Rana Moustafa
Multilateralism is the foundation for the promotion and protection of human rights. Reflected in the founding of the United Nations (UN),[1] the articulation and defense of human rights norms and claims are deeply embedded in the evolution of the post–World War II multilateral institutional world order, from international bodies dedicated to human rights themselves to others charged with health, and economic growth and development.
Despite the broad attention given to human rights across these institutions, states have remained reluctant to cede power or resources to fulfill these mandates, and have also often underfunded human rights bodies. The result has been that despite the lofty notions of human rights built into multilateral charters, the bodies charged with enforcing them have failed to meet expectations and mandates. This in turn has undermined the legitimacy of the human rights institutions (HRIs) and weakened multilateralism.
The decade before COVID-19 witnessed criticism of HRIs as a result of their failure to end, or even to some degree prevent serious violations of human rights in many parts of the world, particularly Syria, Myanmar, and Yemen.[2] The United States, under Donald Trump, withdrew from the UN Human Rights Council (UNHRC). Moreover, the governments of Venezuela under Hugo Chávez and Brazil under Dilma Rousseff rhetorically attacked the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR), while Russia withheld funding from the Council of Europe (CoE), claiming that the institutions and norms were threats to culture, local norms, and national sovereignty.
In that context, COVID-19 had unprecedented implications for human rights worldwide, adding to preexisting skepticism of—and even assaults on—the authority and capacity of the HRIs to respond to those implications. In a press release in August 2020, the chairpersons of the ten UN treaty bodies warned that their work was at risk due to lack of funding.[3] This paralleled rising concern about the inability of HRIs to respond to vaccine nationalism, which undermines global efforts to end the pandemic. The UN Independent Expert on the Promotion of a Democratic and Equitable International Order has conducted a study examining the obstacles to an effective multilateral response to this situation.[4]
Nevertheless, states have renewed their commitment to multilateralism on different occasions during the pandemic, most notably in commemorating the seventy-fifth anniversary of the UN.[5] Despite the preexisting challenges, perhaps the pandemic and the pressures it has exposed can provide lessons for reconsidering and reconfiguring human rights institutions and procedures. This chapter starts by exploring the human rights implications of pandemics in general and the new challenges brought by COVID-19, before considering the specific capacity of the HRIs to respond to these challenges. The final section offers a set of recommendations for improving the functioning of these institutions now and in future pandemics.
Human Rights and Pandemics
COVID-19 is “a human crisis that is fast becoming a human rights crisis,” warned UN Secretary-General António Guterres in April 2020, amid increasing claims that various human rights were being negatively affected by state responses.[6] But the adverse effects of pandemics on human rights are not new: states’ responses to previous pandemics have always raised concern over their implications for human rights.
Conventional wisdom has long held that responding to public health emergencies through measures such as quarantine, isolation, travel restrictions, assembly restrictions, and surveillance may require limiting certain rights. The 1966 International Covenant on Civil and Political Rights (ICCPR) allows states to limit certain rights to take the necessary measures to protect public health.[7] The same understanding applies to the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR),[8] and to regional human rights instruments.[9]
However, the right of states to impose such limitations is not absolute. It is generally accepted that they shall be prescribed by law and be nondiscriminatory. It is also obligatory that limitations are imposed to pursue a legitimate aim (in this case, the protection of public health) and should be necessary and proportionate, meaning that a “state shall use no more restrictive means than are required” to secure public health.[10]
If the public health emergency rises to the level of threatening “the life of the nation and its existence,” it is generally accepted that states may take measures derogating from their human rights obligations, thus suspending the enjoyment of certain rights.[11] Even so, the right to derogate from human rights is not absolute. States, in the first place, cannot derogate from nonderogable rights.[12] Here, suspension should be temporary and only imposed to the extent strictly required by the exigencies of protecting public health. Other states should be notified of derogations under the relevant provisions in the human rights conventions.
Nevertheless, successive public health emergencies have raised concerns regarding states’ compliance with these limitations on their power. Responses to the human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/AIDS) crisis (in the 1980s) were notorious for being discriminatory against HIV/AIDS sufferers. States isolated and quarantined those who tested positive for AIDS, even though those measures were seen as medically unnecessary because AIDS cannot spread through simple proximity.[13] The counterproductivity of those measures drew attention to the necessity of adopting a human rights–based approach to responses to health crises. Jonathan Mann, the former head of the Global Program on AIDS run by the World Health Organization (WHO) and the father of the human rights–based approach to health, made the following argument:
The HIV/AIDS pandemic confirmed that human rights are an integral component of the response to infectious diseases.[15] Nonetheless, states still adopt measures against those living with HIV/AIDS that contravene the limitations framework of international human rights law.[16]
Measures adopted by states responding to Severe Acute Respiratory Syndrome (SARS) in 2002 and 2003 raised similar concerns.[17] As a result, the WHO revised its International Health Regulations in 2005 to include a number of provisions stressing the necessity of adopting a human rights–based approach to responses to infectious diseases.[18] Article 3(1) expressly states that “the implementation of these Regulations shall be with full respect for the dignity, human rights and fundamental freedoms of persons.” However, ensuing public health emergencies on tuberculosis, swine flu, and Ebola witnessed to varying degrees measures that were again considered to be in violation of the human rights limitation and derogations framework.[19]
Given the history and the recognition of the risk to human rights posed by responses to public health emergencies, did COVID-19 bring any new challenges to civil, political, economic, cultural, or social rights?
Human Rights in the COVID-19 Pandemic
COVID-19 is no different from previous pandemics in triggering excessive, disproportionate, and even illegitimate state measures. Nevertheless, it has brought new challenges to the human rights system, primarily stemming from the implications of its unprecedented geographical spread and global political context.
By mid-April 2020, the virus had affected all states worldwide, infecting 1,918,138 people and causing the deaths of 123,126 people, as reported to the WHO.[20] In terms of human rights, the pandemic has caused restrictions on a global scale, which in turn has had unprecedented negative implications for “nearly every right across the spectrum of the Universal Declaration of Human Rights.”[21] In addition to the curtailment of civil and political freedoms, the global cessation of movement between borders and within countries has had equally unprecedented socioeconomic and cultural implications. The pandemic caused a massive decline in employment, not witnessed since World War II;[22] it is estimated that more than 120 million people were forced into extreme poverty during 2020.[23] Furthermore, global school closures and job losses resulted in unparalleled declines in human development worldwide.[24]
These global challenges to human rights called for “heightened solidarity” between states.[25] However, the unprecedented geographical spread of COVID-19 was a major hurdle to reaching this level of cooperation, exposing the gap in the international legal framework concerning cooperation in situations where all states are affected.
Moreover, COVID-19 broke out in an environment of increasing populism and authoritarianism. Thus concern was expressed that this pandemic would have an enduring effect on human rights; violations would fast become the norm not only within specific states but on the international level—an effect that would be tolerated by individuals out of fear and concern over future pandemics.
