State of Emergency in South Africa, Mandatory Covid-19 Vaccination and International Human Rights Law

Abstract

Recent events across the globe have again brought the world’s attention to the com- plex interrelationship between States of Emergency and the protection of fundamental human rights. South Africa was the first African country to declare a national state of emergency. As part of its emergency response to the Covid-19 pandemic, South Africa’s Health Minister in April 2021 announced the launch of its mass vaccination campaign against Covid-19. Derogation provisions in the International Covenant on Civil and Polit- ical Rights allow for States Parties to lawfully suspend human rights guarantees to respond to an emergency “that threatens the life of the nation” To decide on both the presence of such an emergency and the nature and scope of derogations necessary to avert it, author- ities have a wide margin of appreciation. Derogation from rights recognized under inter- national human rights law to respond to “a threat to the life of the nation” is, however, not exercised in a legal vacuum. It is authorized by law, and as such, it is subject to sev- eral legal principles and standards. An emergency that threatens the life of the nation must imperil fundamental elements of statehood or the survival of the population. No State party has the right to violate citizens’ right to life and the right to be free from torture, cruel, inhumane, or degrading treatment, and the right to be free from medical experi- mentation without free consent. These jus cogens norms are not derogable under any cir- cumstances, even for the stated purpose of safeguarding the life of the nation during a pub- lic health emergency.