Page - 303 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

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  in  Connection  with  the  COVID-19  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).