The pandemic has been used as a pretext by some states to enforce measures that seek to curtail rights and freedoms beyond what is necessary to combat it. As the WHO declared COVID-19 a public health emergency of international concern,[26] many states declared a state of emergency, vesting the executive organ with expansive powers to restrict human rights although the infection rates in those countries did not necessitate such restrictions.[27] Given that states of emergency tend to outlast emergencies in authoritarian states, there is a high risk that human rights violations will go unchecked in those states.[28] COVID-19 created fertile ground for disseminating fake news, and this has given states the opportunity to adopt new laws[29] and implement existing ones that criminalize misinformation with vaguely defined provisions. This, in turn, has allowed states to prosecute those who have stood in opposition to their policies and decisions, normalizing violations of freedom of speech.[30]
In addition, the fact that COVID-19, unlike previous pandemics, hit Western democratic states hard has resulted in a convergence of some measures between these states and populist/authoritarian states in other parts of the world.[31] In consequence, there has been a growing fear that these measures would fast become the norm at the international level, given the high threat level for future pandemics.[32] For instance, the surveillance techniques adopted in both democratic and populist/authoritarian states to monitor the movement of citizens are subject to a serious risk of such normalization.[33] In other words, there is a significant risk that international consensus will be reached as to the ongoing necessity of surveillance measures to prevent future pandemics.[34] This has been the case with surveillance measures implemented in response to the events of 9/11 but that continue to be used for the purposes of counterterrorism.[35] It is also likely that these measures will be repurposed, causing further erosion not only to the right of privacy but also to freedom of expression and freedom of assembly.[36] There was growing concern that surveillance measures would be adopted not only for purposes related to COVID-19 but also during the Black Lives Matter protests.[37]
The global neglect of refugees and asylum seekers during COVID-19 has raised concerns about the long-term implications of refugee law within international law. Some states have used the pandemic as a pretext for advancing anti-immigrant policies by sending refugees back or closing the processing of applications.[38] Others have closed their borders, turning a blind eye to the rights of refugees and asylum seekers. This widespread disregard for refugees threatens the erosion of their rights under international law, especially in times of pandemics.[39]
The global political context prevailing during this pandemic represents a unique, historic challenge exaggerated by COVID-19. The United States repeatedly praised China in the early months of 2020 for its disease containment measures.[40] In March 2020, however, with the upsurge in infection and mortality rates, the United States blamed China for the spread of the pandemic worldwide, stressing the human rights violations committed in suppressing information about the virus that would arguably have halted its global spread. Conspiracy theories have traveled back and forth between the two countries.[41] As a result, COVID-19, unlike previous pandemics, turned “into a battleground in their competition for power and influence.”[42] This in turn has had various negative impacts on the functionality of multilateral organizations that have a direct or indirect mandate to protect human rights, namely the WHO and the UN Security Council (UNSC).
The United States under the Trump administration accused the WHO of covering up China’s human rights violations and of being biased in favor of its political agenda. In response, President Donald Trump threatened to cut U.S. funding for the WHO and to withdraw from the organization. The direct impact of those decisions on the functionality of the WHO has yet to be determined,[43] but Trump’s accusations triggered calls for reform from many states.[44] They also caused individuals to become more reluctant to comply with state measures based on WHO recommendations.[45]
Increasing tensions between the United States and China have also negatively affected the UN Security Council. Owing to their disagreement on the origins of COVID-19 and the role of the WHO, the UNSC failed to adopt any resolution in the three months after the UN Secretary-General brought to its attention “the significant threats to the maintenance of international peace and security” posed by the pandemic.[46] On July 1, 2020, the Security Council adopted Resolution 2532, yet this was considered a “missed opportunity”[47] because it focused only on the security aspect of the pandemic.[48] Even in that respect, the UNSC has arguably failed to adopt a meaningful ceasefire resolution to ongoing conflicts.[49] Time has shown the limited practical significance of this resolution, with escalating violence reported in different parts of the world.
Moreover, China has used the pandemic as a catalyst for redefining human rights and promoting its approach to state control and governance. After allegedly containing the spread of COVID-19, it launched a propaganda campaign to set its own approach to human rights as a role model in controlling the pandemic and to portray the authoritarian measures it adopted as best-equipped to contain the spread of infectious diseases.[50] China also took the opportunity to promote its development-first approach by claiming that it had followed this approach in its response to COVID-19.[51] It has also taken advantage of the pandemic to pinpoint the violations and excessive measures adopted by Western states in their response to the virus to tarnish their image as guardians of human rights.[52]
In sum, the unprecedented socioeconomic implications of COVID-19, the high risk of normalizing violations of human rights, the attempted redefining of human rights, and the prevailing global political context can all be regarded as new challenges brought on by this pandemic to the human rights regime. How have human rights institutions responded to these challenges?
Human Rights Institutions in the Pandemic:
Updating Practices
The new challenges to human rights brought about by COVID-19 have emphasized the necessity and urgency of ensuring the holistic protection of these rights. A timely response to human rights violations during pandemics is crucial to mitigating their socioeconomic impacts. Pandemics aggravate existing inequalities, making it more difficult to “build back better.” Thus it is important to reverse unnecessary, disproportionate, and discriminatory measures during, rather than after, the pandemic. Waiting until it is over risks the loss of evidence, which can be either destroyed or manipulated by perpetrators of human rights violations.[53] Furthermore, COVID-19 has clearly demonstrated the indivisibility and interdependency of human rights, requiring a holistic and coordinated protection of civil, political, social, economic, and cultural rights.
While there is a vast literature addressing the human rights implications of states’ responses to COVID-19,[54] less attention has been given to assessing the performance of the institutional structure of the human rights regime during the COVID-19 pandemic. To what extent have HRIs proved fit to protect human rights in times of pandemic?
Given the ongoing concern over the continued human rights violations under the pretext of COVID-19 protections, it is understandable that HRIs are regarded as failing in this regard. However, this compliance-based evaluation is ill-suited to assessing the impact of HRIs during the crisis because it does not capture the progress they have made and in most cases leads to their work being characterized as failing. This is because “achieving meaningful change in human rights work is difficult—particularly in the short term.”[55] It took HRIs nearly three decades to achieve progress in enforcing a human rights–based approach to states’ responses to the HIV/AIDS pandemic. Consequently, it would be unjust to ignore their massive efforts to protect human rights during the current pandemic.
Over the past two years, despite worldwide travel restrictions and state-imposed lockdowns, different human rights bodies have adapted their working methods to overcome mobility restrictions.[56] They have held virtual sessions, implemented remote monitoring in lieu of country visits, and virtually resumed the functioning of their individual complaints mechanisms.[57]
Furthermore, international and regional HRIs provided prompt guidance on the normative framework for the protection of human rights during pandemics. They issued general statements on the limitations and derogations framework.[58] They also adopted thematic statements to address states’ obligations regarding particular rights and the extent to which those rights can be derogated from or limited,[59] and in addition issued country-specific statements.[60]
In addition, HRIs established online trackers to monitor state responses to COVID-19 that could affect various aspects of human rights. For example, the Special Rapporteur for the Protection and Promotion of Human Rights while Countering Terrorism, in partnership with the International Center for Not-For-Profit Law (ICNL) and the European Center for Not-For-Profit Law (ECNL), established an online tracker monitoring states’ responses affecting civic freedoms and human rights, with a focus on emergency laws.[61] The European Union (EU) sponsored the International Institute for Democracy and Electoral Assistance (IDEA) in a similar initiative focusing on democracy and human rights.[62]
HRIs have also been sharing good practices among states to assist them in shaping their response strategies to COVID-19,[63] launching training sessions for state officials and civil society organizations to promote a human rights–based approach to COVID-19 response plans.
Human Rights Institutions in the Pandemic: Shortcomings
This is not to deny that COVID-19 has exposed the existing deficiencies in the HRIs and put the spotlight on the urgent need to reform these bodies so they can effectively fulfill their mandates in responding to the human rights implications of COVID-19 and future pandemics.
First, enforcing human rights has always been a major structural deficiency of HRIs, and COVID-19 further exposed their incapacity to provide effective, real-time responses to violations.
Concerning the UN human rights system, the lack of power to adopt binding decisions and enforce them is an admitted structural deficiency in the system. Furthermore, the reporting procedures, as highlighted by Michael O’Flaherty, have “little to offer as a contribution to the resolution of emergency situations” because “emergencies must be addressed while they occur and not according to the accidental application of a reporting cycle.”[64] Nor has the individual communications procedure proven to be effective during the pandemic, primarily owing to the backlog encountered by human rights institutions. Further, UN human rights institutions lack the time and resources to follow up on the large number of recommendations adopted.
Similarly, the African system of human rights lacks the necessary enforcement measures to guarantee compliance with human rights during the pandemic. In addition, the African Court of Human Rights (ACtHR) has been facing an “existential crisis” after a number of African states decided to withdraw their acceptance of direct access to the Court by individuals and nongovernmental organizations (NGOs).[65] Although both can submit cases to the African Commission on Human and Peoples’ Rights for referral to the Court, this does not seem practical given that the Commission has only referred three cases to the ACtHR out of the three hundred cases it has adjudicated.[66] Thus the ACtHR does not seem to have any effective role in enforcing human rights during the pandemic. (See also chapter 12 by Solomon Dersso in this volume.)
