This is the final of a series of five blogs on COVID 19 and human rights, focusing on the timeline of the virus. Blog 1 focused on the beginning of the virus in China, in relation to the right to freedom of expression and rights of access to information. Blog 2 focused on the crisis in hospitals across the world in dealing with the COVID 19 case load. Blog 3 focused on human rights issues associated with lockdowns. Blog 4 looked to the future of the virus, that is the much-anticipated end of the crisis in the form of the development of a vaccine or effective treatment. This final blog departs from the timeline to examine the notion of derogations from human rights obligations, a mechanism that can be used sometimes in times of public emergency.
The notion of derogation
Article 4 of the International Covenant on Civil and Political Rights (ICCPR) permits States parties to derogate temporarily from some of their ICCPR obligations in times of public emergency. This means that in certain circumstances a State can suspend ICCPR obligations. Article 4(1) reads:
In 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 other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
Article 4 is not a blank cheque. First, derogations are only permitted in extreme circumstances. The COVID 19 pandemic satisfies the description of a relevant “public emergency”. However, derogation measures must be proportionate, that is adopted and applied “to the extent strictly required by the exigencies of the situation”. They must not be inconsistent with other international law obligations, such as other human rights treaties. They must not discriminate on the grounds listed in Article 4.
Furthermore, there are rights from which a State may never derogate, listed in Article 4(2), which are (as described by the UN Human Rights Committee in its General Comment 29 on derogations):
… article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation), article 15 (the principle of legality in the field of criminal law, i.e. the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion).
Finally, a State has important procedural obligations with regard to derogation. First, as stated in Article 4(1), it must “officially proclaim” the state of emergency to its own people, using its own domestic mechanisms for doing so. Article 4(3) requires the State to notify the UN of any derogation:
Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through its intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
Derogations and COVID 19
As of 1 May 2020, only ten States have derogated from the ICCPR in relation to measures adopted to combat COVID 19: Armenia, Chile, Colombia, Ecuador, El Salvador, Estonia, Georgia, Guatemala, Latvia, Peru, and Romania. Hence, despite significant similarities between lockdown measures taken across the world, only some Latin American and Eastern European States have issued notices of derogation. Perhaps a large number of States have failed to comply with these notification requirements: the Human Rights Committee certainly believes so, as it has said in a Statement on Derogations from the Covenant in connection with COVID 19 in late April.
Furthermore, notices of derogation must do more than simply notify the fact of derogation. They must explain and justify the derogation. Historically, few notices of derogation have done so to a level of acceptable detail. This trend continues with the COVID 19 derogations, though some, such as that from Chile, are probably compliant.
Are derogations needed?
Most derogable rights can be limited, without the need to resort to derogation, by proportionate measures prescribed by law in order to protect public health or the rights of others, such as the right to life. This principle was discussed in Blog 1 in relation to freedom of expression, and in Blog 3 in relation to rights detrimentally affected by lockdown measures. As noted above, the principle of derogation is itself subject to the principle of proportionality.
It is therefore difficult to see why a derogation would ever be needed in respect of a right that can be limited by proportionate measures anyway. To take an example, Article 12 (freedom of movement) is a derogable right. It may be limited, aside from derogation, under 12(3) by proportionate measures designed to protect certain interests such as public health and the rights of others. The same is true of Articles 21 (freedom of assembly) and 22 (freedom of association). Many of the lockdown measures have in fact impacted on those three rights, and some of the aforementioned derogations accordingly relate to those rights.
But it is difficult to see how a valid derogation from those rights is conceptually different to valid limits imposed on those rights without a derogation. After all, both the derogation and the limits must be proportionate in order to be valid. A difference could lie if derogations somehow incorporate a more deferential or generous notion of proportionality which gives the State more leeway to interfere with human rights, compared to proportionality under the ordinary limitation clauses. Yet in its General Comment 29 on derogations, the Human Rights Committee gave no indication that proportionality under Article 4 was somehow more lax than other tests of proportionality under the ICCPR.
In its more recent statement on derogations and COVID 19, the Committee arguably indicated that derogations would rarely be necessary if limitations were otherwise permitted to a relevant ICCPR right. At paragraph 2(c), it stated:
States parties should not derogate from Covenant rights or rely on a derogation made when they can attain their public health or other public policy objectives through invoking the possibility to restrict certain rights, such as article 12 (freedom of movement), article 19 (freedom of expression) or article 21(the right to peaceful assembly), in conformity with the provisions for such restrictions set out in the Covenant, or through invoking the possibility of introducing reasonable limitations on certain rights, such as article 9 (right to personal liberty) and article 17 (right to privacy), in accordance with their provisions.
Thus, the real utility for States of derogation may only be when they are applied to rights which are of an absolute nature, such as article 9(3) (which guarantees the prompt appearance by a person detained on a criminal charge before a judge or a person exercising judicial power): the equivalent right under the European Convention on Human Rights was the subject of a valid derogation in Brannigan and McBride v UK in the days of the Northern Irish “Troubles”. And yet most of the absolute rights are in fact non-derogable under Article 4(2).
Derogation and the ICESCR
There is no derogation clause in the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The inherent limits to ICESCR rights contained within Article 2(1) and 4 were presumably deemed to suffice, even in times of public emergency. COVID 19 could affect the “maximum resources” that a State is able to devote to such rights under Article 2(1). Article 4 permits ICESCR rights limits that are “compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”, as discussed in Blog 3 (in the context of limits to ICESCR rights entailed in the lockdowns).
Derogation is the tool provided under international human rights law to give wiggle room to States in dealing with genuine public emergencies, such as the COVID 19 pandemic. However, few States have in fact given notice of derogations under Article 4 of the ICCPR. This may be because other States have breached the notice requirements, and have in substance derogated from their obligations.
Alternatively, it may be because derogation has very limited applicability, even in the most extreme of circumstances. This may explain why derogations have rarely been found valid under international human rights law (at least in the last 30 years). This may explain why derogation clauses are largely absent from most modern human rights treaties, and even the ICCPR’s sister Covenant, the ICESCR. Perhaps derogations have essentially become a dead letter.