Derogations

Derogations are formal suspensions or partial suspensions of certain rights under a treaty, typically declared in response to war or a public emergency. They allow a state to implement extraordinary measures for the duration of the crisis, with the aim of preserving national security or public order while still complying with other international obligations.

In international human rights law, derogations are most prominently provided for in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The ICCPR allows derogations in times of public emergency that threaten the life of the nation, but such measures must be publicly proclaimed, notified to other parties, strictly required by the emergency, proportionate, and non-discriminatory. Importantly, states remain bound by non-derogable rights under the Covenant, and must adhere to other applicable international law. The ECHR contains a parallel framework under Article 15, permitting derogations in similar circumstances and subject to comparable limits, including protections deemed non-derogable.

Scope and limits are central to derogations. They typically affect civil liberties and procedural protections, such as certain security measures, restrictions on movement, assembly, or privacy. However, derogations cannot undermine core rights that are protected as non-derogable under the relevant treaty, and measures must be time-bound and carefully proportionate. Oversight mechanisms—such as judicial review, parliamentary scrutiny, and international monitoring—often accompany derogations, with states required to terminate them when the emergency ends.

Derogations remain controversial, as they expand state power during crises. They are regularly scrutinized to ensure compliance with international law and to prevent abuse.