Human Rights in Times of Emergency

States employ different definitions of the circumstances that might give rise to a state of emergency.⁶6. The thresholds in domestic law and practice are examined in detail in paras 37–39. Over the past three decades, paradigmatic situations can be discerned from State practice where states of emergency have been declared to address real or perceived crises. These situations are: i) war/international armed conflicts and non-international armed conflicts;⁷7. In the emergency clauses of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the American Convention on Human Rights (ACHR), the European Social Charter and the revised Charter, the term ‘war’ is used to define the threshold of an emergency situation if it threatens the life of a nation. Most other legal texts use ‘armed conflict’ as the technical term. For the remainder of the report, we will use the latter term, which then also comprises the term ‘war’, as used in the emergency clauses of human rights treaties. For an analysis see also Andrew Clapham, War (Oxford University Press 2021). ii) attempts at violent regime change (coups d’état); iii) acts of terrorism and internal turmoil and disturbances; iv) organised crime; v) natural or technological disasters, including pandemics and other major health emergencies; vi) financial or economic emergencies; vii) migration.⁸8. With respect to (vii), the violation of rights that caused the forced displacement then leads to the state that should provide protection declaring the victims to be an ‘emergency’.

Generally, the executive, who declares the emergency, is empowered to issue decrees in place of the legislature to deal with the emergency. States have adopted a variety of emergency measures in response to different crises. These depend on the nature of the emergency, the legal framework of each jurisdiction, political calculations, and other contextual factors.⁹9. See Sean Molloy, Emergency Law Responses to Covid-19 and the Impact on Peace and Transition Processes (International Institute for Democracy and Electoral Assistance 2021) 14–18. Yet, certain measures are typically associated with a given type of real, perceived, or alleged emergency.

Before illustrating the types of measures that have typically been introduced in each of the identified paradigmatic situations, it is important to emphasise that emergency regimes have two types of inter-related impacts. First, emergency measures have a systemic impact on democratic governance and the rule of law as, by their very nature, they run counter to the principles of separation of powers and parliamentary and judicial oversight of executive action.¹⁰10. Inter-American Commission of Human Rights, Nicaragua: Concentration of Power and the Undermining of the Rule of Law (2021), OEA/Ser. L/V/II. Doc 288. Governments often expand their powers by issuing executive orders or decrees while bypassing the normal legislative processes. The decision-making authority is likely to become highly concentrated within the executive branch, sidelining the role of the legislative and, to some extent, the judicial branches. This concentration often limits or even eliminates constitutional and other checks and balances. In the same vein, emergency measures may be enacted swiftly with limited or no debate in parliament. This can result in laws and policies being implemented without the usual scrutiny and safeguards that the ordinary legislative process provides. Moreover, judicial review of executive actions may be delayed or restricted during emergencies.¹¹11. For instance, during the COVID-19 emergency in France there was little judicial control in connection with the declaration of the state of health emergency. The latter was declared by Statute n° 2020–290 and, as such, it could have been exposed to constitutional review by the Constitutional Council. However, the Council was not seized ex ante about this statute and hence did not subject it to constitutional control. Ex post constitutional questions about this statute were only judged months later; see Estelle Chambas and Thomas Perroud, ‘France: Legal Response to Covid-19’ in Jeff King and Octavio Ferraz and others (eds), The Oxford Compendium of National Legal Responses to Covid-19 (Oxford University Press 2021). Judges may be removed and replaced by provisional judges or judges who are not independent and identify with the policies of the executive. Courts might also be more inclined to defer to the executive branch to ensure rapid responses to the crisis. This might lead to a lack of accountability for decisions made, especially since other accountability mechanisms might be weakened too.

Second, emergency measures negatively affect the enjoyment of individual human rights as the following analysis of typical measures undertaken in each of the identified paradigmatic situations will show. Crucially, this impact exists irrespective of whether the measures themselves are lawful when assessed against domestic and international procedural and substantive standards. In other words, interference with rights in emergency situations is significant and is likely to affect a large number of individuals and/or specific categories of individuals, regardless of whether these interferences ultimately amount to violations of domestic and international human rights law.

During armed conflicts, States often implement emergency measures to address the challenges posed by the hostilities. The nature of these measures can vary depending on the specific context, the intensity of the conflict, and the legal and institutional frameworks of the States involved. Many of the measures commonly adopted during internal disturbances or coups d’état are also prevalent in armed conflict settings. For instance, curfews have been imposed to restrict the movement of civilians during certain hours, in order to maintain public safety or for security reasons.¹²12. In its notice of derogation to the International Covenant on Civil and Political Rights (ICCPR), following the Russian invasion of the country in 2022, Ukraine announced that it would ‘introduce a curfew in accordance with the procedure established by the Cabinet of Ministers of Ukraine (ban on staying on the streets and in other public places during a certain period of the day without specially issued permits and certificates)’; Ukraine, Notification under Article 4(3) (28 February 2022), C.N.65.2022. TREATIES-IV.4. A curfew was also imposed by Azerbaijan, during its armed confrontations with Armenia in 2020, see Decree No 1166 of the President of the Republic of Azerbaijan on declaring martial law (27 September 2020). Other measures are more common to armed conflict. For example, conscription has been reintroduced in countries that had previously abolished it to augment the forces needed to quash the opposition.¹³13. Constant Méheut and Thomas Gibbons-Neff, ‘After Two Years of Bloody Fighting, Ukraine Wrestles with Conscription’ New York Times (28 January 2024); Reneé Lehman, Conscription as a Human Rights Violation: A Consideration in the Prosecution of Russian Soldiers for Crimes Against Humanity (McGill Centre for Human Rights and Legal Pluralism 2022) 11. At times this included child recruitment, a distinct violation of international humanitarian law and human rights law.¹⁴14. Recruitment and use of children as soldiers is one of the six grave violations against children pursuant to United Nations Secretary-General report on grave violations against children in armed conflict. Authorities have ordered the evacuation of civilians from conflict zones to ensure their safety and well-being or to facilitate military operations.¹⁵15. For example, Israel ordered civilians in Gaza to evacuate to ‘safe zones’, see Israeli Defense Forces, ‘IDF Announcement Sent to the Civilians of Gaza City’ (13 October 2023) <https://www.idf.il/en/mini-sites/idf-press-releases-israel-at-war/october-23-pr/idf-announcement-sent-to-the-civilians-of-gaza-city/>. See also António Guterres, ‘Why Israel Must Reconsider Its Gaza Evacuation Order – UN Secretary-General’, New York Times Op-Ed (13 October 2023) <https://www.nytimes.com/2023/10/13/opinion/israel-gaza-united-nations.html>. Furthermore, Ukraine stated that it might ‘evacuate the population if there is a threat to their life or health, as well as material and cultural values, if there is a threat of damage or destruction’; see Ukraine (n 12). Furthermore, enhanced security measures have been introduced, including surveillance, checkpoints, and heightened border controls, to prevent the infiltration and movement of enemy combatants.¹⁶16. For instance, Ukraine claimed the right ‘to establish, in accordance with the procedure established by the Cabinet of Ministers of Ukraine, a special regime of entry and exit, to restrict the freedom of movement of citizens, foreigners and stateless persons, as well as the movement of vehicles’; ibid. Considering the scarcity of goods that is often associated with conflict situations, governments normally implement controls on resources, such as food, fuel, and other essential supplies, including rationing.¹⁷17. Ukraine has affirmed its right to ‘introduce, if necessary, in the manner prescribed by the Cabinet of Ministers of Ukraine, standardized provision of the population with basic food and non-food goods’: ibid. Authorities have also resorted to expropriation or confiscation of private property, to swiftly acquire control of strategic assets or seize resources deemed critical for the war effort.¹⁸18. Ukraine declared that it could ‘forcibly expropriate property in private or communal ownership, confiscate property of state enterprises, state economic associations for the needs of the state under the legal regime of martial law’:ibid. Additional restrictive measures are more closely connected to the actual hostilities, such as the internment of enemy combatants or civilians deemed sympathetic to the insurgency, outside the regulatory framework normally associated with deprivation of liberty. Restrictions identical to those imposed in situations of international armed conflict are commonly imposed during non-international armed conflicts.¹⁹19. See, for instance, the measures introduced by Sri Lanka in the context of the armed conflict with the Liberation Tigers of Tamil Eelam, Sri Lanka, Emergency (Miscellaneous Provisions and Powers) Regulation, No 1 of 2005 (13 August 2005). In armed conflict situations – including those described as intractable, protracted, ‘frozen’ or ‘complex’, as well as disputed or occupied territories facing particular difficulties in cases of emergency other than the ongoing conflict-related emergency – the impact on local populations is compounded.²⁰20. Tatevik Hayrapetyan, ‘Covid-19 creates unique challenges for unrecognised territories: Can a Post-pandemic World Be More Inclusive and Democratic?’ Emerging Europe (29 May 2020) <https://emerging-europe.com/opinion/covid-19-creates-unique-challenges-for-unrecognised-territories-can-a-post-pandemic-world-be-more-inclusive-and-democratic/>. Cf Jonathan Shkurko, ‘Coronavirus: Akinci Urges WHO to Establish a Direct Communication with North’, Cyprus Mail (25 April 2020), <https://archive.cyprus-mail.com/2020/04/25/coronavirus-akinci-urges-who-to-establish-a-direct-communication-with-north/>. For example, during the COVID-19 pandemic, there was little access to information and effective monitoring regarding the effects of conflict and of the state of emergency invoked due to the pandemic.²¹21. See, eg, UN Security Council, United Nations Operation in Cyprus – Report of the Secretary-General (2020), UN Doc S/2020/682; UN Security Council, Situation concerning Western Sahara (2020) UN Doc S/2020/938; UN Secretary-General Calls for Global Ceasefire to Focus on Ending the COVID-19 Pandemic (UN News, 23 March 2022) <https://news.un.org/en/story/2020/03/1059972>.

