Governments around the world are taking decisive action to contain the spread of a novel coronavirus, (COVID-19), with heavy implications for human rights. Commentators have assessed containment measures in blogs on preventive duties, State responsibility, and the UK’s draft emergency legislation. Several States have now derogated from the ECHR to address COVID-19. This blog post analyses one current and one historic derogation dealing with threats posed by contagious disease.

These derogations raise several interesting points. First, the derogating State must have viewed the situations as public emergencies ‘threatening the life of the nation’. Second, it is notable that both derogations encompassed qualified rights – implying the necessity of taking measures beyond restrictions already built into the rights themselves. Third, both derogations were limited to short time periods, reflecting the fast-developing nature of public health crises and the need to keep measures under review to comply with strict proportionality requirements.

Restricting human rights to protect public health

Many human rights treaties restrict certain rights to address threats to public health without resorting to derogation (e.g. Arts 8-11 ECHR).

A common technique to stem infectious diseases is quarantine. Typically, this involves restricting free movement (Article 2, Protocol 4 ECHR). Where quarantine restrictions are sufficiently severe, they constitute deprivations of liberty, which may contravene Article 5 ECHR unless they fall within a permissible limitation (Article 5(1)(a)-(f)).

The difference between restriction of free movement and deprivation of liberty is one of degree (Austin v UK [57]; Nada v Switzerland [225]). ECtHR case law provides examples of the fine distinction between restriction and deprivation of liberty: being exiled on an island constituted a deprivation of liberty, whereas being de facto unable to leave an enclave due to a travel ban did not.

The distinction can have practical consequences, since (i) permissible limitations under Article 5 are “exhaustive” and narrowly interpreted, whereas restrictions under the Protocol are more general; and (ii) not all States parties to the ECHR have ratified Protocol 4. It is notable that Article 5(1)(e) permits detention to prevent the spread of disease, although only as a last resort (Enhorn v Sweden [44]).

COVID-19 and bird flu: Georgia’s derogations

Derogation is a serious, but permissible step (Article 15 ECHR), enabling States to take measures that would, under normal circumstances, constitute human rights violations. Derogations are limited by proportionality.

As of 26 March 2020, six States – Armenia, Estonia, Georgia, Latvia, Moldova and Romania – have notified derogations from the ECHR in efforts to deal with COVID-19. Below, I analyse Georgia’s current derogation, and a historic derogation made by the same State to address another contagious disease.

In 2006, Georgia derogated from Article 1, Protocol 1 (peaceful enjoyment of property) and Article 2, Protocol 4 (free movement) to prevent “further spread throughout Georgia of the H5N1 virus (bird flu)”. A presidential decree provided for the confiscation of poultry in the affected district, banned hunting wild birds, confiscated guns and authorised restrictions on movement.

On 21 March 2020, Georgia notified a new derogation under the ECHR, in relation to the spread of COVID-19. The measures adopted include suspension of normal education, prohibiting assembly and restricting movement. Georgia considers it necessary to derogate from certain obligations under Articles 5, 8 and 11 ECHR, Articles 1 and 2, Protocol 1 (property and education), and Article 2, Protocol 4 (free movement).

These derogations reveal several interesting insights. First, they demonstrate the State’s view that such circumstances warrant derogation, permitted only in times of ‘war or other public emergency threatening the life of the nation’. There need not be a threat to the State’s very existence (A v UK [179]). Although the current emergency applies to Georgia’s entire territory, the 2006 derogation related only to one affected district. Geographically-limited derogation lends credence to the view that a criterion from early Article 15 case law, that the emergency must affect the “whole population”, looks increasingly anachronistic.

Second, it is interesting that certain provisions from which Georgia derogated are qualified rights and already incorporate restrictions to protect health. One criterion of derogation is that normal restrictions would be “plainly inadequate” (the Greek case [153]; A v UK [176]). The State must therefore have considered it necessary to go beyond the built-in limitations. This sheds light on the outer boundaries of the qualified rights.

Third, it is noteworthy that both derogations were restricted to short periods of time. Georgia’s recent state of emergency commenced on 21 March 2020 and will remain in force until 21 April 2020. The 2006 derogation was only effective for a couple of weeksbefore it was withdrawn. Such limits keep derogation measures under review and help to ensure that they are “strictly required by the exigencies of the situation” – the proportionality requirement under Article 15(1). Constraining derogations temporally demonstrates to other States parties that the derogating State is taking this requirement seriously.

To sum up, since some restrictions to protect health are anticipated in the ECHR, in many cases it will be unnecessary to derogate to deal with public health issues. However, while we should be wary of heavy-handedness, derogations in such circumstances are not unheard of. We may see more of them in the coming weeks. Their notification provides transparency where measures suppress rights to preserve public health. They also reveal interesting insights into States’ approaches to crises and the outer limits of qualified rights.