Nor does the European Court of Human Rights (ECtHR) seem to be sufficiently equipped to promptly enforce human rights during pandemics. This is primarily due to the fact that potential plaintiffs must first exhaust local remedies before appealing to the Court and to a large backlog of cases.[67] Even though the ECtHR has a policy that allows it to prioritize urgent cases,[68] this policy does not generally favor cases related to COVID-19.[69] The Court has emphasized that it will only allow requests for interim measures when there is an imminent risk of irreversible harm.[70] Thus it does not play a role in providing timely responses to human rights violations. (See also chapter 6 by Gerald Neuman and chapter 10 by Urfan Khaliq in this volume.)
Nevertheless, an attempt to force states to comply with their human rights obligations was made within the framework of the European Union, with a proposal to condition the reception of any funds from the EU budget on respect for the rule of law. However, Hungary and Poland, the two European states in the spotlight for their violations of human rights during the pandemic,[71] strongly opposed this proposal and threatened to block the EU’s COVID-19 recovery aid.[72] A compromise was then reached to adopt the proposal, but its entry into force was conditioned on not being challenged before the European Court of Justice (ECJ). As expected, the implementation of this conditionality mechanism was delayed as Hungary and Poland challenged it before the Court.[73] On February 16, 2022, the ECJ upheld the conditionality mechanism.[74] Although the decision was applauded by the European states,[75] there has been some doubt about its effectiveness in inducing compliance with human rights.[76] At any rate, unilateral sanctions or the conditionality of recovery funds as a viable means of enforcing compliance with human rights during a pandemic raises its own concerns.[77] Both these measures would increase tensions between states at a time when cooperation is most needed to combat the pandemic.
Furthermore, the unilateral conditionality of recovery aid is less likely to be effective in the atmosphere of rivalry that currently exists between the United States and China.[78] The United States’ efforts to condition development funds sent to sub-Saharan African states to help them fight the HIV/AIDS pandemic were unchallenged by other states because, as David P. Fidler highlighted, “in a system that has a preponderant power rather than a balance of power, the hegemonic state can pursue its interests and ideas with less resistance.”[79] However, as he goes on to point out, the “balance-of-power politics drives major powers to view issues, initiatives, and ideas in terms of how they might affect the distribution of power. This ‘zero-sum’ perspective forces the great powers to attempt to control developments to hurt competitor states or to prevent change that might benefit rivals.”[80] Moreover, conditioning funds on respect for human rights will not contribute to a holistic protection of these rights in the fight against COVID-19 because states usually use this conditioning power as an instrument to advance their own perspective of human rights.[81]
Nevertheless, it is important that funding by international institutions such as the UN COVID-19 Response and Recovery Fund or the African Union Recovery Fund should be committed to the promotion and protection of human rights, in the sense that it should not be used in any programs that violate (or involve the risk of violating) human rights. These bodies could follow the example of the AIDS Global Fund—a public-private partnership dedicated to attracting and disbursing additional resources to prevent and treat HIV/AIDS, tuberculosis, and malaria—whose funding process has been devoted to the protection of human rights; the removal of human rights–related barriers is even among its strategic objectives for the years 2017–2022.[82]
The IACHR has taken its response one step further. Despite the many challenges faced by the Inter-American System of Human Rights,[83] its Commission has been praised for its response to the human rights crisis brought on by COVID-19.[84] According to its annual progress report, the IACHR succeeded in securing enough funding for all activities planned for 2020.[85] Furthermore, it established the Rapid and Integrated Response Coordination Unit for COVID-19 Pandemic Crisis Management (SACROI COVID-19, to use its Spanish acronym). This unit was created specifically to monitor states’ responses to the pandemic and their implications for human rights. It issues policy recommendations on these responses, along with a follow-up mechanism to review states’ compliance with those recommendations. It also has the mandate to identify requests for precautionary measures against responses that risk irreparable harm, and to follow up on their implementation.[86] And it works “with a crisis response team that will be coordinated by the Executive Secretary and will be made up of the heads of the Special Rapporteurships; and other personnel assigned by the Executive Secretary, according to needs.”[87]
Although it does not have enforcement powers, SACROI-COVID-19 has been considered exemplary for protecting human rights during the pandemic. A COVID-19-centered mandate allows better monitoring of state compliance with human rights obligations. At the same time, it allows the IACHR to continue its work on non-COVID-19 violations of human rights. This unit has been also strengthened by a follow-up mechanism specifically designed to observe the implementation of COVID-19-related recommendations, thereby overcoming the difficulties of monitoring their implementation within the normal functioning of the IACHR considering the time and resources available. As in all cases of human rights monitoring, follow-ups remain the key to enhancing compliance in the absence of enforcement powers by HRIs.[88]
Moreover, SACROI-COVID-19 gives special attention to requests for precautionary measures by those prone to irreparable harm because of COVID-19 measures. These requests do not wait in line with other requests but seem to be reviewed simultaneously. Out of 344 requests for precautionary measures related to COVID-19 received in 2020, 336 (97 percent) had been evaluated by December 31, 2020.[89]
In addition to the enforcement deficiency, the chronic underfunding of HRIs that has always impeded their functioning was exacerbated by the deteriorating economic situation resulting from COVID-19. Consequently, they had to work at reduced activity levels, postponing many of their mandated activities.[90] For example, the UN human rights treaty bodies have postponed their reviews of state reports, a decision widely criticized by NGOs.[91] Insufficient funding has also prevented the UN human rights system from providing technical and practical assistance to all states that have requested it.
Before the pandemic, attention had repeatedly been drawn to the lack of cooperation between the different HRI bodies (within the UN human rights system or between the UN system and the other regional human rights bodies) and how this undermined their performance. COVID-19 has underscored the importance of such cooperation, and indeed there has now been some collaboration, as reflected in the joint statements issued during the pandemic.[92] Nevertheless, most statements and guidelines have been issued separately. This has led to overlap and duplication, which poses more of a managerial problem[93] than a cohesion problem[94] because it becomes hard to follow them. This duplication will compound existing “evaluation fatigue” in the states resulting from overlapping reporting requirements.[95] It will further complicate the work of NGOs in following up on states’ compliance with their human rights obligations, and it also represents a misuse of much-needed resources.
In acknowledgment of these problems, the UN established a new committee, the UN Human Rights Treaty Bodies Working Group on COVID-19, with the objectives of “facilitating a coherent treaty bodies’ voice on a crucial common challenge,” and providing a joint comprehensive response to it. However, to date no further work has been done. Nevertheless, the IACHR SACROI-COVID-19 has proved exemplary in terms of coordination as it comprises heads of special rapporteurships, coordinated by the Executive Secretary.
The growth of populism and authoritarianism during the pandemic raised another urgent call to reform the HRI membership process to increase transparency, impartiality, and nonpoliticization. It is common for populist and authoritarian governments to reject compliance with HRI recommendations by claiming they are politicized. As already noted, President Trump rejected the WHO’s recommendations, withdrew from the organization, and stopped funding it on the grounds that it lacked transparency and favored China. He cited China’s relations with Ethiopia, the country of nationality of Dr. Tedros Ghebreyesus, the WHO executive director, and the latter’s past history.[96] It is, of course, important to ensure the transparency of HRIs not only for the sake of countering populist and authoritarian arguments, which will always be raised no matter what reforms are accomplished, but to enhance the performance of these bodies.
The pandemic has exposed a new structural deficiency in the work of HRIs, reflected in their shift to working online. There is no doubt that the shift has enabled HRIs to continue functioning and to engage in the promotion and protection of human rights. Nevertheless, it has been considered an obstacle to their effective functioning. One of the challenges is accessibility. For example, HRIs had difficulty choosing an online platform that would be accessible to persons with disabilities.[97] Additionally, while enabling increased access to NGOs that previously faced travel restrictions, the shift to online working has still hampered those NGOs that lack the necessary tools to do so effectively.[98] NGOs have also emphasized the need for increased transparency in the scheduling of HRI sessions and in their participation rules.[99] Moreover, the UN treaty body members had to reduce their activity levels because they had not received their allowances for working virtually, which were only tied to traveling outside their country of residence.[100] Consequently, working online, and not at full capacity, has forced HRIs to address a reduced agenda.
