Apocalypses rehearsal: what rights and freedoms remain after the Covid-19 crisis management?

In Soviet times, there was a popular anecdote. A stringent political commission is examining a Georgian guy willing to join the communist party. They say he needs to honestly answer three trial questions. First, they ask him: “We know, Georgia is Soviet Union’s leading wine producer and all Georgians are proud of their wine-making traditions, but will you be willing to completely refuse drinking wine if the communist party asks you to do so”? A Georgian “applicant” thinks for a while and then answers “yes” in a sombre voice.

They proceed: “We know Georgian men are energetic and love the company of beautiful ladies but would you be willing to reject all your girlfriends if the communist party requests you to do so”? “Yes”, says the Georgian, his voice getting even more sombre. “And finally, there is the last and the most difficult question: if you have to sacrifice your life for the sake of the communist party, would you be willing to do so?” Our Georgian man shouts instantly and with great enthusiasm: “Oh, yes! Surely, I will! Why would I wish to continue living such a miserable life?!”

This old joke has somehow become the most frequent reference point in my phone conversations with my mother during the months of quarantine lock down in Ukraine. We both remember well that the last time “one sixth of the world’s land” was on lockdown, it took around 70 years and millions of lives to “re-open” again – with the collapse of the Soviet Union.

This is, perhaps, the reason why I and some of my civil society colleagues in this part of Europe have been observing with fear and anxiety how unprecedented rights restrictions have been unfolding across the globe with the speed of light and no moment afforded for a proper discussion.

Mass surveillance that has been once the source of considerable concerns of many is now welcomed and glorified as the “best practice”.

Governments track infected people like terrorists^[1], trace your contacts and demand that a selfie of your sick and desperate face is shared regularly^[2] with an unidentified number of recipients in public authorities to confirm that you indeed observe self-isolation rules. Lawyers are cautiously questioning the legality and proportionality of such measures, but nobody seems to recognize that in the first place, these requirements neglect human dignity as an inalienable foundation of all our rights and freedoms.

Certainly, most of the rights are not absolute and could be legitimately limited if there is prevailing public interest in such measures. However, as we know, all limitations should be 1) prescribed by law; 2) pursuing legitimate aim (including inter alia public health protection) and 3) necessary in a democratic society.

For instance, necessity element is further explained in the case-law of the European Court of Human Rights through establishing the existence of the ‘pressing social need’^[3] to impose certain limitation to the right as well as through the notion that the restrictive measure applied should be proportionate to the aim sought^[4] and reasons adduced to justify interference with the right should be ‘relevant and sufficient’.^[5]

It is exactly this substantial criterion of necessity that is normally carefully investigated in each limitation case and should be in focus of public discussions of any policy measure – including the ones adopted as part of the emergency response.

There is also a derogation mechanism which is normally a part of the major human rights treaties^[6]. Derogation regime means that states are permitted to suspend some of their obligations under human rights instruments if a state of emergency requires them to do so. So far, in terms of the anti-Covid-19 measures, at least 9 states officially declared derogations from certain rights (mostly the right to liberty, the right to liberty of movement and the right of peaceful assembly) under ICCPR and 10 states officially declared derogations under European Convention on Human Rights.

Activation of the derogation regime should signify the existence of a threat to “the life of the nation”, a very high threshold, and even an armed conflict does not automatically create such a “public emergency”. It remains to be seen whether the current pandemic indeed threatened “the life of the nation” in each of the derogating states.

In this situation, freedom of expression and freedom of the media are being attacked from various “fronts”. First, the mere “postmodern” nature of the virus (while some people do not even notice they are being ill, others can develop serious conditions and die) combined with the political interests of foreign^[7] and domestic actors and globalised instant communications contribute to the massive, continuous and systemic proliferation of the “thematic” disinformation.

New word for the dictionary: Disinfodemic

UNESCO has already named it a disinfodemic^[8] phenomenon, and one of the widespread disinformation tracks is about discrediting professional journalists^[9]. Secondly, since the global media community has been reluctant for years to discuss the possibility of proportional and balanced regulatory solutions to disinformation, it is not surprising that now, following the immense public demand for “radical measures”, the disproportionate and clearly over-restrictive policy responses prevail.

Thirdly, it is increasingly risky for independent media to even raise the issue of rights restrictions (not to mention challenging the proportionality and effectiveness of the crisis responses) when they can be immediately shamed and blamed for “not willing to save lives” and endangering public security.

Only after some time since lockdowns were introduced, did international organisations start to track and inform about the human rights implications of the pandemic responses. Themes including rampant poverty and inequality, discrimination, surge in domestic violence, hate speech outbreaks etc.

Human rights actors now have to publish recommendations under titles like “How to Talk about Human Rights during Covid-19”^[10] – as if human rights had suddenly become an embarrassing topic for a credible conversation.

In his public lecture^[11] at Yale some years ago, my favourite historian, Professor Timothy Snyder talks about the notorious incident of the Reichstag fire as “a politics of emergency – an exception becoming the rule”. He said something along these lines:

“When the Reichstag fire comes again, we may not know… And it is not actually important who set the Reichstag on fire… Most important is how we would react to the similar incident”.

His words resonates now like never before. It is indeed not important whether Covid-19 is a “Wuhan virus”- but what is important is our reaction to its spread.

It is not the virus that is producing human rights consequences but our response to it that does. And while our immediate health concerns are understandable, we should also remember that the absence of rule of law and authoritarian regimes are well-known for their dramatically high death rates as proven by history on multiple occasions.

[1]https://www.haaretz.com/israel-news/.premium-israeli-coronavirus-surveillance-who-s-tracking-you-and-what-happens-with-the-data-1.8685383

[2]https://www.politico.eu/article/poland-coronavirus-app-offers-playbook-for-other-governments/

[3] D Bychawska-Siniarska, Protecting the Right to Freedom of Expression under the European Convention on Human Rights.A handbook for legal practitioners (Council of Europe 2017) p.44-45.

[4] D Moeckli, S Shah, and S Sivakumaran, International Human Rights Law (Oxford University Press 2014) p.112

[5]Zana v. Turkey App no 69/1996/688/880 (ECHR, 25 November 1997) para 51.

[6] Please see inter alia Article 4 of the International Covenant on Civil and Political Rights, ICCPR and Article 15 of the European Convention of Human Rights, ECHR; importantly, African Charter on Human and Peoples’ Rights, ACHPR does Not have a derogation mechanism.

[7]https://www.politico.eu/article/russia-china-disinformation-coronavirus-covid19-facebook-google/?fbclid=IwAR0AbHF26b0aJApdKXTWImp7Swxq_UzGUPPfAhvP-lGWwfuqbk9vGGBiHno

[8]https://en.unesco.org/covid19/disinfodemic?fbclid=IwAR1I81f76_uQLwJ3jGvlsfNOiz3inrMeLN6PWDWDgUR8vo4VZLvlWtEZj9c

[9]https://en.unesco.org/sites/default/files/disinfodemic_deciphering_covid19_disinformation.pdf page 6

[10]https://www.liberties.eu/en/campaigns/human-rights-under-corona-guide/366?fbclid=IwAR0cNmemFxn8w2pXRp_5uHrZfOniFjcsFgMXl_QODyJ-D4oGAnfFlfvbbrs

[11]https://www.youtube.com/watch?v=6nEmBmGK5kM&fbclid=IwAR2baa234RO68_DmFg58RV7MLcePkgdr_fTYiEcZBY16-Tv9WMf65ICsSso (starting at 35:55)