May 5, 2021 | News
The ICJ condemns the Danish authorities’ practice of revoking residence permits of Syrian refugees, mainly women and older men, on the false premise that Syria is safe for refugees’ return. Partly due to a lack of diplomatic relations with Syria, Denmark cannot forcibly remove refugees and instead detains them.
These practices should end immediately, individual assessments must be carried out in each case, and those detained pending removal should be immediately released, the ICJ said.
“International law requires that before any forcible removal, an individualized assessment of risks for each individual must be made and the principle of non-refoulement must be respected at all times,” said Róisín Pillay, ICJ Europe and Central Asia Director.
The principle of non-refoulement, prohibiting States to transfer anyone to a country where he or she faces a real risk of persecution or other serious human rights abuses, is a fundamental principle of international law and one of the strongest limitations on the right of States to control entry into their territory and to expel aliens as an expression of their sovereignty, as set out in Article 33 of the Geneva Refugee Convention and Article 3 of the Convention against Torture.
“Immigration detention pending removal is permitted only for as long as removal proceedings are in progress, and only if such proceedings are executed with due diligence and there is a realistic prospect that removal will be carried out within a reasonable time. Denmark’s practices fail to meet these standards as set out in international and EU law,” Pillay added.
At least 189 Syrians have had applications for renewal of temporary residency status denied since last summer, a move the Danish authorities said was justified because of a report that found the security situation in some parts of Syria had “improved significantly”. In March, ECRE and the Danish Refugee Council reported that the geographical scope of reassessments of cases of Syrian nationals has been expanded to include cases from greater Damascus with hundreds of cases set to be reassessed by the Appeals Board in 2021.
“The ‘improved situation’ assessment in Syria does not reflect the reality on the ground and runs counter to assessments of the UN, the European Parliament and other countries,” said Róisín Pillay.
On 11 March, the European Parliament adopted a resolution on the conflict in Syria which “(r)eminds all Member States that Syria is not a safe country to return” for refugees, and “calls on all EU Member States to refrain from shifting national policies towards depriving certain categories of Syrians of their protected status, and to reverse this trend if they have already applied such policies.” The EP also opposed any “normalization of diplomatic relations with the Syrian regime as long as there is no fundamental progress on the ground in Syria, with clear, sustained and credible engagement in an inclusive political process.”
The UNHCR considers that “changes in the objective circumstances in Syria, including relative security improvements in parts of the territory, are not of a fundamental, stable and durable character so as to warrant cessation of refugee status on the basis of Article 1C(5) of the 1951 Convention.” Furthermore, “in light of continued conflict, insecurity, and contamination with explosive remnants of war (ERW); severe concerns about the rule of law and widespread human rights violations and abuses, including against returnees; fragmented community relations and a lack of genuine reconciliation efforts; massive destruction and damage to homes, critical infrastructure and agricultural lands; and deepening economic and humanitarian crises, which are compounded by the COVID-19 pandemic, UNHCR continues to call on states not to forcibly return Syrian nationals and former habitual residents of Syria, including Palestinians previously residing in Syria, to any part of Syria, regardless of whether the area is under control of the Government or under control of another state or non-state entity. ”
“The Danish authorities’ assessment of the situation in Syria refers solely to the situation of wide-spread violence and bombing in some parts of Syria, in total disregard of the continuing hostilities in other parts of the country, as well as Syria’s abysmal human rights record, including widespread and systematic use of torture and other ill-treatment, arbitrary detention and enforced disappearances,” said Said Benarbia, ICJ MENA Director.
Read the full statement here.
Mar 25, 2021 | Agendas, Events, News
Today, the ICJ, the Office of the High Commissioner for Human Rights (OHCHR) Regional Office for Central Asia (ROCA) and the Supreme School of Judges of the Republic of Uzbekistan (SSJ) are holding a final conference on the implementation of international law on economic, social and cultural rights in the national legal framework of Uzbekistan.
This is the final event of a three-year project “Advancing Civil Society in Promoting economic, social and cultural rights Standards” (ACCESS), implemented by the ICJ, funded by the European Union.
Participants will discuss the obstacles to the enjoyment of economic, social and cultural (ESC) rights in Uzbekistan and how to strengthen protection of these rights through access to justice and legal remedies. The discussions will aim to strengthen the implementation of international law on ESC rights, including rights to housing, healthcare and rights to equal protection in the workplace, and ensure that the justice system provides effective protection and remedies where they are violated.
The OHCHR for Central Asia, the SSJ, Tashkent State University of Law, the Nationwide Movement “Yuksalish,” national and international experts will participate in the final conference.
