An infectious disease pandemic can cause an emergency that “threatens the life of the nation”. Pandemics not only threaten the life and health of a potentially large number of the people living in a country, but can also put a strain on medical services and other services essential for the normal functioning of society. Therefore, states can respond to pandemics by putting certain restrictions in place that derogate from human rights to limit the spread of the disease.
Derogation and emergency measures
A government may attempt to limit the spread of a disease in many ways. During the COVID-19 pandemic, states adopted a number of measures that restricted the right to private and family life, freedom of assembly, freedom of movement, the right to liberty, the right to education and other rights. Among the measures were lockdowns, curfews, bans on large and small gatherings, the suspension of visiting rights at prisons, hospitals, retirement homes, an obligation to wear masks or other protective equipment, the suspension of in-class learning at schools and universities, full or partial closures of restaurants, shops, cinemas and other public places and other measures.
example During the COVID-19 pandemic, some countries submitted declarations of derogations from the European Convention on Human Rights, providing notification that the government was suspending in-class learning at schools, restricting the access of third parties to hospitals, social care institutions and places of detention, cancelling and prohibiting all public events, meetings and gatherings, as well as restricting the movement of persons. The application of these measures derogated from Articles 8 (right to a private and family life) and 11(1) (freedom of assembly), Article 2 (right to education) of the Protocol to the Convention, and Article 2 of Protocol No.4 (prohibition of the expulsion of nationals) to the Convention.
Necessity and proportionality
During pandemics, especially if a disease is new and its effects and spread patterns are unknown, states generally have considerable freedom to decide the types of measures that need to be taken to tackle the crisis. However, as it is with all measures derogating from human rights, they need to be strictly required by the exigencies of the emergency. This means that they must comply with all the legal requirements for a derogation to be valid, including necessity and proportionality.
Decisions on adopting new measures need to be carefully assessed, considering all the information available to the government, including whether the proposed measures will be effective and whether there are less restrictive alternatives for achieving the same result. In adopting restrictive measures, the government must also assess whether the measures are discriminatory or constitute unjustifiable unequal treatment.
Read more about legal requirements.
Common restrictions
In response to pandemics, states may commonly restrict the right to a private life and aspects of fundamental freedoms that involve large gatherings, such as freedom of assembly. States may also restrict the movement of people to limit the spread of disease across states or regions.