Human Rights During the Pandemic: COVID-19 and Securitisation of Health

ABSTRACT

This article analyses the response to the COVID-19 pandemic and its securitising effect on health and human rights globally. It asks whether measures taken to control the pandemic comply with the emergency provisions and limitations allowed under human rights treaties, and whether they will lead to more permanent securitisation of the health sector. It examines the impact of some pandemic control measures introduced in Western countries on human rights to answer the question of how the latter will be affected long-term.

KEYWORDS:

• Human rights and emergencies
• COVID-19
• pandemic
• securitisation of health

1. Introduction

The outbreak of COVID-19 has changed lives across the globe, impacting the ways governments have been responding to the ongoing health challenge. The lengthy duration of the pandemic with its multiple waves and virus mutations, has resulted in the securitisation of public health responses globally, and multiple long and short-term restrictions on human rights. From the significant curtailing of rights during the first wave, often demanded by populations themselves,¹ to longer-term solutions, the impact of the pandemic on human rights has been far-reaching and global. While some limitations, such as restrictions on movement, country-wide lockdowns, and quarantine confinement have had dramatic short-term impact,² others have resulted in sustained rights trade-offs for the benefit of public health – such as continued limitations on travel, newly emerging vaccine passports, and continued contact-tracing efforts. Living with SARS-CoV-2 has become a somewhat permanent fixture of public and private life in nearly all jurisdictions. While most human rights treaties include provisions concerning emergencies, this article intends to illustrate that while these provisions justifiably apply in the phase of the initial response, the prolonged and continuously changing levels of restrictions are more problematic as they create more permanent trade-offs introduced slowly in the name of health security.

This article uses the theory of securitisation, a discursive turn in highlighting security threats to public health, to examine responses to COVID-19; and shows how, in line with the theory of securitisation, some solutions used in battling the pandemic have the potential to linger, and create prolonged or permanent rights trade-offs. To illustrate why securitisation of public health creates problematic outcomes for rights, it first analyses the history of human rights during previous pandemics to show that COVID-19 poses a new challenge for rights regimes and strengthens previously observed securitisation trends in public health. Second it examines provisions concerning emergencies, in order to distinguish between measures taken to control COVID-19 that have complied with the derogations allowed under human rights treaties, and those that have established new grey areas leading to long-term impacts on some rights. The article traces both more established and entirely novel forms of tackling pandemics in Western countries, asking whether and how they can lead to the permanent securitisation of the health sector. It primarily uses examples from Europe and Australia, where similar problems emerge for the pandemic’s long-term impact despite differing regulation of rights. It intends to show that the health securitisation occurring during a long-lasting pandemic of a global reach, such as COVID-19, is likely to narrow the scope of some rights and justify long-term restrictions that will permanently change their shape, as well as create uncertainty when it comes to proportionality and justifiability of limitations on rights.

2. Human Rights During Global Pandemics

Our current legal instruments regulating human rights are relatively young in the history of international law.³ With their formal legal birth in 1948, at the signing of the Universal Declaration of Human Rights (UDHR), human rights regimes have not encountered a worldwide health emergency on the scale of COVID-19. To be sure, human rights had already experienced pandemics of different kinds and reaches after 1948, but the impact of COVID-19 on human rights regimes has at the very least been most widely spread. The HIV-AIDS pandemic in the 1980s and 1990s,⁴ SARS⁵ and swine flu⁶ each presented a trying time for human rights, but resulted in more localised or otherwise different types of restrictions than the fight against SARS-CoV-2. Despite its seriousness, wide reach, and impact on rights, even the HIV pandemic did not cause such severe global restrictions because of its primarily sexual mode of transmission. Initially wrongfully associated with LGBTI minorities, HIV resulted in multiple discriminatory measures introduced to tackle its spread⁷ and was arguably the first pandemic to lead to a securitised approach to health.⁸ It did not, however cause worldwide restrictions on travel, personal liberty, or privacy comparable to COVID-19. In 1985, in fact, the WHO recommended that no sick person could be denied entry to another country due to an HIV-positive status.⁹ Some countries did introduce discriminatory entry restrictions regardless,¹⁰ but these control measures were not applied worldwide on the scale we experienced during the first wave of the COVID-19 pandemic. Nor were they introduced instantaneously or for extended periods of time. On the other hand, the aforementioned flu epidemics as well as the Ebola virus, despite their similar mode of transmission to COVID-19, were successfully tackled regionally before worldwide outbreaks could occur on the scale of the current health crisis.

The novel coronavirus SARS-CoV-2, which causes COVID-19, infects people through droplets. It was initially posited that transmission may also happen possibly also through casual contact with surfaces touched by those infected. The virus is also thought to be rather virulent in nature¹¹and to spread easily, making the current pandemic closest in scale and nature to the outbreak of the ‘Spanish Flu’ in 1918–19, which infected 500 million people and killed nearly 50 million.¹² Because human rights in their current shape had not yet been legally conceived at the time of the Spanish Flu pandemic, that era may only provide us with cursory guidelines when it comes to the general impact of pandemics on government actions.¹³ Briefer, less widely spread pandemics such as the SARS outbreak in 2002¹⁴ (referred to as the first pandemic of the twenty-first century¹⁵) or the swine flu outbreak (N1H1), declared a pandemic on 11 June 2009,¹⁶ can provide us with some guidelines. However, due to the smaller scale of the restrictions related to them, there are limits to what can be reasonably extracted regarding the extended impact of pandemic control measures on human rights. The preparedness for the spread of avian flu (N1N5) in 2008,¹⁷ which did not escalate to a worldwide epidemic, may also provide some insights on the increased readiness for tackling possible health security threats.

