25 Sep Judicial Dialogue between the Three Human Rights Courts on the Impact of COVID-19 on Human Rights: Extracting the Essentials
[Tetevi Davi is a regional correspondent at Oxford Human Rights Hub and future pupil barrister in London. He is currently advising individuals and organisations bringing human rights and other claims before various judicial and quasi-judicial bodies, is involved in transitional justice processes and is a public international law rapporteur for Oxford International Organizations.]
On 9 July 2020, the African Court on Human and Peoples’ Rights (AfCHPR), European Court of Human Rights (ECtHR) and Inter-American Court of Human Rights (IACtHR) held an online judicial dialogue to discuss the impact of COVID-19 on human rights within their respective regions. This dialogue forms part of ongoing commitments by these courts, affirmed through their signing of the San José and Kampala Declarations, to increase the sharing of information and best-practices between each other. The discussion was timely, given the continuation of the virus’ devastating rampage through the Americas and its repeated surge in several European nations. Whilst the African Continent has not seen comparable mortality or infection rates to Europe or the Americas, the effects of the pandemic remain a concern. This article aims to summarise and provide comment on some of the most salient aspects of this dialogue.
Economic, social and cultural rights under threat
All judges stressed the acute impact of the pandemic on economic, social and cultural rights. Unsurprisingly, the right to health featured most prominently during the dialogue, with judges calling for more robust protection of this right at present. Judges from the IACtHR noted that poor quality healthcare and infrastructure, in addition to stark inequalities in the provision of services, meant that the right to health was under serious threat in the region. They reaffirmed states’ obligations to progressively realise this right, citing the cases of Poblete Vilches and others v. Chile (summary) and Cuscul Piraval et al v. Guatemala in which the IACtHR determined that an autonomous, enforceable right to health was inherent in Article 26 of the American Convention on Human Rights (ACHR). They also reiterated, as established in these cases, the minimum requirements of availability, accessibility, acceptability and quality that healthcare services must satisfy. In connection with the right to health, judges remarked that the rights to food and water were at risk due to persisting shortages in the region, which have been exacerbated by the pandemic. They underscored that these have also been recognised as autonomous, enforceable rights in the recent landmark ruling of Indigenous Communities Members of the Lhaka Honhat Association v. Argentina (summary) and called for them to be guaranteed by states.
Article 16 of the African Charter on Human and Peoples’ Rights (Banjul Charter) explicitly protects the right to health, and judges from the African Court urged states to do more to safeguard this right during the pandemic. Specifically, they noted the need to combat the marketing of unsafe drugs as COVID-19 remedies, as well as the need to address healthcare inequality in the region. ECtHR judges called on states to fulfil their obligations to protect life and health under Article 2 of the European Convention on Human Rights (ECHR), which includes ensuring that healthcare systems are sufficiently well-resourced. They further stressed the need for a healthy environment and for more stable employment opportunities for the younger generation at this time.
Pandemic as a pretext for human rights abuses
Echoing recently expressed concerns by the OHCHR, judges from the ECtHR stressed the risk of the pandemic being used as a pretext for the abuse of public power. They criticised the adoption of emergency measures, which although ostensibly aimed at tackling the pandemic, have in some cases been used to erode fundamental rights (see, e.g., laws passed in Hungary, Azerbaijan and the UK). Linked to this topic, the judges also touched on derogations from the Convention under Article 15 ECHR (recently discussed on this blog here, on EJIL: Talk! here and OxHRH here). Whilst acknowledging that the majority of the derogations notified to the Council of Europe have now been withdrawn, the judges nevertheless expressed concerns over their usage. They remarked that ECHR derogations should not become commonplace and reaffirmed that they do not provide states with carte blanche to adopt any measures they wish in response to the pandemic.
The ECtHR judges set down four general principles to be followed by states adopting measures in response to the pandemic:
1) Measures passed in the public interest must comply with the principle of proportionality.
2) The principle of legality should be respected. Vague and overly broad measures are prohibited.
3) Rules restricting rights must not afford too much discretion to the Executive.
4) Emergency laws or declarations must be strictly tailored to meet the exigencies of the situation.
Judges from the AfCHPR also discussed restrictions and abuses of fundamental rights during the pandemic. They drew particular attention to reports of heavy-handed policing and the impacts of lockdown measures on the right to vote. The judges clarified that, unlike the ECHR (Art. 15) and ACHR (Art. 27), the Banjul Charter precludes derogations in times of crises. It was stressed that the only legitimate reasons for limiting Charter rights are found under Article 27(2) Banjul Charter, which requires that they “be exercised with due regard to the rights of others, collective security, morality and common interest”. In addition to this general limitation clause, the African Court held in the case of Mtikila and others v Tanzania that all restrictions on Banjul Charter rights must be necessary and proportionate. Judges also referenced the case of Lohé Issa Konaté v. Burkina Faso, in which it was held that any restrictions must serve a legitimate purpose. Thus, it can be seen that the AfCHPR and ECtHR have almost identical frameworks for assessing the legality of any emergency measures. Whilst the IACtHR did not touch on this subject in comparable detail, the Court has adopted a statement in response to the pandemic, which shows that it applies a similar assessment to such measures.
Vulnerable groups in need of greater protection
All judges noted that the pandemic had greatly exacerbated the plight of vulnerable and marginalised groups within their regions. Judges from the IACtHR spoke of the substantial impact of the pandemic on women, specifically referencing surges in domestic violence as a result of confinement measures. Additionally, they drew attention to the disproportionate effects of the pandemic on historically marginalised groups, such as indigenous communities and people of African descent. They also noted the heightened risks prisoners face during the pandemic and referenced urgent measures that the Court had adopted to protect migrants’ rights to life and health. Furthermore, states were called upon to afford greater protection to other vulnerable groups such as the elderly, those from LGBTQ communities and those living in poverty.
Judges from the AfCHPR called for more protections for workers as well as those being held in detention. They referenced a number of applications received from prisoners requesting that the Court expedite their applications to protect their rights to life and health, which are at risk due to poor prison conditions in the region. The condition of prisons in Africa was addressed in a recent press release by the African Commission’s Special Rapporteur on Prisons, who also called on states to do more to respect the rights of persons deprived of their liberty, including by reducing overcrowding and releasing low-risk offenders. The ECtHR judges noted that the Court had received a large number of applications from prisoners and refugees requesting interim measures under Rule 39 to protect their rights to life. They urged states to afford greater protection to these vulnerable groups during the pandemic.
It is clear that COVID-19 has had some direct impact on human rights within the three regions discussed. However, an analysis of this dialogue suggests that the greater impact on rights has been a result of the actions and omissions of states in their response to the pandemic. It has been highlighted that many states are failing in their obligations to guarantee certain economic, social and cultural rights, and they are also failing to protect the rights of especially vulnerable groups, such as women, minorities, and prisoners. This discussion has also drawn attention to the alarming issue of states using the pandemic as a Trojan horse to diminish fundamental rights.
Going forwards, it will be interesting to examine how the three Courts adjudicate complaints of human rights violations arising from state responses to the pandemic. The dialogue has emphasised their stringent frameworks for assessing the legality of state measures and derogations. However, it remains to be seen how these rules will be balanced against the wide margin of appreciation that states enjoy in situations of such serious emergency. Further discussions will be required to evaluate the human rights implications of procedural changes that the three courts have made in response to the pandemic, such as having recourse to virtual hearings. This topic featured only briefly during the dialogue, and it will need to be assessed whether such hearings, in addition to other procedural changes, advance or diminish human rights in the long-term.