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COVID-19 Crisis Blog: Human Rights in a Time of Crisis International Human Rights Law and the Pandemic

14 April 2020 - As we navigate a national and global public health crisis with the spread of Covid-19 Coronavirus, we hear from our research and policy fellows, and members of our research community in a new weekly blog which reflects on these new societal challenges. This week, Donna Lyons, Assistant Professor in Trinity's School of Law looks at what public health emergencies like Covid-19 mean for human rights obligations.

Donna Lyons, Assistant Professor with the School of Law, Trinity College Dublin

While the doctrine of human rights has existed for centuries, our current global framework of human rights protection came into being following World War II with the establishment of the United Nations (UN). The concept of human dignity underpins the UN’s human rights instruments with the broader aim of promoting international peace and security.

Born of noble and benevolent ideals, international human rights law has been as criticised as it has been celebrated. Some of the objections voiced include the lack of implementation measures available to human rights treaty monitoring bodies, their lack of resources, the bias and politicised nature of the actors within the human rights system, the promotion of hyper-individualism through rights-based terminology and remedies, and the destructive and self-defeating nature of the international human rights project due to its development alongside the emergence of a neoliberal economic ideology.

Rather unfortunately, disillusionment with the UN system of rights protection has increased steadily over the past five decades. Indeed, some of the greatest challenges facing our world, including social and economic inequality, the plight of refugees, and environmental degradation, have not been adequately resolved by the international human rights project. Consequently, many scholars, legal practitioners, and advocates now look elsewhere for solutions to large-scale societal challenges.

The coronavirus pandemic may be a turning point in this trend. The World Health Organisation (WHO), a specialised agency of the UN founded in 1948, has swiftly taken centre stage in advising and guiding policymakers and the public through this period of uncertainty. The current pandemic requires a coordinated global response, and it may be that this gaping need will encourage the community of nations to turn towards the UN, including its numerous human rights mechanisms, rather than further undermining an organisation already in a state of crisis.

Covid-19 has caused governments to introduce tailored limitations on some of the most basic rights of individuals, including the rights to liberty, travel, freely associate, practise religion, privacy, work, education, and healthcare. In addition to coordinating a medical response, the UN might also very usefully coordinate national approaches to constraints placed on rights as a result of the coronavirus outbreak.

Two major international human rights treaties – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (ratified by 173 and 170 countries respectively) provide a roadmap for the permissibility of domestic rights restrictions under international human rights law.

The Preamble to both Covenants emphasise that the individual, ‘having duties to other individuals and to the community to which he belongs’, bears a responsibility to strive for the observance and promotion of the rights within each Covenant. The treaties view rights and duties as interconnected, and the well-being of the community as inherently linked to the well-being of the individual. Therefore, derogations from and limitations on rights are permissible under certain conditions.

Article 4 of the ICCPR permits States to ‘derogate’ from their obligations in respect of civil and political rights in time of public emergency ‘which threatens the life of the nation’. Precise conditions must be met, such as the requirement that a state of emergency be officially proclaimed. Certain core rights are non-derogable, such as the right to life, the prohibition on torture or cruel, inhuman or degrading treatment or punishment, and the prohibition on slavery (Human Rights Committee’s General Comment No. 29 and Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights).

There are options within the ICCPR for restricting individual rights without resort to the Article 4 derogation provision. The rights to liberty of movement (Article 12), freedom of thought, conscience and religion (Article 18), freedom of expression (Article 19), freedom of assembly (Article 21), and freedom of association (Article 22) may be subject to restrictions which are ‘provided by law’ and necessary to protect national security or public safety, public order, public health or morals or the rights and freedoms of others.

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The term ‘necessary’ has been interpreted to imply that the limitation (i) responds to a pressing public or social need, (ii) pursues a legitimate aim, and (iii) is proportionate to that aim (Siracusa Principles). Other key rights in the ICCPR, such as the rights to life (Article 6), liberty (Article 9), and freedom from interference with privacy, family, home or correspondence (Article 17) may also be restricted provided that the deprivation is not ‘arbitrary’.

Regarding ‘public health’ limitations in the ICCPR, the State must be facing ‘a serious threat to the health of the population or individual members of the population’ and the measures taken ‘must be specifically aimed at preventing disease or injury or providing care for the sick and injured’ (Siracusa Principles).

Article 12 of the ICESCR explicitly recognises the importance of prevention, treatment and control of epidemic diseases as a facet of the right to health (elaborated upon in General Comment No. 14). The Covenant’s principle of ‘progressive realisation’ requires States to take steps, to the maximum of their available resources, to achieve progressively the full realisation of rights within the Covenant (Article 2), which, even under normal circumstances, provides a degree of flexibility in the implementation of economic, social and cultural rights.

The ICESCR contains no formal derogation provision but allows that States may place limitations on economic, social and cultural rights ‘as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’ (Article 4).

It is clear that international human rights law – the ICCPR and ICESCR included – provides guidance on the permissibility of curtailing individual rights both in peacetime and during a state of emergency. The current health crisis requires a coordinated worldwide response, and on account of their germane content and global reach, the international human rights treaties and associated monitoring mechanisms may see an increase in political and public support. Should this occur, the monitoring mechanisms will require better resourcing, structuring and leadership to overcome their myriad adversities, both internal and external.

We enter a new era, and it is an excellent opportunity for the international human rights regime to lend oversight to national public health-related controls. If successful, this will also provide the international human rights framework with a firm training ground for addressing other collective priorities – social, economic and environmental – facing our world. Engaging with these immense challenges will require levels of solidarity, collective action and cooperation which the Covid-19 pandemic primes humanity to begin in earnest.

Donna Lyons is an Assistant Professor with the School of Law, Trinity College Dublin. One of her primary research projects analyses human rights governance mechanisms, including the oversight and implementation of international human rights treaties. Donna has previously held positions with the Department of Foreign Affairs and Trade, the Law Reform Commission and Dublin City University School of Law and Government. Donna was an Early Career Researcher in the Trinity Long Room Hub in 2013-14.

Recent posts in the COVID-19 Crisis Blog:

Solidarity in a Time of Crisis with Rory Montgomery (6 April 2020)

Art in a time of Pandemic with Rita Duffy (1 April 2020)

Leadership in a time of Crisis with Mary Doyle (25 March 2020)

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