The same applies in relation to States that are parties to the Second Optional Protocol to the Covenant, the Committee added. The Second Optional Protocol aims at the abolition of the death penalty. According to the Committee, "[c]onceptually, the qualification of a Covenant provision as a non-derogable one does not mean that no limitations or restrictions would ever be justified… Even in times of most serious public emergencies, States that interfere with the freedom to manifest one's religion or belief must justify their actions by referring to the requirements specified in article 18, paragraph 3".
In any event, where a derogation is invoked, there is an obligation under Article 4(3) to notify other States parties through the United Nations Secretary-General and to indicate the provisions from which a State has derogated and the reasons for such derogation.
Many governments, such as the Government of India, have not publicly declared a state of emergency but have taken emergency measures that derogate from treaty obligations in violation of Article 4 of the ICCPR. The Secretary General is often not informed.
Under Article 2(2) of the Convention Against Torture, torture is prohibited in all circumstances. Yet, governments in many countries turn a blind eye to the use of torture. Others have laws that facilitate the use of torture, for example, by making confessions to police officers admissible at trial. In some cases, children have been arrested under anti-terrorist laws in violation of the Convention on the Rights of the Child (CRC).
The issue of terrorism and human rights is not new to the United Nations. The CHR has been adopting resolutions on human rights and terrorism in the last few years. The Sub-Commission on the Promotion and Protection of Human Rights has mandated one of its members to carry out an analysis of the subject. Its Special Rapporteur, Kalliopi K. Koufa, has already submitted a preliminary report (E/CN.4/Sub.2/1999/27) as well as a progress report (E/CN.4/Sub.2/2001/31).
Following the events of 11 September 2001, the Security Council in Resolution 1373 (2001) decided "to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council, consisting of all the members of the Council, to monitor implementation of this resolution, with the assistance of appropriate expertise…" It also called on States to report to the Committee on the steps taken to implement the resolution.
The use of "appropriate" expertise, as mentioned in the Security Council resolution, need not - and, in fact, should not - be restricted to security expertise. As part of her report titled "Human rights: a uniting framework", submitted at the 58th session of the CHR, High Commissioner for Human Rights Mary Robinson put forth "proposals for further guidance" for the submission of reports to the Counter-Terrorism Committee (E/CN.4/2002/18), including having this process commit to showing that counter-terrorism measures are "guided by human rights principles contained in international law".
However, the CHR ignored the High Commissioner's recommendations and adopted a generic resolution (2002/35) at the 58th Session. In an interview with Human Rights Features in April 2002, High Commissioner Mary Robinson stated: "The Counter-Terrorism Committee said that they would consider the recommendation to have a human rights expert. They are reluctant, as I understand it, to, as the Counter-Terrorism Committee, issue further guidelines on human rights."
As
the text of the CHR resolution 2002/35 remained generic, it failed
to address the post-11 September situation appropriately by refusing
to include human rights experts in the Counter-Terrorism Committee.
This constituted a major step backwards.
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