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31 March 2020

In a new age of emergency laws, human rights are more important than ever

A pandemic generates precisely the kind of instability and fear which has historically been used to suppress civil liberties.   

By Adam Wagner

As we keep saying to each other, these are strange times, as well as anxious and sometimes frightening ones. But they are not unprecedented. We have endured similar struggles before. And there is no point flailing in the dark if we can learn from the wisdom of our forebears.

In the three decades between 1915 and 1945, the world experienced a flu pandemic which killed an estimated 50 million (the 1918-20 “Spanish flu”), the Great Depression, two world wars, and mass genocides. Whilst our current crisis is undoubtedly severe, in terms of the effect on public health and personal freedom, we are thankfully not yet approaching the misery of the 20th century. 

Chaos is by definition unpredictable. It is easy, however, to predict how our societies respond to it. We put up walls, close in on ourselves and turn on each other. The modern human rights framework was established after the Second World War precisely because people witnessed how fragile liberal democratic societies are when faced with existential crises. 

In 1949, Pierre-Henri Teitgen, a French resistance fighter and a founder of the European Convention on Human Rights, remarked of personal freedom: “[European citizens] became used to it as to the air they breathed – with the result that they did not perhaps esteem it highly enough.” So when fascism and communism descended, “they found us relaxed, sceptical and unarmed”. Europe needed a war and, for some, enemy occupation, “to make us realise afresh the value of humanism”.

Thankfully we are not at war, but the Covid-19 pandemic has touched each and every one of us already, whether through illness, death or the unsettling impression that our personal freedoms are being eroded, even if for a good cause: to save life. The very fabric of our society, woven from our ability to gather and socialise in physical proximity, is becoming frayed by enforced isolation. Each time we leave the house there seems to be a new restriction and an ever-increasing atmosphere of unease and mistrust. 

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That is the similarity. The authors of the Universal Declaration of Human Rights and other key human rights treaties, well understood the danger of the breakdown of social structures and the steady erosion of individual liberties in the face of a crisis and in the name of “emergency powers”. Hitler himself used such measures, including the 1933 Reichstag Fire Decree, to suspend civil liberties guaranteed by the German constitution, leading inexorably to the destruction of German democracy.

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The wisdom of Teitgen’s approach, along with other founders such as the then-Conservative home secretary David Maxwell-Fyfe, was to distill the essence of human dignity into a set of fundamental rights, which would ultimately be agreed by most of the world’s states through the Universal Declaration and European Convention. Without those rights we are not wholly human and cannot flourish. Today they can act as a safety net: a checklist to place against our response to even the gravest crises. 

Covid-19 is a genuine emergency. It is also one which human rights treaties anticipated, partly through their proximity to the Spanish flu and other pandemics. The right to life is fundamentally important, as is the right to health contained in the International Covenant on Economic, Social and Cultural Rights. The right to liberty in the European Convention allows for exceptions in order to control the spread of infectious diseases. The rights to privacy, free speech and protest and freedom of religion can all be compromised if such interference is a proportionate way to protect public health. 

Human rights laws were not frozen in the 1940s. They have evolved into a sophisticated check and balance for the modern state. They developed a set of analytical tools which are well suited to calibrating responses to emergencies. For instance, in the case of austerity, the UN insisted that all measures which interfere with rights must be connected to a compelling state interest, necessary, proportionate, non-discriminatory, involve genuine participation of affected groups and individuals in decision-making processes and, perhaps most importantly, be temporary. These are all principles of good governance which can guide us through even the worst crisis.

A pandemic generates precisely the kind of instability and fear which has historically fanned the flames of illiberalism. It is predictable that in states such as Hungary, unscrupulous leaders will use the crisis as a means of consolidating power. As Teitgen said, “Evil progresses cunningly…  one by one freedoms are suppressed, in one sphere after another. Public opinion and the entire national conscience are asphyxiated… it is necessary to intervene before it is too late.”

It is also important to remember that we have a responsibility to look out for each other during a crisis. Contrary to popular understanding, the Universal Declaration makes clear that humans have duties to the community. As Eleanor Roosevelt observed, human rights begin in “small places, close to home”. In times of social distancing, human rights principles, by focusing on empathy and common ground, can bring us closer together.

In the UK, our liberal democracy has more or less remained liberal and democratic through immense crises, but that is thanks to the vigilance of those like Teitgen who view every suppression of freedom with healthy scepticism. Those sceptics tend to be unpopular, cast as irritating gadflies thwarting “strong leadership”, but we swat them at our peril. Parliament has just passed the Coronavirus Act 2020, an enormous increase in state power, swiftly followed by emergency regulations, produced in hours, giving the police the right to prevent people leaving their houses without a “reasonable excuse”. There have already been complaints that the police are exceeding their new powers. 

Now more than ever, we need to resist our natural inclination to uncritically back assertive actions which protect us from danger. We must constructively engage, critique, and ensure that as soon as material facts no longer support restrictions on particular rights, the restrictions end there. Human rights principles and laws are tools which are designed for precisely this moment. We should not be afraid to use them.

Adam Wagner is a human rights barrister at Doughty Street Chambers and the founder/chair of EachOther. He is writing in a personal capacity.