A strict limitation on derogation applies to so-called non-derogable rights. Some rights under international treaties are so important that they cannot be derogated from even in times of emergency. Most human rights instruments explicitly list these specific rights.
example The European Convention on Human Rights and its Protocols lists the following rights as non-derogable:
- Right to life, except in respect of deaths resulting from lawful acts of war, Article 2
- Prohibition of torture and inhuman and degrading treatment, Article 3
- Prohibition of slavery, Article 4(1)
- Prohibition of retroactive criminal laws, Article 7
- Right not to be tried or punished twice for the same offence, Article 4 of Protocol No.7
- Abolition of death penalty, Protocol No 13
The list of non-derogable rights may be slightly different depending on the treaty, but this list always includes absolute rights. These rights can never be restricted under any circumstances, therefore, they also cannot be derogated from in times of emergency.
example The prohibition of torture is an absolute right. Torture cannot be inflicted on anyone under any circumstances regardless of whether there are threats to public interests or whatever the person is suspected to have done. This means that even emergencies such as war or the threat of a terrorist attack cannot justify a violation of the prohibition of torture.
Read more about absolute rights.
The list of non-derogable rights may also include some rights that are not considered absolute. These rights can normally be restricted, but they are subject to strict safeguards that cannot be suspended and must always be followed.
example The right to life is not an absolute right because a state can lawfully use lethal force against a person, for example, when defending the life of another person. However, the right to life is usually a non-derogable right which means that the strict rules and safeguards that apply when a state agent uses lethal force must always be observed, even in an emergency.
Some treaties do not provide for the possibility of derogating from rights at all. This may be because the treaty deals entirely with an absolute right (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment) or protects the most vulnerable members of society (Convention on the Rights of the Child). It may also be that the possibility of derogating was simply not considered necessary by the states when adopting the treaty.