Some Reflections on Countering the Covid-19 Pandemic: Moving from Emergency to the “New Normal” without Trampling on Human Rights?

Gentian Zyberi

Norwegian Centre for Human Rights, University of Oslo, Norway

2020.12.12

Introduction

1. This blogpost provides some brief reflections on challenges concerning human rights protection during the pandemic caused by Covid-19 (World Health Organization timeline, www.who.int/emergencies/diseases/novel-coronavirus-2019/interactive-timeline). First, it provides a brief overview of State responses and their use of emergency powers and derogations from international and regional human rights treaties. Then, the focus turns to the Covid-19 response by the UN Secretary-General and by the UN human rights mechanisms. The blogpost ends with some concluding remarks.

Emergency situations and derogations from human rights treaties

2. The Covid-19 pandemic caught many States at inadequate levels of preparedness in terms of healthcare equipment and emergency response procedures, as well as from a normative and procedural legal framework perspective. In order to prevent the spread of Covid-19, States have adopted quite strict emergency measures, especially since 11 March 2020 when the World Health Organization (WHO) declared the Covid-19 outbreak a pandemic. State practice has varied, with some States adopting restrictive measures without formally derogating from their international legal obligations under the main human rights treaties, and others informing the depositaries of these treaties of wide-ranging derogations. When it comes to the use of emergency powers, State responses have differed, with some declaring a state of national emergency, some declaring a state of natural disaster, and others just passing specific laws or decrees without declaring an emergency at all. The reason for these different responses, besides relevant political calculations, is that national constitutions or basic laws use broad language concerning situations, which make it necessary to resort to emergency powers. These differences and ad hoc, improvised State responses, have highlighted the need for a specific domestic legal framework adequately tailored for a pandemic situation, which safeguards human rights and the rule of law, even if pandemics are a rare occurrence.

3. Generally, there are three types of emergency situations, which include, first, threats to territorial integrity (war, invasion, secession, etc.), but more recently also the fight against terrorism and organized crime; second, natural disasters, as earthquakes, floods, or pandemics; and, third, economic and financial emergency, as financial and currency crises, strikes, or interruptions in fundamental service provision (Giacomo Delledonne, History and Concepts of Emergency, Encyclopedia of Comparative Constitutional Law [MPECCoL], para. 2). The current Covid-19 pandemic would fall under the second type of emergency situations. In some countries, the restrictions related to the pandemic come in addition to an existing state of emergency due to an armed conflict or other dire political circumstances. Constitutions that have been adopted or amended more recently might provide a more detailed list of emergency situations. For example, Article 37 of the South African Constitution provides that a state of emergency may only be declared when “(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to restore peace.” (Constitution of the Republic of South Africa, Art. 37(1), www.gov.za/documents/constitution/chapter-2-bill-rights#37). This constitutional provision also adds several safeguards and provides a list of non-derogable rights. Similar safeguards, and institutional checks and balances are included in the constitutions of many countries, as most constitutions have emergency provisions (see www.constituteproject.org, and www.loc.gov/law/help/emergency-legislative-activities/index.php). A pandemic situation would generally favor the executive branch of the State, as the central government commonly has more levers of power than the other main branches, namely the legislative and the judiciary. While achieving a perfect system of checks and balances is difficult even under normal circumstances, this should be considered when devising a specific domestic legal framework tailored for a pandemic situation, which safeguards human rights and the rule of law.

4. Many States have imposed time limits on the validity of special emergency powers or provided for a period of review as to whether they should be extended, in line with human rights law (António Guterres, COVID-19 and Human Rights: We are all in this together, April 2020, p. 17). In Norway, the adoption of an Emergency Law aroused heated public debate, not as a resistance to a stronger emergency legislation as a legal tool to introduce policies to handle the pandemic, but rather concerning the way the bill was drafted, that is, without applying the usual procedure of public hearing and consultation in law-making. Although the Government had drafted the law in consultation with the Parliament, it did so “behind closed doors”, without inviting the public; and the initial proposal went quite far in limiting rights with a long duration and vague checks and balances. Yet, soon the responsible minister and the Government accepted the public outcry (mainly from some individual lawyers, the bar association and the judge’s association) and after few days of public debate the draft was amended (www.loc.gov/law/help/emergency-legislative-activities/norway.php). The new Bill reduced the Governments power to make new regulations, limited the law to one month’s duration (while the original draft proposed six months) and enhanced the judicial review mechanism of the law. While the initial draft of the law was criticized for being at odds with democratic and rule of law principles, the response of the public—the outcry and debate—and the Government’s acceptance of the opposition to the draft demonstrated that democratic principles of law-making can prevail also in a time of crisis.