Coups d’état are often addressed through emergency measures. In such cases, the authorities typically implement a combination of legal, military, and political measures to impose order. The frequent militarisation of society, the establishment of military courts and the substitution of the armed forces for the civilian police are characteristic of coup d’état situations. The specific actions taken can vary depending on the circumstances and the nature of the coup, but some common measures include the mobilisation of security forces to impose ‘order’, securing key government buildings and establishing checkpoints.²²22. In Honduras, in 2009 the de facto authorities that ousted President Zelaya from power adopted a decree announcing that certain guarantees would be suspended and stipulated that the Armed Forces would be participating in operations ‘to maintain the order and security of the Republic’, Executive Decree PCM-M-016–2009 (26 September 2009). Authorities have been reported to engage in killings, enforced disappearances, arrests and detention of individuals suspected of being involved in the coup attempt, including military officers, politicians, and representatives of civil society.²³23. One of the measures introduced by the Turkish government after the attempted coup of July 2016 concerns the extension of police powers to detain suspects for up to thirty days without judicial review, Decree No 667, Article 6(1(a)) (23 July 2016). Individuals are often prevented from fleeing a country through border closures,²⁴24. A similar effect was achieved in Türkiye by ordering the cancellation of passports, without court order, of persons being investigated or prosecuted in relation to the coup, see Decree No 667, Article 5. or deported to a State that accepts them. Political parties and other associations suspected of being implicated in the coup are dissolved, and gatherings are limited or prohibited.²⁵25. The Turkish authorities ordered the immediate closure of over 2,000 associations, foundations, trade unions, universities, private schools, and other establishments, and the confiscation of their assets; European Commission for Democracy through Law (Venice Commission), Türkiye, Opinion on emergency decree laws Nos 667–676 adopted following the failed coup of 15 July 2016 (12 December 2016) 19 <www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-ad(2016)037-e>. Governments impose censorship on media outlets to control the flow of information. This has included shutting down or taking control of radio and television stations, blocking websites, and restricting social media, arresting journalists and human rights defenders.²⁶26. During the military coup that took place in Thailand in 2014, the junta applied Martial Law BE 2457 (1914) imposing severe restrictions on media outlets; Amnesty International, ‘Thailand: Attitude adjustment: 100 days under martial law’ (11 September 2014) 31–33, <www.amnesty.org/en/documents/asa39/011/2014/en/>.

