Human Rights Law in the Time of the Coronavirus

Over time, natural calamities and armed conflicts have demonstrated that human rights are often the first casualties of a crisis. Even in "ordinary times," limitations on non-absolute rights or freedoms are permissible, provided these have a legal basis, they pursue a legitimate aim, including public health, and pass a necessity and proportionality test. Every limitation is further subject to the principles of equality and non-discrimination. By contrast, derogations are extraordinary measures permitted inter alia under article 4(1) of the International Covenant on Civil and Political Rights (ICCPR), by which a human right can be temporarily suspended or restricted in response to a public emergency.[1] Although several international human rights instruments may be relevant, this Insight will focus on derogations under the ICCPR and some limitations under the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is not intended to present a comprehensive overview of all rights that may be affected by emergency derogations.  

Human Rights Derogations and Limitations in Times of a Public Health Emergency

The ICCPR was drafted in the aftermath of a devastating war, but its drafters recognized that special circumstances potentially complicate state compliance with human rights commitments. Under article 4(2) ICCPR, some human rights enjoy absolute legal protection.  These are the right to life, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, the prohibition of slavery and servitude, the prohibition of imprisonment for inability to fulfil a contractual obligation, the prohibition against the retrospective operation of criminal laws, and the right to recognition before the law. Remaining rights can be derogated from on the basis of article 4 ICCPR. Some provisions have right-specific limitation clauses provided for by the ICCPR that do not relate to a state of emergency. 

International opinion on standards of review applicable to derogation remains largely divided, but broad legal standards became embedded in recent international human rights law (IHRL) approaches to public emergencies. Article 4(1) ICCPR provides for a multistep inquiry to determine the legitimacy of derogations from human rights obligations that consists of five main elements: (1) the state must officially proclaim a state of emergency; derogation measures must be (2) necessary, (3) proportionate, and (4) compliant with other international law obligations; and (5) the state must officially inform the international community of its intent to impose such measures.

First, "the situation must amount to a public emergency which threatens the life of the nation" and "the State party must have officially proclaimed a state of emergency."[2] This is essential to the rule of law and helps ensure that states act in accordance with domestic constitutional or other legal provisions that govern such proclamations. However, because there is a lack of common rules or definitions in this regard under IHRL,[3] domestic thresholds for declaring a national state of emergency vary. National authorities should exercise judgment in deciding whether a crisis qualifies as a full-fledged "national emergency"[4] and not a mere public health emergency. The ICCPR does not indicate the competent state authority for such a proclamation,[5] but instead, leaves it to the states to determine under their domestic laws.  It is widely accepted that a declaration of national emergency is a governmental response to an extraordinary situation posing a fundamental threat to a country, including an epidemic. A national state of emergency can empower governments to impose extraordinary policies, to alert the population to alter their habits, and to unfreeze funds allocated for other purposes. 

Second, derogation measures must respect the principle of necessity. This means that such measures must be strictly required in the circumstances and shall be assessed very carefully if they are not invoked in situations of armed conflict. Moreover, because a state of emergency gives the government power to impose extraordinary policies, it is vital that any derogations from human rights protections are strictly limited in "duration, geographical coverage and material scope."[6]

Third, due to the exceptional character of this mechanism, the compromise between protected values (human rights and public safety) must be carefully balanced against other alternatives and must be appropriate to achieve their aim. This principle of proportionality therefore requires states to provide justifications for any specific measure based on a proclamation of emergency, as well as to ensure that any measures imposed respect the principle of non-discrimination. 

Fourth, derogation measures shall comply with states' additional obligations under international law, including customary law and general principles of law. States that are party to multiple human rights instruments face additional burdens, as some measures, even if permitted under the ICCPR, might violate the American Convention on Human Rights or the European Convention on Human Rights (ECHR), which include more comprehensive enumerations of non-derogable rights.

Finally, a derogating state must immediately inform the other state parties, through the UN Secretary‑General on the scope, duration, and justification of the measures. Although the substantive right to take derogatory measures is not conditioned by an official notification to the international community, states must at least indicate the necessity and "detailed account of the relevant facts"[7] which justify derogations. 