           5.What does international human rights law have to say about emergency situations and emergency laws (Evan J. Criddle (ed), Human Rights in Emergencies, Cambridge University Press, 2016; ILA Committee on Human Rights in Times of Emergency, interim report 2020, www.ila-hq.org/index.php/committees)? The UN Secretary-General, António Guterres, has emphasized the importance that all actors, especially governments, ensure that international human rights, humanitarian and refugee law and standards are at the centre of all Covid-19 responses (António Guterres, COVID-19 and Human Rights: We are all in this together, April 2020, p. 21). Human rights are generally protected at three levels, that is, the national level, the regional level where such a system is present and functional (currently, Europe, Africa, and the Americas), and the international level. These layers of protection entail monitoring of respect for human rights from regional or international human rights mechanisms. There are several treaties which are essential to human rights protection, namely the nine core international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR, 1966), and three regional human rights treaties, namely the European Convention on Human Rights (ECHR, 1950), the American Convention on Human Rights (ACHR, 1969), and the African Charter on Human and Peoples Rights (ACHPR, 1981). The ICCPR allows derogations under Article 4 (see https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND), the ECHR under Article 15 (see text of derogations at:  https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations; see factsheet of the European Court on Human Rights on “Derogation in time of emergency”,  www.echr.coe.int/Documents/FS_Derogation_ENG.pdf; and Venice Commission Compilation on States of Emergency, 16 April 2020,  www.venice.coe.int/webforms/documents/?pdf=CDL-PI(2020)003-e), and the ACHR under Article 27 (see advisory opinion OC-8/87 on “Habeas Corpus in Emergency Situations”; advisory opinion OC-9/87 on “Judicial Guarantees in States of Emergency”; and Mariela Morales Antoniazzi and Silvia Steininger, “How to Protect Human Rights in Times of Corona? Lessons from the Inter-American Human Rights System”, EJIL:Talk, 1 May 2020, www.ejiltalk.org/how-to-protect-human-rights-in-times-of-corona-lessons-from-the-inter-american-human-rights-system). The ACHPR (Frans Viljoen, International Human Rights Law in Africa, Oxford University Press, 2012) does not have a specific clause on derogations. In this regard, the African Commission has clarified that:

In contrast to other international human rights instruments, the African Charter does not contain a derogation clause. Therefore, limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances. The only legitimate reasons for limitations of the rights and freedoms of the African Charter are found in Article 27.2, that is, that the rights of the Charter “shall be exercised with due regard to the rights of others, collective security, morality and common interest”. (African Commission on Human and Peoples’ Rights, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, Comm Nos. 140/94, 141/94, 145/95 (1999), para. 41)

        6. The position of the African Commission seems to be that limitations need to be grounded on a balance between different interests. Even then, the justification of limitations must be strictly proportionate with and absolutely necessary for the advantages, which follow. Most important, a limitation may not erode a right such that the right itself becomes illusory (Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, para. 42). The African regional human rights system seems to be slightly different from the European or the Inter-American system, but given the relevant function of derogations, Article 27(2) might provide the necessary escape valve, provided the necessary legal safeguards are upheld.

        7. By authorizing States to decide when and how to derogate from their international obligations, international human rights law entrusts States with the primary responsibility to determine what measures are necessary to protect and fulfill human rights for their people during national crises (Evan J. Criddle, “Protecting Human Rights During Emergencies: Delegation, Derogation, and Deference”, in Evan J. Criddle (ed), Human Rights in Emergencies (Cambridge University Press, 2016), p. 54). In that sense, derogation clauses are often said to function as an escape valve, allowing State authorities to limit the scope of their international legal obligations, during a difficult domestic situation.

The Covid-19 response by the United Nations Secretary-General

8. Over 2020, there have been many statements by the different international and regional human rights mechanisms on measures related to countering Covid-19 (see www.un.org/en/coronavirus). The UN Secretary-General, Antonio Guterres, has been among those leading the international efforts for a joint response to the pandemic on different fronts. Among others, there are three specific aspects which need to be mentioned, first, his  23 March urgent appeal for a global ceasefire in all corners of the world to focus on defeating Covid-19 (see https://www.un.org/en/globalceasefire); second, his detailed guidance on Covid-19 and human rights, and; third, his focus on a global recovery post Covid-19, with the “build back better” initiative (www.un.org/en/coronavirus/un-secretary-general).

9. He has drawn attention towards how the practice concerning countering the pandemic in some States reveals:

·       “States of emergency” declared granting extensive executive powers with minimal oversight, no time limitations, but derogating from rights.

·       Emergency legislation purportedly to respond specifically to Covid-19, but vulnerable to abuse, including powers to legislate by decree, criminal penalties for those “spreading false information” with a potential chilling effect on freedom of expression.

·       Cases of excessive use of force to enforce measures to restrict movement, including arrests and detention.

·       Using of surveillance technology to track and gather information on people in ways that are open to abuse (António Guterres, COVID-19 and Human Rights: We are all in this together, April 2020, p. 17).

