Limiting human rights during COVID-19 – is it only legitimate if it is proportional?

May 1st, 2021
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Picture source: Gallo Images/Getty

The normative standards in international human rights obligate governments to respect, protect and fulfil the human rights of all people in their territory. The World Health Organisation (WHO) declared COVID-19 a pandemic on 11 March 2020, which was followed by many states across the globe introducing harsh lockdown containment measures with severe wide-ranging interference with fundamental human rights on a scale unseen in living memory. Democratic and totalitarian state parties misused their emergency powers with a flagrant disregard for constitutional limits to policymaking. COVID-19-related regulations infringed the fundamental rights of billions of people around the world the right to personal liberty, freedom of assembly and association, freedom of movement, freedom of religion, the right to work and earn a living and the right to education, to name but a few.

The lockdowns have thrown the world into the most severe recession since World War II and the most rapidly developing recession ever seen in mature market economies (Christian Bjørnskov ‘Did lockdown work? An economist’s cross-country comparison’ (2020) CESIfo Economic Studies). According to the World Health Organisation and the World Food Programme, the ramifications of lockdown regulations globally include –

  • 1,5 billion children’s education disrupted;
  • 1,6 billion people potentially losing their livelihood;
  • 135 million people facing starvation due to acute hunger; and
  • 39 billion in-school meals missed (Kimberly Chriscaden ‘Impact of COVID-19 on people’s livelihoods, their health and our food systems’ (www.who.int, accessed 4-4-2021) and Paul Anthem ‘Risk of hunger pandemic as coronavirus set to almost double acute hunger by end of 2020’ (www.wfp.org, accessed 4-4-2021)).

A pertinent question arising from this scenario is whether the lockdown containment measures adopted by state parties to the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) exceed the limits of what is strictly necessary to combat the spread of an infectious disease with a crude mortality rate of 0,14% in the United States (US) and 0,08% in South-Africa (https://coronavirus.jhu.edu).

This article examines the notion that the limitation of fundamental human rights – by the lockdown regulations of state parties – is legitimate only if it is proportional. Proportionality is the mainstay of the protection of human rights in many Western democracies and the most important standard that must be met with regard to human rights restrictions. It is a substantive requirement as it defines how far governments may go in limiting fundamental human rights (Barak Aharon ‘Proportionality and principled balancing’ (2010) 4(1) Law and Ethics of Human Rights 1; Luka Anđelković ‘The elements of proportionality as a principle of human rights limitations’ (2017) 15(3) Facta Universitatis Law and Politics 235).

Proportionality balancing and international human rights law

For the past 60 years’ proportionality balancing – an analytical procedure similar to ‘strict scrutiny’ in the US – has become a primary technique for human rights adjudication in the world. It is the preferred procedure for adjudicating human rights disputes involving a conflict between a fundamental human right and a legitimate state or public interest, such as public health (Alec Stone Sweet and Jud Mathews ‘Proportionality balancing and global constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 68 at 72).

The doctrine of proportionality prescribes that all statutes and regulations that affect human rights should be proportionate (Juan Cianciardo ‘The principle of proportionality: The challenges of human rights’ (2010) 3 J. Civ. L. Stud 177). The proportionality analysis involves a two-stage inquiry:

  • The question examined in the first stage is whether a measure infringes on human rights protected by international human rights law.
  • The examination performed in the second stage determines the compliance of the measure with four sub-components that comprise proportionality, namely: Legitimacy, adequacy, necessity and proportionality stricto sensu.

In principle, each element is assessed cumulatively, and failure of a legislative measure to comply with one of the components will render the measure unjustified and illegitimate (Francisco J Urbina ‘A critique of proportionality’ (2012) 57 Am. J. Juris. 49).

  • Legitimacy

The first sub-component, legitimacy, establishes that the measure that interferes with a right has to have a legitimate aim and an objective of sufficient public importance (Urbina (op cit)).

There can be no argument that it is a legitimate aim of state parties to act in protecting the public against an infectious disease (United Nations Economic and Social Council Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (1985) at para 25).

  • Adequacy

The second sub-component, adequacy, establishes that the statute, which affects a human right, must be suitable to achieve the purpose sought by the state party. In other words, once the state party has defined the end that it aims for and the means that it has designed to obtain such end, it then needs to be verified to establish whether the means is capable of, in actual fact, achieving such end (Cianciardro (op cit)).

