In contrast to the ECHR and the ICCPR, the ACHR speaks of suspension, not derogation, from human rights and fundamental freedoms. Conceptually, according to Ferrer Mac-Gregor and Herrera Garcia, the American Convention uses at least four different terminologies for suspension: a) the suspension of guarantees, b) the suspension of contractual obligations, c) the suspension of rights, and d) the right to suspension. This terminological difference was already highlighted by the Inter-American Court of Human Rights (IACtHR) in its advisory opinion OC-8/87 on “Habeas Corpus in Emergency Situations” in 1987 when it held that states can never suspend the rights inherent to the human person, they can only limit their full and effective exercise.
The Court emphasized in particular the great risk posed by the state of emergency for democracy, arguing “that the suspension of guarantees cannot be disassociated from the “effective exercise of representative democracy” referred to in Article 3 of the OAS Charter” (para 20). Should Article 27 be used for undermining the democratic system, for instance in a coup d’état, “the suspension of guarantees lacks all legitimacy” (ibid). The exclusion of “judicial guarantees” from suspension in Article 27 (2) would thus implicitly require “the active involvement of an independent and impartial judicial body having the power to pass on the lawfulness of measures adopted in a state of emergency” (para. 30). The Court specified in the following advisory opinion OC-9/87 on “Judicial Guarantees in States of Emergency”, requested by Uruguay, that this also includes the right to habeas corpus (Art. 7(6)), amparo, and any other effective remedy before judges or competent tribunals (Art. 25(1)).
The guidance provided by the two advisory opinions thus provides necessary parameters for holding authorities accountable for the protections of rights and access to justice during and after a state of emergency. It will be seen whether a similar advisory opinion also arises out of the Corona crisis at the European Court.
From March 17 to April 20, eleven states have notified their the band database suspension of guarantees to the OAS, including Argentina, Bolivia, Chile, Colombia, the Dominican Republic, Ecuador, Guatemala, Honduras, Panama, Peru, and El Salvador. Interestingly, while Ecuador, Panama, Chile and Peru based their suspension on a general state of emergency, Guatemala, Bolivia, Honduras, and Argentina declared a public health emergency. Colombia even announced a state of economic, social, and ecological emergency. Those more specific framings of emergency avoid the connection to war metaphors and link to the standards of the WHO.
Also, in contrast to the Council of Europe, several states have submitted multiple notifications, adding new legislation or extending measures in the course of the crisis. This more dialogical approach could provide further proof for Alan Greene’s argument that the notification of derogation showcases the commitment of states to human rights regimes and can even result in the taming of emergency powers by requiring states to articulate, justify, and limit their emergency measures.
In practice, however, we observe worrying developments in several states which could amount to an abuse of the state of emergency. Researchers have warned that police and military forces are being used to repress the population in the name of health and sanitary provisions. For instance, in Honduras, the emergency decree provides that any individual who violates the restrictions on movement shall be arrested, while in Bolivia, the authorities authorized the use of force via coercive measures to maintain public order. Moreover, in Bolivia and Chile crucial political events such as the constitutional convention and presidential elections were postponed. That is why we, as much as other colleagues, consider that restrictions to liberties must be lifted as soon as the challenges posed by Covid-19 have slowed down. Civil society organizations across the world, and also in Latin America, are raising their voices to pressure governments into complying with human rights standards (see for instance in El Salvador).