States of Emergency - Centre for Policy Alternatives

Finally, it is clear from both the textual formulation of Article 4 (1)
as well as General Comment No. 29 that there are three
substantive conditions which must be adhered to by States
seeking to derogate from rights during a state of emergency. These
are the requirements that the derogating measures must only be
‘to the extent strictly required by the exigencies of the
situation’ (i.e., the principle of proportionality), that such
measures must ‘not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin’ (i.e., the
principle of non‐discrimination), and that the measures are ‘not
inconsistent with…other obligations [of the State] under
international law (i.e., the principle of consistency). Each of these
substantive requirements, being conditions precedent to the
invocation of the derogations clause, must be examined in turn.
Moreover, attention must be drawn to an important issue of legal
construction raised in General Comment No. 29. Having
enumerated the list of non‐derogable rights in Article 4 (2), the
Human Rights Committee makes the following observation:
“The rights enshrined in these provisions are nonderogable
by the very fact that they are listed in article 4,
paragraph 2. The same applies, in relation to States that
are parties to the Second Optional Protocol to the
Covenant, aiming at the abolition of the death penalty, as
prescribed in article 6 of that Protocol. Conceptually,
the
qualiKication
 of
 a
 Covenant
 provision
 as
 a
 non‐derogable
one
does
not
mean
that
no
limitations
or
restrictions
would
ever
be
justiKied.
The
reference
in
article
4,
paragraph
2,
to
article
 18
 [i.e.,
 the
 freedom
 of
 thought,
 conscience
 and
religion],
 a
 provision
 that
 includes
 a
 speciKic
 clause
 on
restrictions
 in
 its
 paragraph
 3,
 demonstrates
 that
 the
permissibility
of
 restrictions
is
independent
 of
the
issue
 of
159