Pandemics are fertile breeding grounds for governmental overreach. After the outbreak of COVID-19 (“coronavirus”), China required citizens to install software on their smartphones which predicts people’s health status, tracks their location, and determines whether they can enter a public place. According to a New York Times analysis, the software “appears to share information with the police, setting a template for new forms of automated social control that could persist long after the epidemic subsides.”

Meanwhile in Bishkek, Kyrgyzstan, coronavirus may have been used as a justification to stifle political and social activism. Protesters recently held demonstrations seeking the release of an opposition politician in advance of upcoming parliamentary elections. At the same time, women’s organizations were planning a rally on International Women’s Day to draw attention to the problem of domestic abuse in the country. Against this backdrop, a court in Bishkek granted the mayor’s application to ban all protests in the city center until July 1.

The Bishkek court cited the coronavirus as one of the reasons for the ban, even though there were no confirmed cases of coronavirus in the country. Although the mayor’s office subsequently revoked the ban, participants in the International Women’s Day march were nonetheless arrested, while a large group of men were permitted to participate in a traditional ceremony to ward off coronavirus.

In Iraq, the government has faced widespread protests over corruption, unemployment, and inefficient public services. The government responded with force, killing an estimated 600 protesters since October. On Feb. 26, citing the coronavirus, the Iraqi Health Minister announced that “all gatherings in public places, for any reason, are banned” through March 7. Questions have arisen about the motivations behind the ban, especially since there was only one confirmed case of coronavirus when the ban was imposed (with the number rising to 71 earlier this week). In the words of one Iraqi activist:

The government uses coronavirus as an excuse to end the protests. They tried everything — snipers, live bullets, tear gas, abduction and so on and on — but they failed. They are now finding another way to stop us….

In addition to banning large-scale protests, the government also targeted small gatherings, requiring all cafes and restaurants to close and sending security forces to break up funerals in private homes.

“This is Not a Drill”

The coronavirus is indeed a significant threat to public health. As of writing, there are over 120,000 confirmed cases of coronavirus, and the number will exponentially grow, sparking the World Health Organization to officially label the crisis a pandemic on Wednesday. Swift and effective government action is necessary. However, as we have seen during other emergency situations, some governments use a crisis as a pretext to infringe rights. Others retain over-broad emergency powers after the crisis subsides.

Emergencies Unlock Executive Powers

On Jan. 30, the World Health Organization declared the coronavirus outbreak a “public health emergency of international concern.” Other countries, including South Korea, Italy, and Iceland, followed suit. In the United States, several states have declared public health emergencies and additional declarations are expected.

These declarations unlock formidable executive power. For example, under California law, during a state of emergency, the governor shall, “to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California” – an essentially unbounded grant of authority.

In the midst of an emergency – whether caused by an epidemic, terrorist attack, or otherwise – countries tend to give vast powers to the executive branch. To a certain extent, this is understandable because officials are operating with imperfect information, and they need flexibility to address emerging threats. In addition, there is an implicit assumption that executive branch officials will exercise self-restraint, exercising their emergency powers fairly and reasonably.

As Fionnuala Ní Aoláin, the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, has observed, “States and security sector institutions will find emergency powers attractive because they offer shortcuts.” As a result, they tend to “persist and become permanent.” Therefore, in the words of Ní Aoláin, “Emergency or not, States must reach the same threshold of legality, legitimacy, necessity and proportionality for each measure taken.”

In Every Crisis, There is an Opportunity to Over-Reach

FREEDOM OF ASSEMBLY

While certain “social distancing” measures are appropriate, other decisions impermissibly restrict the freedom of assembly. An example is the court decision to impose a four-month ban on assemblies in Bishkek, Kyrgyzstan. The court issued its decision days after a protest by the political opposition and days before women, including members of the LGBTI community, were planning a march on International Women’s Day. The court cited coronavirus as a justification for the ban, even though there were no confirmed cases of coronavirus in the country.

