Nov 7, 2023 | News
World Health Organization (WHO) member states should push for clear commitments to human rights protections in the text of a draft “pandemic treaty” being negotiated on November 6-10, four rights organizations said today. The current draft fails to enshrine core human rights standards protected under international law, most notably the right to health and the right to benefit from scientific progress, therefore risking a repeat of the tragic failures during the Covid-19 pandemic.
The WHO’s Intergovernmental Negotiating Body is meeting to debate the draft of a new international instrument on pandemic prevention, preparedness, and response with the goal of addressing the failures of the Covid-19 response and preventing another global crisis. However, rather than acting on the lessons learned from the Covid-19 pandemic, the current proposed text offers a weak framework for ensuring that countries will be accountable for maintaining a rights-compliant response to future pandemics.
This is the position taken by four international human rights groups: Amnesty International, the Global Initiative for Economic, Social and Cultural Rights, the International Commission of Jurists, and Human Rights Watch.
“Creating a new pandemic treaty could offer an opportunity to ensure that countries are equipped with proper mechanisms for cooperation and principles to prevent the level of devastation wrought by the Covid-19 pandemic, and the rights violations resulting from government responses,” said Tamaryn Nelson, legal advisor at Amnesty International. “By failing to ground the treaty in existing human rights obligations and inadequately addressing human rights concerns arising during public health emergencies, governments risk repeating history when the next global health crisis hits.”
Existing international human rights law and standards should be explicitly referenced throughout the document, recognizing that they are core to an effective and equitable pandemic response, the organizations said. It should also incorporate developments in international human rights standards reflected, for example, in principles developed by the Global Health Law Consortium and the International Commission of Jurists in the “Principles and Guidelines on Human Rights and Public Health Emergencies,” and the Civil Society Alliance’s “Human Rights Principles For a Pandemic Treaty.”
“A global health architecture that puts profit-driven considerations at the center of global health decisions exacerbated the unprecedented magnitude of illness and death from Covid-19,” said Julia Bleckner, senior health and human rights researcher at Human Rights Watch. “Certain higher-income countries effectively hoarded vaccines and blocked a proposal to share the vaccine recipe, while those in lower-income countries died waiting for a first dose. An equitable and effective response to any future pandemic should ensure states carry out their obligation to, individually and collectively, regulate private entities to prevent them from undermining human rights.”
Human rights standards clearly establish that scientific progress must be available, accessible, acceptable, and of good quality to all individuals and communities. Governments must take steps to ensure that everyone can access the applications of scientific progress without discrimination.
The new treaty should reiterate that governments are required under international human rights law to strictly monitor and regulate private actors when they are involved in financing and the delivery of healthcare, ensuring that all their operations contribute to the full realization of the right to health. But the draft fails to incorporate the human rights framework on strictly monitoring and regulating private actors in healthcare, as well as preventing any harmful impact of private actors’ involvement in healthcare on governments’ capacity to effectively respond to pandemics. For example, the new text includes that state parties should “promote collaboration with relevant stakeholders, including the private sector” without clear human rights guardrails.
The Covid-19 pandemic was both a health and human rights catastrophe. Without clear and binding commitments to human rights law and standards leading up to and during public health emergencies, the crisis gave way to a ripple effect of human rights violations and abuses. Governments enforced lockdowns, quarantines, and other restrictions in ways that often were disproportionate to the public health threat and undermined human rights. In some cases, governments weaponized public health measures to discriminate against marginalized groups and target activists and opponents.
Yet the draft treaty fails to give governments virtually any guidance on how to comply with international law and standards, requiring any restrictions of human rights in the context of such emergencies to be evidence based, legally grounded, non-discriminatory, and necessary and proportionate to meet a compelling human rights threat. To the extent that restrictions undermine full enjoyment of economic and social rights, social relief measures to ensure the protection of those rights should also be put in place.
“The fact that the current draft of the text does not even repeat well established and existing standards in regard to legality, necessity, and proportionality of response measures is as disappointing as it is confounding. The result is a treaty that does not reflect the experience of individuals throughout the world who were subjected to human rights abuses in the name of public health response,” said Timothy Fish Hodgson, senior legal advisor at the International Commission of Jurists. “It is imperative that the negotiated text explicitly includes the necessary safeguards required under international human rights law when responding to a public health threat.”