While Gostin¹⁸ predicted a lot of the measures we have experienced during COVID-19 pandemic to prevent the spread of avian influenza, such as border closures and limitations on trade, they did not in fact materialise during the largely localised outbreaks of avian flu. N1N5 and SARS did result in some regional limitations, including temporary and regional border closures, and difficulties for travellers, such as having their body temperature measured at airports. While some regions experienced harsher restrictions than others,¹⁹ the measures to contain those recent pandemics and outbreaks did not come close to the scale or intensity of the COVID-19 containment measures. With its second wave, multiple countries and regions re-introduced severe restrictions, including on freedom of movement or ability to gather.²⁰ In its initial phase, COVID-19 also affected supply chains due to flight cancellations and limited capacity to import resources. The first wave of social distancing measures saw many workplaces shut their doors, employees either working from home or laid off.²¹ The rights to assemble,²² to freedom of religion,²³ to privacy, and to family life²⁴ have all been affected by strict quarantine provisions. Access to public spaces, access to healthcare, and access to education have been severely limited and controlled. COVID-19 has presented human rights regimes with an unprecedented challenge – one that is dynamic, unpredictable, and constantly evolving as the pandemic continues. Due to the dynamic nature of COVID-19 control measures, to an extent this article must remain speculative about the long-term impact of the virus once the infection is controlled. What can be evaluated with certainty is the long-term implications of this securitised approach to health. But first, in the following section, I will analyse whether COVID-19 control is falling under the emergency provisions of the major international human rights treaties.

3. ‘Emergency Which Threatens the Life of the Nation’

As mentioned above, some human rights treaties include special provisions allowing for derogations from particular rights in times of war or other emergencies ‘threatening the life of the nation’.²⁵ Treaties containing a derogation clause include the European Convention on Human Rights (ECHR Article 15), the International Covenant on Civil and Political Rights (ICCPR Article 4), the American Convention on Human Rights (ACHR Article 27) and the European Social Charter (ESC Part V Article F). These provisions generally require states to officially notify the respective treaty regime and indicate the reasons for their derogation as well as the time when it will end. Treaties contain derogation clauses because, during exceptional times, it can be crucial to curtail rights in order to preserve their long-term existence. This is important because human rights themselves come under threat in situations where there is no public order.²⁶ Article 4 ICCPR specifies that:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.²⁷

Defining which emergencies trigger the use of Article 4 has been difficult, but the Siracusa Principles drafted in 1985²⁸ have provided some clarity on what public emergencies fall under its scope. The Siracusa Principles explicitly specify that public health may be invoked to trigger emergency provisions for the purpose of allowing ‘a State to take measures dealing with a serious threat to the health of the population or individual members of the population’.²⁹ These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.³⁰ Additionally, the General Comment on Article 4³¹ specifies that measures derogating from the Covenant must be of an exceptional and temporary nature, and can be applied only in a situation that amounts to a public emergency threatening the life of the nation. In its ‘Statement on derogations from the Covenant in connection with the COVID-19 pandemic’, the Human Rights Committee specifies that the pandemic has put an onus on Member States to take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction, and that such measures may result in restrictions on the enjoyment of individual rights guaranteed by the Covenant.³²

Some regional instruments have developed their own conditions for triggering emergency provisions. Under the European Convention on Human Rights (ECHR), standards established in Lawless v Ireland³³ define the conditions for introducing a state of emergency as a ‘public emergency’ that is present or imminent, exceptional, and concerns the entire population, constituting a threat to the organised life of the community.³⁴ These standards along with the general standards emerging from the gradual securitisation of public health³⁵ leave little doubt that a public health emergency on the scale of COVID-19 can trigger special provisions concerning emergencies. The imminent and exceptional threat to life it poses has threatened not only local but also global populations. On 24 March 2020, UN experts issued a statement on COVID-19 and human rights encouraging governments to respect human rights in their responses to the pandemic and make a joint effort to fight the spread of the virus. The statement made it clear that pursuant to appropriate notification and proportionally to the encountered threat, member states can take exceptional measures that trigger derogation provisions from rights:

A growing number of States have imposed strict controls that affect human rights, such as limitations on freedom of movement and restrictions on peaceful assemblies and privacy.

These controls must be undertaken pursuant to a valid legal framework. In countries that declare a state of emergency, such a declaration must be exceptional and temporary, strictly necessary and justified due to a threat to the life of the nation.³⁶

Such derogations are only allowed, however, if a state of emergency has been officially proclaimed and the Secretary General of the UN has been notified.³⁷ Declarations of a state of emergency must be made public, but despite many local territories having announced states of emergency due to COVID-19, only a few UN member states have done so formally.³⁸ States that have announced a state of emergency can limit rights subject to the above-mentioned condition with the exception of the so-called non-derogable rights enshrined in ICCPR Article 6 (the right to life), Article 7 (the prohibition on torture or cruel, inhuman, or degrading punishment, and of medical or scientific experimentation without consent), Article 8, paragraphs 1 and 2 (the prohibition on slavery, slave trading, and servitude), Article 11 (prohibition of imprisonment because of the inability to fulfil a contractual obligation), Article 15 (the principle of legality in the field of criminal law), Article 16 (the recognition of everyone as a person before the law), and Article 18 (freedom of thought, conscience, and religion subject to limitation clause).³⁹

