Dissecting Covid-19 Derogations
Niall Coghlan · intR2Dok (Staatsbibliothek zu Berlin) · 2020
Does the pandemic require derogation from human rights treaties?This question has sparked significant debate, notably spurred by Alan Greene's provocative argument that failing to derogate would denature ordinary human rights law and leave the start and end points of the crisis unclear.Others disagree: Scheinin argues the principle of normalcy, contained in General Comment 29, should continue to apply.Only where ordinary human rights provide inadequate flexibility should derogation be considered, and even then the principle should continue to limit the derogations.Several analyses have complemented this debate, analysing the ECtHR's practice (Molloy), the detail of the European derogations save San Marino's (Zghibarta), the prospect of enhanced political supervision of derogation particularly following PACE Resolution 2209 (2018) (Epure), the mechanics of notification under the ECHR (Holcroft-Emmess) and the overarching Treaty frameworks (Emmons).The UN Human Rights Committee itself has weighed in, issuing a statement criticising aspects of Covid-19 derogation practice on 24 April.This post seeks to complement this debate in two ways.First, it will summarise the state practice during this crisis, mapping the derogations to date from European, American and international human rights systems (I).Second, it will draw some tentative conclusions from this practice (II).This partly intends to serve as a starting point for future empirical research which will no doubt exhaustively analyse how far derogation is correlated with the severity of the virus, the restrictiveness of measures and other factors (compare Hafner-Burton et al.).Such research is already underway as to national states of emergency.It will also bring into the above debate the American Convention on Human Rights (ACHR), whose derogation practice has been neglected until now.For a good overview of the Inter-American system's approach to the crisis more broadly, see Piovesan and Morales Antoniazzi.