States of Emergency - Centre for Policy Alternatives

The only occasion in which the Human Rights Committee dealt
with an allegation of discrimination through emergency measures
in contravention of the provisions of Article 4 (1) was in
Weinberger
 v.
 Uruguay (1978), 264 in which the communication
alleged discrimination solely on grounds of political opinion.
However, since the State Party was unable to substantiate an
actual state of emergency in fact or law, and thereby the
circumstances for a valid derogation, the Committee found in
favour of the author of the communication on other grounds
(Article 25) on the basis of normal standards used in peacetime. 265
In General Comment No. 29, the Human Rights Committee
adumbrated the following standards:
“According to article 4, paragraph 1, one of the conditions
for the justiLiability of any derogation from the Covenant
is that the measures taken do not involve discrimination
solely on the ground of race, colour, sex, language, religion
or social origin. Even
 though
 article
 26
 or
 the
 other
Covenant
 provisions
related
to
non‐discrimination
(articles
2,
 3,
 14,
 paragraph
 1,
 23,
 paragraph
 4,
 24,
 paragraph
 1,
and
 25)
 have
 not
 been
 listed
 among
 the
 non‐derogable
provision
 in
 article
 4,
paragraph
 2,
 there
are
elements
or
dimensions
of
 the
right
 to
 non‐discrimination
 that
 cannot
be
derogated
from
in
 any
circumstances. In particular, this
provision of article 4, paragraph 1, must be complied with
if any distinctions between persons are made when
resorting to measures that derogate from the
264
Weinberger
v.
Uruguay, Communication No.26/1978, adoption of
views, 29 th October 1980, 11 th Session
265
However, see the position under the ECHR in Ireland
v.
UK, 2 EHRR 25,
and under the ACHR in the Nicaragua
–
Miskitos
Case, IACHR, p.120
168