COVID-19 and International Law Series: Human Rights Law – Civil and Political Rights

[Editor’s Note: This article is part of a Just Security series, COVID and International Law. All articles in the series can be found here.]

States around the world have had to quickly respond to the public health threat COVID-19 poses to their populations. These responses have included a number of measures to limit public gatherings, constrain freedom of movement, require disclosure of private medical information, and require disclosure of location and contacts. Though many of the constraints and disclosure requirements States have put in place are necessary to combat the pandemic, some governments have exploited the crisis to begin or continue assaults on civil and political rights.

In Hong Kong, for instance, public authorities have imposed restrictions on the public demonstrations that preceded COVID-19’s emergence, pointing to public health concerns to justify the policy. Numerous governments have developed technologies, including smartphone apps, for contact tracing, but, as one study put it, “there are a number of unresolved questions about the use of smartphone data for health surveillance, including how to protect individual privacy.” Other governments have used the pandemic as an excuse for delaying elections or for denying arrested individuals adequate legal representation in judicial proceedings.

This article, the last in this series reviewing the international human rights that have been strained in the ongoing COVID-19 pandemic, focuses on civil and political rights. It identifies some of the specific civil and political rights protected by the International Covenant on Civil and Political Rights (ICCPR) that are under assault as governments respond to COVID-19. It focusses on four general categories: (1) restrictions on speech and assembly; (2) intrusions on privacy; (3) modifications to or delays in electoral processes; and (4) denials of justice and fair trial. While not exhaustive, these areas are representative of the most prevalent transgressions that are collectively producing a human rights crisis amid a public health crisis.

As noted, this article focuses on civil and political rights as protected through the ICCPR. Other treaties also proscribe protections for civil and political rights. While not legally binding, the Universal Declaration of Human Rights broadly outlines fundamental civil and political rights. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) both prohibit discrimination with respect to a number of rights, including those related to judicial processes and political participation. And there is an array of regional treaties that also provide significant protections for civil and political rights. This article, therefore, is meant as merely a starting point in assessing the ways in which civil and political rights are affected by the pandemic.

Right of Speech and Peaceful Assembly

ICCPR Article 21 requires that the “right of peaceful assembly” be recognized, and allows restrictions on the exercise of this right only to the extent they are necessary “in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” As the Human Rights Committee indicated in General Comment No. 37 that further clarifies duties and rights under Article 21, States Parties are not to derogate from this provision to restrict peaceful assembly “if they can attain their objectives by imposing restrictions in terms of Article 21.” Further, there must be a fair means for legally contesting official decisions to limit assembly. Separately, ICCPR Article 19 enshrines the rights to hold opinions without interference and to freedom of expression, though restrictions can be imposed for the protection of public health, among other aims. General Comment No. 34 reiterates individuals should be permitted to express and receive opinions regarding, among other subjects, political discourse and commentary on public affairs.

Despite these clear stipulations, governments of States Parties have taken advantage of the need to prevent the spread of COVID-19 to also constrict political activity that poses a threat to the status quo. In Hong Kong (where the ICCPR applies), for instance, authorities have denied demonstrators permission to organize a pro-democracy march on the grounds that such protests could further spread COVID-19. Protest leaders have alleged that these are false pretenses, pointing out the city’s decision to open a local theme park. The official claim that restrictions are needed to protect public health creates new barriers to demonstrations against China’s National Security Law and the Hong Kong government’s acquiescence thereto. Governments have also imposed disproportionate restrictions on journalists reporting on the virus as they ostensibly seek to limit misinformation. In Sri Lanka, the government has made public criticism of or disagreements with policies an offense meriting arrest and has taken into custody at least a handful of individuals who allegedly posted false or misleading information about the pandemic or the government’s response thereto.

Governments must judiciously balance efforts to contain COVID-19 with safeguarding liberties to speak and assemble and must not use the exigent circumstances as a pretext for suppressing political opposition. To protect domestic populations from the pandemic, States inevitably must impose some restrictions on individuals. In fact, the Human Rights Committee recently reaffirmed governments seeking to protect public health can restrict the rights to expression and peaceful assembly to protect individuals from COVID-19. However, these restrictions must be necessary for that purpose and must be in conformity with the law. As the Office of the High Commissioner for Human Rights (OHCHR) indicates, criminal penalization of disinformation related to the pandemic may be disproportionate and unlawful, and can be counterproductive in any regard. The Human Rights Committee also underscores “freedom of expression… and a civic space where a public debate can be held” are not only inherently critical rights to be protected as States respond to COVID-19, but are also instrumentally important for ensuring States Parties are adhering to their other human rights obligations. Governments seeking to balance competing interests in protecting public health and civic space might look toward the ICCPR-compliant approach of Latvia, whose government formally derogated from Article 21 in prohibiting all public gatherings in March 2020, published a month-long extension of its derogation, and subsequently withdrew its derogation and eased restrictions in May.

