Press Release

IACHR Calls on the OAS States to Ensure That the Emergency Measures They Adopt to Address the COVID-19 Pandemic Are Compatible with Their International Obligations

April 17, 2020

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) called on member states of the Organization of American States to ensure that any exceptional measures that are adopted to address the COVID-19 pandemic are compatible with their international obligations.

The IACHR acknowledged that states in the Americas are in the midst of a complex emergency due to the rapid spread of the COVID-19 virus, which has been declared a pandemic and has affected different population groups in practically every country in the region. This situation is affecting the population’s health and is currently the top priority of countries’ health systems but it also impacts other areas such as economic development, labor, the education of children and adolescents, and security.

The IACHR has observed that different states in the region have responded to exponential increases in the number of infections by declaring states of emergency, states of exception, and states of disaster on the grounds of so-called public calamity or health emergencies through presidential decrees and various types of regulations to protect public health, combat the pandemic, and prevent an increase in infections. According to the information available, Argentina, Bolivia, Chile, Colombia, Ecuador, El Salvador, Guatemala, Honduras, Panama, and Peru have officially informed the OAS that they have suspended guarantees as per article 27 of the American Convention.

Taking into account the fact that states are obliged to respect and guarantee human rights, the IACHR urged all countries to ensure that any exceptional measures they adopt to address the COVID-19 pandemic are compatible with their international obligations.

In this regard, the IACHR understands that during a widespread pandemic that may affect the population’s life and health, it may be imperative under certain circumstances to restrict the full enjoyment of rights such as the right to assembly and freedom of movement in tangible public or common spaces when these are not indispensable for obtaining essential supplies or accessing medical care, with the goal of achieving adequate social distancing.

While certain restrictions may be permissible, it is essential that states ensure that any such restrictions and any others that may be imposed on a given right during the pandemic in a democratic society are necessary and strictly proportionate to achieving the legitimate goal of protecting human life and health. Likewise, the IACHR noted that any restriction that is adopted must specifically contemplate the effects it has on the most vulnerable groups of society, and that states must ensure that the impact of such restrictions is not particularly disproportionate by adopting affirmative measures. All decisions must specifically consider the gender, intersectional, linguistic, and intercultural approaches.

Protecting human health cannot be invoked ambiguously or abusively to justify a disregard of the state’s human rights obligations pursuant to the essential principles of a democratic society. Instead, they must pursue a specific purpose, such as preventing the spread of infection, curbing situations that jeopardize human life, and providing care for those who are ill or affected by the pandemic. Likewise, any state that intends to impose a restriction of this type must prove that this satisfies the principle of legality, that it is suitable for achieving the purpose in question, that there are no other, less harmful means of achieving it, and that the effects it causes are not more harmful to the rights that are affected by the restriction than the benefits that are obtained.

On the matter of states of emergency, the IACHR has argued on several occasions that states cannot simply declare an emergency without first specifically justifying that an exceptional emergency situation does indeed exist. Consequently, declaring a state of emergency to address the spread of the COVID-19 pandemic should not be used to suppress an undefined set of rights nor should it be established indefinitely or to justify actions on the part of state agents that run counter to international law, such as the arbitrary use of force or the suppression of the right of access to justice for victims of human rights violations during the health emergency.

As the IACHR pointed out in Resolution 1/20, “Pandemics and Human Rights in the Americas,” international human rights law stipulates a number of formal and material requirements that states must comply with. Specifically, in the event that a state of emergency is declared: (i) it must be stated that there is an exceptional emergency situation, the seriousness, imminence, and intensity of which represent a real threat to the independence or security of the state; (ii) the suspension of certain rights and guarantees must only be in force for a period of time that is strictly limited to the requirements of the situation;  (iii) the measures taken are proportionate, the suspension of rights or guarantees is the only possible means of dealing with the situation, which cannot be handled through the use of the ordinary powers of the government, and that the measures taken do not cause harm to the right being suspended that is greater than the benefit obtained by suspending this; (iv) the measures taken are not incompatible with the other obligations under international law and do not entail discrimination of any type.

The IACHR stressed that states cannot suspend rights that are nonderogable under international law. Specifically, the right to recognition as a person before the law; the right to life; the right to humane treatment and the prohibition of torture, inhumane, cruel, and degrading punishment or treatment; freedom from slavery and servitude; freedom from ex-post-facto laws; freedom of conscience and religion; the protection of the family; the right to a name; the rights of the child; the right to nationality; and the right to participate in government. States should not suspend legal proceedings to ensure the full exercise of rights and freedoms, including habeas corpus and amparo proceedings to monitor the actions of authorities, including restrictions on personal freedoms in this context. These guarantees must be exercised within the framework of due process of law and under the principles of this.

Likewise, the IACHR noted that states of emergency must always be declared in accordance with the constitution and other provisions governing such declarations, and that the rights whose enjoyment is to be limited be expressly identified, along with the length of time they will be suspended for and the geographic areas that will be affected, so as to justify the exception in question. Any restrictions or suspensions that are adopted must be based on the best scientific evidence available, and particular consideration should be given to the effects these have on the most vulnerable groups of society to ensure that the impact of such restrictions is not particularly disproportionate by adopting any affirmative measures that may be necessary.

Any state party to the American Convention that suspends any human right must immediately inform the other states party to the convention through the Secretary General of the Organization of American States of the provisions that it has suspended, the grounds for the suspension, and the date on which the suspension is to end. The IACHR recommends that states that are not party to the American Convention that they adopt the same practice as a safeguard against the abuse of extraordinary powers during a suspension and as a means of demonstrating solidarity and cooperation among member states regarding measures that may be adopted to address the current emergency.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 076/20