The Covid-19 pandemic underscored the need for a social safety net and the consequences of failing to substantively account for the social and commercial determinants of health. While the current draft recognizes the ways in which the Covid-19 pandemic exacerbated inequalities, it does not explicitly commit governments to effectively protect the rights that guarantee key underlying determinants of health, including social security, food, education, housing, water, and sanitation, without discrimination.
In order to genuinely achieve its commitments to the principle of equity “at the centre of pandemic prevention, preparedness and response,” the Intergovernmental Negotiating Body should include in the draft explicit language on the obligations to proactively protect the rights of persons from marginalized groups, and to emphasize the human rights protections against discrimination.
“The global health response to the Covid-19 pandemic prioritized profit over the lives of the world’s most marginalized,” Rossella De Falco, programme officer on the right to health at the Global Initiative for Economic, Social and Cultural Rights said. “If countries are serious about preventing the inequities and loss of the Covid-19 pandemic, they will commit to a rights-aligned agreement for future pandemics.”
Please note, the text above is a shortened version of this full statement, adapted by the ICJ for its website.
For more information:
For the International Commission of Jurists, Timothy Fish Hodgson: +27-82-8719-905; or timothy.hodgson@icj.org.
For Human Rights Watch, in Nairobi, Julia Bleckner: +1-917-890-4195; or blecknj@hrw.org.
For the Global Initiative for Economic, Social and Cultural Rights: +39-393-819-5332 or rossella@gi-escr.org
For Amnesty International, Tamaryn Nelson: tamaryn.nelson@amnesty.org
Background:
Previous joint statement of ICJ, AI, GI-ESCR and HRW (24 February 2023) available here.
ICJ and Global Health Law Consortium “Principles and Guidelines on Human Rights in Public Health Emergencies” available here.
Civil Society Alliance for Human Rights in the Pandemic Treaty “Human Rights Principles for a Pandemic Treaty” (11 April 2022) available here.
Civil Society Alliance for Human Rights in the Pandemic Treaty “Why States Must Ensure Full, Meaningful and Effective Civil Society Participation in developing a Pandemic Treaty” (11 April 2022), available here.
Download the full statement
Oct 25, 2023
On 5 October, in response to a call for input from the UN Special Rapporteur on the right to adequate housing and the UN Special Rapporteur on extreme poverty, the International Commission of Jurists (ICJ) filed a submission on the decriminalization of homelessness and extreme poverty.
The ICJ’s submission is based, in part, on “The 8 March Principles”, a new set of legal principles elaborated by jurists for a human rights-based approach to criminal laws, including criminal offences proscribing conduct associated with sex, reproduction, drug use, HIV, homelessness and poverty, which the organization published earlier this year.
In this regard, the ICJ submission focuses, in particular, on Principle 21 on the criminalization of “life-sustaining activities in public places and conduct associated with homelessness and poverty”. In addition, the submission draws on the ICJ’s analysis of legal frameworks, including criminal laws, and practices that are at odds with general principles of criminal law, and that continue to violate the human rights of marginalized and disadvantaged persons, including in India, Malawi, Nepal, Pakistan, Sri Lanka, South Africa, Uganda and Zimbabwe.
The submission outlines various examples of laws criminalizing poverty or homelessness either explicitly or as result of their enforcement. Among those, the ICJ has recommended the repeal of:
- Laws criminalizing begging, public nuisance, soliciting and “living on the earnings of prostitution” in India.
- Laws criminalizing begging, vagrancy and public nuisance generally and laws criminalizing similar conduct by transgender persons, in particular, in Pakistan.
- Laws criminalizing vagrancy, “living on the earnings of prostitution” and soliciting in public in Sri Lanka.
- Laws criminalizing poverty by extensively prohibiting broad swathes of conduct described as public nuisance and laws criminalizing homelessness by prohibiting a wide range of conduct associated with unlawful occupations of land in South Africa.
- Laws criminalizing vagrancy and informal traders’ efforts to making a living in Uganda.
