18 Apr To Notify or Not to Notify: Derogations from Human Rights Treaties
[Dr Kushtrim Istrefi is Assistant Professor of Human Rights Law and Public International Law with SIM at Utrecht University. He is in the editorial board of the ECLR and a Senior Peace Fellow with PILPG. Isabel Humburg is completing her masters degree in International Law at Trinity College Dublin.]
On 25 March 2020, Justice Hayden, a domestic court judge in the UK, unilaterally decided to derogate the UK from Article 5 ECHR. In an unprecedented fashion, Justice Hayden indicated that “notification” of his reasons would be sent to the Council of Europe. As put by Stevie Martin, “it is highly unlikely that the trial judge’s reasons constitute an official and public notice of derogation”. Martin’s comment triggered a discussion on EJIL:Talk! on what constitute a notification of derogation and if there is a duty to notify in the first place. This contribution aims to add to this debate by looking at notifications of derogations from human rights treaties in the wake of pandemic Covid-19.
Notifications of derogations under human rights treaties
Only four human rights treaties contain a derogation clause, namely, Article 15 of the European Convention on Human Rights (the ECHR), Article 4 of the International Covenant on Civil and Political Rights (ICCPR), Article 27 of the American Convention on Human Rights (ACHR) and Part V Article F of the European Social Charter (ESC). All derogation provisions require the States parties to (i) officially notify the respective treaty regime, (ii) indicate the reasons for the derogation, and (iii) notify when the derogation is terminated.
The purpose of notification is different under the ECHR and the ESC, on the one hand, and the ICCPR and the ACHR, on the other hand. Under the first two, the purpose is to notify the respective Secretary General, who has an interest in monitoring the derogations. Under the ICCPR and the ACHR, the purpose is to inform other States parties. Here, the respective Secretary General is not directly concerned with derogations, but only communicates derogation notices to the States parties.
Human rights treaties suggest that a formal notification of derogations is required (for analysis see here). Yet, no treaty regime imposes a time limit within which a notification must be deposited. The Strasbourg Court (and the Commission) has ruled that two weeks of delay in depositing a notice is accepted but four months would be too late. This suggest that many States in the ongoing states of emergency may later claim to have derogated from human rights treaties.
To notify or not to notify?
States, even though required, do not always notify the respective treaty regimes of their derogations. For illustration, no State has so far officially derogated from the ESC, the only socio-economic treaty that permits derogations. This seems to highlight that States may be attaching less importance to their ESC obligations, commonly regarded as continuous social obligations, than to their ECHR obligations.
States appear to take the two regional human rights treaties more seriously, namely the ACHR and the ECHR. In relation to COVID-19, ten Latin American and ten European States have so far derogated from the ACHR and the ECHR respectively. While all these States are also party to the ICCPR, not all of them have notified the UN Secretary General.
From the European States, only Armenia, Estonia, Georgia, Latvia, Romania have submitted notifications of derogations under the ICCPR. Although Moldova explicitly stated in Article 5 of the Parliament Decision of 17 March 2020 that it would notify about its derogation both the UN and the Council of Europe within three days, its notification under the ICCPR is still missing. It is interesting to see that all European States notified the UN Secretary General after they had submitted notifications under the ECHR. Also, their notifications under the ICCPR are less detailed compared to the ECHR.
From the ten States that derogated from the ACHR, only Guatemala, Ecuador, Peru and Chile have filed notifications under the ICCPR. Guatemala is the only State that had notified the UN before submitting a notification of derogations from the ACHR.
Duration of derogations
In relation to Covid-19 derogations, it is still unclear for how long States will derogate from their obligations under human rights treaties. So far, most States have indicated a period of 1-2 months, with the possibility of extension. Serbia is the only State that has not indicated the duration of derogation before the ECHR.
Neither the ICCPR nor the ECHR contain precise language regarding the duration of derogations. Yet, the European Court of Human Rights (ECtHR) and the UN Human Rights Committee (UNHRC) share very different views on this matter. In 1981 and again in 2001, the UNHRC held that measures derogating from ICCPR must be temporary. It appears that a derogation extending over a longer period of time would be unjustified, and that time alone may determine the lawfulness of derogations under ICCPR.
The ECtHR has held that “while the [UNHRC] has observed that measures derogating from the provisions of the [ICCPR] must be of ‘… temporary nature’ […] the Court’s case-law has never, to date, explicitly incorporated the requirement that the emergency be temporary”. Indeed, the Court has not found problematic derogations lasting for several years (Marshall v UK). The Strasbourg Court examines entrenched derogations through the principle of proportionality, determining in each individual case whether the measures are justified under the exigencies of the situation.
The content of notifications: the reasons and the scope of derogations
Notifications can be general or specific. States may or may not indicate specific provisions from which they are derogating. In relation to COVID-19 derogations, only Serbia and San Marino have so far not specified from what ECHR rights they are derogating from. That is not per se incompatible with Article 15 ECHR. However, all other States before ECHR and ICCPR have indicated specific rights from which they are derogating.
So far, all derogating States have referred to the WHO’s declaration of a global pandemic Covid-19 as a justification for derogations. In that sense, the reasons for Covid-19 derogations are very generic. Unsurprisingly, most States have derogated from the same human rights, namely freedom of assembly and association and freedom of movement. Interestingly, Estonia is the only country to have also derogated from the right to fair trial both under the ECHR and ICCPR. The fact that the right to a fair trial has not been included in the list of non-derogable rights has been consistently criticized by scholars. The UNHRC too has noted that ‘the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency’ and it finds no justification for derogating from the principles of the right to a fair trial. Given the importance of fair trial and considering that the other States did not think it necessary to include the right to fair trial in their list of derogations Estonia’s move to include it raises serious questions.
Pandemic COVID-19 has triggered the largest number of derogations from human rights treaties. So far, 31 derogations have been registered with different human rights treaties. Yet, the indeterminacy of notifications suggest that the number of derogations may be higher because States that have declared a state of emergency may later claim to have also derogated from human rights treaties. The diverse practices of notifications on the form and substance and ‘the mystery’, as Schabas calls it, of why some States derogate from one but not the other treaty regime show that many unknowns and problems of derogations start with a mere formality, namely notifications.
While Justice Hayden may have gone too far with his understanding of notifications of derogations, the law and practice on notifications provides little guidance to answer some fundamental questions on notifications of derogations.