Human Rights in a State of Emergency

Ali Yildiz

Arrested Lawyers Initiative

As COVID-19 spreads, different states across the world are declaring drastic measures – even states of emergency – to slow down or stop its spread. At such times, compliance with government health recommendations is extremely important. However, as the UN reminded us on 16 March 2020: “States should not abuse emergency measures to suppress human rights.”

In the said statement, the UN Experts on Human Rights urged States to avoid overreach of security measures in their response to the coronavirus outbreak and recalled that emergency powers should not be used to quash dissent:

“The use of emergency powers must be publicly declared and should be notified to the relevant treaty bodies when fundamental rights including movement, family life and assembly are being significantly limited. Moreover, emergency declarations based on the Covid-19 outbreak should not be used as a basis to target particular groups, minorities, or individuals. It should not function as a cover for repressive action under the guise of protecting health nor should it be used to silence the work of human rights defenders. Restrictions taken to respond to the virus must be motivated by legitimate public health goals and should not be used simply to quash dissent.”

State of Emergency

In 1961, Judge Maridakis of the European Court of Human Rights (ECtHR), quoting a maxim of Roman law, wrote: “When the State is engaged in a life and death struggle, no one can demand that it refrain from taking special emergency measures: salus rei publicae suprema lex est [The safety (or welfare) of the state is the supreme law] ...”. So, indeed, the recognition of a state of emergency, or a state of siege, in the domestic legal order, dates back at least to Roman times. The primary international human rights treaties permit state parties to derogate from several rights in times of emergency (Art. 15 ECHR; Art. 4 ICCPR; Art. 27 American Convention on Human Rights).

The European Convention on Human Rights (ECHR) and the Case Law of ECtHR

Article 15 of the ECHR allows States, in exceptional circumstances, the possibility of derogating, in a temporary, limited and supervised manner, from their obligation to secure certain rights and freedoms under the Convention. Article 15§1 stipulates that: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”

According to the ECtHR, “other public emergency threatening the life of the nation” is “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community of which the State is composed” (Lawless v Ireland). The test of a “public emergency threatening the life of the nation” was set out by the former European Commission of Human Rights as follows:

i) The crisis or danger must be actual or imminent;

ii) Its effects must involve the whole nation;

iii) The continuance of the organized life of the community must be threatened; and

iv) The crisis or danger must be exceptional, in that the normal measures or restrictions are plainly inadequate.

In its case law, the ECtHR sets out the principles that “it falls to each Contracting Party, with its responsibility for ‘the life of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency. Nonetheless, Contracting Parties do not enjoy unlimited discretion. It is for the Court to rule whether, inter alia, the States had gone beyond the ‘extent strictly required by the exigencies’ of the crisis. In exercising this European supervision, the Court has to give appropriate weight to such relevant factors as the nature of the rights that are affected by the derogation, and the circumstances leading to, and the duration of, the emergency situation.” (Aksoy v. Turkey, Brannigan-McBride v. The United Kingdom)

The condition “to the extent strictly required by the exigencies” as laid down in Article 15§1 ECHR, requires that the measure must be suitable for the objective that is being pursued, and it must not go beyond what is necessary to achieve the goal intended (the principle of proportionality).

The ECHR protects certain rights and freedoms from derogation. Pursuant to Article 15§2, no derogation from the right to life (Art.2), or the prohibition of torture (Art.3), slavery and servitude (Art.4§1), or the principle of no punishment without law (Art.7), shall be made under Article 15§1. Three of the additional protocols of the ECHR also contain clauses which prohibit derogation from certain rights that are contained within them. These are Protocol Nos. 6-13 (the abolition of the death penalty in time of peace, the limiting of the death penalty in time of war - the complete abolition of the death penalty) and the ne bis in idem principle (Protocol No.7).

The other limit to a Government’s right to derogate from the Convention is that measures taken under Article 15 shall be consistent with concern for the State’s other obligations that stem from other international treaties to which the State is party.

In case of derogation from the ECHR, it is imperative for the State to make an immediate notification of the rights and freedoms and the territory to which the derogation applies, to the Secretary-General of the Council of Europe (Art.15§3). Moreover, the State concerned shall keep the Secretary-General fully informed of the measures which it has taken, and the reasons for them, and shall also inform him when such measures have ceased to operate. The primary purpose of informing the Secretary-General is that the derogation becomes public. A further purpose is that the ECHR is a system of collective enforcement, and it is through the Secretary-General that the other Contracting States are informed of the derogation.

The European Commission of Human Rights previously concluded that in the absence of an official public notification of derogation made without any unavoidable delay and with sufficient information (including the measures in question and their texts) to enable the other High Contracting Parties to appreciate the nature and extent of the derogation (Greece v United Kingdom), Article 15 did not apply to the measures taken by the concerned State. (Cyprus v. Turkey, Commission Report (1983) § 66-68).

The International Covenant on Civil and Political Rights (ICCPR)

Article 4§1 ICCPR provides that:

“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

According to the UN Human Rights Committee (General Comment 29), in order to invoke Article 4, two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. The Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR defines a public emergency as a threat to the life of the nation that: (a) affects the whole of the population, and either the whole or part of the territory of the State, and (b) threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions that are indispensable in ensuring and protecting the rights recognized in the Covenant.

