This piece unpacks the ten formal derogations filed by European States under Article 15 of the European Convention on Human Rights (ECHR) during the COVID-19 pandemic -States which are also State Parties to the International Health Regulations (2005)- to assess how scientific and public health language, evidence, and expertise were utilised in the framing of these derogations. Through international instruments, such as the IHR (2005), States acknowledged the importance of adhering to scientific knowledge and public health rationale in their decision-making processes in response to public health emergencies. The authority of science and public health was given additional gravitas during such emergencies.
Our study reveals how scientific and public health language were instrumentalised to delineate between the ordinary and exceptional operation of human rights during a public health emergency 'threatening the life of the nation' and how States failed to incorporate the IHR (2005) objectives to temper domestic decision-making. In their submissions to the Secretary General of the Council of Europe, the States did not articulate a substantively grounded scientific or public health rationale to underpin their responses. Instead, they used scientific and public health language symbolically (see Jasanoff on science and governance, Koskenniemi on legal rhetoric, and Agamben on states of exception). The findings indicate that their derogations sought to define a public health emergency using technocratic language with a performative function. In lieu of providing a clear scientific or public health rationale for their understanding of a health emergency and their response to it, States legitimised their use of exceptional authority and their choices to derogate from human rights by drawing upon an aura of authority from the use of science and public health-related language. While States performed a concern for scientific and public health reasoning in their statements, they ultimately did not fulfil the evidentiary standards and normative spirit of the IHR (2005). Despite legal regimes' attempts to guide State discretion during a global health emergency to align with scientific and public health evidence, States merely alluded to technical language and expertise when setting out their derogations. This disjunction between language and substantive basis highlights a deeper fragility in legal frameworks designed to safeguard human rights during emergencies. Such performance has significant implications for the place of science and public health in questions of necessity and proportionality regarding normative-institutional safeguards of human rights during global health emergencies, as well as the interplay between the international public health governance of the IHR (2005) and States' human rights obligations in times of crisis.
Ana Balcazar-Moreno is a PhD Researcher in International Law, a Research Associate at the Global Governance Centre and the Global Health Centre of the Geneva Graduate Institute (IHEID), and a participant in the Centre for Studies and Research (The Hague Academy), contributing to an upcoming publication on Global Health-related Institutions and Health Crises. Ana participated as a panelist in the 2024 WTO Public Forum's session 'Bridging the Gap: Equitable, Transparent, and Sustainable Instruments and Innovative Policies to Maximise the Benefits of Global Trade while Ensuring Environmental Objectives'. Her research interests encompass the laws and practices of international institutions, regime complexity, global governance, global health, stakeholder multiplicity, Indigenous Peoples and local communities, sustainable development, public accountability and responsibility, capacity-building, equity, and inclusiveness. Ana's experience integrates academic expertise, applied research, teaching, and training with extensive legal practice. She has served as a Legal Officer at the HQ/LEG Office of the Legal Counsel of the World Health Organisation and collaborated with various United Nations bodies, the European Union, the International Bar Association's Human Rights Institute, the Council of State of Colombia, NGOs and other entities in Belgium, Colombia, France, Switzerland, and the United Kingdom.