COVID-19: Safeguarding Rights of Individuals Against Normalisation of Emergency Measures

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COVID-19: Safeguarding Rights of Individuals Against Normalisation of Emergency Measures

International human rights law is geared toward protecting rights of individuals. COVID-19, however, necessitated widespread restrictions placing the common good above personal liberties. Such derogations should be explicit, clearly defined and limited to safeguard against creeping normalisation of exceptional provisions.

Individualist bias of international human rights law
COVID-19 has been challenging human rights globally for more than a year now. The virus itself threatens the fundamental rights to life and health while excessive measures to contain it threaten freedom of movement and assembly, amongst other rights. More broadly, however, the current situation presents a challenge to international human rights law (IHRL) in its entirety. This challenge lies in the relative unsuitability of a system designed to protect the rights of individuals to address a threat that necessitates sweeping, indiscriminate measures to protect society as a whole. In exploring this structural problem, this post reinforces the convincing cases already made in favour of derogations to deal with the pandemic (see for example here and here).

International human rights law, in particular, the system of civil and political rights, puts the individual and her interests at the centre. For example, Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) obliges states to ‘respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the […] Covenant’ [emphasis added]. Moreover, we find singular, individualist language in almost all provisions circumscribing rights in the ICCPR: ‘[e]very human being has the inherent right to life’, Article 6; ‘[i] in the determination of any criminal charge against him, or his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing’, Article 14, and so on. Even Article 27, which protects minority rights, is couched in individualist language when it defines ‘persons belonging to […] minorities’ as the rights holders. Provisions that use different language to stipulate rights, such as Article 21(1), the right of peaceful assembly, are rare. Moreover, in the first sentences of its most recent general comment on this right, the Human Rights Committee (HRC) states:

The fundamental right of peaceful assembly enables individuals to express themselves collectively and to participate in shaping their societies. The right of peaceful assembly […] protects the ability of people to exercise individual autonomy in solidarity with others [emphasis added].

Moreover, even though other categories of human rights, such as economic, social and cultural rights, have been codified using less individualist language, jurisprudence and doctrine have handled large aspects of these rights in similarly individualist ways.

This concept of human rights as rights of individuals has important consequences. When an individual challenges a certain measure that interferes with her non-absolute rights, the (quasi-) judicial body will balance the gravity of the interference with her right against the importance of the legitimate aim pursued by the measure. Theoretically, every measure must be assessed individually in each case as the same measure can affect two individuals in completely different ways. Therefore, when states make policies, they must consider the varying consequences of blanket measures on different individuals much more than they can do at present. Additionally, given the object and purpose of IHRL, there is a prima facie assumption that rights of individuals prevail, and the burden of justification vis-à-vis affected individuals is on the state. Human rights law envisages the individual’s enjoyment of rights as the rule and interference with this as the exception.

COVID-19 necessitates sweeping societal measures
These observations are by no means new. Nonetheless, they help us understand why COVID-19 is such a litmus test of IHRL as this individualist bias is somewhat problematic when effectively addressing the pandemic requires sweeping measures. Consequently, for more than a year, human rights have been interfered with on a large scale and in rather undifferentiated ways. Families have been torn apart by border closures, the right of peaceful assembly has been severely restricted and curfews have curtailed the right to liberty. All of these measures can only be effective when applied largely indiscriminately.

This is not to say that such measures are not reasonable and necessary to address the pandemic. States have an obligation under IHRL to protect the health and lives of those under their jurisdiction. Many, if not most, of the measures are probably justified under IHRL. However, the fact that they are being justified within the regular individualist framework of IHRL might yet prove problematic in the longer run. In the current situation, in all but the most extreme cases, the common interest of the functionality of the public health system would almost automatically prevail. Regarding many aspects of life, the assumption is that community interests trump individual liberties. Consequently, the scale pan holding the common interest has gained significant weight. The danger is that this practice might influence the way IHRL is implemented in future situations, leading to a shift of certain standards, ‘recalibrating human rights protections downwards’.

Safeguards must ensure derogations exception not rule
International human rights law provides a mechanism to derogate, temporarily and within strict limits, by declaring a state of public emergency, for example, in accordance with Article 4 ICCPR or Article 15 ECHR. It is worth emphasising that emergency provisions in IHRL are meant to strike a balance between an overwhelming need to act in order to protect ‘the life of the nation’ (Article 4 ICCPR) and the risk of abuse of power such action incurs. The very terms, ‘life of the nation’ and ‘public emergency’, acknowledge the setting aside of individual interests for the public good for a limited period in order to re-establish normalcy. Hence, derogation clauses are a ‘safety valve’, allowing temporary release of pressure in the system of human rights protection.

As the HRC recognised in its general comment on Article 4 ICCPR, derogations are ‘clearly distinct from restrictions or limitations allowed even in normal times’. As such, derogations under IHRL do not constitute ‘zones of lawlessness’ but rather ‘different regimes of legality’. Important safeguards must be heeded. Firstly, some obligations, such as the prohibition of torture, cannot be derogated from. Secondly, states of emergency must be publicly declared, so that the affected population and different branches of government receive fair warning that, for a limited period only, different standards apply for the assessment of human rights interferences. Thirdly, the international community must be notified of a derogation to enable independent monitoring. Finally, a derogation must be clearly limited in time and scope to what is ‘strictly required by the exigencies of the situation’. Accordingly, derogations are still subject to the principle of proportionality, albeit the standard by which proportionality is assessed is unequivocally different from normal times, with the emphasis on common rather than individual interest.

International human rights law relating to states of emergency is far from perfect and there is certainly need for reform. Furthermore, the invocation of a state of emergency comes with considerable risks (see here, here and here). Hungary ’s reaction to the pandemic is a bitter example. However, when the safeguards that accompany derogations under IHRL are respected, explicitly derogating from certain obligations for a limited period can greatly benefit IHRL. It makes clear that standards in times of crisis diverge from those applicable in regular circumstances, thus preventing creeping normalisation of those extraordinary standards and long-term weakening of protection of the rights of individuals.

Benedikt Behlert

Written by Benedikt Behlert

Benedikt Behlert is research associate at the Institute for International Law of Peace and Armed Conflict (IFHV) and PhD student at the law faculty of Ruhr-Universität Bochum. His PhD, which addresses the importance of administrative procedure to international human rights law, is funded by the German Academic Scholarship Foundation (Studienstiftung des deutschen Volkes) and the Ryoichi Sasakawa Young Leaders Fellowship Fund (Sylff).

Cite as: Behlert, Benedikt. "COVID-19: Safeguarding Rights of Individuals Against Normalisation of Emergency Measures", GC Human Rights Preparedness, 6 May 2021, https://gchumanrights.org/preparedness/article-on/covid-19-safeguarding-rights-of-individuals-against-normalisation-of-emergency-measures.html

 

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