While a view was expressed that no derogation from the provisions of the draft instrument should be allowed under any conditions, there was support for derogation to be allowed in some circumstances.

Non derogation

Concern was expressed that establishing provisions of the draft instrument from which derogation was not possible would be tantamount to recreating this concept.

XII. Non derogation

Issue 3 Should there be mandatory provisions of the draft instrument from which derogation should never be allowed, and if so, what were they?

In response, it was indicated that only selected provisions of other international agreements would be applicable to the contract of carriage under the draft instrument, and that the proposed text of draft article 88a (5) would allow derogation from these selected provisions in a volume contract.

There was support for the contrary view that under no circumstances should derogation be allowed from certain provisions of the draft instrument, particularly those relating to seaworthiness under draft article 13.

Similarly, the Covenant listed rights from which there could be no derogation in the event of emergency, while the Constitution took the opposite approach, stipulating those from which derogation was permitted.

Some concerns were raised regarding the implications of never permitting a derogation from the seaworthiness obligations, particularly regarding any provisions of the draft instrument which could be connected to seaworthiness, such as limitations on liability.

Mr. Boulet (Belgium) said he saw no reason for explicit derogation to be required provided that a clear distinction was drawn by the parties between the terms agreed and the provisions of the draft convention.

The relationship between HRsL and LOAC IHL has often arisen in the context of derogation.

The view was also expressed that exclusive jurisdiction clauses should be limited to cases of derogation by certain volume contracts from the provisions of the draft instrument pursuant to proposed new article 88a (see above, para.

One advantage of the approach was said to be that it separated the issue of scope of application of the draft instrument from the issue of derogation from certain of the specific provisions of the draft instrument.

Proposed new article 88a was drafted to reflect the discussion in the Working Group regarding the possibility to derogate from the provisions of the draft instrument in certain cases regarding volume contracts, including the necessary conditions for such derogation, as well as some additional requirements.

These instruments provide for derogation of that right during genuine emergency situations.

The Chairman asked whether the Commission wished the commentary to state that treaty practice precluded any derogation from elements of the text that dealt with public policy issues determined by Governments, notably the final provisions under chapter IV.

The question of its conformity with the provisions of the Constitution would have to be duly determined by the Supreme Court, particularly with regard to the possibility of its entailing a derogation from chapter 2 of the Constitution.

More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of the International Covenant on Civil and Political Rights.

Derogation should be explicit so that the intention to derogate was clearly demonstrated.

Issue 4 Should a derogation from the provisions of the draft instrument that is applicable as between the carrier and the shipper extend to third parties to the contract who had expressly consented to be bound, and under what conditions?

The derogation scheme suggested could form the basis for further discussion, but that the informal drafting group should be requested to take into account the views outlined in the paragraphs above in its consideration of the necessary conditions required for derogation from the draft instrument.

She noted that certain rights were never subject to derogation (A 59 404, para.

States shall not invoke derogation clauses to justify taking hostages or to impose collective punishments.

Mr. Yamamoto (Japan) and Mr. Sandoval (Chile) expressed support for the principle of implicit derogation.

The principle of party autonomy is formulated in a way that would allow derogation from any provision of the Convention.

The burden is on the carrier to prove that the conditions for derogation have been fulfilled.

The importation of the materials in the first six categories (including war material) is prohibited, except in case of derogation, established by decree.

It was suggested that the primary purpose of such a provision in the draft instrument was to limit the ability of the parties to a volume contract to derogate from the provisions of the draft instrument and to avoid binding third parties to that derogation unless they expressly so consented.

2. A derogation under paragraph 1 shall be set forth in the contract and may not be incorporated by reference from another document.

The Geneva Conventions of 12 August 1949 contain explicit fair trial requirements that are not subject to derogation.

The seaworthiness obligation should be a mandatory provision of the draft instrument from which derogation was not allowed

Article 48 of the Constitution subjected derogation measures and their legal consequences to a series of effective safeguards and explicitly defined the prerequisites for declaring a state of siege all constitutional provisions prohibiting discrimination continued to apply and core individual rights could not be violated under any circumstances.

The Human Rights Committee sees no reason for derogation from them in other emergency situations falling short of war (general comment No. 29, para.

It was thought by some that express consent by the third party to the specific derogation should be required.

As the concept of implicit derogation would be open to interpretation by courts, it would create considerable legal uncertainty.

3. Derogation from Article 17 of the ICCPR following the suspension of Article 22 of the Constitution (right to privacy).

As the Human Rights Committee has noted, the Convention on the Rights of the Child does not include a derogation clause and applies in emergency situations.

The Committee also suggests that when examining the necessity for a particular measure in derogation of the Covenant, it can take the law of armed conflict into account.

An example raised in this regard was the commercially feasible situation where one party might purport to consent to a derogation on behalf of all of its buyers.

The Chairman said he took it that the Commission agreed that derogation could be either explicit or implicit and that that agreement should be reflected in the commentary.

Furthermore, derogation from a right enshrined in a basic law may only be made if it is pursuant to the values of the State and for a worthy purpose .

He also questioned the screening of conscientious objectors' applications by a committee composed of military personnel and the derogation from the rights of conscientious objectors in time of war.

Arbitration provisions in the Hamburg Rules

It has noted that safeguards related to derogation in article 4 are based on the principles of legality and the rule of law inherent in the Covenant as a whole (para. 16).

In these security provisions, general provisions are set out to minimize theft or misuse of dangerous goods.