“This is a very important project, which was timely but also challenging to implement during the period of COVID-19 pandemic. The right time to raise awareness around economic, social and cultural rights in particular. This is about accompanying the important reforms of the Government of Uzbekistan, it is about promoting human rights and the rule of law, which is also an important part of our EU Central Asia Strategy,” said H.E. Charlotte Adriaen, Ambassador of the European Union to Uzbekistan.
Ryszard Komenda, Regional Representative of the UN Human Rights Office for Central Asia noted that “this project to promote economic, social and cultural rights in Uzbekistan was and remains highly relevant and needed, including for the dissemination of legal knowledge on human rights among lawyers and representatives of civil society. The implementation of this project during the period of ongoing reforms in the country and participation of UN experts from CEDAW and CRC, makes the project especially effective, unique and timely.”
“Uzbekistan has a solid legal basis to meet its obligations to protect economic, social and cultural rights. But to realize the law’s potential in practice, people whose rights are violated need effective access to the justice system, and the courts need to apply the rights set out in international law,” said Róisín Pillay, Director of the ICJ Europe and Centra Asia Programme.
“We are happy to share our recommendations designed to ensure that people’s economic and social rights, as guaranteed in international law, are protected in practice, including through the justice system. I look forward to discussions with national and international partners during our final event,” she added.
“This project is a clear example of international cooperation of the Supreme School of Judges, which is fully consistent with its priorities. Of course, the implementation of international law on economic, social and cultural rights at the national level in Uzbekistan is one of the most significant national priorities, which requires active interaction between State authorities, the academic and expert community, and of course cooperation with international organizations,” said Khadji-Murod Isakov, the Director of the Supreme School of Judges under the Supreme Judiciary Council of the Republic of Uzbekistan.
Agenda in English
Agenda in Russian
Compilation of papers in Uzbek, Russian and English: Realising economic, social and cultural rights-2021
Contacts:
Ms. Dilfuza Kurolova, ICJ Legal consultant, t: +998 90 9050099 ; e: dilfuza.kurolova(a)icj.org
Ms. Guljakhon Amanova, National Program Officer, Uzbekistan, Regional Office of the UN High Commissioner for Human Rights (OHCHR), e:gamanova@ohchr.org
Mr. Utkir Khalikov, Head of the international department The Supreme School of Judges under the Supreme Judicial council of the Republic of Uzbekistan for Central Asia, e: inter.dep.ssj@mail.ru
The Project is financed by the European Instrument for Democracy and Human Rights (EIDHR) Delegation of the European Union to the Republic of Uzbekistan
Watch the video
Mar 23, 2021 | Advocacy, News, Op-eds
[TOC]By Tim Fish Hodgson, Legal Adviser on Economic, Social and Cultural Rights at the International Commission of Jurists and Rossella De Falco, Programme Officer on the Right to Health at Global Initiative on Economic, Social and Cultural Rights.
Historically pandemics have often catalyzed significant social change. As historian of epidemics Frank Snowden puts it: “epidemics are a category of disease that seem to hold up the mirror to human beings as to who we really are”. At the moment gazing in that mirror remains a regrettably unpleasant experience.
United Nations human rights Treaty Body Mechanisms and Special Procedures, the World Health Organization (WHO), UNAIDS and numerous local, regional and international human rights organizations have produced reams of statements, resolutions and reports bemoaning the human right impacts of COVID-19 and almost every single aspect of the lives of almost all people around the world. The latest being the UN Human Rights Council Resolution adopted today by consensus on “Ensuring equitable, affordable, timely and universal access for all countries to vaccines in response to the coronavirus disease (COVID-19) pandemic”.
Key amongst the human rights law and standards underpinning these analyses is the protection of the right to the highest attainable standard of health, which, certainly for the 171 States Parties to the International Covenant on Economic, Social and Cultural Rights places an obligation on States to take all necessary measures to ensure “the prevention, treatment and control of epidemic, endemic, occupational and other diseases”, and, in the context of access to medicines the right to “enjoy the benefits of scientific progress and its applications”.
Despite these legal obligations, in late February, the UN Secretary General António Guterres felt compelled to highlight the rise of a “pandemic of human rights abuses in the wake of COVID-19”, including, but extending beyond violations of the right to health. The impact of COVID-19 on human rights has, and continues to be, sufficiently ubiquitous that an Indonesian transwoman activist Mama Yuli perhaps captured it best when telling a journalist that she and others in her position were “living like people who die slowly”.
Vaccines for the few, but what about the many?
Disappointingly, however, instead of a symbol of hope of a light at the end of the Coronavirus tunnel, the COVID-19 vaccine has fast become yet another pronounced illustration of the parallel pandemic of human rights abuses described by Guterres. The disastrous state of COVID-19 vaccine production and distribution throughout the world – and even within particular countries where vaccines are available – is now often described by many activists, including significantly the People’s Vaccine campaign, as “vaccine nationalism” and profiteering which has produced a “vaccine apartheid”.