10. The UN Secretary-General, António Guterres, has stated that more than ever, governments must be transparent, responsive and accountable and that civic space and press freedom are critical (Statement by the UN Secretary-General, “We are all in this Together: Human Rights and COVID-19 Response and Recovery”, 23 April 2020, www.un.org/en/un-coronavirus-communications-team/we-are-all-together-human-rights-and-Covid-19-response-and). The recommendations contained in the document launched by the UN Secretary-General Guterres, “COVID-19 and Human Rights: We are all in this together”, and related documents provide a useful roadmap for governments in tailoring their responses, including concerning the use of surveillance technology to prevent the spread of Covid-19. The UN response is based on three components, namely a large-scale, coordinated and comprehensive health response, guided by WHO;  second, a wide-ranging effort to safeguard lives and livelihoods by addressing the devastating near-term socio-economic, humanitarian and human rights aspects of the crisis with attention to those hit hardest; and third, a transformative recovery process that leads to a better post-COVID-19 world by addressing underlying fragilities and identifying opportunities for transformative change towards more just, equal and resilient societies and economies (United Nations Comprehensive Response to COVID-19: Saving Lives, Protecting Societies, Recovering Better, September 2020, p. 6).

The Covid-19 response by the UN human rights mechanisms

11. The UN human rights mechanisms have issued many documents providing guidance on how to cope with Covid-19 pandemic (see https://www.ohchr.org/EN/NewsEvents/Pages/COVID19Guidance.aspx; Lisa Reinsberg, “Mapping the Proliferation of Human Rights Bodies’ Guidance on COVID-19 Mitigation”, Just Security, 22 May 2020, <www.justsecurity.org/70170/mapping-the-proliferation-of-human-rights-bodies-guidance-on-Covid-19-mitigation>). There are many documents prepared over 2020 by the Special Procedures (see www.ohchr.org/EN/HRBodies/SP/Pages/COVID-19-and-Special-Procedures.aspx) and the UN human rights treaty bodies (see www.ohchr.org/EN/HRBodies/Pages/COVID-19-and-TreatyBodies.aspx). These recommendations cover many rights and categories of persons.

          12. In its April 2020 statement on derogations from the Covenant in connection with the Covid-19 pandemic, the UN Human Rights Committee (HRCttee or Committee), called upon all State parties that have taken emergency measures in connection with the Covid-19 pandemic that derogate from their obligations under the Covenant to comply without delay with their duty to notify the Secretary-General thereof immediately, if they have not already done so (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, para. 1). The Committee has reminded States parties of the requirements and conditions laid down in article 4 of the Covenant and explained in the Committee’s general comments, particularly in general comment No. 29 (2001) on states of emergency, in which it provided guidance on the following aspects of derogations: the official proclamation of a state of emergency; formal notification to the Secretary-General; the strict necessity and proportionality of any derogating measure taken; the conformity of measures taken with other international obligations; non-discrimination; and the prohibition on derogating from certain non-derogable rights (HRCttee, Statement on derogations, para. 2). In its practice, the Committee has laid down several guidelines concerning the measures that State can adopt to counter the pandemic, while respecting human rights.

       13. While both the Special Procedures and the UN human rights treaty bodies have tried to continue their work during the pandemic in order to avoid a protection gap, several challenges stand in their way. The three main challenges are related first to restrictions on travelling to Geneva to have the working meetings and sessions in person and restricted access to countries that have serious human rights problems; second, changing to online work almost immediately, has led to technological and other problems, including trying to adjust to the different time-zones from which human rights experts operate; and, third and most importantly, the endemic problems with funding for the work done by the UN human rights experts and the Office of the High Commissioner for Human Rights (OHCHR). While human rights experts have tried to adapt quickly to different online platforms and unusual working hours, the pandemic restrictions and inadequate funding present significant challenges to the ability of the UN human rights mechanisms to effectively discharge their mandates.

Concluding remarks

14. To summarize, the efforts to counter the pandemic have exposed the existing vulnerabilities in the domestic legal framework and the difficulties in ensuring the necessary constitutional checks and balances, as well as the limitations upon the regional and international mechanisms of human rights monitoring and enforcement. Nevertheless, as the UN Human Rights Committee has emphasized, ensuring the strict necessity and proportionality of any derogating measure taken; the conformity of measures taken with other international obligations; non-discrimination; and the prohibition on derogating from certain non-derogable rights, would make the burden of countering the pandemic more bearable for the population, including vulnerable groups. The use of force by law enforcement agencies should be guided by the principles of legality, necessity, proportion, precaution and non-discrimination (ICRC, “The use of weapons and equipment in law enforcement operations”, www.icrc.org/en/document/use-weapons-and-equipment-law-enforcement-operations). Complying with the constitutional guarantees and international human rights standards and following the relevant recommendations from the UN human rights mechanisms and other regional organizations should ensure that the various measures taken in countering the pandemic avoid serious human rights violations.

***

Notes about the Author:

Gentian Zyberi is the Head of Department of the Norwegian Center for Human Rights (University of Oslo) since July 2018. Zyberi is a professor of international law and human rights. He is a member of the UN Human Rights Committee (CCPR, 2019-2022) and member of the Permanent Court of Arbitration, The Hague, the Netherlands. In the last 17 years, Gentian Zyberi has done research, published and taught in the areas of international human rights, international humanitarian law, international criminal law and public international law at different universities in the Netherlands, Albania, China, the US, and Norway. For further details see: https://www.jus.uio.no/smr/english/people/aca/gentianz/index.html.