Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
The COVID-19 outbreak has compelled countries worldwide to enforce lockdowns, but will such extreme measures actually save human lives or sacrifice human rights?
The COVID-19 pandemic is truly a scourge to humanity. The death toll exceeds 100,000. Millions more are infected. Fatalities continue to mount. The virus is especially vicious against the elderly and those with pre-existing conditions (mercifully leaving the young largely unharmed). From Wuhan to Lombardy to New York, any corner of the world can be the next epicenter.
Even now, medical experts are still in the dark on its potency (with modelling estimates ranging from conservatism to optimism):
Meantime, governments are struggling to contain the lethal pandemic. The immediate goal is to ‘flatten the curve’ i.e. slow the spread of viral infection to prevent hospitals from being overwhelmed (suppression). To this end, the most drastic measure is imposing a lockdown.
By the end of March 2020, one third of the global population — over 100 countries worldwide — have been put under full or partial lockdown.
However, lockdowns disrupt many facets of our lives. International travel is restricted. Offices, schools and shops are closed. Everyone must hole up at home. Anyone tested positive is quarantined for 14 days, even if healthy and asymptomatic. Disobedience entails fine or imprisonment. This inevitably raises an uncomfortable moral dilemma — to what extent should the majority suffer to protect the minority?
The stark reality is that not every society can afford to endure a prolonged lockdown. What if a vaccine comes too late? What if the fallout leaves a far more devastating impact? Fragile economies may collapse. Destitute masses may take to the streets. Sparks of civil war may catch fire.
Over time, our leaders may start to consider alternatives that are unthinkable now. The much-maligned mitigation strategy once taken by the UK before the estimated cost of lives became unbearable — to allow the coronavirus to spread freely among the populace to build ‘herd immunity’ — may seem rather appealing, after all.
Ultimately, governmental policies to tackle this unprecedented health crisis are grounded on science and economics. Nevertheless, international human rights law provides a useful framework to weigh the complex competing variables at stake.
II. THE TEST OF NECESSITY AND PROPORTIONALITY
The key international human rights treaty is the International Covenant on Civil and Political Rights (ICCPR). The body entrusted to monitor its implementation is the Human Rights Committee (HRC). Three regional human treaties also merit attention: European Convention on Human Rights, American Convention on Human Rights, and African Charter on Human and Peoples’ Rights. Each region has its own court of supervisory jurisdiction to hear complaints from individuals against Member States.
It is trite law that any restriction to an individual’s human right must fulfil the three-part test of legality, necessity and proportionality:
The limb of legality revolves around statutory construction and due process. Since our inquiry is on the efficacy of lockdowns as a matter of policy, our focus only centres on the last two limbs.
A. Protection of Public Health and Right to Life (Necessity)
The ICCPR recognises two broad types of legitimate aims:  protection of national security, public order, public health of morals; and  respect of the rights or reputation of others.
1. Public health
According to the Siracusa Principles, the ‘public health’ exception allows States to take measures ‘dealing with a serious threat to the health of the population or individual members… specifically aimed at preventing disease or injury or providing care for the sick and injured’.
In 2007, the WHO issued a guidance note on the involuntary detention of patients for tuberculosis in step with the Siracusa Principles:
‘In this regard, if a patient wilfully refuses treatment and… is a danger to the public, the serious threat posed by XDR-TB means that limiting that individual's human rights may be necessary to protect the wider public. Therefore, interference with freedom of movement when instituting quarantine or isolation for a communicable disease such as MDR-TB and XDR-TB may be necessary for the public good, and could be considered legitimate under international human rights law. This must be viewed as a last resort, and justified only after all voluntary measures to isolate such a patient have failed.’ (emphasis in original text)
On 3 March 2020, the WHO declared COVID-19 as a pandemic (the first time ever for a coronavirus) and a ‘public health crisis’.
2. Right to life
As affirmed by the HRC, States have a positive duty to protect life i.e. taking appropriate measures to address general conditions in society posing direct threats to life, such as the prevalence of life threatening diseases (e.g. AIDS, tuberculosis, or malaria). This includes ensuring immediate access to essential goods and healthcare services (e.g. food, water, shelter, sanitation, and emergency health services and response operations).
