Our current global framework of human rights protection came into being following the horrors of World War II with the establishment of the United Nations. Born of noble and benevolent ideals, international human rights law has been as criticised as it has been celebrated, and disillusionment with the UN system of rights protection has increased steadily over the past five decades.
Some of the greatest challenges facing our world, including social and economic inequality, the plight of refugees and environmental degradation, have not been adequately resolved by the international human rights project.
Consequently, many policy-makers, legal practitioners and advocates now look elsewhere for solutions to large-scale societal challenges. The coronavirus pandemic may be a turning point in this trend.
The World Health Organisation (WHO), a specialised agency of the UN founded in 1948, has swiftly taken centre stage in advising and guiding policymakers and the public through this period of uncertainty.
The organisation has been a powerful force in the fight against Covid-19 and in the protection of those who are most vulnerable, notwithstanding obvious scapegoating by the US in recent times.
The current pandemic requires a coordinated global response, and it may be that this gaping need will encourage the community of nations to turn towards the UN, including its numerous human rights mechanisms, rather than further undermining an organisation already in a state of crisis.
The coronavirus pandemic has caused governments to introduce tailored limitations on some of the most basic rights of individuals, including the rights to liberty and travel, to freely associate and to practise religion, and the rights to privacy, work, education and healthcare.
In addition to coordinating a medical response, the UN might also very usefully coordinate national approaches to constraints placed on rights as a result of the coronavirus outbreak.
Two major international human rights treaties – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified by 173 and 170 countries respectively – provide a roadmap for the permissibility of domestic rights restrictions under international human rights law.
The preamble to both covenants emphasise that the individual, “having duties to other individuals and to the community to which he belongs”, bears a responsibility to strive for the observance and promotion of the rights within each covenant.
The treaties view rights and duties as interconnected, and the well-being of the community as inherently linked to the well-being of the individual. Therefore, derogations from and limitations on rights are permissible under certain conditions.
Article 4 of the ICCPR permits states to derogate from their obligations in respect of civil and political rights in times of public emergency “which threatens the life of the nation”. There are also options within the ICCPR for restricting individual rights without resort to the derogation provision.
The rights to liberty of movement (Article 12), freedom of thought, conscience and religion (Article 18), freedom of expression (Article 19), freedom of assembly (Article 21) and freedom of association (Article 22) may be subject to restrictions which are “provided by law” and necessary to protect national security or public safety, public order, public health or morals, or the rights and freedoms of others.
Regarding “public health” limitations, the state must be facing a serious threat to the health of the population or individual members of the population. The measures taken must also be specifically aimed at preventing disease or injury, or providing care for the sick and injured.
Article 12 of the ICESCR explicitly recognises the importance of prevention, treatment and control of epidemic diseases as a facet of the right to health.
The ICESCR contains no formal derogation provision, but allows that states may place limitations on economic, social and cultural rights “as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”.
It is clear that international human rights law provides guidance on the permissibility of curtailing individual rights, both in peacetime and during a state of emergency.
The current health crisis requires a coordinated worldwide response. And with their germane content and global reach, the international human rights treaties and associated monitoring mechanisms may see an increase in political and public support.
We are entering a new era, and it is an excellent opportunity for the international human rights regime to lend oversight to national public health-related controls. If successful, this will also provide the international human rights framework with a firm training ground for addressing other collective priorities – social, economic and environmental – facing our world.
Engaging with these immense challenges will require levels of solidarity, collective action and cooperation which the Covid-19 pandemic primes humanity to begin in earnest.
Donna Lyons is assistant professor at the Trinity School of Law