Herd Immunity and Lockdown: The Legitimacy of National Policies Against the Pandemic and Judicial Self-Restraint by the ECtHR

By Dr Vassilis P. Tzevelekos, Senior lecturer in Law, University of Liverpool School of Law and Social Justice; Editor-in-chief of the European Convention on Human Rights Law Review

The ongoing pandemic and the measures adopted to protect human life/health in response to the coronavirus seriously affect the enjoyment of fundamental human rights. The COVID-19 outbreak has led a number of states to derogate from their international human rights obligations. Other states have not (yet) formally derogated, but they have passed emergency legislation restricting rights through the usual means that are available within their domestic legal orders (for instance, regarding the author’s home country, see Karavokyris). This trend raises a number of interesting questions as to whether emergency laws amount to an unnotified, de facto derogation or whether states should declare a state of emergency (Greene, Scheinin). More generally, questions regarding the modalities (Istrefi, Holcroft-Emmess) and the lawfulness of derogations have arisen. Irrespective of whether restrictions to qualified/derogable human rights are made on the basis of a derogation clause contained in an international human rights instrument (such as Article 15 ECHR) or through the habitual route of ‘everyday life’ limitations, in both cases restrictions must ultimately satisfy the proportionality test. Proportionality is thus a common denominator. The primary argument within this note is that, when courts -particularly international human rights courts, such as the ECtHR- will be called upon to scrutinise the responses of national authorities to the pandemic and their impact on human rights, they will need to demonstrate self-restraint and give national authorities ‘space’ by recognising their margin of appreciation (i.e. discretion) to set their priorities and to establish their strategies against coronavirus. This limits judicial review as far as stricto sensu proportionality and the associated evaluation of the legitimacy of the aims of national measures are concerned, but not with respect to the suitability and the necessity parts of the test, which continue to apply as per usual.

Two extreme scenarios and their impact on human rights

To unpack this argument, we can consider two extreme scenarios. The first consists of swiftly taken, all-encompassing measures that essentially freeze social and economic life (i.e. compulsory, extensive lockdown) as a means to impede the spreading of the virus. The second extreme scenario is exactly the opposite, wherein a polity decides to take no measures that affect social and economic life, considering, on the basis of certain scientific input, that herd immunity can offer a better balance between life losses and economic life. In-between these two extremes, one can imagine a continuum of choices (e.g. ‘intelligent’ lockdown that only concerns targeted high risk social groups or certain types of social interaction) or even shifts in the strategy (e.g. moving from herd immunity to lockdown) if a government reconsiders its initial approach.

Each strategy has its own rationale and favours different priorities. The end of the spectrum that freezes social and economic life prioritises the protection of human life from the pandemic. This is a value judgment. This policy can result in less lives directly lost from COVID-19 (at least in the short-term), but it also entails cost. A ‘first layer’ cost is the restriction of human rights, such as movement, family, work, privacy, religion etc. A ‘second layer’ cost is associated with the economic impact of the lockdown. A paralysed economy does not only affect our property. It has manifold, far-reaching consequences (e.g. unemployment or impact on global supply chains and availability in the market of essential goods). Human rights are closely connected with the economy inter alia because all positive human rights obligations that a state has under (international/European) human rights law entail an economic cost. For instance, a state’s ability to protect property and offer security depends upon the availability of resources to run a well organised, trained and equipped mechanism (e.g. police, courts etc.). Human life is imminently threatened by COVID-19, but all other diseases and risks continue to exist. Running a public hospital, buying, repairing, equipping or even fuelling an ambulance costs money. Economic recession or, even worse, depression result in lower standards of human rights protection; thus, whilst lockdown policies are rescuing human lives from the pandemic, they also have a significant cost for human rights at the present time and, very possibly, in the future as well. In a sense, they ‘transfer’ the cost of the pandemic from certain social groups (e.g. more vulnerable people whose lives are at higher risk because of COVID-19) to other groups or to the general population and to the next generation, hoping (or calculating, if sufficient, correct scientific knowledge exists) that the overall number of life losses both directly and indirectly caused by COVID-19 will be lower in comparison to a policy that would involve a less restrictive lockdown or even no lockdown at all.

