Birgit Van Hout
UN Human Rights Regional Representative for Europe
5 March 2021
I would like to thank the organizers for inviting me to contribute to this timely discussion on democracy and human rights during the coronacrisis. It is an honor to be at the Law Faculty of Sigmund Freud University, albeit virtually.
Soon, it will be one year since WHO declared the coronavirus outbreak a global pandemic. Since then, the pandemic and the measures taken to combat it have taken their toll on the full range of human rights -- economic, civil, cultural, political and social rights – which are, let’s not forget, indivisible.
Let me start with social rights, the right to physical and mental health, work, education and an adequate standard of living. All have suffered greatly. Covid-19 has also exacerbated inequality and exposed serious gaps in social protection systems. Those already in a precarious situation have been hit hardest, with women and minorities particularly afflicted. We can only wonder if the damage would have been as great had we done a better job at implementing the Sustainable Development Agenda.
But the pandemic has also affected social cohesion in general. Inter-generational suspicions have arisen, tensions between communities have heightened, and hate speech has flourished, as has the propagation of disinformation and conspiracy theories. UN Secretary-General Antonio Guterres noted last month that “extremists – including white supremacists and neo-Nazis – have exploited the pandemic to boost their ranks, through social polarisation and political and cultural manipulation.”
The Covid-19 crisis also poses unprecedented challenges to the rule of law and democracy, accelerating an already worrying trend. Basic tenets of democracy, like the independence of the judiciary, transparent and accountable governance, media freedom and the separation of powers have come under threat. Some States have passed sweeping emergency laws, ruled by decree, or limited access to information. Fundamental freedoms, like freedom of movement, freedom of religion, and freedom of assembly, have come under pressure globally and in the European Union.
Governments and the EU institutions must approach human rights, democracy and the rule of law in a holistic manner, because they cannot be artificially silo-ed. Like in lacework or in music, it is not each stich or each note that make the pattern or the melody, but all of them together, seen or heard in their totality.
Under human rights law, States may restrict certain rights to protect public health. They also have certain additional powers if a state-of-emergency, threatening the life of the nation, is publicly declared. But, in either case, restrictions need to be necessary, proportionate, non-discriminatory and time-bound. The burden rests with the State to demonstrate that these conditions are met. Restrictions must be kept under constant review and lifted when no longer essential.
Even in times of a health pandemic, States must facilitate peaceful assemblies. The crisis is no justification for excessive force to be used when dispersing assemblies nor for disproportionate penalties to be imposed. Governments must remember, and must sometimes be reminded, that these measures are there to protect peoples’ health and safety - and not to shield the government from criticism.
Judicial and parliamentary checks and balances should be strengthened, not weakened. Democratic oversight mechanisms, national human rights institutions, civil society and international human rights bodies must keep a watchful eye on measures that restrict rights.
From the early days of the pandemic, the UN treaty bodies, as guardians of the international human rights treaties, and Special Procedure mandate-holders have urged leaders to ensure respect for human rights in the measures adopted to tackle the health emergency. Many have issued guidance, which is available (in a compilation) on the global website of our Office. Guidance on the use of emergency powers was also shared by our Office, to ensure that extra-ordinary powers be used “to cope effectively with the pandemic – nothing more, nothing less” in the words of UN High Commissioner for Human Rights, Michelle Bachelet.
We welcome that the European Commission’s upcoming assessment of the rule of law in the Union will dedicate attention to the measures taken by member States to deal with the Covid-19 crisis. We will be contributing to the report with the findings from the international human rights mechanisms – as well as our own, country by country.
A pernicious narrative is gaining ground that human rights are an obstacle to effective governance, like migration governance or tackling the pandemic. I would like to argue the opposite: migration policies that are enshrined in human rights make for better policies. And when it comes to combating the pandemic, human rights are the vaccine for a better future.
It is precisely at this time of crisis that solid public participation, government accountability and a free press are most needed, to devise policies that can navigate shocks most effectively. This is a time for more, not less, transparency; for more information; for more public debate and discussion, in a more open and inclusive civic space; and for more responsive governance, which more firmly upholds human rights.
It deserves to be acknowledged that political leaders are facing an unprecedented situation in which difficult decisions must be taken. The best way to approach these dilemmas is to involve the public.
Participation is a right – but it is also a means to ensure better, more effective policy. Every society, and every leader, needs to engage the public's participation, fully and meaningfully. All over the world, people clearly manifest their rightful demand to have a role in shaping policy. Acting on that demand is the only way to build or preserve public trust. Participation also drives policies that are based on lived realities and informed by frank and constant feedback.
As time passes, there is a risk of exceptional measures slipping into ordinary law. In her 2018 report to the Human Rights Council, the UN Special Rapporteur on human rights in counterterrorism analyzed the impact of long-term emergencies. They have, she noted, generally nefarious consequences for the integrity of the rule of law; they can lead to substantial expansions of executive powers, limiting democratic and judicial control of exceptional powers; they undermine accountability; and they may disproportionately affect minorities.
The parallel with the current Covid-19 crisis is striking. The expert advice of the UN Special Rapporteur to deal with situations of prolonged and sustained emergencies, is that courts and oversight bodies should take a more skeptical view of the necessity and efficacy of State measures, and that deference to the State should be limited. “The longer the emergency,” she said - and I quote, “the higher the burden of justification for the State and the greater the emphasis should be on the costs of sustained human rights limitations for individuals and groups.”
Such balancing between the legitimate objectives of measures taken to end the pandemic on one hand, and their collateral damage for human rights, is essential. Therefore, the rise in street protests or in judicial recourse against Covid-19 measures should not be reduced to, or criticized as attempts to undermine governments’ efforts. They are the healthy expression of democracy.
In this regard, the contribution of civil society to surviving the pandemic and to recovering better once it is over, will be absolutely vital. Our UN Secretary-General Antonio Guterres, in his Call to Action for Human Rights, has appealed to all actors to step up efforts to support and protect civil society, because – again - societies and democracies are stronger and more resilient when people can play a meaningful role in political, economic and social life, without discrimination, and hold governments to account.
Participation, legality, transparency, accountability, and non-discrimination: these are the pillars of an approach based on human rights. Covid-19 demonstrates the profound value of the human rights-based approach. Just as the pandemic has laid bare pre-existing human rights protection gaps, it also shows that the best way to make societies more resilient is for authorities, whether local, national or regional, to put human rights at the heart of their action.
Earlier this week, we launched our new publication called ‘Dignity for All: Realizing social rights in the EU.’ Also in the realm of social rights, an approach that places human beings and their rights at the centre – not as passive recipients of services but as right-holders with agency – is the only route to a sustainable recovery.
Policies that are human rights compliant, that deliver universal access to social protection and health care; institutions that welcome and promote respect for the views and rights of all members of society; accountable policing and access to justice without discrimination, they are not only legal obligations, they also avert polarization and the escalation of tensions and grievances.
By respecting human rights in this time of crisis, we build more effective and equitable solutions. As late American congressman and civil rights veteran John Lewis said: ‘Democracy is not a state. It is an act.’ Let’s continue acting, day after day, to end the pandemic and to recover better together. Thank you.