Derogation in times of emergency

Human rights must be respected at all times. However, in some exceptional situations, states may face circumstances that threaten the safety and security of the country and its population. In these emergency situations, states may derogate from some human rights obligations.

Derogation from human rights obligations is different than restrictions. Derogating from human rights means that the government either cannot guarantee some aspects of human rights or must adopt measures that would otherwise violate previously agreed human rights standards to tackle the emergency. A derogation essentially means suspending some human rights obligations during an emergency, that states had agreed to when they joined international treaties.

example During an infectious disease pandemic, states may choose to derogate from freedom of movement, by instituting a lockdown and requiring that people fill in a form to leave their home. 

Derogation does not mean that the state does not have to guarantee your rights at all anymore. It only means that the state is facing an exceptional situation where normal measures are no longer effective and it needs to adopt measures that would normally violate some aspects of rights, to meet the challenges presented by the emergency. Derogation and emergency measures can only be used to tackle an exceptional situation and cannot serve as an excuse to restrict rights or freedoms that have no connection with the emergency.

note Derogation is a feature of international human rights treaties. However, the Estonian Constitution also includes a clause that during a state of emergency or a state of war, in the interests of national security and public order, the rights and freedoms of persons may be restricted, and obligations may be imposed on them, under conditions and pursuant to a procedure prescribed by a law. The provision lists specific constitutional rights that cannot be restricted.

Nature of emergencies

The government may provide notice that it intends to derogate from some human rights only in exceptional circumstances that are serious enough to “threaten the life of the nation.” These are generally very serious situations where the physical safety of the population, political independence, territorial integrity or the existence and functioning of state institutions that are essential to guarantee the right in question, are threatened. 

example War with another state threatens the territorial integrity, political independence and physical safety of a state’s population. War with another state in the territory of your state is recognised as a type of emergency in which the state may derogate from some human rights obligations.

Limits to derogation

Derogation from human rights has very strict limits and only measures that are strictly required by the situation of the emergency are allowed. This means that there are a number of legal requirements that restrict a government’s ability to derogate from its obligation to guarantee human rights. For example, there are strict limits on rights that cannot be derogated from and on the scope of the restrictions required to tackle the emergency.

About this Section

This Section of the Guide explains the legal requirements which states must follow to lawfully derogate from their obligations under human rights treaties. It also briefly explains some of the situations which can be considered emergencies justifying derogation.

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Last updated 15/04/2023