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Non-discrimination: Emergency measures shall not discriminate. Because emergency responses may have discriminatory consequences, states may be required
to take positive measures to ensure substantive equality.31
The principle of non-discrimination is especially important when assessing the impacts of
emergency measures on the rights of women and girls. The international instruments and
guidance that address states of emergency and derogation are gender blind; they do not
foresee differential impacts of states of emergency on women and men, boys and girls, nor
do they describe any heightened requirements concerning the potential violation of the rights
of women or girls due to emergency measures. The UN Human Rights Committee has made
clear, however, that the conditions for derogation from the ICCPR must not involve discrimination “solely on the ground of race, colour, sex, language, religion or social origin,” consistent
with other provisions of the Covenant, namely Article 26.32
Article 26 refers to emergency measures, or derogations, that are directly discriminatory. It has
been observed in previous crises that emergency measures have disparately impacted women
and impeded their abilities to exercise their fundamental rights, even though the emergency
measures themselves did not make specific distinctions for women. Some types of emergency measures were proscribed in a sweeping manner, without consideration for the particular
status of women. The European Court of Human Rights has addressed an analogous issue,
and ruled that when states fail to take into account the specific needs of persons belonging
to disadvantaged groups, this may result in discrimination. Thus, the Council of Europe has
suggested that the exceptional measures taken to address the spread of the coronavirus or
“failure to provide adequate support, or more generally a decline in tolerance in societies under
strain, may pose a threat to persons belonging to minorities and marginalised communities
and to the fundamental principles of non-discrimination, diversity and inclusion.”33
2.3. INDIVISIBILITY AND INTERDEPENDENCE OF HUMAN RIGHTS
The response to the COVID-19 public health crisis has underscored the importance of the principles of indivisibility, interdependence and interrelatedness of human rights. The coronavirus
has posed an immediate threat to the rights to life and to health. The emergency measures
adopted have aimed to control the spread of the pandemic and protect human life, while
an inevitable consequence of the measures has been to curtail civil and political rights, as
well as economic, social and cultural rights. The emergency measures themselves have also
intersected and had multiplier effects. For instance, measures to limit freedom of movement
31
In reference to derogations from the ECHR, Council of Europe, “Respecting Democracy, Rule of Law and
Human Rights in the Framework of the COVID-19 Sanitary Crisis”, 7 April 2020, <https://rm.coe.int/
sg-inf-2020-11-respecting-democracy-rule-of-law-and-human-rights-in-th/16809e1f40>.
32 UNHRC, “General Comment No. 29 on States of Emergency (Article 4)”, op. cit., note 12, para 8.
33 Council of Europe, Steering Committee on Anti-Discrimination, “The Anti-Discrimination, Diversity and
Inclusion Dimensions of the Response to COVID-19”, 8 April 2020, <https://rm.coe.int/cdadi-introductory-note-en-08042020-final-version/16809e201d>, p. 2.
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