Pandemic Pass

Treaty Derogations and
Human Rights Practices During COVID-19

Suparna Chaudhry

Lewis and Clark College

Audrey Comstock

Arizona State University

Andrew Heiss

Georgia State University

November 4, 2022

Question

Emergencies and international law

Derogations

Provisions in international law that authorize states to temporarily suspend treaty obligations

Many states do not formally derogate and just implement emergency measures

ICCPR derogations during COVID-19

Type of response	N
Derogated as intended	13
Derogated; measures not temporary, proportional, or necessary	5
Emergency declared; no formal derogation	74
No emergency; no formal derogation	28
Has not ratified ICCPR	8

Research questions

• Were derogating states less likely to abuse human rights as they implemented emergency measures for COVID-19?
• Can civil society organizations (CSOs) mitigate the adverse effects of these emergency measures?

Preview of findings

Derogating states are less likely to abuse emergency measures, have discriminatory policies, violate non-derogable rights, and impose measures without time limits

Permissive civil society environment increases likelihood of debt relief policies

Civil society repression increases the probability of abusive enforcement and discriminatory policies; derogations mitigate that probability

Significance

International law and human rights

International treaty provisions designed to safeguard rights may end up worsening conditions when there is a lack of review from the international community

Democratic erosion and human rights

Emergencies are important for understanding the processes of autocratization and democratic backsliding

Theory and hypotheses

UN requirements for public health emergency measures

Suspensions of rights must be:

• Legal
• Necessary
• Proportional
• Non-discriminatory

Derogations during COVID-19

Pandemic as excuse

If states implement emergency measures without regard for international law, the implementation may be problematic and the process to restore rights may not be followed

• Restrictions on travel or movement by minority or opposition groups
• Limits on public assembly and protests
• Deployment of surveillance systems that impede privacy

H₁: Derogations & human rights

If states formally derogate from international treaty provisions, then they are less likely to:

1. Use discriminatory policy measures
2. Violate non-derogable rights
3. Impose measures with no time limits

Civil society and human rights

Civil society helps mitigate the impact of crises, emergencies, and natural disasters

During COVID-19, civil society:

• Broadened range of voices in policymaking process
• Pursued civic initiatives to deal with impact of economic shutdown, product shortages, and spikes in unemployment
• Assisted with public health initiatives

H₂: Civil society & supportive policies

If civil society organizations are involved in the policy making process, then states are more likely to have supportive economic policies

Pandemic as excuse

Some states used emergency measures as an excuse to limit democratic participation, dissent, and challenges to economic and political rule

Civil society repression

2020 CIVICUS Monitor civic space ratings

H₃: Civil society & human rights

If states are repressive towards civil society organizations, then they are more likely to:

1. Violate non-derogable rights
2. Use discriminatory policy measures
3. Engage in abusive enforcement of emergency measures
4. Impose limits on media freedom

Data and results

Data

• Hand-coded derogations from the ICCPR
• Oxford’s COVID-19 Government Response Tracker
• V-Dem’s Pandemic Backsliding Project
• WHO’s case and death counts

Daily data for 139 countries from March 11, 2020 to June 30, 2021

Modeling approach

Outcomes

• Discriminatory policies (H₁, H₃)
• Violation of non-derogable rights (H₁, H₃)
• Abusive enforcement (H₁, H₃)
• Measures without time limits (H₁)
• Limiting media (H₃)
• Income support (H₂)
• Debt relief (H₂)

Explanatory variables

• Derogation in effect
• Civil society repression
• Core civil society index

Other controls

• COVID case counts
• COVID death counts
• Rule of law index
• Civil liberties index

Modeling approach

Bayesian multilevel models with country random effects and weekly time trend

(Logistic models for binary outcomes; ordered logistic models for outcomes with multiple categories)

Open to other ideas too!

H₁: Derogations and human rights

Substantial 2–3 percentage point difference in probability of violating non-derogable rights (P[∆ < 0] = 0.964)

H₁: Derogations & human rights

Substantial ≈22 percentage point difference in probability of having time-limited measures (P[∆ ≠ 0] = 1)

H₁: Derogations & human rights

Null results

No derogation-based difference in predicted probability of having discriminatory policies or abusive enforcement.

H₂: Civil society & supportive policies

Both derogation status and civil society strength substantially increase the probability of a state providing COVID-related debt relief

H₃: Civil society & human rights

Substantial difference in probability of implementing discriminatory policies across all levels of civil society repression (P[∆ ≠ 0] = 1) for states that derogated

Better civil society associated with less discriminatory policy in derogating states

H₃: Civil society & human rights

Substantial difference in probability of abusive enforcement of emergency measures for countries with worse civil society repression in derogating states

H₃: Civil society & human rights

Null results

No derogation-based difference in predicted probability of violating non-derogable rights or limiting media across range of civil society repression

Discussion

Summary

Derogating states are less likely to abuse emergency measures, have discriminatory policies, violate non-derogable rights, and impose measures without time limits

Civil society repression increases the probability of abusive enforcement and discriminatory policies; derogations mitigate that probability

Permissive civil society environment increases likelihood of debt relief policies

Broader implications

Derogations are meant to provide states with flexibility during crises and to encourage them to sign and ratify treaties

Some states use derogations as intended; others use them as an excuse to violate rights

Understanding how states treat derogations is important for understanding declining respect for human rights and democratic backsliding