Human Rights in the Age of Pandemics

Human Rights in the Age of Pandemics: A Checklist for COVID-19 Strategies Presented by: Prof. Scheinin Date: 20 November 2020 Methodological Challenges In Assessing Human Rights Compliance Of Covid Responses - Some reports focus on liberty, and wrongly presume that derogations and restrictions would be problematic per se (IDEA) - Others, focusing on success in combating the epidemic, assume that restrictions are positive, or do not assess the human rights compatibility of effective measures (Oxford Martin School's Govt Response Stringency Index) - Even best human rights research suffers from the absence of a structured framework of normative assessment and leaves a descriptive feel (Bonavero) - There are both known unknowns and unknown unknows about the virus - (emergency phase, waves, seasonality, modes of transmission, long-term effects, whether young children transmit etc.). This affects HR assessment - All the time, the choices to be made are not between human rights and something else important but human rights are on both sides of the equation Outline For Assessing Human Rights Compliance - Failure to act is not human rights compliance; may be the opposite - Err on the side of positive human rights obligations - HR (in abstractor) cannot be replaced by proxies (e.g. GNP) - When HR collide, the core of any right shall have primacy. Beyond that, a rigorous proportionality test is to be applied. Effect towards legitimate aim and HR intrusion need to be measured - Include all ESC rights, also when on both sides of the equation - Counter all and any discrimination - Respect the rule of law: secure legal basis and access to justice - Primacy of liberty = minimize mandatory restrictions - Restrictions on various gatherings are prima facie justified - But provide and protect safe alternative forms of gatherings - Restrictions on movement must be precise and well-targeted - Being proactive and acting early is HR compliant. Restrictions or even derogations are not wrong by definition - Protect the vulnerable and their dignity and rights (= do not isolate) - Cultural adaptation is HR compliant, or even more than that - Test, trace, respect and support carriers of the virus - Proximity-alerting apps are not to be used for contact tracing - Reject immunity passports - 'Stay home' works only with labor rights and income support - Make means of transport safe - To reduce international travel, rely on medical expertise, tests and quarantine, not on travel bans - Involve multiple epistemic communities before political decisions, and also in the HR assessment itself • Human rights experts (lawyers) • Economists • Epidemiology, virology, public health • Social scientists (behavioral) Moving ahead: possible 'baskets' for a HR & COVID-19 strategy assessment model - Positive obligations / ESC rights (30%) - Equality and nondiscrimination (30%) - Rule of law (10%) - Non-interference / C&P rights (30%) An Idea For A Scoresheet Towards A 0-100 Score - To cover all HR, proxies are allowed 1. Positive obligations / economic, social and cultural rights (-100 to +30) a. The right to life and the right to health b. The right to education c. The right to an adequate standard of living 2. Non-interference / civil and political rights (-100 to +30) a. Freedom of movement (as a proxy for general liberty) b. Right to privacy and protection of personal data c. Freedom of assembly (also as a proxy for religion and political rights generally) 3. Equality and non-discrimination (-100 to +30) a. Special measures re vulnerable groups including the elderly, persons with disabilities, underprivileged ethnic groups b. Gender aspects, incl. violence c. Arbitrariness as discrimination 4. Rule of law (-100 to +10) a. If a state of emergency, how it was applied b. Requirement of legal basis c. Access to justice (fair trial) and remedies (remedy) - A high negative score under any basket can cancel all positive scores from the other baskets - Breach of a core is one such reason