The efficacy of lockdowns for COVID-19: humanising the law of derogation
Derogation from human rights obligations may be permitted in a crisis like the COVID-19 pandemic, but where is the balance between safety and people’s rights?
A woman wearing a mask stands behind a barrier in a lockdown alley, where a newly confirmed patient with COVID-19 lives, in Hanoi, Vietnam, 30 July 2020. EFE/EPA/LUONG THAI LINH
A public health leadership with a robust political will has to offer reassurance during a pandemic, while ensuring the required healthcare services to those infected. In the absence of such arrangements, a manageable epidemic might become a catastrophe, as illustrated by the mass COVID-19 outbreak in the United States. Lockdowns have now come to stay as universal house arrests, which have devastated all economic sectors and decimated many fundamental rights and civil liberties, including the mass confiscation of private property and forced closures of millions of commercial activities.
However, whether or not lockdowns save lives remains highly disputed, with some saying there is no evidence for these measures, while others claim that the lockdowns have saved millions. Invoking freedom-restrictive-measures amid the COVID-19 pandemic might thus be construed as sanctions against citizens, if states deviate from their stated objectives of protecting people from the pandemic. In the US, shelter-in-place rules cover most of the country, contrary to any hard evidence about lockdowns or social distancing measures.
Where, then, is the balance between safety and rights?
In Europe, the European Union and its member states are taking determined and coordinated action to alleviate the socio-economic impact of the COVID-19 pandemic and sustain jobs by restricting the spread of the novel coronavirus, guaranteeing the availability of medical equipment, advancing research for treatments and vaccines, and buttressing businesses and the economy. The European Council decided to establish a recovery fund on April 23, 2020, to achieve targeted relief in response to the pandemic and entrusted the European Commission (EC) to submit a prioritized proposal. On May 27, 2020 the EC was ready with a recovery fund plan called the Multi-annual Financial Framework (MFF), for the first phase of recovery (2021-2027).
In South-East Asia, the impact of the COVID-19 outbreak has hit human rights and civil liberties very hard, as countries like Singapore are grappling with massive new pandemic hotspots due to migrant workers. Vietnam resorted to enormous social shutdowns, enacting a culture of surveillance on its citizens, and creating quarantine camps that resulted in sweeping transgressions of fundamental freedoms and human rights. But such restrictive measures could not withstand the fight against COVID-19 pandemic on a significant scale.
Conversely, in the Philippines and Cambodia, political leadership put the lives of their citizens in danger by not responding to the COVID-19 crises swiftly and adequately, as they flagrantly and actively downplayed the pandemic risks. Cambodia imposed a clampdown on free speech in the name of preventing fake news and disinformation and made arrests of people who shared information about the novel coronavirus in the country. In the context of COVID-19, the government of Cambodia has harassed political opposition and its supporters as a nefarious attack against civil society actors, freelance journalists, and ordinary citizens with independent views. It has also enacted multiple legislations to curb fake news, cybercrime, and has contemplated legal amendments that would curtail the right to free speech and institutionalize arbitrary surveillance culture.
The role of political forces in responding to the pandemic is crucial, but it does not conflate political will with technical solutions to the pandemic in many regions across the world.
In South Asia, India is the most significant geopolitical entity that has been struggling with the problem of intra-country economic migration on a massive scale that has now reached crisis proportions. Now, COVID-19 has affected 40 million migrants that have been compelled to undertake reverse migration by walking thousands of kilometres from urban centres to their rural homes. The rights violations of these migrants are further compounded by increasing summer temperatures of more than 45 degrees Celsius, with no respite of humanitarian state interventions. In fact, the travel arrangements of the government of India and provincial governments have miserably failed due to the deep-seated state institutional and structural political insensitivity.
There is no official state of emergency in India; however, lockdown with freedom restricting measures is equivalent to such a state of emergency, except that the clumsy, reckless, and wholly inept implementation has actually made the situation worse.
COVID-19 & humanizing derogations under the IHRL framework
The right to life, the right against torture and slavery, the right to a fair trial before a court of law, and freedom of thought, conscience and religion are all non-derogable guarantees under the international human rights law (IHRL) framework. States cannot deviate from these obligations due to international law becoming a testing ground in several human rights cases such as Lawrence v. Texas (2003) and Graham v. Florida (2010). Article 6 of the Montevideo Convention also stipulates that once a state is officially recognized by other states, it has all the rights and duties determined by international law.
However, COVID-19 has prompted state emergency measures across the world, and Article 4(1) of the ICCPR envisages that during a public emergency, states may derogate their human rights obligations to the extent that is strictly required by that emergency, compatible with the principle of legal proportionality. At the regional level, Article 15 of the European Convention on Human Rights (ECHR) and Article 27 (1) of the American Convention on Human Rights has specifically made derogation a state prerogative during global pandemics.
The lockdowns worldwide demonstrate that economic, social, and cultural rights are at par civil and political rights.
However, states have to notify other state parties of their intent to derogate, through the UN Secretary-General, articulating the demands of the situation. These requirements were also incorporated in the Guidance on Emergency Measures and COVID-19 issued by UNHCHR Michelle Bachelet on April 27, 2020. Bachelet underscored that “balancing the economic imperatives with the healthcare and human rights exigencies during the COVID-19 epidemic are daunting and delicate for the stakeholders and national governments.” At the time of writing, 12,750,275 COVID-19 cases were registered by the World Health Organization (WHO), with more 566,355 deaths recorded and over 3.5 million patients that have recovered.
What we must learn
The lockdowns worldwide demonstrate that economic, social, and cultural rights are at par civil and political rights. Therefore, there is a need for the entire UN membership to have structural adjustment programs (SAPs) in responding uniformly to the COVID-19 crisis. The Coronavirus has further deepened economic inequality, particularly in developing and emerging economies. Therefore, international financial institutions (IFIs) must offer programs that support fundamental freedoms, civil liberties enjoyment scales, and healthcare policies in developing countries that suffer from a lack of a systematic understanding. Such programs, unlike historical SAPs that decimated social protections, must bolster access to affordable healthcare and socio-economic rights with food accessibility and human dignity.
Further, there is a need for a fundamental rethinking on the part of IFIs to sustain the international human rights obligations of states. The UN Members States have to relinquish their freedom restricting measures and sovereignty doctrines in favour of upholding all human rights. Further, the requirements of derogation notifications must conform to IHRL Framework to deal with a pandemic, meaning that states have to fulfil their institutional responses to COVID-19 under the IHRL Framework.
The role of political forces in responding to the pandemic is crucial, but it does not conflate political will with technical solutions to the pandemic in many regions across the world. The COVID-19 orthodoxy disregards the politico-cultural and socio-economic forces that shape the battle against the pandemic. In particular, structural violence and institutional cynicism are limiting access to needed resources and exacerbating inequalities.
The COVID-19 discourse requires humanizing the politics of derogation for a pragmatic institutional response to the pandemic. During epidemics, governments must find the balance between addressing the state of emergency and protecting the human rights of their citizens.
Nafees Ahmad holds a PhD in international refugee law and human rights, as well as an LLM in international law. He is a senior assistant professor in the Faculty of Legal Studies at South Asian University, New Delhi.