In response to acts of terrorism and other types of internal disturbances, States tend to employ emergency powers aimed at addressing perceived or actual threats to public safety and national security. Authorities increase surveillance efforts, both domestically and internationally, to gather intelligence on potential threats.²⁷27. See eg Szabó and Vissy v Hungary, no 37138/14, ECtHR 2016. This has included monitoring communications, tracking financial transactions, and conducting surveillance on individuals.²⁸28. For instance, on 27 March 2022, at the request of the President, the Legislative Assembly of El Salvador approved Decree No 333, by which it declared a state of emergency throughout the national territory ‘owing to serious disturbances to public order by criminal structures that threaten the life, peace and security of the Salvadoran population’. Among the many measures introduced was the permission to intercept private communications without the necessity of a judicial order. See IACHR, ‘Press Release: IACHR Urges El Salvador to Ensure that Law Enforcement and Any Exceptional Measures Comply with Human Rights’ (20 April 2022) <https://www.oas.org/en/iachr/jsForm/?File=/en/iachr/media_center/preleases/2022/082. asp>. Law enforcement agencies or armed forces brought in to replace the police are granted expanded powers to detain individuals without observing required legal procedures,²⁹29. The UK Anti-terrorism, Crime and Security Act 2001, adopted in the wake of the 9/11 attacks against the US, provided for the extended power to arrest and detain foreign nationals suspected of terrorism activities who could neither be tried nor deported from the United Kingdom. The measure was later found by the ECtHR to be incompatible with the ECHR, notwithstanding the presence of a derogation notice that aimed at justifying the practice, see A and others v UK [GC], no 3455/05, ECtHR 2009. to conduct searches without warrants, and to employ measures to prevent and respond to terrorist activities or other situations of generalised violence. Fair trial standards are usually lowered or even extinguished, including the right to be informed of charges, the right to legal representation, and access to evidence. In the absence of human rights protections for criminal suspects, torture or cruel and inhumane treatment in the course of unsupervised interrogations including in ‘secret detention sites’ pursuant to ‘extraordinary renditions’ has been documented.³⁰30. See eg El-Masri v The former Yugoslav Republic of Macedonia [GC], no 39630/09, ECtHR 2012; Al Nashiri v Poland, no 28761/11, ECtHR 2014; Husayn (Abu Zubaydah) v Poland, no 7511/13, ECtHR 2014; Nasr and Ghali v Italy, no 44883/09, ECtHR 2016; Abu Zubaydah v Lithuania, no 46454/11, ECtHR 2018; Al Nashiri v Romania, no 33234/12, ECtHR 2018. Military courts that do not provide adequate procedural safeguards and judicial remedies have been established to address terrorism cases.³¹31. After the 9/11 terrorist attacks, US President GW Bush issued a Military Order titled ‘Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism’ (13 November 2001) that established military commissions, the functioning of which severely undermined fair trial guarantees for suspected terrorists. For a comparison of the rules governing military commissions and international standards, see Human Rights Watch, ‘Human Rights Watch Briefing Paper on U.S. Military Commissions’ (25 June 2003) <www.hrw.org/legacy/backgrounder/usa/military-commissions.htm>. Often mandated by UN Security Council resolutions, governments have frozen the assets of individuals or organisations suspected of supporting or financing terrorist activities, to disrupt the financial networks that sustain terrorist campaigns.³²32. Security Council, Counter-Terrorism Committee, ‘Human Rights’ <www.un.org/securitycouncil/ctc/content/human-rights>. Measures have also included stricter border controls, increased scrutiny of individuals entering or leaving the country, and preventing the movement of alleged terrorists across borders.³³33. In the case of Nabil Sayadi and Patricia Vinck v Belgium, the Human Rights Committee addressed the national implementation of the sanctions regime, set forth in Security Council resolution 1267 (1999), which established a sanctions regime to cover individuals and entities associated with Al-Qaida, Osama bin Laden and/or the Taliban, wherever located. The regime included a ban on travelling outside one’s country of residence. The Committee found that the measure constituted a violation of the authors’ right to freedom of movement under the ICCPR, because both the dismissal of a criminal investigation and the State party delisting requests showed that the restrictions were not necessary to protect national security or public order. See Human Rights Committee, Communication no 1472/2006, Sayadi and Vinck v Belgium, UN Doc CCPR/C/94/D/1472/2006, views adopted on 22 October 2008. More generally, governments have introduced or enhanced counterterrorism and criminal legislation to address emerging or potential threats. This can involve defining new offences related to terrorism, increasing penalties, and providing law enforcement with additional tools.³⁴34. As a response to inter-ethnic violence between Muslim and Christian communities in parts of Nigeria, the National Assembly passed eight new Emergency Power regulations that granted security forces sweeping new powers including: to conduct a search without a warrant, to prohibit public processions, demonstrations and public meetings, and the power to detain people without a written order. See Human Rights Watch, ‘Revenge in the Name of Religion The Cycle of Violence in Plateau and Kano States’ (May 2005) 46–47. See also Special Rapporteur Fionnula Ní Aoláin, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism on the human rights challenge of states of emergency in the context of countering terrorism (2018) UN Doc A/HRC/37/52 (hereafter, UN Special Rapporteur on counterterrorism and human rights). According to the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism such codification of emergency powers into ordinary legislation amounts to the creation of de facto emergencies and has insidious, long-term effects on human rights.³⁵35. UNSR on counterterrorism and human rights, ibid.

While not a new trend, an increase in the use of emergency measures to address organised crime, and, in particular, transnational drug trafficking, can be observed. Some of these measures had a transnational impact. For example, US policy regarding the ‘war on drugs’ affected human rights practices of several Latin American States.³⁶36. IACHR, Violence, Children and Organized Crime, OEA/Ser. L/V/II. Doc. 40/15, 11 November 2015; IACHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser. L/V/II.102 Doc. 9 rev. 1, 26 February 1999. In the Philippines, the Duterte government declared a state of emergency in 2016 in relation to a terrorist attack in Mindanao, which was then used to justify emergency measures in the ‘war on drugs’. This state of emergency remained in force several years later, which led the UN High Commissioner on Human Rights to observe, in a 2020 report, that ‘[i]n the Philippines, what should have been an exceptional state appears to have become normalized’.³⁷37. UN High Commissioner for Human Rights, Situation of human rights in the Philippines, para 43 (see generally paras 43–48) (2020) UN Doc A/HRC/44/22. See also Daniel Wagner and Edsel Tupaz, ‘Duterte’s First 100 Days’ Huffpost (7 October 2016) <www.huffpost.com/entry/dutertes-first-100-days_b_12389874>. UN and NGO reports documented killings, arbitrary detentions, and closure of civic space as individual and systemic impacts of the ‘warification’ of drugs in the Philippines. Another recent example relates to Ecuador. In 2024, Ecuador declared a 60-day state of emergency in response to the surge in violence linked to organised crime groups. The government characterised the situation as an ‘internal armed conflict’ arguably seeking to justify the lawfulness of its use of force against specific individuals and groups as military targets under international humanitarian law (IHL). Commentators expressed doubts as to whether the degree of organisation of each armed group and the minimum level of intensity were met for IHL to be applicable.³⁸38. Ezequiel Heffes, ‘Crisis en Ecuador: Un “Conflicto Armado Interno” Depende de los Hechos, no de una Declaración Política’, El Diario (Argentina, 13 January 2024) <www.eldiarioar.com/mundo/crisis-ecuador-conflicto-armado-interno-depende-hechos-no-declaracion-politica_129_10833864.html>. Another example comes from El Salvador, where President Nayib Bukele declared a state of emergency and incarcerated over 77,000 suspected gang members. Under the national state of emergency, constitutional rights were suspended, many arbitrary arrests were based only on unverified tip-offs, and the government had access to individuals’ emails, texts and phone calls. The popularity of Bukele’s ‘war on gangs’ was a major factor in his re-election in February 2024 despite the Salvadoran Constitution’s prohibition on re-election.³⁹39. Will Grant, ‘El Salvador’s president eyes re-election on back of gang crackdown’ BBC News (San Salvador, 4 February 2024) <www.bbc.com/news/world-latin-america-68195441>.

Natural and technological disasters, including pandemics and other health emergencies have also given rise to the introduction of emergency measures that interfere with the enjoyment of human rights. The type and scope of such interference hinges on the nature of the calamity, as well as on the capacity of the State to adopt effective preparedness and mitigation measures and to effectively respond to the threat under ordinary law and procedures.⁴⁰40. See generally Emanuele Sommario, ‘Limitation and Derogation Provisions in International Human Rights Law Treaties and Their Use in Disaster Settings’ in Flavia Zorzi Giustiniani and others (eds), Routledge Handbook of Human Rights and Disasters (Routledge 2018) 98–118. Their aim might be the maintenance of public order and public safety (eg, to evacuate and prevent movement to a highly contaminated area in case of nuclear or chemical fallout),⁴¹41. For instance, in the wake of the March 2011 earthquake which affected the Fukushima nuclear plant, Japanese authorities designated no-access areas based on their proximity to the plant, see Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (2013) UN Doc A/HRC/23/41/Add.3, para 45. the preservation of public health (for instance, compulsory vaccination to prevent the spreading of a lethal infectious disease),⁴²42. In Solomakhin v Ukraine the applicant complained about the health damages which he believed were caused by a compulsory vaccination he was obliged to undergo; Solomakhin v Ukraine, no 24429/03, ECtHR 2012. or the protection of a general or public interest (eg, to expropriate land or goods necessary to tackle the effects of a disaster).⁴³43. See eg Juan Milla Bermúdez v Honduras, Case 11.206, Report N 46/96 (on admissibility), OEA/Ser. L/V/II.95 Doc. 7 rev. at 453, 17 October 1996, § 8, describing how local authorities expropriated several portions of private land bordering a river to build protective shelters which would minimise the impact of hurricanes affecting the area. In some instances, States deemed it necessary to derogate from human rights treaties in order to introduce measures dealing with the consequences of major natural disasters. In Ecuador and Türkiye, for instance, individuals living in areas affected by severe earthquakes were prevented from returning to their homes due to safety considerations.⁴⁴44. See eg the notice of derogation to the ICCPR filed by Ecuador after an earthquake in 2016, Ecuador: Notification under Article 4 (3) (7 December 2016) C.N.983.2016. TREATIES-IV.4. A similar step was taken by Türkiye after the 2023 earthquake affecting a large part of its southern provinces, when the Government decided to derogate from both the ICCPR and the ECHR, see Türkiye: Notification under Article 4 (3) (10 February 2023) C.N.49.2023. TREATIES-IV.4, and Council of Europe, Notification – JJ9457C Tr. /005–304 – Türkiye (13 February 2023) notifications are available at <www.coe.int/en/web/conventions/notifications>.

