The Inter-American Human Rights System Facing a Pandemic

COVID-19 Reports on Latin America and the Caribbean: No. 54 (En Español)

Since the arrival of COVID-19 in Latin America and the Caribbean, the Inter-American Human Rights System has been at the forefront of the regional human rights response to the crisis. Both the Inter-American Commission on Human Rights (IACHR or the Commission) and the Inter-American Court on Human Rights (IACtHR or the Court) were forced to suspend their activities and create new guidelines and directives for online work and remote procedures. Both institutions also created special groups and hubs to maintain the public, parties in a case and member states informed about updates on workflows, recommendations and monitoring on the human rights situation in the region. On March 28, 2020, IACHR formed the Rapid and Integrated Response Coordination Unit or Sala de Coordinación y Respuesta Oportuna e Integrada a la crisis en relación con la pandemia del COVID-19 (SACROI COVID-19 in Spanish), to centralize its efforts to protect human rights in the context of the pandemic. On April 9, 2020, the IACtHR published its statement no. 1/20 encouraging member states to safeguard human rights and to uphold Court’s case law as well as international obligations.

These initial responses have encountered multiple reactions from actors in the region. Some national governments have had to balance between suspending certain human rights during states of emergency and following their international obligations. Civil society groups have asked the institutions to do even more when it comes to human rights violations. From recommendations, reports to official procedures and investigations, both institutions have had to adapt and evolve to a situation which worsens as the pandemic continues to ravage the region. In this brief report, I will mention several recommendations, guidelines and press releases from both institutions as well as precautionary measures from the Commission and provisional measures from the Court issued since the beginning of the pandemic.

Compiling Recommendations and Guidelines

Since the very beginning, both institutions published and disseminated information to member states regarding the need to safeguard human rights in the region amidst an unprecedented health crisis.

In the early days of the pandemic in the region (March-April 2020), the IACHR received numerous suspensions of guaranties from different members states. Under Article 27 of the American Convention on Human Rights, member states are allowed to suspend its obligations under very specific circumstances. Article 27 states that:

“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 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.”

Countries such as Ecuador, Colombia, Guatemala, Bolivia, Panama, Chile, Honduras, Argentina, Peru, Dominican Republic and El Salvador, all submitted official notifications of suspension of guaranties to the Commission, as well as several consecutive extensions. To face this unusual increase of treaty suspensions, the Commission released on 20 April 2020 its resolution no. 1/2020 called Pandemic and Human Rights in the Americas. Through this resolution, IACHR sought to provide a clear framework and guidelines for member states to guarantee human rights during the pandemic. The resolution gave special emphasis to actions to protect vulnerable groups as well as to encourage international cooperation and sharing of good practices among national governments. Other resolutions have been published to provide further information and recommendations on the development of the pandemic and the governments’ responses to it.

Considering the significant impact of the pandemic on vulnerable groups, IACHR issued several press releases and reports specifically on the situation related to these groups. For example, press release on March 2020 on the humanitarian crisis in Venezuela and Venezuela refugees, press release on March 2020 on the situation of incarcerated people, press release on April 2020 on sexual and domestic violence against women, press release on April 2020 on migrants, press release on May 2020 on indigenous peoples, press release on May 2020 on the LGBTQ+ communities, press release on November 2020 on guaranteeing human rights of women engaged in sex work, press release on December 2020 on children and adolescents’ right to education among others. IACHR has also issued press releases on specific situations in various countries such as Chile, Peru, Venezuela, Colombia, Nicaragua, United States, and Brazil.

In an effort to provide detailed guidance and standards to national authorities, the Commission has also released a series of handbooks. These recommendations include public policy guidelines on ensuring memory of people who died during the pandemic, access to education and universal access to internet.

Similar to the Commision, IACtHR has issued a series of booklets (Cuadernillos in Spanish) which aim to provide legal guidance to member states during the pandemic. The three booklets specifically directed to the health crisis include no. 25: public order and use of force, no. 26: restriction and suspension of human rights and no. 28: right to health. These booklets are a great source of information in relation to the Court’s jurisprudence on a particular topic.

Issuing Precautionary Measures and Provisional Measures

IACHR issued six precautionary measures (medidas cautelares in Spanish) in 2020 related to the COVID-19 pandemic. Precautionary measures are issued under the guidance and regulation of article 25 of the Rules of Procedure and they aim to protect an individual or a group who are in a “serious and urgent situation from suffering irreparable harm“. From the six granted last year, two dealt specifically with the precarious situation of indigenous peoples facing COVID-19. Resolution no. 35/2020 requests that Brazil takes measures to protect the Members of the Yanomami and Ye’kwana from the imminent dangers of the pandemic. Similarly, on resolution no. 94/2020, the Commission also requested that Brazil takes the necessary steps to protect the Munduruku indigenous peoples from “irreparable harm”.

The other four precautionary measures issued in 2020 deal with individuals or groups deprived of liberty. Resolution no. 79/2020 requested that Colombia takes measures to protect Jorge Ernesto López Zea, an individual with a delicate medical condition while he is in prison. Similarly, resolution no. 82/2020 requested that Nicaragua gives adequate medical care to 41 “political prisoners” located throughout the country. Migrants detained in the Tacoma, Washington are the main beneficiaries of resolution no. 41/2020 which requested that the United States provide them with medical care and attention. Finally, resolution no. 43/2020 deals with a missing person named Facundo José Astudillo Castro and requested that Argentina locates and protects this individual arrested by police forces for violating the national COVID-19 lockdown.

As of May 2021, only two precautionary measures related to COVID-19 have been issued: resolution no. 1/2021 on Brazil and resolution no. 33/2021 on Nicaragua.

When it comes to the IACtHR, the Court has only issued provisional measures related to COVID-19 in one case, Vélez Loor v. Panama. The resolution issued in July 2020 refers to the conditions at migration facilities in Panama. The Court requests that the government of Panama safeguards the health of migrants and provides the necessary medical care against COVID-19 in the overpopulated migration centers. During the inaugural session of the 2021 judicial year, the current chief of the Court, judge Elizabeth Odio Benito (Costa Rica) mentioned how COVID-19 “has showed us that we require a vision of human rights development without divisions, taking into consideration its interdependence and interconnections. It is impossible not to mention how COVID-19 has exposed in all its cruelty the most endemic malaises in our Latin American societies: inequality and discrimination.” The highly influential chief judge will be stepping down from the Court at the end of her fifth year in December 2021. The Government of Costa Rica will be nominating Nancy Hernández López, a well-known judge in the country’s Supreme Court to succeed her.

By Marcelo Rodríguez

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