Gerd Oberleitner, UNESCO Chair in Human Rights and Human Security and professor at the Faculty of Law (Rechtswissenschaftliche Fakultät, REWI) at the University of Graz, on the restrictions of human rights due to measures taken because of the coronavirus disease, the particular effect on vulnerable groups and the consequences for the human rights system.
(Interview conducted on 14 April 2020 in German. The original post by the University of Graz can be found here)
REWI: Which human rights are particularly affected by the measures taken in order to contain the COVID-19 pandemic?
Gerd Oberleitner: All measures relating to confinement and social distancing are probably the most noticeable to all of us. Only those who can provide an exemption are allowed to use the public space, which leads to a restriction of personal liberty. The usual case of liberty, including the right to move freely, which is laid down in Article 12 of the UN International Covenant on Civil and Political Rights as well as in Article 2 of the Protocol No. 4 to the European Convention on Human Rights, becomes the exception. In turn, these restrictive measures and corresponding orders have far-reaching implications for the exercise of other human rights. The imposed ban on visiting grandparents restricts the right to respect for private and family life. Social distancing measures limit freedom of assembly and association. Since it is further prohibited to hold church services, freedom of religion is also affected. Closed movie theatres, concert halls and theatres limit freedom of art. However, artists employed at these locations are only one of many professional groups, which are affected by the restriction on their right to engage in work. School closures disrupt the right to education; the closure of shops and restaurants disrupts the right to conduct a business and so on. The EU Fundamental Rights Agency has just published the first report on this issue; our European Training and Research Centre for Human Rights and Democracy has contributed to this publication.
REWI: Are these severe restrictions in Austria and other countries justified?
Gerd Oberleitner: Restrictions on human rights are not automatically violations. In the interest of the common good, we must accept certain interferences with our liberties. In general, the currently imposed restrictions in favour of maintaining public safety and order as well as for reasons of protecting public health are permitted. Only a few human rights, like the prohibition of torture, are absolute. Furthermore, the state’s obligations to protect entail in particular the protection of health and life. Therefore, they demand careful consideration of what is required from a human rights point of view. However, interferences with the scope of protection of human rights generally have to be monitored and assessed with care. The international human rights system obliges all states to keep such interferences to a minimum. In general, all measures, no matter how reasonable considerations of public order and security might seem, have to be necessary, need to have a legal basis, must be suitable as well as proportional and need to be convincingly explained to the public in a democratic community. Therefore, the debate on the scientific grounds on which restrictive measures are taken also has a fundamental rights dimension. However, the legislator will have to be credited with a margin of evaluation and assessment in their customary interpretation of fundamental rights; only obviously unsuitable measures would a priori not be in accordance with human rights. National practices vary considerably in regard to this point. In any case, the excessive restriction on human rights during a crisis is just as impermissible as insufficient state interventions; it is of course necessary that civil society is vigilant against any measure restricting fundamental rights.
REWI: As a matter of fact, other countries impose stricter measures. How are these strict emergency laws or for example the prohibition of fake news to be assessed?
Gerd Oberleitner: In Hungary, for example, the parliament was practically suspended as of 30 March 2020. As is being communicated, the government rules per decree, thereby assuming the tasks of the legislative in order to protect the population from COVID-19. The Hungarian policy-makers did not elaborate soundly how this particular measure contributes to the effective fight against COVID-19 and most EU countries raised their corresponding concerns about these emergency measures, which are imposed – in contrast to Austria – for an indefinite period of time. With regard to fake news: at the moment, platforms like YouTube automatically delete false information on a large scale; partly, videos on COVID-19 include links that refer to the relevant websites of competent authorities or the forwarding of such videos is made more difficult. Commenting on or rather deleting such content might currently make sense. However, a distinction has to be made between this and the situation in Hungary, where those kinds of expressions of opinion are punished with a penalty of five years. These measures do not comply with the spirit of the European Convention on Human Rights. It seems that some countries use the crisis to attack freedom of expression, as shown for example by Egypt’s expulsion of a journalist, who just reported on a scientific study which was not to the government’s liking, or as shown by Human Rights Watch, who showcased the actions taken by the Turkish government against media criticism on the crisis measures.
