Proportionality of State Emergency Health Measures amid COVID-19

[Nora Salem is Assistant Professor and Head of the Public International Law Department at the German University in Cairo. She has recently published an entry for the MPEPIL on Sharia Reservations to Human Rights Treaties, as well as a book on The Impact of the UN Women’s Rights Convention on Egypt’s Domestic Legislation (Brill).]

Most States have been taking far-reaching emergency health measures to control the widespread of COVID-19 nationally, including measures of lockdowns, travel restrictions, mandatory quarantine on passengers arriving from abroad, shutdowns of schools, universities, businesses and religious sites, epidemiological surveillance, or in some countries even prohibiting the spread of COVID-19 related news on social media.

Most of these measures aim at social distancing in order to contain the spread of the virus, which is transmitted through respiratory droplets from person to person. These emergency health measures raise the question of proportionality of a possible infringement of an array of human rights, predominantly the right to liberty, freedom of movement, freedom of assembly, freedom of association, freedom of expression, freedom of manifesting one’s religion, right to privacy, right to work, or right to education.

States have a clear human rights obligation to protect primarily their citizens -possibly even beyond their jurisdiction- from threats to the right to life and health and thus take emergency health measures to control the widespread of COVID-19. Yet, it seems that this obligation is at times exercised in a way that exceeds the threshold of proportionality in relation to the above-mentioned human rights -considering the virus’ varying case fatality rate (deaths divided by confirmed cases) of 4.4% in Germany, 5.5% in China, and 6% in the USA as of 05 May 2020.

The aim of this blog entry is to shed light on these conflicting human rights obligations and question the proportionality of States’ emergency health measures taken in light of COVID-19.

Almost all States signed and ratified the two core universal human rights treaties, namely International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which entered into force 1976. Subsequently, State parties are obliged to implement the entailed human rights unless they entered reservations to specific treaty obligations or in times of emergency opted for temporary suspension by means of derogation. According to Art. 4 (1), (3) ICCPR, States may derogate from all human rights that do not enjoy absolute protection (enumerated in Art. 4 (2) ICCPR), provided that States officially proclaim a state of emergency; inform the international community of their intent to impose derogation measures through the UN Secretary-General; and the derogation measures are necessary, proportionate and complaint with other international obligations (see CCPR General Comment No. 29, 2001, OHCHR Emergency Measures and COVID-19: Guidance). The Human Rights Committee has received seven notifications for derogation amid the Covid-19 pandemic, which indicates little interest of States to opt for derogation.

Beyond derogations from human rights treaties, most human rights can be restricted. The imposed lockdowns, whereby people are prohibited to leave their homes, either completely or merely in necessitating circumstances, constitutes a government imposed restriction on the right to liberty (Art. 9 ICCPR), freedom of movement (Art. 12 (3) ICCPR), freedom of assembly (Art. 21 ICCPR), freedom of association (Art. 22 ICCPR), freedom to manifest one’s religion (Art. 18 ICCPR), right to privacy (Art. 17 ICCPR), right to work (Art. 6 ICESCR), or right to education (Art. 13 ICESCR). Such restriction by a public authority can be justified so long as it is based on law; necessary to pursue a legitimate aim; and consistent with other rights recognized by the ICCPR.

Most countries have either adopted a COVID-19 specific decree entailing the States’ emergency health measures, or possess a general pandemic law allowing States to take emergency health measures, which include the lockdown; thus, fulfilling the legality requirement.

Arts. 12 (3), 21, 22 (2) ICCPR mention amongst the legitimate aims to restrict the freedom of movement the protection of public health. The lockdown –as the relevant restriction– aims to protect the public health and is thus a legitimate aim. The problematic question is whether the imposed lockdown is necessary, meaning proportionate, to pursue the protection of public health. The proportionality test requires the restricting measure to be adequate (1); least intrusive (2); and proportionate stricto sensu (3).

Adequacy is determined by whether the restricting measure is suitable to achieve the legitimate aim. The lockdown –as the restricting measure– achieves the protection of public health –as the legitimate aim– since it limits the interaction of people and thus limits the transmission of respiratory droplets from person to person, resulting in limited spread of COVID-19. While complete prevention of transmission is unavoidable despite imposed lockdowns, exponential growth of the virus is to be prevented in order to contain the spread of COVID-19. Thus, the lockdown ultimately aims to flatten the curve by keeping the factor of new infections around 1.0 in order to avoid over congestion of hospitals as a temporary measure. The lockdown is subsequently suitable to contain the widespread of COVID-19 and thereby to protect public health.

Least intrusiveness is determined by whether the interfering measures is the least intrusive yet equally effective measures amongst all available ones to achieve the legitimate aim. Whether the lockdown is the least intrusive measure to achieve protecting the public health depends on its specific design, namely full 24-hour lockdown or partial lockdown in a sense of either limiting persons’ movement in terms of time or by persons leaving the house. Considering that the virus is transferred through droplets, alternative measures could for instance include obliging people to wear face masks in order to prevent the transmission. Another alternative could be regular mass quick tests as conducted in South Korea. Another alternative could include contact tracing and warning apps as suggested by the European Union that would identify confirmed patients with COVID-19, request them to self-quarantine, rapidly test and isolate them. Contact tracing would enable the government to possess anonymized and aggregated data of infection patterns in society in order to take region-specific decisions, interrupt transmission and understand transmission dynamics. Whether these measures are equally effective must ultimately be determined by epidemiologists.

