COVID-19: the ‘fine balance’ under human rights law

COVID-19: the ‘fine balance’ under human rights law
Photo by Wes Hicks on Unsplash

COVID-19: the ‘fine balance’ under human rights law

By Mr Tobias Vestner and Ms Altea Rossi

Adopting effective responses to the current pandemic while upholding human rights – this is the challenging task that governments are called upon to take charge of in the wake of the current global health crisis. If striking a balance between conflicting instances has never been an easy task in modern societies, it gets more complicated during states of emergency when timely response is needed.

From a human rights perspective, the current COVID-19 pandemic draws our attention to states’ duty to protect life. The right to life is deemed inherent to every human being and the very basis for the enjoyment of any other rights. In the time of a pandemic, it is relevant to note that the duty to protect life also mandates states adopt appropriate measures to remove threats to life, such as the “prevalence of life-threatening diseases”. In this perspective, states’ response to the novel coronavirus has consisted mainly of restrictive measures such as the shutdown of non-essential commercial activities, population lockdown, prohibition of gatherings, social distancing, but also criminalisation of the spread of misleading information concerning the virus. If these measures are intended to halt the spread of the virus, they also severely limit certain rights and freedoms we are used to enjoying (and perhaps too easily take for granted). Such measures infringe on our freedom of movement, freedom of assembly, right to personal liberty and, in some circumstances, freedom of expression and press. These drastic limitations have led some commentators to consider these measures “draconian” and denounce their frightening implications for liberty.

Against this unclear background, one may legitimately ask: what is the fate of civil and political rights in the time of a pandemic? Should they unconditionally give way to other primary values? Or do conditions exist to render restrictions – however unpleasant they might be – legitimate?

Certainly, when values conflict, the hard task of choosing what to protect and what to “sacrifice” does not come in a legal vacuum nor can ruling governments do as they please. International human rights law (IHRL) aims precisely to ensure that individuals’ fundamental rights are respected vis à vis states’ action and that the rule of law is upheld at any time. Yet, under human rights treaties, states also benefit from being able to adapt their obligations to pressing social needs or exceptional circumstances.

States are “authorised” to limit certain rights and freedoms in the name of social imperatives, namely public order, health, morality and national security. Freedom of movement and freedom of assembly are typical examples of limitable rights. At the same time, specific guarantees are in place to ensure that such limitations remain compatible with human rights. Thus, limitations must be prescribed by domestic law, be necessary in light of specific legitimate aims (i.e. the social imperatives mentioned above), as well as be proportionate to them.

Further, in exceptional circumstances that “threaten the life of a nation”, IHRL further allows states to suspend tout court the enjoyment of certain rights (so-called derogations). It bears noting that such circumstances may well include a health crisis like the current COVID-19 pandemic. Also, the rights limited by the current restrictive measures fall exactly within the category of derogable rights. Recently, certain states have taken advantage of such a possibility as part of their COVID-19 response. The more drastic compression of rights that comes with derogations necessarily implies greater risks. Therefore, a state’s intention to derogate must be formally notified to the competent international authority, derogations must be “strictly required by the exigencies of the situation”, which includes being limited in scope and time in relation to the threat, be constantly reviewed as well as be compliant with other states’ international obligations.

Restrictive measures adopted by states in the wake of the novel coronavirus spread must be assessed in light of this legal framework. On one hand, human rights do not vanish just because we are facing emergency times. On the other hand, one must be aware that IHRL allows states to balance conflicting values and dictates guidance to do so. Responding effectively to the current epidemic to preserve lives is a primary responsibility of the state towards its own people. Moreover, by their nature, certain individual rights allow collective imperatives, such as public health, to erode their scope of application. Thus, restrictive measures adopted in Europe and beyond to limit rights that otherwise would conflict with the goal of suppressing the virus are not, per se, illegitimate. Yet, their lawfulness ultimately depends on how states exercise their prerogatives to compress human rights in practice.

First, states themselves must act as responsible actors within the limits of the law when deciding to limit certain rights and freedoms. Second, mechanisms in place at the international level, such as the power of the Council of Europe Secretary General to oversee states’ derogations and of the European Court of Human Rights to rule on them, must work in a timely and effective manner to ensure that guarantees are respected, and state prerogatives not abused.  States’ discretion to respond to emergencies and suspend certain human rights enjoyment, in fact, should never “serve as a pretext” for pursuing underlying illegitimate goals, such as limiting the freedom of political debate, nor derogations should be adopted without any time-limits.


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