To date,[8] derogations related to the current pandemic were registered by Guatemala on the restriction of free movement (art. 12) and the right to peaceful assembly (art. 21); Latvia, on the right to private and family life (arts. 12 and 17); Armenia on the right to liberty (art. 9) and articles 12 and 21; by Peru (arts. 9, 12, 17, 21); Estonia (arts. 9, 12, 14, 17, 21); Ecuador (arts. 12(1) and (3), 21, 22(1)-(2)); and Romania (arts. 12, 17, 21). Other derogations might as well have been officially notified after the time of writing this Insight.   

While the ICESCR does not provide for derogations, it limits restrictions to those "determined by law" and "compatible with the nature of these rights." This limitation clause is narrower than in comparable instruments, legitimizing only measures taken "for the purpose of promoting the general welfare in a democratic society." Article 2 requires each State Party to plan their efforts "to the maximum of its available resources, with a view to achieving progressively the full realization of the rights", therefore a proper derogation clause in the ICESCR would be inappropriate. In some views, social, economic, and cultural rights cannot be limited - in particular, obligations corresponding to subsistence rights, such as food, housing, and clean water, which are inherently related to the non-derogable right to life.[9]

Human Rights under the ICCPR and ICESCR

This Insight will focus on the right to liberty, freedom of movement and the right to health, but these are not the only rights that may be affected during a health emergency. For example, political rights protected by article 25 ICCPR may be impacted if a state of emergency is declared in an election year. Moreover, the right to education under article 13 ICESCR may be limited when schools are closed as part of social distancing measures, which has happened in the U.S. and beyond.

The right to liberty under article 9 ICCPR can be limited on lawful grounds irrespective of a national state of emergency. The right-specific limitation clause of the freedom of movement within the territory of a State and the right to leave the country under article 12(3) ICCPR is slightly different. Restrictions on freedom of movement are limited to those necessary to protect national security, public order, public health or morals, or the rights and freedoms of others, as is the case at the time of writing with regard to the COVID-19 pandemic. Lacking a mathematical formula to weigh social values, governments need to strike a balance between strict social distancing and the right to health[10]. Moreover, executive ultra vires use of powers is dangerous because accountability for exceeding authority is often delayed in emergency times. 

Mandatory curfews can be considered necessary and proportionate if they are rolled out progressively:[11] the typical evolution is from calls for voluntary isolation, to quarantine, and eventually lockdowns. Ensuring that procedural safeguards are available to meaningfully contest restrictions, proves to be more complex. For example, it is possible that people who tested negative for COVID-19 and remain subject to movement restrictions will want to judicially challenge the restrictive measures, but be unable to do so during the emergency. Similarly, international travel bans test the scope of the right to leave any country. Although extraordinary travel restrictions are not prohibited, the ICCPR protects every person's right to enter his own country. 

Human rights bodies have been reluctant to give comprehensive guidance on reasonable moving restrictions during the current pandemic. While measures such as permanent house arrest amount to a deprivation of liberty, the ICCPR does not imply that quarantine, i.e., the restriction of individual freedom, should be a last resort option,[12] or that detention on grounds of preventing the spread of an infectious disease is proportionate only if imposed on individuals who pose a public danger.[13] Among the states which ratified the ICCPR, the most drastic measures were adopted by Italy, France, and Spain, but none of them lodged a formal derogation from the ICCPR.[14] Outside the ICCPR framework, acute measures can be seen in the People's Republic of China, a signatory state that did not ratify the ICCPR. 

In realizing its main objective to attain "the highest possible level of health" for all people, the World Health Organization (WHO), the international body dedicated to the protection of health, is empowered to make non-binding recommendations. In the past, the WHO has endorsed state "interference with freedom of movement when instituting quarantine or isolation for a communicable disease" as long as such interference respected the principle of necessity and "could be considered legitimate"[15]. In the current context, the WHO initially recommended "usual precautions" and advised against travel restrictions. Nevertheless, even before the WHO officially determined the latest Public Health Emergency of International Concern (PHEIC), or the pandemic, the novel coronavirus prompted numerous governments to impose travel restrictions against China and other affected countries.