In Lopes de Sousa Fernandes v Portugal, the European Court of Human Rights (ECtHR) observed that such duty is breached where there is a ‘systemic or structural dysfunction’ in a State’s healthcare regulatory framework resulting to denial of access to life-saving emergency treatment. However, the ECtHR also recognised that governments are typically faced with ‘difficult choices’ in the allocation of ‘scarce resources’ to different ‘worthy needs’.
3. Causal nexus
Hence, States are not only permitted but obliged to take measures to protect the public at large from the threat of COVID-19. However, our inquiry does not end there. The criterion of necessity cannot be met by simply invoking ‘public health’ and ‘right to life’. Instead, as opined by the HRC, a direct causal nexus between the measure and harm must be established.
The critical question is this — are lockdowns necessary to contain the spread of the outbreak?
Not necessarily so. State practice reveal divergent policies, driven by socioeconomic factors.
So far, some States still refrain from imposing nationwide lockdowns. A prime outlier is Sweden. Unlike its Nordic neighbours, the Swedish government merely exhorts people to practise social-distancing, with minimal restrictions. Such soft approach is perhaps workable in a high-trust society. In the East-Asian region — China, South Korea, Taiwan and Japan — governments have adopted a targeted approach i.e. rigorously tracking, testing, and treating the infected. Also, their good hygiene habits — such as wearing masks in public whenever ill — provide a natural defence.
For less developed States, lockdowns may not be a viable option. A standstill of economic activities would push people into poverty and starvation. Their shallow debt-laden coffers cannot afford a stimulus. Fortuitously, the outbreak has not ravaged fragile regions like Africa (perhaps due to their young demographic). Further, lockdowns may even be counter-productive. During the Ebola epidemic in 2014, Liberia’s lockdown of its capital, Monrovia, was lifted a few days later due to lack of public support and failure to stop transmission.
In short, a blanket lockdown is not a one-size-fits-all solution to contain the COVID-19 outbreak. Instead, it should only be imposed when the risk of viral infection truly becomes acute, and enforcement is feasible within the social climate.
B. Cost-Benefit Analysis (Proportionality)
Once the criterion of necessity is met, governments should next consider the possible far-reaching unintended consequences arising from a lockdown.
As observed by the HRC, the principle of proportionality dictates that restrictions must ‘be appropriate to achieve their protective function… the least intrusive instrument amongst those which might achieve the desired result… [and] proportionate to the interest to be protected’.
Indeed, the tricky part is balancing between two or more competing rights. The key freedoms affected by lockdowns are addressed in turn (in order of severity).
1. Freedom from torture or cruel, inhuman or degrading treatment
States are prohibited from subjecting any person to torture or cruel, inhuman or degrading treatment. Ill-treatment includes not only physical pain, but also mental suffering and psychological trauma (e.g. fear, anguish, or inferiority). For instance, restrictions on family visits during detention may amount to ill-treatment.
Ironically, the enforcement of lockdowns may put people in the way of greater harm.
First, makeshift quarantine centres are prone to overcrowding and lack sufficient food and proper sanitation, driving many occupants to escape. And who can blame them? The choice between ‘certainty of starvation’ and ‘lottery of infection’ is clear. Greater hardship awaits long-suffering migrants detained at immigration facilities notorious for deplorable conditions even during normal times, such as those in Italy and Greece.
Second, law enforcement authorities may resort to excessive force when arresting delinquents. In Kenya, a 13-year old boy was killed by a stray bullet, and three men were beaten to death by the police. In Uganda, women have been caned and forced to ‘swim in mud’, and a LGBT shelter was raided. Police brutality has been similarly reported in South Africa and Rwanda. Human rights groups worry that such draconian abuse of police powers may normalise after the crisis.
Third, danger lurks within households. Women are trapped together with abusive partners. Prolonged confinement heightens the volatility in relationships and level of stress. The murder of two young women in Spain and Italy has gripped international headlines. In France, calls to the national domestic violence hotline spiked by a third during the lockdown period.