In its submission, the ICJ has also expressed concern about laws implemented in a manner that criminalizes informal traders’ efforts to make a living in Malawi and Nepal.
The ICJ’s submission recalls how international human rights law and standards require States to address the root causes of homelessness and poverty and to provide support to those experiencing them. States’ failure to do so often amounts to violations of their international human rights law obligations to realize a range of human rights, including the rights to adequate housing, work and social security, for example, under the International Covenant on Economic Social and Cultural Rights.
Under international human rights law, States are legally obliged to address the plight of those experiencing homelessness and those living in poverty. Very often, however, States not only fail to comply with these obligations but, making matters worse, subject people experiencing homelessness and poverty to harsh criminal law sanctions solely for conduct that is critical to their survival. In this context, the ICJ is particularly concerned that in many national jurisdictions people commonly continue to be imprisoned if they are unable to pay fines for minor “criminal infractions”.
Overall, decriminalizing homelessness and extreme poverty is not only consistent with general principles of criminal law and States’ legal obligations under international human right law, but it also a necessary step to begin addressing the root causes of the violations of economic and social rights of particularly marginalized persons. The ICJ submission underscores that, instead of enacting and enforcing criminal laws with a disproportionate impact on such persons, under international human rights law, States are required to provide all people with the opportunity to rebuild their lives and fully integrate into society while respecting their dignity and human rights.
Download:
[Submission] ICJ’s submission to the UN Special Rapporteurs
Background
The ICJ is a member of the Campaign to Decriminalize Poverty and Status, which is a coalition of organizations from across the world advocating for the repeal of laws that target people based on poverty, status or for their activism and campaigning against the overuse and abuse of criminal law across the world in keeping with international law and standards.
The 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty, recently published by the ICJ, offer a clear, accessible, and operational legal framework and practical legal guidance for a variety of stakeholders, including judges and legislators, on the application of criminal law to conduct associated with consensual sexual activities, such as consensual same-sex sexual relations and sex work (Principles 16 and 17); the criminalization of sexual orientation, gender identity and gender expression (Principle 18); drug use (Principle 20); as well as homelessness and poverty (Principle 21). Principle 21, in particular, states that “no one may be held criminally liable for engaging in life-sustaining economic activities in public places[…] or on the basis of their employment or means of subsistence or their economic or social status…”
Additional resources:
- International Commission of Jurists, “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity, February 2017, accessed at: https://www.icj.org/wp-content/uploads/2017/02/India-SOGI-report-Publications-Reports-Thematic-report-2017-ENG.pdf
- International Commission of Jurists, Sri Lanka’s Vagrants Ordinance No. 4 Of 1841: A Colonial Relic Long Overdue for Repeal, 2021, available at https://www.icj.org/wp-content/uploads/2022/01/Sri-Lanka-Briefing-Paper-A-Colonial-Relic-Long-Overdue-for-Repeal-2021-ENG.pdf
- International Commission of Jurists “The 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty” (8 March 2023), available: https://icj2.wpenginepowered.com/wp-content/uploads/2023/03/8-March-Principles-Report_final_print-version.pdf
- International Commission of Jurists, Pakistan: Transgender Persons (Protection of Rights) Act, 2018 : A briefing paper (March 2020), available : https://icj2.wpenginepowered.com/wp-content/uploads/2020/03/Pakistan-Transgender-Advocacy-Analysis-brief-2020-ENG.pdf
- International Commission of Jurists, Sri Lanka’s Vagrants Ordinance No. 4 of 1841: A Colonial Relic Long Overdue for Repeal : A briefing paper (December 2021), available: https://www.icj.org/wp-content/uploads/2022/01/Sri-Lanka-Briefing-Paper-A-Colonial-Relic-Long-Overdue-for-Repeal-2021-ENG.pdf
Oct 24, 2023 | Advocacy, News
A week of negotiations started at the United Nations in Geneva yesterday to enhance the international legal framework to regulate business enterprises, especially transnational corporations, and increase accountability for human rights abuses and violations linked to their activities. The ICJ has been actively participating in the previous sessions of these negotiations in the last nine years and is committed to pursue its constructive contribution to the debate. Read our statement below.