The right to health is guaranteed under article 12 ICESCR and includes governmental control over the spread of communicable diseases, including through restrictive measures for the protection of public safety.[16] This right comprises access to health facilities, goods, and services, and "the prevention, treatment and control of epidemic, endemic, occupational and other diseases" (article 12(2)(c)). Therefore, outside of the emergency context, states must take action to, for example: develop prevention and education programs; ensure the availability of adequate medical technologies; and improve epidemiological surveillance and strategies for infectious disease control. The right to health additionally includes the right to treatment, which itself includes the creation of a system of urgent medical care in cases of accidents, epidemics, and similar health hazards. The interdependency between human rights highlights that the determinants of the right to health, such as environmental safety, food, housing, and clean water, are also relevant to the safeguarding of the right to health.[17]

The ICCPR does not specifically safeguard the right to health, though the right to liberty and security guaranteed under article 9 requires that any measures compelling hospitalization be proportionate and necessary.[18] Additionally, access to health-related education is an inherent part of the right to access to information safeguarded by the ICCPR and the ICESCR[19] and a crucial part of the right to health under the ICESCR.[20] Finally, the right to health also requires that effective procedures be put in place to identify and assist the most vulnerable, who need additional care before confining them to home, such as patients under dialysis, persons with disabilities, or underprivileged children.[21]

For the full realization of human rights, including the previously discussed right to health, two principles are especially relevant. The principles of equality and non-discrimination are enshrined in both the ICCPR and the ICESCR. Article 4(1) ICCPR allows, during states of emergency, adoption of measures which distinguish between persons, if they are necessary and proportionate, and "[do] not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin." By contrast, article 2 ICESCR does not offer the same flexibility and obliges states to guarantee that the rights it contains "will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." This may be relevant, for example, with regard to doctors who may have to discriminate on the basis of age in deciding who should be prioritized in terms of access to limited diagnostic testing or overcrowded hospitals. 

Moreover, states shall not institute discriminatory practices on the basis of nationality, as was the case in several signatory countries to the ICCPR after "patient 0" in the current pandemic was identified in Wuhan, China. 

In addition to the equality protections, the exercise of the freedom of expression and freedom of thought have also been affected during the current pandemic. Although the freedom of opinion and expression under article 19 ICCPR is not listed among the non-derogable rights enshrined in that instrument, the HRC has suggested that a lawful derogation from that right might not be possible because the condition of necessity cannot be justified during a state of emergency.[22] The test of necessity requires a verification that the threat cannot be achieved in another manner that does not restrict freedom of expression. However, the right-specific limitation clause under article 19(3)(b) can be used for the protection of public health or morals, as long as the measures imposed are necessary, proportionate, "not . . . overbroad," and "don't put in jeopardy the right itself." As opposed to the freedom of opinion, the right to freedom of thought, conscience, and religion under article 18 ICCPR is non-derogable. However, the freedom to manifest one's religion under article 18(3)) can be limited even without a formal a declaration of a state of emergency. This is evidenced by the bans on mass gatherings, including in churches, mosques, and temples that many states imposed before they declared a state of emergency. 

Conclusion

While the drafters of international instruments could not anticipate the complexity of future emergencies, flexible mechanisms enable states to recalibrate human rights compliance in the direst of circumstances. Necessity provides to those who hold authority a large margin of appreciation of public interest and of their positive obligation to protect the population. 

As a state of emergency can sometimes be used as a pretext for abuses, such as arbitrary detention, censorship, or other authoritarian measures, the desire for more determinate rules to constrain state discretion is legitimate. There are increasing concerns that some governments might capitalize on emergency powers to undermine democratic principles, eliminate dissent, and violate the principles on necessity and proportionality. Most problematic are expansions of executive powers and repressive measures, which might continue after the national emergency in the respective countries.  Treaty ratification can serve as a signal that states intend to comply with their human right commitments, but notifications of derogations demonstrate high transparency in terms of respect for human rights and the rule of law. Striking a balance between protecting health, minimizing economic and social disruption is not an easy task for policy makers. However, in order to ensure respect for the right to health during the ongoing crisis, states need to cautiously balance individual rights with collective responsibilities.  

About the Author: Adina is currently the Detlev F. Vagts International Law Fellow at the American Society of International Law. Prior to that, she spent four years in the legal offices of two NATO headquarters, where she advised on the lawful conduct of armed forces during conflict and peacetime military operations. Her professional experience includes assignments in the German Parliament, United Nations, embassies and in academia. She has an LL.M. in international law and a Ph.D. in business and technology law.