An emergency does not mean that a government is completely free to adopt any restrictions it wishes. State authorities are still bound by national and international law, meaning that all restrictions of rights must be based on law and cannot be arbitrary. Only derogation and measures that are “strictly required by the exigencies of the situation” will be valid.
There are several aspects that determine whether the specific derogation is necessary and proportional, and they vary from case to case. This means that what is necessary and proportional may vary depending on the rights involved, the nature of the emergency, the type of restrictions, their length, their possibilities for review and other aspects.
example In the immediate aftermath of a terrorist attack, states may derogate from the right to liberty and temporarily allow for detention without a court order or judicial review. However, the total exclusion of judicial review and the possibility of challenging detention may no longer be justified after a certain time, when state authorities have had the time to ascertain whether the detainees were involved in terrorist activities and presented a threat to the public.
Necessity
Regardless of other aspects, any measures that restrict human rights must be genuinely necessary to meet the challenges presented by the emergency and they cannot be used for other reasons. This means that states may only adopt emergency measures that restrict human rights if:
- the measures taken are a genuine response to the emergency
- the measures taken are strictly required by the situation and not premature or unnecessary
- there are sufficient safeguards, including the possibility of review by an independent court, against abuse of emergency measures
Case-by-case assessment
Courts usually look at the situation in its entirety to determine whether derogation and measures adopted as a response to an emergency are necessary and proportional. This means that it is always necessary to make a case-by-case assessment of each right and restrictive measure. The outcome of this assessment may also change as a situation develops. For example, measures that were necessary to address an emergency in the beginning may no longer be necessary and should be adapted or removed as time goes by.
example An almost total ban on public gatherings may be justified at the peak of a pandemic when there are high numbers of people infected, hospitalized or dying. However, a total ban may no longer be justified when infection rates are low and mitigating measures such as the obligation to organize gatherings outdoors, minimum space requirements or the obligation to wear protective masks can be equally effective, without banning a gathering altogether.
States must constantly monitor the situation and reassess the need for derogation and restrictive measures.