“Thank you, Mr. Chair.
The International Commission of Jurists (ICJ) congratulates you on your election as the Chairperson-Rapporteur.
The ICJ acknowledges the efforts made by the Chairmanship to propose a revised and streamlined text on the basis of the various inputs received and consultations organized since the 8th session of this working group. We appreciate that this work has resulted in a more concise and clearer text in several places, which, in some respects, may better facilitate the negotiations ahead of us this week. It brings more internal coherence to the text and avoid repetitions that were affecting previous iterations. We also acknowledge that there are varying and divergent positions among States on the more difficult issues under discussion in this process and that you have proposed some compromise formulations to bridge the gaps.
We, however, regret that some critical provisions have disappeared from the revised draft in front of us at this session. The ICJ is particularly concerned that articles concerning prevention, liability and jurisdiction have been stripped of key elements that served to clarify international human rights law with regard to accountability for human rights abuses and violations in the context of business activities; and to ensure access to justice for the victims of such abuses and violations including through access to effective judicial remedies.
The ICJ will thus intervene in the negotiations during this 9th session in a constructive spirit with the aim to make proposals and comments addressing these gaps in the protection of human rights in the context of the activities of transnational companies and other business enterprises.
We are convinced that this process, after 9 years, needs to deliver an ambitious enough text so as to meet the needs of present and future victims and make a real contribution to the necessary development of international law in that area. For these reasons, we urge all States from all regional groupings to participate actively and constructively in the negotiations.
Thank you very much, Mr. Chairperson-Rapporteur.”
Statement delivered by:
Sandra Epal Ratjen, ICJ UN Representative and Senior Legal Adviser, e: sandra.epal@icj.org
Sep 22, 2023 | Advocacy, News
The International Commission of Jurists (ICJ) and International Bar Association Human Rights Institute (IBAHRI) called the Human Rights Council’s attention to the serious abuses amounting to crimes under international law linked to mercenary activities in the Sahel region of Africa, including allegations of unlawful killings, torture and ill-treatment, rape and other sexual violence, and enforced disappearances. Read the full statement below.
Oral Statement of the ICJ and the IBAHRI on the recruitment and activities of mercenaries and private military and security companies
“Mr President,
The International Commission of Jurists (ICJ) and the International Bar Association Human Rights Institute (IBAHRI) deplore the practices of predatory recruitment of people usually in vulnerable situations, such as detainees, and the harsh and risky conditions of service they endure as described in the report of the Working Group on the Use of Mercenaries (A/HRC/54/29).
The report describes opaque and deceitful contract terms, and orders to take direct part in hostilities in foreign countries without their prior consent. These practices sometimes amount to forced labour and debt bondage, in addition to human trafficking.
We remind the States with jurisdiction over persons and practices of their obligation to protect the human rights of persons in such vulnerable situations. ICJ and IBAHRI especially calls this Council’s attention to the serious abuses amounting to crimes under international law linked to mercenary activities in the Sahel region of Africa, including allegations of unlawful killings, torture and ill-treatment, rape and other sexual violence, and enforced disappearances.
We are deeply concerned at repeated allegations that some of these serious human rights abuses are committed by the so-called Wagner Group and call States concerned to promptly, thoroughly and impartially investigate these allegations and bring the perpetrators to justice.
ICJ and IBAHRI support the Working Group’s recommendations for renewal of the mandate of the Intergovernmental Working Group on an international regulatory framework on private military and security companies and call all States to constructively participate in its work (para. 42 g).
Thank you.”
For more information, contact:
Carlos Lopez Hurtado, ICJ Senior Legal Adviser, e: carlos.lopez@icj.org
Sep 15, 2023 | Advocacy, News
The ICJ welcomes the last report of Mr. Fabian Salvioli as he ends his 6-year tenure as the UN Special Rapporteur on truth, justice, reparation and guarantees of non-recurrence. The report, presented to the UN Human Rights Council (HRC) on 14 September 2023, compiles and analyses existing international standards under the five pillars of transitional justice: truth, justice, reparation, memorialization and guarantees of non-recurrence.
