Derogation in times of emergency
Derogation from human rights obligations is different than restrictions. Derogating from human rights means that the government either cannot guarantee some aspects of human rights or must adopt measures that would otherwise violate previously agreed human rights standards to tackle the emergency. A derogation essentially means suspending some human rights obligations during an emergency, that states had agreed to when they joined international treaties.
example During an infectious disease pandemic, states may choose to derogate from freedom of movement, by instituting a lockdown and requiring that people fill in a form to leave their home.
Derogation does not mean that the state does not have to guarantee your rights at all anymore. It only means that the state is facing an exceptional situation where normal measures are no longer effective and it needs to adopt measures that would normally violate some aspects of rights, to meet the challenges presented by the emergency. Derogation and emergency measures can only be used to tackle an exceptional situation and cannot serve as an excuse to restrict rights or freedoms that have no connection with the emergency.
note Derogation is a feature of international human rights treaties. The Latvian constitution (the Satversme) and other laws prescribing human rights in Latvia do not have derogation clauses similar to those of international treaties. This is because states usually cannot suspend their constitutions, but can adopt laws internally to tackle the emergency. Derogation is a tool that allows states to adopt laws that would normally be contrary to international treaties and to notify other states which are also parties to the international agreement, that some obligations will not be met.
Nature of emergencies
The government may provide notice that it intends to derogate from some human rights only in exceptional circumstances that are serious enough to “threaten the life of the nation.” These are generally very serious situations where the physical safety of the population, political independence, territorial integrity or the existence and functioning of state institutions that are essential to guarantee the right in question, are threatened.
example War with another state threatens the territorial integrity, political independence and physical safety of a state’s population. War with another state in the territory of your state is recognized as a type of emergency in which the state may derogate from some human rights obligations.
Limits to derogation
Derogation from human rights has very strict limits and only measures that are strictly required by the situation of the emergency are allowed. This means that there are a number of legal requirements that restrict a government’s ability to derogate from its obligation to guarantee human rights. For example, there are strict limits on rights that cannot be derogated from and on the scope of the restrictions required to tackle the emergency.
28 September 1984
31 August 2001