Fourth, healthcare providers are faced with difficult choices indeed. Shortage of ventilators compel doctors to play God in deciding which patients to save, and which patients to be left for dead. Indirectly, non-COVID-19 patients bear the brunt of suffering, too. To reserve capacity for COVID-19 treatment and mitigate the risk of cross-infections, hospitals are scaling down their in-patient services and delaying elective treatment — even for cancer. In the long run, the overall quality of health may deteriorate.
2. Freedom of movement
Freedom of movement incorporates three distinct rights: (a) to move freely within the territory of a State; (b) to leave any State including one’s own; and (c) to remain and return to one’s home State.
It is common for States to enact public health legislations mandating the isolation of individual patients stricken with highly-communicable diseases. So long as efforts of rehabilitation are exhausted, involuntary detention is justified as a last resort.
However, a collective order for the public to self-isolate at home regardless of infection is a different kettle of fish altogether. The primary aim of a blanket lockdown is to restrict movement in order to reduce transmission of COVID-19. Yet, the question remains — are there no other less intrusive and more effective alternative measures to achieve such aim?
Theoretically, the answer is yes. One alternative is the ‘3T’ policy (trace, test, treat) adopted by South Korea, Taiwan and Singapore. The strategy revolves around tracking down persons in direct contact with infected patients, intensive continual testing, and provision of prompt and appropriate treatment.
Germany adopts the same strategy. This has reduced the rate of infection, and allowed its government to loosen restrictions when many parts of the world are still tightening theirs. A regional court even struck down a local travel ban to a popular coastal vacation spot during the Easter holiday weekend. Such decision is well-aligned with the notion that measures should not be overly broad, and least restrictive.
However, the common thread in these success stories is resources. Such approach is hard to pull off without advanced technology and well-integrated healthcare infrastructure; and even if executed, may not be fool-proof. Due to a sudden surge of infections among migrant workers in early April, Singapore has hastily changed track to impose a ‘circuit-breaker’ lockdown. A similar spike of non-imported transmissions in Tokyo and Hokkaido (despite a prior 26-day lockdown and reduction to one or two new cases per day) has forced Japan’s hand to impose a nationwide lockdown.
The unfortunate reality is that most developing countries lack such luxury of choice and margin of error. Where expensive alternatives are out of reach, they cannot be faulted for falling back on blanket bans i.e. lockdown. Desperate times call for desperate measures.
Further, many countries have tightened immigration controls, including China and the US. Under international law, any restrictions to transboundary movement must adhere to the principles of equality and non-discrimination. However, mere differentiation does not constitute discrimination, particularly where the criteria of differentiation is reasonable.
For instance, prohibiting entry of travelers due to ‘flight risk’ is arguably justified (e.g. the US blocking non-essential arrivals from Europe). In contrast, the mass expulsion and detention of African nationals in China appears motivated by stigma, especially considering Africa is hardly a COVID-19 hotspot. In short, measures aimed at people of specific ethnicity — regardless of their actual residence and travel history — is far likelier to be discriminatory.
3. Right to privacy
Everyone is entitled to be protected against arbitrary and unlawful interferences with their privacy. The scope of privacy encompasses three broad aspects: (a) personal (i.e. physical and psychological integrity); (b) territorial (i.e. living or public spaces); and (c) informational (i.e. self-determination over personal data).
Although lockdowns do not invade into our physical sphere of privacy, the modern methods of enforcement employed by governments may potentially intrude into our informational privacy.
Informational privacy relates closely with personal data protection. Governments must ensure that personal data of individuals are only received, stored, processed and disclosed – whether by public authorities or private actors – with the owner’s consent or authorization by law. Privacy extends over content data (e.g. letters and telephone conversation), as well as meta data (e.g. IP address and mobile phone GPS location). Whilst it may be tempting to dismiss the disclosure of meta data as trivial, the ECtHR in Big Brother Watch v the UK has astutely questioned this assumption:
‘For example, the content of an electronic communication… might not reveal anything of note about the sender or recipient. The related communications data, on the other hand, could reveal the identities and geographic location of the sender and recipient and the equipment through which the communication was transmitted. In bulk, the degree of intrusion is magnified, since the patterns that will emerge could be capable of painting an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with.’