Despite the widespread nature of the exceptional measures taken during the first wave of the pandemic, the fact that only a handful of notifications were submitted to the UN about the intention to trigger emergency provisions is a cause of concern. While it does not mean that the limitations introduced were automatically unlawful under human rights regimes, it makes it harder to monitor derogations and normalises a range of exceptions. Exceptional measures may still be lawful because, in addition to the specific emergency derogation in the ICCPR and other human rights provisions, many human rights instruments include limitation clauses as a part of the constitutive elements of a guaranteed right. Rights with limitation provisions are more likely to be legitimately constrained for the protection of public health, even without triggering the emergency provisions under the ICCPR or other treaties. In relation to the ICCPR, the Siracusa Principles specify that limitation clauses based on the Covenant provisions can only be invoked if they are necessary, based on one of the grounds justifying limitations recognised by the Covenant, responding to a pressing social need, pursuing a legitimate aim, are necessary in a democratic society, and proportional to the nature of the threat.⁴⁰ Some human rights instruments reiterate these conditions in their own provisions. For instance, the right to privacy under the ECHR can be restricted under the following conditions:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.⁴¹

Since health protection is explicitly mentioned as an allowed limitation for many rights, such as the right to privacy, measures that are proportional, necessary in a democratic society, and proscribed by law, such as imposing quarantine to protect other members of society from being infected, will most likely be found to be legitimate grounds for restrictions. In Fürst–Pfeifer v Austria, the European Court of Human Rights (ECtHR) made the proportionality of restrictions on the right of privacy contingent on the ‘menace of the pandemic’.⁴² The current rapid and wide spread of COVID-19 means it is likely to be considered a pandemic of severe menace that justifies limitations on rights such as those to privacy, religion, family, and assembly. The danger of taking the limitation clause approach instead of the derogation approach, however, is the normalisation of the state of exception, increased difficulty in weighing proportionality the longer the pandemic lasts, and a more general securitisation of the health sector,⁴³ which I analyse in the following section. The General Comment on Article 4 underlines that officially proclaiming a state of emergency is essential for ‘the maintenance of the principles of legality and rule of law at times when they are most needed’.⁴⁴ Scheinin and Molbaek-Steesing remind us that a human rights-based response is crucial, as otherwise the necessity of a decisive response can be used to justify extraordinary politics, including emergency powers, under the guise of security.⁴⁵

4. The Securitisation of Health Issues and Human Rights

In the 1990s, the Copenhagen school of thought, developed in the field of international relations and security studies, focused on the growing importance of security in multiple areas affecting our lives and conceptualised it as ‘securitization’.⁴⁶ Weaver posited that securitisation can apply to any area, and begins with the use of speech acts which declare certain areas of public interest to be security concerns.⁴⁷ Once an area is declared a security concern in a speech act directed at a specific audience, it is taken out of the normal workings of politics to become subject to multiple exceptional measures.⁴⁸ The danger of securitisation is its tendency to spread and normalise exceptions at the cost of otherwise unacceptable trade-offs, which increasingly include human rights.⁴⁹

Securitisation of health is not a new concept. As discussed, the HIV pandemic has been said to have generated the first attempt to securitise the health sector.⁵⁰ Some argue that such securitisation is well established and has long been visibly progressing,⁵¹ but others insist that while the HIV pandemic started the securitisation process it was only partial.⁵² Either way, the health sector has certainly been gradually moving towards what Murphy and Witty call ‘preparedness’ – a state of readiness to tackle emergencies – and, as they point out, the health securitisation that follows from such ‘preparedness’ gives public authorities an extraordinary mandate to impose long-standing restrictions with a serious impact on rights and freedom. These include the use of coercive measures that would normally require particularly strong justification, such as quarantine. As a consequence, the measures taken under the preparedness rubric have the potential to lead to discrimination and stigmatisation of particular individuals and groups.⁵³

Securitising statements affecting public health have been clearly visible in the language surrounding the response to COVID-19, and confirm that health is moving steadily towards increased securitisation. The March 11, 2020 WHO declaration of COVID-19 as a ‘pandemic’⁵⁴ constituted the initial speech act that justified a security-oriented response, and repeated references to the situation as a ‘war’ against the virus⁵⁵ and the dangers related to it justify a securitised approach allowing for long-term trade-offs in the area of rights. Further documents have highlighted the importance of ‘health preparedness’ as a general paradigm of social well-being during and after Covid-19.⁵⁶ To be clear, securitisation of a response is of course not necessarily problematic in the midst of the spreading infection. Rather, the problematic nature of securitisation lies in its ability to become a long-standing approach to particular issues such as terrorism and migration⁵⁷ that justifies ever-stricter approaches that gradually curtail basic freedoms and affect subjects of rights during otherwise normal times. While it is impossible to say with any certainty to what extent such securitisation will occur, a tendency to keep areas securitised, once they have been made so, for indefinite amounts of time suggests that the danger of permanently securitised health response is real and may affect certain human rights for indeterminately long periods of time. Hanrieder and Kreuder-Sonnen argue that the legal and institutional consequences of securitisation need to be taken seriously due to the logic of emergency, which, as they argue, is not a transient mode of political decision making, but a form of exceptionalism that generates lasting, often perpetual institutional effects. Such effects include the empowerment of the executive in the political system and other institutional transformations that allow for extra discretion when encountering the portrayed security threat.⁵⁸

An integral part of emergency politics following the securitisation of an area is normalising the trade-offs made in the name of perceived safety. Originally unimaginable trade-offs become not only acceptable but come to appear necessary for greater security, and are continually presented as necessary. In Alston’s words:

