Human rights in times of pandemics: necessity and proportionality

Human rights based governance is crucial in a pandemic but what does this entail? This chapter presents a health and human rights approach that calls for state actors to respect the principles of necessity and proportionality through governing with solidarity, trust and transparency, instead of coercion and fear. Policy makers must learn from past pandemics, in particular HIV/ AIDS, and protect and respect all rights.
Using this approach, problematic elements of European states’ legislative responses to COVID-19 are highlighted, using restrictions on movement as a case study. Firstly, several examples are explored, such as stay at home orders targeting elders, pregnant women and children, as well as bans on outdoor exercise, where it is suggested that in line with the principle of proportionality, less restrictive measures could be as effective. Secondly, for the wealthy and those living in safe environments, stay at home orders may provide a proportionate response, while for other groups, impacts may be disproportionate, and sometimes discriminatory. Thirdly, while scientific certainty is impossible with a novel virus, measures that run contrary to scientific evidence should be avoided. The widespread use of criminal sanctions runs contrary to the human rights approach.