By Dina Melhem, WFD’s Senior Human Rights Adviser and Regional Director for the Middle East and North Africa
Around the world, certain limitations to our freedoms in response to the COVID-19 pandemic have been accepted as necessary to uphold our collective and individual right to public health, not to mention our fundamental right to life.
International human rights law allows states temporarily to suspend or restrict certain ‘derogable’ (i.e., those that may be limited in some circumstances) human rights when it is necessary to protect national security, public order, and public health. Additional options are available to governments when faced with exceptional challenges. However, states may only act in this way if an emergency has been officially declared and if the measures they impose are neither discriminatory nor inconsistent with other obligations under international law.
States of emergencies represent a real challenge to the protection of human rights – even to those rights they are supposed to uphold. As a result of this COVID-19 pandemic, key human rights ranging from the right to privacy and family life to the rights to a fair trial or free elections are at risk due to the enactment of emergency laws that are sometimes inconsistent with international human rights law and standards. In Hungary, a new law imposes a five-year prison sentence on anyone who interferes with the operations of the isolation order, rising to eight years if anyone dies as a result. Peru has removed a legal provision that strictly regulates the use of force by police and has established a presumption in favour of the police with respect to what constitutes a ‘reasonable use’ of lethal force.
Measures taken under COVID-19 states of emergencies also severely challenge principles of equality and non-discrimination, especially in relation to equal access to health care services and the disproportionate impact of this crisis on vulnerable people, such as persons with disabilities, people with mental illnesses, or the elderly. Concerns have been highlighted about the impact of UK emergency coronavirus legislation on the level of protections against detention for people with mental health conditions and disabilities and social care for older persons. We are also seeing growing discrimination against people from certain ethnicities and a rise in women experiencing abuse and domestic violence with limited access to protection and shelters.
The world cannot act to serve the common good and protect public health with coercive means as it did in the fight against infectious disease in the nineteenth and early twentieth centuries. We are, thankfully, in an era of more established international and regional human rights systems. A balance between ensuring the safety of people and safeguarding their rights ought to be possible by keeping human rights standards at the forefront of the public health agenda and any national, regional, or global strategy to fight the pandemic.
To do this, we must ensure that countries bring COVID-19-triggered states of emergency in line with their international human rights commitments and that these temporarily imposed restrictions on rights do not become permanent. States who have progressed in embedding the values of democratic societies and moving away from authoritarianism should not falter from that course. The breadth of powers that executive authorities, such as public health authorities and security forces, currently enjoy should be under regular scrutiny and review. Safeguards should be put in place and multiple layers of oversight should be carried out.
In this, many state and non-state actors have a role to play:
Executive authorities should demonstrate that emergency measures and the extended powers they have acquired:
- Are temporary: measures limiting our human rights must be of an exceptional and temporary nature and should lifted within a reasonable timeframe.
- Are lawful: human rights should not be limited unless an official state of emergency has been proclaimed or a specific law enacted. This is key to ensuring the maintenance of the principles of legality and rule of law.
- Respect the principle of proportionality: these measures should be proportional to their intended ends; used as a last recourse and considered the least restrictive of all the options that could have been applied.
- Are subject to review: such measures should be subject to review and sunset clauses should be introduced in the law or regulations, mandating review of the measures on regular basis.
Parliaments must exercise oversight of the implementation of these measures. My colleagues Franklin De Vrieze and Victoria Hasson have detailed the importance of this function in their blogs for WFD.
National human rights institutions should report on the implementation of these measures and laws as well as addressing complaints received from individuals about violations of their rights.
The media could be positioned as an important actor to increase oversight of such measures and bringing attention to their impact. However, they are often subject to restrictive measures themselves as governments worldwide crack down on media freedom under the pretence of combatting disinformation. A free and impartial press is imperative to upholding human rights.
Civil society can support communities to monitor the impact of measures on specific rights and vulnerable people. Participatory policy making should be prioritised as part of the concerted effort needed to ensure that decision making is benefiting from constructive input facilitated by civil society.
Independent judiciaries have a clear role in implementing and overseeing the application of such measures as well as in ensuring consistency with international human rights obligations.
Law enforcement authorities should demonstrate that their discretionary powers are not being exercised arbitrarily or unreasonably and should ascribe to a philosophy of community policing that creates partnerships with and builds the trust of communities and citizens in order to combat COVID-19.
As they cope with the impact of the pandemic, private sector and tech industries can help by integrating a human rights approach into their decision-making process and communications and ensuring compliance with the UN Guiding Principles on Business and Human Rights.
On the international level, human rights mechanisms must hold states to account when they limit – or to use the legal term, derogate – rights, in accordance with international treaties. It is important to ensure that countries formally inform the UN of derogations from their human rights obligations. Very few countries have done that so far. A new approach to overseeing these measures in line with states’ human rights commitments may be needed.
All these actors can help to ensure that emergency measures are formulated and implemented in ways that ensure both an effective COVID-19 response and consistency with international human rights principles. Overcoming COVID-19 or any other crisis must not be at the expense of the fundamental rights of the people – this is no time for shortcuts.
Photo credit: Wisconsin Center for Investigative Journalism / Flickr