Human Rights Limitations and Emergency Laws at the Time of the COVID-19 Pandemic by Dr Alejandro Fuentes, Senior Researcher
The eruption of the COVID-19 pandemic has changed the life and habits of millions of people across the world. Governments have reacted with different strategies and at different paces, trying to defeat a silent enemy, operating in the unknown. Scientists are doing their utmost to find a potential vaccine against the virus but, in the meantime, thousands and potentially millions of individuals across the world are mourning their loved ones who lost their lives in an unequal battle.
This new pandemic, that is affecting all of us, it is not only affecting our fundamental rights and freedoms – in particular the right to quality, accessible, and efficient, health care but also the way that we see ourselves, the manner that we imagine and conceive our societies. As affirmed by Michelle Bachelet Jeria and Filippo Grandi, UN High Commissioners for Human Rights and for Refugees, respectively:
Beyond these very immediate challenges, the path of the coronavirus will also undoubtedly test our principles, values and shared humanity.
In fact, during this time of emergency, our shared values as inclusive, pluralist and democratic societies are at stake. It is moments like this, which challenge our foundational principles, where societies need to reaffirm what principles and values are fundamental to them.. This is why it is paramount to highlight the importance of human rights based approaches, and the centrality of protecting human beings, when analyzing states’ responses to the worldwide coronavirus crisis.
Human Rights Law
Under international human rights law frameworks, states have the obligation to provide adequate societal conditions that could guarantee the possibility to have access to dignified living conditions.
Core human rights obligations cannot be disregarded even in situations where public authorities have to make difficult decisions matching the challenges posed by a significant threat, such as the case of the COVID 19 pandemic.
However, in times of public emergency, restrictions on the enjoyment of fundamental rights and freedoms, such as the limitation in the circulation or reduction of public services, could be justified if they are necessary, proportional, applied in a non-discriminatory manner and satisfy a legitimate aim in a democratic society. No one doubts that the protection of public health is a legitimate aim.
States’ responses to COVID 19 – including forced quarantines- could be justified if they are proportional and limited its duration to what is strictly needed for the protection of the public health. In other words, when restrictions are disproportionate or go beyond what is necessary in order to handle the public needs created by the emergency, they could amount to unjustified interferences and -therefore- to a violation in the enjoyment of fundamental rights and freedoms.
During times of emergency, it is particularly relevant that public authorities put special attention to the needs of the most vulnerable sectors of the population, such as indigenous peoples, minorities, persons with disabilities, the elderly, migrants and refugees, persons deprived of their liberty, among others.
In today’s world, the most vulnerable sectors of our societies are barely satisfying their essential needs.
Access to clean water, food, housing, sanitation, education, healthcare, or any other essential service is a day-to-day challenge for many persons across the world. Emergency laws and regulations could have a negative disproportionate effect on them. For instance, mandatory quarantines pose unsurmountable challenges to homeless persons or individuals in extremely precarious living conditions. Informal or unregistered workers or street vendors, whose daily income depends of their permanent mobility, could face the same challenge. In fact, as highlighted by the UN High Commissioners;
For the most privileged, washing hands with soap and clean water – the main defense against the virus – is a simple gesture. But for some groups around the world it is a luxury they cannot afford.
Therefore, public authorities need to pay special attention to the situation of persons or groups of individuals that may be at risk, making sure that targeted protective positive measures are put in place in order to leave no one behind.
At the very end, we need to remember that our common human rights principles and values are meaningful precisely because they leave no one behind. In a time of COVID 19 we cannot afford to lose or minimise them. If our societies are able to make sure we do not leave our most vulnerable behind, we will have adequately faced a common global emergency and -even most importantly- preserve our shared sense of humanity.
Dr Alejandro Fuentes, Senior Researcher
This is a series of updates regarding the Coronavirus from Human Rights Experts