Nadia Kornioti, PhD Candidate, UCLan Cyprus
The emergency measures taken by many governments during the ongoing COVID-19 emergency, have given rise to multiple discussions among lawyers, academics and professionals alike. A key question relates to how governments should react to the challenge of the day – ensuring the protection of public health, on the one hand, while simultaneously maintaining the protection of our rights and freedoms as individuals, on the other. With a policy-oriented outlook in mind, the present post aims at illustrating past and ongoing discussions in the area of public international law, seeking to draw attention to aspects of the relevant international legal framework. These need to be considered in tandem with ongoing discussions on constitutionality and the domestic protection of human rights, since as indicated below, domestic or international emergencies are by their nature events that more often than not call for reactions which stretch the edges of the Rule of Law.
The principles of ‘human rights’, as we understand them today, are to a significant degree a product of a series of legal instruments, which followed the Second World War and subsequently, the establishment of the United Nations (UN) in 1945, as well as the adoption of the Universal Declaration of Human Rights (UN General Assembly Resolution 217(III) A) in 1948. The Declaration is a non-binding legal document but, of some relevance here, it declares in Article 25 that:
‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’.
There are three legally binding Conventions enclosing derogation clauses in time of emergency. In chronological order, these are: the European Convention of Human Rights (ECHR, Art. 15), adopted by the Council of Europe in 1950; the International Covenant on Civil and Political Rights (ICCPR, Art. 4) adopted by the UN General Assembly in 1966; and the American Convention on Human Rights (ACHR, Art. 27), adopted by the Organisation of American States in 1969. These provisions recognise a right to derogate in situations which threaten ‘the life of the nation’ (ECHR, ICCPR) or ‘the independence or security of a State Party’ (ACHR). These provisions also require the derogating state to make a relevant declaration. A detailed and precise overview of the different provisions under international human rights law has already been published. While human rights are indeed central to the ongoing debate, only a reference to the key provisions of the three main international conventions is provided here for the purposes of this blog post.
While the provisions mentioned above are clear on paper, the reality is – and has always been – complex, as states are often unwilling to follow up with a formal declaration of their intention to suspend their compliance with specific provisions. The reasons for this are multiple. These include practical issues, such as a lack of a commonly agreed definition and clear understanding of what an ‘emergency’ entails. These also include political factors, such as the lack of political will on behalf of certain governments to draw attention to the fact that they do not comply with their international obligations. In turn, this lack of political will may be due to various reasons. For instance, when a government does not consider the level of the measures taken to be of such intensity that they require a formal derogation, or simply does not desire to allow direct scrutiny of its actions from regional/ international actors. Sometimes, a government may also take advantage of a given crisis to repress – or clearly violate – certain rights based on ulterior motives. In the present context Hungary has drawn the widest attention among the European states.
There are many factors that can weigh down the scale on either side of the argument, i.e. in favour or against formal declarations. Thus, in the true spirit of the legal profession, the question of whether derogations should be made or not has been one of the main points discussed in the ongoing debates related to COVID-19, as indicated here and here. However, it is important to point out that the disconnect observed between the legal requirement and the behaviour of states is not a new problem; the ongoing pandemic has helped an old problem to resurface with renewed force. In fact, the issue was discussed extensively well before the current pandemic – by the International Law Association (ILA), through its International Committee on Human Rights (1979-1982) and its International Committee on the Enforcement of Human Rights Law (1982-1990). The process of decolonisation and the rise of new independent states, in the three decades preceding the study of the phenomenon by the ILA, had already shown in practice the shortcomings of the envisaged system under the derogatory clauses of the three Conventions mentioned above.
In their respective studies, the two ILA Committees examined a number of issues, such as the factual situations giving rise to a state of emergency, as well as patterns of human rights violations, based on case studies, and the effect of the role of Non-Governmental and International Governmental Organisations (NGOs and IGOs respectively). Whereas internal armed conflict and other types of violence primarily attracted the Committees’ attention, natural disasters were also accepted as a factor which may give rise to an emergency. Here, however, we will focus on one of the most interesting aspects of the work conducted then. The attempt of the ILA to develop a “typology of states of emergency”, by identifying and defining five types of emergencies steaming from the two umbrella categories of de jure and de facto emergencies, as follows:
- ‘Good’ De Jure Emergencies: These arise where there is an emergency and the affected state has derogated according to the relevant international human rights instrument which binds it.
- ‘Bad De Jure Emergencies: These arise where there is a derogation, yet the material conditions for an emergency are lacking; this suggests that de jure declarations can also be exploited by a state that wishes for one reason or another to benefit from such a development.
- “Classic” De Facto Emergencies: These arise where there are the conditions justifying the imposition of emergency measures, but the state in question fails to make a formal declaration of a public emergency.
- “Ambiguous or Potential” De Facto Emergencies: These arise where the ongoing situation in a state foresees a potential emergency, yet developments do not yet justify a formal emergency declaration.