The COVID-19 pandemic posed a historic challenge, with some 7 million persons succumbing to the virus worldwide.⁴⁵45. Worldometer, ‘COVID-19 Coronavirus Pandemic’ (13 April 2024) <www.worldometers.info/coronavirus/>. States and international organisations implemented a range of measures to address the disease, and response strategies varied across the globe, depending on factors such as the intensity of the outbreak, healthcare capacity, and socio-economic considerations. These measures severely limited the enjoyment of civil, cultural, economic, political and social rights to an extent that was unprecedented in democratic countries during peacetime. Their impact was widespread both in terms of the rights and the number of individuals affected. Measures adopted to contain the spread of the virus included encouraging or mandating social distancing, and isolation or quarantine measures for those who had contracted or been exposed to the virus.⁴⁶46. In March 2020, the Parliament of El Salvador declared a state of emergency, imposing a mandatory lockdown, the closure of educational establishments, the mandatory preventive isolation of persons entering the country, and restrictions on the movement of persons. In addition, persons who failed to comply with the mandatory home quarantine ‘without proper justification’ would be taken by the National Civil Police to pandemic containment centres for 30 days, see Legislative Decree no 593 (14 March 2020). Lockdowns or stay-at-home orders were imposed to restrict movement and social interactions, especially during the early stages of the pandemic.⁴⁷47. On 17 March 2020, France ordered compulsory isolation for the entire population. This nationwide lockdown was extended until 11 May 2020, when a gradual deconfinement started, see Decree n° 2020–260 of 16 March 2020 and Decree n° 2020–548 of 11 May 2020. In many countries, the use of face masks was required in public spaces to reduce the transmission of respiratory droplets. Testing and contact tracing were ordered to identify and isolate infected individuals and prevent transmission. As soon as the vaccines were developed, mass vaccination campaigns were organised to achieve widespread immunity, with the procedure made compulsory for certain categories of workers.⁴⁸48. These categories often included for instance health workers and firefighters. In February 2020, Brazilian Congress passed a law stipulating measures that could be adopted during the public health emergency. These included isolation, quarantine, compulsory tests and compulsory vaccination, see Law n 13.979, Article 3 (6 February 2020); see also Press Release by the Federal Constitutional Court, ‘Unsuccessful Constitutional Complaint Challenging the Obligation for Staff in the Health and Care Sectors to Provide Proof of Vaccination Against COVID-19’ (19 May 2022) <www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2022/bvg22–042.html>. Protests against compulsory vaccination and the disparagement of public health measures by state officials⁴⁹49. For example, in the US, President Trump advised the population to take bleach and Ivermectin, Kate Kelland and Raphael Satter, ‘Trump’s COVID-19 disinfectant ideas horrify health experts’ Reuters (Washington, 24 April 2020) <www.reuters.com/article/idUSKCN2261O4/>. frustrated recovery from the pandemic. Public gatherings were either prohibited or subjected to stringent rules.⁵⁰50. In Ecuador, the President declared a state of emergency for the entire territory, suspending among other rights freedom of movement as well as the rights to association and assembly, see Presidential Decree No 1017 (Article 3) (16 March 2020). Bans on public religious services and other gatherings beyond a certain number of participants were imposed.⁵¹51. On 4 March 2020, the Italian government imposed the shutdown of all schools and universities nationwide, see Angela Giuffrida, Lorenzo Tondo and Peter Beaumont, ‘Italy orders closure of all schools and universities due to coronavirus’ The Guardian (Rome/Palermo, 4 March 2020). In some jurisdictions ‘health passes’ were introduced, the possession of which was required to gain access to certain public places.⁵²52. In France, Law no 2021–689 (31 May 2021) introduced a transitional regime for exiting the public-health state of emergency, which introduced, among other measures, a ‘health pass’ for international travellers to and from France and for venues hosting large numbers of people (cinemas, theatres, museums, etc) or trade fairs and similar events. Travel bans were implemented, within and between countries, to control the movement of people and contain the spread of the virus, even if that meant individuals could not seek asylum. Governments discriminated against refugees and asylum seekers with respect to health care and did not act to prevent hate speech and xenophobia.⁵³53. See UN High Commissioner for Refugees, ‘COVID-19 Global Evaluation Coalition, Joint Evaluation of the Protection of the Rights of Refugees during the COVID-19 Pandemic’ (Geneva, July 2022) 40 <www.unhcr.org/research/evalreports/62c6ceca4/es202206-joint-evaluation-protection-rights-refugees-during-covid-19-pandemic.html>. In India, for example, the enacted measures led to a loss of daily wages, accommodation and modes of transport, all of which left poorer populations economically and emotionally drained. Many deaths occurred due to starvation, exhaustion, suicide, and other lockdown-related causes, especially in rural communities that were unable to access digital apps that managed the vaccination drive, resulting in these communities being effectively deprived of the vaccines.⁵⁴54. Orla Drummond, ‘Human Rights in a Crisis: a Legal Analysis’ (PREPARED, December 2023) 50 <https://prepared-project.eu/human-rights-emergency/>. Measures were introduced which led to the suspension of criminal, civil or administrative proceedings, to the automatic extension of pre-trial detention (without any decision by a judge),⁵⁵55. On the basis of Emergency Law no 2020–290 (23 March 2020) enacted to deal with the COVID-19 pandemic, the French government adopted Ordinance no 2020–303 (25 March 2020) for the adaptation of certain rules of criminal procedure. Article 16 of that Ordinance provided, inter alia, for the automatic extension of periods of pre-trial detention. or to the postponement of elections.⁵⁶56. See for instance International Democracy and Electoral Assistance, ‘Taking Stock of Regional Democratic Trends in Africa and the Middle East Before and During the COVID-19 Pandemic’ (2021) 8–9. The effectiveness of these measures varied, and public health authorities adjusted their strategies based on the evolving understanding of the virus, its transmission dynamics, and the availability of vaccines.

