Pandemic journal: Human rights and the COVID19 pandemic

by Jim Nickel, Professor of Law Emeritus, University of Miami School of Law, guest contributor

How should we understand the relations between human rights and the severe measures taken in many countries to combat the COVID19 pandemic?  This question is complicated because on all accounts human rights are plural: there are quite a few of them and they are formulated in lists.  Further, even when we focus on a particular right--such as freedom of movement--the boundaries and priority of the right are far from clear.

The table below identifies some areas where there is tension or worse between human rights and current measures to combat the COVID19 pandemic.  All of the rights mentioned are ones that are found in international human rights treaties and in the best national bills of rights.  No claim is made that this list is comprehensive.

A person’s right to…	Versus current measures in many countries…
Freedom of religion, freedom of assembly, and freedom of political participation	Prohibiting assemblies of more than some small number of people and door-to-door canvassing
Freedom of communication	Prohibiting spreading unfounded and dangerous rumors about the epidemic
The right to a fair and speedy trial	Suspending prosecutions, habeas, and trials
The right to privacy	Public officials following up contacts in ways that severely violate privacy—for example by publishing the names of possibly infected people
Freedom of movement—liberty to travel locally, nationally, and internationally	Mandatory quarantines Prohibitions of travel—lockdowns Prohibitions of travel from heavily infected areas, including returning to one’s home from such an area
The right to vote	Postponement of elections
The right to safe working conditions; the right against forced labor; the right to fair wages	Compulsory, dangerous. and possibly uncompensated work by health workers, morticians, cooks, janitors, and drivers
The right to property	Mandated temporary appropriation of hotels or empty university dorms to use as hospitals or quarantine dormitories; similar appropriations for disposing of the bodies of victims such as vehicles, heavy equipment, refrigerated trucks, and cremation facilities. Denial of access to owners of second homes

Leaders of countries imposing these restrictions as necessary to combat the pandemic—and I don’t doubt that many of them are necessary—haven’t expressed much worry that these measures violate or are in tension with human rights.  And I know of no country in Europe that has notified the European Court of Human Rights that it is suspending or limiting human rights. There are a number of reasons.  The biggest is that these emergency measures are put forward as necessary but temporary suspensions of rights in limited areas.  Another is that these measures are mostly permissible under provisions that international human rights treaties contain. Those familiar with international human rights law know that many of the measures in the right column would be permissible in emergencies because relevant treaties contain explicit emergency exceptions to some rights (as with the right against forced labor), because there are qualifications to several of the fundamental freedoms permitting them to be balanced against public health, and because many treaties explicitly allow for derogation (that is, suspension) of most human rights during national emergencies. [See Nickel, “Two Models of Normative Frameworks for Human Rights during Emergencies” in Evan J. Criddle, ed., Human Rights in Emergencies (Cambridge: Cambridge University Press, 2016): 56-80.] A third reason is that the influence of human rights norms has declined in many countries during the last two decades.

As far as I can tell, media coverage of these issues has mostly focused on the pandemic as an excuse for expanded authoritarianism.  Countries with pre-existing authoritarian tendencies are the immediate focus: China, Hungary, Cambodia, Russia, Azerbaijan, and Israel were mentioned in a recent Wall Street Journal article. A Dutch politician was quoted as saying, “These people never let a good crisis be wasted.”  Also expressed is the concern that even in countries without strong authoritarian tendencies previous levels of liberty and democracy will not be reestablished after the pandemic ends.

Courts tend to be of limited use as protections of human rights during pandemics and other severe emergencies. Courts are often not able to function because of lockdowns and restrictions on travel; judges frequently show great deference to public health officials and doctors; and litigation is usually too slow to deal with a current crisis.  Expedited measures and judicial injunctions may, however, be available in some cases.

Human rights commissions could conceivably act quickly by issuing precautionary orders against excessive restrictions to combat the pandemic.  If the government of Bolivia, for example, were to shut down all political activity in the country, including areas with very few COVID cases, might the InterAmerican Commission issue a precautionary order?  I have not heard of any such activity by human rights commissions.

Not addressed in this blog is whether countries had duties under human rights to prepare adequately for severe emergencies of various types and failed to meet those duties in regard to infectious diseases.