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The Impact of the Pandemic on Fundamental Rights

Welcome to our blog, the Human Righter. We shed light on contemporary human rights issues and comment on human rights developments. We dig deep into our focus areas within human rights, discuss SDGs and human rights. You will also find book reviews and analyses of new laws.

This post consists a statement made by Prof. Morten Kjaerum, Director, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, as he was invited to share his thoughts and insights on the topic when the Special Committee on the Covid-19 pandemic, the EU Parliament, hosted a two-day seminar on lessons learned and recommendations for the future. The public hearing was streamed on 31 January. 

“Thank you very much for the invitation to take part in this important hearing looking ahead on how the EU can ‘build forward fairer’ anticipating future pandemics.

To prepare for a disaster or pandemic the overall challenge is to ensure that legislation, strategies and actions are well thought out and human rights based. When we are at the eye of the storm it is very difficult to consider the various elements related to fundamental rights concerns; at that moment, it is all about here and now reactions to basic challenges.

In 2021 the Raoul Wallenberg Institute together with the UN Office of the High Commissioner for Human Rights did a global study of 15 countries and their disaster preparedness. The study showed that only very few countries in their legislation or general policies obliged authorities to identify groups that would be in a particular vulnerable situation. This is a core pillar in a human rights-based approach.

In the following I will offer my brief comments to questions raised by the members:

I concur with what is stated in the first question that the academic freedom in general is challenged globally and in Europe. We have for long discussed the shrinking space for Civil Society but less the shrinking space for academia.

Academic freedom is essential for the functioning of democratic societies. In the EU, academic freedom is protected by the Charter of Fundamental Rights.

Some governments, institutions and social media platform providers implemented censorship and restrictions on the sharing of information. This affected the freedom of researchers to publish and disseminate their findings. One example is a video removed by YouTube, in which a researcher discussed data related to COVID-19, questioned the need to continue the ongoing lockdown and raised concerns about the negative impact of the restrictions.

The variety of opinions on how to handle the COVID-19 pandemic was important due to the fact that it was a new disease and the knowledge about it relatively limited. Moreover, the implications of the pandemic and measures taken to counteract it exceed the remit of epidemiology or public health experts and fell into areas of economy, education, psychology and sociology.

One way forward could as implied in the question be a common EU tool for monitoring academic freedom.

Such a tool could take the form of a monitoring mechanism that would collect and analyze data on academic freedom in EU Member States, including information on any restrictions and any incidents of retaliation against academics. The mechanism could provide a platform for dialogue and cooperation among EU Member States and be a platform for important exchange on how to balance academic freedom and fight against disinformation and fake news. This is an important component of the European Democracy Package.

An obvious way to move would be to expand the mandate of the EU Fundamental Rights Agency to undertake this role rather than creating a new body.

In relation to the courts, the most significant legal challenge facing courts is asessing the obligation on the state to balance between the duty to protect the rights to life and health on the one side and on the other respect and protect such rights as freedom of assembly and movement and the right to privacy. A classical clash of rights.

Courts have had to decide whether restrictive measures such as travel bans and quarantines are proportionate and necessary to protect public health. A very important question to be followed will be how courts will judge countries that did not exempt demonstrations from the general ban on assemblies. These decisions will be important in relation to the general democratic trends in Europe.

In order to better comply with human rights in future crises, there are several recommendations that can be made.

Most importantly for the mid- and long term is that the health services in general get a strong human rights-based approach to the work. A human rights-based hospital that we work with at the Raoul Wallenberg Institute has for years build trust among people belonging to marginalized groups in their area: Persons with mental health problems, ethnic and linguistic minorities and other.

Consequently, when the pandemic broke out and later when the vaccination was introduced the trust was already there. They provided information in various languages in accessible formats, and also nearby vaccination sites and transportation options. These are some of the results of a human rights-based health service.

For this to succeed, civil society should be involved. Involving civil society organizations, national human rights institutions and community leaders in the design, implementation, and monitoring of restrictive measures can help ensure that the rights and needs of persons in vulnerable situations are taken into account.

The impact of the measures needs to be monitored and evaluated to ensuring that they continuously are proportionate and neccessary. Issues such as gender-based violence and children not getting access to education often disappear under the radar, and therefor not sufficiently addressed.

Finally, legislation should provide legal remedies in case of human rights violations.

Now to the question of triage.

During the COVID-19 pandemic, European countries have implemented policies that prioritize the allocation of medical resources, such as hospital beds and ventilators, based on patients’ age, vaccination status and other indicators.

Some government’s national triage protocol for COVID-19 patients in intensive care recommends that priority be given to patients under the age of 75. In care homes for elderly persons or persons with disabilities I have seen instructions that users of the institutions should not be transferred to medical treatment if they were infected by Covid-19 but assigned to palliative care. Such triage policies have been severely criticized by American courts and in the German Constitutional Court (Dec 2021).

In Germany the court stated that ‘The law must therefore ensure that those in charge take into account only the patient’s short-term likelihood of surviving the acute medical episode.’ And the court further states that ’Nor does the law governing the medical profession currently ensure effective protection against disability-based discrimination.’

While triage is an important tool for managing a large number of Covid-19 patients it is important that there is a high awareness of the concerns related to age discrimination, discrimination of persons with disabilities and any otherground as well as a high level of transparency.

In conclusion, I want to add that the impact of the pandemic is deeply felt in Europe and at all continents. For the first time for the past 20 years, we have witnessed an increase in the level of people living in extreme poverty, the level of gender-based violence is going up and the phyco-social well-being of young people is deteriorating. Handling the Covid-19 pandemic in the midst of the storm was difficult, but recuperating and rebuilding is a gigantic task that needs all of our attention.”

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