key: cord-0995374-1dnmq8a8
authors: Lebret, Audrey
title: COVID-19 pandemic and derogation to human rights
date: 2020-05-04
journal: J Law Biosci
DOI: 10.1093/jlb/lsaa015
sha: 41fc2a951286a86458397e68716370eb2bfb0126
doc_id: 995374
cord_uid: 1dnmq8a8

Under international human rights law, States can limit the exercise of most human rights if it is necessary to protect the rights of others or collective interests. The exceptional circumstances brought by the COVID-19 global pandemic lead to more extensive, on both their scope and their duration, restrictions of human rights than in usual times. This article introduces the States' specific right to derogate to human rights in circumstances of public emergency and the conditions of a legitimate derogation in the context of COVID-19. It argues that States must ensure that the general measures they adopt to face the crisis do not disproportionally harm vulnerable people.

The world is currently facing one of its most severe public health crisis. At the time of this paper, there are more than 3 million confirmed cases of COVID-19 worldwide, 1 those numbers being far below the reality of the spreading since in various countries, only symptomatic persons are actually tested.

In Europe, the European Commission took the initiative to support short-time work, and announced an investment of 37 billion euros to help small companies and the healthcare sector. 2 However, voices have been critical of the lack of action of the European Union (EU), and denounced the lack of European solidarity. It is worth recalling, nonetheless, that the member states did not confer a competence to the EU in public health. The EU has only a supporting competence in the field, which excludes the adoption of laws. According to the Treaty on the functioning of the EU, it can only "support, coordinate or supplement the actions of the Member States", 3 in order to achieve common objectives. Therefore, in pandemics such as Covid-19, States remain the first authorities to take administrative and financial measures, and the EU can complement such policies.

This leads to a disparity of national strategies. Italy or France imposed a strict confinement in order to limit the spreading of the virus, going until curfews in a few municipalities. Denmark, with its smaller population and lower rate of confirmed cases, was able to adopt a softer version of confinement and social distancing after an early closing of the borders. None of those countries currently realizes massive testing like in Germany though, which fatality rate is lower than the other European states. 4

Lack of masks and equipment continue to be a challenge and generate discourses on state sovereignty and practices of national priority despite collaborative initiatives. There will be a time to discuss the teachings of this crisis, and to enhance a social Europe alongside the common market. Before that, this time of emergency also questions the protection of fundamental rights.

The 27 EU member states are also members, together with 20 other European states, of the Council of Europe, a regional organization based on the European Convention of Human Rights (ECHR). The European Court of Human Rights qualified this founding text as an "instrument of European public order". 5 The Convention contains a list of rights, most of which can be limited for valid purposes including public health. Providing that they are "necessary in a democratic society", those limitations are acceptable in normal times. 6 However, the Covid-19 crisis is not normal times. In the rhetoric of French President Emmanuel Macron, "we are at war". 7 In those particular circumstances, the Convention holds a specific provision authorizing to derogate unilaterally to conventional rights. Article 15, entitled "derogation in time of emergency", permits states "in time of war or other public In normal times, the exercise of fundamental rights can conflict with each other, or with collective interests. States are entitled to balance such interests and limit some of those rights if necessary. In exceptional circumstances, more severe restrictions and derogations can be admitted. In the following sections, we discuss the applicability of the derogatory regime to human rights in the context of Covid-19, before analyzing the conditions of application of valid derogatory measures. In particular, we insist on the need to protect vulnerable people, by taking some specific measures and/or by refraining to adopt too invasive measures.

According to the ECHR, derogation can apply "in times of war or other public emergency threatening the life of the nation". More recent legal instruments usually do not refer to "war" but contain similar reference to public emergency. The ICCPR refers to a "time of public emergency which threatens the life of the nation…", 29 while the ACHR mentions a "time of war, public danger, or other emergency that threatens the independence or security of a State Part". 30

In his early speeches, the French President Macron recurrently used the metaphor of war, which had also been used by former Presidents Sarkozy and Hollande in connection with the terrorist attacks in order to justify, at the time, the state of emergency. Linguists and communication experts diverge on such rhetoric: while the war rhetoric is not unusual in the medical area ("fighting cancer"…) and makes clear about the severity of a situation, it also allows to gather the Nation together towards the same objective, and to oust opponents by likening them to traitors. The metaphor might well serve as a political justification for the serious human rights limitations the President was about to announce. From the perspective of international law, however, it does not waive the State of its obligations. Like the ECHR, adopted in 1945, the Geneva Conventions of 1949 refer to "war or of any other armed conflict." The word "war" fell into desuetude 31 and it is now referred to conflict between armed forces. 32 

resort to armed force between States". 33 From the above definition, it appears clearly that international law precludes the characterization of the ongoing crisis as a "war".