While this is a complex phenomenon, much of the problem is linked to post-9/11 era security concerns, some of which have blended seamlessly into an actual or constructed fear and hatred of foreigners or minorities. The resulting concerns have been exploited to justify huge trade-offs. This is not only a strategy pursued by governments of many different stripes, but one that has been sold with remarkable success to the broader public. People are now widely convinced that security can only be achieved through making enormous trade-offs, whether in terms of freedom of movement, privacy, non-discrimination norms, or even personal integrity guarantees.⁵⁹

A normalisation of trade-offs in the response to the proclaimed security threat is visible, for instance, in preference to use limitations of rights rather than derogations from treaty obligations. While derogations would signal exceptionality and thus be treated as temporary and exceptional, limitations send a signal that the area under a perceived long-standing security threat must be subject to long-term and ‘justifiable’ limitations. Not triggering emergency provisions guaranteeing temporariness of measures taken, normalises heavy restrictions and establishes a new ‘normal’ – a state of constant ‘preparedness’.⁶⁰ While the dynamic nature of the current threat requires a flexible approach, it is worth emphasising again that securitisation and normalisation of trade-offs are likely to become a long-term approach to health. This is because securitisation lingers and the trade-offs made in the acute phase of the response risk becoming long term, as happened with the threat of terrorism, resulting in the continuously growing limitations to the existing catalogue of rights.⁶¹ Below, I will illustrate the securitisation occurring during COVID-19 responses and demonstrate how some of the pandemic restrictions have the potential to become long-term limitations of certain rights even after recovery from the currently still acute health crisis. In particular, I will address quarantine and stay-at-home measures, border closures, and enforcement methods to illustrate how rights may be impacted further after the recovery.

5. Current Measures to Protect Public Health and Rights

It has been demonstrated that, in many jurisdictions, a large part of the population initially agreed that measures introduced to fight the pandemic were necessary.⁶² With a sense of horror, many watched images of intensive care units overwhelmed with dying patients and tried to fathom the growing death toll, which remained ungraspable despite the clarity of the numbers. As of July 2021, over 4 million people had died from COVID-19.⁶³ Initially, many followed the governmental orders that systematically increased levels of lockdown and restricted availability of resources and services mostly voluntarily, until anti-restriction movements, such as anti-maskers or anti-lockdown protesters emerged and took to the streets.⁶⁴ In the second wave of the pandemic, the restrictions as well as respect for them varied in nature and depended on location, specifically local narratives around the pandemic⁶⁵ and numbers of new infections. The duration of the pandemic, growing fatigue with ever-changing levels of restrictions, and growing impact on businesses are likely to lead to further and more prominent protests.⁶⁶ With the growing numbers of discontents, they are also likely to be harder to dismiss as exclusively extremist or conspiracy theory based, as they were initially. The greater the popular resistance, the harder it becomes to measure the proportionality and necessity of the restriction, adding yet another complication to the already complex picture of rights during a pandemic. Below, I analyse the main forms of restrictions and examine their immediate and long-term effects on rights, showing that while acute restrictions are likely justified in light of permissible human rights exceptions, the long-term effects will often be more problematic as exceptions become the new ‘normal’.

5.1. Border Closures

When China closed the borders of Wuhan, where the novel coronavirus first manifested, many commentators speculated whether the response was proportional and respectful of human rights.⁶⁷ Some thought that such closures were possible only because of China’s troubled history with human rights and the authoritarian tendencies of its current authorities.⁶⁸ These commentators hypothesised that such a level of restrictions could never be possible in the West because Western countries are more committed to rights and liberty. Regardless of this assumption, the situation soon escalated as the death toll dramatically increased everywhere, leading Italy to shut its borders on 10 March.⁶⁹ In the following weeks, the virus spread out of control so quickly that the majority of countries around the globe followed suit and shut their borders, or at least heavily restricted new arrivals.⁷⁰ Many returning citizens around the globe have been required to follow quarantine orders on arrival in their own country. Before long, some countries decided to regulate internal movement and shut certain domestic borders between states and territories. Such restrictions were in force, for instance, in Italy⁷¹ and Finland,⁷² and still are a recurring feature in Australia.⁷³ What made the limitations on movement in response to this pandemic exceptional was the effective suspension not only of the right to enter but also a country’s own citizens’ right to exit. Italians were unable to leave their regions for some time⁷⁴ and Australians are still⁷⁵ unable to leave their country, and at times their state within the country. The blanket nature of the initial border closures affecting domestic citizens appeared particularly problematic in the case of large cruise ships turned away from port after port without any country willing to take responsibility for the sick on board.⁷⁶ WHO regulations pertaining to ships touched by an epidemic foresaw evacuation and treatment of the sick and disinfection of the affected areas,⁷⁷ but they contained no provisions regarding a situation such as COV-Sars-2, which was thought to linger on surfaces for extended periods and led to port authorities refusing to allow disembarkation in the port of entry. The rights of cruise ship passengers were thus effectively suspended. These included the right to health and the non-derogable right to life in circumstances where passengers died on board⁷⁸ without access to adequate medical treatment. The widespread restrictions on the movement of domestic citizens experienced in the first wave of the pandemic and reintroduced in some countries in the subsequent waves had not been seen since the end of the Cold War⁷⁹ and had a direct impact on the ability to work or visit family as well as a wide range of both civil, political, social, and cultural rights, particularly when implemented within domestic borders.

