COVID was an unprecedented event from a human rights law perspective: never before had the international framework been challenged by a truly global emergency.
When the Spanish Flu erupted in 1918, the conventions of international rights law had yet to be established. Foundational treaties protecting human rights were still decades away: the International Covenant on Civil and Political Rights (ICCPR) came into force in 1975, almost half a century later.
Until 2020 there had been no global wars, catastrophes, or health emergencies that could put the Covenant to the test. The COVID pandemic was an opportunity to demonstrate how treaties could be used to tackle crises and protect human rights standards cooperatively in the face of collective adversity.
In theory, the ICCPR’s mechanisms could have been mobilised to help in fighting the spread of the virus. Its procedures could have provided an uncontroversial roadmap of how international human rights law can deal with crises through the suspension of specific rights in the interest of public health, while protecting against egregious violations through oversight by international institutions.
In practice, however, the human rights framework has failed.
Abuses have increased since 2020, including attacks on fundamental, unviolable laws: extrajudicial killings and torture have seen a marked uptick. Why is this the case? And what does this mean for the applicability of international human rights law for future crises?
The ICCPR is a binding treaty with 173 States Parties, and it codifies essential individual rights ranging from the right to life, to freedom of religion, speech, and assembly; electoral rights, and due process. Some rights – as with freedom of assembly during COVID – can be suspended in times of emergency by triggering Article 4 of the Covenant.
This is a derogation clause, a provision where a party may legitimately suspend its obligations from an agreement, though within proscribed bounds and only in certain circumstances:
“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.”
There is a logic behind these clauses, and we are all in a position to understand their function over the last two years. Freedom of movement and association is a right protected under the ICCPR, and the international community (mostly) agreed to suspend that right, of course, in the interest of public health during COVID outbreaks.
And the mechanism to trigger legitimate derogations is straightforward: countries must inform the UN Secretary General of their intention to suspend certain rights, submit reasons for their derogation, and provide an end date for their suspension. These applications then undergo a review by the UN Human Rights Committee.
There are, however, a number of rights that cannot be suspended, no matter the emergency, and even when the existence of the state is under threat: the most recognisable being the right to life and freedom from slavery, torture or cruel, inhuman and degrading treatment or punishment.
The COVID Opportunity
By submitting requests within the framework of the human rights law and within pre-established bounds, the international community could have showed its commitment to the principles of the ICCPR. This would have both strengthened its relevance and solidified the UN as a forum to tackle international crises.
To this point, the pandemic was the ‘ideal’1Alan Greene, “States Should Declare a State of Emergency Using Article 15 ECHR to Confront the Coronavirus Pandemic,” Strasbourg Observers, April 1, 2020, https://strasbourgobservers.com/2020/04/01/states-should-declare-a-state-of-emergency-using-article-15-echr-to-confront-the-coronavirus-pandemic/. case for legitimate derogations from human rights covenants: COVID was and is a shared experience whose gravity is unquestionable, and thus derogations to contain the spread of the virus would come under reduced scrutiny when submitting requests compared to, say, proposing a suspension of rights in response to murky allegations of an attempted coup.
Derogating from certain rights, in this case, is a collective action both to contain continued infection in hard-hit states as well as to protect less-affected countries from contagion. This process should be seen as an expression of a fiduciary relationship, where one party is obliged to act in another’s best interest, and this obligation existed at multiple levels under COVID:
At the national level, the state has fiduciary obligations in its relationship with citizens and thus, where inflexibility regarding articles in human rights covenants would endanger the state’s ability to guarantee security to its citizens, it is obliged to abrogate them for the greater good;2Evan J. Criddle and Evan Fox-Decent, “Human Rights, Emergencies, and the Rule of Law,” Human Rights Quarterly 34, no. 1 (2012): pp. 39-87, https://doi.org/10.1353/hrq.2012.0001, 41. similarly, at the global level (though less binding), states should follow the same course and submit derogations to protect the stability of the international order in times of crisis.
But in the last two and a half years there has been a breakdown in the human rights system, and this can be subdivided into two separate failures. Firstly, the procedural requirements of international treaties have been ignored; secondly, actual human rights abuses have seen a troubling increase.
The mechanisms of the ICCPR have been consistently circumvented since the beginning of COVID, and this damages the credibility of the international human rights law framework.
By May of 2020, when the pandemic was in full swing, only 14 states parties to the ICCPR had chosen to formally derogate from ICCPR articles,3Niall Coghlan, “Dissecting COVID-19 Derogations,” Verfassungsblog: On Matters Constitutional, May 5, 2020, https://verfassungsblog.de/dissecting-covid-19-derogations/. and by 2021 this number had only increased to 30 out of 173.4Laurence R. Helfer, “Rethinking Derogations from Human Rights Treaties,” SSRN Electronic Journal, 2020, https://doi.org/10.2139/ssrn.3691630 States individually triggered public emergencies without the oversight of international institutions, meaning that the measures taken were not subject to assessment and monitoring.
The lack of take-up of the derogation process is fundamentally damaging to the structure and credibility of human rights law. Its central function is to protect rights when they are most vulnerable; yet, during a collective emergency, the international community has decided that it will ignore the mechanisms of the most fundamental human rights treaties, plural.
Because if evidence from the ICCPR weren’t enough, only eight countries to date have derogated from the European Covention on Human Rights to justify COVID restrictions: Albania, Armenia, Estonia, Georgia, Latvia, North Macedonia, Republic of Moldova, Romania, San Marino, and Serbia.5“Council of Europe: Derogations, COVID-19,” Treaty Office, Council of Europe, accessed December 5, 2022, https://www.coe.int/en/web/conventions/derogations-covid-19. What does this say for the relevance of human rights covenants if its most vocal and influential signatories fail to adhere to minimum requirements, while smaller countries (with limited funding and dedicated apparata) find it within themselves to follow the law?
