Derogating from the European Convention on Human Rights in Response to the Coronavirus Pandemic: If not Now, When?

Abstract

This article argues in favour of the use of derogations in accordance with Article 15 of the European Convention on Human Rights in response to the COVID-19 pandemic. States of emergency are designed to quarantine exceptional powers to exceptional situations. In contrast, far from protecting human rights, failure to use Article 15 ECHR risks normalising exceptional powers and permanently recalibrating human rights protections downwards.

Part 1 outlines why the work of Carl Schmitt has distorted perceptions of states of emergency, emphasising their antagonistic relation to the extant legal order while ignoring their potential to protect legal norms in a time of normalcy by quarantining exceptional powers to exceptional situations. Part 2 then discusses illustrative examples of rights that may be affected by lockdown measures, arguing that ambiguity as to the scope of the right to liberty in Article 5 ECHR should be resolved in favour of as narrow an interpretation of Article 5 as possible, conceptualising lockdown measures as deprivations of liberty falling outside the scope of Article 5.1(e)—deprivation of liberty to prevent the spread of infectious diseases. Part 3 then addresses some of the critiques of derogations, arguing that the real risk of emergency powers is their propensity to become permanent. This risk is amplified by the failure to declare a de jure state of emergency. Ultimately, this article asks: if not now, when?

Keywords: Covid-19, state of emergency, European Convention on Human Rights, right to liberty, human rights, coronavirus, pandemic