Human Rights Day – Groundhog Day? Since the adoption of the Universal Declaration of Human Rights in 1948, questions surrounding the nature and applicability of human rights have basically remained the same: What are human rights, how do they work and do they work for all? Despite some disagreement, from an academic perspective the answer to these questions is straightforward: They establish justiciable claims for every human being to be protected from arbitrary interference in personal interests and the personal sphere by states and other actors. At the same time, human rights create corresponding negative and positive obligations, primarily for states, to respect and fulfill human rights. The COVID-19-pandemic has, however, revealed remarkable misconceptions among politicians and the public alike on the purpose, role and functionality of human rights. This has resulted in some sort of “human rights populism” and the abuse of human rights as a propaganda tool to support ideological agendas even if these have a history of contradicting human rights.
COVID-19 has revealed weaknesses in human rights protection and exacerbated preexisting inequalities, mostly affecting vulnerable groups and minorities. Equal access to healthcare (e.g., unequal vaccine distribution), high-quality hospital treatment, education (e.g., lacking IT infrastructure), subsidy schemes to overcome economic hardships, among others, are inherently connected to human rights. Therefore, various hardships relate to the non-implementation of a human rights informed agenda pre-COVID.
2020 and 2021 have seen unparalleled measures restricting human rights in Europe and around the globe in the name of combatting COVID-19. State responses based on epidemiological considerations and often decided in an ad-hoc manner have had strong human rights implications. Restrictions of human contact (e.g., limiting of visits in hospitals and care facilities), limitations of public gatherings, closures of schools, shops and restaurants, just to name a few, interfere in core aspects of human rights, including the free movement of persons, the right to respect for private life, the right to education, and freedom of assembly. At the same time, state responses need to be viewed in light of the positive duty to protect populations’ lives and health, and along with it the functioning of the state.
Undoubtedly, these developments and state measures have led to the discovery of human rights as a basis to express disagreement with public policies and the handling of the pandemic among people that might have been critical of human rights before or are in other contexts. Human rights have gained an unknown momentum and are now utilized by a wide spectrum of people with the most different backgrounds and (political) opinions. Discontent with and disappointed by anti-COVID-19 measures, protestors use human rights to substantiate the perceived unlawfulness of state actions. While references to human rights in public discourse are per se to be favored, the aforementioned discourse seems to be guided by distorted perceptions of the purpose and function of human rights.
It is beyond the scope of this blog post to assess specific state responses or their legality from a human rights perspective. On the occasion of International Human Rights Day, we rather reflect on this new “human rights awareness” and its fallacies, stressing the importance of and making a case for public policies that strengthen human rights education, foster solidarity and underline the universality of human rights. We use two examples of errant perceptions of absoluteness of (parts of) human rights guarantees and the relativity of their exclusive applicability to certain groups of persons.
Human rights are not absolute. States can – and even must in terms of positive obligations – limit the human rights of individuals to protect the rights of others or society at large. In a democratic system, such limitation must be prescribed by law and need to correspond adequately to specific reasoning, e.g. the protection of public health. Law-making must include a review of the measures’ impact, as well as a reasoning based on factual evidence regarding its necessity, adequacy, aim and balance vis- à-vis other rights and interests of the state. Furthermore, states can derogate from human rights obligations for a limited period of times in case of national emergency. Importantly, judicial remedies with regards to such limitation or derogation must be accessible and adequate for those affected by the measures.
In light of this, present narratives seem to distort the nature and functioning of human rights. Claims about a perceived abolition of human rights often made at public demonstrations or online, are in themselves expressions of the enjoyment of human rights, and hence seem absurd in the first place. Such claims fail to reflect the nature of human rights. They are rather an expression of a selective, individualistic understanding ignoring the collective dimension and balancing function of human rights that enables social coherence and helps to overcome inequalities in which societal conflict is often rooted.
It is beyond doubt that measures taken to safeguard public health, e.g. compulsory vaccination, interfere with the rights of the individual, with the physical integrity and the right to respect for private life. However, referencing the European Court of Human Rights (ECtHR), these individual rights may be limited, hereby protecting the population not only in the epidemiological sense, but also persons’ right to the full enjoyment of other rights – e.g., to education, to a functioning healthcare system, or to freedom of movement and private life. Claiming one’s own human rights, blatantly disregarding the rights of others, hence shows a worrying lack of both understanding and solidarity.
In fulfilling their positive obligations towards everyone (!) under their jurisdiction, states enjoy a wide margin of appreciation, and “where […] a policy of voluntary vaccination is not sufficient […] domestic authorities may reasonably introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases.” Where the state does not forcefully subject persons to vaccinations, and where the criteria we outlined above are fulfilled – e.g., and importantly, the availability of judicial redress – claims about the abolition of the “right to choose for oneself”, whatever this may mean, are void.
3. Universality of Human Rights
Human rights are for everyone. It seems, however, that the described human rights discourse is limited to a small scope of human rights and addresses a narrow group of persons. Predominantly right-wing political parties invoke human rights exclusively for their – partly new – clientele, while accepting and even promoting human rights violations of those not “belonging”. The extent of the tragedies at the Belarussian-Polish border, in the Mediterranean Sea, or at the Greek islands show new dimensions of openly committed human rights violations. The practice to invoke human rights only in certain situations and for certain groups of people hollows out the universality principle. While in the case of the pandemic, the rights of the individual (who perceives COVID-19-measures as human rights violations) are invoked to outplay the interest and rights of the collective (i.e. public health), in case of migration, the perceived interest of the collective (i.e. national security) seems to outplay the interest of the individual (who seeks international protection). This twisting, turning and bending of human rights guarantees for political gains has a longstanding tradition, see e.g., the restriction of LGBTQIA+-rights in order to “protect” public morals. As confirmed by established case law, this selective, arbitrary and hypocritical “balancing” of rights and public interests has nothing to do with established human rights standards.
Challenge that require strong global responses rely, however, on an understanding of the universality of human rights and their collective dimension. Cases like Duarte Agostinho and Others v. Portugal and 32 Other States show that individual rights can indeed be invoked for the sake of collective interests and solidarity.
As part of their positive obligations, states must fulfil human rights. This includes human rights education, awareness raising and a corresponding public reaction to wrongful and distorted human rights claims. Information and facts are not only important to combat a pandemic. They are also essential in realizing the entirety of human rights for all.
About the authors
Lisa Heschl is Senior Scientist at the European Training and Research Centre on Human Rights and Democracy at the University of Graz (UNI-ETC). She received her Ph.D. in law from the University of Graz and holds a European Master Degree in Human Rights and Democratization (E.MA) and has been a Marie Curie visiting research fellow at the University of Deusto, Bilbao. Her research interest include the European migration and asylum policy and legislation, the extraterritorial application of international and European refugee and human rights law and its relation to European border policies. She is engaged in various research and educational projects dealing with human rights, migration and asylum (e.g. Erasmus+ PROMIG project; H2020 LEGIT) and has published widely in this field.
Gregor Fischer-Lessiak is researcher, lecturer, project manager and PhD candidate at the European Training and Research Centre for Human Rights and Democracy at the University of Graz (UNI-ETC). His legal research revolves around (European) human rights instruments, anti-discrimination, governance of online expression, and online hate speech.