English  |  Espa˝ol  |  Franšais  |    |    | 
 
 

CROSS-CUTTING ISSUES

Derogation

ICCPR

Art. 4 (1) : "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."

Art. 4 (2) : "No derogation from articles [.] 18 may be made under this provision."

[Go back to the Framework for communications]

Excerpts of relevant paragraphs of 20 years mandate reporting practice (1986-2006)

E/CN.4/1998/6, para . 115:

"115. As the Special Rapporteur's reports, including mission reports, have shown, the issue of "sects" or "new religious movements", is complicated by the fact that international human rights instruments provide no definition of the concept of religion and do not mention the concepts of sect and new religious movement. The Special Rapporteur recalls that, in its general comment 22 of 20 July 1993 concerning article 18 of the International Covenant on Civil and Political Rights, the Human Rights Committee states that the right to freedom of thought, conscience and religion is farreaching . It notes that freedom of thought and conscience are protected equally with freedom of religion and belief. The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4 (2) of the Covenant. The Committee also points out that restrictions on the freedom to manifest religion or belief are permitted only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others and are not applied in a manner that vitiates the rights of freedom of thought, conscience and religion. The Committee also states that "limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner". "

A/58/296, para . 134:

"134. First, many States have taken the simplistic view that, since religions are at the root of many terrorist acts, the most direct means of preventing such acts is to limit the existence of religion and have focused their genuinely or purportedly counter-terrorist activities on limiting the exercise of civil and political rights, including the right to freedom of religion or belief. By choosing that path, these States have clearly misinterpreted the non- derogable nature of the right to freedom of religion or belief under article 4 of the International Covenant on Civil and Political Rights, which states that even "in time of public emergency which threatens the life of the nation" no derogation is permitted from article 18 of the Covenant (see also General Comment 22 of the Human Rights Committee). Specifically, it appears that, by imposing restrictions which in practice were equivalent to actual derogations, at least in their effects, various State authorities have often failed to understand the essential difference between the restrictions that can be made under specific conditions and for specific purposes under article 18, paragraph 3, of the Covenant and the non- derogable nature of the right to freedom of religion or belief."

E/CN.4/2005/61, paras . 59-60:

"B. Anti-terrorist legislation

59. Over the last few years, many States have adopted legislation and other measures designed to fight against terrorism. Some of these laws and measures have, however, presented a simplistic link between terrorism and religion which, in turn, may have contributed to provoking even more acts of religious intolerance leading to violence.

60. The Special Rapporteur underlines that freedom of religion or belief is a fundamental right that is not susceptible of derogation, even in time of emergency or because of national security concerns, as is clearly stated in article 4 of ICCPR. This aspect of freedom of religion or belief not only implies that no individual can be deprived of this right even in time of emergency, but also that States should avoid equating certain religions with terrorism as this may have adverse consequences on the right to freedom of religion or belief of all members of the concerned religious communities or communities of belief."

E/CN.4/2006/5, para . 42:

"42. The controversy under international human rights law [concerning religious symbols] tends to centre on possible limitations on the freedom to manifest one's religion or belief, e.g. according to article 29 (2) of the Universal Declaration on Human Rights, article 18 (3) of the International Covenant on Civil and Political Rights, article 1 (3) of the Declaration, article 9 (2) of the European Convention on Human Rights (ECHR) and article 12 (3) of the American Convention on Human Rights ( AmCHR ). Generally speaking, these clauses only accept such limitations as are prescribed or determined by law and are necessary - in a democratic society - to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The list of permissible reasons for intervention notably does not include additional grounds stipulated for different human rights, e.g. national security or the reputations of others. Furthermore, article 4 (2) of the Covenant and article 27 (2) of AmCHR prescribe that, even in time of public emergency or war, no derogation from the freedom of conscience and religion is permissible. That this right is non- derogable again underlines the importance of the freedom of religion or belief."

[Go back to the Framework for communications]

Site map  Contact us