COMMENT / Carlos Jalil

Covid-19 has forced many states to take extraordinary measures to protect the welfare of their citizens. This includes the suspension of certain human rights on grounds of public emergency. Rights such as freedom of movement, freedom of expression, freedom of meeting and privacy are affected by state responses to the pandemic. We therefore ask: Do states unduly affect freedom of expression when combating fake news? Do they unduly restrict our freedom of movement and meeting or even deprive us of our liberty? Do they infringe on our right to privacy with new tracking apps? Is this justified?

To protect public health, human rights treaties allow states to adopt measures that may restrict rights. article agreement 4 of the International Covenant on Civil and Political Rights (ICCPR) and article 15 of the European Convention on Human Rights (ECHR) provide that in situations of public emergency that threaten the life of the nation, states may take measures and derogate from their treaty obligations. Similarly, article 27 of the American Convention on Human Rights (ACHR), allows states parties to fail to derogate from their obligations in emergency situations that threaten the independence or security of the nation.

During the pandemic, some states have declared a state of emergency and, because of the impossibility of respecting certain rights, have derogated from their obligations. However, derogations are subject to requirements. General Comment 29 on States of Emergency of the UN Human Rights committee sets out six conditions for derogations, which are similar in the above-mentioned treaties: (1) official proclamation of a state of emergency and public emergency threatening the life of the nation; (2) proportionality required by the requirements of the status in terms of duration, geographical coverage and substantive basis; (3) non-discrimination (however the ECHR does not include this condition); (4) conformity with other international law obligations; (5) formal notification of the derogation to the respective treaty bodies (these must include full information on the measures, their reasons and documentation of laws adopted); and (6) prohibition of derogation from non-derogable rights.

The last condition is particularly important. The aforementioned treaties (ICCPR, ECHR and ACHR) explicitly set out the rights that cannot be derogated from. These, also called absolute rights, include, inter alia: right to life, prohibition of slavery and servitude, principle of legality and retroactivity of law, and freedom of conscience and religion.

However, derogations are not always necessary. There are rights that, on the contrary, are not absolute and have the inherent possibility of being limited, for which it is not necessary for a state to derogate from its treaty obligations. This means that the state, for public health reasons, may limit certain non-absolute rights without the need to give notice of derogation. These non-absolute rights are: the right to freedom of movement and meeting, freedom of expression, the right to liberty staff and privacy. Specifically, the right to freedom of movement and association is subject to limitations on grounds of national security, public order and health, or the rights and freedoms of others. The right to freedom of expression may be limited by respect for the rights or reputation of others and by the protection of national security, public order and public health. And the rights to freedom of expression staff and privacy may be subject to reasonable limitations in accordance with the provisions of human rights treaties.

Despite these possibilities, countries such as Latvia, Estonia, Argentina and Ecuador, which have officially declared a state of emergency, have resorted to derogation. Consequently, they have justified Covid-19 as an emergency threatening the life of the nation, notifying the United Nations, the Organisation of American States and Europe's committee of the derogation from their international obligations under the aforementioned treaties. In contrast, most states adopting extraordinary measures have not proceeded with such derogation, based on the inherent limitations of these rights. Among them are Italy and Spain, countries seriously affected, which have not derogated, but have applied limitations.

This is an interesting phenomenon because it demonstrates the differences in states' interpretations of international human rights law, also subject to their national legislatures. There is clearly a risk that states applying limitations abuse the state of emergency and violate human rights. It may therefore be that some states interpret derogations as reflecting their commitment to the rule of law and the principle of legality. However, human rights bodies are also likely to find the measures adopted by states that have not derogated consistent with the status pandemic. Excluding, in both cases, situations of torture, excessive use of force and other circumstances affecting absolute rights.

In the aftermath of the pandemic, courts and tribunals are likely to decide whether the measures adopted were necessary. But in the meantime, states should consider that extraordinary measures adopted should be temporary, in line with appropriate health conditions and within framework of the law.