Vice versa, the other end of the spectrum (i.e. a herd immunity policy) puts human lives at higher risk directly because of COVID-19. Emphasis is placed upon the protection of the economy. This is a means to an end. This policy does not only minimise disruption to the market or to social life and to the enjoyment of fundamental rights. It also refrains from compromising -because of the impact of lockdown on the economy- the ability of national authorities to continue offering human rights protection to a degree as close as possible to the current one in the future. This also applies to the right to life and its continuous protection from threats other than the coronavirus. Although human rights losses directly caused by COVID-19 are not very effectively prevented by this policy, the society does not have to sacrifice other human rights to protect itself from the coronavirus. A ‘continue as normal’ or herd immunity policy protects those who are at higher risk from the pandemic less, whilst also having less of an impact upon other members of the society. The same argument can be made regarding people with other health conditions. Because of the increased demand for medical support by COVID-19 patients, people with other health issues risk receiving lower standards of medical treatment. A herd immunity policy can be detrimental for them, but favours other members of the society who are free to go on with their social and economic activities. Essentially, a polity’s ‘negligence’ to drastically protect from COVID-19 amounts to diligence for other human rights issues presently and in the future.

Stricto sensu proportionality and judicial self-restraint when assessing the legitimacy of the aims pursued by a policy against COVID-19

The purpose of this note is not to argue in favour of or against any of the policies vis-à-vis the pandemic. Stating that a long-lasting lockdown policy is not sustainable would not just be obvious, but also a cliché. The same applies with regard to the other truism. One cannot remain apathetic before death. A certain form of lockdown policy (even self-imposed lockdown) is as instinctive and as natural a stance as natural law is. Evidently, each policy has its own pros and cons, gains and losses. Ultimately, the shaping of a policy is a… policy question, which, ideally, ought to be informed by multidisciplinary scientific input -to the extent that such an input can offer accurate knowledge about the policy’s impact and future effects.

The key point in this note is that, from the perspective of human rights law, the two aforementioned extreme strategies against COVID-19 and the diverging directions to which they point are equally legitimate, thus in principle also lawful -provided that the other applicable requirements (such as suitability and necessity in the light of the circumstances that are specific to each human rights case) have been met. The two extreme policies briefly discussed here differ in their goals and in their effects; they reflect different priorities pertaining to stricto sensu proportionality and they stem from different value judgments that allocate the cost of COVID-19 to society differently. Yet, in terms of human rights law, they are both legitimate.

As such, whether one agrees or disagrees with these policies and their variations, they should be deemed to be compatible with human rights law, and particularly with the ECHR. As to the reasons why the ECtHR Judges should give leeway to the member states and to their policy makers to shape their respective responses to COVID-19, amongst other possible reasons, three can be highlighted. The first concerns the eternal debate on majorities versus principles in human rights law, the limits of judicial review, the definition of judicial activism and the broader questions of authority and legitimacy. Supposing that clear-cut answers to said questions exist, a blog note is not sufficient to examine them in depth. The second reason applies more to international instances, such as the ECtHR, than to national ones. The argument here concerns subsidiarity and the distance between Strasbourg and decision making at the local level. National judges are better situated to review the legitimacy of a policy, although the limitations that are inherent to the function of courts are applicable both at the national and at the international levels. The third reason concerns time. In principle, the ECtHR will be called to decide a case ex post facto, that is, when the effects of a policy against the pandemic will have been (to an extent) revealed and the situation will have been clarified and soberly evaluated on the basis of knowledge obtained through the study of the consequences of the policy. In contrast, governments fight a serious and lethal emergency, COVID-19, as it unravels, knowing that their decisions will have an immediate impact on society. They act without having the luxury of time and without having the scientific knowledge that will be available to the ECtHR Judges when they are called to exercise their functions. Of course, the ECtHR will have to abstain from taking into account any new scientific knowledge and must decide cases on the basis of what national authorities knew at the time of the emergency situation. It will, however, still be understandable if its members are implicitly and instinctively, even unconsciously, influenced by new scientific insights and/or the knowledge of the effects generated by the national policy at issue -particularly when what is at stake is human life. Governments face tragic ethical dilemmas at this very moment and offer real time responses to a very complex problem without having certainty as to whether their responses are optimal given the circumstances or that the outputs will be those desired. For their decisions and policies, they will be judged by history and -amongst other possible types of political accountability- by the hundreds of thousands or the millions of their voters in the next elections.

