Derogations from the European Convention on Human Rights in the Context of COVID-19 Pandemic

2020 has been marked with unprecedented COVID-19 pandemic situation which gave rise to a legal debate on the issues of derogation from international human rights instruments. Does the pandemic require derogation from human rights treaties? There is no explicit response to this question neither among the researchers, nor within the states’ practices. 31 states have derogated from their international human rights obligations (at least under one of the following documents: International Covenant on Civil and Political Rights, European Convention on Human Rights (hereinafter – ECHR) or American Convention on Human Rights) and formally notified international organizations. A number of states have declared a state of emergency, however, formally did not notified the international organizations, the others decided to declare different legal regimes (for instance, state of epidemic, state of crisis, quarantine, etc.). Therefore, although the content of the measures undertaken by the states is broadly similar, the frameworks within which those measures have been applied differ. Researchers are also divided, some claim that pandemic situation is the closest to the “ideal state of emergency” and failing to derogate would risk to normalize exceptional powers. Others disagree by claiming that emergency powers carry a grave risk of being abused, moreover, impact of derogation will be very limited, since the majority of rights, from which states are usually derogating, allows limitations for protection of health and public order even without any emergency (for instance, a right to private life, freedom of assembly, etc.). The purpose of this article is to analyze the conditions set out in the ECHR allowing states to derogate from the obligations under the ECHR, as well as review states’ practices in applying these derogations in the context of COVID-19 pandemic. The article focuses on the analysis of the provisions of the ECHR and the case law of the European Court of Human Rights (hereinafter – ECtHR) and the European Commission of Human Rights. It also examines the provisions of other international instruments, which highlight the differences between the conditions for derogations. Moreover, the article discusses the international supervision of derogation regimes. International judicial and quasi-judicial bodies (for instance, ECtHR) predominantly act post factum and their role in supervision of derogation regimes is quite limited, however, the role of non-judicial bodies (for instance, Secretary General of the Council of Europe) is emerging, since they are better suited to impact the ongoing situation