What this means, in human rights language, is that States have often arranged their own affairs in a way that is detrimental to access to vaccines in other countries in spite of their extraterritorial legal obligations to, at very least, avoid their actions that would foreseeably result in the impairment of the human rights of people outside their own territories.
It is worth emphasizing that it has still been only some four months since the first mass vaccination campaigns began in December 2020. At the time of writing, approximately 450 million people had been vaccinated worldwide, while many African nations, for example, had yet to administer a single dose. While in North America 23 COVID-19 vaccine doses have been administered per 100 hundred people, with the number standing at 13/100 in Europe, the ratio decreases dramatically in the Global South with 6.4/100 in South America, 3.8/100 in Asia, 0.7/100 in Oceania and a mere 0.6/100 in Africa.
Vaccines, State Obligations and Corporate Responsibilities
The inadequate and inequitable distribution of vaccines has a variety of causes.
First, is the generally dysfunctional nature of the global health system due to what the UN Committee on Economic, Social and Cultural Rights described in its first statement on COVID-19 as early as April 2020 as “decades of underinvestment in public health services and other social programmes”. The incredible inequities caused by privatization of healthcare services, facilities and goods in the absence of sufficient regulation is well-documented, both in the Global North and the Global South.
Second, are the obstacles to vaccine access created and maintained by States, singly but collectively in the form of intellectual property rights regimes. This is not for a lack of guidance or legal mechanisms to ensure the flexible application of intellectual property protections in favour of the protection of public health and the realization of the right to health. The TRIPS agreement is an international legal agreement concluded by members of the World Trade Organization which sets minimum standards for intellectual property rights protections.
States are specifically permitted to interpret intellectual property rights protections “in the light of the object and purpose of” TRIPS and States therefore retain “the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted” in the specific context of public health emergencies. Nor is it the first time that epidemics have necessitated the engagement of flexible arrangements to ensure expeditious, universal, affordable and adequate access to life saving medications and vaccines.
This is why the majority of States and an overwhelming majority of civil society actors have supported South Africa and India’s request that the WTO issue a “waiver” of the application of intellectual property rights for COVID-19 “diagnostics, therapeutics and vaccines”. This request has also been formally supported by a number of independent experts of the UN Human Rights Council of UN Special Procedures, and recently received the emphatic endorsement of the UN Committee on Economic, Social and Cultural Rights. There is already precedent for such TRIPS waivers, with the WTO having already applied a waiver until 2033, for example, for least-developed countries (LDCs), which are exempted from applying intellectual property rules on pharmaceutical products and clinical data.
Disappointingly, however, the ink had barely dried on the issuing of the CESCR’s statement, when, plainly disregarding all of these recommendations, the waiver was blocked by a coalition of wealthier nations, many of whom already have substantial and advanced vaccine access. Importantly, the CESCR’s recommendations were not just made on vague policy grounds, but as the best way to fulfill States’ clear legal obligation in ICESCR that, “production and distribution of vaccines must be organized and supported by international cooperation and assistance”.
The recently adopted Resolution of the UN Human Rights Council, led by Ecuador and States of the Non-Aligned Movement and adopted on 23 March 2021 provides some hope of the alteration of this existing collision course with disaster. The resolution, which calls for “equitable, affordable, timely, and universal access by all countries”, reaffirms vaccine access as a protected human right and openly acknowledges “unequal allocation and distribution among countries”.
The resolution proceeds to call on all States, individually and collectively, to “remove unjustified obstacles restricting exports of COVID-19 vaccines” and to “facilitate the trade, acquisition, access and distribution of COVID-19 vaccines” for all.
However, despite the protestations of civil society organizations involved in deliberations about the resolution, the resolution only restates the right for States to utilize TRIPS flexibilities, as opposed to endorsing such measures as a best practice for realizing State human rights obligations. This tepid approach (which follows principles of international trade while, ironically given the resolution emanates from the Human Rights Council, ignoring human rights standards) to perhaps the pressing issue relating to vaccine access is inconsistent with the Resolution’s otherwise firm grounding of vaccine access in human rights. It therefore remarkably even falls short of insisting that States comply with their own long-established international human rights obligations.
The resolution also inexplicably fails to address corporate responsibilities, including those of pharmaceutical companies, to respect the right to health in terms of the UN Guiding Principles on Business and Human Rights, and States’ corresponding duty to protect the right to health through adopting adequate regulatory measures.
