Commentary by Nora Sveaass
Commentary by Nora Sveas
In situations of emergency and crisis there is a need for measures and arrangements set up for the common good, including altering and setting limitations to what is considered regular rights and routines in our daily lives. Emergencies may therefore give rise to situations where basic human rights are under pressure, or even disrespected over and beyond what seems necessary, reasonable and proportional to the situation in hand. The kind of emergency situations that we may encounter are many – armed conflict, terror, natural disasters, major accidents with severe environmental consequences or pandemics. In all the instances good governance is to protect, ensure safety and security and prevent escalation of the crisis, whatever it may be. To this end, both international and national legislation contain guidelines in relation to regulating the behaviour, rights and security of the population. On the one hand we have the balancing act between what is necessary in order to stop, contain and prevent, in this case an aggressive and fast spreading virus, and on the other, what may seem unjustified in this process regarding rights and safeguards. In this context, we may speak about derogable and non-derogable rights. The derogable rights are those that under exceptional situations amounting to a public emergency, may be set aside, as measures of temporary nature. Examples of this is what is now happening in most places, serious reduction in movement, access to work, school, regular health care, even deprivation of liberty for limited time, e.g. quarantines. The need to derogate rights in emergencies and the conditions laid down for such enforcement are elaborated in the documents referred to below, . What may not be set aside are the so-called non-derogable rights, such as the right not to be tortured. This is clearly expressed in article 2 of the UN Convention Against Torture, which reads: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”.
A particular attention must be given to those who already find themselves in deprived situations, such as persons detained in prisons, in involuntary psychiatric treatment, in closed migration centres and other facilities where individuals are not allowed to leave. In situations of emergency, there is a risk that their regular rights and the few benefits they enjoy may be further limited, including contact with family, work, training, health care etc. To reinforce this attention and as guidance to those who are engaged in monitoring of these places, such as the National Preventive Mechanisms, the two international bodies dedicated to the prevention of torture, have issued important statements in relation to this. The UN Subcommittee on the Prevention of Torture issued a statement regarding compulsory quarantine for Coronavirus in February , and is now expanding on this issue in an upcoming document. Likewise, the Committee for the Prevention of Torture (CPT) of the European Council, issued a statement of principles on March 20. Both documents represent useful guidelines and awareness raising input.
Emergencies are challenging times, and there is a need for collaboration and solidarity in order to deal with the difficulties implied. But the democratic principles, transparency and information must never be set aside, and it is our duty also to keep a clear focus on this and include the many who, from very different and highly vulnerable situations, as mentioned above, may, through emergency measures be even more vulnerable, marginalized or forgotten than before the exceptional circumstances were declared. A good summary of the situation we are in, and the role of human rights is provided by Michael O’Flaherty, the Director of the EU Agency for Fundamental Rights, in this video https://fra.europa.eu/en/video/2020/video-blog-michael-oflaherty-corona-virus.
 Guide on Article 15 of the European Convention on Human Rights Derogation in time of emergency https://www.echr.coe.int/Documents/Guide_Art_15_ENG.pdf
 CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency. https://www.refworld.org/docid/453883fd1f.html