Today, the ICJ addressed the World Health Organization (WHO) Intergovernmental Negotiating Body (“INB”) for the Pandemic Treaty during its public consultations on the substantive elements of this instrument. While welcoming the INB’s decision to hold such public hearings, we recommend that it dramatically widen and extend its efforts to ensure public participation.
The ICJ and Human Rights Watch today addressed the UN Human Rights Council in the Interactive Dialogue on the Report of the Office of the High Commissioner for Human Rights on COVID-19 responses and human rights.
The statement reads as follows:
Madam High Commissioner,
The ICJ and Human Rights Watch welcome your report on COVID-19 and human rights.
We believe that urgent action is needed beyond broad statements of condemnation of vaccine inequity. People without access to vaccines continue to live in fear of COVID-19 and, throughout the world, many continue to die.
Slow vaccine rollout continues across Southern Africa and Latin America and in Nepal and India despite the prevalence of quickly transmitting variants. In the face of such significant peril, Indian courts have questioned the rationality of government plans. In South Africa elite athletes and sports administrators have been vaccinated, while older persons and vulnerable populations continue to wait their turn.
Pharmaceutical companies impose far reaching non-disclosure agreements on governments which restrict access to health information necessary to combat corruption and ensure accountability. In Colombia, courts have ordered disclosure of contracts relating to COVID-19 vaccines despite such agreements.
COVID-19 response measures continue to be used in Cambodia, Thailand and Vietnam to restrict access to health information and stifle expression of human rights defenders. In Hungary similar tactics have been compounded by simultaneous attacks on judicial independence.
How will the OHCHR guide States on how to ensure effective judicial and other remedies are available for those whose human rights are threatened by inadequate or inequitable COVID-19 responses?
I thank you.”
The ICJ, in a letter to the Chairperson of the African Union, recommended that the African Union acknowledge that COVID-19 vaccines are a “public good” and all States must ensure access to these vaccines in order to realize the human rights of their inhabitants.
The African Charter on Human and People’s Rights, to which most AU Member States are Party, provides that “every individual shall have the right to enjoy the best attainable state of physical and mental health” (Art 16(1)). The Charter also places an obligation on the States Parties to take all “necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick” (Art 16(2)).
This obligation must be understood consistently with the equivalent Article 12 of the International Covenant on Economic, Cultural and Social Rights (ICESCR), to which most AU Member States are also Party. That provision protects the right to the “highest attainable standard of physical and mental health”, and requires States to take all necessary measures to realize this right including to ensure “the prevention, treatment and control of epidemic, endemic, occupational and other diseases” (Art 12(1)(c)). Vaccines, for some such diseases including COVID-19, are necessarily an integral part of prevention, treatment and control.
“It is essential for the process of vaccine procurement and allocation to be in line with international human rights standards. The African continent and its people cannot afford to be left behind, and the best way to ensure that does not happen is to move forward and prioritize each individuals right to health and corresponding human rights.” –
Justice Sanji Monageng, ICJ Commissioner, Botswana
Therefore, under these treaties and other internationally binding human rights law, it is clear access to certain vaccines is necessary to fulfill a human right, must not be seen as a privilege. Vaccines are a public good and should be treated as such by States. This understanding was affirmed by the UN Committee on Economic, Social and Cultural Rights (CESCR) in December in a statement on universal and equitable access to vaccines. CESCR stressed that: “every person has a right to have access to a vaccine for COVID-19 that is safe, effective and based on the application of the best scientific developments”. It further implored States to “give maximum priority to the provision of vaccines for COVID-19 to all persons”.
Recommendations of the International Commission of Jurists
The AU will be expected by the constituents of its Members to fulfil its proper leadership function in terms its Constitutive Act an ensure the promotion and protection of human rights in Africa. To this end, the ICJ calls upon the AU to adopt resolutions:
To read the full submission, click here.
Contact
Kaajal Ramjathan-Keogh, ICJ Africa Director Kaajal.Keogh(a)icj.org +27 84 5148039
Tanveer Jeewa, Media and Legal Consultant Tanveer.Jeewa(a)icj.org
An opinion piece by Carolina Villadiego Burbano, ICJ Legal and Policy Adviser for Latin America.
Several Latin American governments have adopted exceptional emergency measures to face the COVID-19 health crisis. The measures, motivated by policies with the objctive of urgently protecting people’s health, have been accompanied by restrictions to personal freedoms (i.e. quarantines, isolations).
Judiciaries have also adopted specific measures too to protect the right to health of persons involved in proceedings while providing services for guaranteeing access to justice during the emergency. They have reduced physical operations; adopted social distancing measures in courts; postponed proceedings; authorized remote work for judges and administrative officers; incorporated urgent mechanisms to guarantee fundamental rights and allowed the use of technology.
Judiciaries fulfil different roles under international humans rights law and, as a recent ICJ briefing note recalls, these roles remain as or even more important during the pandemic. Those roles include guaranteeing individual rights, including the right to a fair trial, freedom from arbitrary detention, freedom from torture and other ill-treatment and the right to an effective remedy. In addition, the responsibility of the judiciary is to securing the rule of law more generally by reviewing the government’s decisions during the emergency.
This blog illustrates measures adopted by South American judiciaries and some preliminary and personal reflections on some of the factors to be considered in assessing their proportionality and effectiveness.
Specific measures to protect health while guaranteeing access to justice
Brazil’s National Council of Justice has recommended to judges several measures that could reduce epidemiological risks, such as reassessing pre-trial detentions. This review could include revoking pretrial detentions when detainees were pregnant women or were under pretrial detention for more than 90 days.
