Restriction and Protection of Human Rights in Public Health Emergencies

Abstract

The pandemic has shown the balance and conflict existing between societal and individual actions. The aim of this article is to investigate the legal and ethical parameters that lend themselves to the promotion and restriction of human rights in times of public health policy implementation. This applies not only to the COVID-19 pandemic, but also to all other situations related to various outbreaks of diseases, which happened in the beginning of the 21st century. The pandemic has given rise to a new round of discussions about the system of human values and at the same time prompted awareness of the need for proportionality of rights. On the one hand, the international community and national states have the right to all kinds of restrictions on human life. On the other hand, there are the rights of every person to freedom of movement, communication, organization of work and recreation, legalized by the same international community. Considering the aim of the study, the authors focused on the following questions: (1) What are the main norms of international human rights law related to the protection of public health? (2) How did domestic legal norms strive to preserve human rights and public health during the pandemic? (3) What are the most important problems and shortcomings identified in the current legal norms? (4) How can we achieve a more systematic understanding of how applied public health measures will not exacerbate human rights violations? A comparative analysis of international human rights law, national constitutions and emergency management (EM) legislation was carried dating from 2006–2022 across 50 countries. The principle of proportionality was applied, which supposes achieving a balance between conflicting interests, weighing them in the light of their comparative social importance and preventing the consequences of large-scale restrictions on freedom. However, the reconciliation of competing interests takes place by defining the limits of the relevant rights, which allows for the possibility of restricting rights in order to protect the rights of the majority of citizens and requires the validity of such restrictions. As a result, the following conclusions were made: (1) irrespective of how insignificant a health policy restriction may seem ‘limited’ rights clauses will push for most jurisdictions enabling restrictions; (2) natural justice and fair trial provisions are now important factors during states of emergency; (3) populations that are at high risk are more than often more prone to additional rights abuses; (4) judicial independence and empowerment are deemed necessary but often do not exist. The article argues that a more differential and contextual understanding of public health powers and human rights laws will be warranted. It outlines a specific decision-making approach encompassing a rights-proportionality test to assist in performing law-making and judicial review. The theoretical contribution aims at promoting more effective management of competing values during an emergency period. The legal consequences and relevance of the study suggest providing specific advice for the practitioners such as lawmakers, judges, and medical administration. After legal research, researches should analyze what influence the law has on healthcare quality and the level of healthcare rights.