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 Organization (WHO) declared COVID-19 a pandemic on 11 March 2020, which was followed by many countries across the globe introducing harsh lockdown containment measures with severe wide-ranging interference with fundamental human rights.
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 a few.
A pertinent question arising from this scenario is whether the lockdown containment measures adopted by state parties exceed the limits of what is strictly necessary to combat the spread of an infectious disease.
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.
The doctrine of proportionality prescribes that all statutes and regulations that affect human rights should be proportionate.
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.
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.
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.
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.
- 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.
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-
- 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 impairment of the fundamental human rights.
The United Nations has urged countries to maintain human rights ‘without exception’ as they fight the COVID-19 pandemic.
By David Swanepoel
Recognition to Dr. Willem Van Aardt
DE REBUS– MAY 2021