Judicial scrutiny: state fault for lack of diligence, necessity and abuse of rights

What are the consequences of the argument put forth in this note? In other words, what is left for courts -in particular for the ECtHR- if they assume the legitimacy of the aims pursued through the national policies against the coronavirus and leave it to the national authorities to set the priorities in the fight against COVID-19?

One consequence concerns the hypothetical scenario of an extreme herd immunity policy. Treating this as equally legitimate to an extreme and prolonged lockdown policy makes it difficult to find a violation of Article 2 ECHR on the basis of the alleged negligence of the respondent state to prevent the loss of life through extraordinary measures such as lockdown. This does not, however, discharge the state from its positive obligations. The ECtHR will be able to consider the other dimensions of the case within the broader context of the state fault test concerning lack of diligence. For instance, states which are not applying a lockdown policy still need to use their resources to the best of their ability to fight COVID-19. These positive obligations span from the duty to widely inform people under their jurisdiction and to advertise the means of prevention recommended by the experts (e.g. face covering and use of masks), to the duty to offer the best medical treatment that is possible given the circumstances and the means that are available, and the procedural limb of the right to life (e.g. effective investigation of the circumstances of life loss). As is known, positive obligations (i.e. due diligence) grant discretion to national authorities to choose amongst different suitable means that offer protection the ones that they wish to employ. A state may prefer to offer protection by means that do not include a(n extreme) lockdown policy. It shall then do the best that it can to offer the maximum possible protection through the pertinent means that it has chosen to employ. As argued by McBride, “[i]t may, of course be much easier to assess the capacity of the State to act than to judge which are the measures required to be taken, especially where there is conflicting medical and scientific opinion as to the best course of action to take.”

A second point to make is that the key argument suggested in this note does not mean that the testing of the suitability and, to a large extent, the necessity of any restrictions to human rights in light of the goals that the competent national authorities have set out to pursue will no longer occur. To give an example, if it is proven that surviving COVID-19 offers immunity, lockdown will no longer be justified with respect to persons that are immune to the virus and do not spread it. Another example, given by the Council of Europe Commissioner for Human Rights, Dunja Mijatović, concerns the use of digital tools, such as mobile phone applications to track citizens or perform contact monitoring (McGregor, Mendos Kuskonmaz and Guild, Siatitsa and Kouvakas Part I and Part II) as a means to trace the spreading of COVID-19. The legitimacy of the aim pursued can leave unaffected the other guarantees at issue. For instance, the measures under consideration should not be more intrusive than what is absolutely necessary to achieve the aim pursued and must cease immediately after such aim has been achieved. That being said, some clarifications are in order. The margin of appreciation that shall be granted by the ECtHR to the respondent state(s) could well only concern the legitimacy of the aims pursued by a policy, that is, the value judgments that underpin it and the ensuing trade-offs that it encompasses -not necessarily the necessity of the human rights restrictions associated with this policy (i.e. that a restrictive measure does not cause more harm that what is necessary to achieve its goals or that no less severe measures exist -for a critical analysis of the less restrictive means analysis in the ECtHR case law, see Lavrysen and the paper he co-authored with Brems to which Lavrysen refers; for some recent examples in Germany, see Hestermeyer). The ECtHR will then choose on a case by case basis how thorough or light-touch the test of necessity should be, and will proceed on the basis of necessity to mitigate the harshness and the adverse consequences of the restrictions or, more generally, fine-tune them with a view to ensure that a fair balance is maintained.

The third and final point is that emergency situations and the restrictions to human rights that they involve as a response are susceptible to abuses. Derogations from the ECHR can be abused, and this is something the ECtHR should sanction (Tzevelekos). The argument in this note calling for judicial self-restraint when assessing the legitimacy of the goals pursued by policies developed to fight the pandemic should not be read as preventing courts, in particular the ECtHR, from scrutinising national COVID-19 policies with a view to identifying whether member states act in bad faith and use the pandemic as a pretext to (predominantly, according to the Grand Chamber’s Merabishvili contentious criterion regarding Article 18 ECHR) pursue ulterior, illegitimate aims. In this respect, the example to give is that of a government within an illiberal democracy exploiting the pandemic emergency to escape judicial and/or parliamentary control (Kovács, Drinóczi and Bień-Kacała, Scheppele, Uitz).

 

The author is thankful to Dr Aris Georgopoulos, to Dr Dimitrios Kagiaros and to Dr Laurens Lavrysen for their comments.

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s