Issues also arise with the Iraqi ban on “all gatherings in public places, for any reason.” The order seems targeted at peaceful protesters seeking governmental reform. Despite the reference to “public place,” it has also been used to disperse people gathered in a private home for a funeral.

NON-DISCRIMINATION

The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights prohibit discrimination based on race, religion, political or other opinion, national or social origin, or other protected attributes. The “history of discriminatory use of the quarantine power against particular groups of people based on race and national origin” underlines the importance of applying such measures without discrimination.

Violations of international law would also arise if, for example, a government restricted access to health services based on the religion or ethnicity of the patient. In similar fashion, international law prohibits governments from forcing marginalized communities to assume discriminatory burdens after an outbreak. We are concerned by reports that Chinese authorities have forced Uighurs to work at factories previously closed due to the risk of coronavirus infection.

FREEDOM OF EXPRESSION AND ACCESS TO INFORMATION

The Chinese response to coronavirus initially focused on suppressing the reports of whistleblowers and discouraging the dissemination of information about the virus. These restrictions would appear to violate international law, which protects the right to freedom of expression and the right to “seek, receive, and impart information and ideas.”

RIGHT TO PARTICIPATE

A number of international instruments, including Article 25 of the ICCPR, protect the right to participate in public affairs. Moreover, engaging people in the development of strategies, policies, and practices increases the likelihood of effective responses. For example, the Iranian government originally proposed to send 300,000 people, including members of the Basij militia, to perform door-to-door coronavirus screening. The government changed its strategy only after Iranians reacted online, pointing out that this approach would create a team of carriers that would likely increase – rather than decrease – infections.

ADDITIONAL HUMAN RIGHTS PROTECTIONS

Government measures may also implicate a number of other rights, including the rights to life and health, the freedoms of association and movement, and the right to an effective remedy when violations occur.

Recommendations

To promote rights-respecting governmental measures during a public health emergency:

Governments should provide accurate and timely information to civil society and the public about public health issues, and governments should provide opportunities for civil society and the public to participate in the design, implementation, and evaluation of responses to public health emergencies.

Measures should be publicly accessible and sufficiently precise to enable an individual to determine what is prohibited and what is permitted.

Measures should be motivated by legitimate public health goals and not be used as a pretext to pursue illegitimate aims, for example to quash dissent. Restrictions must be “necessary in a democratic society” and must respect “pluralism, tolerance and broadmindedness.”

Restrictions should be narrowly tailored and should be the least intrusive measure to achieve the protective function. Prohibitions, including bans on assemblies, should be a last resort.

Measures should be of a limited duration (e.g., 30 or 60 days), with a requirement of review and should lapse unless an affirmative action is taken to keep the measures in place.

Governments should work with civil society to undertake a rapid human rights impact assessment to ensure that measures and actions do not inappropriately infringe human rights and fundamental freedoms.

Measures and actions should be subject to legislative and judicial oversight.

Protecting Health and Human Rights

Governments have an obligation to undertake effective action to protect the public from epidemics and other public health crises. At the same time, governments have an obligation to comply with international law, even when emergencies arise. The coronavirus may become a “permanent part of the repertoire of human viruses.” It is therefore important, as Ní Aoláin has warned, that emergency powers not “insidiously creep over into the ordinary law.”

The spread of a threat to public health such as the coronavirus may seem to warrant dispensing with human rights protections and democratic norms in the name of exigency. History has shown that this is a mistake, and governments must move expeditiously while also protecting human rights. More than 2,400 years ago, the Greek physician Hippocrates famously wrote “do no harm” in his treatise entitled Epidemics. We should heed those words today, ensuring that government responses to public health emergencies do no harm to human rights.

Image: A passenger has his temperature checked at Changsha railway station in Changsha, the capital of Hunan province on March 10, 2020. Photo by NOEL CELIS/AFP via Getty Images