1. Human rights remain in force in a time of crisis
Human rights continue to apply, even when a state declares a state of emergency or a derogation from its human rights obligations. States can only derogate to the extent strictly required by the situation and must announce their intention to do so in a timely manner. The prohibition of torture and inhuman or degrading treatment, as well as the prohibition of discrimination, cannot be derogated from at all.
2. Measures must be legally-based, proportionate and time-limited
Measures must have a legal basis, be proportionate and be time-limited. Decisions should be continually re-evaluated with a rebalancing of the rights involved, especially since they have to be made with limited knowledge about the virus, including the conditions under which it can be lethal, the lack of therapies and vaccinations, and the scarcity of tests and protective gear. In this uncertain context, the longer restrictions on human rights are in place, the more negative impacts they have. States must consider that what is proportionate at the start of the pandemic may become disproportionate over time, and if this is the case, the measure should be mitigated or abolished.
3. Measures cannot have any discriminatory impacts
Government measures in response to COVID-19 must protect the rights of all people and cannot discriminate. The impacts of measures on the human rights of particular groups, including women, older people, people with disabilities, children, migrants, people seeking asylum and people living in poverty or homelessness, must be assessed beforehand. Should people belonging to such groups be disproportionally affected, mitigation measures need to be put in place. This is required by the prohibition of discrimination.
4. Situations of vulnerability must be addressed
While protecting everyone’s human rights, states must particularly assess and address situations of vulnerability caused or exacerbated by its measures. These can include: women and children facing violence at home due to curfews and overcrowding at shelters; homeless people unable to access an indoor place to stay; migrants unable to self-isolate due to limitations at reception centres; people in long-term care or hospitals suffering mental health problems due to visitation prohibitions; and children living in poverty unable to access online schooling or a space to learn.
5. Broad public debate is as important as ever
Since the COVID-19 pandemic and government responses deeply impact on all people and their human rights, broad public debate and consultation are essential. The state must fully ensure media freedoms and a safe space for civil society and human rights defenders to engage in their activities. These are means for the public to ensure that their governments make decisions that are in the interest of everyone, especially in this context of high uncertainty. Also, measures should be clearly communicated in accessible ways to ensure that all people, including people with disabilities and ethnic and linguistic minorities, can participate in public debate.
6. Parliaments must hold governments to account
Given that all legislation and executive regulations must respect human rights, parliaments should regularly assess the human rights impacts of COVID-19 measures, including through appropriate powers of the opposition (in accordance with each state’s constitutional structure) for effective parliamentary oversight. The parliament must not cede its responsibility to the government, and the government must not prevent parliament from fulfilling its legislative and supervisory roles.
7. Judicial independence must be protected
During a crisis, governments and parliaments should be particularly vigilant in protecting the independence of the judiciary so that courts can scrutinise laws, as well as their implementation, for human rights compliance. Fair procedures and the enforcement of judgements are also essential elements in this regard, helping to ensure that rights and freedoms are protected during the crisis.
8. Restrictions on democratic rights must be kept in check
If freedom of assembly limitations are put in place to contain COVID-19, a blanket ban must be speedily replaced by other measures that achieve this objective. If surveillance measures are installed to tackle further spread of COVID-19, they should respect the right to privacy of each individual. Governments should avoid making decisions in highly-contested areas or calling elections, as long as such restrictions on democratic rights are in place. If elections must go ahead, parliaments should make sure that opposition parties have equal access to the people, that election laws are not amended (unless supported by the parliamentary opposition), and that voters can take part in elections in practice.
9. States should engage with their NHRIs
States should work with NHRIs in their efforts to combat COVID-19. As independent, pluralistic institutions mandated by the state, we monitor and provide credible advice on the human rights implications of state measures. We are well-placed to advise on the legality of human rights derogations due to our expertise in international human rights standards. We also handle individuals’ complaints and work with civil society and human rights defenders to raise the voices of all affected people, including the most vulnerable, such as by reporting to national and international bodies.