On another hand, the European Court of Human Rights defined "other public emergency threatening the life of the nation" as "an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed". 34 On the basis of the French version, the Court found that the emergency must be "actual or imminent". 35 The criterion of the imminent nature of the emergency is of crucial importance in context of pandemics, since it allows the States to anticipate and take early restrictive measures and derogations in order to avoid more severe derogations later. There is no doubt that Covid-19 crisis fits with those criteria, with an actual and imminent threat (depending of the country) to all individuals" right to health and right to life.

However, states usually have some discretion concerning the characterization of public emergency as they are best placed to assess the risks. 36 The international judge"s scrutiny applies more strictly to the necessity of the particular derogatory measures.

The international legal order is structured around the principle of state sovereignty, i.e. on the independence of States. Internally, state authorities have "the monopoly on the legitimate use of physical force." 37 The state powers, nonetheless, are not without limits. International Human rights conventions impose conditions under which a derogation to human rights can be justified.

Beyond the requirement of notification, 38 the implementation of derogatory measures needs to meet certain substantive criteria. First, States cannot derogate to non-derogeable rights, among which the right to life, 39 prohibition of torture and ill-treatments, 40 prohibition of slavery 41 and no punishment without law. 42 Apart from those rights, which are the only ones enumerated by the ECHR, 43 the inclusion of other rights in the list of non-derogeable rights differ from an international instrument to another. Since the ICCPR"s list is broader for instance, a contracting state of both the ECHR and the

ICCPR will not be able to use article 15 ECHR to derogate to a right only characterized as nonderogeable in the ICCPR. 44 Interestingly, the Arab Charter integrates in this category some rights directly threatened by the Covid-19 crisis: the right to liberty and security, 45 freedom to leave one"s country, 46 or the right to seek political asylum. 47 The Human Rights Committee explains this characterization of certain rights as non-derogeable because "their suspension is irrelevant to the legitimate control of the state of national emergency," but also because "derogation may indeed be impossible" for certain rights like freedom of conscience. 48 Besides, a few rights are peremptory norms of general international law or jus cogens, which according to the Vienna Convention on the Laws of Treaties excludes any derogation. 49 Second, and concerning other rights, article 15 of the ECHR states that derogating measures must be "strictly required by the exigencies of the situation" and "not inconsistent with its other obligations under international law". In addition, measures cannot discriminate between national and nonnationals. 50 The strict necessity implies to demonstrate a close link between the situation and the measures, and that less invasive measures would have been inefficient. Despite the specificity of emergency situations, the Human Rights Committee stated in its general observation no 29 on article 4 of the ICCPR that the principle of proportionality was indeed "common to derogation and limitation powers". 51

In order to prevent the spreading of Covid-19, States usually started by imposing self-confinement. This restriction of the right to liberty and security actually finds an explicit support in the ECHR, which article 5 §1 (e) authorizes "the lawful detention of persons for the prevention of the spreading of infectious diseases […]", providing that this is made in "accordance with a procedure prescribed by law". 52 Because of the scale of this pandemic, the general nature and duration of the restrictive measures might only be justifiable under the derogatory regime.

Considering the hospitals" lack of essential resources, starting by ventilators and masks for medical staff, the measures of confinement appear as a necessary mean to limit the spreading of the virus. 53 Depending on different factors in a given country, the imposition of fines for persons not respecting social distancing or curfews might also be considered as strictly required if really dissuasive. Yet, the extent of the confinement in Italy, Spain or France (which started between the 9 th and 17 th of March and are not scheduled to end before May) is unprecedented and the risk is that this state of emergency, together with serious restrictions to human rights, becomes the norm. 44 

In a resolution of 10 April addressing Covid-19, the Inter-American Commission warned the States on the risk of excessive measures: "Even in the most extreme and exceptional cases in which suspension of certain rights may become necessary, international law lays down a series of requirements such as legality, necessity, proportionality and timeliness, which are designed to prevent measures such a state of emergency from being used illegally or in an abusive or disproportionate way, causing human rights violations or harm to the democratic system of government". 54

The intrinsic link between the measures and the fight against the pandemic will call for a reduction of invasive measures with the progressive improvement of the situation. 55 The principle of proportionality requires a continuous evaluation of the strict necessity of derogatory measures. This is what States do when they reassess on a regular basis the need to postpone their measures. If the European Court of Human Rights does not require a strict temporary nature of the adopted measures, admitting that they could last "many years", 56 the General comment no 29 of the ICCPR considers that duration, together with geographical coverage and material scope must be strictly required by the exceptional situation. 57 In its recent statement on Covid-19, the Human Rights committee reiterated the "temporary basis" of States exceptional emergency powers. 58 It is critical that parliaments and national judges are in capacity to scrutinize the necessity and proportionality of governmental measures.

