territorial and temporal scope of the measure adopted. This implies that
the necessity of the state of emergency itself and the derogation measures
should regularly be reviewed by independent organs, in particular the
legislative and judicial branch. The measures must also be consistent
with other obligations under international law, particularly the rules of
international humanitarian law and the peremptory norms of international
law.
(a) Non-derogable human rights
Derogation from certain human rights set out in international human
rights treaties is prohibited, even in a state of emergency. Article 4 (2)
of the International Covenant on Civil and Political Rights identifies as
non-derogable the right to life, freedom from torture or cruel, inhuman
or degrading treatment or punishment, the prohibition against slavery
and servitude, freedom from imprisonment for failure to fulfil a contract,
freedom from retrospective penalties, the right to be recognized as
a person before the law, and freedom of thought, conscience and
religion. In its general comment N° 29, the Human Rights Committee
has also emphasized that the Covenant’s provisions relating to procedural
safeguards can never be made subject to measures that would circumvent
the protection of these non-derogable rights. Regional human rights law
has also emphasized the importance of procedural guarantees. The InterAmerican Court of Human Rights, for example, has stated that “writs
of habeas corpus and of ‘amparo’ are among those judicial remedies
that are essential for the protection of various rights whose derogation is
prohibited… and that serve, moreover, to preserve legality in a democratic
society.… The constitutions and legal systems of the States parties
that authorize, expressly or by implication, the suspension of the legal
remedies of habeas corpus or of ‘amparo’ in emergency situations cannot
be deemed to be compatible with the international obligations imposed
on these States by the Convention.”46
Further to this list of non-derogable rights, article 4 (1) of the Covenant
specifies that any derogating measures must not be inconsistent with
obligations under international law which, as the Human Rights Committee
has pointed out in its general comment N° 29, includes obligations
under international human rights law, international humanitarian law
and international criminal law. The Committee also identified rights and
freedoms under customary international law (which is applicable to all
States) that may not be derogated from even if not listed in article 4 (2).
The Human Rights Committee has identified as customary law rights: the
right of all persons deprived of their liberty to be treated with humanity
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