In the months since the novel coronavirus began claiming lives around the world, supranational human rights monitoring bodies have scrambled to keep pace with State responses and to push the inclusion of human rights standards in conversations about how to respond that are at once global and intensely local. The 56 United Nations special procedures, 10 U.N. human rights treaty bodies, three principal regional human rights systems (each with various components), and their respective “parent” intergovernmental organizations have collectively put out more than 150 statements on respecting human rights during the pandemic since late February. These statements advise governments in their efforts to prevent the spread of the pandemic and call on States to avoid the worst consequences of those efforts and of the pandemic itself.
To help those interested in keeping track of the many statements, the International Justice Resource Center (IJRC) has published a webpage – COVID-19 Guidance from Supranational Human Rights Bodies – listing and linking to all relevant press releases and other guidance. This article serves to provide an overview of – and initial response to – the nature, scope, and sources of human rights advice available to States in the context of the pandemic.
Experts Say!
Human rights bodies’ guidance has been insistent, wide-ranging, voluminous, and diffuse. It has not, however, inspired particular confidence in governments’ commitments to abiding by human rights obligations in their mitigation efforts. “Don’t forget your commitments in your response to the COVID-19 crises,” read the title of a recent statement from the U.N. Special Rapporteur on the right to development. “Do not forget internally displaced persons,” advised the U.N. Special Rapporteur on the human rights of internally displaced persons. The U.N. High Commissioner for Human Rights urged governments “not to forget those behind bars” during the pandemic, and the Council of Europe (COE) Commissioner for Human Rights said States “must not forget” about persons with disabilities. The prevailing sentiment is neatly summed up in the caption accompanying an interview with a COE official: “Don’t forget migration, education, gender, health issues – the environment!”
The cascade of such statements, coming two or three per day lately, causes one to wonder if there are any human rights obligations States are not forgetting, abandoning, or sacrificing in the name of combatting COVID-19. Are human rights bodies shouting into a gleefully growing abyss? Are human rights so disposable, so peripheral, that they can be so easily forgotten?
Often with click-baity pithiness and a sense of harried urgency, these statements seek to apply long-standing norms to our new reality in as few words as possible. They compete for limited attention, jostle for primacy, and assert the relevance of their authors. Eleven ways to address children’s needs. “Ten key principles” to respect freedom of association and assembly in a pandemic. Nine ways “to uphold women’s rights” during the pandemic. Eight recommendations for respecting the rights of migrants. “[S]even crucial aspects” of preserving the independence of the judiciary. Five keys to ensuring access to information. Four recommendations to better respect the rights of older persons.
Timeline
On February 28 the African Commission on Human and Peoples’ Rights (ACHPR) was the first supranational human rights body to issue a statement on coronavirus, in a broad press release emphasizing the rights to life, access to information, and health under the African Charter on Human and Peoples’ Rights. In keeping with the charter’s inclusion of individual responsibilities, a subsequent statement by the ACHPR spoke to the duties of individuals and non-public entities in adhering to mitigation measures, in addition to elaborating on the principles identified in its first statement.
Others soon followed suit. On March 6, the U.N. Office of the High Commissioner for Human Rights (OHCHR) issued a broad statement on States’ human rights obligations in the context of COVID-19. The same day, the U.N. Subcommittee on Prevention of Torture announced the issuance of advice on compulsory quarantine. The week of March 16, the COE Commissioner for Human Rights and Inter-American Commission on Human Rights (IACHR) each issued their first statements on human rights protection during COVID-19.
By mid-April, nearly every supranational human rights monitoring body had issued multiple statements, on a broad range of rights and vulnerable groups, in relation to the pandemic. The majority of U.N. special procedure mandate holders have also made statements regarding their various areas of expertise. Finally, on May 1, the ASEAN Intergovernmental Commission on Human Rights chimed in to “highlight the importance of promoting and protecting human rights while combatting [the] COVID-19 pandemic.” Intergovernmental organizations and agencies have, of course, also published various policy guides and rights analyses of their own.
The one exception to this global response from human rights monitoring bodies is the Arab Human Rights Committee, which has not issued any relevant statements to date. Similarly, two of the three regional human rights courts – the African Court of Human and Peoples’ Rights and European Court of Human Rights – have thus far refrained from providing any substantive advice or analysis.
Which Rights and Groups Are in Focus?
Some rights and issue areas have received vastly more attention than others. Each of the three main regional human rights systems (African, European, and Inter-American) and the U.N. human rights system have all issued specialized guidance on:
- States’ human rights obligations generally during COVID-19;
- states of emergency and derogations from human rights treaties;
- ensuring access to information and media freedom;
- improving conditions of detention and releasing persons deprived of liberty;
- addressing gender-based violence and women’s rights;
- responding to systemic racial discrimination and racist or xenophobic speech; and
- ensuring the rights of migrants, refugees, and displaced people.
For example, the OHCHR has produced succinct guidance on a range of rights topics and somewhat longer briefs on civic space, emergency measures, and the rights of women, migrants, persons in detention, LGBTI persons, and persons with disabilities.
