On the Value of Derogations from the European Convention on Human Rights in Response to the COVID-19 Pandemic: A Rejoinder

In his article, “Article 15 Derogations: Are They Really Necessary during the COVID-19 Pandemic”, Professor Dzehtsiarou offers a rebuttal of my contention that derogations should be used to accommodate exceptional powers enacted to confront the very real threat posed by COVID-19. Dzhetisarou’s argument is essentially a “business as usual model” and to his position, I wish to raise two principal objections. First, he falls into what I term the “objectivity trap” of emergencies which leads him to believe that emergency powers may be quarantined to the duration of the pandemic without the need for art.15. Secondly, his argument that derogation will not make much difference vis-à-vis accommodation through the ordinary proportionality test is actually an argument in favour of derogations not against them.