Devious Derogations

Most human rights treaties and conventions, with the notable exception of the African Charter,[1] contain a derogation clause. This allows the state to make the decision in “times of public emergency which threatens the life of the nation,”[2] to derogate from certain rights. States can act within their discretion, under the supervisory capacity of whichever convention they are deviating from, to apply the right of derogation. Certain rights, however, cannot be derogated from.In the International Covenant of Civil and Political Rights (ICCPR) these rights include Articles 6,7 and 8. The right to life, the prohibition of torture and the prohibition of slavery. These are referred to as ‘absolute rights.’ However, this raises the argument that other rights are therefore not absolute. If other rights can be derogated from in times of public emergency, potentially at a time when individuals are most in need of protecting their rights, then they are not universally adhered to. Derogation from rights directly contradicts the opening statement in the preamble of the ICCPR, “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family.”This Covenant is not alone in hypocritically stating that rights are both ‘inalienable’ or unchangeable and derogable when the state feels necessary. Brems suggests that “if no opening for derogation is left, a state might feel tempted in such as situation to disregard human rights at wish.”[3] However, if this is the case that states feel the need to disregard human rights then they are not fulfilling the requirements of the conventions of which they are party to. The ICCPR outlines “the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms.”[4] There should, therefore, be no exceptions which allows for certain human’s rights to be neglected.Article 9 of the ICCPR, for example, is one of the rights which can be legally derogated from in times of public emergency, it requires that “everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.” In the midst of the ‘war on terrorism’ some states have opted to derogate from such rights, especially in terms of infinite detention or detention without trial. In the case of Van Alphen v. The Netherlands the Human Rights Committee stated that detention ‘must not only be lawful but reasonable in all the circumstances’ and interference should be proportionate. A lot of discretion is left to the state to decide what is proportionate or necessary, “it is difficult to see how the detention of non-suspects for the purpose of questioning and intelligence gathering can be regarded as ‘necessary and reasonable in all the circumstances.’”[5]Is there ever a need to derogate from human rights? Surely as human beings, no matter who we are we all deserve to be treated equally with the same rights? And if not, are these Human rights at all? 

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[1] Eva Brems, Human Rights: Universality and Diversity (Kluwer Law International 2001) 125 [2] International Covenant on Civil and Political Rights (ICCPR) Article 4 (1) [3] Brems (n 1) 125 [4] ICCPR, Preamble [5] Christopher Michaelsen, ‘Derogating from International Human Rights Obligations in the ‘War Against Terrorism’?- A British- Australian Perspective,’ (2005) 17 Terrorism and Political Violence. 131, 135-136