Fundamental Rights and the COVID-19 Pandemic WJP Policy Brief
Fundamental Rights and the COVID-19 Pandemic WJP Policy Brief

Problem Statement
 

The World Justice Challenge 2021: Advancing the Rule of Law in a Time of Crisis seeks to identify, recognize, and promote good practices and effective projects and policies that protect and advance fundamental rights and non-discrimination in this time of unprecedented crisis.

The COVID-19 pandemic is intensifying restrictions on a wide range of fundamental rights, which form a key pillar of the rule of law. This comes at a time when, according to the World Justice Project Rule of Law Index, more countries have regressed on their 'fundamental rights score' than any other rule of law factor over both the last year and the last five years. In addition to the dramatic effects of quarantines and lockdowns on freedom of movement and travel, the pandemic is affecting human rights in four areas of particular concern, each examined below.

 

Equal Treatment and Non-Discrimination

The crisis is triggering some state responses that are discriminatory and unequal in their treatment of and effects on certain minority and/or vulnerable groups. Beyond structural discrimination, some governments have either neglected or deliberately discriminated against certain groups or sectors in their response to the pandemic, violating their rights and putting them at greater risk. Indigenous communities have been particularly hard hit by actions that fail to address their particular vulnerabilities. Migrants, asylum seekers, and other displaced persons also face discriminatory treatment as government forces seek to use the pandemic to further control their movements and restrict their rights wherever possible. Finally, the stigmatization of groups perceived as responsible for spreading the virus has been a consistent problem throughout the world. 

While enforcement of quarantines and lockdowns has varied widely across jurisdictions, some governments have deployed excessively harsh measures, including security forces using repressive and violent tactics, to enforce strict rules regarding curfews and gatherings. These measures have fallen disproportionately on racial and ethnic minority groups, indigenous and rural communities, low income, marginalized, the homeless, people with disabilities and LGBTQI+ communities, many of whom have little to no option for their shelter or livelihoods but cramped group housing or informal markets. 

Finally, women and girls, who face higher risks of domestic violence or who need reproductive health services, are also directly affected by being closed off from clinics and women's shelters.  
 

Freedoms of Expression and Assembly and Right to Information

Excessive infringements on core political and civil rights of freedom of expression and peaceful assembly are evident. Even in dire situations, restrictions on freedom of expression must be narrowly construed so as not to unduly impede the free flow of information, must have a clear legal basis to protect against arbitrariness, and be strictly necessary and proportionate to bring the public emergency to a close. In a few countries, health workers have faced arrest or administrative punishments on charges of allegedly "spreading false news" when they have publicly criticized their government's handling of the pandemic. While it may be appropriate to protect the information ecosystem from deliberate and verified attempts to misinform the public, some governments are selectively using enforcement of such laws against their critics in the media, civil society, or opposition political parties.

Moreover, sweeping measures restricting freedom of movement and limiting freedom of speech have had a particularly damaging effect on the media's ability to report on issues such as the pandemic and government responses to it. Without adequate protections for news reporting, including critical analysis and watchdog monitoring of official actions, societies are severely impacted not only in their ability to convey vital life-saving information about preventing spread of the disease but also in recovering from the long-term social and economic consequences of the pandemic.

Finally, the practice of limiting freedom of peaceful assembly under emergency laws has varied dramatically around the world. Authorities have responded appropriately in most cases, but in some countries acts of repression and arbitrary detentions have restricted the assemblies.
 

Right to Privacy

The public health requirements surrounding contact tracing in the digital age raise special concerns regarding the right to privacy. According to public health experts, an effective pandemic response demands tracing the spread of the virus from one individual to another in order to isolate and contain it. In the age of digital technology, facial recognition software, and big data, authorities are adopting the use of mass and individual surveillance tools for this purpose. These interventions have a direct impact on an individual's right to privacy, which is guaranteed under international law, and fully applicable to the digital age. To date, experimentation with new surveillance tools in the rush to contain the spread of the virus has infringed on the right to privacy in new ways. As governments learn how to integrate these surveillance tools with other databases containing personal information, fears are growing that permanent harm could be done to the right to privacy unless greater transparency, monitoring, and accountability are designed into the systems. 
 

