Paper by Alessandra Spadaro. European Journal of Risk Regulation, Cambridge University Press.
April 7, 2020.
“Nous somme en guerre”, proclaimed French President Emmanuel Macron, announcing a series of aggressive measures to contain the spread of the COVID-19 pandemic. References to “a war against the invisible enemy” and healthcare workers on the “frontline” have been made by US President Donald Trump, and other political leaders wanting to underscore the exceptional nature of the situation have also had recourse to war metaphors. In line with this rhetoric, it was even suggested that the outbreak should be designated as an armed attack for the purposes of Article 5 of the North Atlantic Treaty. Indeed, the war-like responses to the pandemic have been characterised by the taking of measures severely limiting the enjoyment of personal freedoms, to an extent that was unprecedented in democratic countries in times of peace. While taking different forms in various countries, the measures adopted broadly aim at enforcing social distancing among the population so as to minimise the human-to-human transmission of the new coronavirus that causes COVID-19. As a consequence, billions of people around the world have been put under some sort of lockdown. Concerns about the impact of such measures on human rights have been raised by the United Nations (UN) High Commissioner for Human Rights and other human rights experts. Such concerns are not unfounded, as measures restricting the enjoyment of human rights and the war rhetoric that accompanies them can open the way to the abuse of emergency regulations and the overreach of executive powers. Both the pandemic and the responses to it are putting to the test human rights, and not only in authoritarian countries.
In addressing this issue, this article starts by explaining why the taking of measures to contain the pandemic is warranted under human rights law. The article shows that, at the same time, some measures can have a detrimental effect on the enjoyment of a number of human rights. With a focus on the International Covenant on Civil and Political Rights (ICCPR) and on the European Convention on Human Rights (ECHR), the article then proceeds to analyse the conditions under which States may legitimately interfere with certain human rights through either limitations or derogations and highlights some areas of concern in this respect. It concludes that while the curtailment of certain freedoms might be temporarily necessary to deal with the COVID-19 outbreak, such curtailment should be carefully limited and constantly monitored so as to avoid abuses.
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