This is not necessarily to say that France, Germany, Italy, the UK, and others are only acting when they vocalise their support for human rights. But if you are going to perform, at least show some regard for the upkeep of the stage.
The reality check of a worldwide emergency also raises another question, which is out of the scope of this article but still crucial to consider: in a global emergency, compliant derogations could become unfeasible. With a full take-up of the process, the system would be overloaded if the UN had to review the submissions of 173 member states in an emergency of pressing concern, as well as to monitor compliance and possible abuses.
All and all, it is not a promising state of affairs.
Human Rights Abuses on the Increase
Take-up or not, the ICCPR has failed to achieve its central purpose: there has been a marked global increase of abuses of non-derogable human rights since 2020.
A recent study6K. Chad Clay et al., “The Effect of the COVID-19 Pandemic on Human Rights Practices: Findings from the Human Rights Measurement Initiative’s 2021 Practitioner Survey,” Journal of Human Rights 21, no. 3 (2022): pp. 317-333, https://doi.org/10.1080/14754835.2022.2082244. using data from the Human Rights Measurement Initiative found that while the greatest loss of rights under COVID predictably occurred in the social and economic sphere, 63% of surveyed human rights workers stated that the pandemic caused a decrease in respect of non-derogable physical integrity rights (torture, extrajudicial killings, political imprisonment, disappearances), with 42% reporting an increase of torture caused by measures introduced during the pandemic.
The study also calculated that countries with a greater probability of worse human rights practices under the pandemic increased 13% for forced disappearance, 17% for extrajudicial killings, and 20% for torture in 2020, despite the respect for human rights being on an upwards trend over preceding years.
To zero in further, another study7The Observatory for the Protection of Human Rights Defenders, “Human Rights Defenders and COVID-19: The Impact of the Pandemic on Human Rights Defenders and Their Work,” ReliefWeb, September 23, 2022, https://reliefweb.int/report/world/human-rights-defenders-and-covid-19-impact-pandemic-human-rights-defenders-and-their-work. found that there was a 67% increase in attacks against defenders in Mexico, while in Colombia 82 human rights defenders were reportedly killed from March to July 2020. In the Philippines, president Duterte’s long-standing assaults and murder of human rights workers intensified with his orders against Covid-19 lockdown ‘troublemakers’, where 9 human rights defenders were murdered.
In total, at least 331 human rights defenders were killed in 20208Kate Hodal, “At Least 331 Human Rights Defenders Were Murdered in 2020, Report Finds,” The Guardian (Guardian News and Media, February 11, 2021), https://www.theguardian.com/global-development/2021/feb/11/human-rights-defenders-murder-2020-report. and 358 in 2021.9Karen McVeigh, “More Rights Defenders Murdered in 2021, with 138 Activists Killed Just in Colombia,” The Guardian (Guardian News and Media, March 2, 2022), https://www.theguardian.com/global-development/2022/mar/02/more-human-rights-defenders-murdered-2021-environmental-indigenous-rights-activists. In 2019, 30410Nina Lakhani, “More Than 300 Human Rights Activists Were Killed in 2019, Report Reveals,” The Guardian (Guardian News and Media, January 14, 2020), https://www.theguardian.com/law/2020/jan/14/300-human-rights-activists-killed-2019-report. had been killed, meaning that there has been an almost 20% global increase in extrajudicial killings of human rights workers – especially environmental defenders – in the first two years of the pandemic.
And while these crimes occur overwhelmingly in countries with a history of human rights abuses, ominous signs are emerging about non-compliance with human rights treaties in ‘unexpected’ places.
On the 23rd of October 2022, the UN Subcommittee on Prevention of Torture (SPT) took the drastic step of cutting short its visit to Australia. The delegation was to conduct routine visits under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, to which Australia is party.
According to the delegation, the SPT was not provided with required information and documentation, it was prevented from inspecting detention centres and conducting full visits at other locations, and, “despite continued efforts to engage the authorities for the resolution of the problems, the SPT continued to be obstructed in the exercise of its mandate.” It felt that the visit “had been compromised to such an extent that they had no other option but to suspend it.”11“UN Torture Prevention Body Suspends Visit to Australia Citing Lack of Co-Operation,” UN Office of the High Commissioner for Human Rights (OHCHR), October 23, 2022, https://www.ohchr.org/en/press-releases/2022/10/un-torture-prevention-body-suspends-visit-australia-citing-lack-co-operation.
While this does not strictly imply that torture or degrading treatment was occurring at these locations, it does mean at the very least that Australia did not comply with procedural oblgations under international human rights law. It also makes one wonder what is happening at these sites that the OPCAT delegation had to be shielded from.
What this means for the future of international human rights law is unclear, but it is evident that the safeguards of covenants have failed, both at the procedural level as well as in practice.
No one should dispute the necessity of suspending certain rights during the pandemic to contain infection: it is the duty of the state to protect the lives of its citizens as well as the broader international community.
The problem is that sidestepping treaty procedures and avoiding international monitoring creates a lax environment which can have long-term negative impacts on the human rights architecture, damaging its credibility and hindering its ability to deal with future crises. This is especially concerning in what is now a heightened security atmosphere where we are seeing a concurrent, global increase in serious human rights abuses, including extrajudicial killings and torture.
These processes interact with each other, compounding their effects, and precedents set under public emergencies can entrench themselves. Unless scrutiny by international institutions is increased, we may look back at the COVID era as another turning point in the decline of international institutions and the escalation of human rights violations.
*Conclusion has been edited for clarity