OHCHR & Human Rights Committee Address Derogations During COVID-19
The United Nations Human Rights Committee and the Office of the High Commissioner for Human Rights (OHCHR) have published new guidance on derogations from the International Covenant on Civil and Political Rights (ICCPR) in light of reports indicating that States have or are considering implementing emergency measures in response to the COVID-19 health crisis. [OHCHR Press Release] While some States have notified the United Nations Secretary General of their intent to derogate from their human rights obligations, as required by Article 4 of the ICCPR, many States parties to the ICCPR have “resorted to emergency measures…without formally submitting a notification of derogation.” See Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic, UN Doc. CCPR/C/128/2, 24 April 2020. The Human Rights Committee and the OHCHR have clarified the requirements that States must meet when limiting or restricting human rights, and elaborated on the specific steps that States must take to derogate from certain rights under international human rights law. See OHCHR, Emergency Measures and COVID-19: Guidance (2020). While derogations are permitted when states of emergency are declared, both of the OHCHR and the Human Rights Committee emphasize that measures “suspending rights should be avoided when the situation can be adequately dealt with by establishing proportionate restrictions or limitations on certain rights.” See id.
From the data available in the United Nations Treaty Collection (UNTS), it appears that 13 States (Armenia, Chile, Colombia, Ecuador, El Salvador, Estonia, Georgia, Guatemala, Kyrgyzstan, Latvia, Palestine, Peru, and Romania) have notified the Human Rights Committee of derogations to the ICCPR. News reports indicate that many more have enacted states of emergency, with varying restrictions and human rights implications. For a growing collection of such stories, see the National responses to the 2019-20 coronavirus pandemic page on Wikipedia. There are 173 States parties to the ICCPR.
Derogations, or suspensions of rights, are permissible under Article 4 of the ICCPR when there is a “public emergency” that “threatens the life of the nation.” See OHCHR, Emergency Measures and COVID-19: Guidance (2020). However, there are certain ICCPR provisions that States can never derogate from. These are: the right to life (Article 6); the prohibition of torture or cruel, inhuman or degrading treatment (Article 7); the prohibition of slavery, slave trade and servitude (Article 8); the right to not be imprisoned merely on the ground of inability to fulfil a contractual obligation (Article 11); the right to not be found guilty of a criminal offence that did not constitute a criminal offence when it was committed (Article 15); the right to recognition as a person before the law (Article 16); and, the right to freedom of thought, conscience and religion (Article 18). See Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic, 24 April 2020, para. 2(d).
Additionally, States cannot derogate from their obligation to respect human dignity, including the dignity of individuals in conditions of detention. See id. at para. 2(e). This requires ensuring that all “public discourse in connection with the COVID-19 pandemic does not constitute advocacy and incitement against specific marginalized or vulnerable groups, including minorities and foreign nationals.” See id.
While both the statement by the Human Rights Committee (the treaty body responsible for monitoring the implementation of the ICCPR) and the OHCHR (the leading UN entity responsible for promoting and protecting human rights in all UN Member States) document provide similar guidance, the Human Rights Committee’s statement is most instructive for States parties to the ICCPR. The OHCHR document is more inclusive, geared towards all UN Member States, and elaborates on topics such as the role of law enforcement during COVID-19 and the penalties for violations of extraordinary measures. See OHCHR, Emergency Measures and COVID-19: Guidance (2020).
The Human Rights Committee reiterates six specific requirements that States must comply with if they want to derogate from their human rights obligations: States must 1) proclaim a state of emergency, 2) formally notify the UN Secretary General of their intent to derogate, 3) ensure that derogation measures meet strict tests of necessity and proportionality, 4) ensure that derogation measures don’t interfere with other international human rights obligations, 5) guarantee that derogation measures are applied in a manner that is not discriminatory, and 6) uphold non-derogable rights. See Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic, 24 April 2020, para. 2.
