States of Emergency - Centre for Policy Alternatives

language, religion or social origin), and not on the other grounds
encapsulated in the general prohibition on discrimination found in
Articles 2 (1) and 26. The excluded grounds in the attenuated list
in Article 4 (1) are political or other opinion, national origin,
property, and birth or other status. Secondly, even in relation to
the included grounds, what Article 4 (1) prohibits is
discriminatory derogating measures based solely on those
grounds. Therefore, the derogation clause allows derogating
measures to discriminate even on grounds of race, colour, sex,
language, religion or social origin, provided that the measures are
connected to some other reasonably justiLiable grounds, such as
grave military exigencies which are demonstrably necessary to
overcome the threat posed by the crisis.
While these limitations on the scope of application of the nondiscrimination
principle may be criticised, the travaux
préparatoires of the ICCPR shows that they were based on
practical policy grounds to ensure States’ subscription to the
treaty. 261 Moreover, as Oraá argues, “Although the extent of the
non‐discrimination provision is limited, its inclusion in the
derogation clause is commendable because the risk of taking
discriminatory measures based only on racial prejudice and
hatred towards minorities is greater in situations of
emergency.” 262 However, he adds that “…derogating measures
should be carefully scrutinised…in order to assess whether these
measures have an objective justiLication, e.g. for military necessity,
or are based exclusively on prejudice against minorities.” 263
261
See Oraá: p.172‐174
262
Ibid, p.189
263
Ibid
167