws and contrary to
international standards’.141
19. The restrictions on an individual’s rights, however, must have a reasonable and
objective justification and be necessary to protect the existence of the
minority.142
B. Absolute Rights and Human Rights within a State of Emergency
38. Under exceptional circumstances, it may be possible to derogate from certain
obligations under international human rights standards. Article 4, ICCPR and
Article 4 of the Arab Charter,143 permit States to go beyond simply limiting rights
where it is lawful to do so, to derogating from them or suspending them in times
of emergency that threaten the life of the nation.
Derogations are of an exceptional and temporary measure
39. The power to derogate in human rights treaties is seen as exceptional and
should be dealt with as a temporary measure.144
There must be a public emergency which threatens the life of the nation
40. As the Human Rights Committee has noted, not every situation will amount to
a public emergency, only those which threaten the life of the nation.145
There must be an official and prompt proclamation of the state of emergency
41. The state must proclaim a state of emergency in order to invoke the derogation
and this must be in compliance with relevant national laws. 146 It must inform
other States, through the UN Secretary General, with full information about the
measures taken and an explanation.147
141
Ibid, Art.4(2).
Human Rights Committee, Communication 197/1985, Kitok v Sweden, 27 July 1988.
143 See also Articles 110-112 of the Palestinian Basic Law. Other treaties which have derogation
provisions include ECHR, Article 15; ACHR, Article 27. There is no derogation provision in the African
Charter.
144 Human Rights Committee, General Comment No.29, CCPR/C/21/Rev.1/Add.11 (2001), para 2.
145 Ibid, para 3.
146 Human Rights Committee, General Comment No.29, CCPR/C/21/Rev.1/Add.11 (2001), para 2.
147 Human Rights Committee, General Comment No.29, CCPR/C/21/Rev.1/Add.11 (2001), para 17.
See also e.g. Concluding observations on Mexico, CCPR/C/79/Add.109, para 12. See also European
Court, Brannigan and McBride v UK, 25 May 1993.
142
44
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