States have an obligation under Article 4 of the ICCPR to notify the UN Secretary General of the “provisions derogated from and the reasons for the derogation,” including the text of the legislation adopted, and must again notify the UN Secretary General when the derogation period ends. See id. at para. 2(a). If the state of emergency period is extended or the State derogates from other ICCPR provisions, the State must submit an additional notification to the UN Secretary General. See id. States must also inform the population affected by the derogation measures of their scope and application, ensuring that the information is communicated quickly and in the relevant languages spoken by the population. See OHCHR, Emergency Measures and COVID-19: Guidance (2020).
With respect to COVID-19, all derogation measures must be “strictly required by the exigencies of the public health situation,” must be temporary, and limited in their geographical coverage and scope. See Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic, 24 April 2020, para. 2(b). States’ derogation legislation and measures must also be the “least intrusive to achieve the stated public health goals” and provide safeguards that guarantee the return to normal laws when the emergency situation is over. See OHCHR, Emergency Measures and COVID-19: Guidance (2020). Additionally, derogation measures must not discriminate on any grounds or violate other State obligations under international law. See Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic, 24 April 2020, para. 2(d). Similarly, States parties cannot tolerate “the advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence.” See id. at para. 2(e).
In particular, the Human Rights Committee makes clear that “States parties should not derogate from Covenant rights…when they can attain their public health or other public policy objectives through invoking the possibility to restrict certain rights.” See id. at para. 2(c). For example, restrictions on the rights to freedom of movement (Article 12), freedom of expression (Article 19), and peaceful assembly (Article 21) should comply with the limitation clauses set out in those ICCPR articles, without relying on a derogation from those articles. See id. The UN Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression has reiterated this view, stating that “Article 19(3) already provides sufficient grounds for necessary and proportionate restrictions of article 19(2) rights, to protect public health.” See Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression: Disease pandemics and the freedom of opinion and expression, UN Doc. A/HRC/44/49, 23 April 2020, para. 17. The Special Rapporteur further explained that “even in the context of a declared public emergency which threatens the life of the nation, measures derogating from a State party’s obligations under the Covenant must be limited to the extent strictly required by the exigencies of the situation….” See id. Similarly, the OHCHR guidance reminds States that any restriction on human rights must meet the principles of legality, necessity, and proportionality, even in times of emergency. See OHCHR, Emergency Measures and COVID-19: Guidance (2020).
Both the UN Special Rapporteur and the Human Rights Committee note that the right to freedom of expression is an important safeguard “for ensuring that States parties resorting to emergency powers in connection with the COVID-19 pandemic comply with their obligations under the Covenant.” See Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic, 24 April 2020, para. 2(f).
Penalties for Violations of Extraordinary Measures
The OHCHR reminds States that the enforcement of exceptional measures must also comply with the principle of proportionality and must not be “imposed in an arbitrary or discriminatory way.” See OHCHR, Emergency Measures and COVID-19: Guidance (2020). Vulnerable groups, such as persons with disabilities or victims of domestic violence, should not be penalized for violating emergency measures if they are doing so to protect themselves. See id. Additionally, the OHCHR notes that States should “pay specific attention to the public health implications of overcrowding in places of detention” and only “deprive persons of their liberty as a last resort.” See id. Finally, the OHCHR stresses that criminal penalties for misinformation offenses should be avoided and, instead, States should promote independent factchecking and address “misinformation in the first instance by themselves providing clear, reliable, fact-based information.” See id.
Law Enforcement & Extraordinary Measures
The OHCHR guidance states that all law enforcement operations must comply with international norms and standards. See id. Specifically, the guidelines note that the use of force should only be used “when strictly necessary” and States should not use the military to police the population. See id. In exceptional circumstances, States may deploy the military in a law enforcement context “for limited periods and specifically defined circumstances.” See id. In light of the powers that have been given to law enforcement and the military during the COVID-19 health crisis, the OHCHR states that all allegations of human rights abuses by the military or law enforcement officials must be promptly investigated. See id.
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