Dissecting Covid-19 derogations

Abstract

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.