EXECUTIVE SUMMARY
In response to the COVID-19 pandemic, democratic and non-democratic countries have imposed states of emergency in declared and de facto forms. According to the International Center for Non-Profit Law’s COVID-19 Civic Freedom Tracker, 110 countries have declared a state of emergency since March 2020.
International law provides States with the ability to declare a state of emergency to respond to threats to public safety, health, or national security. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) explicitly recognizes that, during officially declared public emergencies that threaten the life of the nation, States may derogate from some of their obligations under the ICCPR to the extent “strictly required by the exigencies of the situation.” In its General Comment 29, the UN Human Rights Committee has set requirements for these states of emergency. In particular, it notes that States are under obligation to ensure that measures imposed under the declared state of emergency must be proportionate, timebound, temporary, and prescribed by law. It further notes that, although international law permits restrictions on the enjoyment of certain rights in times of emergencies, including public health crises, these restrictions should meet the principles of legality, proportionality, necessity, and non-discrimination. Despite these legal obligations, during COVID-19, several governments have declared states of emergency without a time limit, and have used these states of emergency to pretextually curtail fundamental rights. Fifty-eight countries have enacted legal measures that infringe on the right to freedom of expression while 153 countries have issued orders and enacted laws that affect the enjoyment of the right to freedom of peaceful assembly.
COVID-19-related emergency measures have further worsened the situation of human rights defenders (HRDs). These measures have been used as “a cover for human rights violations, further restricting fundamental freedoms and civic space, and undermining the rule of law.” HRDs have been subjected to an increased level of harassment, arrests, intimidation, and criminalization for their legitimate work.
In response, several civil society actors have led initiatives to document the adverse impact of these restrictive measures on HRDs. Others have led initiatives to track these restrictive measures and assess whether they meet the ICCPR requirements of legality, necessity, proportionality, and non-discrimination. HRDs in some countries adopted innovative approaches to continue to operate and advance their human rights advocacy work. Others chose to use strategic litigation to challenge the constitutionality of states of emergency and the legality of orders and measures.
The American Bar Association (ABA) Center for Human Rights (CHR) undertook this report to analyze the impact of COVID-19 emergency measures on HRDs and explore the responses of HRDs through the use of strategic litigation and other actions to push back against disproportional restrictions related to COVID-19 states of emergency. This report captures the successes and challenges of such strategies. It examines the viability of such approaches to effectively push back against attempts to normalize restrictive measures that do not meet public health goals and maintain civic space for HRDs and other civil society actors. The report finds that the success of challenges largely hinged on the nature of the authorizing statute and scope of its enforcement. Successful legal efforts challenged the repurposing of statutes originally meant to target activity unrelated to public health or public safety. Further, in cases where litigants focused on separation of powers, courts seemed more receptive to challenges to executive measures without legislative oversight.
As the viability and success of strategic litigation largely depends on the degree of respect for rule of law and the independence of the judiciary, the report also examines non-litigation approaches adopted by civil society actors to challenge de facto measures and practices, including the deployment of military forces to enforce lockdown measures, selective or disproportionate enforcement, and police brutality. Through the formation of new coalitions, enhanced coordination with other actors, and pressure on government agencies, civil society actors successfully challenged de facto measures. Finally, the report concludes with a set of recommendations for all stakeholders to help ensure that, in the future, governments effectively respond to public health crises while protecting human rights and fundamental freedoms.