Third, and connected to the above, is the general failure of States to fully and adequately centre their human rights obligations in the broader context of COVID-19 responses worldwide. The subtle but important phrasing of the exercise of TRIPS flexibilities as a “right of States” rather than as one of the optimal ways of fulfilling an obligation, exposes the degree to which the attitudes by State policy makers and legal advisors towards and understanding of human rights are out of sync with the obligations that they have willingly assumed by becoming party to treaties like the ICESCR.
A Critical Moment: it does not have to be this way
As Snowden’s insightful work predicted, the COVID-19 pandemic represents a critical moment in human history. States, collectively and individually, are presented with a unique opportunity to set a precedent and begin to seriously address the root causes of inequality and poverty which are prevalent across the world.
Making the right decision and taking a moral stand on the importance of access to COVID-19 vaccines is both practically and symbolically important if these efforts are to succeed. Vaccines must be accepted and acknowledged as global public health goods and human rights. Private companies too should not stand in the way of equitable and non-discriminatory vaccine access for all people.
For this to happen, bold leadership is required from international human rights institutions such as the UN Human Rights Council, the UN General Assembly and the WTO. Unfortunately, at present, not enough has been done and politicking and private interest continue to trump principle and public good. Until this changes, many people around the world will continue to exist, “living like people who are dying slowly”. It does not have to be this way.
Mar 16, 2021 | News
The participation of private actors including pharmaceutical companies in the development and delivery of COVID-19 vaccines has important implications for human rights, in particular the rights to life and to health, that have not been properly considered, a panel of experts asserted in a webinar organized by the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), the ICJ and the Konrad Adenauer Stiftung (KAS) on March 11.
Taking place exactly one year after the World Health Organization declared COVID-19 a global pandemic, the webinar, entitled “What are the obligations of States and corporations to ensure access to a COVID-19 vaccine?”, brought together Dr Sharifah Sekalala from the University of Warwick, Fatima Hassan, the founder and head of the Health Justice Initiative, and Prof. David Bilchitz, the director of SAIFAC.
As the United Nations Committee on Economic, Social and Cultural Rights (CESCR) has recently reaffirmed, vaccine access raises human rights issues relating to both the obligations of States and the responsibilities of businesses.
Carlos Lopez, ICJ’s Senior Legal Adviser stressed:
“It is clear that States have a duty to protect the right to health which entails an obligation to appropriately regulate private actors in health – including those involved in vaccine production and distribution – to retain the affordability and accessibility of COVID-19 vaccines for all. Corporate entities, for their part, have a responsibility to respect the right to health which they violate when they adopt practices which limit or inhibit non-discriminatory vaccine access to all people around the world.”
One of the main elements in the debate is the issue of people’s access to vaccines that are adequate and affordable, and how the capacity of the States to fulfil this key aspect of their international law obligations is being constrained by the operation of certain trade and intellectual property rights law, in particular the Trade-Related Intellectual Property Rights (TRIPS) Agreement of the WTO.
Dr Sekalala, pointed to a fundamental underlying issue relating to the predominant rationale of States and companies:
“One of the things that bothers me as a global health lawyer is the lack of transparency around this process and also, in some ways, the fact that States are still clinging on this research and development rationale, maintaining intellectual property rights”.
This also raises serious questions about the nature of the responsibilities that corporate entities may have to respect the right to health, as has been clarified in General Comment 24 of the CESCR and the UN Guiding Principles on Business and Human Rights.
“There is a moral dimension to the question about vaccine access: what should society expect of the corporations? And there is also a legal one: what does the law require? Fundamental rights are essentially urgent moral claims that demand legal institutionalization. Fundamental rights recognized in international law, in the South African Constitution and many other constitutions around the world require, in my view, that corporations have positive obligations but if such positive obligations are not recognized in legal systems, domestically or internationally, the claim is they ought to be”, said Professor Bilchitz.
Although vaccine access may implicate human rights responsibilities of a range of private business entities, such considerations are especially pronounced with regard to pharmaceutical companies given the direct impact of their business operations on vaccine access. Vaccine access raises clear issues about the protection of human rights and the rule of law both internationally and in particular domestic jurisdictions like South Africa.
“Pharmaceutical companies and some wealthier governments that have actually co-funded a lot of the accelerated vaccine research are basically using their own law… right now they are acting as if they are God, they are determining access for the entire world, including the Global South. The Constitution has been thrown out of the window, particularly in the domestic context of South Africa”, said Hassan.
Watch the webinar here.
A powerpoint for Dr Sekalala’s presentation is available here.
A powerpoint for Professor Bilchitz’s presentation is available here.
A powerpoint for Fatima Hassan’s presentation is available here.
CONTACT:
Timothy Fish Hodgson, Legal Adviser on Social, Economic and Cultural Rights, e: timothy.hodgson@icj.org
Tanveer Rashid Jeewa, Communications and Legal Officer, e: tanveer.jeewa@icj.org
