PRIORITY ACTION 2: Ensure that emergency restrictions are anchored in the rule of law
The severity of the health crisis has called on leaders to make unprecedented decisions affecting economies, societies, and the individual lives of citizens. In some instances, the pandemic necessitated some countries to take extraordinary measures to protect the health and wellbeing of the population. However, even in such emergency situations, measures taken need to follow the rule of law and adhere to international human rights standards. They must withstand tests and demonstrate that they are legal, legitimate, necessary, non-discriminatory and proportionate to the aims sought.
National declarations of emergency and ensuing use of emergency powers ought to fulfil the legality criteria, often requiring assent through legislatures, and powers and restrictions should serve legitimate public health goals rather than other aims. Emergency powers may require interferences with individual human rights and so should include accountability mechanisms, such as the right to seek review of decisions that affect a person’s fundamental rights by an independent, external body, within a timeframe that is contextually reasonable.
Since the outbreak of the pandemic, governments have been required to respond expeditiously to rising case numbers, emerging virus variants, and novel threats. As a result, the application of broad measures has curbed freedom of movement or freedom of assembly for public health purposes. International human rights instruments, particularly the International Covenant on Civil and Political Rights (ICCPR), allow for such emergency measures, but require them to be time-bound to the extent to which a state of normalcy can be returned.
The COVID-19 pandemic is affecting every aspect of society, but vulnerable groups who were already marginalized will likely bear the greatest burden. Building beyond the immediate emergency response, anti-discrimination laws and rule of law institutions, such as national human rights organizations, can be instrumental in addressing the discrimination that so often holds back the development of inclusive and sustainable societies.
Pandemic preparedness and response – COVID-19 Law Lab
IDLO is implementing a Pandemic Preparedness and Response Project (PPRP) that aims to strengthen legal and policy frameworks to prevent, detect and promptly respond to Public Health Emergencies of International Concern (PHEICs) and other public health risks, including COVID-19, in line with International Health Regulations (IHR, 2005) and international standards. The IHR are an international legal instrument that is binding on 194 countries across the globe, including all Member States of the World Health Organization (WHO). The aim of this international treaty is to help the international community prevent and respond to PHIECs and other public health risks. The international community can only achieve this if member countries comply with the IHR. The PPRP aims to enable countries to strengthen their legal and policy frameworks in compliance with the IHR, helping to turn a global commitment into national action. Working with the WHO and other partners, IDLO has mobilized resources needed for technical support in selected countries.
In addition to the PPRP, IDLO has worked with the UNDP, UNAIDS, WHO, O’Neill Institute and Inter-Parliamentary Union to avail the COVID-19 Law Lab. The COVID-19 Law Lab is a database of laws and policies that countries have enacted in response to the pandemic. It includes state of emergency declarations, quarantine measures, disease surveillance, legal measures relating to mask-wearing, social distancing, and access to medicines and vaccines. Currently indexing laws from over 190 countries, the database will continue to grow as more countries and themes are added. IDLO joined this partnership in November 2020 and is contributing to this initiative by mobilizing information through collaboration with field offices.
The Law Lab is envisaged to contribute to the Universal Health Coverage (UHC) Legal Solutions Network, a unique collaboration focused on using law to further the commitments laid out in the political declaration on UHC, approved by the UN General Assembly at the first ever high-level meeting on UHC. The Law Lab is accessible in multiple languages at: https://covidlawlab.org/.
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Honduras admits petition to protect prisoners from COVID-19
In Honduras, the National Committee to Prevent Torture and Cruel, Inhuman or Degrading Treatment (MNP-CONAPREV), one of IDLO’s partners, presented a petition to the Supreme Court of Justice to protect at-risk prisoners from exposure to COVID-19.
The Habeas Corpus – a request to determine whether the imprisonment of certain categories of persons is lawful – asks the Court to consider for early release those who are particularly vulnerable. This category includes detainees suffering from chronic diseases (such as diabetes, hypertension and cardiovascular illnesses), those over the age of 60 and people living with HIV/AIDS. The request was filed in March 2020 and accepted by the Constitutional Chamber of the Supreme Court on April 1, 2020. In line with international recommendations, it argues that continued detention during the COVID-19 pandemic presents an immediate threat to many prisoners’ lives, considering their pre-existing conditions and proximity to others in a jail setting.
IDLO’s technical support to justice institutions in the country paved the way for the MNP-CONAPREV to take action. IDLO has been providing support to the work of the MNP-CONAPREV in Honduras in promoting the rights of prisoners and detainees since 2015. In 2020, IDLO established a working group made up of court staff, prosecutors and representatives of the MNP-CONAPREV, the National Penitentiary Institute, the National Commission for Human Rights and the country office of the United Nations High Commissioner for Human Rights.
The working group was tasked with designing a roadmap and guidelines to improve institutional coordination and strengthen access to justice for prisoners, aligned with international and regional human rights standards.
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