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Derogating to Deal with Covid 19: State Practice and Thoughts on the Need for Notification

In her blog post on EJIL: Talk! (9 April 2020), Dr Stevie Martin drew attention to an interesting development concerning States' measures to deal with Covid 19 and their impact on human rights. She discusses a decision of the England and Wales Court of Protection in which a judge appeared to find that the UK was derogating from its obligations under Article 5 ECHR, when no notification had been deposited with the Secretary General of the Council of Europe informing other States parties of any UK derogation in relation to its efforts to deal with Covid 19. Professor Dapo Akande commented on the blog post, raising several interesting questions, including: whether national courts are competent to pronounce a derogation, and whether notification is a requirement for the State to be able to rely on the derogation provision. I wanted to share some up-to-date State practice on derogations from the ECHR dealing with Covid 19 and to add some commentary, particularly on the question whether notification is a requirement for a…

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A Domestic Court’s Attempt to Derogate from the ECHR on behalf of the United Kingdom: the implications of Covid-19 on judicial decision-making in the United Kingdom

It is perhaps trite to note that for many countries throughout the world Covid-19 represents an unprecedented (as least in terms of modern peacetime history) public health emergency. It is inevitable that during this time some decisions will be made that are controversial, both ethically and legally. It will take careful reflection in the wake of the pandemic…

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Supervision of Derogations in the Wake of COVID-19: a litmus test for the Secretary General of the Council of Europe

The pandemic COVID-19 has triggered a record number of derogations from the European Convention on Human Rights (the ‘ECHR’ or the ‘Convention’). By now, Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia and Romania have notified the Secretary General of the Council of Europe (the ‘Secretary General’) of their derogations from the ECHR. More States may…

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State-Empowered Actors in the European Court of Human Rights – State Sovereignty and Council of Europe Authority

  Human rights conventions constitute a particular category of international law in respect of which individuals, exceptionally, are empowered to act because of their status as rights holders. Nowhere is this more evident than in regional bodies, such as the Council of Europe, which are founded on human rights conventions the ratification of which is a necessary criterion…

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part II: Issues Lurking on the Merits

In my previous post I explained how the European Court’s Article 1 jurisprudence allows it to avoid the question of sovereignty over Crimea, since it can ground Russia’s jurisdiction over the territory, and thus the applicability of the ECHR, simply on the fact of its control and need not say anything else. But there are at least two…

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