Derogating from the European Convention on Human Rights in response to the Coronavirus pandemic: if not now, when?

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Abstract

This articles argues that a state of emergency under Article 15 of the European Convention on Human Rights should be declared in order to accommodate the emergency lockdown powers necessary to confront the Coronavirus pandemic. This is the closest we shall get to an ‘ideal state of emergency’—the very situation it was designed for. 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, while undoubtedly the most influential on emergency powers, has distorted perceptions of states of emergency, emphasising their destructive potential while ignoring their potential to protect legal norms in a time of normalcy. 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 failure to declare a de jure state of emergency.
Original languageEnglish
Pages (from-to)262-276
Number of pages17
JournalEuropean Human Rights Law Review
Volume2020
Issue number3
Publication statusPublished - 12 Jul 2020

Keywords

  • Coronavirus
  • Covid-19
  • State of emergency
  • Human Rights
  • Emergency Powers
  • European Convention on Human Rights
  • Right to Liberty
  • Carl Schmitt

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