ICJ Guidance on the Courts and COVID-19

As courts of law around the world are moving rapidly and dramatically to limit and reduce their operations in the face of the COVID-19 pandemic, the ICJ has today published relevant guidance from a human rights and rule-of-law perspective.

The briefing note sets out the special and fundamental role of courts in international human rights law, including in situations of emergency, before examining key issues such as the suspension of ‘non-urgent’ cases, changes in the modality of hearings including use of video-conferencing, and dealing with the consequences of postponement of cases.

It concludes with a brief reflection on the possibility that judges must accept a higher degree of risk tolerance than may apply to some other professions or public offices, arising from the fundamental role of the judiciary in securing human rights and the rule of law itself.

The note draws on a two-part post at Opinio Juris, and forms part of ICJ’s broader response to the COVID-19 pandemic.

Introduction

Under the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and other sources of international human rights law, during a public health emergency such as the COVID-19 pandemic States have obligations to protect the right to life and right to health of their populations.

At the same time, as in any other emergency, the State’s other human rights and rule of law obligations remain applicable to all institutions and organs of the State.

Whether based on the ordinary scope for limitations of rights, or on derogations, international human rights law requires that such protection measures satisfy requirements of legality, non-discrimination, necessity, and proportionality (and time-limitedness, particularly for derogations).

The criterion of proportionality may be particularly difficult to apply, at least in the short-term, to the COVID-19 crisis given the various uncertainties on transmission, degree of spread, and effectiveness of measures, and what is already known about the potential severity of its consequences.

States must, however, keep the necessity and proportionality of restrictions or derogations under review, including by assessing their impact on an ongoing basis; as circumstances and knowledge about the new coronavirus develop, any measures that become unnecessary or disproportionate must be adapted or removed.

Around the world, in response to COVID-19, courts of law are adopting different modalities for the hearing of matters and limiting the range of matters than can be brought before them to only the most “urgent”, while postponing all others. Such restrictions on access to justice, and limitations to the operations of courts, are the focus of this briefing note.

Download the full briefing note (updated 5 May 2020)

Download the Arabic version

Download the Russian version

Contact

Matt Pollard, Director of ICJ’s Centre for the Independence of Judges & Lawyers e: matt.pollard(a)icj.org

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