Human Rights & Global Pandemic: The Politics of Response and the Role of the UNHRC

Governments worldwide usually defend that there exists a right to derogate from human rights obligations to protect the public interest during public health crises. The COVID-19 has bestowed upon States an unprecedented opportunity to impose state emergency measures to combat pandemics in the name of protecting public health. Such emergency measures have affected several human rights and fundamental freedoms enunciated in the international human rights law (IHRL) framework. Such rights specifically include the right to healthcare accessibility, the right to non-discrimination, the right to privacy, the right to free speech, the freedom of movement, and the freedom of peaceful assembly. The UN Human Rights Committee (UNHRC) categorically stated in its Statement of Derogation under the ICCPR (UN Covenant on Civil and Political Rights, 1966)during COVID-19 on April 30, 2020, that States are not allowed to derogate from their international human rights obligations and commitments while combating global pandemic.

The statement resulted froma majority of States’ official notices to the UNHRC regarding the emergency proclamation by the restrictive rights measures (RRMs) that undermined their human rights obligations under ICCPR. However, all such RRMs must conform to IHRL instruments and comply with the United Nations Organization’s purposes and principles. Moreover, the statement records the contention of UNHRC that majority of the nation-states have invoked similar RRMs without submitting required formal notification to the UN body about derogation of individual human rights. The UNHRC signaled States against undermining the IHRL obligations by resorting to excessive emergency actions contrary to well-established procedures and non-compliance with appropriate requirements.

Human Rights Thresholds in COVID-19 Pandemic

The IHRL Framework envisioned several non-negotiable human rights and substantive human freedoms consisting of the right to life, the rights against incarceration for infringements of contractual obligations, the right to a fair trial guarantee, and the right to be recognized as a person in law along with other ancillaries and incidentals of rights. The freedom of thought, free conscience and independent predilections for religion, and the freedom from torture and slavery as recognized in IHRL framework instruments. Consequently, Article 4(1) of the ICCPR envisages that “In time of public emergency which intimidates the life of the nation-state and the existence of which is officially declared, the States Parties to the present Covenant may resort to measures derogating from their human rights obligations under the present ICCPR to the extent strictly required by the exigencies of the circumstances, provided that such measures are not incompatible with their other human rights obligations under international law and do not entail discrimination solely on the ground of colour, race, religion, sex, language or social origin.” However, it does not mean that rest of the rights might be subjected to the derogation of human right in the situation of public health emergency contrary to the principle of legal proportionality of restrictive measures while fighting COVID-19 pandemic consistent with the General Comment No. 29/2001 of the UNHRC. However, there is set of laws that consist of both procedural and substantive legal requirements. States have to satisfy these requirements while combating COVID-19 without eschewing their human rights obligations under IHRL instruments. Meanwhile,UN Human Rights High Commissioner Michelle Bachelet has accentuated that “balancing the economic imperatives with the healthcare and human rights imperatives during the COVID-19 epidemic is going to be one of the most daunting, delicate, and defining experiences for all stakeholders and all governments. The place States and governance institutions in history will be measured by how well or how badly they operate over the coming months.”COVID-19 pandemic continues to derail the lives of billions across the world, including countless migrant workers and students currently confined to their homes in order to safeguard their lives. Over 67,530,912 confirmed cases of COVID-19 were registered by the World Health Organization (WHO) globally on December 10, 2020, and the world body recorded more than 1,545,140 deaths.

Pre-derogation Measures

States have to notify the human rights provisions from which they have decided to derogate to other State parties through the UN Secretary-General with the grounds of derogation. It is an obligatory norm and legal understanding applied in all emergency measures, whether the measures are temporary or limited in their application. In the case of comprehensive measures, if States decide to extend the duration or geographical coverage, there is a need for additional notifications to be issued. Similarly, there is a need of immediate notification in case of the termination of derogation. But from a practical angle, the emergency measures can only restrict other human rights to the extent severely required by the exigencies of the situation in compliance with General Comment No. 29 under Article 4 of the ICCPR. Such a requirement addresses the duration, geographical cover, and substantial scope of measures imposed during the State of emergency. However, States must ensure that enforced steps are necessary, legitimate, non-discriminatory, and proportionate to the emergency situation. Similarly, these requirements like non-discrimination, legality, necessity, and proportionality were integrated with the Guidance on Emergency Measures and COVID-19 released by the UN High Commissioner for Human Rights on April 27, 2020 prior to the statement of derogation of the UNHRC.

Derogation under Regional Human Rights Frameworks

Regional human rights protection frameworks constitute critical complementary pathways of the IHRL Framework for the protection and promotion of human rights. There are similar derogation provisions in the regional human rights frameworks, for example; the European Convention on Human Rights (ECHR)has Article 15 that has been grounded on the draft Article 4 of the Draft UN Covenant on Civil and Political Rights that later came as Article 4 of the ICCPR and Article 27 (1) of the American Convention on Human Rights has made derogation a state prerogative during global pandemics such as the current one. But, the notification of derogation should not be construed as a concession in the absence of the capability of the State to ensure the enjoyment of human rights under the ECHR and ACHR, including other regional human rights mechanisms. The State parties have to lodge that their measures might involve a derogation from the conventions. However, in March and April 2020, several States have notified the Secretary-General of the Council of Europe regarding their derogation measures from their human rights obligations under the ECHR. Nevertheless, the States must resort to emergency powers within the IHRL framework such as ICCPR while addressing the exceptional situations. Such emergency powers must be time-bound and must be invoked temporarily with a vision of accomplishing normalcy at the earliest.

Conclusion

It is aptly evident that there is no clarity about the number of governments adhering to the requirements of notifications and human rights obligations under ICCPR while dealing with the COVID-19pandemic and enforcing emergency measures. Therefore, it seems that COVID-19 might revisit to unleash the second wave of pandemic and derail human life. But it is obvious that the States have to be on their toes to fulfill their IHRL obligations. During the pandemic, Governments must avoid instances of human rights circumventions and abuses related to the State of emergency committed by state and non-state actors. Such accusations of violations and abuses must immediately be probed with a view to stopping the offense or abuse while bringing culprits to justice.

Dr. Nafees Ahmad
Dr. Nafees Ahmad
Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in