Non-derogability in ICCPR and ICESCR Kamal Raj Sigdel, University of Sydney, MHRD Student Fellow The concept of non-derogability

has been one of the important aspects of the international human rights laws and treaties. Some of the important treaties concerning human rights, including the ICCPR1 have special provisions explaining whether its member states can derogate from certain rights during some exceptional situations. States believe that some provisions of dirogability are necessary to allow them exercise their sovereign power during exceptional circumstances for the greater good of their people. However this kind of derogation is not unconditional and it has its own limits. There are also certain unique and inherent human rights, which can never be curtailed under any circumstances. ICCPR, which also allows states to suspend some of the rights under specific conditions, clearly mentions that some of the articles are non-derogable. They are: Right against arbitrary deprivation of life (Article 6) freedom from torture or cruel, inhuman and degrading treatment or punishment; and freedom from medical or scientific experimentation without consent (Article 7), freedom from slavery and servitude (Articles 8(1) and (2)) freedom from imprisonment for inability to fulfil a contractual obligation (Article 11) prohibition against the retrospective operation of criminal laws (Article 15) right to recognition before the law (Article 16) freedom of thought, conscience and religion (Article 18).

This, however, does not mean that all other rights are derogable at the will of the state. Article 4 of ICCPR mentions some specific conditions of derogation2. This indicates that provided some conditions such as existence of real emergency, threat to life of a nation, official proclamation of emergency, and guarantee of non-discrimination are met, states
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Others include: American Convention on Human Rights (ACHR) and European Convention on Human Rights (ECHR). Article 4 of ICCPR states that in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

could derogate from a number of human rights as long as they are not the ones that are mentioned as non-derogable. Now the questions is what make these non-derogable rights so unique that they could not be derogated under any condition. This simply generates other questions as to why several other rights are considered derogable? Why is the question of derogability associated only with civil and political rights and not with economic, social and cultural (ESC) rights? One of the unique features of these rights is that these rights are, as mentioned in UDHR3, inherent and fundamental to all human persons and therefore inalienable. More importantly, some of these non-derogable rights are absolute rights, meaning they could not be restricted under any conditions. These include freedom from torture (Article 7), freedom from slavery (Article 8), freedom from imprisonment for inability to fulfill a contractual obligation (Article 11), protection against retrospective criminal laws (Article 15) and right to recognition before the law (Article 16) are absolute rights, which means it cannot be suspended or restricted under any condition whatsoever. The killing of 49 detainees in Nepal by military personal during the conflict could be taken as a case in point. Nepal, as a party to ICCPR, would not be able to justify the violence whatever the circumstances during the 1996-2006 civil war. Some other non-derogable rights are however, non-absolute. The right to life, for instance, means state must not deprive a person from life arbitrarily or unlawfully. The condition of arbitrarily or unlawfully also indicates that under some special circumstances states could justify killing of a person, for example during self-defense or as death penalty4. These conditions, however, are not meant to allow any state some loopholes to violate these rights. There would, for example, be no excuse to the perpetrators responsible for the death of over 1500 civilians in Kenya during 2007 post-election violence, for the mass killings of 1971 in Bangladesh, for the arbitrary suspension of religious freedom during 1980s and 1990s in
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Notably, all the non-derogable rights mentioned in ICCPR are burrowed from first few articles of the Universal Declaration of Human Rights (UDHR) such as Article 3 on right to life, Article 4 on freedom from slavery, Article 5 on freedom from torture, Article 6 on right to recognition as a person before law. 4 Similarly, Article 18, which is freedom of thought, conscience and religion is non-derogable but still it could be subject to limitations in accordance with Article 18 (3) when state finds it necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Bhutan and for the killings of over 16,000 people in Nepal (Phombeah 2012, Karlekar 2006, p150; US Department of State 2010; Sigdel 2011). The uniqueness of these important civil and political rights could also be understood by the fact that states agreed to make them non-derogable. These rights are so unique that it can never become necessary to derogate from these rights during a state of emergency (General Comments 29, para11). This definitive substance makes these rights unique and nonderogable. Take for instance, the right against arbitrary deprivation of life (Article 6). There could be no circumstance or emergency whereby it would be in the public interest to arbitrarily kill people. The non-derogable rights are unique also because in their absence any state can turn into authoritarian and dictatorial where humans are deprived of their inherent dignity. It is much easier to restrict these crucial civil and political rights as compared to other rights. One important feature about non-derogable rights is that, they are not just limited to these seven articles identified in Article 4 (2). The General Comment of has mentioned some other rights such as right of habeas corpus, right to fair trial and defense as non-derogable5. Why derogability is not part of IESCR? Like civil and political rights outlined in ICCPR, ESC rights are the other equally important set of rights protected universally by the ICESCR. In principle, both the rights inscribed in ICCPR and ICESCR are regarded as equally important and states are supposed to promote them with equal priority. For these rights are indivisible and interdependent as mentioned in the Universal Declaration of Human Rights (UDHR) 1948. However, the very dichotomy of these two sets of rights inscribed in two separate covenants indicates that there are some real differences in handling them.