The volume and substance of the outputs vary widely with regard to other vulnerable groups and human rights topics, but common themes include:
- access to healthcare and protection of healthcare workers;
- social protection;
- the right to housing;
- excessive use of force by police;
- the impact of sanctions;
- economic stimulus and relief programs; and
- the rights of children, LGBTI persons, older persons, persons with disabilities, Indigenous peoples, and human rights defenders.
Anyone researching a particular topic will want to find the most specifically relevant statements and guidance (again, IJRC’s list of statements can help).
Particularly notable documents, in addition to the OHCHR guidance mentioned above, include:
- the ACHPR’s March 24 COVID-19 press release;
- the IACHR’s Resolution 1/20, “Pandemic and Human Rights in the Americas”;
- the Inter-American Court of Human Rights’ statement;
- the Organization of American States’ (OAS’) Practical Guide (Spanish only);
- the COE’s COVID-10 “Toolkit”;
- the European Committee of Social Rights’ statement of interpretation on the right to health; and
- the U.N. Secretary-General’s series of policy briefs on COVID-19’s impacts on various vulnerable groups and the role of international solidarity and multilateralism.
Chorus or Cacophony?
As is always the case, the intergovernmental organizations and human rights oversight bodies that comprise the international human rights framework do not speak with one voice, and their legal interpretations and thematic and geographic areas of competence can overlap, compete, and clash. Depending on the context and format, they also speak with varying degrees of precision and specificity. This is true within systems and – given the various means of communication at their disposal – also within mechanisms.
While there has been some collaboration on COVID-19 guidance among distinct mechanisms, and especially among U.N. special procedure mandate holders, it has also been common to see individual mechanisms acting alone and without reference to other bodies. This is less a concern of collegiality or efficiency, and more a problem of coherence and manageability. Of course, each mechanism or organization has its own mandate and sources of law, and perhaps bodies are exercising caution in not stepping out of those bounds. But, there are many instances where the sources of law or rights are the same, but various voices are offering guidance and analysis that is then held out as comprehensive or authoritative. When multiple bodies – especially intergovernmental organizations or oversight bodies within the same system – offer separate guidance on the same topics without coordinating or even cross-referencing, it not only creates some confusion, but can complicate the implementation and monitoring that would hopefully follow.
This is especially true when intergovernmental organizations offer seemingly authoritative guidance on respecting human rights but lack the authority to issue binding interpretations or to review the implementation by States. For example, the at least twelve statements on the rights of persons with disabilities in the context of COVID-19 include separate guidance from two regional mechanisms; the Special Rapporteur on the rights of persons with disabilities; the Independent Expert on the rights of older persons; the U.N. Committee on the Rights of Persons with Disabilities; OHCHR, the U.N. Secretary-General, and special envoys of the Secretary-General. These issue-specific statements are in addition to more general COVID-19 guidance issued by most human rights mechanisms and intergovernmental organizations, nearly all of which expressly – if briefly – address the rights of persons with disabilities. There is certainly value in the differing perspectives and nuances of these statements, not to mention the importance of intersectional analyses. However, some of these bodies are tasked with monitoring protection of human rights and holding States accountable to their human rights commitments, and some are not. Which recommendations should States prioritize, and does the risk of distraction or dilution outweigh the benefits of additional rhetorical support for human rights in this time of crisis?
Relatedly, many statements fail to identify the normative underpinnings or legal force of their advice and interpretations. OHCHR, for example, has been particularly likely to do this, perhaps in the interests of brevity or simplicity. There is but a single reference to a human rights treaty in OHCHR pandemic guidance issued to date, in its paper on emergency measures. The same is true of the U.N. Secretary-General’s eight policy briefs on the impacts of COVID-19. For example, the U.N.’s 18-page policy brief entitled “A Disability-Inclusive Response to COVID-19” only mentions the Convention on the Rights of Persons with Disabilities once and does not refer to any guidance from the treaty body tasked with monitoring its implementation. And while some of those documents refer to the outputs of other U.N. bodies, those are generally offered as ancillary resources for continued reading, not as the source of any firm legal obligation or authoritative interpretation. Accordingly, many statements are merely lists of actions that States “should” or “can” take, in a legal vacuum. A result is, perhaps, a further blurring of the lines between policy guidance and international human rights obligations, which may complicate the work of implementation, monitoring, and accountability.
A welcome counter-example to this, among intergovernmental entities, is the OAS Practical Guide (Spanish only), which centers relevant regional human rights texts and their interpretation by the Inter-American Human Rights Commission and Court. Nevertheless, the guide’s mere existence can be seen to be at odds with the Commission and Court’s own guidance to their respective States parties and – in a way – to undermine the primacy and authority of those bodies, which the OAS Member States specifically created and mandated to protect and promote human rights in the region. For example, each document addresses the rights of persons deprived of liberty, touching on many, but not all, of the same concerns and themes. However, while the IACHR calls on States to “ensure that all measures to limit contact, communications, visits” and other activities “are taken very carefully after a strict review of proportionality,” the OAS urges governments to “adopt measures to ensure contact with relatives, whether in person … or virtually” (author’s translation). The space between those statements may seem minor, but could be vast, depending on how each is interpreted.