In order to evaluate the strict necessity, the Inter-American Commission recommends in particular to the OAS Member States that "all restrictions or suspensions are based on the best scientific evidence". 59 However, there is a lot of uncertainty concerning the transmission of the coronavirus, its effects and complications. States also learn from other countries" experiences. 

The second substantive criteria for a valid derogation, the absence of incompatibility of a State"s measures with "its other obligations under international law", refers mainly to international humanitarian law, of conventional and customary source, and some conventions of the World Trade Organization. 62 It can also refer to dissimilar international obligations pursuant to different derogatory clauses. When applicants to the European Court of Human Rights relied on Article 4 of the ICCPR to argue that derogatory measures were excessive, the Court did not find an incompatibility with this other international obligation. 63 If the actions or inactions decided by legislators and governments in the Covid-19 context affect everyone, they can particularly harm vulnerable persons like homeless people, disabled and isolated persons, detainees or migrants etc. The context of emergency calls for vigilance concerning the effectiveness of their rights.

State obligations under international human rights law are predominantly divided between obligations to respect, to protect and to fulfil human rights. This categorization is still compatible with the distinction, for all rights, between positive obligations and negative obligations. As the European Court of Human Rights stated, the Convention is "intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective". 64 Therefore, States must also prevent violations of human rights by private actors (horizontal effect), which is particularly relevant in the context of confinement in private structures.

In a situation of public health emergency like in normal times, human rights compliance might require the adoption of specific measures that make the basic rights of vulnerable people as effective as the rest of the population. The disregard of those particular needs in the context of article 15 might raise issues of proportionality. 65 In its resolution of 10 April 2019, the Inter-American Commission of Human Rights requires States to take into account "the particular effects [their restrictions or suspensions of rights] may have on the most vulnerable groups, in order to ensure that the impact is not disproportionate, and take such affirmative measures as may be necessary. Any decision or measure taken in this context must take gender, intersectional, linguistic and intercultural perspectives particularly into account". 66 Alarming situations are numerous. In the following sections, we focus on the respective situations of women, detainees and elderly people, as they are emblematic of vulnerability in time of crisis. Vulnerability is a social construct that should guide the State to ensure

equality between people. 67 In our view, this requires in some cases to adapt the general measures to their specific situation, but also to ensure that specific restrictions are indeed strictly needed.

The case of detainees and women in confinement A first risk of imposing self-confinement is the increase of domestic violence. Several countries reported a rise of around 30% of domestic violence since the beginning of the crisis. 68 Confinement leads to social isolation and higher risks of aggressiveness especially when people are locked in small apartments. While domestic violence concerns both men and women, it particularly affects women and their children and the WHO characterizes it as a major public health problem. According to the UN Committee on the elimination of discrimination against women, the prohibition of gender-based violence has become a "principle of customary international law", 69 and States need "to act to protect women against violence of any kind occurring within the family, at the workplace or in any other area of social life". 70 This obligation applies to prevent gender-based violence by private actors. 71 In order to ensure that derogatory measures do not to disproportionally affect women, Marlène Schiappa, the French secretary of State on Equality between Women and Men, implemented early several measures of protection, including pop-up counseling centers at supermarkets, but also an alert system in pharmacies. 72 The system is currently applied and is apparently of help for some women. 73 However, it is unlikely to be sufficient. Since the beginning of the confinement, associations in France reported that they received less calls than in usual times. Victims of domestic violence usually call when they are outside the home. If associations invite women to run away in such circumstances, the issue remains about where to go, shelters being saturated, and how to ensure a follow-up. 74 

liberty." 76 In its statement on Covid-19, the Human Rights Committee also insisted on States" duty "to treat all persons, including persons deprived of their liberty, with humanity and respect for their human dignity, and they must pay special attention to the adequacy of health conditions and health services in places of incarceration". 77 While pointing out the necessity of confinement and social distancing in the sanitary crisis we are facing, the French Défenseur des droits reminded the need to be particularly vigilant to the situation of detainees whose vulnerability is increased in such circumstances. 78 Social distancing is not applicable, going out of the cell is limited, visits of relatives are not permitted, access to education and other activities is impossible. 79 Many rights are at stake, including a serious threat on health if one co-detainee gets infected by the virus. A possible way to prevent serious violations of human rights of detainees would be to limit the cases of detention and offer alternative sanctions when possible. States took initiatives in that sense. 80 However, it is to be feared that governments overlook this issue. On 26 March 2020, a French government order extended the maximum duration of pre-trial detention, which the Minister of Justice has interpreted as implying an automatic prolongation of all detentions. 81 This raises clear issues of proportionality, especially because international Courts addressed the structural issue of prison overcrowding, to which pre-trial detention contributes, and found that it could constitute an inhuman and degrading treatment. 82 As a non-derogeable right, such treatments would be in violation of human rights law without any scrutiny on proportionality.

