JURIST Guest Columnist Elisa Fornalé, SNSF Professor at the University of Bern, discusses how the COVID-19 crisis has the potential to erode human rights and personal freedoms. . . .
With the astonishing speed of the spread of COVID-19 – affecting more than 199 countries, 1,315,989 confirmed COVID-19 cases, and 74,000 deaths – many countries are implementing extraordinary measures to meet this unprecedented challenge and to cope with the severe implications of the coronavirus crisis. The key measures of the containment strategy have entailed multiple restrictions on the enjoyment of fundamental civil and political liberties, such as freedom of movement, and freedom of assembly and association.
Besides enforcing these restrictions to prevent the exposure of individuals to the coronavirus, the explosive spread of the virus presents a serious challenge to governments’ capacity to adopt measures that ensure the full and effective protection of all those infected or potentially exposed. It is particularly challenging to ensure the care of vulnerable populations – such as older people, people living in poverty, people in jails and immigration detention centers, and health workers on the frontline of this pandemic – who are at greater risk of severe illness and death.
In the midst of this emergency situation, increasing attention is being paid to whether the temporary disruption of fundamental freedoms is in compliance with international law, both health-related obligations under the International Health Regulations (IHR) and human rights protections included in instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). As emphasized by the UN High Commissioner for Human Rights “COVID-19 is a test for our societies, and we are all learning and adapting as we respond to the virus. Human dignity and rights need to be front and center in that effort, not an afterthought.”
State of Emergency, International Health Regulations and Human Rights Limitations
States primarily look to the 2005 IHR to shape their responses to the global spread of disease. This binding and global universal instrument, implemented on 15 June 2007 with 196 states parties, is based on an “open-ended approach” to ensure “effective and proportional public health responses.” The declaration of the coronavirus outbreak as a “public health emergency of international concern” (PHEIC) guided the WHO’s Director-General to adopt recommendations about travel and trade and made the international community aware of the need to urgently react to prevent disease spread and to enhance global cooperation.
Since the declaration of a PHEIC on 30 January 2020, the major locus of activity has been the state and several countries have declared a “state of emergency” to adopt ad hoc legislation and to vest vast authority in the executive branch. If this is understandable in managing front-line legal responses in the midst of what is undoubtedly an emergency situation, there is an implicit need to prevent governments from “exploiting momentary panic to impose long-lasting limitations on liberty.” A group of UN experts warned on 16 March 2020 that:
emergency declarations based on the COVID-19 outbreak should not be used as a basis to target particular groups, minorities, or individuals. It should not function as a cover for repressive action under the guise of protecting health … and should not be used simply to quash dissent.
This is a challenge confronting all democracies, specifically due to the fact that countries seem to lack not only political and social immunity but also a “normative” immunity.
The overall picture of the emergency powers frameworks seem to divert under several profiles: first, in terms of their definition of limited regimes and their path toward termination. For instance, the time of necessity that legitimates the allocation of emergency powers varies, for instance, from 14 days in Portugal to two months in France to two years in the UK to “without any end” in Hungary, which poses the concrete risk of normalizing emergency measures. But most importantly, the logic of pandemic-talk that is leading to the design of emergency frameworks reveals a fragmented legal landscape that risks becoming a two-edged sword if adequate limits – such as proportionality and necessity – are not respected in balancing collective needs and individual liberties. Italy, one of the worst affected countries in terms of numbers of infections and deaths (132,547 confirmed cases and 16,523 deaths as of 6 April), was one of the first European countries to adopt strict containment measures. Faced with the absence of a constitutional text regulating an emergency regime, the Italian government adopted a technocratic approach with the primary objective of ensuring a collective and effective response, which gradually subjected its entire population – 60 million people – to unprecedented restrictions of their fundamental freedoms.
The entry point in the public health emergency has been, even before the declaration of a PHEIC, the adoption of several mobility restrictions – travel bans, borders protections, together with the suspension or rerouting of flights from China – to prevent the spread of COVID-19. As of 5 April, the majority of countries have adopted travel restrictions that affect freedom of movement which includes the freedom to leave any country, the freedom to enter one’s own country, and the right to move freely in the whole territory of the country (art. 12 of the ICCPR). While initially most of these restrictions targeted foreigners who live or have visited “virus hubs”, they are now being applied to entire countries. Serious concerns have been raised about not only their effectiveness in controlling the spread of the disease but especially about their potential detrimental effects. Both in the shorter term – by delaying the spread of the virus by only a few weeks in other countries and disproportionately harming the most vulnerable – and in the longer term – the lack of adherence to international law risks “undermining the broader rules-based world order.”