To contain the COVID-19 outbreak, governments have employed three types of surveillance tools (in descending order of severity):
All such tools are complementary, not mutually exclusive, to lockdowns. However, it is perhaps no mere coincidence that governments deploying the second and third tools do not impose blanket lockdowns. More invasive tools are integral in effectively containing the coronavirus via a targeted approach (i.e. South Korea’s ‘3T’ strategy).
Indeed, even privacy-sensitive jurisdictions like Germany, Denmark and Australia are contemplating rolling out their own contact-tracing apps, whilst simultaneously loosening their lockdown restrictions. According to the ECtHR, secret surveillance is permissible so long as procedural safeguards are put in place to avoid arbitrariness and abuse, such as the requirement of prior judicial authorisation (ex-ante) and right of review before an independent supervisory body (ex-post). States must provide effective remedies for unauthorised surveillance i.e. recovery of personal data illegally obtained, rectification or erasure of data, and exclusion of evidence at trial. The snag, however, is getting tech companies (e.g. Apple) to play ball.
In short, privacy may be an acceptable trade-off for societies wishing to avoid lockdowns.
4. Right to manifest religion
Freedom of religion incorporates the right to manifest one’s religion in worship and practice. The scope of ‘worship’ extends to participation in rituals and ceremonies.
Once again, the balancing act between such right and public health very much depends on the (a) essentiality of the interest at stake; and (b) existence of alternative measures.
In Ve Tsedek v France, a Jewish association complained against the authorities’ refusal to grant a permit for ritual slaughter of cattle. The ECtHR held that regulation on slaughterhouses are justified to preserve hygiene, and noted that supply of kosher meat could still be procured from Belgium. Hence, their freedom of religion was not violated.
In ACHPR v Kenya, the Ogiek indigenous community complained that their eviction from the Mau Forest denied access to their spiritual home and ancestral burial ground. Since there were less onerous measures available to ensure their burial practices accords with public health requirements (e.g. sanitisation campaigns), the African Court of Human Rights held that the eviction violated their freedom of religion.
Should religious sites be spared from lockdown? Common sense says no. Since respiratory viruses can spread through droplets, airborne transmission of COVID-19 is possible. One does not need to be an epidemiologist to know that massive crowds in confined spaces heightens the risk of viral infection.
The Daegu outbreak in South Korea spawned from a Christian church. Major clusters mushroomed in India, Pakistan and Malaysia due to gatherings of the infamous Tablighi Jamaat Islamic sect.
Most governments make no exceptions to religion during lockdowns — and rightfully so. Friday prayers at mosque have ceased. The Pope delivered his Easter homily in an empty St Peter’s Basicila usually witnessed by tens of thousands thronged outside. Most religious communities are amenable with the temporary suspension of public worship.
Nevertheless, all over the world — from Israel to Iran to India — there will be ultra-orthodox sects hell-bent on flouting restrictions. If proportionality is to be assessed by subjective societal standards, rational thought may not always prevail over religious zeal.
5. Right to peaceful assembly
Lastly, every person has the right to assemble peacefully. However, such right takes the backseat when lives are at stake. As noted by the HRC, restrictions during ‘an outbreak of an infectious disease’ falls under ‘public health’. In Cisse v France, the ECtHR found that the authorities were justified in forcibly evacuating illegal immigrants on hunger strike in a church due to their health deterioration and lack of sanitary facilities.
Even without stringent lockdowns, governments prohibit public gatherings over a certain limit to stem the spread of COVID-19 (e.g. Sweden: 50 people). The WHO provides a useful qualitative test to define ‘mass gathering’:
‘High profile international sporting events such as the Olympics or World Cups as well as international religious events such as the Hajj count as mass gatherings. However, lower profile conferences and events can also meet WHO’s definition of a mass gathering… if the number of people it brings together is so large that it has the potential to strain the planning and response resources of the health system in the community where it takes place. You need to consider the location and duration of the event as well as the number of participants. For example, if the event takes place over several days in a small island state where the capacity of the health system is quite limited… even an event with just a few thousand participants could place a big strain on the health system and then be considered a “mass gathering” event. Conversely, if the event is held in a big city in a country with a large, well-resourced health system and lasts just a few hours, the event may not constitute a “mass gathering” event.’
