COVID-19 & Human Rights Standards in Latin America
AUWCL Professor and Dean Emeritus Claudio Grossman researches the impact of the COVID-19 crisis on the protection of human rights in Latin America. In addition, he was appointed to the newly formed Commission on Pandemics and International Law at the International Law Institute (Institut de Droit International, IDI). Grossman was elected in the IDI in August last year. The Institute membership “comprises the world’s leading public international lawyers”, among them current and former members of the International Court of Justice. The goal of the Commission on Pandemics is to identify and clarify the international legal framework “relevant for the response to the current crisis, but also to the prevention of new crises in the future.”
On April 8 and May 4, 5, and 7, 2020, Professor Grossman organized or participated as a moderator and/or panelist in public, live Zoom panels with leading experts in international human rights law to discuss the impact of the COVID-19 pandemic on the protection of human rights. Participants included the President and members of the Inter-American Human Rights Commission (IAHRC) (the premier institution in charge of the international protection of human rights in the Region), leading academics, NGO representatives. In the different Zoom panels participated the IAHRC President Joel Hernández, Commissioners Soledad Arosemena de Troitiño, Julissa Mantilla Falcón, Antonia Urrejola, and Flavia Piovesan, the IAHRC Special Rapporteurs Edison Lanza (Freedom of Expression) and Soledad García (Economic, Social and Cultural Rights); the Executive Secretary Paolo Abrao; and the former Deputy Executive Secretary Elizabeth Abi-Mershed. Other panelists included the director of the Center for Justice and International Law (CEJIL), Viviana Kristicevic; and Sergio Bítar, a senior adviser of the Inter-American Dialogue. In addition, AUWCL Professors Robert K Goldman, Claudia Martín and Diego Rodríguez also participated.
The virtual panels addressed the short-term and long-term impact of the COVID-19 crisis on human rights and democracy in Latin America and in the world. Even without the COVID-19 crisis, the Region already faces numerous serious human rights challenges that resulted from different forms of chauvinism, populism and exclusion on social and other grounds such as gender, ethnicity, and sexual orientation. The grave situation for human rights and democracy in Venezuela and Nicaragua is generating humanitarian crises and economic devastation. While there are examples of countries upholding the values of the rule of law even in the current emergency, attempts to invoke extraordinary powers to justify unwarranted concentration of power, insensitive and erratic economic and social policies, organized crime and corruption are real dangers for democratic institutions. As the panelists pointed out, COVID-19 has made these challenges more visible than ever. The combination of these challenges with the impact of the virus risks plunging the Region into an unprecedented humanitarian, social, and economic crisis.
Viviana Kristicevic and different members of the IAHRC were among the speakers who addressed the long-term impact of the crisis on human rights. They pointed out various fields where the impact of the crisis will be noted. First, COVID-19 will shape the role of social rights in Latin America, as more guarantees for these rights will be developed to guarantee universal access to health care as a means to protect the right to life. This may lead to reassessing the role of the international responsibility of states as to the “duty to prevent” health risks that have the potential to affect large parts of the population. Second, the crisis will shape a new debate about the rights and duties of states in situations of national emergency. Third, the crisis will raise awareness about the gender imbalance in the Region and the need to specially protect women and other vulnerable groups.
In addition to the long-term impacts, the experts—including the IAHRC President as well as its Executive Secretary—pointed out that many specific measures are currently needed to address the situation on the ground. In Latin America, it is the IAHRC that has taken measures to support the member states in dealing with the human rights dimensions of the crisis. Two public statements of the IAHRC address the relationship between the general human rights protection and the right to health as a social and economic right, as well as the IAHRC’s recommendations on the compatibility of the freedom of circulation with the state measures of confinement due to the virus. Paolo Abrao also highlighted the Commission’s follow-up on the crisis in Venezuela, and the mechanism put in place to monitor the access to adequate health services for incarcerated people in the Region. In this context, he considers that the IAHRC’s cautelar measures are proving particularly useful, as they direct states to protect the population in times of urgency to adopt necessary measures for the protection of the right to life.
The IAHRC’s Rapporteurships also play a meaningful role on certain topics. The Rapporteur on economic, social and cultural rights, Soledad García, expressed her concerns about the difficulty in controlling the spread of the virus among the migrant populations. The Rapporteur on freedom of expression, Edison Lanza, highlighted the risk of abuse of public health protection measures to silence political speech and expression. The cases of Venezuela and Nicaragua are particularly clear examples—but unfortunately not the only ones—of the abuse, threats, and arbitrary detention against journalists, the forced closure of news media outlets, the persecution of health workers who denounce the problems at their workplace, and the general control and supervision of internet and other outlets for free speech.
The panels also covered the states of emergency that many Latin American states declared to protect public health. Prof. Grossman referred to the legal framework established in the American Convention of Human Rights (ACHR), in particular its art 27. That treaty lays down obligations by states concerning the declaration of an emergency the non-derogability of basic rights and strict requirements of necessity, timeliness and proportionality for the suspension of non-absolute rights. The panelists underlined the role of the IAHRC to supervise the legitimacy of these states of emergency. However, as Professor Claudia Martin pointed out, the procedural delays of the inter-American system are a reason why the international supervision mostly comes after the states of emergency are already lifted. Professor Diego Rodríguez discussed additional supervision mechanisms created within the inter-American human rights system. He pointed out the opportunities in the supervision of states of emergency by the expert working groups, such as the ones created for the massacre of Ayotzinapa in Mexico and the political transition in Bolivia since November 2019, as well as the publicity provided by press releases. Professor Robert Goldman addressed the challenges for the future, including the danger that measures enacted during the emergency are kept while the situation that justified them changed. This would be in violation of international law. Elizabeth Abi-Mershed extensively addressed the fundamental role cautelar measures play in the IAHRC practice. She observed that over the years the Commission had adopted many cautelar measures to protect the health and life of victims. According to Abi-Mershed, that background makes the cautelar measures particularly relevant in the current times of COVID-19. Also other powers and activities of the Commission may be used to protect the population in the Region, such as the public hearings that the Commission holds during their periodic sessions.