On 18 January 2022, our teaching assistant Mariana Ferolla, gave a lecture at the Federal University of Minas Gerais, Brazil, concerning how States have made use of emergency powers during the COVID-19 pandemic and how the legality of these measures can be assessed under the framework of human rights law.
Dubbed “the gravest test” since the founding of the United Nations (UN) by Secretary-General António Guterres, the pandemic has put States on alert to the need for quick and effective responses to contain the spread of the virus. According to the COVID-19 Civic Freedom Tracker, 110 States have resorted to emergency measures within their domestic legal orders to deal with the pandemic. Some of the most commonly adopted measures include travel restrictions, lockdowns, and limiting public gatherings. These measures directly impact human rights protected under international treaties, such as freedom of movement, freedom of association, and the right to private and family life.
Under international law, there are essentially two ways States can seek to justify curtailing human rights protection. The first is by restricting the enjoyment of human rights in a way that is necessary and proportionate to achieve a legitimate goal. Restrictions of this kind can be adopted at any time, regardless of any exceptional circumstances, so long as they are prescribed by law.
The second way refers to States’ power to derogate from human rights obligations in response to a public emergency,[i] a prerogative under the International Covenant on Civil and Political Rights (ICCPR, art. 4), the European Convention on Human Rights (ECHR, art. 15), and the American Convention on Human Rights (ACHR, art. 27). Derogations allow States to suspend some of these obligations, diminishing the enjoyment of rights to a greater extent than what would be usually permitted when mere restrictions are adopted. The idea behind derogations is not to give States freedom to disregard human rights but rather to afford States enough flexibility to respond to an emergency without breaching their international obligations.
Lawful derogations must meet a series of cumulative conditions, including the need for this measure to be strictly necessary to the exigencies of the situation and proportionate. Moreover, States must notify the competent body indicated in the treaty about their proposed derogation, detailing the suspended treaty provisions, the reasons for the suspension, and the measure’s duration.
At first sight, it would seem reasonable to expect that States’ responses to the COVID-19 pandemic would rely on derogations, as the pandemic seems to fit well the characterization of a public emergency. High hospitalization rates due to new coronavirus have led to severe difficulties and even collapses of healthcare systems in various States, harming those infected with COVID-19 and others in need of medical care. The economic impact of the pandemic led to the rise of unemployment rates in different countries, putting other rights at risk, such as the right to housing and adequate food. State institutions necessary for guaranteeing human rights saw their normal functioning impaired by resource constraints and the need to adapt to social distancing.
Despite this, few States have invoked derogations to justify their actions. As of December 2021, only 21 out of 173 States parties to the ICCPR had sent derogation notices in connection with the pandemic—substantially less than the 110 States mentioned above that resorted to emergency frameworks under their domestic legal orders.
While it is not clear under international law whether failure to notify prevents States from invoking derogations (see the discussion here and here), it is also disputable whether measures commonly adopted in the face of COVID-19 satisfy the strict necessity test.
For instance, freedom of movement and assembly were the provisions most frequently derogated from by States that gave notice of their derogations under the ICCPR, such as Chile, Estonia, and San Marino. Nevertheless, in a statement released on 24 April 2020, the UN Human Rights Committee (HRC), the body responsible for monitoring States’ compliance with the ICCPR, indicated that resorting to restrictions of these rights, instead of derogations, might be enough to fulfil public health and other objectives related to the containment of the pandemic.
Indeed, completely suspending certain rights might bring about disproportionate suffering to those involved, especially if mechanisms are not put in place for an individualized assessment of the impacts of the derogation. For example, derogating from freedom of movement entails the suspension of the right to enter one’s own country, which might result in people being left stranded at borders, subject to precarious living conditions while waiting to go back home (as discussed here).
Moreover, to ensure that they are strictly necessary, derogations should be constantly reviewed and modified as the epidemiologic situation and scientific evidence evolve. In a scenario as volatile as the COVID-19 pandemic, it could be difficult to justify maintaining the same derogation measures for several months.
On the other hand, restrictions could be adopted for a longer time frame, even if a public emergency is not in place. Furthermore, the necessity test applicable to restrictions is not as strict as the one applicable to derogations, thus giving States some more leeway to justify their actions in light of changing scientific evidence. While this does not imply that any measure in response to COVID-19 could be successfully justified as a lawful human rights restriction, this latter framework appears best suited to how States have reacted to the pandemic.
As such, despite the gravity of the COVID-19 pandemic and the extent of its impacts, there are relevant obstacles for States to successfully respond to the pandemic under the human rights law’s emergency framework. Not only have States themselves usually refrained from classifying their actions as derogations, but the rapidly evolving circumstances of the pandemic make it difficult for measures to be tailored as strictly required by the exigencies of the situation, as is necessary for derogations.
[i] For guidance on how to qualify for such a public emergency, see the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights.