IACHR Decision in Vélez Loor v. Panama: COVID-19 and Human Rights in the Courts

[Nicolás Carrillo-Santarelli is a Colombian lawyer, PhD on international law and international relations. He works as a researcher and lecturer of Public International Law at the Autónoma de Madrid University.] 

The Inter-American Court of Human Rights (hereinafter, also the Court) adopted an important decision in the context of the COVID-19 pandemic the 26^th of May -which has the potential to have an impact beyond the specific situation analyzed by the Court in relation to detention centers in Panama, considering how the problems examined by the Court also exist elsewhere. This potential regional -or even beyond the Americas- impact can take place by virtue of the replication or consideration of the interpretation provided by the Court in relation to analogous rights.

But even more strongly in the jurisdictions subject to the Inter-American system of human rights, this may be caused by the internalization of the Court’s own doctrine of the control of conventionality, according to which the organs and agents of States that have accepted the competence of the Inter-American Court of Human Rights are required to take into account not only the Inter-American Convention on Human Rights, but also how it has been interpreted by the Court itself when discharging their duties and operating. To varying degrees, this doctrine has been followed by authorities in the region. One such recent example is that of the Constitutional Court of Colombia, which recently took note of the Inter-American Court’s case law when deciding a politically sensitive case on the right to appeal of a convicted former minister -Andrés Felipe Arias-, who had not had recourse to appeal after his conviction by the Colombian Supreme Court. In relation to this, the Constitutional Court indicated in press release No. 64 of 2002 that its decision aligned itself with what the Inter-American Court of Human Rights set forth in its judgment in the case of Liakat Ali Alibux, in which the defendant State was a different one: Suriname.

The decision of the Inter-American Court that I intend to briefly examine in this post is a resolution adopted by it in the exercise of its competence to issue urgent measures, as enshrined in article 27 of its Rules -the implementation of such measures, it must be said, can be supervised by the Court itself. In the ordered measures, adopted in connection with the supervision of the implementation of the Inter-American Court’s judgment in the case Vélez Loor vs. Panama, the Court indicated to said that it must protect the right to health, among other human rights such as the right to life and to personal integrity, of individuals found in migrant detention centers. In order to do this, the resolution points out that Panama must give access to essential health services to all persons found in the ‘La Peñita’ and ‘Laja Blanca’ centers, and that the early detection and treatment of COVID-19 are to be included among those services.

The Court adopted its decision taking into account risk factors raised by the representatives of the individual declared as victim by the Court in its decision on the merits. Among those factors, the following were mentioned and found: the length of detentions -the closures of borders and movement restrictions had an impact on their extension-; crowded conditions in the centers (para. 7); or the lack of primary health services and measures in relation to contagion cases (idem). The president of the Court argued that the request did refer to circumstances which made the adoption of hygiene and social distancing measures required to prevent the spread of COVID-19 among the detainees more difficult; and also noticed that lack of adequate health services for those thus exposed. It is important to consider that these circumstances are sadly replicated elsewhere, and that migrants are among those with vulnerability and at increased risk during these troubled times.

Furthermore, the decision found that the request did indeed refer to circumstances of extreme seriousness and that those in need of protection measures were identifiable – it must be pointed out that there are beneficiaries of the urgent measures different from the person declared as victim in the merits, and that I consider this to be in conformity with what the rules of the Court permit the request of urgent measures to be filed if they are “related to the subject matter of the case”.

Indeed, there is a connection between the situation that motivated the request, the order the Court ended up issuing, and the facts of the original case. According to the president of the Court, such a connection exists insofar as the request is related to a reparation ordered by the Court in its judgment, on the conditions that had to be satisfied by detention centers (paras. 13 and 15 of the decision on urgent measures). This possibility of ordering measures provided that a connection exists, moreover, has the added benefit of providing procedural economy, which can prove to be crucial when there are imminent and serious risks in relation to the enjoyment and exercise of human rights. Furthermore, there is greater weight than that of the precautionary measures of the Inter-American Commission on Human Rights -the work of which is nonetheless crucial, as confirmed by recent pronouncements of it, such as the condemnation of the murder of George Floyd, its -excellent, I must say- report on business and human rights, or its merits report on the finding of violations perpetrated against a Guantánamo detainee.

On the other hand, in relation to the factors of risk of contagion, it was mentioned that one of the centers exceeded seven times the number of individuals who should be inside; and that the State’s explanations failed to justify or demonstrate the observance of WHO standards. Accordingly, the decision concluded that the requirement of the finding of an irreparable harm, required in order to adopt urgent measures as those that were requested, was satisfied.

This is therefore an important decision that, if implemented -as the State is required to-, can have an impact on the protection of rights of individuals -sadly, the rights of migrants and others are often neglected, and it is important that supervisory bodies remind States of their obligations towards them. Indeed, these sorts of decisions highlight the fact that State measures adopted in relation to crisis situations such as the current pandemic -or those in relation to counter-terrorism measures, as the Inter-American Commission indicated in a past thematic report– do not vanish because of the existence of said crises. Quite the contrary, State responses called for in order to protect human rights must be compatible with obligations, and any restrictions, derogations or declarations of states of emergency must be in conformity with legality -the Human Rights Committee, for example, adopted a statement regarding that any such measures must be meet the conditions set forth in applicable instruments, such as necessity, proportionality and non-discrimination. After all, sovereignty does not allow States to do anything they please, but conversely must be understood as requiring them to make decisions in ways that respect their commitments and duties.

It is precisely because of this that the monitoring of State conduct by international supervisory bodies is so important. In a multi-level framework, they can help to counter populist or other tendencies and demand that the rights of minorities and others are respected. International bodies have already pointed out that the monitoring of State measures and responses in the COVID-19 context are crucial. The United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, and the Special Rapporteur on the human rights of migrants, for example, declared that it is vital that States facilitate “human rights monitoring and data collection […] by international organizations” and other actors.

On the other hand, and as I mentioned above, another important aspect of the Inter-American Court’s decision is the reminder that discrimination is prohibited -as a matter of peremptory law, none the less, as the Court itself indicated in previous pronouncements, such as advisory opinions OC-18/03 and OC-24/17. This is something that the Court raised in a prior declaration it adopted this year on April the 9^th, entitled “COVID-19 and Human Rights: The Problems and Challenges Must Be Addressed from a Human Rights Perspective and with Respect for International Obligations”. In it, the Court indicated, among others, that:

“Given the nature of the pandemic, the economic, social, cultural and environmental rights must be guaranteed, without discrimination, to every person subject to the State’s jurisdiction and, especially, to those groups that are disproportionately affected because they are in a more vulnerable situation […] It is also pertinent to alert the competent organs or agencies to combat xenophobia, racism and any other form of discrimination, so that they take special care to ensure that, during the pandemic, no one encourages flare-ups of this nature with fake news or incitements to violence”.

Regrettably, in the context of the pandemic bodies as the Inter-American Commission on Human Rights have identified, for instance, cases of xenophobia against Venezuelans, and told States that they must protect persons from them. The bottom line of the decision, thus, can be summarized as considering it a very welcome and necessary instance of an international body monitoring State actions -or rather, in this case, failures to act-, thus stressing the indispensability of such monitoring; the importance of having independent bodies that protect minorities and those in situations of vulnerability; and the fact that States must make sure that concrete risk factors such as crowded conditions or lack of the availability of adequate health services, provided without discrimination, are eliminated. This is something that has been mentioned by other bodies. A joint statement on COVID-19 in prisons and other closed settings issued by the UNODC, the WHO, UNAIDS and the OHCHR, for example, indicated the need of reducing overcrowding.