In addition to these structural deficiencies, the substantive content of recommendations issued by HRIs during the pandemic has lacked sufficient legal justification for most statements and guidelines adopted.[101] As rightly noted by Lisa Reinsberg, “Many statements are merely lists of actions that States ‘should’ or ‘can’ take, in a legal vacuum.”[102] COVID-19 has entailed a balancing act when it comes to human rights. Thus, in a statement about the protection of one particular right, it is not sufficient to mention the related legal provisions without mentioning how the protection of this right could be balanced with the protection of other rights under international law. States have used conflicting legal obligations under international law to justify their practices of hoarding medical equipment and vaccines during the pandemic. This conflict of norms was addressed in few, if any, of the statements made on universal access to these resources.[103] The failure to identify the normative underpinnings of these recommendations weakens their value as an advocacy tool that can be mobilized by NGOs and civil society in their protection of human rights. The lack of sufficient legal justification also undermines the effect of these recommendations in countering populist and nationalist exclusionary strategies. However, this does not mean that HRIs should advance expansive interpretations, unless they are strongly argued. Laurence R. Helfer has highlighted that “expanding legal norms and institutional competencies . . . creates easy targets for populist backlashes that may undermine decades of hard-won achievements.”[104]
In sum, despite the enormous efforts undertaken by HRIs to provide timely and holistic protection of human rights during COVID-19, it is evident that the structural deficiencies of these institutions require urgent reform for these efforts to succeed. HRIs also need to strengthen their legal discourse to increase their impact in inducing better compliance with the human rights regime.
Moving Forward: Strengthening the Work of Human Rights Institutions in Pandemics
While HRIs were under fire long before COVID-19, in the midst of an ongoing push to strengthen them, the pandemic has brought new challenges to the human rights system. These challenges are compounded by the prevailing global political context and threaten to undermine decades of efforts and hard-won gains in that field. This, in turn, has shown the need for exceptional protection of human rights in a timely and holistic way, but global and regional HRIs have not proved fit to provide this, given their structural and substantive deficiencies. Therefore, the focus in the future should be on strengthening their capacity to address these shortcomings.
States should consider the creation of a committee similar to IACHR SACROI COVID-19 that would be dedicated specifically to the human rights implications of the pandemic, mandated with monitoring states’ responses. Such a body would be charged with preparing general, thematic, and country-specific recommendations and policy guidelines and providing technical assistance to states, NGOS, national human rights institutions (NHRIs), and civil society on their implementation. A specialized committee would enhance HRIs’ ability to provide timely protection, as well as reduce their workload, allowing them to pursue their normal mandates to address nonpandemic-related human rights issues.
This committee should, like SACROI COVID-19, be empowered to follow up on its recommendations and guidelines, and to receive and respond to requests for precautionary measures against irreparable harm caused by pandemic-related measures. The committee would be composed of experts from both international and regional human rights bodies to ensure adequate coordination. The inclusion of experts from the regional bodies would allow a better contextualization of statements and guidelines. Improved coordination would also reduce the duplication of work among the different HRIs, saving financial resources and allowing their reallocation to reduce the funding gaps between different HRIs.[105]
This pandemic-focused human rights body would also work in close collaboration with the WHO. Communications to states regarding alleged violations of human rights would need to take into consideration the specific health situation prevailing in the state in question. This in turn would contribute to the acceptance of these recommendations. Scientifically based recommendations would help to counter arguments that authoritarian measures are best suited to curbing the spread of infectious diseases. Along the same lines, the committee needs to provide a sufficient legal basis to strengthen the power of its arguments and recommendations.
The question would be where to house this initiative. The committee could be established by the UN’s Office of the High Commissioner for Human Rights (OHCHR). But it would then lack the necessary powers to follow up on the adopted recommendations and guidelines and receive COVID-19-related requests for precautionary measures, as is evident in the structure of the UN Human Rights Treaty Bodies Working Group on COVID-19. Establishing the committee through the Human Rights Council would also not seem to be a viable option, given growing concerns about its members’ profiles on human rights. COVID-19 has clearly demonstrated that the UN Security Council would not be suitable, given the growing rivalry between two of its permanent members, China and the United States. Therefore, establishment by the UN General Assembly seems to be the least-worst available option, in terms of overcoming the geopolitical divide among states and securing a wide consensus for the committee—a necessary prerequisite for any cooperation. Consequently, states with a good human rights agenda should use the UN General Assembly as a platform to secure consensus for the committee. Despite political divides, the General Assembly has indeed managed to issue a set of admittedly rather ineffective recommendations, reflecting states’ commitment to cooperation and solidarity during the pandemic.
Recent attacks on international human rights bodies and insecurity of government support demonstrate that state funding of this pandemic rights committee would not be sufficient to carry out its mandate in full, especially in the environment of global economic recession resulting from the pandemic, which would provide a perfect justification for continued underfunding.[106] One possibility would be the creation of a trust fund with contributions from multiple sources, including foundations and business. However, in seeking funding from the private sector, the committee must be careful to preserve transparency to ensure its legitimacy, independence, and impartiality, and consequently the rate of compliance with its recommendations and statements.[107]
As the success of other human rights bodies has shown, the effectiveness of any new pandemic-related committee will require engagement with NGOs, NHRIs, and other domestic actors having a role in the protection of human rights. Their participation is vital not only for the implementation and impact of recommendations issued by HRIs, but also to their formulation, as they can contribute to an understanding of the domestic context of the state in question.[108] Therefore, the procedures of the pandemic rights committee need to ensure the wide and meaningful participation of NGOs in its meetings, whether they are held in-person or virtually. In the latter case, obstacles related to safe platforms, simultaneous interpretations, closed captions, sign language, time zone gaps, and access by NGOs with limited digital tools need to be procedurally addressed.
In conclusion, COVID-19 has clearly exposed the structural deficiency in HRIs that weakens their response, despite the massive efforts expended, to the pandemic’s unprecedented implications for human rights. However, this should not be the moment to lose faith in multilateralism; rather, it should be the moment to start working to strengthen it. A pandemic rights-focused committee could be one way to ensure timely, holistic, and coordinated protection for human rights in the current and future pandemics, building back better and mitigating their long-term impacts on human rights.
Notes
1. Article 2 of the UN Charter. See also Article 55 of the Charter.
2. Surya P. Subedi, The Effectiveness of the UN Human Rights System: Reform and Judicialisation of Human Rights (London: Routledge, 2017), pp. 25–27.
3. “Work of Human Rights Treaty Bodies at Risk, Warns UN Committee Chairs,” August 4, 2020, www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=26147&LangID=E.
4. “Report of the Independent Expert on the Promotion of a Democratic and Equitable Order, Livingstone Sewanyana: In Defence of a Renewed Multilateralism to Address the Coronavirus Disease (COVID-19) Pandemic and Other Global Challenges,” A/HRC/48/58, August 9, 2021.
5. See UN General Assembly, “The Declaration on the Commemoration of the Seventy-Fifth Anniversary of the United Nations,” A/RES/75/1, September 21, 2020.
6. UN Secretary-General António Guterres, “We Are All in This Together: Human Rights and COVID-19 Response and Recovery,” United Nations, April 23, 2020, www.un.org/en/un-coronavirus-communications-team/we-are-all-together-human-rights-and-covid-19-response-and.
7. Freedom of Expression (Article 19), Freedom of Religion (Article 18), Freedom of Movement (Article 12), Freedom of Association (Article 22), and Freedom of Assembly (Article 21).
8. Article 4 of the ICESCR.
9. See European Convention on Human Rights (ECHR): Article 8 (Right to Respect for Private and Family Life), Article 9 (Freedom of Religion), Article 10 (Freedom of Expression), Article 11 (Freedom of Assembly); Protocol 4 to the ECHR: Article 2 (Freedom of Movement); Article G of the European Social Charter. See also the American Convention on Human Rights (ACHR): Article 12 (Freedom of Religion), Article 13 (Freedom of Expression), Article 15 (Freedom of Assembly), Article 16 (Freedom of Association), Article 22 (Freedom of Movement); and Articles 11 (Freedom of Assembly) and 12 (Freedom of Movement) of the African Charter on Human Rights (AFCHR).