Like the ECHR, the ICCPR requires the derogations to be “to the extent strictly required by the exigencies of the situation.” According to the Siracusa Principles, a proclamation of a public emergency must be made in good faith and be based upon an objective assessment of the situation in order to determine to what extent, if any, it poses a threat to the life of the nation. The severity, duration, and geographical scope of any derogation measure shall be such that they are only strictly necessary to deal with the threat to the life of the nation and are proportionate to its nature and extent.

The Siracusa Principles also require that a limitation to the rights or freedoms enshrined in the Covenant shall:

(a) be based on one of the grounds justifying limitations that are recognized by the relevant article of the Covenant;

(b) respond to a pressing public or social need;

(c) pursue a legitimate aim;

(d) be proportionate to that aim; and

(e) be terminated in the shortest time required to bring to an end the public emergency which threatens the life of the nation.

Likewise, the Special Rapporteur of the UN on Human Rights and States of Exception lists the principles that are generated by Article 4 ICCPR as being: ‘temporality’, ‘official proclamation’, ‘legality’, ‘inviolability/intangibility absolute rights’.

According to the Siracusa Principles, public health may be invoked as a ground for limiting certain rights in order to allow a State to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured. Due regard shall be made to the health regulations of the World Health Organization.

Under Article 4§1 ICCPR, the State, which decides to apply the right of derogation, shall make an official proclamation in accordance with its national law. It is essential for the maintenance of the principles of legality and of the rule of law at times when they are most needed.

Article 4§2 ICCPR lists non-derogable (absolute) rights. These are the right to life (Art.6), the prohibition of torture, cruel, inhumane or degrading treatment or punishment, and the freedom from medical or scientific experimentation without free consent (Art.7), the prohibition slavery and servitude (Art.8§1-2), the principle of no punishment without law, and the prohibition of punishment by virtue of retroactive legislation (Art.15), the prohibition of imprisonment due to an inability to fulfill contract obligations (Art.11), the right to recognition as a person before the law (Art.16), and the freedom of thought, conscience and religion (Art.18). The same rule applies, in relation to States that are parties to the Second Optional Protocol to the Covenant, aiming at the abolition of the death penalty (Art.6).

The UN Human Rights Committee listed some other rights and freedoms which are not subject to lawful derogation, although they are not mentioned in Article 4§2 ICCPR in its General Comment Nos. 29, 32 and 35.

The State, which has made an official proclamation of the state of emergency, shall immediately inform the other States that are Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, in accordance with Article 4§3 ICCPR. The notification shall contain sufficient information, such as (a) the provisions of the Covenant from which it has derogated; (b) a copy of the proclamation of emergency, together with the constitutional provisions and other relevant national laws, decrees and regulations; (c) the effective date of the imposition. The requirement for immediate notification applies equally in relation to the termination of derogation.

Considering the devastating results we have been witnessing in China, Italy and Spain – including the death-toll, contagion rate and overwhelmed health systems – it can be said that the danger stemming from COVID-19 is actual and exceptional, its effects involve the whole nation, and it threatens the continuance of the organized life of the community. Therefore, declaring a state of emergency due to COVID-19 may be regarded as lawful under the ECHR and the ICCPR. However, this does not automatically justify the measures taken by the States under the declared emergency regime. Yet, we can say that confinement measures, such as isolation, prohibition of gatherings, closure of schools and workplaces and travel bans, may be accepted as required by the exigencies of situation, proportionate and lawful. However, the duration and implementation of these measures are also essential to decide on their legality. Governments should avoid restrictions which are not strictly required and scientifically warranted.

Although it is too early to say decisively, a pattern can be observed in China, Turkey and Iran whereby there is insufficient governmental transparency and individuals, including health professionals, who depart from the official narrative risk being prosecuted. It is clear that the emergency situation caused by the pandemic does not justify restrictions on freedom of expression and the freedom of media.

The other thing to be noted is that according to Council of Europe’s website, as of 19 March 2020, only Latvia and Romania had notified the Secretary-General of their emergency measures. It seems that Italy, Belgium, Spain, and others have not notified their measures to COE although notifications are legally required to be immediate. Failure to fulfil the notification obligations could in itself constitute a breach of international law and also frustrate international bodies’ ability to review whether State measures themselves comply with international law.

As Professor Yuval Noah Harari has warned: “If we are not careful, this epidemic can give justification for the accelerating development of the totalitarian regime.” So we have to be both compliant with the measures taken by our governments but also be vigilant as to whether these measures are in line with international and national law and whether States are taking advantage of this pandemic to inch toward an authoritarian or totalitarian regime.  

Ali Yildiz is a Turkish lawyer and the director of the Arrested Lawyers Initiative.

Suggested citation: Ali Yildiz, “Human Rights in a State of Emergency” IACL-AIDC Blog (26 March 2020) https://blog-iacl-aidc.org/2020-posts/2020/3/26/human-rights-in-a-state-of-emergency