Page - 302 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE302 international law, it appears that it would be only in exceptional cir- cumstances, none of which have been identified by the committee, that the right to return could possibly be legally limited in ordinary times.7 One legally possible justification for states to obstruct the exer- cise of the right to return is through the derogation clause found at Article 4(1) of the ICCPR. This article permits states parties to dero- gate temporarily from some of their ICCPR obligations in times of public emergency. It reads as follows: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.8 As Sarah Joseph notes, this provision is not a “blank cheque.”9 Derogations measures are only permitted in extreme circumstances and must be proportionate and consistent with other international human rights obligations. Furthermore, there are rights (listed in Article 4(2)) from which a state may never derogate.10 Finally, the state 7. The Travaux Préparatoires to the ICCPR reveal that the only limitation on this right, expressed with the word “arbitrarily,” was intended to apply exclusively to cases of lawful exile as punishment for a crime, whether accompanied by a revocation of citizenship or not. However, in its concluding observations on the Dominican Republic, the UNHRC stated in 1993 that “punishment by exile is not compatible with the Covenant.” See Sara Joseph & Melissa Castan, The   International  Covenant  on  Civil  and  Political  Rights, 3rd ed (Oxford: Oxford Univer- sity Press, 2013). See also: Marc J Bossuyt, Guide  to  the  ‘Travaux  Préparatoires’  of  the  International  Covenant  on  Civil  and  Political  Rights (Dordrecht: Martinus Nijhoff Publishers, 1987), at 260-63; Manfred Nowak, UN Covenant on Civil and Political Rights:  CCPR  Commentary (Kehl & Rhein, Germany: NP Engel, 1993) at 219. 8. International  Covenant  on  Civil  and  Political  Rights, GA Res 2200A (XXI), 21 UNGAOR, Supp No 16, UN Doc A/6316 (1966) at 52. 9. Sarah Joseph, “A Timeline of COVID 19 and Human Rights: Derogations in Time of Public Emergency”, Griffith  News (5 May 2020), online: <news.griffith.edu. au/2020/05/05/a-timeline-of-covid-19-and-human-rights-derogations-in-time-of- public-emergency>. 10. These are the right to life, the prohibition of torture and other cruel, inhuman, or degrading treatment or punishment, the prohibition of slavery and servitude,