10. The Siracusa Principles on the Limitation and Derogation Provisions of the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4, September 28, 1984, Annex.
11. Article 4 of the ICCPR; Article 15(1) of the ECHR; Article 27 of the ACHR; Article F of the European Social Charter.
12. Under Article 4 of the ICCPR, the following are nonderogable rights: the right to life, the prohibition of torture and slavery, the right not to be imprisoned on the sole basis of a contractual obligation, the principle of legality, the right to be recognized as a person before the law, and the freedoms of conscience and religion. See also the list of nonderogable rights under Article 15 of the ECHR and Article 27 of the ACHR.
13. Sharifah Sekalala and John Harrington, “Communicable Disease, Health Security, and Human Rights: From AIDS to Ebola,” in Foundations of Global Health and Human Rights, edited by Lawrence O. Gostin and Benjamin Mason Meier (Oxford University Press, 2020), p. 223. A voluminous literature has discussed the implications for human rights of measures adopted by states in response to the HIV/AIDS pandemic. See Lawrence O. Gostin and Zita Lazzarini, Human Rights and Public Health in the AIDS Pandemic (Oxford University Press, 1997); Miriam Maluwa, Peter Aggleton, and Richard Parker, “HIV- and AIDS-Related Stigma, Discrimination, and Human Rights: A Critical Overview,” Health and Human Rights 6, 1 (2002), pp. 1–18, www.jstor.org/stable/4065311?seq=1; David Patterson and Leslie London, “International Law, Human Rights and HIV/AIDS,” Bulletin of the World Health Organization 80, 12 (2002), https://apps.who.int/iris/handle/10665/71665.
14. Jonathan M. Mann, “Human Rights and AIDS: The Future of the Pandemic,” 30 John Marshall Law Review 195 (Fall 1996), p. 204.
15. See the 2001 Declaration of Commitment on HIV/AIDS, A/RES/S-26/2, June 27, 2001; Political Declaration on HIV/AIDS, A/RES/60/262, June 15, 2006; Political Declaration on HIV and AIDS: Intensifying Our Efforts to Eliminate HIV and AIDS, A/RES/65/277, July 8, 2011.
16. See UNAIDS Explainer, “Still Not Welcome: HIV-Related Travel Restrictions,” June 27, 2019, www.unaids.org/sites/default/files/media_asset/hiv-related-travel-restrictions-explainer_en.pdf; UNAIDS, “Act to Change Laws That Discriminate,” March 1, 2019, www.unaids.org/sites/default/files/media_asset/2019_ZeroDiscrimination_Brochure_en.pdf. See also Jamie Enoch and Peter Piot, “Human Rights in the Fourth Decade of the HIV/AIDS Response: An Inspiring Legacy and Urgent Imperative,” Health and Human Rights Journal 19 (December 2017), pp. 117–22, www.ncbi.nlm.nih.gov/pmc/articles/PMC5739363/.
17. Lesley A. Jacobs, “Rights and Quarantine during the SARS Global Health Crises: Differentiated Legal Consciousness in Hong Kong, Shanghai, and Toronto,” Law and Society Review 2 (September 2007), pp. 511–51, www.jstor.org/stable/4623394; Huiling Ding and Elizabeth A. Pitts, “Singapore’s Quarantine Rhetoric and Human Rights in Emergency Health Risks,” Rhetoric, Professional Communication, and Globalization 4 (October 2013), pp. 55–77, https://repository.lib.ncsu.edu/bitstream/handle/1840.2/2580/RPCG2013.pdf?sequence=1.
18. For a list of those provisions, see David P. Fidler, “From International Sanitary Conventions to Global Health Security: The New International Health Regulations,” Chinese Journal of International Law 4, 2 (2005), p. 368.
19. For human rights concerns raised with regard to tuberculosis: Philippe Calain and David P. Fidler, “XDR Tuberculosis, the New International Health Regulations, and Human Rights” (2007), p. 463, www.repository.law.indiana.edu/facpub/463/; Andrea Boggio, Matteo Zignol, Ernesto Jaramillo, Paul Nunn, Geneviève Pinet, and Mario Raviglione, “Limitations on Human Rights: Are They Justifiable to Reduce the Burden of TB in the Era of MDR- and XDR-TB?,” Health and Human Rights in Practice 10 (2008), pp. 121–26, www.heinonline.org. For human rights concerns raised with regard to swine flu (H1N1): “Swine Flu Measures No Excuse for Abridging Rights,” Human Rights Watch, May 18, 2009, www.hrw.org/news/2009/05/18/swine-flu-measures-no-excuse-abridging-rights. For human rights concerns during Ebola, see Office of the United Nations High Commissioner for Human Rights (West Africa Regional Office), “A Human Rights Perspective into the Ebola Outbreak” (2014), www.globalhealth.org/wp-content/uploads/A-human-rights-perspective-into-the-Ebola-outbreak.pdf. See also UN Refugee Agency (UNHCR), “Considerations on the Impact of Measures Relating to Ebola Virus Disease, on Persons Who Are or May Be in Need of International Protection” (2014), www.refworld.org/pdfid/548014ce4.pdf. See further Patrick M. Eba, “Ebola and Human Rights in West Africa” (2014), www.thelancet.com/journals/lancet/article/PIIS0140-6736(14)61412-4/fulltext; and Deisy Ventura, “The Impact of International Health Crisis on the Rights of Migrants,” Sur International Journal on Human Rights (May 2016), https://sur.conectas.org/en/impact-international-health-crises-rights-migrants/.
20. “WHO Weekly Operational Update on COVID-19,” April 15, 2020, www.who.int/publications/m/item/weekly-update-on-covid-19–15-april-2020. See WHO Coronavirus (COVID-19) Dashboard, https://covid19.who.int for the latest figures.
21. Karima Bennoune, “Lest We Should Sleep: COVID-19 and Human Rights,” American Journal of International Law 114, 4, p. 669 (for a comprehensive study on the implications of COVID-19).
22. UN and other partner organizations of the Committee for the Coordination of Statistical Activities (CCSA), How COVID-19 Is Changing the World: A Statistical Perspective, vol. III (2020), pp. 20–21.
23. Ibid., pp. 32–33.
24. Ibid., pp. 54–55. For more on how COVID-19 has affected different aspects of human life and state responses to the virus, see volumes I and II of this study.
25. “COVID-19 Threatening Global Peace and Security, UN Chief Warns,” April 10, 2020, https://news.un.org/en/story/2020/04/1061502.
26. “Statement on the Second Meeting of the International Health Regulations Committee regarding the Outbreak of Novel Coronavirus (2019-nCoV),” January 30, 2020, www.who.int/news/item/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov).
27. For an account of those states that have declared a state of emergency, see the COVID-19 Civic Freedom Tracker, www.icnl.org/covid19tracker/?location=&issue=5&date=&type=.
28. Michele Collazzo and Alexandra Tyan, “Emergency Powers, COVID-19 and the New Challenge for Human Rights,” June 27, 2020, www.iai.it/en/pubblicazioni/emergency-powers-covid-19-and-new-challenge-human-rights.
29. “Rush to Pass ‘Fake News’ Laws during COVID-19 Intensifying Global Media Freedom Challenges,” October 22, 2020, https://ipi.media/rush-to-pass-fake-news-laws-during-covid-19-intensifying-global-media-freedom-challenges/.
30. IPI COVID-19 Press Freedom Tracker, https://ipi.media/covid19/?alert_type=fake-news-regulation-passed-during-covid-19&language=0&years=0&country=0; Human Rights Watch, “COVID-19 Triggers Wave of Free Speech Abuse,” https://features.hrw.org/features/features/covid/index.html. See also “Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression: Disease Pandemics and the Freedom of Opinion and Expression,” A/HRC/44/49, April 23, 2020.
31. Stephen Thomson and Eric C. Ip, “COVID-19 Emergency Measures and Impending Authoritarian Pandemics,” Journal of Law and Biosciences 7, 1 (January–June 2020), pp.1–33, https://doi.org/10.1093/jlb/lsaa064.
