Updated: Aug 5
Student, Babes-Bolyai University, Romania
Managing Editor, South Asian Journal of International Law
Introduction: A disparity of measures
When studying the impact of Spanish Influenza on the collective memory of the American Society, A. Crosby compares the health crisis with a secret current sweeping a fleet of many vessels downstream. As the immense flow swamps the ships and their sailors down, others take little notice as they are intent on maintaining their own unwavering course. As striking the comparison is, it reflects the fragile nature of emulating a homogenous response to an unprecedented crisis. Over a century past the events of the 1918 epidemic, the world is facing a swift disruption caused by another biological threat, now in the form of SARS-CoV-2. With few exceptions, Crosby’s daunting metaphor might still describe to a certain extent the political and social imagery the new pandemic created. As new cases soar, states resort to predominantly unilateral responses and, while certain international actors such as WHO might play an authoritative role, the device of economic and political action is commandeered by national governments.
For several countries, one might find a common approach in the increasing rebalancing process of state power. In his magnum opus, Mommsen asserted that Carthage was ruled by the aristocracy in times of peace and by a king through the hardships of war. Albeit statecraft evolved and the power is now dissolved under Montesquieu’s triarchy, the emerging crisis (now, under the form of COVID-19) blurred this distinction as many executives start to impose restrictions suo motu, thus shifting the balance in their favour. But even whereas the executive force is conferred overarching attributes by constitutional means, the very idea of emergency echoes the infamous legacy of Weimar Constitution’s Art. 48. After World War II, however, the emergence of human rights treaties articulated an ideal state of emergency as its requirements are tamed by post-war principles such as necessity and proportionality. It is up for state practice to mirror this theoretical model, now on the occasion on the derogation from such conventions.
To derogate or not, the question is irrelevant
The dissuasive psychology of Covid-19 has enabled certain states to use derogation clauses inserted in human rights treaties. Before the pandemic, the research outlined a total of 33 countries derogating from such conventions. As of April, however, Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia and Romania alone have notified the Secretary-General of the Council of Europe of their derogations from the European Convention on Human Rights. Art. 15 of the ECHR allows states to temporarily suspend the application of the treaty, excepting the provisions related to the right to life, the prohibition of torture, slavery or servitude and the nulla poena sine lege principle. Traditionally, derogation is resorted to by stable democracies and countries with strong judiciaries in order to buy time and reduce censure from voters, interest groups, and judges and so, it might be seen as a device of legitimacy. On the other hand, autocratic regimes wouldn’t bother with official derogations given the lack of such inclusive institutions meant to hinder eventual violations. Yet is seems such classic theoretical generalizations might no longer provide an explanation as it is precisely commonly weakly described democracies which use derogation clauses. On the other hand, the Hungarian government imposed even more questionable measures, some in sheer conflict with EU legislation safeguarding privacy. Moreover, the traditional principle of necessity envisaged in regard to states of emergency seems to be neglected in engineering new punitive norms by the Bulgarian authorities as well. As of today, neither Hungary nor Bulgaria used ECHR’s Art. 15.
To draw a comparison, the American Convention of Human Rights is similarly prone to derogations in these turbulent times. The traditional view of the political structure of states derogating from conventions is further invalidated by the various, significantly different regimes derogating from the ACHR. As of May, strong democracies such as Chile or Argentina and hybrid regimes like Bolivia alike registered derogation notifications, while authoritarian states as Cuba and Nicaragua didn’t prefer the activation of derogation clauses.
The meaning of emergency: Is derogation justified?
The derogation clause of the ECHR requires the signatory states to limit its usage to war and other emergencies threatening the life of the nation. Albeit the rather scarce jurisprudence and its application to non-pandemic situations such as colonial uprisings, civil wars and terrorist attacks, the European Court hinted towards a conceptualization of emergencies and critical events. This interpretation is, however, limited to the phraseology of European Human Rights and is not to be considered a universal key of emergency assessment for other international instruments, such as the ICCPR or the ACHR. Moreover, it is important to underline that the European Court cannot asses the derogations and decide on their validity in abstracto. Instead, it will analyze the state of emergency in concreto, with the occasion of a case and will thus decide whether the rights guaranteed by the ECHR were affected by a valid derogation or not. Supposedly an affirmative answer is given, a state might justify its non-compliance with the Convention, thus turning the tide in its favor during the proceedings.
Strictly from a theoretical viewpoint, previous decisions could be used as guidelines in order to analyze the extent to which a pandemic could be described as a valid derogation motif under Art. 15. In Ireland v. the United Kingdom, the Court considered the existence of an emergency threatening the life of the nation to be ‘perfectly clear’, given the existence of ‘a particularly far-reaching and acute danger for the territorial integrity of the United Kingdom, the institutions of the six counties and the lives of the province’s inhabitants’. On another occasion, the Strasbourg Court noted that the existence of a threat to the life of the nation was to be assessed primarily with regard to the facts known at the time of derogation. It also noted that such a condition does not impose a state to wait for a crisis to happen in order to take preventive measures. Yet, these cases concerned dangers capable of incapacitating the institutional core of the respondent states, as the actions justifying the derogations were directly aimed at the functioning of the governmental apparatus. According to the media, a recent statement of a representative of the Council of Europe outlined that the emergency caused by the virus does not require a derogation from the ECHR. A few days later, the organization published a toolkit meant at guiding member states, at the forefront of which is outlined that
The virus is destroying many lives and much else of what is very dear to us. We should not let it destroy our core values and free societies.
While the document acknowledges the right of derogation, nuanced by the practice of the European Court, it reminds the reader that, apart from the substantial provisions of the ECHR, the derogation from certain rights has to follow a pattern of proportionality and legality. Conceptually, though, the Council decided that it is a matter for each state to decide on the scale of the crisis, leaving them a wide margin of appreciation. It will be, ultimately, up to the Court to validate such interpretations of the sanitary emergency, which will undoubtedly enrich future jurisprudence.
The Covid-19 pandemic poses an unprecedented challenge to the institutional imagery of Europe. As new cases rise, the responses of national governments are rather divergent and, perhaps the sole unifying factor is the rule by decree and the prevalence of the executive over the drowsy silence of other institutions and civic groups, usual actors of proactive roles. While national orientations range from gradual developments to belligerent pathos, European states are up to decide on their own ideal states of emergency and take their own paths out of the critical junctions of the time.
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