Derogation measures must be justified by law and subject to review.
- The national constitution and laws governing states of emergency shall provide for prompt and periodic independent review by the legislature of the necessity for derogation measures.
- Derogation from right recognized under international law in order to respond to a threat to the life of the nation is not exercised in a legal vacuum. It is authorized by law and as such it is subject to several legal principles of general application.
- The Committee recommends that States parties: Ensure that new constitutions provide for temporary special measures, apply to citizens and non-citizens, and guarantee that women’s human rights are not subject to derogation in states of emergency.
- In a public emergency the rule of law shall still prevail. Derogation is an authorized and limited prerogative in order to respond adequately to a threat to the life of the nation. The derogating state shall burden of justifying its action under law.
- Adequate safeguards and effective remedies shall be provided by law against illegal or abusive imposition or application of limitations on human rights.
- Every limitation imposed shall be subject to the possibility of challenge to and remedy against its abusive application.
- The burden of justifying a limitation upon a right guaranteed under the Covenant lies with the State.
- The holding of democratic elections and hence the very existence of democracy are impossible without respect for human rights, particularly the freedom of expression and of the press and the freedom of assembly and association for political purposes, including the creation of political parties. Respect for these freedoms is vital particularly during election campaigns. Restrictions on these fundamental rights must comply with the European Convention on Human Rights and, more generally, with the requirement that they have a basis in law, are in the general interest and respect the principle of proportionality.