Chile’s Supreme Court has established criteria for judges and other personnel to work remotely, and for holding specific hearings by videoconference with previous coordination with the parties and by ensuring due process guarantees. Also, instructions have been given to prioritize cases linked to the sanitary emergency and related to the protection of rights of persons in vulnerable conditions.
Colombia’s Judicial Council postponed proceedings except for urgent ones, such as those essential for the protection of fundamental rights (tutela), habeas corpus, constitutional and legal control of the emergency governmental decrees, decisions regarding persons deprived of liberty and protective measures related to domestic violence cases. The judiciary has published email addresses where urgent applications could be made electronically and allowed the use of videoconferencing and remote work for judges.
Ecuador’s Judicial Council has allowed remote working by judges, and videoconference hearings have been adopted for crimes committed in flagrante delicto. Judicial proceedings have been postponed, except for urgent cases, such as for crimes committed in flagrante delicto, domestic violence, juvenile justice and prisoners’ guarantees. The Supreme Court and the Constitutional Court has defined rules applicable to the procedures under their jurisdiction.
Peru’s Executive Council of the Judiciary postponed proceedings and established that some judges should work physically at courts on urgent proceedings, such as those related to rights of detainees, domestic violence and payment of parental support. Some remote work has also been allowed.
Other judiciaries have adopted similar measures. Provincial judiciaries from Argentina and judges from Bolivia have held hearings through videoconferences. Paraguay’s judiciary identified urgent matters for which it would provide services.
Judiciaries, right to an effective remedy and access to justice: what next?
More than one month after those judicial measures were adopted it is important to reflect on their proportionality and their effectiveness. It is also important to envision a middle-term plan to deal with the consequences of postponement of proceedings and the likely increase of judicial workload when restrictions end. I suggest three sets of issues that could be considered as a starting point for such reflection by Latin American judiciaries, civil society and international bodies and agencies:
The following questions might be considered:
The COVID-19 pandemic has modified judiciaries’ methods of work. As they adopted specific measures to protect the health of persons as well as to provide judicial remedies, it is important to review their measures with a human rights approach. It is also critical that judiciaries themselves analyze their practices and adopt changes when necessary. The Inter-American Commission of Human Rights and the UN Special Rapporteur on the Independence of Judges and Lawyers should continue to specifically monitor these measures and report on them.
In PDF: Latin-America-Judiciaries-During-COVID-OpEd-2020-ENG
A joint statement signed by the ICJ and 102 other organizations.
The COVID-19 pandemic and public health crisis is presenting grave challenges for health care systems across Europe.
As European countries work to address the pandemic, protect their populations, and meet the increased demand on health care workers and health care facilities it is vital that they adopt measures to safeguard the health, human dignity, physical and mental integrity, and reproductive autonomy of women and girls in the region.
In many countries the lack of government measures to guarantee individuals’ safe and timely access to essential sexual and reproductive health services, goods, and information during the pandemic is of particular concern.
Women and girls – this statement refers to women and girls, as the majority of individuals who are needing abortion care identify as such but it equally applies to all individuals who may become pregnant and need abortion care or other sexual and reproductive health care – are facing significant restrictions in safely accessing essential sexual and reproductive health services, particularly timely abortion care, post abortion care, and emergency contraception.
Such restrictions disproportionately impact individuals belonging to marginalized groups, including women living in poverty, women with disabilities, Roma women, undocumented migrant women, adolescents, and women at risk or who are survivors of domestic and sexual violence.
These restrictions also create unnecessary risks of exposure to COVID-19 for women and girls and their families as well as for health care providers.
Particularly grave barriers are arising for women and girls living in European countries where abortion care is illegal or severely restricted, and where as a result they must travel to other countries to access legal care or must obtain abortion medication from outside their own jurisdiction.
These issues can also arise in those European countries where individuals are forced to go through burdensome or harmful administrative processes to access abortion care or where they may have difficulty finding doctors in their country willing to provide care.
We applaud those governments that have moved swiftly to safeguard access to essential time- sensitive sexual and reproductive health care during this time, in particular through ensuring access to telehealth and early medical abortion from home.
We call on all other European governments to follow suit and to follow the guidance of medical and public health experts.
We call on the six European countries (Andorra, Liechtenstein, Malta, Monaco, Poland and San Marino) where abortion is illegal or severely restricted to urgently reform these laws, which place women’s health and lives at risk.
Limitations on travel and transport now compound the impact of these highly restrictive laws. Individuals in these countries may no longer be able to travel abroad or to obtain medication for abortion sent by post from medical providers in other countries. As a result, they face heightened risks to their health and wellbeing.
We call on those countries where abortion is legal but where clinical services are unavailable or difficult to access due to a range of barriers, including medically unnecessary requirements that oblige individuals to take multiple or unneeded trips to health care facilities or undergo mandatory hospitalization, to urgently eradicate those barriers and ensure access to services.
Urgent steps should also be taken to ensure that refusals of care because of private beliefs by doctors do not jeopardize timely access to legal abortion care.
In accordance with human rights obligations3 and the recommendations of medical experts4 the following measures should be adopted, and at a minimum remain in place for the duration of the COVID-19 pandemic:
Finally, we call on all policy makers across the European region to reject proposals that purport to restrict access to safe abortion care during the COVID-19 pandemic. These disingenuous proposals simply serve to exacerbate the current public health crisis and have negative effects on the health, lives, and wellbeing of women and girls.
Download the full statement with additional information and the list of signatories
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