THE current Covid-19 pandemic has caused many countries to introduce restrictions on movement that would have been unthinkable until recently.
It is easy to see why many governments have acted in this respect, given the real danger posed by the new coronavirus, particularly to those in higher-risk categories. Health systems were not built to cope with an infectious disease like this.
This is the worst pandemic since the 1918-1920 influenza pandemic, which infected approximately 25% of the world’s population and killed millions of people. Government reactions to date have ranged from imposing few, if any, mandatory restrictions in countries such as Sweden, to the ‘lockdowns’ in many European Union countries, the UK and Jersey, and the even more restrictive large-scale quarantines in countries such as China.
The Cambodian government is even contemplating introducing legislation that Human Rights Watch has said ‘would allow the government to restrict all civil and political liberties and target human rights, democracy and media groups’.
What measures are appropriate in an emergency like the one currently faced in many countries?
One view is that human and other rights may be violated when an emergency justifies it – ie that what is inappropriate in ‘normal’ times may be legitimate, and even praiseworthy, in an emergency.
There is much support for this view. A recent survey of 3,000 nationally representative US residents showed strong backing from both Republicans and Democrats for measures, such as banning US citizens from entering their own country, that might be contrary to the US constitution and international law.
Cornell law professor Michael Dorf has even called upon Congress to ‘suspend the writ of habeas corpus, which ordinarily allows people to go to court to challenge any substantial restraint on liberty’. The US Constitution states that this right ‘shall not be suspended, unless when in Cases of Rebellion or Invasion, the public safety may require it’. However, his view is that the spread of Covid-19 could be viewed as an invasion. President Trump has provided support for this analysis by suggesting that he is a wartime leader and that Covid-19 is the invisible enemy.
An alternative view, shared by human rights activists and many others, is that human and other rights are particularly important in times of emergency because this is when they matter most. As barrister Adam Wagner has written about emergency laws relating to the Covid-19 pandemic, these are unusual times but not unprecedented ones. There have been emergencies and other exceptional situations throughout history, not just medical ones but wars and other events.
As he says: ‘The authors of the Universal Declaration of Human Rights and other key human rights treaties well understood the danger of the breakdown of social structures and the steady erosion of individual liberties in the face of a crisis and in the name of “emergency powers.”’
Human rights instruments were designed to allow for pandemics and other threats; for example, the right to liberty protected by Article 5 of the European Convention on Human Rights allows for laws that authorise ‘the lawful detention of persons for the prevention of the spreading of infectious diseases’.
At times of emergency, it is important that countries take proportionate action that is consistent with human and other rights and that, as far as possible, avoids unnecessary harm. Human Rights Watch, the UK National Survivor User Network, and international human rights expert Gerald Quin have rightly warned that ‘UK’s Coronavirus Act… has serious implications for the rights of people with disabilities and older people, and its implementation needs to be carefully monitored to protect people’s rights to health care, education, and freedom’.
For example, as Human Rights Watch have stated: ‘The law changes mental-health assessments in England and Wales, lowering the threshold for detention on mental-health grounds (known as sectioning), by requiring only one doctor’s recommendation. The Mental Health Capacity Act requires two doctors’ recommendations, which provides at least some safeguards against abuse of power.’
Treating people equally, for example in relation to travel restrictions, is not necessarily the same as treating them appropriately or respecting their rights. Disability rights are a particular issue here, as universal rules impact people differently depending on disability.
Let us take the example of mental health. As Joy Hibbins, the founder of Suicide Crisis, has pointed out, the isolation measures currently being encouraged by many governments could ‘plunge someone with depression deeper into crisis’.
What is required is a tailored response that acknowledges differences between individuals, not one that treats them as all the same. In some cases, extra resources are also necessary to ensure that restrictions on movement and other measures do not have a disproportionate impact on those who are particularly vulnerable.
Kate Lee, the chief executive of the Alzheimer Society, has reported: ‘We are hearing daily from people with dementia worrying how to cope, confused, isolated and unable to get food deliveries, families struggling to explain what’s going on and carers unable to visit vulnerable people in person.’
States bound by the European Convention on Human Rights have certain positive obligations to protect human and other rights, including one to prevent inhuman or degrading treatment, as might be experienced by those with dementia if they do not receive adequate care and support.
In order to fulfil such obligations during the current pandemic, many countries, including Jersey, have understandably called upon volunteers who are considered essential and therefore not subject to the usual travel restrictions while carrying out their voluntary work. In times of crisis, countries must remember that human and other rights are essential, not luxuries that can be discarded in an emergency. They must be central to decision-making, not explained away afterwards.
lProfessor Claire de Than is a senior legal academic, leadership specialist, Law Commissioner, and trustee of many charities. She is also vice-chairwoman of Enable Jersey.