The situation also affected other areas of free movement, such as the European Union’s Schengen Zone, which had enjoyed open movement across borders since the implementation of the Schengen Treaty in 1997.⁸⁰ Of course, even the Schengen Treaty foresees the closure of borders in exceptional circumstances, in Articles 25 and 26 of the Schengen Border Code.⁸¹ While closure normally requires notification four weeks prior, situations such as the rapid spread of a pandemic fall under circumstances not known beforehand, allowing closures to be exceptionally introduced faster. The situation during the second wave was volatile and subject to rapid changes, notwithstanding the EU-introduced colour-coded system for identifying areas most and least affected.⁸²

Widespread border closures in the first phase of the pandemic effectively suspended freedom of movement as proclaimed in UDHR Article 13,⁸³ and entrenched in ICCPR Article 12⁸⁴ and regional instruments such as EU treaties. Due to being a central marker of a state’s sovereignty, freedom of movement is not an absolute right and is not matched by a state’s duty of admission,⁸⁵ but many have argued that it is essential for the effective exercise of other freedoms. In Bauböck’s words:

Human beings are not by nature sedentary animals. Being confined in one’s movements is not only bad because of the opportunities one thereby misses elsewhere, but also because it is experienced as a constraint on freedom itself. The right to free movement is therefore not merely an instrument for other freedoms but is, alongside the other basic freedoms of thought, speech and association, also a core aspect of what it means to be free.⁸⁶

The health-related securitisation of cross-border movement adds to the securitisation of freedom of movement already existing prior to the pandemic. Tightening of immigration regimes⁸⁷ and increased discrimination in the right to freedom of movement⁸⁸ have already heavily challenged free movement across borders over the past two decades. For some years populist and nationalistic tendencies have focused on restricting free movement as far as possible,⁸⁹ enabling only the affluent and specialised to cross borders freely.⁹⁰ Many scholars have powerfully illustrated the race and class⁹¹ dynamics underpinning pre-COVID restrictions on the right to movement. The extended period of health-related border closures further widens the possibilities of securitising and tightening movement across borders.⁹² Populist leaders immediately sought to use the pandemic as an excuse to further limit migration and promote anti-migrant rhetoric.⁹³ COVID-19 has also been used as an excuse to issue orders violating international obligations and allowing for unlawful deportations of persons seeking asylum, breaching non-refoulment obligations.⁹⁴ In some countries, effective suspension of resettlement procedures introduced in relation to COVID-19 has already signalled a tendency towards possible suspension for the foreseeable future.⁹⁵ While securitisation of health is not in itself the reason for increased limitations on the freedom of movement, health as a securitising factor risks becoming yet another potential ground for discrimination at the border and beyond.⁹⁶ Since the beginning, additional restrictions likely to change freedom of movement have been signalled by the ideas of alternative forms of ‘passports’, with Germany and the UK⁹⁷ initially considering issuing previously unheard-of immunity certificates that would allow holders to move internally without the restrictions imposed on others. As vaccination programmes are progressing, the idea of a ‘vaccination passport’⁹⁸ has become prominent in multiple countries, and is slowly becoming a condition for movement across borders this year and likely even after the pandemic subsides. Such a change is unprecedented and contrary to previous practices, as we saw with the case of HIV, when the UN specifically discouraged countries from conditioning entry upon a person’s private health status.

5.2. Quarantine, Social Distancing, and Stay-at-Home Orders

Quarantine is an age-old method of containing disease.⁹⁹ Separating those who may not yet have symptoms but who are potentially contagious from those not yet exposed is one of the main methods of stopping the spread of pandemics. Originating from the Italian word quaranta, meaning 40 and signifying separation for 40 days to prevent spread of disease, quarantine was used, for instance, during the SARS outbreak.¹⁰⁰ No recent occurrence of mandatory quarantine has come close in scale to the COVID-19 quarantine restrictions, however. Quarantine orders have been supplemented by stay-at-home orders (including for those who do not have symptoms), social distancing rules, and bans on gatherings. Multiple daily life activities have been restricted or even limited to the bare necessities, such as grocery or pharmacy shopping. In many places around the globe, bars, restaurants, galleries, museums, cinemas, schools, and workplaces were closed for nearly a quarter of the year during the first wave, and again in the second and subsequent waves of lockdowns.¹⁰¹ Early on in the pandemic, the lockdowns in some countries, such as New Zealand, shut most businesses – allowing only petrol, grocery stores, health services, and pharmacies to remain open.¹⁰² In other jurisdictions, such as Australia and the UK, private activities such as parties and house visits were banned or limited to a minimum.¹⁰³ Russia and South Africa went as far as banning outdoor exercise during the first wave.¹⁰⁴

These regulations often emerged overnight and affected a wide range of civil, political, social, and cultural rights. Whether long-term or temporary, most measures taken heavily affected the right to privacy and personal liberty. In normal circumstances the right to privacy can only be restricted by law or when there are serious public interest reasons, with limitations proportional and appropriate for the aim sought.¹⁰⁵ Considerations of proportionality are usually hardest to balance when it comes to imposing orders such as quarantine¹⁰⁶ or fast-tracked limitations on activities previously relatively well protected and often occurring in the private sphere of one’s home, such as hosting guests. Such restrictions have inevitably impacted further on individuals and communities affected by limitations on freedom of assembly, freedom of movement, freedom to practise one’s religion (where religious services have been cancelled), and even freedom to establish a family in situations where long-awaited fertility treatments have been cancelled.¹⁰⁷ Social and cultural rights such as those to work, to access education, and to cultural life were suspended, particularly in the first, acute stage of the pandemic.

