Adina Portaru, Legal Counsel, Europe, ADF International
As the COVID-19 pandemic continues, countries are responding with rapid-fire measures intended to slow and stop the spread of the virus. This is understandable: governments have an interest in protecting the lives of their citizens. However, many observers and institutions have been disquieted by both the speed and breadth of governments’ expansions of power and the potential long-term effect new restrictions on fundamental freedoms may have around the globe.
Recently, the European Parliament adopted a resolution concerning the EU’s response to COVID-19. Among other things, it stressed that ‘all measures taken at national and/or EU level must be in line with the rule of law, strictly proportionate to the exigencies of the situation, clearly related to the ongoing health crisis, limited in time and subjected to regular scrutiny.’ Also, the Joint European Roadmap towards lifting COVID-19 containment measures highlights the need for more targeted responses than general states of emergencies with exceptional powers for governments, in order to guarantee fundamental rights and respect for the rule of law.
This is absolutely correct. As this pivotal moment unfolds around us, we have a responsibility – both as individuals, and as the broader international community – to remain alert and informed as to how governmental responses are impacting fundamental rights across Europe and around the world. This is not in order to incite alarm. Rather, it is so that we might safeguard against short-term precautionary measures becoming long-lasting encroachments on the fundamental rights that are the core of our collective humanity.
As we do so, here are three things to be watching for:
Analyze the impact of governmental responses on fundamental freedoms. In evaluating a response measure, it is important to first understand the form it has taken — whether it is a legislative policy, executive order or decree, or a military ordinance and how that impacts the nature of the response measure. Each form has different levels of input from the people who are governed by it and the varying forms may affect the enforceability of the measure.
Next, we must examine what fundamental freedoms are being restricted and in what way. Put simply: what is the freedom-cost of this response measure? Is it strictly necessary? Is it proportionate? Is it neither arbitrary nor discriminatory? Effective response measures will choose the least restrictive means in order to ensure public safety, while sacrificing the minimum possible amount of individual liberty. For example, some countries are restricting the number of people who may simultaneously attend a worship service, or requiring them to practice social distancing, rather than banning all religious services. Other governments are relying on advisories rather than force, or on “opt-in” systems for voluntary health monitoring rather than mandatory surveillance.
Watch for critical accountability measures that are present or missing. Some of the most vital safeguards for fundamental freedoms during times of emergency are accountability measures that provide checks and balances on abuse of power. For each new measure being implemented as a response to this pandemic, we should be asking: does it include sunset clauses or provisions for periodic review? The Human Rights Committee, which interprets the International Covenant on Civil and Political Rights, declared that state parties are required to “provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation.” The committee emphasized that such steps “are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened.”
In addition to being limited in duration and subject to review, emergency policies ought to be paired with transparency measures enabling citizens and independent watchdogs to track new policies, laws, decrees, and their enforcement measures. On March 16, a group of United Nations human rights experts declared that: ‘Emergency declarations based on the COVID-19 outbreak … should not function as a cover for repressive action under the guise of protecting health […] and should not be used simply to quash dissent.’ During times of crisis everything becomes more liquid, which means increased accountability and oversight measures are exponentially more critical. This is particularly true for vulnerable or minority communities that may already be subject to discrimination, persecution, or restrictions on their rights.
Examine the reversibility/irreversibility of expanded powers. Power is always more easily expanded than contracted, so every citizen should be evaluating which encroachments of personal privacy and fundamental freedoms are being normalized in their society during times of crisis. Sweeping, undefined, unchecked expansions of absolute power could prove to be a Pandora’s Box with human rights ramifications for decades to come. Examples of this include control of media or other channels of communication, the ability to suspend or override fundamental human rights protections, and unlimited digital and drone surveillance of citizens.
During these unprecedented times, governments are justified in taking proportionate, precautionary steps to curtail and contain the coronavirus and to protect the public health of their citizens. However, the international community must remain vigilant to the impacts of emergency response measures on fundamental freedoms — ensuring that they are proportional, accountable, limited in duration, and the least restrictive or invasive measures possible. It is precisely during times of chaos and crisis that it is most critical that our fundamental freedoms are protected.