32. Melissa Sou-Jie Brunnersum, “COVID-19 Will Not Be Last Pandemic,” WHO, December 26, 2020, www.dw.com/en/covid-19-will-not-be-last-pandemic-who/a-56065483. See also R. K. Obi, N. M. Orji, F. C. Nwanebu, C. C. Okangba, and U. U. Ndubuisi, “Emerging and Re-Emerging Infectious Diseases: The Perpetual Menace,” Asian Journal of Experimental Biological Sciences 1 (2010), pp. 271–82.
33. International Center for Not-for-Profit Law (ICNL), COVID-19 Digital Rights Tracker, www.top10vpn.com/research/investigations/covid-19-digital-rights-tracker/#Digital-Tracking, showing that Europe comes in second place for adopting digital tracking measures and applying contact tracing, and first place for imposing physical surveillance.
34. See Barrie Sander and Luca Belli, “COVID-19, Cyber Surveillance, Normalisation and Human Rights Law,” April 1, 2020, http://opiniojuris.org/2020/04/01/covid-19-symposium-covid-19-cyber-surveillance-normalisation-and-human-rights-law/; Yuval Noah Harari, “The World after Coronavirus,” March 20, 2020, www.ft.com/content/19d90308-6858-11ea-a3c9-1fe6fedcca75; and Alan Z. Rozenshtein, “Government Surveillance in an Age of Pandemics,” March 23, 2020, www.lawfareblog.com/government-surveillance-age-pandemics.
35. Michele Collazzo and Alexandra Tyan, “Emergency Powers.”
36. Seana Davis, “Could the Coronavirus Pandemic Lead to Mass Surveillance in Europe?,” March 31, 2020, www.euronews.com/2020/03/31/could-the-coronavirus-pandemic-lead-to-mass-surveillance-in-europe.
37. Geoffrey A. Fawler, “Black Lives Matter Could Change Facial Recognition Forever—If Big Tech Doesn’t Stand in the Way,” June 12, 2020, www.washingtonpost.com/technology/2020/06/12/facial-recognition-ban/.
38. Lama Mourad and Stephanie Schwartz, “Could COVID-19 Upend International Asylum Norms?,” April 9, 2020, www.lawfareblog.com/could-covid-19-upend-international-asylum-norms#.
39. Ibid.
40. Nathan McDermott and Andrew Kaczynski, “CNN, Trump Repeatedly Praised China’s Response to Coronavirus in February,” CNN, March 25, 2020, https://edition.cnn.com/2020/03/25/politics/trump-coronavirus-china/index.html.
41. K. Chen and others, “Conspiracy and Debunking Narratives about COVID-19 Origins on Chinese Social Media: How It Started and Who Is to Blame,” Harvard Kennedy School (HKS) Misinformation Review, https://doi.org/10.37016/mr-2020-50; Helen Davidson, “China Revives Conspiracy Theory of US Army Link to COVID,” January 20, 2021, www.theguardian.com/world/2021/jan/20/china-revives-conspiracy-theory-of-us-army-link-to-covid.
42. David P. Fidler, “The COVID-19 Pandemic, Geopolitics and International Law,” Journal of International Humanitarian Legal Studies 11 (2020), p. 246. See also Yanzhong Huang, “The U.S and China Could Cooperate to Defeat the Pandemic—Instead Their Antagonism Makes Matters Worse,” Foreign Affairs, March 24, 2020, www.foreignaffairs.com/articles/china/2020-03-24/us-and-china-could-cooperate-defeat-pandemic.
43. UN News, “WHO Reviewing Impact of US Funding Withdrawal amid COVID-19 Pandemic,” April 15, 2020, https://news.un.org/en/story/2020/04/1061822. For factors to take into consideration when assessing the impact of Trump’s decisions, see “U.S. Withdrawal from the World Health Organization: Process and Implications,” Congressional Research Service, October 21, 2020, p. 11, https://fas.org/sgp/crs/row/R46575.pdf.
44. Those calls have resulted in the establishment of an independent panel to “review experience gained and lessons learned from the WHO-coordinated international health response to COVID-19.” See WHA73.1, May 19, 2020.
45. For the effects of misinformation and disinformation, see “Article 19 Briefing, Viral Lies: Misinformation and the Coronavirus,” March 2020, www.article19.org/wp-content/uploads/2020/03/Coronavirus-final.pdf.
46. Secretary-General’s remarks to the Security Council on the COVID-19 pandemic, April 9, 2020, www.un.org/sg/en/content/sg/statement/2020-04-09/secretary-generals-remarks-the-security-council-the-covid-19-pandemic-delivered.
47. Ilja Richard Pavone, “Security Council Resolution 2532 (2020) on COVID-19: A Missed Opportunity?,” ESIL Reflections COVID-19 Series February 8, 2020, https://esil-sedi.eu/wp-content/uploads/2021/02/ESIL-Reflection-Pavone.pdf.
48. The Security Council could have had a coordinating role for the response to the pandemic similar to its role during the Ebola outbreak (2014). See Marko Svicevic, “COVID-19 as a Threat to International Peace and Security: What Place for the UN Security Council?,” www.ejiltalk.org/covid-19-as-a-threat-to-international-peace-and-security-what-place-for-the-un-security-council/.
49. Pavone, “Security Council Resolution 2532;” Richard Gowan and Ashish Pradhan, “Salvaging the Security Council’s Coronavirus Response,” August 4, 2020, https://reliefweb.int/report/world/salvaging-security-council-s-coronavirus-response.
50. Javier C. Hernandez, “China Spins Coronavirus Crisis, Hailing Itself as a Global Leader,” March 3, 2020, www.nytimes.com/2020/02/28/world/asia/china-coronavirus-response-propaganda.html.
51. Remarks by H. E. Wang Yi, State Councilor and Foreign Minister of the People’s Republic of China, at the High-Level Segment of the 46th Session of the United Nations Human Rights Council, “A People-Centered Approach for Global Human Rights Progress,” February 22, 2021, www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1855685.shtml.
52. Chen Qingqing and Cao Siqi, “China Issues Annual US Human Rights Report amid Escalating Washington-Led Attacks on Beijing,” March 24, 2021, www.globaltimes.cn/page/202103/1219366.shtml; “China, on Behalf of 26 Countries, Criticizes US, Other Western Countries for Violating Human Rights,” October 6, 2020, www.globaltimes.cn/content/1202752.shtml.
53. Diane Desierto, “The Myth and Mayhem of ‘Build Back Better:’ Human Rights Decision-Making and Human Dignity Imperatives in COVID-19,” May 25, 2020, www.ejiltalk.org/the-myth-and-mayhem-of-build-back-better-human-rights-decision-making-as-the-human-dignity-imperative-in-covid-19/; “Monitoring Anti-Democratic Trends and Human Rights Abuses in the Age of COVID-19,” WOLA Advocacy for Human Rights in the Americas, April 13, 2020, www.wola.org/analysis/anti-democratic-trends-human-rights-abuses-covid-19-latin-america/.
54. For example, see Sam Zarifi and Kate Powers, “Human Rights in the Time of COVID-19—Front and Centre,” April 6, 2020, http://opiniojuris.org/2020/04/06/covid-19-human-rights-in-the-time-of-covid-19-front-and-centre/; Martin Scheinin, “To Derogate or Not to Derogate?,” April 6, 2020, https://opiniojuris.org/2020/04/06/covid-19-symposium-to-derogate-or-not-to-derogate/; “Human Rights Dimensions of COVID-19 Response,” March 19, 2020, www.hrw.org/sites/default/files/supporting_resources/202003covid_report_0.pdf; Alessandro Spadaro, “Testing the Limits of Human Rights,” European Journal of Risk Regulation 11, 2 (2020), pp. 317–25.