The American and European Courts of Human Rights dealt with the protection of health in detention. 83 In particular, an analogy can be made with the European case Cătălin Eugen Micu v. Romania concerning the spread of transmissible diseases. 84 In that case, the applicant alleged he had caught hepatitis C while in prison and that the authorities had failed to provide appropriate medical treatment. The Court found no violation of article 3 prohibiting ill-treatments because it was impossible to determine if the applicant"s disease was the result of the prison authorities" inactions. However, the Court indicated something instructive for future cases, stating that "the spread of 

General measures of confinement aim to avoid the overcrowding of hospitals and help to manage limited resources. In particular, it intends to protect elderly people who are the most vulnerable to the pandemics. On April 13, Emmanuel Macron announced the progressive lift of restrictions from May 11, but initially said that older people would have to stay confined. He later clarified that no discriminatory measure would be adopted, rather calling to individual responsibility. 93 Beyond the confusion in the French authorities" communication, this shows that the rhetoric of vulnerability, together with the rhetoric of war, has been intensively used in order to provide political justifications to more restrictions. 94 Some authors have denounced this instrumentalization of the concept to deny the elderly"s capacity to make choices, and promote a "public order of individual protection". 95 However, protection of vulnerable people is not only an issue of autonomy. Unlike the European cases in which the European Court protected the applicants" autonomy to inflict oneself pain or to refuse life-saving treatment as part of private life, 96 the elderly cannot only be infected by Covid-19, but can also infect other people, among which, other vulnerable people. This is more about the protection of the right to health 97 of the most fragile than about resilience. Paradoxically, in this context, the vulnerability of old people is even increased by the fact that the lack of resources leads hospitals to make choices on the basis of better chances of survival and younger patients are getting priority to access ventilators. 98 In this context, the war rhetoric might finally well characterize the management of emergency and scare resources. 99 This reality, which forces medical staff to act in

contradiction with the prohibition of non-discrimination in healthcare, 100 and opposes the principle of special protection of the most vulnerable, need to be compensated by preventive measures. In countries where ventilators, masks are dramatically missing, extra-confinement might be the less restrictive means. Nevertheless, the need to such special restrictions need to be assessed regarding the aim to effectively fight the pandemics and taking into account the physical and psychological impacts of confinement. Such special restrictions would become unconventional if they lasted more than strictly needed to alleviate hospitals.

Another example of specific restrictions concerns women"s reproductive rights. Women"s access to contraceptives, but also to legal abortions are threatened. As the crisis urges the reorganization of hospitals to deal with the pandemics, it becomes necessary to delay the timing of abortion. However, gender-neutral emergency regulations do not integrate this need 101 or even take advantage of the crisis to remove rights. Poland, for instance, takes advantage of the lockdown to discuss a ban of abortion in case of fetal abnormality. 102 In the United States, a Federal appeals Court upheld a Texas order to resume abortion ban, and the governor of the state of Indiana called abortion clinics "to cancel or postpone elective and non-invasive procedures". 103 If the protection of health falls within the scope of private life (article 8), the European Court of Human Rights is usually reluctant in interfering in States" management of scare resources in healthcare. In Pentiacova and others v. Moldova for instance, in which patients complained about not having free access to dialysis, the Court noted "that the applicants" claim amounts to a call on public funds which, in view of the scarce resources, would have to be diverted from other worthy needs funded by the taxpayer.

[blank] While it is clearly desirable that everyone should have access to a full range of medical treatment, including life-saving medical procedures and drugs, the lack of resources means that there are, unfortunately, in the Contracting States many individuals who do not enjoy them, especially in cases of permanent and expensive treatment." This pragmatic approach would certainly apply to women"s access to reproductive services in time of emergency, justifying some adjustments. However, a public health crisis cannot be used as a pretext to legitimate unnecessary derogations to women"s rights. 104 The European Court of Human case law is more modest than the Inter-American Court of Human Rights and the Human Rights Committee on the gender approach to reproductive rights. 105 Nonetheless, the Court"s position is clear: if States are free to recognize a right to abortion outside a particular threat on the life or health of the pregnant woman, they have the obligation to ensure the effectiveness of this right as soon as it is protected by domestic law. 106 When the woman"s health is threatened, the Court" protection is even stronger. Therefore, specific measures infringing women"s

reproductive rights such as making abortion impossible would likely be considered too invasive and not strictly required to manage scare medical resources.

Human Rights Courts will certainly be overwhelmed by applications in the aftermaths of the Covid-19 crisis. There are few doubts that this health crisis is an emergency threatening the life of the Nation. If States have some discretion to determine the emergency, international human rights Courts will scrutinize the necessity of the measures adopted to face it by applying the principle of proportionality. States must pay particular attention to vulnerable populations in order to ensure they are not disproportionally affected. In their scrutiny, international courts would rely on different indicia to determine if, at the time they were adopted, less severe measures could have achieve the same results. The duration of those measures will be considered. In this regard, we already observe some loosening of self-confinement after a few weeks, which might call for the adoption of other proportionate but more adapted measures. In certain cases, applicants might claim a violation of the prohibition of torture, inhuman and degrading treatment, which applies in particular in the context of detention. International human rights conventions converge to characterize this right as nonderogeable, which should presumably lead to the responsibility of the State. 107 Beyond the current management of this emergency, this crisis shows the fragility of health systems, urging governments to review their strategies and to (re)invest massively in the healthcare sector.

Deemed to be the authentic one in the

§ 28; concerning the ICCPR see Human Rights

Politics as a Vocation

Article 4(1) ICCPR requires an official recognition of the emergency in the country that intends to use derogation

Article 3 ECHR, article 7 ICCPR (including prohibition of scientific experimentations without free consent

Article 4 ECHR (slavery and forced labor), article 8 ICCPR (slavery, servitude, but not including forced labor), Article 6 ACHR (slavery and forced labor), Article 10 Arab Charter (slavery and forced labor)

Additional protocols to the ECHR contains clauses prohibiting derogation to the abolition of death penalty (see Protocols 6 and 13), the principle ne bis in idem

In relation to the Geneva Conventions see Marshall v. the UK (dec)

The United States further understands the prohibition in paragraph 1 of article 4 upon discrimination, in time of public emergency, based `solely' on the status of race, colour, sex, language, religion or social origin, not to bar distinctions that may have a disproportionate effect upon persons of a particular status

See also Lourdes Peroni and Alexandra Timmer, Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law

COVID-19 and Ending Violence Against Women and Girls

General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19

See for an example Violentée, elle donne l'alerte en pharmacie

Macron moves to calm fears of 'age discrimination' in easing lockdown (RFI

une prolongation du confinement spécifique aux personnes âgées : que sommes-nous prêts à sacrifier ?

Unlike a situation of pandemics, refusing a transfusion does not affect other individuals. On autonomy and the right to inflict oneself pain see KA and AD v. Belgium (2005), where the Court only found a violation of the convention (article 8) because the victim had withdrawn her consent, and not because of public values. Again, autonomy in those cases did not conflict collective interests. On another hand, see the "right to try" cases, in which the Court found that the States did not exceed their margin of appreciation by prohibiting access to experimental treatments to dying patients (Durisotto v

With regard to the realization of the right to health of older persons, the Committee […] reaffirms the importance of an integrated approach, combining elements of preventive, curative and rehabilitative health treatment. Such measures should be based on periodical check-ups for both sexes; physical as well as psychological rehabilitative measures aimed at maintaining the functionality and autonomy of older persons; and attention and care for chronically and terminally ill persons, sparing them avoidable pain and enabling them to die with dignity

Faced with tough choices, Italy is prioritizing young Covid-19 patients over the elderly. That likely 'would not fly' in the US

Ils ne mourraient pas tous, mais tous étaient frappés" Le Coronavirus, révélateur des ambiguïtés de l"appréhension juridique de la vulnérabilité

12 International Covenant on Economic, social and cultural rights (ICESCR)

Stéphanie Hennette-Vauchez, L'urgence (pas) pour tou(te)

Poland debates abortion bill amid coronavirus lockdown (CNN

Indiana governor calls on abortion clinics to cancel or postpone 'elective' procedures in COVID-19 pandemic response

Federal Appeals Court lets Texas Resume Abortion Ban (Slate

See for instance IACtHR, Artavia Murillo and others v. Costa Rica. For the Human Rights Committee, see Jane Mellet v

For health reasons see R.R. v. Poland (2011) and Tysiąc v