Turning to emergencies invoked in the context of financial or economic crises, it has come to be recognised that such predicaments pose challenges to the protection of civil, political, social, and economic rights, as well as to the rule of law, democracy, political stability, or social cohesion.⁵⁷57. Steering Committee for Human Rights (Council of Europe), ‘The Impact of the Economic Crisis and Austerity Measures on Human Rights in Europe: Feasibility Study’ (2016). Austerity measures adopted by States facing dire financial situations have been reviewed by treaty monitoring and adjudicative bodies, including the European Court of Human Rights (ECtHR).⁵⁸58. See UN High Commissioner for Human Rights, Report on Austerity Measures and Economic and Social Rights (2013). In Koufaki and ADEDY v Greece, the Court considered applications lodged after the Greek government had adopted a series of austerity measures, including reductions in the remuneration, benefits, bonuses and retirement pensions of public servants, with a view to reducing public spending and reacting to the economic crisis the country was facing. The applicants maintained that the measures violated their right to property.⁵⁹59. Koufaki and ADEDY v Greece, no 57665/12 and 57657/12, ECtHR 2013. The Court declared the applications inadmissible as manifestly ill-founded because the measures had been ‘justified by the existence of an exceptional crisis without precedent in recent Greek history’.⁶⁰60. ibid, § 37.

While this sort of crisis is not habitually associated with a state of emergency in the traditional sense of the term, Moldova has recently derogated from the European Convention on Human Rights (ECHR) based on ‘the grave energy crisis’⁶¹61. Council of Europe, Notification – JJ9324C Tr. /005–286 – Republic of Moldova (25 February 2022). affecting the country, considering that ‘the shortage of natural gas affects directly and immediately the security of the state and of the citizens’.⁶²62. Parliament of the Republic of Moldova, ‘Decision on the declaration of the state of emergency’ (20 January 2022). The measures adopted included establishing a restrictive regime on the purchase and distribution of natural gas, as well as control over the media on issues connected to the crisis. In December 2023, Argentina declared a ‘state of necessity and urgency’ in the face of 160% inflation and 40% of the population living in poverty.⁶³63. Emergency Decree No 70/2023, ‘Foundations for the Reconstruction of the Argentine Economy’. Although termed an ‘Emergency Decree’ it was not notified to the OAS, pursuant to Article 27 (3) of the American Convention on Human Rights. See also the state of emergency declared by Argentina in 2002, Ley 25.561, Ley Publica y Reform del Regimen Cambiario (6 January 2002) <http://servicios.infoleg.gob.ar/infolegInternet/anexos/70000–74999/71477/texact.htm>. President Milei presented an economic reform package to Congress, seeking to privatise more than 40 public companies and impose restrictions on the right to assembly and demonstration. In addition, the government said it would slash the value of the peso by more than 50% against the US dollar and announced a raft of other austerity measures that would qualify as a de facto emergency.⁶⁴64. ibid.

Migration has been invoked in recent years as ground for the declaration of states of emergency. This has been the case, for example, in 2021 in Poland ‘due to “immigration crisis”’ at the Polish-Belarusian border,⁶⁵65. See Mieczysława Zdanowicz, ‘The Migration Crisis on the Polish–Belarusian Border’(2023) 28(1) Bialystok Legal Studies 103–115 <https://doi.org/10.15290/bsp.2023.28.01.06>; see also, on this migration crisis and the emergency actions taken then, Elżbieta Karska and others, ‘Human Rights in the European Paradigm of the Protection of Aliens’ (Cardinal Stefan Wyszynski University 2023) 27, 40, 65–66, 78, 97–98; Elżbieta Kużelewska and Agnieszka Piekutowska, ‘Belarus’ Violation of International Obligations in Connection with Artificial Migration Pressure on the Belarus–European Union Border’ (2023) 28(1) Bialystok Legal Studies 39–55 <https://doi.org/10.15290/bsp.2023.28.01.03>. and in 2022 in Chile. The latter declared a state of emergency and submitted a notification under Article 27 of the American Convention on Human Rights (ACHR) justifying a derogation to reduce the high level of ‘migratory irregularity’.⁶⁶66. Note Verbal notifying the suspension of guarantees from the Permanent Mission of Chile to the OAS, in accordance with Article 27 para 3 of the American Convention on Human Rights (16 February 2022), Note No 53/22, 16, <www.oas.org/es/sla/ddi/docs/tratados_multilaterales_suspencion_garantias_Chile_nota_No_53–2022. pdf>. States of emergency have been declared in the United States at city, state and federal levels in relation to ‘an invasion’ of migrants and asylum seekers.⁶⁷67. See Pooja Salhotra and Madeleine Rubin, ‘Gov. Greg Abbott Defends Migrant Tactics in Eagle Pass amid Escalating Legal Battle with Biden Administration’ The Texas Tribune (4 February 2024) <www.texastribune.org/2024/02/04/abbott-defends-eagle-pass-tactics/>. This trend needs to be understood in a political context often marked by populist rhetoric that promises increased securitisation of borders, the criminalisation of ‘people on the move’, and oftentimes also of those supporting them. Some of the emergency measures seek to secure additional funding from central budgets to address housing, food, and health needs, whereas others are chiefly aimed at stopping or pushing back asylum seekers and migrants. The 2019 Trump Administration’s proclamation of a ‘national emergency concerning the southern border of the United States’ falls in the latter category.⁶⁸68. Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States (15 February 2019) <https://trumpwhitehouse.archives.gov/presidential-actions/presidential-proclamation-declaring-national-emergency-concerning-southern-border-united-states/>. The declaration was justified on the ground that the US-Mexico border is ‘a major entry point for criminals, gang members, and illicit narcotics’ and ordered the diversion of billions of dollars to construct a wall.⁶⁹69. ibid.

Overall, the analysis above shows that emergency measures negatively affect the enjoyment of virtually all internationally protected human rights. While the specific rights affected vary depending on the nature of the emergency, the precise measures taken, the legal framework of the country, and socio-political aspects shaping the implementation of measures, the summary below demonstrates that interferences arise in relation to both derogable and non-derogable rights.⁷⁰70. For an overview of the human rights commonly affected by states of emergency, see also the Observatory of situations of emergency in Venice Commission member States, which references the emergency regimes applicable in nearly fifty States, April 2020–April 2023, <www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN>.

Finally, this section must note that even in states of emergency, States are under a general positive obligation to protect human rights, and notably non-derogable ones, by taking reasonable measures to address foreseeable threats originating from individuals and non-State actors or from circumstances not attributable to the State.⁷³73. Human Rights Committee, General Comment No 36, Right to life (2019) UN Doc CCPR/C/GC/36, paras 21 and 26. An emergency measure, that interferes with – but does not violate – individual rights, might be called for by the State’s positive obligation to protect human rights. For instance, the ECtHR considered compulsory vaccination schemes to be a reasonable measure to fulfil a State’s duty to protect the rights to life and to health.⁷⁴74. Vavřička and others v the Czech Republic [GC], no 47621 and 5 others, § 282, ECtHR 2021. This approach resonates with the possibility of limiting individual rights to protect the rights and freedoms of others. Evidently, for such interference not to amount to a violation, it must comply with the requirements of necessity, proportionality and non-discrimination, even more so if adopted in an emergency situation.