In analysing the data there seems to be no evidence that the lockdown containment measures have any positive effect in achieving the desired end result of reducing the number of infections and ultimately the number of deaths. In fact, the most recent data from the WHO shows that there is no significant statistical difference in crude mortality rates (sometimes called the crude death rate that measures the probability that any individual in the population will die from the disease; not just those who are infected, or are confirmed as being infected, and is calculated by dividing the number of deaths from the disease by the total population), case fatality rates and infection rates between countries that instituted hard lockdowns such as the US, Spain, France, Belgium, the United Kingdom (UK) and Italy and those that did not, such as Sweden, Japan and Taiwan. Peter Geoghegan states: ‘We now know with certainty what public health experts have long predicted: a light-touch coronavirus approach does not work. Sweden has recorded far higher death rates than its Nordic neighbours … . Even the country’s king thinks it has “failed”’. However, his conclusion that the Swedish model did not work is based on an extremely narrow comparison between Sweden and other Nordic countries death rates only (P Geoghegan ‘Now the Swedish model has failed, it’s time to ask who was pushing it’ (www.theguardian.com, accessed 6-4-2021)). Although Sweden, Japan and Taiwan all had different strategies in terms of various elements of their COVID-19 responses what they have in common is that none of these three countries instituted hard lockdowns on their populations (Alex Berenson Unreported Truths about COVID-19 and Lockdowns: Part 1 and 2 (Blue Deep Inc 2020)) (see also L du G Huang ‘Japan may have beaten coronavirus without lockdowns or mass testing. But how?’ https://time.com, accessed 6-4-2021); S Feder ‘Japan avoided a lockdown by telling everyone to steer clear of the 3 C’s. Here’s what that means’ www.businessinsider.com, accessed 6-4-2021); Fight COVID Taiwan ‘FAQs from foreign media’ https://fightcovid.edu.tw, accessed 6-4-2021); K O’Flaherty ‘How Taiwan beat Covid-19’ (www.wired.co.uk, accessed 6-4-2021)).

Deaths per 100 k/pop Crude mortality rate* Case Fatality Rate**
Sweden 127,69 0,127% 1,9%
Taiwan         0,04 <0,001% 1,0%
Japan 6,52 0,006% 1,9%
United States            160,48 0,160 1,8%
United Kingdom           187,60 0,187% 3,7%
Spain             152,25 0,152% 2,7%
France 132,45 0,132% 2,2%
Belgium  194,89 0,194% 2,8%
Italy 165,12 0,165% 3,4%

* calculated by dividing the number of deaths by the total population.

** calculated by dividing the number of deaths by the total number of people diagnosed with the disease.

(https://covid19.who.int/ and https://coronavirus.jhu.edu/data/mortality (accessed 8-3-2021)).

 

It is also interesting to note that Sweden’s excess mortality rate (the number of deaths from all causes during a crisis above and beyond what we would have expected to see under normal conditions) were lower than countries that imposed hard lock downs such as England, Belgium, France, Spain, Netherlands, Poland and the US:

  • Belgium – 12,2%
  • England – 10,5%
  • France – 6,7%
  • Netherlands – 7,2%
  • US – 12,9%
  • Poland – 14,4%
  • Sweden – 1,5% (U Parildar, R Perara, J Oke ‘Excess mortality across countries in 2020’ (www.cebm.net, accessed 6-4-2021)) (see also ‘US Mortality Monitoring – Deaths, Excess, Z-Scores, Maps, Historical’ (www.usmortality.com, accessed 6-4-2021); C Giattino, H Ritchie, M Roser, E Ortiz-Ospina and J Hasell ‘Excess mortality during the Coronavirus pandemic (COVID-19)’ (https://ourworldindata.org, accessed 6-4-2021); G Iacobucci ‘Covid-19: UK had one of Europe’s highest excess death rates in under 65s last year’ (www.bmj.com, accessed 6-4-2021); and ‘Tracking COVID-19 excess deaths across countries’ (www.economist.com, accessed 6-4-2021)).

In addition to the crude mortality rate and case fatality rate data, this further proves the point that the lockdowns did not work in achieving the purpose of reducing deaths. In fact, Sweden did better than many countries that imposed hard lockdowns. If lockdowns worked then Sweden’s excess mortality rate should have been significantly higher than the UK, Belgium, France, Spain, Netherlands and the US that imposed hard lockdowns.

There are numerous recent authoritative studies, which conclude that there are no causal connections between lockdowns and any decrease in infection rates or death rates. These studies clearly demonstrate that lockdowns do not control, nor curb the spread of COVID-19 (American Institute for Economic Research ‘Lockdowns do not control the Coronavirus: The evidence’ (www.aier.org, accessed 4-4-2021) and Paul E Alexander ‘The catastrophic impact of COVID forced societal lockdowns’ (www.aier.org, accessed 4-4-2021)).

  • Necessity

The third sub-component, necessity, evaluates whether the state party has chosen, among the measures capable of obtaining the desired end the one that is the least restrictive. The measure should impair the affected human right as little as possible (Urbina (op cit)). It will only pass the test of necessity if it is the measure among those similar in efficacy, which is the least restrictive on the affected human right (Cianciardo (op cit)) and AL Bendor and T Sela ‘How proportional is proportionality?’ 2015 13(2) International Journal of Constitutional Law 530).

An alternative to the hard lockdown measures adopted by many countries around the globe is the approach from Sweden, who never imposed hard lockdowns, left its economy open, left schools open and made social distancing mostly voluntary. Moreover, it yielded similar or better results than countries that instituted hard lockdowns, such as the US, Spain, France, Belgium, UK and Italy (www.folkhalsomyndigheten.se, accessed 4-4-2021).

