| Summary: | LL.D. === This inquiry is about the derogation of human rights during states of emergency. International human rights law has blossomed since World War II. Over the years it has been understood that human rights can be limited or derogated (suspended) under certain circumstances. A set of standards has been developed through the different sources of international law to ensure that human rights abuses are avoided during states of emergency. Treaty law, as well as customary international law, provides definite standards that have to be adhered to during these circumstances. General principles of law recognised by “civilised” nations also contribute to the standard setting that must apply during states of emergency. The use of emergency powers during times of crisis is a world phenomenon. Human rights violations often occur in times of crisis when emergency powers are used. This has led to rich jurisprudence by the various international bodies that monitor, enforce and promote respect for human rights. All the sources of international law have contributed to ensuring that a prudent set of standards governs states of emergency. In this study these standards are set out and expounded upon. These standards are furthermore applied in three Southern African states. The history of states of emergency in these countries and the constitutional dispensations that govern states of emergency in each of these countries is placed under scrutiny and tested against the international standards that should apply. The picture that unfolds is not encouraging because there is not clear evidence that there is always respect for international law and the meticulous application of these standards. International and regional monitoring bodies have not always successfully discharged their obligations to promote human rights or to prevent human rights abuses during states of emergency. The main difficulty in the African Charter for Human and Peoples’ Rights is that it does not contain a derogation article, which forbids the abuse by the state of emergency instruments and curbs the abuse of power during states of emergency. The African Commission is plagued with difficulties, mainly pertaining to staff and resources. It often aspires to be “politically correct” in the face of state parties who are quick to rely on state sovereignty and thereby do not allow outsiders to monitor alleged human rights violations. The adoption of the Protocol to the African Charter on the establishment of an African Court is an important step in strengthening the African system for the protection of human rights. In Southern Africa, there is not a clear commitment to uphold and defend human rights through the relevant regional bodies – the correct statements are expressed in the treaty that formed the Southern African Development Community. There is however no authority to monitor or ensure compliance to ideals set out in the treaty. A route to overcome this difficulty is suggested, namely to negotiate a set of human rights standards in the region, without any legally binding effect initially but with strong persuasive and moral standing. This first step must provide a launching pad to ultimately have a Southern African Human Rights Treaty, with inter alia a tight derogation article as well as a treaty body with strong monitoring and enforcement powers. A regional commitment to uphold and respect human rights is a prerequisite to ensure that a human rights culture takes root in the service of stability and democracy in Southern Africa.
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