Proportionate stricto sensu requires a balancing with other conflicting rights and the public interest. Meaning that achieving the legitimate aim must be important enough to justify the damage which will be caused to individual and public rights by the restricting measure. While the lockdown aims to protect the public interest; economic interests should find due consideration. The global economy suffered losses of trillions of dollars due to the lockdown. ILO Director-General said “workers and businesses are facing catastrophe, in both developed and developing economies,” and describes COVID-19 as “the worst global crisis since World War II”. Millions of businesses are closed globally, affecting the income situation of employees and business owners, which weakens the national economy of countries drastically. Countries with a strong economy, like Germany, may be able to absorb these losses at least partially; the large majority of countries however cannot. The UN warned that hundreds of thousands of additional child losses are expected this year due to the global recession resulting from COVID-19 emergency health measures, which then not only affects the public interest but people’s right to life and health. This is particularly the case for low-income countries with a considerable percentage of people living below the poverty line, who suffer disproportionately as under lockdown clean water and food are not accessible. Almost 190 countries have imposed school closures, affecting 1.5 billion children’s access to education. In times of a lockdown access to education is typically conducted online and thus only guaranteed for those who have internet access and possess technical equipment. This is not even self-evident in high- or middle-income countries, let alone in low-income countries. Confinement at home and increased stress levels due consolidating work and family obligations has led to a rise of domestic violence amid COVID-19, affecting victims’ individual right to health and life, but is moreover considered a major global public health threat. Due to the lockdown, humanitarian aid workers cannot reach people who depend on food and life-saving vaccinations, resulting in a hunger pandemic with “135 million people facing crisis level of hunger or worse, coupled with an additional 130 million on the edge of starvation”, warns the World Food Programme Chief.

Proportionate stricto sensu requires a balancing with other conflicting rights and the public interest. Meaning that achieving the legitimate aim must be important enough to justify the damage which will be caused to individual and public rights by the restricting measure. While the lockdown aims to protect the public interest; economic interests should find due consideration. The global economy suffered losses of trillions of dollars due to the lockdown. ILO Director-General said “workers and businesses are facing catastrophe, in both developed and developing economies,” and describes COVID-19 as “the worst global crisis since World War II”. Millions of businesses are closed globally, affecting the income situation of employees and business owners, which weakens the national economy of countries drastically. Countries with a strong economy, like Germany, may be able to absorb these losses at least partially; the large majority of countries however cannot. The UN warned that hundreds of thousands of additional child losses are expected this year due to the global recession resulting from COVID-19 emergency health measures, which then not only affects the public interest but people’s right to life and health. This is particularly the case for low-income countries with a considerable percentage of people living below the poverty line, who suffer disproportionately as under lockdown clean water and food are not accessible. Almost 190 countries have imposed school closures, affecting 1.5 billion children’s access to education. In times of a lockdown access to education is typically conducted online and thus only guaranteed for those who have internet access and possess technical equipment. This is not even self-evident in high- or middle-income countries, let alone in low-income countries. Confinement at home and increased stress levels due consolidating work and family obligations has led to a rise of domestic violence amid COVID-19, affecting victims’ individual right to health and life, but is moreover considered a major global public health threat. Due to the lockdown, humanitarian aid workers cannot reach people who depend on food and life-saving vaccinations, resulting in a hunger pandemic with “135 million people facing crisis level of hunger or worse, coupled with an additional 130 million on the edge of starvation”, warns the World Food Programme Chief.

While these emergency health measures, primarily the lockdown leads to serious human rights concerns, most governments seem to take insufficient measures towards vulnerable groups, including prisoners or refugees. 122 refugee-hosting countries have reported transmission of COVID-19. Social distancing measures are nearly impossible in congested refugee camps, which puts refugees at particular risk for infection with COVID-19 due to limited access to healthcare, water, sanitation, food and adequate housing and subsequently for being deprived of minimum human rights standards. People in prison are more vulnerable to a COVID-19 outbreak, as they live in close proximity, which may act as a source of infection, amplification and spread of infectious diseases. Failing to take additional protection measures for prisoners may amount to inhumane treatment or punishment, prohibited under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The UN Secretary General as well as the UN High Commissioner for Human Rights continuously emphasize the importance of putting human rights at the center of COVID-19 containment measures, meaning adopting measures to mitigate the negative effects of containment measures, particularly for vulnerable communities which suffer disproportionately. Yet such mitigating measures necessitate financial resources and are thus not affordable for many low-income countries, which are already suffering economically, resulting in discriminating and disproportionate human rights infringements.

These human rights concerns should be carefully outweighed against the legitimate aim of protecting the public health from a virus with a varying case fatality rate (deaths divided by confirmed cases) of 4.4% in Germany, 5.5% in China, and 6% in the USA as of 05 May 2020. While examples of Italy and Spain have shown that the case fatality rate can rise up to 10-13% if severe cases cannot be adequately treated due to the over congestion of hospitals; States should work closely with epidemiologists to identify less intrusive measures to protect the widespread of COVID-19 in order to protect other human rights obligations.

So long as emergency health measures are accompanied by mitigating measures in order to protect vulnerable communities and compensate the harshest economic fallouts, imposed lockdowns -depending on their modalities- may be justified provided that they are non-discriminatory, necessary, proportionate, time-limited and transparent. Such mitigating measures are however economically not available for most countries, leading to disproportionate human rights infringements. In this case a reversed lockdown for persons belonging to risk groups might be more appropriate to protect the public health from COVID-19, while preventing large-scale human rights infringements.