The Derogation Of International Human Rights in a Pandemic
Since the outbreak of the coronavirus pandemic, various governments have enforced lockdown and stay at home orders in an attempt to curb the spread of the deadly virus which has killed thousands of people worldwide. Citizens have been ordered to stay at home with majority of such orders allowing for the movement of essential goods and services only. This has of course led to various arguments as to the legality of such lockdown orders as it curtails the freedom of movement as well as the right to work. This Article seeks to examine the legality or otherwise of such lockdowns under International Human Rights Law.
In a bid to enforce this stay at home order, there have been several violations of the human rights of people in several countries. In India, baton-wielding police have been reportedly seen beating those who flout the orders or fail to maintain physical distancing, while others have publicly shamed violators by forcing them to do squats, push-ups, crawl or roll around on the streets. The Nigerian Human Rights Commission also reported in a document released in April 15th 2020 that it had received and documented “105 complaints of incidents of human rights violations perpetrated by security forces” in 24 of the 36 states in Nigeria. Of these complaints, “there were eight documented incidents of extrajudicial killings leading to 18 deaths.
All over the world, there have been protests as a result of the enforcement of the lockdown measures. Several protests have broken out in India over the lockdown to fight the coronavirus pandemic as migrant workers call for food and aid. Iraq, where a six-month-old protest movement demanding political reforms fizzled in the face of the country’s coronavirus curfew, there have been spontaneous but brief outbursts of rage in the city of Nasiriya and the impoverished Baghdad neighbourhood of Sadr City. Weeks ago, security forces in Russia dispersed a crowd of some 2,000 people protesting against a lockdown in Vladikavkaz, Southern Russia. The majority of these protests have been seen in the United States. Across the country, groups of Americans are taking to the streets in protest of lockdown orders aimed at limiting the spread of the coronavirus. Those taking to the streets say that the stringent measures restricting movement and businesses are unnecessarily hurting citizens and also an infringement on their civil liberties. Protests have been seen in Michigan, Ohio, North Carolina, Minnesota, Utah, Kentucky, Virginia and some other states.
Examining the Legality Of Lockdown Orders
Various international, regional and municipal laws place strict obligations on the government and agencies of the state to protect and respect fundamental human rights and freedom. The International Covenant on Economic, Social and Cultural Rights (ICCPR) which has been adopted by 173 countries in the world, provides that everyone has the right to “the highest attainable standard of physical and mental health.” Governments are obligated to take effective steps for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases.” However, per international human rights law, there are two ways by which human rights might be suspended by states under certain circumstances. These are limitation and derogation. This article shall focus lengthily on derogation.
Derogation from human rights refers to a short-term or temporary suspension of human rights recognised in municipal and international human right documents. It enables states to depart from their international human right obligations in certain exceptional circumstances and situations of public emergency. In other words, international human rights law is characterized by an exceptional regime, by which under certain strict conditions, states may limit their fulfilment or their protection of certain rights. Usually, these exceptional circumstances are periods of armed conflicts, civil and violent unrest, insurrection, environmental and natural disasters and other periods of public emergency threatening the life of a nation. Thus, it cannot be overemphasized that the novel and ravaging coronavirus pandemic is a public emergency which perfectly fits into this category as it has not only threatened the life of one nation but the whole world since it broke out early this year.
Derogation clauses are provided for in Article 4 of the International Covenant on Civil and Political Rights (ICCPR), Article 15 of the European Convention of Human Rights (ECHR) and Article 27 of the American Convention of Human Rights (ACHR). The combined reading of these article sums up to the fact that states who are parties to any of the conventions are permitted to take measures derogating from their obligations under the convention in respect of the guaranteed fundamental freedoms in time of war or other public emergency threatening the life of the nation.
Specifically, Article 4 ICCPR provides “In a time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the states parties to the present covenant may take measures derogating from their obligations under the present covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.
