The American Convention on Human Rights (ACHR) has weathered many storms in its fifty years of existence. However, the challenges which arise from the Corona pandemic are unprecedented, also for the Inter-American human rights system. With many of its political and economic systems already under strain, the pandemic will have severe consequences on the enjoyment of civic freedoms as well as economic and social rights in the whole region. In all likelihood, it will also disproportionately affect vulnerable groups, including the poor, migrants, women and children, as well as indigenous people.
As the crisis has exacerbated throughout last month, several states have already unilaterally derogated from their treaty obligations under the American Convention. While many analysis in recent days have highlighted how this decision affects the European human rights regime (see for instance here, here, here, here), this contribution offers a comparative perspective by focusing on the Inter-American human rights system. In this post, we will look at the law and practice of derogations in the Inter-American system and then highlight how the institutional organs have sprung into action.
Article 27 of the American Convention regulates the “suspension of guarantees” in the Inter-American system. Paragraph 1 defines the circumstances under which a state party might derogate from its obligations:
In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for band database the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.
In particular the inclusion of “public danger” and “emergency that threatens the independence or security of a State Party” as grounds for derogation allows state parties significantly more discretion than in the European system and raises the likelihood of a potentially abusive invocation. Yet, in contrast to its European counterpart, the American provision is more specific in the temporal application and includes explicit anti-discrimination prohibitions. Most crucially, Article 27, paragraph 2 lists an extensive number of rights which state parties cannot suspend under any circumstances:
The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.