duration, geographical coverage and material scope of the state of emergency and any
measures of derogation resorted to because of the emergency. Derogation from some
Covenant obligations in emergency situations is clearly distinct from restrictions or
limitations allowed even in normal times under several provisions of the Covenant.2
Nevertheless, the obligation to limit any derogations to those strictly required by the
exigencies of the situation reflects the principle of proportionality which is common
to derogation and limitation powers. 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 requirement that specific measures taken pursuant to
the derogation must also be shown to be required by the exigencies of the situation.
In practice, this will ensure that no provision of the Covenant, however validly
derogated from will be entirely inapplicable to the behaviour of a State party. When
considering States parties’ reports the Committee has expressed its concern over
insufficient attention being paid to the principle of proportionality.3
5.
The issues of when rights can be derogated from, and to what extent, cannot
be separated from the provision in article 4, paragraph 1, of the Covenant according to
which any measures derogating from a State party’s obligations under the Covenant
must be limited “to the extent strictly required by the exigencies of the situation”.
This condition requires that States parties provide careful justification not only for
their decision to proclaim a state of emergency but also for any specific measures
based on such a proclamation. If States purport to invoke the right to derogate from
the Covenant during, for instance, a natural catastrophe, a mass demonstration
including instances of violence, or a major industrial accident, they must be able to
justify not only that such a situation constitutes a threat to the life of the nation, but
also that all their measures derogating from the Covenant are strictly required by the
exigencies of the situation. In the opinion of the Committee, the possibility of
restricting certain Covenant rights under the terms of, for instance, freedom of
movement (article 12) or freedom of assembly (article 21) is generally sufficient
during such situations and no derogation from the provisions in question would be
justified by the exigencies of the situation.
6.
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.
7.
Article 4, paragraph 2, of the Covenant explicitly prescribes that no derogation
from the following articles may be made: article 6 (right to life), article 7 (prohibition
of torture or cruel, inhuman or degrading punishment, or of medical or scientific
experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of
slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of
inability to fulfil a contractual obligation), article 15 (the principle of legality in the
field of criminal law, i.e. the requirement of both criminal liability and punishment
being limited to clear and precise provisions in the law that was in place and
applicable at the time the act or omission took place, except in cases where a later law
imposes a lighter penalty), article 16 (the recognition of everyone as a person before
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