Not all human rights are absolute rights. Needless to say, there are certain human rights that are non-derogable under any circumstances, even in times of war or other emergencies. According to article 15(2) of the European Convention on Human Rights (ECHR) (1), such rights that cannot be suppressed are: the right to life (except in respect of deaths resulting from lawful acts or war), the prohibition of torture and other inhuman or degrading treatments or punishments, the prohibition of slavery and servitude and, finally, the principle of legality in criminal law, meaning that no crime can be considered committed, nor punishment imposed without a pre-existing penal law. These fundamental and, therefore, not suppressible human rights are clearly enunciated in other human rights instruments, such as Convention or Declarations, to name a few: the Universal Declaration of Human Rights (2), the International Covenant on Civil and Political Rights (3), the International Convention on the Elimination of all Forms or Racial Discrimination (4), the Convention on the Rights of the Child (5), the Convention on the Rights of Persons with Disabilities (6) and the Convention on the Elimination of all Forms of Discrimination against Women (7).
These human rights notwithstanding, States, in particular circumstances, can adopt extra limitations to restrict the application of certain rights for reasons of security, health, public order or mitigation of an emergency.
It is fundamental to understand that suppressible human rights are derogated temporarily, precisely in order to mitigate a disaster situation. However, to be admissible, every limitation must be prescribed by the law and that is to say, as mentioned, that limitations and derogations should be adopted only in pursuance of a legitimate aim but, most importantly, in order to proceed in such way, certain conditions must occur: the emergency leading to the need of suppressing certain human rights must be actual or imminent, its effects must involve the entire nation whose continuance of the organized life of the community must be severely threatened, and the crisis or danger must be exceptional meaning that the normal measures or restrictions are considerate as inadequate in mitigating the situation.
Unfortunately, however, it frequently happens that certain States faced with emergency situations, such as armed conflicts or natural disasters, tend to take advantage of the situation, particularly pursuing their power to suspend the application of certain human rights, essentially discriminating against certain parts of their population, such as ethnic or religious minorities, or the most vulnerable (such as children, the disabled, women and the elderly), disregarding the fact that such derogations must be strictly necessary and proportioned to the threat faced, in line with the State obligation under international law and, most importantly, non-discriminatory.
An example, although not very recent, can be that of Myanmar (formerly Burma), which in 2008 was hit by Cyclone Nargis (which was causing significant damage throughout Southeast Asia) at the very time the Referendum for the approval of the new Constitution was about to take place. Now, in an emergency situation, a country that is close to elections should, of good practice, suspend it and deal with the emergency in an appropriate as well as timely manner, postponing the voting to a safer time and, more precisely, when the majority of the voting population is able to go to the polls. This is not what the Burmese government decided to do. As a matter of facts, the Referendum was held anyway, with the result that large sections of the population were unable to go to the polls precisely because of the inconveniences created by the aftermath of Cyclone Nargis, and the Constitution came into force (the 2010 Constitution). This gave significant power to the military in Parliament and, in the concrete, in the subsequent general election, the USDP (the Union Solidarity and Development Party), a proxy party of the military, won. This example is intended to specify precisely how the Burmese government took advantage of its ability to waive certain human rights, in this case the right to participate in elections, in order to have victory assured both in the approval of the new Constitution and in the subsequent general elections which, as mentioned, significantly disadvantaged the military. The people were effectively prevented from choosing their representatives in Parliament, as well as preventing the approval of such a Constitution. This notwithstanding, there is little doubt that if these votes had been postponed, the outcome would have been different due to the limited political freedoms in the country.
As a matter of facts, what has happened was that the Burmese Government has made use of this possibility of derogating certain fundamental rights in the opposite direction: it held the elections despite the fact that there was a disastrous situation which, in fact, prevented many people from asserting their votes, thus discriminating against the majority of the Burmese population.
In these regards, governments should take advantage of the possibility given to them by international law to temporarily derogate from certain human rights in order to mitigate an emergency situation and not take advantage of such possibility to assert their own interests, to the detriment of the rights of their own citizens. International Organizations must be more careful in monitoring the level of abrogation of certain human rights in emergency circumstances and therefore ensure that such derogations concern real threats of current or imminent disasters, affecting the entire country and putting at risk the normal course of people’s daily lives. In the event that the monitoring activity shows that there are governments that are taking advantage of this possibility, whose intentions are not aimed at protecting their own population, timely interventions aimed at sanctioning such governments must be taken immediately. The International Court of Justice, which would be called upon by the UN to formulate opinions on how to deal with the situation in question, should be considered.
References:
1) https://www.echr.coe.int/Documents/Convention_ENG.pdf
2) https://www.un.org/en/about-us/universal-declaration-of-human-rights
3) http://www.un-documents.net/iccpr.htm
4) https://www.ohchr.org/sites/default/files/cerd.pdf
5) https://www.ohchr.org/sites/default/files/crc.pdf
6) https://www.un.org/disabilities/documents/convention/convention_accessible_pdf.pdf
7) https://www.ohchr.org/sites/default/files/cedaw.pdf
By The European Institute for International Law and International Relations.
