By Eric A. Friedman and Lawrence O. Gostin
In 1984, the United Nations Economic and Social Council (ECOSOC) adopted the Siracusa Principles, which state that restrictions on human rights must meet standards of legality, necessity, and proportionality. States must use the least restrictive means available when putting in place rights-restricting measures.
One of us (LG) was involved in the drafting of the Siracusa Principles, which have become the chief international instrument governing permissible human rights limitations during national emergencies. Yet when COVID-19 – the greatest health emergency in a century – devastated the world, the Siracusa Principles seemed unequal to the task – too narrow, including with their remit limited to civil and political rights, not sufficiently specific, and above all, without sufficient accountability.
During the pandemic phase of COVID-19, human rights violations were widespread and spanned the full gamut of rights: from arbitrary detentions and suppression of free expression, to violations of the right to health, failure to ensure sufficient food and other necessities during lockdowns, quarantines, and isolations, and woefully inadequate international cooperation and assistance, including discriminatory travel and trade restrictions.
Extensive abuses of human rights during the pandemic led international experts to draft the Principles and Guidelines on Human Rights and Public Health Emergencies (HR Principles). Firmly embedding these principles in international law and creating accountability will be critical for realizing the HR Principles’ potential.
The International Covenant on Civil and Political Rights (ICCPR) and the Siracusa Principles recognize that emergency situations may require governments to temporarily limit certain rights. The ICCPR recognizes that “a public emergency which threatens the life of the nation” may require derogating from certain rights obligations. States may do so only “to the extent strictly required by the exigencies of the situation,” subject to non-discrimination and other international law requirements. Certain rights – such as the right to life, freedom from torture, and freedom from slavery – are non-derogable, even in emergency contexts such as the ones brought on by a pandemic.
The Siracusa Principles were developed in 1984 by 31 independent experts, co-sponsored by the International Commission of Jurists (ICJ), as a reaction to regular abuse of the ICCPR’s derogation provisions. The Siracusa Principles intended to provide interpretative principles for the ICCPR. Key elements include that rights restrictions must be necessary and proportionate, pursue a legitimate aim, and of limited duration, subject to challenge, and neither arbitrary nor discriminatory.
Though developed by independent experts, the Siracusa Principles quickly assumed authoritative status through United Nations processes, with the ECOSOC adopting them. The UN Human Rights Committee, which monitors the ICCPR, has also referenced the Siracusa Principles, which are widely recognized as the “leading approach to understanding” ICCPR derogations. Courts have referenced and drawn on the Siracusa Principles. Constitutions developed today commonly include provisions on derogations and limitations that draw on the standards clarified by the Siracusa Principles.
The inadequacy of Siracusa in the the context of public health emergencies
Then came COVID-19. The pandemic quickly proved the inadequacy of the Siracusa Principles in the specific context of public health emergencies. There are many reasons, but a few examples will suffice for the present context.
First, with the Siracusa Principles’ focus on human rights limitations, and civil and political rights in particular, they did not speak to the most pervasive rights shortfalls during the pandemic – inequalities in people’s ability to realize their right to health and a full range of other economic and social rights. Deep inequities and discrimination were manifested across the board. From national disparities across populations, to global inequalities in access, to scarce medical technologies, from ventilators to vaccines, inequalities have been an overriding feature of this pandemic. Nor do the Siracusa Principles address measures to mitigate other human rights consequences, such as people’s need for food, water, housing, income, medicines, and other basic necessities during lockdowns.
Second, being applicable to all national emergencies, the Siracusa Principles are general, and thus unable to speak in any significant detail to the particular concerns of public health crises, from surveillance and timely access to accurate health information, to investing in preparedness, to international assistance and cooperation, including barriers imposed by intellectual property laws.
Third, states that exceeded permissible derogations from the ICCPR, as elucidated by the Siracusa Principles, faced precious little accountability for their actions whether on domestic or international levels. The contrast between rights violations during COVID-19 and states’ impunity for them has been as striking as it is tragic. To take only several examples, China’s government manipulated its surveillance app to limit the freedom of movement of activists, governments including in Egypt, Russia, Bangladesh, Pakistan, and Venezuela arrested health workers and journalists for daring to criticize the government’s COVID-19 response and to contradict government data on COVID-19 cases, and governments in Zambia and elsewhere banned political protests or rallies under the guise of controlling COVID-19.
