Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights

Abstract

Governments commonly assert that there exists a right to derogate from human rights norms to safeguard the public interest during crises. Such assertions reflect an attempt to reconcile individual and aggregate interests. This task becomes especially difficult in situations of public emergency. Crisis or emergency situations usually involve violence and the imminent or actual breakdown of minimum order. In such situations, insistence on special individual interests can have serious detrimental effects on community welfare. The need to accommodate both sets of claims is recognized in international documents dealing with the protection of human rights as well as in national instruments safeguarding basic rights and fundamental freedoms. While it is clear that individual rights are not absolute, the international community must guard against spurious invocations of community interests to excuse violations of human rights. Such invocations are typically made to facilitate the task of power elites in ruling a community or, worse, to further their special interests.