Exit strategies under debate

As long as the numbers of those infected and who have died from COVID-19 are stabilising, governments around the world are looking for the best exit strategies from restrictions. This requires a multidisciplinary analysis including scientific, economic and policy elements to minimise the spread of the virus while transitioning to the ‘new normality’. Additionally, as most of the measures taken to combat the virus involve limitations and derogations of human rights, input from international human rights law is essential.

Countries planning their exit strategies face questions such as: which rights and freedoms to give back to their inhabitants, to what degree, when, and to which group of people. The response to these questions may be controversial as became clear in Spain, for instance, when deciding on the scope of children’s freedom of movement, in order to comply with human rights standards.

Situations like the above may be even more controversial in countries that were experiencing social protest and riots when the pandemic started, such as Hong Kong, Chile, Ecuador, Colombia, Egypt, and Lebanon, among others, in 2019.

Last October, when the so-called "estallido social” (social outbreak) started in Chile, President Sebastián Piñera declared: ‘We are at war against a powerful enemy’. Months later, a new invisible enemy put the protests and riots temporarily on hold. On 18 March, Piñera declared a state of catastrophe (a state of constitutional exception), followed by a curfew, which is still ongoing to this date. In the beginning, things seemed to calm down. But as time has moved forward, and the government has started to evaluate the exit strategy from the pandemic, the relaxation of some restrictions over others has brought back social unrest.

An example to illustrate this is the postponement of the referendum to decide on the enactment of a new constitution for the country, one of the first measures adopted by Piñera when he declared the state of catastrophe. Controversially, during the same week that the referendum was going to take place (26 April), Piñera announced that Chile would prepare to return to a “new normality”. Consequently, to start this transition, the government ordered public servants to start progressively returning to their places of work.

In scenarios like this, where social distrust exists within the country’s institutions (Piñera’s approval rate dropped to a historic 9% during February 2020) and recent human rights violations (see the report of the UN Humans Right Officer) are alarming, inhabitants may start questioning each of the exit measures. They might question why they get certain freedoms back, such as their freedom of movement to attend their jobs, but not others, such as voting or participating in public protests. International human rights law, however, may provide some answers.

Derogations under international human rights law

Article 4 of the International Covenant on Civil and Political Rights (ICCPR) allows States to derogate from their human rights obligations subject to certain conditions. These were specified by the UN Human Rights Committee (HRC) in its General Comment Nº29, and include declaring the situation of public emergency in advance and notifying this to the relevant international authorities. Furthermore, it is also necessary to overcome the threshold of the intensity of the emergency, which must pose a threat to the life of the nation. Relevant guidance on these criteria can be found in the interpretation of the analogous provisions of the regional human rights treaties, by the European Court of Human Rights and the Inter-American Court of Human Rights.

Once human rights are derogated from, it is important to keep in mind that States are still bound by their international human rights obligations. Article 4.2 of the ICCPR provides a list of non-derogable rights. Besides, under Article 2 of the ICCPR, States are obliged to respect and ensure the right of all the individuals within their territories and subject to their jurisdiction. That said, derogations are exceptional situations, and must be clearly limited in their territorial and temporal scope. As it cannot be predicted how long the Corona pandemic will last, countries need to avoid setting derogations that could be indefinitely prolonged over time.

The temporality of the derogations also means that they must be kept only as long as they are ‘strictly necessary’ (Article 4 ICCPR). As stated by the HRC, the predominant objective of derogations must be to allow the restoration of normalcy to secure full respect for rights. Thus, derogations imply limitations to some human rights in order to protect others more effectively. [1] This seems to be the case for the derogations in the present situation, as countries are looking to protect the life and health of their inhabitants. Nevertheless, are the restrictive measures strictly necessary?

Experiences in some countries have shown that it is possible to limit some rights without derogating from them and still get positive results. One example is the Netherlands, which is currently experiencing a decrease in the numbers of Covid-19 infections and deaths, without implementing a total lockdown. Regarding the right to vote (Article 25 ICCPR), South Korea managed to hold elections, adopting measures such as disinfecting the polling stations and requiring its population to wear masks and gloves, and to carry hand sanitiser. Consequently, practice has shown that restrictions can be reduced without excessively affecting the human rights that derogations aim to protect.

Finally, derogations must be implemented in a non-discriminatory way (Article 4.1 ICCPR). This last requirement should be especially considered by governments of countries that are experiencing situations of social unrest. These countries have been facing instability which was probably triggered by initial discriminations based on social origin, religion or belonging to social minorities. Consequently, if the decision on which freedoms or rights should be given back to the population is done in a discriminatory way, old feelings of unfairness could be reawakened in the population, giving rise to social unrest once again.

When a government decides to maintain only those restrictions on rights and freedoms that are related to historical demands concerning social inequality, as was the case in Chile, it leads one to wonder if this is not a case of discrimination against the most disadvantaged groups of the population. Furthermore, this may also lead us to question whether such derogations are truly seeking to guarantee human rights in a more effective way, or if they perhaps have a hidden agenda.

Conclusion

When governments plan their exit strategies following a situation like the coronavirus pandemic, it is essential to keep in mind the guidelines provided by international human rights law. Derogations are exceptional situations. Thus, countries must be sensitive to the needs of their populations, and strictly justify each of their measures under legal standards.

This should be especially taken into consideration by countries that were already dealing with social unrest before the pandemic. Although the virus may have provided temporary relief from complex social demands, the end of the pandemic may bring about a second, more powerful, wave of protest and riots. Projections point out that the current Corona situation and the ensuing economic crisis may intensify inequality.

For this reason, governments of countries facing social unrest should be particularly wary when seeing a new ally in the corona enemy. It may become a double-edged sword that could have catastrophic results.

[1.] For a further perspective on derogations’ objectives, see Criddle EJ, “Protecting Human Rights During Emergencies” in Evan J Criddle (ed), Human Rights in Emergencies (Cambridge University Press 2016).