In fact, many national regulations are deviating from the WHO recommendation that continues to advise “against the application of travel or trade restrictions to countries experiencing COVID-19 outbreaks.” As stated, “travel bans to affected areas or denial of entry to passengers coming from affected areas are usually not effective in preventing the importation of cases but may have a significant economic and social impact.” In this context, only 23 countries have reported mobility restrictions to the WHO in line with legal requirements, and this knowledge gap significantly impacts the ability to understand the legal implication of the deviations from such recommendation. As argued by Habibi et al., the adoption of preventative measures that interfere with human freedoms requires scientific evidence and even if more restrictive measures could be adopted they need to be “commensurate with the risks involved, and anchored in human rights” (art. 3.1 IHR).
The UN Human Rights Committee adopted two general comments on states of emergency and freedom of movement that provide guidelines to define the scope of human rights limitations and derogations in emergency situations. According to Article 2, Paragraph 3, limitations may be designed to meet a specific objective – to protect public health – without undermining the essence of the right. They need to be grounded on a legal basis and to meet the test of necessity and proportionality (to temporally limit the spread of the coronavirus). So far, it is currently debated if the containment measures adopted until now are taking place through prudent limitations – so with a less severe effect- or instead through derogations that are only admissible in times of public emergency threatening the life of a nation by affecting the core security and independence (art. 4 ICCPR). In this exceptional case countries are required to report those measures to the United Nations Secretary General. As of 5 April, 7 countries (Armenia, Ecuador, Estonia, Guatemala, Latvia, Romania, Peru) have exercised their right of derogation from obligations under Article 12 of the ICCPR. The current scenario is clearly in a state of flux.
The current practice of declaring a state of emergency has varied impacts on human rights, which makes identifying how to limit their normative expansion crucial. For instance, already, in a number of states in Europe, elections (generally municipal ones) have been delayed on account of the pandemic. Acherman suggested that certain liberties could be exempted from the regime of derogation by “insulating political expression” for instance, crucial to ensure the vitality of our democracies. The human rights treaties “don’t speak with one voice” in making a distinction between derogable and non-derogable rights. The American Convention of Human Rights alone characterizes as non-derogable the right to participate in government, but it is not the case in the ICCPR or the ECHR. This remains a point that merits closer consideration.
Although the twenty-first century has been affected by severe outbreaks (eg. Ebola, Zika), many countries in Europe appear unprepared, victims of a kind of “Promethean illusion” to be invulnerable to infectious disease and a normative inertia affected the ability to reform the legal framework. The national plans for pandemic preparedness and response are highly fragmented, not always anchored in domestic pandemic legislation as encouraged by the WHO, and this can seriously compromise the collective capacity to meet global threats, as global pandemics. The Italian case alerts us to the potential impacts of this inertia: the government had an emergency plan, not implemented and “painfully inadequate,” that requested to operate in an uncharted territory. Other countries, most notably Switzerland, are framing their response in increasingly sophisticated ways within a pandemic response framework. Until now, the Swiss government responded without enacting a coercive lockdown and by emphasizing how effective responses need to reinforce cooperation with science. To this end, the COVID-19 scientific taskforce has been recently launched to provide scientific support to the government by coordinating national research in the academy.
At the end of the day, it will be difficult to return to normalcy, but we should take advantage of the destabilization we are facing to frame a response that minimizes regression by maximizing long-term protection of individual freedoms in an international system characterized by connection rather isolation. As reiterated by WHO’s Director-General, there are keywords that matter, and that are actionable: “Prevention. Preparedness. Public health. Political leadership. And most of all, People.”
Elisa Fornalé is SNSF Professor at the University of Bern and the Gender Coordinator at the World Trade Institute.
Suggested citation: Elisa Fornalé, Uncharted Territory: How the COVID-19 Pandemic Is Destabilizing the Borders of Our Freedoms, JURIST – Academic Commentary, April 7, 2020, https://www.jurist.org/commentary/2020/04/elisa-fornale-covid19-freedoms/
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