55. Ian Gorvin, “Producing the Evidence: First Steps towards Systematized Evaluation at Human Rights Watch,” Journal of Human Rights Practice 1, 3 (2009), p. 478. For the shortcomings of the compliance-based evaluation in general, see Rhonda Schlangen, “Monitoring and Evaluation for Human Rights Organizations: Three Case Studies,” January 2014, pp. 3–4, www.pointk.org/resources/files/CEI_HR_Case_Studies.pdf; Jasper Krommendijk, “The Domestic Effectiveness of International Human Rights Monitoring in Established Democracies: The Case of the UN Human Rights Treaty Bodies,” Review of International Organizations 10 (2015), pp. 492–94; Catherine Corey Barber, “Tackling the Evaluation Challenge in Human Rights: Assessing the Impact of Strategic Litigation Strategies,” International Journal of Human Rights 16 (2012), pp. 416–17. See also Joseph J. Amon and Eric Friedman, “Human Rights Advocacy in Global Health,” in Foundations of Global Health, edited by Gostin and Meier, pp. 148–50.
56. See International Justice Resource Center, “Human Rights Bodies: Schedule and Procedural Changes amid COVID-19 Pandemic,” April 1, 2020, https://ijrcenter.org/2020/04/01/human-rights-bodies-schedule-procedural-changes-amid-covid-19-pandemic/.
57. For a comprehensive overview of human rights institutions’ schedules during COVID-19, see the monthly report published by the International Justice Resource Center at https://ijrcenter.org/category/monthly-overview/. For the work modalities of the UN human rights system during COVID-19, see UN OHCHR, “The UN Human Rights Appeal 2021,” p. 25, www.ohchr.org/Documents/Publications/AnnualAppeal2021.pdf.
58. For an updated compilation of general statements issued by different international and regional bodies, see International Justice Resource Center, “COVID-19 Guidance from Supranational Human Rights Bodies,” https://ijrcenter.org/covid-19-guidance-from-supranational-human-rights-bodies/#Arab_Human_Rights_Committee.
59. For an updated compilation of thematic statements issued by different international and regional bodies, see the International Justice Resource Center, “COVID-19 Guidance from Supranational Human Rights Bodies,” https://ijrcenter.org/covid-19-guidance-from-supranational-human-rights-bodies/#Arab_Human_Rights_Committee.
60. For example, UN Special Procedures has issued reports and statements focusing on Cambodia, the Central African Republic, Eritrea, the Islamic Republic of Iran, Israel and the Occupied Palestinian Territory, Myanmar, and the Democratic People’s Republic of Korea. See Working Document covering information as of April 28, 2020, www.ohchr.org/Documents/HRBodies/SP/COVID19_and_SP_28_April_2020.pdf.
61. COVID-19 Civic Freedom Tracker.
62. Vince Chadwick, “EU Launches Another Tool on Pandemic Threat to Human Rights,” July 8, 2020, www.devex.com/news/eu-launches-another-tool-on-pandemic-s-threat-to-human-rights-97645.
63. For example, see UNHCR, “Practical Recommendations and Good Practice to Address Protection Concerns in the Context of the COVID-19 Pandemic,” April 9, 2020, www.refworld.org/docid/5ede06a94.html.
64. Michael O’Flaherty, “Treaty Bodies Responding to States of Emergency: The Case of Bosnia and Herzegovina,” in The Future of UN Human Rights Treaty Monitoring, edited by Philip Alston and James Crawford (Cambridge University Press, 2000), p. 440.
65. “Africa: Regional Human Rights Bodies Struggle to Uphold Rights amid Political Headwinds,” October 21, 2020, www.amnesty.org/en/latest/news/2020/10/africa-regional-human-rights-bodies-struggle-to-uphold-rights-amid-political-headwinds/. See also Nicole De Silva, “A Court in Crisis: African States’ Increasing Resistance to Africa’s Human Rights Courts,” May 19, 2020, http://opiniojuris.org/2020/05/19/a-court-in-crisis-african-states-increasing-resistance-to-africas-human-rights-court/.
66. See African Court, ACHPR Cases, https://www.african-court.org/cpmt/statistic.
67. See Kushtrim Istrefi, “Supervision of Derogations in the Wake of COVID-19: A Litmus Test for the Secretary General of the Council of Europe,” April 6, 2020, www.ejiltalk.org/supervision-of-derogations-in-the-wake-of-covid-19-a-litmus-test-for-the-secretary-general-of-the-council-of-europe/; Kanstantsin Dzehtsiarou, “What Can the European Court of Human Rights Do in the Time of Crisis?,” April 14, 2020, https://strasbourgobservers.com/2020/04/14/what-can-the-european-court-of-human-rights-do-in-the-time-of-crisis/.
68. “The ECtHR Priority Policy,” www.echr.coe.int/Documents/Priority_policy_ENG.pdf.
69. Istrefi, “Supervision of Derogations”; Dzehtsiarou, “What Can the European Court of Human Rights Do?”
70. “Coronavirus: Exceptional Measures at the European Court of Human Rights,” March 18, 2020, www.coe.int/en/web/portal/-/coronavirus-exceptional-measures-at-the-european-court-of-human-rights.
71. See OHCHR, “Press Briefing Note on Hungary,” March 27, 2020, www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25750&LangID=E. See also “Council of Europe Secretary General Writes to Viktor Orbán regarding COVID-19 State of Emergency in Hungary,” March 24, 2020, https://rm.coe.int/orban-pm-hungary-24-03-2020/16809d5f04.
72. Sandor Zsiros and Joanna Gill, “Hungary and Poland Block EU’s COVID-19 Recovery Package over New Rule of Law Drive,” November 18, 2020, www.euronews.com/2020/11/16/hungary-and-poland-threaten-coronavirus-recovery-package.
73. “Poland and Hungary File Complaint over EU Budget Mechanism,” March 11, 2021, www.dw.com/en/poland-and-hungary-file-complaint-over-eu-budget-mechanism/a-56835979.
74. Court of Justice of the European Union, Press Release 28/22, Judgments in Cases C-156/21 Hungary v Parliament and C-157/21 Poland v Parliament and Council, “Measures for the protection of the Union budget: the Court of Justice, sitting as a full Court, dismisses the actions brought by Hungary and Poland against the conditionality mechanism which makes the receipt of financing from the Union budget subject to the respect by the Member States for the principles of the rule of law,” February 16, 2022, https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-02/cp220028en.pdf.
75. Matina Stevis-Gridneff, Monika Pronczuk, and Benjamin Novak, “Top European Court Rules E.U. Can Freeze Aid to Poland and Hungary,” February 16, 2022, http://www.nytimes.com/by/matina-stevis-gridneff.
76. See Rafał Mańko and Magdalena Sapała, “Protecting the EU Budget against Generalized Rule of Law Deficiencies,” European Parliamentary Research Service, July 2020, www.europarl.europa.eu/RegData/etudes/BRIE/2018/630299/EPRS_BRI(2018)630299_EN.pdf; Kim Lane Scheppele, Laurent Peche, and Sebastien Platon, “Compromising the Rule of Law While Compromising on the Rule of Law,” December 13, 2020, https://verfassungsblog.de/compromising-the-rule-of-law-while-compromising-on-the-rule-of-law/.
77. There have been urgent calls to suspend unilateral sanctions during COVID-19, championed by the UN Secretary-General and the OHCHR. See “Ease Sanctions against Countries Fighting COVID-19: UN Human Rights Chief,” March 24, 2020, https://news.un.org/en/story/2020/03/1060092; “Unilateral Sanctions Make It Harder to Fight COVID-19, Must Be Dropped, Says UN Expert,” October 16, 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26393&LangID=E.
78. China has been granting “rights-free” development funds, undermining human rights conditions imposed by the United States and the European States. See Sophie Richardson, “China’s Influence on the Global Human Rights System,” September 14, 2020, www.hrw.org/news/2020/09/14/chinas-influence-global-human-rights-system.
79. David P. Fidler, “Africa, COVID-19, and International Law: From Hegemonic Priority to the Geopolitical Periphery?,” Ethiopian Yearbook of International Law 2019, p. 34, www.cfr.org/sites/default/files/pdf/fidler_africa_covid_int_law.pdf.
