Revista Jurídica Portucalense (Jul 2021)
The Threat of Derogations from International Human Rights Treaties to Democracies Worldwide
Abstract
According to the International Human Rights Law, States can limit the application of human rights rules to preserve individual and collective interests, such as public health, for example. The COVID-19 pandemic and its exceptional circumstances made several States worldwide go further. They decided to derogate their obligations concerning international human rights rules, suspending their applicability inside these countries’ territories under the justification that it is part of the sanitary attempts to address the spread of the disease. This article intends to show that this decision allows States to skip their international responsibility to respect human rights instead of guaranteeing people’s most fundamental rights. The suspension effect brought by a derogation enlarges the power of governments to create policies and laws to contain the emergency. However, governments do not need to observe some international human rights limitations if the derogation lasts. As a result, it allows some States to use the public health emergency brought by the COVID-19 to legitimize abusive and discriminative legislation, which purpose is to persecute political opposition and restrict minorities’ rights, for example. Therefore, adopting derogations in situations in which a simple limitation would be sufficient allows national governments to put their responsibility to follow international human rights terms and conditions out of the way under the justification of combatting a health emergency.