Using the existence of emergency conditions or lack thereof as a first criterion, and the absence of a formal declaration as the second, the 1988 ILA CEHRL classified de facto emergencies into four categories. Classic de facto emergencies are those where the emergency situation exists, but no formal declaration is made, whereas ambiguous/potential and institutionalised de facto emergencies, as well as ordinary repression, are all instances that lack emergency conditions.⁷⁵75. International Law Association, ‘Report of the Committee on the Enforcement of Human Rights’, reprinted in Report of the Sixty-Third Conference (Warsaw, August 1988) 129, 145. See also Committee on Human Rights in Times of Emergency, Interim Report, Table 1 and para 14. This classification remains pertinent as ‘ideal types’, yet the practice of States during the last three decades blurs the lines between these categories of states of emergency. It might be more useful to use process descriptors that can be separately or cumulatively considered as indicia for the existence of a de facto state of emergency.

First, a de facto emergency may begin as a declared state of emergency that fails to comply with (i) approval or (ii) extension requirements, or that is (iii) used for situations different to those for which it was instituted. As examined in part D infra, domestic emergency laws often provide for formal approval procedures by the legislature and entail sunset clauses. For example, during the COVID-19 pandemic in Sudan, the transitional government declared a state of health emergency which, according to the Constitutional Declaration of 2019, required the legislature’s approval. However, the parliament had not been formed, and as such the constitutional requirement was not met.⁷⁶76. See discussion in Mohamed Abdelsaman Babiker, ‘COVID-19 and Sudan: The Impact on Economic and Social Rights in the Context of a Fragile Democratic Transition and Suspended Constitutionalism’(2021) 65 (S2) Journal of African Law 311, 326–327 <https://doi.org/10.1017/S0021855321000383>. Nonetheless, Sudanese authorities took measures to address the pandemic and adopted economic liberalisation measures, which had a particularly profound impact on the enjoyment of core economic and social rights.⁷⁷77. ibid. In Nigeria, a state of emergency was formally declared to respond to the armed conflict between governmental forces and Boko Haram in May 2013.⁷⁸78. Note that in November 2013, the Office of the Prosecutor of the International Criminal Court had changed the classification of the situation from an ‘internal disturbance’ to a ‘non-international conflict’ as the required level of intensity and level of organisation of the parties to the conflict had been met. See ICC, The Office of the Prosecutor, Report on the Preliminary Examination Activities (2013) para 218. In November 2014, the Nigerian House of Representatives denied an extension of the state of emergency, and the Senate remained stalled on the issue.⁷⁹79. International Centre for Investigative Reporting, ‘Reps Reject Jonathan’s Request for Extension of Emergency Rule’ (21 November 2014) <www.icirnigeria.org/reps-reject-jonathans-request-for-extension-of-emergency-rule/>; ‘Senate Fails to Discuss President’s Request for Extension of State of Emergency in North East’ Daily Post Nigeria (26 November 2014) <https://dailypost.ng/2014/11/26/senate-fails-discuss-presidents-request-extension-state-emergency-north-east/>; Policy and Legal Advocacy Centre, ‘Extension of State of Emergency in the Limbo?’ (13 December 2014) <https://placng.org/Legist/extension-of-state-of-emergency-in-the-limbo/>. A 2015 report noted that ‘the National Assembly did not renew the state of emergency in Borno, Yobe, and Adamawa states, but its nonrenewal had little to no effect on day-to-day operations in those states’.⁸⁰80. US State Department, ‘Nigeria 2015 Human Rights Report’ (2015) 1, <https://2009–2017. state.gov/documents/organization/252927.pdf>. Finally, following the 15 July 2016 coup d’état, Türkiye declared a state of emergency and derogated from both the ECHR and the ICCPR. During 2016–2018, the Turkish government enacted thirty-two emergency decrees, seventeen of which targeted real and legal persons, and adopted permanent measures relating to them; 125,678 individuals were dismissed from public service, more than 4000 foundations, associations, universities, trade unions, private hospitals, private schools and media outlets were closed down and their assets transferred to the Treasury without cost, compensation or restriction. The decrees also resulted in 1,000 permanent amendments to national laws. The Venice Commission for Democracy through Law noted that while the declaration of state of emergency appeared to be in line with common European standards, ‘the Government interpreted its extraordinary powers too extensively and took measures that went beyond what is permitted by the Turkish Constitution and by international law’.⁸¹81. Venice Commission (n 25) 48.

Second, de facto emergencies can be situations where emergency powers are incorporated into ordinary law, often in response to perceived or actual immediate threats to public safety and national security, including in the counterterrorism context.⁸²82. An example is the invocation of emergency powers in reliance on several laws by the Hong Kong Special Administrative Region of the People’s Republic of China’s government to repress the ‘2019 anti-extradition protest movement’. For an analysis of the counterterrorism context, see UNSR on counterterrorism and human rights (n 34). These de facto emergencies are characterised by the introduction of new legislation or changes to existing law so as to expand, centralise or shift powers into the hands of the executive branch and away from the legislature or judicial branch. The expansion of powers often goes hand in hand with a considerable increase in budgets for law enforcement agencies (and, in particular, intelligence services), as well as the militarisation of government posts. The context of the COVID-19 pandemic also provides examples of the institutionalisation of emergency powers and militarisation of the executive branch that continues to this day in countries such as Sri Lanka, the Philippines, and Romania.⁸³83. See the discussion in relation to Sri Lanka and the Philippines in Molloy (n 9), in particular 12, 21, 30; Florin Poenaru, ‘COVID-19 in Romania-the militarization of social life and the banality of death’ (2021) 45(4) Dialectical Anthropology 405–417 <https://doi.org/10.1007/s10624–021–09632–7>. India provides a variation of an ‘undeclared’ emergency in so far as it centralised enforcement authority in the context of the pandemic in the hands of the federal government, contrary to the Constitutional provision placing public health under federal state authority.⁸⁴84. See Manish Tewari, ‘India’s Fight against Health Emergencies: In Search of a Legal Architecture’ (ORF Issue Brief No 349, 24 May 2023) <https://www.orfonline.org/research/indias-fight-against-health-emergencies-in-search-of-a-legal-architecture-63884>.

Thirdly, de facto states of emergency can be situations where factual emergency conditions exist, the State takes extraordinary measures, yet refuses to formally proclaim a state of emergency. The Second Chechen War (1999–2009), which was marred by grave violations of human rights and humanitarian law, provides an illustration. The Russian Federation was involved in a non-international armed conflict with a separatist group in Chechnya. As several judgments of the ECtHR attest, Russia did not declare a state of emergency, nor did it notify a derogation under Art 15 ECHR.⁸⁵85. See Isayeva, Yusupova and Bazayeva v Russia, no 57947/00, 57948/00 and 57949/00, § 125, ECtHR 2005. Likely, the choice is explained by Russia’s refusal to recognise the existence of an armed conflict, which in turn would have involved the recognition of its obligations under international humanitarian law.⁸⁶86. On Russia’s refusal to apply IHL, see Mark Kramer, ‘Russia, Chechnya, and the Geneva Conventions, 1994–2006: Norms and the Problem of Internalization’ in Matthew Evangelista and Nina Tannenwald (eds), Do the Geneva Conventions Matter? (Oxford University Press 2017) 174–193. Instead, the legal basis for what Russia called ‘the antiterrorist operation in Chechnya was based on Russian legislation, namely on The Federal Law on Defence of 1996 and The Federal Law on Combating Terrorism of 1998’.⁸⁷87. Federico Sperotto, ‘Law in Times of War: The Case of Chechnya’ (2008) 8(2) Global Jurist 4–5 <https://doi.org/10.2202/1934–2640.1250>.

