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COVID-19 Emergency Measures: GRC suggests a “6 Cs Check list” to ensure their optimal functioning

10 April 2020

Following the dramatic spread of COVID-19, governments have responded in a variety of ways and introduced a range of emergency and extraordinary measures, including States of Emergency, emergency disaster acts, orders or decrees, or notifications under the European Convention for the Protection Human Rights and Fundamental Freedoms (ECHR), or notified the UN that they have derogated from the International Convention on Civil and Political Rights (ICCPR).

 

Whilst emergency declarations are a critical part of the response to COVID-19, they risk abuse and can precipitate a weakening state justice and security institutions triggering entirely new crisis, long term instability, and a dangerous ‘new normal’ being set for unsuspecting citizens.

 

It is important to properly determine whether governments actions are justified under the ‘state of emergency’ cover invoked to respond to COVID-19 (or indeed any other legal framework invoked or introduced) and guard against government’s taking unjustified actions during states of emergency.

 

For easy reference and to aid civil society organisations (CSOs) and others stakeholders involved in assessment of the validity of their government’s actions taken under SoEs “in response to COVID-19” which might on the face of it feel less than democratic, GRC has developed the “Global Right Compliance SoE Checklist”. It requires you to ask six simple “C” questions of your government’s actions in relation to their SoE in the context within which you are living. By way of reminder, this test is valid for an SoE enacted to help respond to COVID-19 or any other such crisis.

 

GRC SoE CHECK LIST – “6 Cs for SoE”

Context Analysis: Did the context, at the outset and currently justify a SoE declaration? Constant assessment of the conditions in country operating under a SoEs is necessary to determine the past and present validity of the SoE.

Correct Declaration: Was the SoE, derogation or other legal framework, used to enable emergency powers correctly declared and notified to the appropriate bodies? Expert legal advice can be requested to determine this.

Constant Oversight and Review: Is ongoing oversight and review of the SoE available? This engages CSOs, media, parliament and the judiciary. Was the parliament allowed to keep functioning? Their role is  critical to avoid abuse. Parliament should not be dissolved or superseded during a SoE and they should have the power to assent to, and oversee the right, to declare, extend or end a SoE. The judiciary must also not be hindered from its independent function to act as a check on abuse of power by the executive/parliament. Fair trial rights must continue to be guaranteed. Is the judiciary able to undertake this role? Finally, can CSOs and media operate freely to opine on government actions being taken under the SoE?

Compliant with International Law: Notwithstanding the demands of these exceptional times, rule of law principles can and should govern the policy response to this crisis in which international human rights law (IHRL) provides the leading framework. SoEs must comply with international law and states’ international and domestic legal obligations.

Conditional on emergency context: SoE measures are conditional on the emergency context existing. SoE measures must be impermanent, and strictly time limited with clear sunset clauses. Emergency rule cannot last longer than the emergency itself should not lead to a ‘new unjustified normal’ once the emergency is over.

Correspond to the risk:  SoE must correspond to the risk, they must be “proportionate” to the risk and must not go further than necessary to fulfil their purpose. Proportionality as fundamental requirement for SoE measures, particularly those that involve derogations from IHRL.

 

GRC is an international legal practice focussed on ensuring that “global rights are complied with”. After applying the GRC 6c SoE test, if further legal opinion on the validity and limits of government’s actions under SoE is required, GRC remains ready to assist.

 

Also as part of our response to COVID-19, GRC has previously analysed the effect of COVID-19 and associated restrictions on countries facing acute food insecurity and decimated healthcare systems. GRC have published a two-part blog series on Just Security on the effect of COVID-19 on humanitarian access in starvation-affected countries and on refugees and internally displaced persons, focussing on Syria and the Rohingya Refugees in Cox’s Bazaar in Bangladesh. They can be accessed here and here. Separately, GRC is also analysing the IHL obligations of Occupying powers during COVID-19 pandemic, focussing on Russian Occupation in another forthcoming two-part blog on Just Security. Part 1 of the blog discusses Russia’s obligations and compliance in protection of civilians from the effects of the virus. Part 2 will consider to what extent Ukraine, as the displaced sovereign, retains residual obligations under international law to provide further protection.

 

For more information on GRC’s COVID-19 Response, visit https://www.globalrightscompliance.com/

 

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