While in the past such control measures have been considered justifiable when they concerned only a few people,¹⁰⁸ widespread measures of that kind coupled with coercion were said to be disproportionate.¹⁰⁹ In relation to SARS quarantine orders in Singapore, Ding and Pitts argued that similar measures would not be possible in regions endorsing a Western understanding of human rights:

Singapore’s quarantine policies may not be readily applicable to countries and regions that endorse Western, individual-centric human rights. Installing video-cameras for home surveillance may appear unimaginable to people who cherish notions of individual freedom. In emerging outbreaks like SARS, national and regional authorities have to communicate and negotiate constantly with their citizens to gradually modify risk reduction policies such as quarantines and to find a mutually acceptable balance point between individual freedom and communal well-being.¹¹⁰

While even from a medical point of view quarantine is a measure of last resort,¹¹¹ the severity of the continuing outbreak of COVID-19 warrants limitations permissible under the Siracusa Principles considering public health emergencies:

Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.¹¹²

While the urgency of the pandemic’s first wave often allowed for little consideration when it came to proportionality and the necessity of quarantine and stay-at-home orders, the virulent and serious nature of the threat would suggest that COVID-19 restrictions were in line with permissible emergency exceptions allowing for limitations of rights in the interests of community protection. In the case of COVID-19, the rapid and global spread of the disease required a decisive and sometimes immediate response. As Jacobs has underlined, quarantine orders are always problematic when it comes to the balance of individual rights and healthy security of populations, and it would be a mistake to assume that individual rights will always take precedence in countries oriented toward Western human rights.¹¹³ In fact, if a state failed to take action to curtail the spread of the virus, this could lead to responsibility for failing to protect the right to health¹¹⁴ and the right to life.¹¹⁵ States are under obligation to take proactive measures to protect these rights, and such failure could prompt litigation, such as when Canadian nurses brought a case against the government for failing to take necessary steps to protect the right to life of medical personnel during the SARS outbreak.¹¹⁶ Protection of the right to life, which remains non-derogable even under emergencies, speaks in favour of temporarily curtailing other rights in order to protect the lives of community members in such cases. Populist politicians’ encouragement of anti-lockdown protesters and their convergence with anti-vax movements¹¹⁷ has been seen as a big obstacle for containing the outbreak, protecting rights, and eventually easing restrictions.

As with border closures, the dangers of securitising health and introducing exceptions dictated by the perceived security threat to health lie in their possible long-term effect. Limitations of the right to privacy and other rights affected by quarantine and stay-at-home orders may become a routine measure in the expanding arsenal of limitations on rights used under the guise of ‘national security’.¹¹⁸ The lengthy duration of the pandemic has given governments a mandate to keep using health as a reason to limit the exercise of certain rights even in places where the infection rate was strictly controlled and the level of infections low. This was visible, for instance, when Sydney’s Black Lives Matter march was initially banned by the New South Wales Supreme Court in a case brought by the New South Wales Police. The march was subsequently allowed on appeal,¹¹⁹ but the case illustrated the potential to extend the limitations of rights under health security concerns even after the acute phase of the spread of infection had been controlled. Pandemic control measures are likely permissible in the acute phase when they remain appropriately balanced, but have the potential to become a relatively permanent fixture in the arsenal of state responses to, for instance, public mobilisation. The long-lasting crackdown on journalistic freedom in an effort to control fake news has also been flagged as a potentially serious long-term effect leading to the silencing of dissent or of the mere questioning of authorities’ recommendations.¹²⁰ Recent calls to censor anti-vaxxer posts by Facebook¹²¹ and growing calls for laws penalising vaccine scepticism,¹²² while well-meant and introduced to encourage popular immunisation, may create a dangerous and long-lasting slippery slope on which any critical question can be flagged as dangerous to public health and thus banned. The practice of anti-terrorism laws and AI search engines flagging up emails, accessing correspondence, and gradually eroding the right of privacy can serve as a meaningful example of the long-term effects of such measures.¹²³ The following section expands on these dangers in the context of long-term public health control measures.

5.3. Enforcement of Measures

While the levels of those voluntarily following the new regulations under COVID-19,¹²⁴ and sometimes even calling for tougher measures to be taken,¹²⁵ can be considered surprisingly high, there have also inevitably been numerous cases of people flouting the restrictions or protesting against lockdown measures.¹²⁶ In the effort to contain the outbreak, public authorities have resorted to various control mechanisms to ensure obedience and adherence to stay-at-home and quarantine orders. These have included a range of ‘old fashioned’ methods, such as on-the-spot fines for those disrespecting social-distancing rules¹²⁷ and phone calls and house visits to check on those in self-isolation.¹²⁸ In addition, however, some authorities have employed far more drastic measures, such as imposing bracelets akin to those worn by subjects of house arrest,¹²⁹ monitoring mobile-phone signals, and even considering the deployment of surveillance drones that can recognise movements such as sneezing or coughing.¹³⁰ In the pandemic’s later stages, multiple governments have also embraced so-called ‘contact-tracing’ mobile phone apps.¹³¹ These latter methods appear to signal a new, intensified age of surveillance, a phenomenon that had already been increasing since the post-9/11 global mushrooming of anti-terrorist legislation. Not surprisingly, the use of war rhetoric in the fight against COVID-19 resembles the employment of now familiar ‘war on terror’ narratives.¹³² Such narratives allow for broad forms of surveillance to prevent dangers to national and, in case of the pandemic, health security. This trend has been exacerbated in places where authorities have begun classifying actions such as deliberate coughing or threatening to infect others as acts of terrorism.¹³³ Hicks observes that exceptional laws and anti-terror rhetoric have often been used as an excuse for non-compliance with international human rights norms.¹³⁴ As a consequence, exceptional measures cease to be subject to state-to-state peer pressure.¹³⁵ The use of war on terror rhetoric in the fight with a virus allows for novel forms of tracking, tracing and surveillance previously unacceptable in daily life. This is possible because, as Lachmayer and Witzler note in regard to surveillance generally, surveillance powers are usually not restricted to terrorism but typically given a much broader field of application, resulting in, among other things, extensive data collection and law enforcement led by intelligence.¹³⁶

