COVID-19: the perpetual state of emergency

In an article published in the Financial Times on 19 March 2020, Yuval Noah Harari wrote about the world after coronavirus. In this dystopian long read, which I recall reading solemnly the day it was published, Harari predicted that emergency measures taken by governments to prevent the spread of the virus were likely to become a fixture of life, staying in place long after the fear of the virus had passed. He warned of government surveillance measures, like track-and-trace technology – that was only just being implemented in China and hadn’t yet made its way across the Atlantic – morphing into a future of biometric bracelets serving political purposes, North Korea-style, with COVID-19 prevention a distant memory.

Almost 18 months later, we do not yet find ourselves living under that level of authoritarian control, at least not in the UK. But the world Harari was envisioning may be well on its way. By the end of 2020, 108 countries globally had declared a 'national state of emergency'; a declaration that would allow them to take certain actions to combat the pandemic that would otherwise be contrary to their national laws, such as tracking people's movements or imposing quarantine restrictions.

The declarations were not only domestic. Internationally, ten European countries invoked Article 15 of the European Convention on Human Rights (the “ECHR”), ten Latin American countries invoked Article 27 of the American Convention on Human Rights ("ACHR") and at least 14 countries worldwide invoked Article 4 of the International Covenant on Civil and Political Rights ("ICCPR"). These are the emergency clauses found in each of these human rights treaties, that parties to the treaty can invoke when they no longer intend to comply with their human rights obligations.

Governments who have signed up to these treaties have an obligation to respect the fundamental rights of their people. But the treaties recognise that sometimes, in exigent circumstances, such as in times of war or national riots, it may not be possible for a government to do so. To prevent governments from being in breach of their obligations in such circumstances, which would otherwise leave them at risk of being sued, most human rights treaties contain emergency clauses, such as Article 15 of the ECHR, which states:

1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

Article 27 of the ACHR and Article 4 of the ICCPR contain similar wording.

Imposing stay-at-home orders and other quarantines or curfews, and tracking people’s mobile phones and movements, by their nature violate the right to privacy and the freedom of assembly. As a result, governments face being in breach of their international obligations unless they invoke the applicable emergency clauses. This does not mean all governments have chosen to do so. The UK, for example, has imposed several of these limiting measures while neither notifying the Council of Europe nor the UN Secretary-General of its intention to derogate from its international obligations.

While Article 27 of the ACHR requires the emergency measures to be temporary (“…it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation…”), Article 15 of the ECHR and Article 4 of the ICCPR do not. And while some of the countries who initially notified the Council of Europe of their intention to invoke Article 15 have now confirmed that they are no longer in a state of emergency, others have not, and are still within their legal rights to limit the human rights and fundamental freedoms of their people, all for the proclaimed purpose of protecting public health.

So how long can this go on and what will it lead to? International courts are generally reluctant to make judgments as to the appropriateness of emergency measures taken by governments in a state of emergency. The European Court of Human Rights explained in Sahin Alpay v Turkey that “it falls to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency…By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it…”.

On the other hand, in that case, the Court did find that a 16-month detention without trial violated Mr Alpay’s freedom of expression. Mr Alpay is a journalist, known as a government critic, who had been arrested and detained without trial. Since Turkey had invoked Article 15 due to a military coup in the country, described as a state of emergency, it argued that it was justified in derogating from its obligations under the ECHR, including the freedom of expression. Despite a Turkish Constitutional Court deciding that Mr Alpay should be released, the Turkish authorities refused to release him. It was on that basis that the European Court decided that the continued detention without reasonable suspicion, despite a Court judgment to the contrary, could not be considered “strictly required” by the exigencies of the situation. It is notable that it was mainly because of the Turkish Constitutional Court’s decision that the European Court reached its conclusion and found against Turkey.

The biggest Achilles heel for public international law, as any international lawyer will know, is that there is no global government to make laws for the individual governments to follow – international laws are made by the governments of countries, and each such government can choose whether it wishes to sign up to a treaty or not. And while there are international courts, there is not a global police force that can enforce rulings by such courts, even when they do find against a country. All we have is diplomacy and sanctions.

For so long as COVID-19 is still around, which may very well be forever, it is hard to imagine anybody sanctioning a country for taking measures purportedly implemented to ‘contain the virus’, or ‘prevent the spread’, unless, for example, a national court was to find otherwise. That seems particularly unlikely in the circumstances. Just a few months ago, the High Court in London dismissed a claim brought by two hospitality executives against the UK government for keeping pubs and restaurants closed for indoor service for five weeks between 12 April 2021 (when restaurants and pubs were allowed to open outdoors) and 17 May 2021 (when they were finally allowed to open indoors), on the basis that the government decision reflected the ‘best scientific evidence available at the time’. Without proper controls in place, an eroded rule of law – the concept by which nobody, not even governments, are above the law – may be imminent.