Due Process and the Rights of Detainees

The unique impact of the pandemic and related controls on prisoners and others involved in the criminal justice system demand special handling from a rights-based perspective. The COVID-19 pandemic has exposed the additional risks posed not only to detainees and their custodians but also to surrounding communities—their families, case workers, and criminal justice service providers in and outside the courtroom or jail cell. 

Additionally, the diminished functioning of courts and related criminal justice services has direct negative impacts on the right to counsel and the provision of timely, open, and fair hearings, and contributes to increased case backlogs and further delays in adjudicating charges. Reduced court operations may also result in the prolonged detention of pretrial detainees or of prisoners eligible for early release, for example if bail or parole hearings are postponed. Without functioning judicial oversight, persons detained while emergency measures are in place to contain the virus may not be brought before a judge in a timely manner. This can reduce the impact of an important safeguard for monitoring and preventing torture and other ill treatment in detention facilities.

 

Guidelines for Applicants
 

Building on research and analysis by the World Justice Project and other organizations, the World Justice Challenge encourages project entries that address restrictions to fundamental rights and discriminatory practices posed by the pandemic including, but not limited to:

Equal Treatment and Non-Discrimination

  • Addressing the needs of groups disproportionately affected by the coronavirus and ensuring that marginalized communities are included in health service delivery and economic and social recovery stimulus plans;
  • Protecting vulnerable groups such as racial and ethnic minority groups, migrants, refugees, those with disabilities, children, and women, including by providing easy and free access to coronavirus testing and treatment and other essential health services;
  • Improving access and management of clean water and sanitation, particularly for indigenous and rural peoples living in remote communities and low-income tenants with little access to potable water, to avoid further spread of the virus; 
  • Carrying out post-pandemic reconstruction activities in ways that respect minority groups' traditional practices and livelihoods while improving access to basic health, water, education, and justice services.

Freedoms of Expression and Assembly and Right to Information

  • Taking measures to bolster the information ecosystem, such as holding open press conferences with appropriate public health safeguards and complying with freedom of information requests;
  • Protecting journalists and other media workers to do their essential work;
  • Protecting human rights defenders to do their essential work;
  • Protecting the right to peaceful assembly without discrimination and unwarranted interference.  

Right to Privacy

  • Protecting the right to privacy in accordance with well-established international norms of legality, necessity, proportionality, and non-discrimination when adopting both digital and physical surveillance methods in national emergencies; 
  • Establishing mechanisms for judicial, parliamentary, and non-governmental oversight related to surveillance and tracking measures, in order to improve transparency, monitoring, and accountability.

Due Process and the Rights of Detainees

  • Addressing the rapid spread of the coronavirus to high-risk prison populations; 
  • Protecting detainees' right to the highest attainable standard of physical and mental health without discrimination due to their legal status;
  • Allowing judiciaries and other state organs responsible for criminal justice services to remain open, safe, and functioning throughout the pandemic, with adequate stocks of protective and sanitary equipment;
  • Supporting the establishment of new technological approaches to ensure both victims' and defendants' rights to a fair and speedy trial, strengthening access to counsel, and improving the openness of  trials and other hearings to a wider public.

 

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Webinar Event: Fundamental Rights and Non-Discrimination in the COVID-19 Pandemic
 

On Wednesday, January 27 the World Justice Project will convene a thematic webinar event focused on the issue of fundamental rights and non-discrimination in the COVID-19 pandemic. Subscribe to WJP's e-newsletter for further updates and invitations.

 

Fundamental Rights and Non-Discrimination Thematic Partners

Fundamental Rights and Non-Discrimination thematic partners