How to Protect Human Rights in Times of Corona? Lessons from the Inter-American Human Rights System

The American Convention on Human Rights (ACHR) has weathered many storms in its fifty years of existence. However, the challenges which arise from the Corona pandemic are unprecedented, also for the Inter-American human rights system. With many of its political and economic systems already under strain, the pandemic will have severe consequences on the enjoyment of civic freedoms as well as economic and social rights in the whole region. In all likelihood, it will also disproportionately affect vulnerable groups, including the poor, migrants, women and children, as well as indigenous people.

As the crisis has exacerbated throughout last month, several states have already unilaterally derogated from their treaty obligations under the American Convention. While many analysis in recent days have highlighted how this decision affects the European human rights regime (see for instance here, here, here, here), this contribution offers a comparative perspective by focusing on the Inter-American human rights system. In this post, we will look at the law and practice of derogations in the Inter-American system and then highlight how the institutional organs have sprung into action.

The Legal Regulation of Suspension of Rights

Article 27 of the American Convention regulates the “suspension of guarantees” in the Inter-American system. Paragraph 1 defines the circumstances under which a state party might derogate from its obligations:

In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

In particular the inclusion of “public danger” and “emergency that threatens the independence or security of a State Party” as grounds for derogation allows state parties significantly more discretion than in the European system and raises the likelihood of a potentially abusive invocation. Yet, in contrast to its European counterpart, the American provision is more specific in the temporal application and includes explicit anti-discrimination prohibitions. Most crucially, Article 27, paragraph 2 lists an extensive number of rights which state parties cannot suspend under any circumstances:

The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.

In contrast to the ECHR and the ICCPR, the ACHR speaks of suspension, not derogation, from human rights and fundamental freedoms. Conceptually, according to Ferrer Mac-Gregor and Herrera Garcia, the American Convention uses at least four different terminologies for suspension: a) the suspension of guarantees, b) the suspension of contractual obligations, c) the suspension of rights, and d) the right to suspension. This terminological difference was already highlighted by the Inter-American Court of Human Rights (IACtHR) in its advisory opinion OC-8/87 on “Habeas Corpus in Emergency Situations” in 1987 when it held that states can never suspend the rights inherent to the human person, they can only limit their full and effective exercise.

The Court emphasized in particular the great risk posed by the state of emergency for democracy, arguing “that the suspension of guarantees cannot be disassociated from the “effective exercise of representative democracy” referred to in Article 3 of the OAS Charter” (para 20). Should Article 27 be used for undermining the democratic system, for instance in a coup d’état, “the suspension of guarantees lacks all legitimacy” (ibid). The exclusion of “judicial guarantees” from suspension in Article 27 (2) would thus implicitly require “the active involvement of an independent and impartial judicial body having the power to pass on the lawfulness of measures adopted in a state of emergency” (para. 30). The Court specified in the following advisory opinion OC-9/87 on “Judicial Guarantees in States of Emergency”, requested by Uruguay, that this also includes the right to habeas corpus (Art. 7(6)), amparo, and any other effective remedy before judges or competent tribunals (Art. 25(1)).

The guidance provided by the two advisory opinions thus provides necessary parameters for holding authorities accountable for the protections of rights and access to justice during and after a state of emergency. It will be seen whether a similar advisory opinion also arises out of the Corona crisis at the European Court.

The Practice of Suspension during the Corona Crisis

From March 17 to April 20, eleven states have notified their the suspension of guarantees to the OAS, including Argentina, Bolivia, Chile, Colombia, the Dominican Republic, Ecuador, Guatemala, Honduras, Panama, Peru, and El Salvador. Interestingly, while Ecuador, Panama, Chile and Peru based their suspension on a general state of emergency, Guatemala, Bolivia, Honduras, and Argentina declared a public health emergency. Colombia even announced a state of economic, social, and ecological emergency. Those more specific framings of emergency avoid the connection to war metaphors and link to the standards of the WHO.

Also, in contrast to the Council of Europe, several states have submitted multiple notifications, adding new legislation or extending measures in the course of the crisis. This more dialogical approach could provide further proof for Alan Greene’s argument that the notification of derogation showcases the commitment of states to human rights regimes and can even result in the taming of emergency powers by requiring states to articulate, justify, and limit their emergency measures.

