public health emergency

The COVID-19 pandemic has led to governments around the world imposing state emergencies under the pretext of protecting public health. Such measures, which have included both partial and full lockdowns to slow the spread of the novel coronavirus that causes the COVID-19 disease, have had an impact on fundamental freedoms. These rights, which are highlighted under international human rights law (IHRL), include access to health care, non-discrimination, privacy, free speech, freedom of movement and peaceful assembly.

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On April 30, the UN Human Rights Council (UNHRC) categorically stated that under the International Covenant on Civil and Political Rights (ICCPR) — the human rights treaty of the UN — governments are not allowed to deviate from their human rights obligations and commitments while combating a global pandemic. This statement was released after a majority of officials served notices to the UNHRC about the declaration of state emergencies and the restrictive measures that undermined their human rights obligations under the ICCPR. Nonetheless, all restrictive measures enforced to combat the pandemic must meet the IHRL framework and comply with the purposes and principles of the UN agency.

Moreover, the UNHRC asserted in its statement that many other countries had imposed similar restrictive measures without formally notifying the UN body about the derogation of certain human rights. The UNHRC advised states against neglecting their obligations under international human rights law by resorting to excessive emergency actions.

COVID-19 Pandemic and Human Rights

There are several non-negotiable human rights principles enshrined in the IHRL framework. These include the right to life; no torture and slavery; a fair trial before a court of law; no imprisonment for breaches of contractual obligations; freedom of thought, conscience and religion; and the right to recognition as a person. Consequently, Article 4(1) of the ICCPR states:

“In [a] time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

This does not mean that other human rights obligations can be shelved during a public health emergency against the principle of legal proportionality of restrictive measures. But there is a set of laws that consist of both procedural and substantive legal requirements. States have to meet these guidelines while combating the COVID-19 disease without eschewing their human rights obligations under the IHRL framework.

On the other hand, UN Human Rights High Commissioner Michelle Bachelet has underscored that balancing “the economic imperatives with the health and human rights imperatives during the COVID-19 pandemic is going to be one of the most delicate, daunting and defining experiences for all leaders and all governments. Their place in history will be decided by how well or how badly they perform over the coming months.”

Pre-Derogation Measures by States

As a general rule during health emergencies, states must announce the human rights provisions from which they have decided to relax and inform other nations through the UN secretary-general about their intentions. However, if states decide to extend the duration or geographical coverage where the derogation of rights takes place, they must issue additional notifications.

Similarly, there is a need for immediately notifying officials in case of the termination of derogation. Pragmatically speaking, emergency measures can only restrict other human rights according to the “extent strictly required under the exigencies of the situation.” This must be as outlined in the General Comment No. 29 under Article 4 of the ICCPR.

These steps consider the duration, location and scope of measures imposed during a state of emergency. However, countries must ensure that enforced measures are necessary, legitimate, non-discriminatory and proportionate to the emergency situation. These steps were incorporated in the Guidance on Emergency Measures and COVID-19 issued by UN High Commissioner for Human Rights on April 27.

Derogation Under Regional Human Rights Frameworks

Guidelines for regional human rights protection (RHRP) are complementary pillars of the IHRL framework to protect and promote human rights. Similar derogation provisions are incorporated in the RHRP framework. For example, Article 15 of the European Convention on Human Rights (ECHR) is based on the draft Article 4 of the UN Draft Covenant on Human Rights, which later became Article 4 of the ICCPR and Article 27 (1) of the American Convention on Human Rights (ACHR).

But the protocol of derogation cannot be used if a state is simply unable to guarantee the fulfillment of human rights under the ECHR, the ACHR and the RHRP. In other words, a country cannot hide behind the option of relaxing human rights policies under exceptional circumstances if it is unable to even uphold them during normal times. On the contrary, a state is obliged to announce the measures taken that might involve the relaxation of its requirements under the RHRP.

Yet in March and April, several European countries notified the secretary-general of the Council of Europe about their plan to derogate from their human rights obligations as per the ECHR. Despite this, they had to resort to emergency powers within the IHRL framework while responding to a health emergency like COVID-19. In addition, emergency powers must be temporary, with a vision of restoring normalcy at the earliest.

Second Wave?

It is evident that there is no clarity about the number of governments complying with the requirements of the derogation protocol under the ICCPR while dealing with the pandemic. There is every chance that the novel coronavirus will soon result in a second wave and once again derail life as we know it. This would lead to repeated lockdowns, and human rights would be part of the conversation.

It is clear that states have to be on their toes to fulfill their IHRL obligations. During this crisis, governments must avoid instances of sidestepping their human rights requirements. Such violations must be probed and the culprits brought to justice.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy. More