Also, The Siracusa Principles (adopted by the UN Economic and Social Council in 1984), and UN Human Rights Committee general comments on states of emergency and freedom of movement provides authoritative guidance on government responses that restrict human rights for reasons of public health or national emergency. Any measures taken to protect the population that limit people’s rights and freedoms must be lawful, necessary, and proportionate. States of emergency need to be limited in duration and any curtailment of rights needs to take into consideration the disproportionate impact on specific populations or marginalized groups. However, not every form of unrest, disturbance or conflict may amount to public emergency or the certain circumstances during which derogation may be permitted. The European Court of Human Rights in Lawless v Ireland (No 3); ECHR 1-July-1961 qualified the time of emergency as “an exceptional situation of crisis or emergency which affects the whole population and constitutes a great threat to the organized life of the community of which the community is composed”.
It is important to then consider if the Covid-19 pandemic can lead to the derogation of certain rights under the circumstances that have been discussed. The answer to this is direct and in the affirmative. The World Health Organization (WHO) declared the pandemic a public health emergency of international concern on 30th January 2020. This suffices to say that all derogations from human rights as a result of the pandemic and under the requisite articles of the conventions stated in this piece and standard compliance with the procedures put in place by different human right commissions are very much legal and per international human rights law.Very importantly, there are certain basic human rights which cannot be suspended during any kind of emergency, be it war or armed rebellion or civil insurrection. These rights are so basic that to suspend them destroys the basis of a civilized state and the rule of laws. Indeed, they are so fundamental to the human personality that without them, human life is either not possible. At present, there are eleven rights which are recognized as non–derogable or non-suspendable in regional or international human rights instruments. They are inter alia;
- Right to life (ICCPR ART 6, ECHR ART 2, ACHR ART 4)
- Prohibition of torture by (ICCPR ART 7,ECHR ART 3, ACHR ART 5)
- Prohibition of Slavery or Servitude (ICCPR ART 8, ECHR ART 4, ACHR ART 6)
- Prohibition of retroactive criminal laws (ICCPR ART 15,ECHR ART 7, ACHR ART 9)
- Right to recognition of legal personality (ICCPR ART 16, ACHR ART 3)
- Freedom of conscience and religion (ICCPR ART 18, ACHR ART 12)
- Prohibition of imprisonment for breach of contractual obligation (ICCPR ART 11)
- Rights of the Family (ACHR ART 17)
- Rights of the child (ACHR ART 19)
- Right to a nationality (ACHR ART 20)
- Rights to participation in government (ACHR ART 2)
It is noteworthy that the African Charter on Human and Peoples ‘Rights does not make provision for a derogation clause. The African Commission on Human and People’s Rights has severally held that the suspension of human rights cannot be justified under the Charter. This is a major criticism of the charter. However, most state parties to the African Charter have a derogation clause embedded in their constitutions. For Instance, Nigeria is a state party to the charter and Section 45 of the constitution of the 1999 Constitution of the Federal Republic of Nigeria 1999 makes provision for the derogation. Section 45(2) provides that an Act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this constitution; but no such measures shall be taken in pursuance of any such Act during any period of emergency save to the extent that those measures are reasonably justifiable to deal with the situation that exists during the period of emergency. It further describes a “period of emergency as any period during which there is in force a proclamation of a state of emergency declared by the President in the exercise of the powers conferred on him under Section 305 of the constitution. It is expedient to point out that there can be no derogation from the rights guaranteed under sections 37, 38, 39, 40 and 41 unless there is a law passed to that effect.
Recommendations & Conclusion
It is evident from all of the above that the lockdown order by governments of the world finds legal support in International Human Rights law and the constitution of many states. However, torture, physical assaults and extrajudicial killings which people in many places across the world have been subjected to as a result of the enforcement of the lockdown are illegal. All defaulters should be tried under the municipal laws of each state and all forms of torture should be refrained from. The government must ensure that the non-derogable rights as listed above are respected at all times, even in the face of the coronavirus pandemic. Law enforcement agents should be adequately educated on the inviolability of the non-derogable rights and they should make conscious efforts to respect the rights while enforcing the lockdown order.
Olalekan Olayode is a graduate of the Faculty of Law, Obafemi Awolowo University where he served as the Director of Programmes of the International Law Students Association and the Director of Administration of the Clinic for Human Rights. He can be reached at email@example.com
Adekunle Abiona is a graduate of the Faculty of Law, Obafemi Awolowo University where he served as the President of the International Law Students Association. He can be reached at firstname.lastname@example.org