Limiting Human Rights during Pandemics

Sovereign governments have the prerogative to declare states of emergency when sudden, unanticipated events threaten the lives of the nation and its people. In so doing, government decrees sometimes must contradict other international human rights commitments, balancing the individual versus the collective. Established derogation procedures are supposed to ensure such restrictions are proportionate, non-discriminatory, and last only as long as necessary (for an overview, see Emmons 2020). COVID-19 has proven that public health emergencies are not equally recognized in either international law or national constitutions; some international treaties permit “limiting” rights in the name of public health rather than requiring derogation, and nationally some governments authorize emergency measures in practice without ever doing so in name. These parallel processes and conceptual gaps create space for governments to restrict individuals’ rights with little to no international accountability during pandemics.

In this piece, I recommend a new international instrument on pandemic response be explicit about reporting requirements when governments suspend rights during such emergencies. These suggestions incorporate advice from the American Association for the International Commission of Jurists’ Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985), the International Law Association’s Queensland Guidelines for Bodies Monitoring Respect for Human Rights during States of Emergency (1990), case law of the European Court of Human Rights (ECtHR), and learned experience from the COVID-19 pandemic.

I

First, public health limitations clauses should be subject to the same procedural safeguards as derogation clauses. The rights to movement, assembly, association, residence, information, and manifesting one’s religion are among the limitable rights in most international human rights conventions. However, such limitations are not subject to clear reporting requirements. The Siracusa Principles place the “burden of justifying a limitation” on the state (para. 12), but do not specify by and to whom or within what expected parameters this should be done, posing a risk that the restrictions could become entrenched or permanent. To rectify this omission, governments should be required to notify international treaty organizations and/or other relevant bodies when any actions taken to combat pandemics impinge upon other recognized individual rights, even when proportionate, necessary, and taken within the scope of a limitations clause.

II

Second, I recommend establishing specific reporting timelines when governments limit or derogate rights during pandemic responses. Changes can be made at three points in the process.

A refined procedure should, first, clarify expectations for when the initial notice must be filed. International human rights treaties that permit derogation all require “immediate” notification (European Convention on Human Rights, Article 15(3); American Convention on Human Rights, Article 27(3); International Covenant on Civil and Political Rights, Article 4(3)). Communications technology being as advanced as it is today, governments should be able to notify the requisite international bodies in a timely fashion. In practice, however, there is some latitude. The ECtHR has acknowledged that notification can be mired by the nature of the emergency, either because it develops “gradually” or because of unavoidable administrative disruptions. The Queensland Guidelines recommend initial notice be made within one week (A.4). ECtHR case law provides a loose set of parameters. In Greece vs. UK (1958), the then-European Commission for Human Rights opined that a three-month delay in notification “was longer than can fairly be attributed to inevitable causes and that it was therefore longer than is justifiable.” Months-long delays were also criticized in the “Greek case” (1968). In the interim, the ECtHR found twelve days was a sufficient timeframe for notification in Lawless v. Ireland (1961). It is, thus, reasonable for a new legal instrument on pandemics to ask governments to report their derogation/limitation immediately, and no later than two weeks after declaration of an emergency.

Such an instrument should also request an expected date of expiration for the limitations or derogations and mandate updates if the measures are extended. At present, only the ACHR requires this detail in its initial notification (Article 27(3)). Whether and how quickly emergency decrees expire is a national constitutional issue, so where expiration dates are not mandated, a new international instrument could reasonably require periodic updates justifying continued rights restrictions after a predetermined period of time. American states are already in the habit of such notifications: as of 30 June 2021, 11 of the 15 ACHR parties that have formally derogated from the Convention in response to COVID-19 also followed up with information about extensions and changes to the initial order; several issued multiple communiques. The new instrument could justifiably require member states to update human rights treaty organizations on the status of the emergency decrees:

• (a) at the end of the original expiration,
• (b) at the time of extension or expansion, or
• (c) within six months of the decree being active, whichever occurs first.

Finally with respect to timing, the new instrument should set a definitive time frame for formally rescinding the state of exception when the emergency has passed or come under control (Queensland A.4). The Siracusa Principles recommend the government notify the relevant actors the same day that the emergency is terminated (para. 49), as do several of the treaties themselves. This immediacy can be reasonably expected.

III

My third and last recommendation is to increase communication between relevant international agencies and expand the roles for international non-governmental actors. First, intergovernmental bodies should increase information sharing about rights restrictions in common member states. Between January 2020 and the end of June 2021, only 64% of countries that reported derogations as part of their COVID-19 response to regional bodies such as the Council of Europe or Organization of American States also reported those derogations to the United Nations. Automatic recognition of derogation across institutions would close reporting gaps, and facilitate more effective oversight. Additionally, expanding roles for non-governmental actors could improve international assessments of the legitimacy, proportionality, and necessity of rights limitations (Queensland A.3). Non-governmental human rights monitoring groups can provide accurate accounts of events on the ground even when a government does not report limitations or derogations. Experts in public health and epidemiology in organizations such as the WHO can also assess the scientific necessity and proportionality of a government’s pandemic response measures. Combined, these experts can offer policy analyses grounded in science to inform the rest of the international community. A pandemic instrument should thus recognize the changed landscape of the international community and enhance roles for and communication between regional and global governmental bodies and especially non-governmental actors.