This is for the simple reason that there would be no meaning of protection provisioned in Article 4 of ICCPR if the states are not required to ensure procedural facilities in order to claim those rights in case of violations. The right to seek effective remedy and judicial review would be one of them.

One of the glaring differences is that while the states thought it necessary to identify some of the rights in ICCPR as non-derogable, this was not an issue when it came to ICESCR. To understand why non-derogability is not a part of ESC rights, it is necessary to understand the nature and substance of the rights inscribed in ICESCR and how they are different from civil and political rights. According to ICESCR, the ESC rights include those rights that make human life dignified. These include, among others, an equal access to adequate food, work, housing, health care, education and culture. While most of civil and political rights are negative rights which prohibit states from taking unlawful actions against an individual, the ESC rights are the ones that speak of states duty to take positive action towards their realization. However, unlike civil and political rights, states are not obliged to fulfill these rights with immediate effect. ICESCR makes it clear that these rights could be realized progressively depending on the availability of resources. According to this theory, right to adequate housing, for instance, could be impossible for some developing countries to realize immediately given the scarce resources and lack of necessary infrastructure. Similarly, given the hard fact that over one billion people still live in circumstances of extreme poverty, homelessness, hunger and malnutrition, unemployment illiteracy and chronic illhealth, states cannot commit to address all these problems immediately6. This very need for progressive of realization is one of the reasons why states agreed to not make non-derogability a part of ICECSR. In practice, the civil and political rights could be both curtailed or realized instantaneously though simple legislation by state, whereas ESC rights are progressively realized because they are not just fulfilled by a political decision. They demand long-term positive action by state. Similarly, making non-derogability a part of ESC rights could have also been counterproductive. We can think of a scenario where states agree to make some ESC rights
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However some could argue that there are some steps that states can take immediately such as the obligation to ensure non-discrimination -- Article 2(2)-- and refrain from actively violating economic, social and cultural rights or withdrawing legal and other protection relating to these rights. Such commitment, however, make up a very minor part of ICESCR. Much of the ICESCR has to do with rights that could be realized only progressively through long-term effort and engagement.

non-derogable. Making non-derogability a part of ESC rights would mean to believe that some of these rights could, and therefore, should be promptly realized. Such a provision would drive many states from agreeing on the treaty7. Even if they agreed to immediately fulfill some rights that will not be enforceable. Given the practical difficulties in realizing those rights, the non-derogability provision could run the risk of making ICESER a failure. A number of reasons could contribute to that failure: developed countries reluctance to provide financial assistance, the lack of administrative capacity of developing nations to channel and utilize the resources available, lack of good governance and so on. The conception that ESC rights are very complex and therefore are not enforceable or justifiable can also be said to have contributed to drive non-derogability away form ICESCR. So given these complications, states avoided introducing non-derogability as part of the ICESCR. The challenge, however, is still in enforcing these treaties in their letter and spirit. The question of non-derogability should continue to be a matter of discussion given the states failure to keep their end of the promise as state and non-state actors continue to perpetrate violence with impunity and millions still continue to live in abject poverty, unemployment, malnutrition and several other forms of deprivations.

References Human Rights Committee (2001). General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11.
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What is always important during formulation of any transnational law is to achieve a document of compromise, which has wider acceptance. In perusing an ideal and perfect treaty, the states run the risk of ending up achieving nothing.

Karlekar, Hiranmay (2006). Bangladesh: The Next Afghanistan?. Sage. p. 150. ISBN 9780761934011. Sigdel, Kamal Raj. (2011). Transitional justice mechanisms, The Kathmandu Post, December 14. Retrieved on March 4, 2013 from http://174.120.89.170/the-kathmandupost/2011/12/14/top-story/transitional-justice-mechanisms/229304.html Phombeah, Gray. (2012). Can Kenya avoid elections bloodshed, BBC 16 October 2012, retrieved on March 4, 2013 from http://www.bbc.co.uk/news/world-africa-19948429 US Department of State, 2010 Report on International Religious Freedom - Bhutan, 17 November 2010, available at: http://www.unhcr.org/refworld/docid/4cf2d0b16e.html [accessed 4 March 2013]