Emergencies End Eventually: How to Better Analyze Human Rights Restrictions Sparked by the COVID-19 Pandemic Under the International Covenant on Civil and Political Rights

56 Pages Posted: 5 Jul 2020 Last revised: 7 Jul 2020

See all articles by Eric Richardson

Eric Richardson

UC Berkeley Law School; Centre for Humanitarian Dialogue; UNHR Geneva UN Studies Program; UNHR Geneva

Colleen Devine

Gibson Dunn & Crutcher

Date Written: June 4, 2020

Abstract

In the wake of the COVID-19 pandemic, states have been quick to adopt emergency measures aimed at curbing the spread of the virus. However, poorly constructed restrictions threaten to undermine hard won human rights protections and may in fact erode important elements of international human rights law as a result of overreaching implementation or lack of rigorous analysis in how the restrictions are put, and kept, in place. This article analyzes the International Convent on Civil and Political Rights (ICCPR) standards which apply to emergency regulation in times of public health crisis and the tangled morass of legal tests which have been used to balance human rights and emergency restrictions. We argue that in the current pandemic, human rights are best protected when states act under the Article 4 derogation mechanism to put emergency measures in place because it provides opportunities for oversight ensuring the end of emergency restrictions after the crisis subsides and provides certainty as to how states are justifying their emergency measures under the treaty regime. Given that so few states have provided notice of derogation under the ICCPR, this Article also considers what a rigorous analysis would look like when restricting freedom of movement, privacy, and freedom of assembly using the limitation language found in each article, suggesting best practices for better balancing COVID-19-related emergency measures with human rights.

Keywords: COVID-19, International Covenant on Civil and Political Rights, Freedom of Movement, Freedom of Assembly, Privacy, Surveillance, Derogation, Limitation, International Human Rights Law, Coronavirus

Suggested Citation

Richardson, Eric and Devine, Colleen, Emergencies End Eventually: How to Better Analyze Human Rights Restrictions Sparked by the COVID-19 Pandemic Under the International Covenant on Civil and Political Rights (June 4, 2020). Eric Richardson & Colleen Devine, Emergencies End Eventually: How to Better Analyze Human Rights Restrictions Sparked by the COVID-19 Pandemic Under the International Covenant on Civil and Political Rights, 42 MICH. J. INT’L L. (Forthcoming). , Available at SSRN: https://ssrn.com/abstract=3643253

Eric Richardson (Contact Author)

UC Berkeley Law School ( email )

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Berkeley, CA 94720-7200
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HOME PAGE: http://UNHRGeneva.org

Centre for Humanitarian Dialogue ( email )

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Switzerland
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UNHR Geneva UN Studies Program ( email )

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HOME PAGE: http://UNHRGeneva.org

UNHR Geneva ( email )

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United States

Colleen Devine

Gibson Dunn & Crutcher ( email )

200 Park Ave
New York, NY 10166

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