The state and the right to derogate under International Human Rights Law

International Human Rights instruments contain both derogable and non-derogable rights. Derogations allowed with regard to lawful acts of war are permitted, subject to strict criteria of necessity and lawfulness. These derogations exist to take the realities of war and situations of public emergency into account while providing the utmost protection to those under the state's power.

The International Covenant on Civil and Political Rights (ICCPR) states that derogations may be made from the provisions of the Covenant in times of an officially proclaimed public emergency, which “threatens the life of the nation”. This measure is curtailed by requirements stating that the derogation must be strictly required in the context of the emergency and must not be based on discriminatory grounds of “race, colour, sex, language, religion or social origin”. No derogation is allowed from Article 6-the right to life-or Article 7-the right not to be subjected to torture or to cruel, inhuman or degrading treatment. Notably, the right to life provides that nobody should be “arbitrarily” deprived of his or her life. It is within this word that deaths in the context of conflict can fall outside the remit of the right to life in the ICCPR. Military action carried out in a legitimate fashion will not, in the event of deaths incurred, amount to a breach of this right as it will not be considered unlawful, therefore not ‘arbitrary.’ However, the lex specialis of International Humanitarian Law would be engaged in the context of an armed conflict. Article 17 protects the individual from unlawful interference with one’s privacy, family, home and correspondence. Article 23 notes the status of the family as “the natural and fundamental group unit of society” and emphasises that it should be protected by the state. These articles are derogable in times of emergency but nevertheless point to an understanding of the importance of the family unit and offer a commitment to protect that unit. The measures in the ICCPR are drawn directly from the Universal Declarations of Human Rights, which recognises the above rights as the “inalienable rights of all the members of the human family” which are the “foundation of freedom, justice and peace in the world”.