Indeed, the worsening crisis has led to a spate of cancellation or postponement of major events in sports (e.g. Tokyo Olympics), music (e.g. Coachella) and entertainment (e.g. San Diego Comic-Con) scheduled this year. This can deal a big blow to the livelihoods of local communities (e.g. San Diego city stands to lose about $150 million of annual revenue from Comic-Con’s cancellation for the first time in 50 years). In liberal societies such as the US, people even stage protests against lockdowns!
What about political rallies? Logically, the chance of convergence is low. Political activities in any area gravely stricken by COVID-19 will naturally grind to a halt. Where an entire nation is in lockdown, Parliament should go into recess (e.g. the UK). Likewise, the executive should be focused on COVID-19-related affairs during this period.
Of course, some governments may seize this opportunity to bulldoze their political agenda. In Poland, the tabling of an anti-abortion bill sparked a brave street protest in defiance of lockdown restrictions (the protestors prudently kept a 2-metre distance). If governments blatantly extend and abuse their emergency powers to stifle political dissent, calls for the right to peaceful assembly will indubitably hold greater sway.
In any event, as the outbreak recedes, governments should permit public gatherings to be conducted in accordance to WHO’s recommendations.
Suppression or mitigation? Save lives or save livelihoods? To lockdown or not to lockdown?
For now, there is no clear pathway to navigate through this COVID-19 conundrum. Governmental policies are formulated out of urgency, not certainty. So long as scientific and socioeconomic variables remain in flux, no definitive equation can be reached.
Still, international human rights law provides a useful formula to test such variables. Thinking in terms of necessity and proportionality facilitates sound policy-making.
Are lockdowns an effective cure to our short-term suffering?
Even if so, will lockdowns end up as a cure worse than the disease itself in the long run?
These are not abstract philosophical musings. Instead, they keep us vigilant for pitfalls, as we venture deeper into the unknown. A single misstep may scar societies for years, if not decades. The greatest tragedy is to step out of a pandemic, only to land into pandemonium.
Lives will be lost. Rights will be curtailed. Sacrifices will be made. The sooner we accept that trade-offs are inevitable, the sooner we can espy the safest escape route out of our painful predicament.
After all, lockdowns are only a stopgap measure, not an exit strategy. Once lifted, a second or third wave may hit our shores again. Lockdowns may be enforced, loosened, lifted, and reinstated – in a seemingly endless cycle. Vaccine or no vaccine, many developing States have little choice but to ride the wave, in order to avoid an economic shipwreck.
It is naïve to pretend that all States can stand in solidarity on equal footing. Some States have stronger legs, but some are pink-faced infants on their hands and knees, still learning to crawl. If the adults in the room like the US, France and China are constantly bickering and jabbing fingers at each other, what hope is there for international cooperation?
That is not to say that governments should mind their own business. Rather, the point is for world leaders to keep an open mind, appreciate that different communities face different hardships, and exchange views free from cultural bias. Diversity strengthens solidarity. EU’s step back from the brink of fracture in promising a €500 billion rescue package and offering a ‘heartfelt apology’ to Italy are positive signs of political will. The G20’s suspension of debt payments due from impoverished nations, especially in Africa, is an admirable gesture of generosity.
Ultimately, the remedy to COVID-19 comes down to two very simple questions.
What is the end-game?
How do we reach our end-game?
Lockdown or no lockdown, we need to start planning our end-game now.
Written by Mr Raphael Kok, an alumnus and mooting coach of University of Malaya.
Edited by Peh Qi Hui.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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 International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
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 General Comment No. 34 ; General Comment No. 36 ; General Comment No. 27 , .
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 A.A. v Greece App no. 12186/08 (ECtHR, 22 July 2010) -; Rahimi v Greece App no. 8687/08 (ECtHR, 15 December 2016) -.
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 ICCPR, art 12(2); ECHR Protocol No. 4, art 2(2); ACHR, art 22(2); ACHPR, art 12(2).
 ICCPR, art 12(4); ACHR, art 22(5); ACHPR, art 12(2).
 Public Health (Control and Disease) Act 1984 (UK), s 45G.
 Ng’Etich v Attorney General Petition No. 329 of 2014 (High Court of Kenya) -.
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 See footnote 91 .
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