Building on Siracusa to develop new human rights principles for public health emergencies
Once again, the ICJ played a leading role in collaboration with the Global Health Law Consortium in drafting the PH Principles—released alongside the World Health Assembly in May 2023. The HR Principles build on the Siracusa Principles. Ultimately, they address the first two major shortcomings of the Siracusa Principles and present some potential for assisting in responding to the accountability problem.
The HR Principles encompass both civil and political rights and economic, social, and cultural rights — the right to health above all, but also others, such as the need to compensate for the impact of public health measures on people’s livelihood (think lockdowns) and on gender-based violence (think increased domestic violence during lockdowns).
The HR Principles offer a detailed approach to proactively addressing human rights concerns, such as access to information. They address a host of other matters as well, such ensuring access to judicial and administrative remedies for rights violations, meaningful participation in all public health emergency decision-making processes, and ensuring that limitations on freedoms of expression, association, and assembly are not used “to silence disfavoured views.” Throughout, they focus on non-discrimination and protecting the rights of marginalized populations. While drawing heavily on COVID-19 experiences (but also, notably, drawing on those of other recent epidemics, like Ebola), the vast scope of rights violations addressed ensures that these principles have a comprehensiveness that will enable them to provide extensive guidance during future health emergencies.
Developed outside of official channels, there is little that the HR Principles do, or can do, on accountability. However, their detailed, public health emergency-specific guidance provide powerful potential for accountability through other mechanisms. And that is what needs to happen – for mechanisms, especially through the United Nations and WHO, along with states in their individual capacity, to create accountability where the Principles alone cannot.
Towards accountability for human rights violations in public health emergencies
First and foremost, the two legally binding instruments that the World Health Assembly is expected to adopt next May, a pandemic treaty and a revised International Health Regulations (2005), should incorporate the Principles. At the very least, both instruments should, in their embrace of human rights, expressly recognize these principles as a key interpretative instrument and take their content seriously as a clear reflection of international law and standards. Better still would be for both these instruments to include separate articles that directly address human rights, incorporating and stating states’ express commitment to the Principles – though a human rights article included in the pandemic treaty’s initial draft was since removed.
Relatedly, the pandemic treaty’s Implementation and Compliance Committee, a subsidiary body of the Conference of the Parties, should fully include the HR Principles within its mandate. While the Committee’s powers are limited – conceived as “non-adversarial and non-punitive,” making sanctions unlikely – it can ensure governments focus on rights violations and respond accordingly. WHO Member States are similarly negotiating “implementation” or “compliance” mechanisms under a revised IHR.
Crucially, the United Nations and WHO must also vehemently promote accountability. UN bodies and the World Health Assembly should endorse the Principles, much as the ECOSOC did vis-à-vis the Siracusa Principles. This autumn, the UN General Assembly had an opportunity to reference the HR Principles in its political declaration on pandemic preparedness. Unfortunately, the approved declaration failed to do so.
The UN Secretary-General could appoint special envoys to review and facilitate compliance with the HR Principles whenever a health emergency emerges. Both the United Nations and WHO should call out instances of non-compliance at the highest institutional levels, while also facilitating civil society engagement to develop and implement pathways towards compliance. Governments should also reach into their diplomatic toolbox to encourage compliance.
The HR Principles provide a firm foundation for far better adherence to human rights in future public health emergencies – including responses that place equity at the center. Yet their value is only as good as State compliance, individually and collectively. Establishing effective compliance mechanism is our task now.
Eric A. Friedman is the O’Neill Institute’s global health justice scholar.
Lawrence O. Gostin is University Professor and the founding Linda D. and Timothy J. O’Neill chair in Global Health Law. He is also the faculty director of the O’Neill Institute for National and Global Health Law at Georgetown Law and professor of medicine at Georgetown University.
