Monday, April 6, 2020
By guest contributor Jim Nickel, Professor of Law Emeritus, University of Miami School of Law
Reducing and regulating human movement is one of the most important ways of reducing COVID-19 transmission and thereby limiting the spread of infection, illness, and death. Distancing requires people to stay a safe distance from each other whenever they are in public. Shutdowns close places where people might want to go—cafes, stores, offices, sports events, playgrounds, etc. Lock-downs and quarantines block non-essential movement outside of the home. Closing the borders of countries, provinces, counties, cities, and neighborhoods blocks entry to and sometimes even exit from closed regions.
Freedom of movement is greatly limited by these measures. And freedom of movement is generally taken to be a human right. It is found in major human rights treaties and in the best national bills of rights. Even if these limitations on movement are not violations of this right because they are necessary to slow the pandemic, they are at least in tension with it.
Why is freedom of movement so valuable that we treat it as a human right? One answer is that free movement is very valuable to the exercise of other freedoms including religion, assembly, association, communication, and voting. Block freedom of movement and many actions covered by these other freedoms are thereby blocked.
Another answer is that movement is valuable as a means to or a constitutive part of many of the other things we find valuable. Lock-downs and shutdowns limit our abilities to do ordinary things such as exercising, visiting the homes of friends, getting food, and sightseeing. Many of these things can still be done by electronic media—thank goodness—but the electronic versions lack the dimensions of physically being and doing together.
Movement is a physical thing, of people starting and stopping the movement of their bodies through space. When movement is done by great numbers of people it often has big consequences. It can create a traffic jam whose result is that many thousands of people are seriously delayed. And thousands moving by various means of transportation to a big protest rally can have the consequences that many others cannot get to school or work. Further, we’re now sadly aware that the movement of just a few individuals can introduce infectious diseases to new places. These bad consequences of some human movements help explain why freedom of movement, even when recognized as a right, is very heavily limited by exceptions, qualifications to accommodate other norms and values, and emergency clauses.
Perhaps the biggest legal limitations on freedom of movement are imposed by property rights, rights to privacy, and the crime of trespass. Without specific permission people, are forbidden to enter the homes, buildings, and land of others, factories owned by corporations, government facilities, and the territories of foreign countries.
Formulations of the right to freedom of movement in international human rights treaties tend to be highly qualified. For example, the International Covenant on Civil and Political Rights (United Nations, 1966) devotes Article 12 to freedom of movement. It says that “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence,” “be free to leave any country, including his own,” and not “be arbitrarily deprived of the right to enter his own country.” The Article qualifies a limited right to freedom of movement by listing a variety of considerations that can sometimes override it, including public health.
During the COVID-19 pandemic, many NGOs and newspaper editorials have warned that excessive restrictions on free movement are being used by a number of governments to expand their power, limit other freedoms (as discussed above), postpone elections, and exclude immigrants and asylum seekers. Human rights require that restrictions on human rights and fundamental freedoms during emergencies be necessary, proportional (that is, not go beyond what is necessary), and non-discriminatory. If followed, these strictures would help limit governmental abuses of the right to freedom of movement.
What counts as discriminatory during ordinary times may not guide us fully, however, during this pandemic. For example, is it discriminatory in hiring to prefer workers who have already recovered from the virus and thus (we hope) have immunity to it? Or was it discriminatory for Rhode Island to target New Yorkers when it tried to prevent the entrance of people from more heavily infected areas? (Because of protests against this policy, Rhode Island is now excluding all non-residents wanting to enter and stay.)
During this pandemic individuals, politicians, and judges who care about liberty and human rights should pay serious critical attention to the nature and duration of restrictions on freedom of movement. “Strict scrutiny”—as the constitutional phrase goes—is in order.