As the Thai government moves to exercise its power under the Emergency Decree on Public Administration in Emergency Situation B.E. 2548 (2005) (“Emergency Decree”) to combat the COVID-19 outbreak, the ICJ would like to reiterate its recommendations made since 2005 regarding lawful and proportionate exercise of this power in a manner consistent with Thailand's obligations under international law.
We urge the Thai Government to take these recommendations into consideration when imposing any measures to address the COVID-19 outbreak.
(1) A state of emergency used to justify any permissible derogation from obligations under international human rights law must meet the standard that an emergency “threatens the life of the nation”, as set out in the International Covenant on Civil and Political Rights. Parliament should play an active role in providing oversight.
(2) Any limitations on or derogation from the exercise of internationally guaranteed rights should be limited in duration, strictly necessary, and proportionate to the specific threat posed.
(3) Derogating measures may only limit the scope of other rights to the extent strictly necessary to meet a threat to the life of the nation, but they may not suspend the applicability of any right in its entirety.
(4) This necessity must be continually re-assessed so that the derogating measures apply for the shortest time possible. Certain human rights, including the right to life, the right to life, the freedom from torture or ill-treatment, the essential elements of arbitrary deprivation of liberty and to a fair trial and the right to an effective remedy can never be restricted even in a state of emergency.
(5) It should be clearly stated which officials have responsibility for implementing the provisions of the emergency law and what their powers and responsibilities are.
(6) All officials responsible for implementing the law should be explicitly stated to be under the authority of the ordinary law of Thailand, with no immunity for any criminal acts carried out in the exercise of their responsibilities.
(7) The decisions and actions of officials exercising powers under the emergency law should be subject to review by the courts.