- “Institutionalised” De Facto Emergencies: These arise where a state that initially had declared a formal state of emergency decides to end its formal declaration, yet incorporates its emergency provisions into its ordinary legislation.
A detailed summary on the past work of the ILA mentioned above is available here.
Whether or not the types indicated by the ILA in its 63rd Biennial Conference in Warsaw in 1988 are satisfactory or not is worthy of a separate discussion in its own right. The same applies for the question of whether or not a state has a duty to formally declare an emergency under public international law. What is evident, however, is that there are many different scenarios, which can generate the question of whether or not an emergency exists, while being accompanied by different reactions (or a combination of reactions) by the state in question. The only thing one may say with any degree of certainty is that a government is most likely to adapt its reaction towards any real or perceived emergency situation according to the domestic and/or international interests at stake.
This brings us to the importance of monitoring whether states comply with their constitutional and international legal obligations in extraordinary times, such as those that we are currently experiencing. In the context of the COVID-19 pandemic, in particular, we have a unique opportunity to observe reactions across the globe, given the fact that almost all states have been severely affected and are called to take emergency measures to protect their population. Contrary to armed conflicts or natural disasters such as earthquakes or floods, the pandemic affects all countries in the same way. Namely, adversely affecting the health of significant proportions of the local population, notwithstanding the material – and crucial – difference in the capacity of different states to respond effectively in the interests of public health.
It is not surprising, therefore, that legal experts across the world are monitoring the emergency legal measures taken by various governments. This is being done through initiatives such as the following: the ‘Coronavirus Government Response Tracker’ of the University of Oxford; the ‘Tracking the Global Response to COVID-19’ project of Privacy International; and the ‘COVID-19 Civic Freedom Tracker’, a collaboration between the Office of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the International Center for Not-For-Profit Law and the European Center for Not-For-Profit Law.At the same time, international Human Rights organisations, such as Amnesty International and Human Rights Watch, have already published extensively on the pandemic and the dangers that emergency measures entail for the protection of human rights in times of emergency.
In addition, it must be clarified that the issue of the obligations of states to comply with the protection of the rights of the general population is separate to the additional obligations of states to protect the individual Right to Health as such. In the words of Art. 12(1) of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) – a Convention accompanying the ICCPR which however, does not enclose a derogation clause and neither attracts the same attention as the ICCPR – the Right to Health refers to the ‘highest attainable standard of physical and mental health’. In clarifying the scope of its application, in General Comment 14, the Committee on Economic, Social and Cultural Rights (CESCR) states that the Right to Health ‘embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life’ (para 4). Importantly with regard to emergency situations: ‘State parties have a joint and individual responsibility […] to cooperate in providing disaster relief and humanitarian assistance’. (para 40; emphasis by the author). The minimum core obligations of states are illustrated by the CESCR in paragraph 43 of the document, as follows:
Accordingly, in the Committee’s view, these core obligations include at least the following obligations:
(a) To ensure the right of access to health facilities, goods and services on a non‑discriminatory basis, especially for vulnerable or marginalized groups;
(b) To ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone;
(c) To ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water;
(d) To provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs;
(e) To ensure equitable distribution of all health facilities, goods and services;
(f) To adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include methods, such as right to health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups.
In paragraph 47, it is clarified that the above minimum obligations are non-derogable under any circumstances.
It needs to be further noted that states which are members of the World Health Organisation (WHO) have separate obligations under the International Health Regulations (IHR), as issued by WHO in 2005. These provide for the global legal framework of rights and obligations that states have in the handling of public health emergencies of international concern. Under this legal instrument, WHO Member States must appoint a national IHR Focal Point (Art. 4 IHR), responsible for maintaining communication with WHO and, as of 2018, to submit an annual report under the State Party Self-Assessment Tool to the World Health Assembly. In the Republic of Cyprus, this role is held by the Ministry of Health.
While it is understandable that governments have the duty to take measures to protect everyone on their territory, including highly vulnerable groups, such as the homeless, the refugees and irregular migrants, emergency measures which have a direct impact on the rights of the population are by their very nature measures at the edge of the Rule of Law. Moreover, it is true that the peculiar nature of public international law, almost always dependent on the will of governments to follow through with their international legal obligations, often leads to cynicism about its effectiveness, or even relevance, in times of a national emergency. However, it is important to acknowledge that international law gives us a common standard and a forum which allows comparisons, exchange of information and constructive criticism from beyond the borders of the state. If anything, this rare instance of a truly global problem, which challenges some of the core structures of the existing world order, has reinforced the case in favour of enhanced international regulation and collaboration. What remains to be seen is whether the existing structures will stand up to the challenge, or whether the ongoing uncertainty will eventually call for innovation and reform.
Nadia Kornioti is a PhD Candidate at the University of Central Lancashire (UCLan) and an Associate Lecturer at UCLan Cyprus. She is also a member of the Cyprus Branch of the International Law Association and a member of the ILA’s International Committee on Human Rights in Times of Emergency.