Right to Privacy

ICCPR Article 17 prohibits States Parties from arbitrarily or unlawfully interfering with a person’s “privacy, family, home or correspondence” and establishes a right to protection of the law against such interference. The Human Rights Committee has also clarified in General Comment No. 16 that “‘arbitrary interference’ can also extend to interference provided for under the law,” and calls for technically lawful interference to comport with the aims of the Covenant.

In this comment, the Committee recommends regulation of the collection and storage of individuals’ personal information (whether done by government authorities or private entities) and calls on States to ensure such data is not used for purposes contrary to the Covenant.

Some governments’ contact tracing, symptom tracking, and quarantine enforcement programs may not fully comport with the letter or spirit of Article 17 or the corresponding comment. For example, the government of Bahrain has established an app-based system that facilitates real-time collection of information on users’ locations, which can be easily linked back to individuals. Quarantined individuals must use the app and wear a Bluetooth-enabled bracelet that collects location and diagnostic data, and can face legal penalties for not complying. Amnesty International notes such a program is “unlikely to be necessary and proportionate” as part of a response to COVID-19. In light of substantial political repression in Bahrain, there is a risk that such tools may be used to further limit free expression and participation in public life, contrary to the intent of the ICCPR.

While states are justified in collecting data to stop the spread of the virus, they need to be attentive to privacy concerns. The World Health Organization’s (WHO) International Health Regulations (IHR) offer guidance on State regulations in response to a public health emergency. They establish stipulations on the collection and use of personal data, noting it should be “processed anonymously,” “processed fairly and lawfully,” and it should not be “kept longer than necessary.” As 194 States are member States of the WHO, the IHR should also inform governments’ approach to contact tracing and similar pandemic-related information gathering. The United Kingdom’s efforts to a develop privacy-preserving, centralized contact- and symptom-tracing app may serve as a positive illustration of how other governments might grapple with the tension. RAND researchers evaluating the app’s privacy protections assess it has appropriate guardrails, including data time limits; open source coding; a narrow purpose and prohibition on secondary use; a firewall from law enforcement; anonymity of identities; and informed consent for use.

Right to Participate in the Electoral Process

ICCPR Article 25 specifies “every citizen shall have the right and opportunity… to take part in the conduct of public affairs” and “to vote and to be elected at genuine periodic elections.” Regardless, States Parties have had to balance this obligation with efforts to prevent COVID-19’s spread, raising concerns that modification, postponing, or suspension of elections are undertaken for opportunist reasons. In Bolivia, unelected interim President Jeanine Áñez and the country’s Supreme Electoral Tribunal justified postponing presidential elections, first in May and once again in September, based on the COVID-19 health emergency. Prior to the eventual election, which was successfully held in October, the delays exacerbated political tensions arising from Áñez’s controversial assumption of the presidency in November 2019. Further, even as they encourage other States to refrain from delaying electoral processes, some Western governments (such as New Zealand’s) have also opted to delay elections as a means of preventing the pandemic’s spread.

For the foreseeable future, governments preparing for and conducting elections will have to judiciously balance public health and electoral rights. States Parties to the ICCPR do have some flexibility, as the Covenant permits derogation of Article 25 provided the aforementioned conditions are met. In some cases, modifications to electoral processes (including delays) may be necessary not only to prevent COVID-19’s transmission, but to ensure the public feels safe voting and prevent de facto discriminatory impacts on individuals fearful of in-person voting. Some governments have relatively successfully balanced public health concerns with the need to proceed with elections and ensure their integrity. For instance, ahead of and during the National Assembly elections in April 2020, South Korea adopted measures to ensure both safety and broad participation. It put in place measures to prevent transmission (including disinfecting polling places and disseminating a voter code of conduct regarding hygiene and quarantine practices), while also making arrangements to allow quarantined individuals to vote and observers to remotely watch vote tallying.

Right to Justice and Fair Trials

ICCPR Article 9 provides a right to liberty and security, protecting individuals from being “subjected to arbitrary arrest or detention” and prohibiting deprivations of liberty “except on such grounds and in accordance with such procedures as are established by law.” Importantly, Article 9(3) notes “anyone arrested or detained on a criminal charge… shall be entitled to trial within a reasonable time or to release,” and Article 9(4) explicitly provides detainees with the opportunity to bring proceedings before a court that can order release if detention is unlawful. These obligations, while intrinsically critical, also help ensure a State Party’s compliance with Article 2(3), which provides for effective remedies to those whose rights or freedoms (including civil and political rights) have been violated by persons acting in an official capacity.

