DefinePK

Research Objective

To analyze the enforceability of non-derogable rights under the International Covenant on Civil and Political Rights (ICCPR) during states of public emergency and to provide recommendations for their effective enforcement.

Methodology

The research employs a comprehensive and multifaceted methodology, including qualitative and quantitative research approaches. Specifically, it utilizes Document Analysis, involving a thorough examination of relevant legal documents such as international treaties, conventions, domestic legislation, constitutional provisions, case law, and policy documents related to non-derogable rights.

Methodology Flowchart

                        graph TD;
    A["Document Analysis"] --> B["Examination of legal documents: treaties, legislation, case law, policy documents"];
    B --> C["Identify key legal principles and trends"];
    C --> D["Analyze ICCPR Article 4 and non-derogable rights"];
    D --> E["Assess challenges in enforcement during emergencies"];
    E --> F["Formulate recommendations for effective enforcement"];
    F --> G["Conclusion on enforceability"];                    

Discussion

The paper discusses the historical roots of non-derogable rights, their inclusion in international instruments like the ICCPR, and the challenges in balancing security needs with rights enforcement. It highlights the importance of judicial oversight, awareness among legal professionals, and adherence to principles of necessity and proportionality. The discussion also touches upon the criticism of derogation clauses and the debate surrounding the inclusion of Articles 9 and 14 in the list of non-derogable rights.

Key Findings

Effective enforcement of non-derogable rights during emergencies requires adherence to legal frameworks, proportionality, and a commitment to human dignity and the rule of law. While emergencies may justify certain limitations, the protection of non-derogable rights is paramount. States must take all necessary actions to prevent grave human rights violations and coordinate with international bodies. The ICCPR, particularly Article 4, outlines conditions for derogation and identifies non-derogable rights.

Conclusion

The ICCPR secures basic civil and political rights and provides a mechanism for their protection during public emergencies. Strict implementation of non-derogable rights requires adherence to principles like the Siracusa Principles and strict judicial interpretation. The inclusion of Articles 9 and 14 would further enhance individuals' ability to seek remedies and ensure fair trials.

Fact Check

* Article 4 of the ICCPR allows states to take measures derogating from their obligations during a public emergency threatening the life of the nation.
* Non-derogable rights explicitly listed in Article 4(2) of the ICCPR include the right to life (Article 6), prohibition of torture (Article 7), prohibition of slavery (Article 8, paragraphs 1 and 2), prohibition of imprisonment for contractual inability (Article 11), principle of legality in criminal law (Article 15), recognition as a person before the law (Article 16), and freedom of thought, conscience, and religion (Article 18).
* The research proposes the adoption of a Third Optional Protocol to elevate Articles 9 (protection against arbitrary arrest and detention) and 14 (right to a fair trial) to the level of non-derogability.

Mind Map