Preliminary Study On Application Of Derogation Of International Covenant On Civil And Political Rights In China

Human rights protection under emergency is the deep concern among the background of international human rights law,for the background of internationalized human rights protection,China is going to ratify International Covenant on Civil and Political Rights.The derogation clause in the Covenant regulates that the Covenant Party is eligible to derogate the duty of human rights protection after the nation formally declares state of emergency.The derogation clause provides the binding principle of human rights derogation,which is the basic rights can not be derogated,the derogation measures should be strictly confined within the necessary scope,forbidding to take biased derogation measures purely because of discriminative intention,banning the measures against with other international law duties,should promptly notify the UN Secretary-general about the reasons and measures of taking the human rights derogation.Though China has not formally declared emergency status since 1999,however, recent years out breaking events such as Wenchuan earthquake giving rise to regional emergency situation de facto.Referring to human rights derogation provisions in the International Covenant on Civil and Political Rights about human rights derogation regulation under emergencies,China' s emergency legislations are major reflected in the Constitution,Curfew Law and React Law on Emergencies,the existing flaws in the fore-mentioned laws need to be revised.The rescue action of 2008 snow disaster testified some frail segments,including no formal national declaration on the classifications and grades, no complete implementation by the commanding and executing organs,then uncertain mechanism for the army participating in the disposal of outbreaking events,defects in the social mobilization,and so on.In order to make good preparations for the application of derogation provisions in the International Covenant on Civil and Political Rights,it is necessary for China to submit reserves on the "free rights on ideology,conscience and religion ",as well as enact Emergency Law based on current legislations,formulate implementing details by-laws on React Law on Emergencies,at the same time accumulating experiences about declaring emergency situation in the practice of implementing the React Law on Emergencies, setting hands in considering related theoretical study and governmental institutions of composing derogation reports.