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303The
Right of Citizens Abroad to Return During a Pandemic
has important procedural obligations with regard to derogations.
First, it must “officially proclaim” the state of emergency (Article
4(1)), using its own domestic mechanisms for doing so. Second, it
must immediately notify the UN of any derogation (Article 4(3)).
Recently, the UNHRC and the UN Office of the High
Commissioner for Human Rights clarified the specific requirements
that states must meet when derogating from human rights with
respect to COVID-19.11 Recognizing that the pandemic may satisfy
the description of a “public emergency,” they highlighted that dero-
gation measures must be “strictly required by the exigencies of the
public health situation” and “limited…in respect of their duration,
geographical coverage and…scope.”12 As well, states’ derogation leg-
islation and measures must be the “least intrusive option among those
to achieve the stated public health goals” and provide “safeguards”
that guarantee the return to normal laws “as soon as the emergency
situation is over.”13 Finally, the UNHRC noted that a derogation is
not necessary when states parties “can attain their public health objec-
tives” by limiting a right “in conformity with the provisions for such
restrictions set out in the Covenant.”14 In other words, when limita-
tions on human rights are permissible, states should not resort to der-
ogation to protect their public health.
Limitations on international human rights are permissible in
“ordinary times,” provided they are proportionate measures pre-
scribed by law to protect public health and abide by the principles
of equality and non-discrimination. As noted earlier, however, these
limitations cannot justify a restriction to the right to return. The only
permissible limitation to the right to return for reasons of “public
health” is through the derogation clause, an “extraordinary mea-
sure” by which the right to return can be temporarily suspended or
restricted in response to a “full-fledged national emergency—not a
the prohibition of imprisonment for inability to fulfill a contractual obligation,
the prohibition against the retrospective operation of criminal laws, and the right
to recognition before the law.
11. Human Rights Committee, Statement on Derogations from the Covenant inÂ
ConnectionÂ
withÂ
theÂ
COVID-19Â
Pandemic, UNHRCOR, 2020, UN Doc CCPR/C/128/2
[UNHRCOR]; “Emergency Measures and COVID-19: Guidance” (2020), online
(pdf): UN Office of the High Commissioner for Human Rights <www.ohchr.org/
Documents/Events/EmergencyMeasures_COVID19.pdf>.
12. UNHRCOR, ibid, at para 2(b).
13. UN Office of the High Commissioner for Human Rights, supra note 11 at 2.
14. UNHRCOR, supra note 11, at para 2(c).
VULNERABLE
The Law, Policy and Ethics of COVID-19
- Title
- VULNERABLE
- Subtitle
- The Law, Policy and Ethics of COVID-19
- Authors
- Vanessa MacDonnell
- Jane Philpott
- Sophie Thériault
- Sridhar Venkatapuram
- Publisher
- Ottawa Press
- Date
- 2020
- Language
- English
- License
- CC BY-NC-ND 4.0
- ISBN
- 9780776636429
- Size
- 15.2 x 22.8 cm
- Pages
- 648
- Categories
- Coronavirus
- International