30 Sep 2020 - by A4ID

The Rule of Law in Health Crises: Protecting Individual Freedom during the COVID-19 Pandemic

On 17 September, Advocates for International Development (A4ID), the Bingham Centre for the Rule of Law at the British Institute of International and Comparative Law, and the University of Edinburgh Global Health Academy jointly delivered a high-level virtual event to highlight the close links between authorities’ responses to health crises and the rule of law.

Based on the findings of the recent paper, The Rule of Law in Times of Health Crises, the event discussed the importance of protecting human rights and access to justice in times of crisis and the state’s responses to COVID-19. It also offered lessons on the rule of law’s potential to empower societies to effectively respond to health crises.

Frontline Role of Justice in Response to the Pandemic

The rule of law has been increasingly under threat in the context of state measures to address COVID-19. Since the beginning of the pandemic, many governments have been failing in providing efficient and transparent emergency response. Some countries did not have any specific emergency laws and kept issuing decrees based on loose constitutional provisions, raising issues of arbitrariness. Many other institutions did not follow international law conventions and failed to declare a state of emergency, moving away from their human rights obligations. This resulted in low institutional trust, which can eventually risk obstructing an effective response to the pandemic. Countries with higher level of trust (e.g. Germany) have conducted the most effective institutional responses to the crisis, according to a recent Oxford University study.

Furthermore, there has been a lack of efficient accountability mechanisms put in place, leaving the UN, WHO and various human rights monitoring bodies unable to hold countries accountable for their actions. The existing rules of trade are too loose, resulting in an uncontrolled medicine and masks hoarding from Western countries, again leaving nobody accountable for. Renewed conversations on new and more effective modes of accountability (e.g. new forms of parliamentary scrutiny, alternative access to courts) are required.

Exacerbating Global Inequalities

The current health crisis is seriously undermining the rule of law, as some of its fundamental elements, such as the bounding of public authority by efficient and transparent laws, treating citizens equally before the law and protection of human rights, have been overridden. The long-term impact of this will exacerbate existing global social and economic inequalities that could negatively affect the international health response and recovery.

Many countries around the world are experiencing a significant increase in threats against gender equality. Many women are facing the so-called ‘double burden’ during lockdowns: having to focus on caring responsibilities and educating children whilst working at the same time. Several statics have also shown a dramatic rise in domestic violence during the lockdown. Governments must not undermine women’s rights against public health and economic crisis and accept the interconnectedness of the social and economic factors.

Opportunities for Rule of Law Advancement

Global emergencies, such as the COVID-19 pandemic, should not only be seen as a challenge to the rule of law and human rights, but also as an opportunity to better articulate and strengthen the standards for dealing with such crises. It is during such crises that emergency standards are developed (e.g. following 9/11, various countries adopted counter-terrorism emergency laws). Therefore, national and international institutions should take this opportunity to systematically evaluate their performance and develop emergency laws and practices that adapt and evolve to current and potential emergencies.

As the public emergency is global in nature, it requires international cooperation to effectively counter it. As national health systems are no longer a national prerogative, rather are slowly becoming a matter of legitimate international concern, there should be joint assessments, collaborative mechanisms and incentives to encourage compliance with international law. Similarly, as the legal sector tends to be more nationally focused, there is an urgency for justice leaders to act internationally and renew the importance of multilateralism on which the rule of law depends.

Following is the list of speakers that were part of the webinar. Please scroll down to view the recording of the webinar.
Yasmin Batliwala, Chief Executive, A4ID
Murray Hunt, Director, Bingham Centre for the Rule of Law
Liz Grant, Director, Global Health Academy
Allyson Maynard-Gibson QC (former Attorney-General, Minister for Legal Affairs and Minister of Financial Services and Investment of The Bahamas)
Maaike de Langen, Programme Lead, Justice for All, Pathfinders for Peaceful, Just and Inclusive Societies
Gianluca Burci, Adjunct Professor of International Law at the Graduate Institute of International and Development Studies and former WHO Legal Counsel
Lizzette Robleto de Howarth, International Programmes Manager at The Law Society of England and Wales
Naomi Barnard, ROLE UK Programme Manager, A4ID