Some governments have used the pandemic as an excuse to arbitrarily arrest and detain opponents, or for curtailing their access to justice. In India, for example, demonstrators and activists protesting the government of Prime Minister Narendra Modi and its Hindu nationalist policies have been arbitrarily arrested, and COVID-19-related restrictions have impeded fair trials and access to justice. Human Rights Watch reports that subsequent to arrest, detainees have had limited access to legal counsel and lawyers have found it difficult to view court records. Long-lasting court closures have also impeded bail filings, contributing to activists’ continued detention. Further, authorities have sometimes been able to keep individuals in custody after they have been granted bail by filing additional charges against activists, potentially prolonging their exposure to the virus in prisons.

The U.N. Office on Drugs and Crime recommends that as governments impose safety measures on courts that may delay legal processes, they prioritize critical legal cases that implicate non-derogable rights (in addition to considering arrangements for remote proceedings, where possible). As an example, the Spanish government’s “state of alarm” initiated in March embodied this concept: As the organization Fair Trials highlights, Spanish measures to adjourn judicial proceedings did not apply to “habeas corpus proceedings, duty courts, proceedings in which the suspect is arrested or currently in pretrial detention, protection orders, and urgent matters related to inmates and violence against women or minors.”

Enforcement and Derogation under the ICCPR

As noted, some States have opted to formally derogate from particular ICCPR obligations in attempting to respond to COVID-19. ICCPR Article 4 broadly articulates requirements for States Parties to the Covenant seeking to derogate from their obligations “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” These States may only undertake such measures “to the extent strictly required by the exigencies of the situation,” and these measures must not be inconsistent with other international law obligations or be applied in a discriminatory manner. These derogations must also be temporary. In such instances the State Party “shall immediately inform the other States Parties… through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated” and why it has elected to do so.

Importantly, Article 4(2) prohibits derogation from ICCPR provisions that, among others, enshrine the right to life; prohibit torture and cruel, inhuman or degrading treatment or punishment; prohibit slavery; provide the right to recognition as a person before the law; and protect freedom of thought, conscience, and religion. Human Rights Committee General Comment No. 29 further clarifies States Parties’ obligations when derogating from Covenant provisions during public emergency, noting measures must be of “an exceptional and temporary nature.”

Despite these duties, most States Parties that have declared states of emergency in response to COVID-19 have failed to notify the Human Rights Committee of their derogations from ICCPR provisions: the Centre for Civil and Political Rights documents that, at the time of publication, just 14 States that have declared states of emergency have notified the Committee of this development, while more than 60 have yet to do so. This is to say nothing of States that may have derogated from fundamental obligations without officially initiating states of emergency.

The ICCPR’s obligations are not legally dispositive in the same ways across States. Notably, the United States does not consider the ICCPR to be self-executing and thus it cannot be directly enforced in U.S. courts. Further, a small number of States, such as China and Cuba, are signatory countries that have yet to ratify the ICCPR (though they nevertheless must not violate the Covenant’s object and purpose). Nevertheless, although the ICCPR is not directly enforceable in all nations, it remains an authoritative source of law (as the Office of the High Commissions for Human Rights explains). It must therefore, at a minimum, inform the COVID-19-related responses of States Parties grappling in good faith with the dilemma of protecting public health while respecting civil and political rights.

Image: SEOUL, SOUTH KOREA – APRIL 15: Officials from the South Korean Central Election Management Committee and election observers count votes cast of Parliamentary election amid the coronavirus outbreak on April 15, 2020 in Seoul, South Korea. A total of 300 lawmakers will be elected to the four-year term, with 253 of them to be selected through direct elections and the remaining 47 assigned via proportional representation. A total of 1,110 candidates are competing for the 253 seats. South Korea has called for expanded public participation in social distancing, as the country witnesses a wave of community spread and imported infections leading to a resurgence in new cases of COVID-19. According to the Korea Center for Disease Control and Prevention, 27 new cases were reported. The total number of infections in the nation tallies at 10,591. (Photo by Chung Sung-Jun/Getty Images)

 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Mark Stevens

Mark Stevens is a 2021 J.D. candidate at Yale Law School and Hansell Fellow at the YLS Center for Global Legal Challenges. Follow him on Twitter at (@MarknotSteve)

Preston Lim

J.D. student at Yale Law School, former Schwarzman Scholar at Tsinghua University - Follow him on Twitter (@PrestonJordanL1).