  • Proportionality stricto sensu

Once it has been established that the infringing containment measure complies with the first, second and third sub-components, it needs to be determined whether the measure is reasonable stricto sensu or not. Proportionality stricto sensu calls for a cost-benefit analysis of the balance between the advantages and disadvantages brought about by the public health lockdown measures (Cianciardo (op cit)). It is often depicted by a pair of scales, one of which weighs the benefits while the other one measures what is lost due to the restriction (Anđelković (op cit)). The measure has to represent a net gain, when the reduction in enjoyment of the right is weighed against the level of realisation of the aim of the measure (Urbina (op cit) and Cianciardo (op cit)). A measure with a cost proportionate to its benefit is reasonable, while a measure with a cost that is disproportionate to its benefits is unreasonable and illegitimate. An infringement of socially important human rights in the fulfilment of a minimal social benefit cannot be justified (Urbina (op cit) at 29–35).

This may be evaluated with the following formula: Using a scale from RC1 to RC10 to evaluate the degree of restriction and societal cost of the infringing measure or regulation (RC10 being the most restrictive and costly measure) and a scale from SB1 to SB10 to evaluate the societal benefit derived from the infringing measure (SB10 deriving the most benefit):

  • If Measure A’s degree of restriction and societal cost is RC1 and the societal benefit SB5, then the measure would be considered proportional.
  • If Measure B’s degree of restriction and societal cost is RC5 and the societal benefit SB6, then the measure would still be considered proportional given that there is a net gain.
  • If Measure C’s degree of restriction and societal cost is RC5 and the societal benefit SB4, then the measure would not be considered proportional given that there is not a net gain and, therefore, the measure is disproportional and illegal.
  • If Measure D’s degree of restriction and societal cost is RC10 and the societal benefit SB1, then the measure would be considered disproportional and illegal.

COVID-19 is a highly infectious disease with a low crude mortality rate that has led to the mortality of – at the time of writing this article – 2,35 million or 0,03% of the estimated 7,8 billion people in the world over a period of 12 months. In South-Africa, COVID-19 has led to the mortality of 46,869 or 0,08% of the estimated population of 58,8 million (https://covid19.who.int/, accessed 10-2-2020). A recent cost benefit analysis shows that the lockdowns cost a minimum of five times more ‘wellbeing years’ than they saved, and more realistically, cost 50 to 87 times more without including the collateral damage to disrupted healthcare services, disrupted education, famine, social unrest, violence, and suicide nor the major effect of loneliness and unemployment on lifespan and disease (AR Joffe ‘COVID-19: Rethinking the lockdown groupthink’ (2020) Frontiers in Public Health). Weighing the enormous cost against the marginal benefit of attempting to protect the population against a disease with a crude mortality rate ranging between 0,05% and 0,19% it stands to reason to conclude that the harsh lockdown measures do not represent a net gain, but a significant loss.

Conclusion

As states rush to balance public health with politics in their response to the COVID-19 pandemic, they are side-lining human rights rather than protecting them. It is crucial that states respect, protect and fulfil human rights in infectious disease control in their COVID-19 responses (BM Meier, HE Huffstetler and R Habibi ‘Human rights must be central to the International Health Regulations’ (www.hhrjournal.org, accessed 4-4-2021)).

In responding to the COVID-19 pandemic state parties around the globe have taken extensive actions that restrict human rights without any effort to explain the legitimacy, adequacy, necessity or proportionality of such measures. Containment measures are proportional only if found to be –

  • legitimate;
  • adequate to the end;
  • the least restrictive on human rights among all the other adequate options; and finally
  • proportionally stricto sensu balanced because more benefits or advantages are derived from them than impairments of other fundamental human rights.

The United Nations has urged countries to maintain human rights ‘without exception’ as they fight the COVID-19 pandemic (UN News ‘Human rights must be maintained in beating back the COVID-19 pandemic, “without exception” – UN experts’ (https://news.un.org, accessed 4-4-2021)). The global health community has spent decades implementing evidence-based strategies to contain the spread of disease and protect the public’s health without violating human rights. There was and is no reason to respond differently to COVID-19 than to other infectious diseases with similar mortality rates, such as flu, pneumonia, and other respiratory-related illnesses.

Human rights norms and principles, such as the Siracusa Principles specific to public health emergencies, contain effective standards that state parties need to adhere to in order to honour their covenant obligations with regard to protecting and ensuring fundamental human rights to all within their respective borders (United Nations Economic and Social Council (op cit)).

Dr Willem van Aardt BProc (cum laude) LLM (UP) LLD (NWU) is an Admitted Attorney of the High Court of South Africa, Admitted Solicitor of the Supreme Court of England and Wales and an Extraordinary Research Fellow at North-West University – Research Unit Law Justice and Sustainability Potchefstroom Campus.

This article was first published in De Rebus in 2021 (May) DR 14.

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