The Added Value of Derogation under Article 15 ECHR: Covid-19 as a Stress Test for the Convention System.

Abstract This dissertation examines the role and added value of derogation under Article 15 of the European Convention on Human Rights (ECHR) in the regulation of contemporary emergencies, using the Covid-19 pandemic as a critical stress test for the Convention system. While Article 15 is traditionally conceived as an exceptional mechanism reserved for moments of existential crisis, the pandemic revealed significant variation in state practice, with some states formally derogating and others relying exclusively on ordinary limitation clauses. This divergence raises a central question: when, if ever, does derogation add legal value beyond the Convention’s ordinary mechanisms for restricting rights in times of crisis? The dissertation advances a functional adequacy model to address this question. Rather than treating the choice between limitation and derogation as a formal or symbolic decision, the model evaluates whether ordinary Convention mechanisms—particularly limitation clauses and proportionality review—remain capable of coherently structuring, justifying, and supervising emergency measures in practice. Derogation is conceptualised not as a suspension of law, but as an exceptional yet legally disciplined form of accommodation, justified only where ordinary mechanisms can no longer adequately regulate measures that threaten the organised life of the community or undermine the state’s capacity to secure meaningful enjoyment of Convention rights. Through doctrinal analysis of the European Court of Human Rights’ jurisprudence, comparative examination of state responses to Covid-19, and case study analisys of derogations filed in political scenarios, the dissertation demonstrates that derogation is neither inherently abusive nor generally necessary. Instead, its added value lies in providing doctrinal clarity and transparency where the distinction between restriction and de facto suspension becomes unstable under ordinary limitation logic. The study concludes that while most pandemic measures could be accommodated within ordinary limitations, derogation retains a residual but important role within the Convention system, provided it remains temporary, proportionate, and convincingly anchored in the exceptional nature of the threat faced.