Many have pointed out that the employment of excessive surveillance strategies constitutes a threat to human rights generally,¹³⁷ as well as to the right to privacy more specifically.¹³⁸ While some have encouraged embracing new technologies such as drones,¹³⁹ most have emphasised that specific legal frameworks must be introduced for the safe and controlled use of both drones¹⁴⁰ and contact-tracing apps.¹⁴¹ Even at the height of the pandemic, the use of illness-detecting drones can easily overstep the condition of proportionality and necessity of any limitations on the right to privacy owing to their small size and ability to fly unheard and unnoticed.¹⁴² Tracing apps, while useful in tracking infection, likewise remain dangerous if the data they collect can be accessed by law enforcement, or if its storage and removal are not properly regulated.¹⁴³

The pandemic offers a potent testing ground for the deployment of broad surveillance methods as well as the expansion of the already broad collection of health data.¹⁴⁴ These tendencies are likely to impact on the scope of such rights as those to privacy, assembly, freedom of worship, prohibition of degrading treatment, and non-discrimination. Cancellations of events, religious celebrations, or the targeting of particular populations due to a potential health threat are not far-fetched scenarios, and such targeting has been already been experienced in various ways in the ‘war on terror’.¹⁴⁵ Problematic even in relatively well-functioning democracies, surveillance and exceptional enforcement measures can lead to the normalisation of such measures gradually limiting the right to privacy in particular. Personal health data collected with the help of these new measures can become not only be easily accessed, shared and exchanged by authorities, but may also become a requirement for exercising other rights. This has, for instance, been visible in the requirement to declare one’s health status upon entry to premises, to leave one’s details, or to download tracing apps before entering venues or workplaces.¹⁴⁶ While helpful in the acute phase, the extended use of such measures can create a shift, particularly in the approach to the privacy of health data. Rather than being treated as one of the most private aspects of life, health status may easily become part of one’s publicly shared information that can be requested not only by authorities but also by businesses and workplaces. The push to share such information is visible in the recent efforts introducing the so-called vaccine passports in, for instance, France¹⁴⁷ or vaccine requirements by multiple businesses in the US.¹⁴⁸ Meanwhile, some other regions have already made calls to keep current contact-tracing policies after the end of the pandemic.¹⁴⁹

6. Conclusions

Our economic, healthcare, and legal systems have been challenged to respond quickly and efficiently to the immediate danger of COVID-19. While restrictions began to mount rapidly across the globe, heavily curtailing most of our contemporary freedoms, their future human rights implications have remained in the background rather than the foreground of the pandemic response. The levels of restrictions have repeatedly fluctuated from relaxed to tightened, signalling potentially long-lasting securitisation of the health sector. This article has shown that while the initial response was likely to be compliant with allowed human rights derogations, the long-lasting limitations pose the danger of permanently curtailing the scope of certain rights. While not the first area of contemporary life to be securitised, health may become a trigger for normalising a wide array of multiple exceptional measures, justifying rights trade-offs particularly in fields related to the right to privacy. The long-lasting pandemic has begun to shift what is considered ‘normal’ and necessary when it comes to accepting new forms of surveillance and fluctuating limitations on rights. The COVID-19 pandemic is a novel and previously unforeseen occurrence with slowly emerging consequences. Securitisation of the health sector is not entirely new but it is experiencing rapid acceleration due to the renewed sense of danger. This in turn is likely to exacerbate work in similar ways to the securitisation of other areas – creating acceptable trade-offs that allow for accepting limitations that would have otherwise been seen as problematic.

Notes

1 Baker, ‘NSW Teachers’ Union to Demand School Closures If Safety Measures Not Met’ The Sydney Morning Herald (23 March 2020) <https://www.smh.com.au/national/nsw-teachers-union-to-demand-school-closures-if-safety-measures-not-met-20200323-p54d3r.html> accessed 7 November 2020; ‘Hong Kong Medical Workers Strike to Urge Border Closure with Mainland China to Block Virus’ Reuters (3 February 2020) <https://www.japantimes.co.jp/news/2020/02/03/asia-pacific/science-health-asia-pacific/hong-kong-medical-workers-strike-border-china-coronavirus/#.Xo65LpMzaqQ> accessed 7 November 2020.

2 ‘Countries Crack Down on Basic Rights Amid COVID-19 Pandemic’ The Japan Times (31 March 2020) <https://www.japantimes.co.jp/news/2020/03/31/world/human-rights-coronavirus-pandemic/#.Xo658JMzaqQ> accessed 7 November 2020.

3 Di Donato and Grimi (eds), Metaphysics of Human Rights 1948–2018: On the Occasion of the 70th Anniversary of the UDHR (2019).

4 Mann, ‘Human Rights and AIDS: The Future of the Pandemic’ in Schenker, Sabar-Friedman, and Francisco (eds), AIDS Education: Interventions in Multi-Cultural Societies (1996) 1; Doyal, Living with HIV and Dying with AIDS: Diversity, Inequality, and Human Rights in the Global Pandemic (2013).

5 Jacob, ‘Human Rights and Public Health During Pandemic Influenza’ (2006) 3 Indian Journal of Medical Ethics 2.

6 Tarantola et al., ‘H1N1, Public Health Security, Bioethics, and Human Rights’ (2009) 373 The Lancet 373, 2107.

7 See more: Doyal, Living with HIV and Dying with AIDS: Diversity, Inequality, and Human Rights in the Global Pandemic (2013).