In practice, however, we observe worrying developments in several states which could amount to an abuse of the state of emergency. Researchers have warned that police and military forces are being used to repress the population in the name of health and sanitary provisions. For instance, in Honduras, the emergency decree provides that any individual who violates the restrictions on movement shall be arrested, while in Bolivia, the authorities authorized the use of force via coercive measures to maintain public order. Moreover, in Bolivia and Chile crucial political events such as the constitutional convention and presidential elections were postponed. That is why we, as much as other colleagues, consider that restrictions to liberties must be lifted as soon as the challenges posed by Covid-19 have slowed down. Civil society organizations across the world, and also in Latin America, are raising their voices to pressure governments into complying with human rights standards (see for instance in El Salvador).

COVID-19 Responses by the Inter-American Human Rights System

 In the face of the pandemic, the strength of the two-tiered system of the Inter-American human rights regime becomes most visible. Similar to the ECtHR, the IACtHR has suspended all public hearings and the ordinary session in April, as well as the calculation of all the time limits that are currently pending before the Court from 17 March to 21 April.

On April 14, the Court published a statement regarding the challenges posed by Covid-19, in which it urges member states to respect human rights standards and further international obligations. It emphasized in particular that all restrictions must be “temporarily limited, legal, adjusted to well-defined aims based on scientific criteria, reasonable, absolutely necessary and proportionate and in accordance with other requirements developed in Inter-American human rights law.” While this statement might sound rather general, it reaffirms standards which can provide useful for the examination of cases arising out of the crisis.

Most importantly, the existence of the Inter-American Commission on Human Rights (IACHR) allows the Inter-American human rights regime to respond to the crisis in real time. On March 28, the IACHR created the Rapid and Integrated Response Coordination Unit for COVID-19 Pandemic Crisis Management (SACROI COVID-19) to strengthen institutional capacities and develop a strategy to monitor and follow up on how the crisis affects the human rights of vulnerable people and groups with special emphasis on their right to health and other economic, social, cultural, and environmental rights. The SACROI crisis response team is coordinated by the Executive Secretary and includes the special rapporteurs, as well as other personnel specifically assigned to it. Among its many objectives is the collection of evidence on the impact of the pandemic, proposing lines of actions for state parties, providing technical assistance, and the identification of urgent cases within the petition, case, and precautionary measures system to ensure timely responses. The multimedia coordination page of SACROI COVID-19 can be found here.

Moreover, on April 10, the IACHR adopted Resolution No. 01/20 on the Pandemic and Human Rights in the Americas. The Resolution stressed the cross-cutting impact of the pandemic on the enjoyment of the right to life, health and economic, social, cultural and environmental rights, which pose an even greater challenge for the states of the Americas, who suffer from sky-rocketing inequality and limited economic capacities. Concerning the state of emergency, the Commission observed restrictions on freedom of expression, the right to access to public information, personal freedom, the inviolability of the home, the right to private property, and the use of surveillance technology to track the spread of the coronavirus, and the storage of data on a massive scale.

The Commission also sets out standards for measures adopted by states that involve restrictions of rights or guarantees. Next to the limits already established by Article 27 and the advisory opinions such as the right of judicial guarantees, the Resolution identifies several new, progressive standards for state parties:

• States should inform the Secretary General of the OAS on their motives of suspending the guarantees of the Convention
• Any restrictions must be based on best scientific evidence and the impact on the most vulnerable must not be disproportionate
• States must refrain from restricting the work of journalists and human rights defenders, and refrain from prosecuting or detaining them for their vigilance during the pandemic
• States should ensure the widest and most immediate access to internet service for the entire population
• State authorities have a duty to inform the population, and in making their pronouncements, they must act with due diligence and have a reasonable scientific basis
• States must protect the right to privacy and personal data especially for patients and persons tested during the pandemic. They must always obtain consent when collecting and sharing sensitive data from such individuals
• Surveillance tools must be strictly limited, both in purpose and time

The challenges posed by Covid-19 for state parties are many and, naturally, this will also affect the protection of human rights. While the influence of human rights regimes in the immediate crisis situation might be limited, the experience of the Inter-American human rights organs showcases the importance of a proactive and dialogical approach. In contrast to the European system, the limited judicial toolkit can be complemented with continuous monitoring and outreach to state parties and civil society in order to safeguard the widest possible protection of human rights in times of Covid-19.