Emergency powers and COVID-19 derogations

Abstract Confronted with COVID-19, states have taken emergency measures derogating from human rights obligations. With the pandemic now declared over, it is time to review state practice and the derogation systems under international human rights treaties. This article examines all 373 notifications sent from states to the treaty organs of three treaties—the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the American Convention on Human Rights (ACHR)—from January 2020 until May 2023. The dataset shows three major observations of diversity in state practice: extensions of derogation, domestic legal basis of emergency measures, and divergence in regional practice. First, the length of derogation periods shows wide variance. States have made different decisions on the duration of derogations. This variability results from the absence of limits on the duration or number of extensions of derogation. Second, state practice on notification varied depending on the domestic legal system of emergency controls. Many states have equated derogation from international human rights obligations with their own constitutional emergency provisions. Lastly, there was a regional divide in practice. Eastern European and Latin American states, which have experienced democratic backsliding in recent years, were much more active in submitting notifications than those in other regions. Asian and African countries did not actively notify international treaty systems. Several factors may explain this, including the existence of regional human rights systems, past experience of abuse of power, and different designs of constitutional emergency powers. The types of emergencies and legal methods of control have evolved. So too should the derogation systems to ensure the international monitoring system remains effective even in times of crisis.