For the purposes of the present report, Universal Periodic Review (UPR) documentation for 193 States was reviewed, from the first UPR cycle up to summer 2019. Each document was thoroughly assessed with emphasis on words or phrases that indicated the existence of a state of emergency or related situation, including ‘martial law’, ‘emergency measures’, ‘public emergency’, and ‘state of siege’. Other relevant keywords included ‘crisis’, ‘emergency’, or ‘disaster’. The words ‘unrest’, ‘violence’, ‘conflict’, or ‘revolution’ were also employed where external information suggested the existence of such situations. In cases where the UPR documents were ambiguous or silent as to whether a country had declared a state of emergency, supplemental research was conducted.⁸⁸88. Research sources used include Google, Westlaw News, CNN, The Guardian, BBC, The Washington Post, Reuters and news sources germane to the particular country.

Most of the UPR reports contained no reference to a state of emergency or related situation, yet a review of external sources revealed several instances where such conditions existed. The UPR documents provided different levels of analysis with respect to these states of emergency. On some occasions, there were in-depth explanations with several paragraphs addressing the topic. On other occasions, there was only a short discussion limited to one or two sentences. This variation could impact the way readers understand the severity of the state of emergency. The UPR process does not use uniform terminology. The use of the word ‘crisis’ was particularly problematic, as what constitutes a crisis frequently depends on the perspective and long-term experience, standard of living, or other relevant factors unique to each country. Apart from the lack of coherence in the style and level of description among countries, there are some discrepancies among the documents published on the UPR website. Even though it is natural for National Reports to have substantial differences, there should be some consistency among the documents prepared by the United Nations or its agencies.

The ICCPR, ACHR, ECHR, ESC and revised ESC contain derogation clauses that are worded in a similar fashion and stipulate that in time of public emergency State Parties ‘may take measures derogating from their obligations’ under the respective treaty provided certain procedural and substantive conditions are met.⁹⁰90. See Art 4(1) ICCPR, Art 27(1) ACHR, Art 15(1) ECHR, ESC, Art 30(1) ESC, Art F.1 Revised ESC (emphasis added). Each of the five treaties explicitly refers to a State Party’s ‘right of derogation’ which States may ‘avail’ themselves of.⁹¹91. See Art 4(3) ICCPR, Art 27(3) ACHR, Art 15(3) ECHR, Art 30(2) ESC, Art F.2 Revised ESC. The ordinary meaning of the terms clarifies that at stake is a right of States to derogate, albeit a right subject to certain conditions.

While the choice of whether to derogate or not belongs to the State,⁹²92. Committee on Human Rights in Times of Emergency (n 4) para 15. the notification of the derogation becomes a precondition for the State to avail itself of the right to derogate under the emergency exceptions. This is clear based on the wording of the respective provisions (‘shall’)⁹³93. See eg Art 4(3) ICCPR; Art 15(3) ECHR. as well as from the interpretation and jurisprudence of monitoring mechanisms.⁹⁴94. See the Human Rights Committee, which refers to the states’ ‘power of derogation’ and obligation to notify: Human Rights Committee, General Comment No 29, States of Emergency (Article 4) (2001) UN Doc CCPR/C/21/Rev. 11, para 17; and the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnula Ní Aoláin, who refers to the right to derogate as the ‘legally mandated privilege of States’, see UNSR on counterterrorism and human rights (n 34) para 7. Further clarification that derogation is a right of a State, which is linked with the obligation to notify set out in the various derogation clauses, can be deduced from the practice of treaty bodies and regional courts in relation to the COVID-19 pandemic. The Human Rights Committee (HRCttee) called on all States derogating from their obligations under the Covenant ‘to comply without delay with their duty to notify the Secretary-General immediately’.⁹⁵95. Human Rights Committee, Statement on Derogations from the Covenant in Connection with the COVID-19 Pandemic (2020) UN Doc CCPR/C/128/2, para 1 (emphasis added); see also Human Rights Committee, General Comment No 29 (n 94) para 17: ‘In paragraph 3 of article 4, States parties, when they resort to their power of derogation under article 4, commit themselves to a regime of international notification. A State party availing itself of the right of derogation must immediately inform the other States parties, through the UN SG, of the provisions it has derogated from and of the reasons for such measures’. The 2022 ECtHR Factsheet ‘Derogation in Times of Emergency’ likewise affirms: ‘[…] on a procedural level, the State availing itself of this right of derogation must keep the SG of the CoE fully informed’.⁹⁶96. ECtHR, Factsheet ‘Derogation in case of Emergency’ ((as of) February 2022) 1. See also European Commission for Democracy through Law (Venice Commission), Interim Report on the Measures taken in the EU Member States as a Result of the COVID-19 Crisis and their Impact on Democracy, the Rule of Law and Fundamental Rights (8 October 2020) para 84 <www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2020)018-e>. The Inter-American Court of Human Rights (IACtHR) even established a separate violation of the procedural obligation to notify (Art 27(3) ACHR) in Zambrano v Ecuador when Ecuador did not live up to its obligation, while affirming the importance of Art 27(3) ACHR.⁹⁷97. Zambrano Vélez et al v Ecuador, Series C No 166, IACtHR (4 July 2007) § 70; see also Caracazo v Venezuela where the IACtHR held that in addition to various other provisions, also the obligation to notify under Art 27(3) ACHR had been violated since the other states parties had not been informed through the OAS Secretary General of the events in February and March 1989: Caracazo v Venezuela, Series C No 58, IACtHR (11 November 1999). In line with these considerations, if a State does not notify, it will not enjoy the right to derogate and will remain bound by the (substantive) human rights provisions at stake. This being said, human rights institutions nonetheless take the effective circumstances into account. So, also without a formal derogation, on the basis of a proportionality test, emergency situations may increase a State’s scope for action. This demonstrates that, in international and regional human rights jurisprudence, the difference between a formal derogation and the application of the proportionality test is not clear-cut but rather blurred.

State practice also suggests that derogation is a right of States, not an obligation. While practice is heterogeneous, there are far more declarations of states of emergency at domestic levels proclaimed by all types of governments than derogations notified at the international level.⁹⁸98. See Laurence R Helfer, ‘Rethinking Derogations from Human Rights Treaties’ (2021) 115(1) American Journal of International Law 20, 26 <https://doi.org/10.1017/ajil.2020.92>. Furthermore, if they notify an international treaty body, they often only notify one body (eg, regional systems) and not all concerned institutions (eg, UN system). Moreover, suspensions are often driven by domestic considerations. As a result, most domestic emergency suspensions of rights do not lead to derogations at the international level.⁹⁹99. ibid, 31. Especially the COVID-19 emergency measures analysis¹⁰⁰100. See eg Veronika Haász and Melinda Szappanyos, ‘Derogations from the ICCPR and Guide to the Duty of Notification: Apropos the COVID-19 Pandemic’ (2022) 25(1) Austrian Review of International and European Law 37–64 <https://doi.org/10.1163/15736512–02501002>; see also Niall Coghlan, ‘Dissecting Covid-19 Derogations’ (Verfassungsblog, 5 May 2020) <https://verfassungsblog.de/dissecting-covid-19-derogations/>. shows that the majority of States and, among them, many with very drastic emergency measures, did not enter derogations, whereas a few, and with less drastic measures, did so.