80. Ibid.
81. The United States has been criticized for using the funds sent to sub-Saharan states as a means to advance its own approach to human rights. See David P. Fidler, “Fighting the Axis of Illness: HIV/AIDS, Human Rights, and U.S Foreign Policy,” articles by Maurer Faculty, 2004, pp. 99–136, www.repository.law.indiana.edu/facpub/400/.
82. “The Global Fund Strategy 2017–2022: Investing to End Epidemics,” www.theglobalfund.org/media/2531/core_globalfundstrategy2017-2022_strategy_en.pdf.
83. See chapter 11 by Santiago Canton and Angelita Baeyens in this volume.
84. Mariela Morales Antoniazzi and Silvia Steininger, “How to Protect Human Rights in Times of Corona? Lessons from the Inter-American Human Rights System,” May 1, 2020, www.ejiltalk.org/how-to-protect-human-rights-in-times-of-corona-lessons-from-the-inter-american-human-rights-system/.
85. See the Annual Report on Implementation of the IACHR Strategic Plan 2017–2021, February 2021, www.oas.org/en/iachr/media_center/preleases/2021/BIPE-2020-EN.pdf.
86. For a detailed statement about the Rapid and Integrated Response Coordination Unit for COVID-19 Pandemic Crisis Management, see SACROI-COVID-19, www.oas.org/en/IACHR/jsForm/?File=/en/iachr/sacroi_covid19/default.asp.
87. Ibid.
88. Studies have demonstrated that follow-up measures contribute to better compliance. See Darren Hawkins and Wade Jacoby, “Partial Compliance: A Comparison of the European and Inter-American Courts of Human Rights,” Journal of International Law and International Relations 6, 1 (2010), pp. 38, 61; James L. Cavallaro and Stephanie Erin Brewer, “Reevaluating Regional Human Rights Litigation in the Twenty-first Century: The Case of the Inter-American Court,” AJIL 102, 4, pp. 768–827. See also Marcia V. J. Kran, “Following Up: The Key to Seeing States Act on Treaty Body Recommendations,” November 13, 2019, www.openglobalrights.org/key-to-seeing-states-act-on-treaty-body-recommendations/.
89. See IACHR Annual Report 2020, www.oas.org/en/iachr/reports/ia.asp.
90. UN OHCHR, “The UN Human Rights Appeal 2021,” p. 35.
91. Joint NGO Letter: UN Human Rights Treaty Bodies during the COVID-19 Pandemic, May 11, 2020, www.globaldetentionproject.org/joint-ngo-letter-un-human-rights-treaty-bodies-during-the-covid-19-pandemic; Civil Society Letter to the UN High Commissioner of Human Rights Council President Requesting to Supplement UPR Submissions due to COVID-19, May 21, 2020, www.aclu.org/letter/civil-society-letter-un-high-commissioner-and-human-rights-council-president-requesting; Joint Civil Society Letter on UN Human Rights Treaty Body Reviews during the COVID-19 Pandemic, October 2, 2020, www.omct.org/files/2020/10/26110/joint_civil_society_letter_2021_untbs_reviews_in_the_covid19_context_02.10.2020.pdf.
92. For example, see Joint Declaration on Freedom of Expression and Elections in the Digital Age, www.oas.org/en/iachr/expression/showarticle.asp?artID=1174&lID=1; Dialogue between the Three Human Rights Courts of the World: The Impact of COVID-19 on Human Rights, July 13, 2020, www.youtube.com/watch?v=FMWOFS4WjB0; Joint Statement on Data Protection and Privacy in the COVID-19 Response, November 19, 2020, www.who.int/news/item/19-11-2020-joint-statement-on-data-protection-and-privacy-in-the-covid-19-response; Joint Statement on the Rights and Health of Refugees, Migrants and Stateless Must Be Protected in COVID-19 Response, www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25762&LangID=E.
93. Lisa Reinsberg, “Mapping the Proliferation of Human Rights Bodies’ Guidance on COVID-19 Mitigation,” May 22, 2020, www.justsecurity.org/70170/mapping-the-proliferation-of-human-rights-bodies-guidance-on-covid-19-mitigation/.
94. The cohesion between different HRIs has not been perceived as a major problem in international literature because there are few examples of contradictory recommendations. For more on that, see Christina Cerna: “Introductory Remarks by Christina Cerna,” Proceedings of the Annual Meeting (American Society of International Law) 105 (2011), pp. 507–9; Eric Tistounet, “The Problem of Overlapping among Different Treaty Bodies,” in The Future of UN Human Rights Treaty Monitoring, edited by Alston and Crawford, pp. 389–94.
95. Jasper Krommendijk, “The (in)Effectiveness of UN Human Rights Treaty Body Recommendations,” Netherlands Quarterly of Human Rights 33, 2, p. 209.
96. Simon Marks and Sarah Wheaton, “The Doctor Making Trump Queasy,” May 7, 2020, www.politico.eu/article/coronavirus-tedros-who-doctor-making-donald-trump-queasy/.
97. Olivier de Frouville, “The United Nations Treaty Bodies in a Transition—Review March–December 2020 Chronicle,” Working Paper, Geneva Academy of International Humanitarian Law and Human Rights, June 2021, pp. 4–7, www.geneva-academy.ch/joomlatools-files/docman-files/working-papers/The%20United%20Nations%20Treaty%20Bodies%20in%20a%20Transition%20Period.pdf).
98. This has been highlighted in the meeting with activists. See also Japhet Biegon, “Can the Virtual Sessions of the African Commission Generate More Civil Society Participation?,” October 26, 2020, www.openglobalrights.org/can-the-virtual-sessions-of-the-african-commission-generate-more-civil-society-participation/.
99. Joint NGO Letter; Civil Society Letter to the UN High Commissioner; Joint Civil Society Letter on UN Human Rights Treaty Body reviews.
100. Olivier de Frouville, “The United Nations Treaty Bodies in a Transition,” p. 7.
101. See Rana Moustafa, “Friends or Foes? International Law and Health Nationalism during COVID-19,” December 6, 2021, www.thinkglobalhealth.org/article/friends-or-foes-international-law-and-health-nationalism-during-covid-19.
102. Reinsberg, “Mapping the Proliferation.”
103. For example, see Statement by UN Human Rights Experts, “Universal Access to Vaccines Is Essential for Prevention and Containment of COVID-19 around the World,” November 9, 2020, www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26484&LangID=E.
104. Laurence R. Helfer, “Populism and International Human Rights Law Institutions: A Survival Guide,” July 10, 2018, p. 237, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3202633.
105. In that context the Global Review Panel set up to review the financial spending of the Joint United Nations Programme on HIV/AIDS (UNAIDS) noted that the Programme’s coordinated response had led to better deployment of its resources. See www.unaids.org/en/resources/campaigns/global_review_panel.
106. The economic situation prevailing during COVID-19 has increased the arrears in states parties’ contributions to the UN regular budget, thus affecting the resources allocated to the UN human rights bodies. See UN OHCHR, “The UN Human Rights Appeal 2021,” p. 34. States have also imposed cuts on human rights programs under the pretext of the economic situation prevailing in the pandemic. For example, the U.K. government has imposed cuts on funding for programs supporting human rights during COVID-19. See William Worley, “UK government quietly halves funding for major human rights program,” April 1, 2021, www.devex.com/news/uk-government-quietly-halves-funding-for-major-human-rights-program-99558.
107. Funding agreements between the private sector and the HRIs raise concerns because they are not made public and are most probably earmarked. See on that the very recent report issued by European Centre for Law and Justice (ECLJ), “The Financing of UN Experts in the Special Procedures of the Human Rights Council,” September 2021, https://eclj.org/the-financing-of-un-experts-report?lng=en.
108. On the role of NGOs, civil society, and NHRIs in human rights, see Ted Piccone, Catalysts for Change: How the UN’s Independent Experts Promote Human Rights (Brookings, 2012), pp. 105–21; Alan Boyle and Christine Chinkin, The Making of International Law (Oxford University Press, 2007), pp. 52–93; Peter J. Spiro, “NGOs and Human Rights: Channels of Power,” in Research Handbook on International Human Rights Law, edited by Sarah Joseph and Adam McBeth (Cheltenham, U.K.: Edward Elgar, 2011), pp. 115–38.
