Derogating Human Rights Obligations During COVID-19: Regional Instruments
· Due to the novel coronavirus disease (COVID-19), a number of States are derogating from their obligations under international human rights instruments. Apart from those obligations that cannot be suspended, given their non-derogable character as set out under each respective human rights instrument, States have been left to make individual interpretations as to the necessity of entering an official derogation or to rely on the limitations provided for explicitly in the text of each article and each respective instrument.
· The primary focus of State activity in terms derogations has focused on the International Covenant on Civil and Political rights (“ICCPR”) which requires States to justify its actions, notify the proper entities, and place durational restrictions on its derogation. However, it is important for small/developing States to analyze and engage with all of their existing multilateral human rights obligations, and examine the impacts of the current pandemic on their obligations. For example, the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) fully restricts States’ derogation powers, and instead by virtue of Article 5 allows States to limit their obligations.
· It is equally important for small/developing States to examine and harmonize their approach to the respective regional human rights instruments. Dependent on the regional or subregional instruments(s) that a State may be a party to, the following derogation or limitation decisions need to be considered:
o The American Convention of Human Rights (“ACHR”) promotes human rights among the Organization of American States. Article 27(1) of the ACHR allows States to derogate their obligations during times of war, public danger or other emergency that threaten the State’s independence or security. In accordance with Article 27, States may derogate for a period of time required by the situation so long as the derogation is consistent with the State’s obligations under international law and is not discriminatory. Article 27(2) does not allow States to suspend its obligations on non-derogable rights. If a State were to derogate under Article 27 of the ACHR, the State “shall immediately inform” the Secretary General (SG) of the Organization of American States of the provision it is suspending, the reasons and date set for the suspension. As of May 2020, almost half of the ACHR signatories had notified the SG of their suspension of guarantees in accordance with Article 27. These notifications may include States limiting as well as derogating, because the language of Article 27 (3) is broad as to the type of suspension which requires notification.
o The European Convention on Human Rights (“ECHR”) is one of many instruments protecting human rights in Europe. Similar to the ACHR, Article 15 of the ECHR states that its signatories may derogate during war or a public emergency which threatens the life of the nation, so long as the derogation is consistent with the State’s other international law obligations. Article 15(3) requires State to inform the Secretary General of the Council of Europe of the measures taken, the reasons for such measures, and when the “measures have ceased to operate.” Prior to the end of May 2020, around a fifth of States Parties had notified the Secretary General of their derogation measures under the ECHR.
o The African Charter on Human and Peoples' Rights (“ACHPR”) does not contain any derogation clauses. Rather, throughout the treaty there is language allowing signatories to limit their obligations. For example, Article 11 states that the exercise of [the right to assembly] shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others. Similar limitation language is found throughout the ACHPR.
o The Association of Southeast Asian Nations (“ASEAN”) and Asian States more generally lack regional instruments for States to follow when derogating or limiting their obligations during public emergencies.
IILA can work with small and developing States to increase their knowledge of relevant international and regional human rights instruments. In addition, IILA can assist small and developing States in weighing the options of derogating or limiting their human rights obligations during COVID-19.