While there may be positive dimensions of notifications of derogations, such as greater transparency and the avoidance of a normalisation of the emergency,¹⁰¹101. See infra paras 65–71. these effects are not always self-evident. For example, the added layer of transparency is conditioned by the clarity of the notifications to allow for international monitoring. Vague derogations – in terms of timing or content – do not enhance individual protection in times of emergency but rather the contrary.¹⁰²102. See Coghlan (n 100). One argument might be that it is harder to detail or delineate the exact scope of derogations in some newer emergency circumstances, such as the beginning of the COVID-19 pandemic in early 2020. The Committee is not convinced that this argument holds true of situations that States have had to deal with previously and repeatedly, such as coups d’état or terrorism. It is also disinclined to see any paradigmatic emergency situation as ab initio vague or diffuse. Finally, a condition for the effectiveness of notifications is that treaty-monitoring bodies engage in a robust review of States’ derogations rather than in a mere bureaucratic exercise.¹⁰³103. Helfer (n 98) 27, referring to UNSR on counterterrorism and human rights (n 34) paras 26–27. The only engagement would thus be when a complaint is brought before human rights monitoring institutions.

From the above discussion, it is clear that declared and notified states of emergency are, by definition, an exercise of a State’s intention to avail itself of the right to derogate under relevant treaties. As such, declared and notified states of emergency are governed by the derogation provisions of respective treaties, specifically the notification requirement, other procedural requirements, and substantive standards.

The right of States to derogate from human rights treaty provisions may or may not be exercised. However, even if States decide not to derogate, substantive requirements comparable to the standards of the derogation clause, such as the temporality of measures, may be read into the application of proportionality in the justification analysis. Consequently, the necessity and proportionality standard against which declared and de facto emergency measures must be assessed is at least as strict – but possibly stricter – than that against which notified emergencies are judged. This is so because the very purpose of derogations is to afford a certain leeway to States in adopting and implementing measures that are necessary to address an emergency situation. An in-depth examination is provided in part E of this report.

The analysis in this section will review the extent to which domestic law and the practice of States are consistent with (a) threshold, (b) declaration of state of emergency and notification of derogation, (c) duration, and (d) domestic control of the emergency.¹⁰⁸108. The focus lies on the human rights system at the international level (ICCPR), and the European (ECHR, ESC) and Inter-American systems (ACHR) at the regional level, as these treaty regimes have emergency provisions. Note that also Article 4 of the Arab Charter on Human Rights permits derogations in time of emergency, yet there is no meaningful practice that can be reviewed. The substantive requirements of the norm closely resemble those in other human rights treaties. The African Banjul Charter does not have a specific derogation clause. For details, see the Committee on Human Rights in Times of Emergency (n 4) paras 105–109.

The occurrence of an emergency situation, however serious, does not imply that authorities have carte blanche in choosing what measures to introduce in order to tackle it. As has been highlighted in the interim report,¹⁴³143. Committee on Human Rights in Times of Emergency (n 4) para 728ff. there can be no suspension of rights that are considered ‘inalienable’ or ‘intangible’ and are (a) non-derogable under the relevant human rights treaties; nor may emergency measures run counter to international humanitarian law, peremptory norms of international law, or procedural guarantees underpinning the protection of non-derogable rights. In addition, the overarching principles of necessity and proportionality limit the action that may be taken. Especially when a derogation from human rights treaties is notified, the measures introduced can only be those that are ‘strictly required by the exigencies of the situation’. This implies that justification permitted under the different provisions of the treaty for the maintenance of public safety, health, order, or for other legitimate purposes must be plainly inadequate to respond to the situation at hand. Only then is the introduction of derogatory emergency measures justified (b). In addition, emergency measures must not be discriminatory in that they disproportionately affect certain groups of people based on characteristics such as race, gender, age, disability, or other protected attributes (c). The following paragraphs will review domestic provisions, State and judicial practice related to these legal standards.

The substantive requirements for suspension of constitutional rights often differ from the ones contained in international human rights treaties, with domestic constitutions sometimes having less stringent requirements. Some constitutions identify certain rights as non-derogable or limit the rights for which a suspension is possible,¹⁴⁴144. See eg Art 175 Albanian Constitution; Art 186 of the 1986 Constitution of Nicaragua; Art 45 of the Constitution of Nigeria; Art 165 of the Constitution of Ecuador. See also Art 115c(2) of the German Basic Law (introducing very limited opportunities for derogation). others require emergency measures to be proportionate,¹⁴⁵145. See eg Art 175(4) of the Albanian Constitution; Art 164 of the Constitution of Ecuador; see also Art 45 of the Constitution of Nigeria (requiring ‘reasonable justification’). and yet other constitutional texts do not explicitly contain substantial limits to the suspension of fundamental rights.¹⁴⁶146. See eg Art 23 of the Argentine Constitution; Art 137 of the Peruvian Constitution; Arts 358, 359 of the Indian Constitution; Art 414 of the Constitution of Myanmar; see also Art 59 of the Constitution of Burkina Faso that authorises the president to take the necessary measures without imposing any substantive limits.

In this report, we have differentiated between three types of emergencies: i) declared and notified states of emergency; ii) states of emergency that are internally declared, but not notified to an international treaty monitoring body; and iii) de facto states of emergency that are neither internally declared nor notified to an international monitoring body. States react very differently to an emergency situation. This was illustrated by the response of different States to the COVID-19 pandemic: 107 States internally declared an emergency, while only 31 notified it to an international treaty monitoring body.¹⁶⁶166. Stefan Kadelbach, ‘Menschenrechte in Zeiten des Notstands’ in Philipp B Donath and others (eds), Der Schutz des Individuums durch das Recht: Festschrift für Rainer Hofmann zum 70. Geburtstag (Springer 2023) 260. The other States neither declared nor notified an emergency, although they were facing largely the same challenges, which they addressed through emergency measures – at stake are thus de facto emergencies.¹⁶⁷167. See eg the discussion concerning the Central African Republic, Rwanda, Somalia and Sri Lanka, in Molloy (n 9) 12.

This diverging practice raises two questions: First, is it desirable that States declare and notify an emergency in an emergency situation? In the early days of the pandemic, the HRCttee stated that it would be preferable for States to deal with the challenges posed by COVID-19 within the usual parameters permitting restrictions on fundamental rights.¹⁶⁸168. Human Rights Committee, Statement on Derogations from the Covenant in Connection with the COVID-19 Pandemic (n 95) para 2(c). Nevertheless, the non-declaration and lack of notification of an emergency may restrict the ability to monitor the situation. Therefore, we will first address the impact of an emergency declaration and derogation notification on human rights (a). Second, it is not obvious that the declaration and notification of an emergency situation makes a difference as to how this situation is legally evaluated. Even if States declare an emergency, courts usually perform a proportionality analysis of the States’ responses.¹⁶⁹169. Committee on Human Rights in Times of Emergency (n 4) para 31. Therefore, we will analyse whether the declaration and notification of an emergency actually makes a difference in the practice of international human rights courts and tribunals evaluating such a situation (b).