Implementation and Monitoring
What impact have these dozens of statements had in global responses to COVID-19? Human rights oversight bodies are often one step behind, by necessity, when reacting to possible violations and crises (which is not to say that there was not already relevant guidance available before the pandemic). And, it is not often that policymakers will explicitly cite to human rights bodies’ guidance in the text of the law and policies they promulgate, making it difficult to know if that guidance served as a model or inspiration. Nonetheless, we do have some limited examples of this proliferation of advice being used at the domestic level.
In proposed and adopted policies, we see references – in particular – to regional human rights guidance. For example, El Salvador’s legislative decree No. 632 cites to the IACHR’s Resolution 1/2020 in limiting the executive’s power to detain those who break quarantine, in line with a ruling by the country’s Supreme Court. Peru’s Defensoría del Pueblo quotes the IACHR resolution and the OAS Practical Guide, and refers to the Inter-American Court of Human Rights’ statement, in its report on protecting the rights of LGBTI persons, persons of African descent, and human rights defenders during the pandemic. The Costa Rican health ministry’s recommendations on preventing COVID-19 among persons of African descent also relies on the OAS Practical Guide. In Argentina, a bill proposing the inclusion of a gender perspective in the executive’s response to crises refers to the IACHR resolution. Some of these examples are referenced in the IACHR’s COVID-19 response unit’s bulletins (in Spanish only), which track good practices in government efforts to mitigate COVID-19 harms in the Americas.
Various national and local governmental human rights institutions have also referred to supranational bodies’ COVID-19 statements in crafting their own advice. For example, the Ontario Human Rights Commission, a provincial agency, explicitly cited a statement from the OHCHR in issuing its own March 13 policy statement on COVID-19. The New Zealand Human Rights Commission also references U.N. instruments and special procedure mandate holders’ statements in its COVID-19 know-your-rights webpage. The German Institute for Human Rights’ position paper on COVID-19 points to recent statements from the OHCHR and COE Commissioner for Human Rights. Whether these recommendations will be heeded in the development or implementation of policies remains to be seen.
Of course, there are also many examples of States not heeding human rights bodies’ recommendations or interpretations during the pandemic. The virus and governments’ reactions have yielded loss of life, lost employment and diminished livelihoods, scarcity of protective equipment and essential goods, decreased availability of healthcare, curtailed access to public services and education, increased domestic violence and child abuse, migrants and refugees stuck in limbo or denied due process, a clampdown on speech and activism, detainees and prisoners made vulnerable by overcrowded and under resourced facilities, and the bald devaluation of the lives of the elderly and persons with disabilities. Some governments have been only too eager to carry out power grabs, communications shutdowns, and arrests and killings in COVID-19’s shadow.
The IACHR, OHCHR, and special procedure mandate holders have repeatedly called out individual States for failing to meet their human rights obligations during the pandemic. Brazil, Hungary, the United States, and Venezuela are among the States that have received the most criticism, including regarding racial discrimination, poverty, prison conditions, sanctions, and the abuse of human rights defenders.
Keeping Track
For purposes of broader implementation and monitoring, it is essential that States and the public are able to readily access and digest the abundance of COVID-19 human rights guidance. This is complicated by the sheer number of bodies and their distinct, but often overlapping, mandates. The OHCHR, COE, and IACHR have collected their statements on (various) dedicated webpages. Even still, navigating and differentiating the various outputs can be overwhelming and confusing. Should one rely on the UN COVID-19 portal, “COVID-19 and Human Rights Treaty Bodies” webpage, or the “COVID-19 and Special Procedures” webpage, or the OHCHR’s own summary COVID-19 Guidance webpage, or the special procedure mandate holders’ individual (personal) websites and YouTube channels to find all relevant statements emanating from the U.N. on a given topic? For now, the answer – as ever – is all of the above. For States that are also part of a regional human rights system, deciphering and synthesizing human rights advice related to COVID-19 is that much more complex.
However, let no one say human rights oversight bodies have left a void in the world’s response to COVID-19. Any government interested in aligning its policies and efforts with international human rights norms has ample guidance and eager partners. While the deluge of reminders, advice, and reactions can be overwhelming and confusing, we can be grateful that these supranational bodies have pointed us toward inclusive, humane, and fair pandemic responses and envisioned a better world on the other side.
As they remind States not to forget whole groups of people and whole categories of rights in their COVID-19 responses, we must also ensure we do not abandon or sideline the framework for measuring, monitoring, and encouraging their protection of human rights. As we look toward rebuilding, it would be helpful to use a structure that is stronger than preferences or aspirations; it would be useful to rebuild on a concrete foundation of rights, obligations, and accountability.