Positive Obligations to Protect against Epidemic Outbreaks under Human Rights Law
Published online by Cambridge University Press: 22 February 2022
Summary
ABSTRACT
The interplay between human rights law and emergency situations is generally understood in terms of negative obligations, that is, duties not to restrict rights in an unnecessary or disproportionate manner when implementing emergency response measures. This contribution argues for the importance of also looking at positive obligations, as duties to take active steps to protect in all phases of the emergency management cycle, from prevention and preparedness to response and recovery. It first outlines the content of positive obligations applicable to emergency situations as identified by the United Nations (UN) human rights Treaty Monitoring Bodies and Charter-based mechanisms and by the jurisprudence of the European Court of Human Rights (ECtHR). It also briefly discusses the interaction of requirements under human rights law with obligations enshrined in other branches of international law specifically governing epidemic outbreaks, such as the International Health Regulations (IHR). Public health measures adopted in Europe against the current pandemic outbreak are then assessed through the lenses of positive obligations and major gaps are identified. Some concluding remarks are offered on the role of positive obligations under human rights law to protect against emergency situations.
INTRODUCTION
At some point during the latter part of 2019, a new strain of coronavirus started to infect people in Wuhan, the 11-million-person capital of the Hubei province in central China. From the days when Chinese authorities notified the World Health Organization (WHO) about the first cases, the situation rapidly deteriorated so that the outbreak was first declared a Public Health Emergency of International Concern (PHEIC) under the terms of the International Health Regulations (IHR) on 30 January 2020 and a pandemic outbreak on 11 March 2020. After more than a year, the outbreak's implications for international law continue to be widely debated, including in the human rights field, where debates have mainly focused on assessing the admissibility of restrictions of rights and freedoms imposed by public authorities to address this unprecedented situation. The traditional way of looking at human rights implications of emergency situations is indeed to consider negative obligations, that is, states’ duties not to impact on human rights in a disproportionate or unnecessary manner when adopting and implementing emergency response measures.
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- Information
- European Yearbook on Human Rights 2021 , pp. 51 - 80Publisher: IntersentiaPrint publication year: 2021