REWI: We are all called upon to stand together because we are in this crisis together. From a human rights perspective, are we really all affected by the crisis in the same way?
Gerd Oberleitner: No. I don’t think posts on social media saying “corona does not know colour” are accurate The virus actually does know class, gender and social status: as any other crisis, the COVID-19 pandemic highlights vulnerabilities and differences between and within countries. A human rights perspective always focuses particularly on vulnerable people. Of course, it is true that all of us are affected by the imposed confinement measures. But what about those people who cannot call their home a safe place? Women’s refuges have already reached their capacity limits. Further, children are especially affected by the measures taken. In the field of education, home schooling is dependent on the will as well as the capacity of parents to make it possible. The required infrastructure for home schooling – ranging from a PC or laptop to an Internet connection – is not a given in every household. There is a real threat that already disadvantaged groups of the population become even more marginalised. What we have learned from earlier pandemics is that the poorest and most vulnerable groups, who live in cramped spaces or under precarious sanitation conditions, are at the highest risk of an infection and, on top of that, they only have limited access to the health care system. 2.2 billion people worldwide do not have regular access to clean drinking water. And water is not only a fundamental component of life – it is also a human right, just as washing hands is a human right. In its Resolution 64/292 of 2010, the General Assembly of the United Nations proclaimed access to water and sanitation as a prerequisite for the realisation of all human rights. However, in contrast to the situation in Austria, the first rule of COVID-19 hygiene, namely to wash hands several times a day, as well as social distancing is simply impossible for a lot of people. The same is true for people living in some of the refugee quarters. The situation in the refugee camp Moria on Lesbos for example has already been criticised before COVID-19 due to overcrowding.
REWI: You refer to the situation in refugee camps, where COVID-19 is an additional health risk. The “coronacrisis” has overshadowed the “refugee crisis”. How does COVID-19 affect asylum and alien law?
Gerd Oberleitner: Firstly, of course Article 33 of the Convention Relating to the Status of Refugees has to be mentioned, which prohibits to return refugees to countries in which their life or freedom is threatened. It would be inadmissible to suspend this principle on the grounds of the coronacrisis; at the same time, the question arises of how to deal with suspected cases of COVID-19. In Austria, asylum-seeking persons have to either show a health certificate like other people from countries particularly affected by the coronavirus, or they have to commit to two weeks in quarantine after ad hoc health checks at the border. However, there are alarming reports from other European countries stating that asylum seekers are denied entry due to a risk of infection. This aggravates the situation, which is already precarious and partly illegal under international law, as can be seen for example at the Greek-Turkish border.
REWI: What consequences will the crisis have on the international human rights systems?
Gerd Oberleitner: There will be a variety of consequences. Just to mention one detail of many: the number of derogations as well as the suspension of individual human rights in a state of emergency under the European Convention on Human Rights has skyrocketed. Currently, Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia and Romania have informed the Secretary General of the Council of Europe about this. Such a high number of simultaneous derogations is unprecedented and the Council of Europe has to monitor this situation. On the other hand, well-known questions, relating for example to the use of big data from a fundamental rights perspective, are raised with great vigour. Long-term consequences will appear in many areas, like access to education. UNESCO launched a Global Education Coalition including international organisations, the private sector and NGOs in order to react on the crisis. The numbers on this website which are constantly updated continue to rise: 91% of all pupils worldwide are restricted in their right to education; 1.6 billion children and teenagers in 188 countries are out of schools. Furthermore, the role of science as a way out of the crises is pushed into the centre of attention and with that, also the human rights connotations on the use of scientific progress as an internationally established but poorly understood human right. For example, who will have access to vaccines? Already before the crisis, the Pandemic Influenza Preparedness Framework of the WHO proposed a benefit-sharing system in order to use scarce medical resources; also for example in order to harmonise questions of intellectual property of vaccines with the need of the global health protection. In 2019, shortly before the coronacrisis a report of the Lancet Commission on “The legal determinants of health” was published arguing that public health measures will fail if they do not have a human rights basis. This is now globally put under the microscope earlier than expected. The UN-High Commissioner for Human Rights, Michelle Bachelet, had good reasons for calling the current crisis a test for our societies.