8 Rushton, ‘AIDS and International Security in the United Nations System’ (2010) 25(6) Health Policy and Planning.

9 Gostin, Ogalthorpe, and Lazzarini, Human Rights and Public Health in the AIDS Pandemic (1997) at 21.

10 Duckett and Orkin, ‘AIDS-Related Migration and Travel Policies and Restrictions: A Global Survey’ (1989) 3 Aids 231.

11 World Health Organisation, Modes of Transmission of Virus Causing COVID-19: Implications for IPC Precaution Recommendations, Scientific Brief, 29 March 2020 <https://www.who.int/news-room/commentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations> accessed 7 November 2020.

12 Laver and Garman, ‘Pandemic Influenza: Its Origin and Control’ (2002) 4 Microbes and Infection 1309.

13 Garrett, ‘The Next Pandemic?’, Foreign Affairs (July–August 2005).

14 Barbisch, Koenig, and Shih, ‘Is There a Case for Quarantine? Perspectives from SARS to Ebola’ (2015) 9 Disaster Medicine and Public Health Preparedness 547.

15 ‘Covid-19: PM Announces Four-Week England Lockdown’ BBC (31 October 2020) <https://www.bbc.com/news/uk-54763956> accessed 21 November 2020.

16 Agarwal and Bhadauria, ‘Modeling H1N1 Flu Epidemic with Contact Tracing and Quarantine’ (2012) 5 International Journal of Biomathematics 1250038.

17 Gostin, ‘Pandemic Influenza: Public Health Preparedness for the Next Global Health Emergency’ (2004) 32 The Journal of Law, Medicine & Ethics 565.

18 Ibid.

19 Bell, ‘Public Health Interventions and SARS Spread, 2003’ (2004) 10 Emerging Infectious Diseases 1900.

20 ‘Coronavirus: Travel Restrictions, Border Shutdowns by Country’ Al Jazeera (7 April 2020) <https://www.aljazeera.com/news/2020/03/coronavirus-travel-restrictions-border-shutdowns-country-200318091505922.html> accessed 7 November 2020; ‘Once More, With Dread: The Second Wave of Covid-19 Has Sent Much of Europe Back into Lockdown’ The Economist (7 November 2020) <https://www.economist.com/briefing/2020/11/07/the-second-wave-of-covid-19-has-sent-much-of-europe-back-into-lockdown> accessed 7 November 2020.

21 Ong, ‘Chief Economist Update: COVID-19 Eating into Jobs’ Financial Standard (26 March 2020) <https://www.financialstandard.com.au/news/chief-economist-update-covid-19-eating-into-jobs-156828570> accessed 7 November 2020.

22 Public Health England, Coronavirus (COVID-19) Keeping Away from Other People: New Rules to Follow from 23 March 2020, Publication GW-1213 (2020) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876699/COVID-19_Keeping_away_from_other_people_20200328.pdf> accessed 7 November 2020.

23 Worthington, ‘Coronavirus Crackdown to Force Mass Closures of Pubs, Clubs, Churches and Indoor Sporting Venues’ Australian Broadcasting Corporation (23 March 2020) <https://www.abc.net.au/news/2020-03-22/major-coronavirus-crackdown-to-close-churches-pubs-clubs/12079610> accessed 7 November 2020.

24 NSW Minister of Health and Medical Research, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (30 March 2020).

25 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, Article 4.

26 Criddle and Fox-Decent, ‘Human Rights, Emergencies, and the Rule of Law’ (2012) 34 Human Rights Quarterly 39, at 47.

27 Supra note 31.

28 UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4.

29 Ibid., at para 25.

30 Ibid.

31 UN Human Rights Committee (HRC), CCPR General Comment No. 5: Article 4 (Derogations), 31 July 1981.

32 UN Human Rights Committee. Statement on derogations from the Covenant in connection with the COVID-19 pandemic, CCPR/C/128/2.

33 Ireland v. The United Kingdom, Application no 5310/71, 13 December 1977.

34 Ibid., at para 28; supra note 32, at 48.

35 Murphy and Whitty, ‘Is Human Rights Prepared? Risk, Rights and Public Health Emergencies’ (2009) 17 Medical Law Review 219.

36 United Nations, UN Human Rights Treaty Bodies Call for Human Rights Approach in Fighting COVID-19 (24 March).

37 Supra note 31, at para 4.3.

38 Current state of derogations from UN treaties is available via Depositary Notifications (CNs) by the Secretary-General, <https://treaties.un.org/Pages/CNs.aspx?cnTab=tab2&clang=_en> accessed 15 April 2020.

39 Human Rights Committee, General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001.

40 Supra note 35, Article 10.

41 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, Article 8.

42 Fürst-Pfeifer v. Austria, Applications nos. 33677/10 and 52340/10, 17 May 2016, at para 15.

43 Supra note 40.

44 Supra note 31.

45 Scheinin and Molbaek-Steensig, ‘Pandemics and Human Rights: Three Perspectives on Human Rights Assessment of Strategies Against COVID-19’ EUI Department of Law Research Paper 01 (2021).

46 Wæver, Securitization and Desecuritization (1993).

47 Ibid. 48.

48 Ibid. 65.

49 Goold and Lazarus (eds) Security and Human Rights, 2019.

50 Supra note 9 and 10.

51 Fidler, ‘A Pathology of Public Health Securitism: Approaching Pandemics as Security Threats’ Governing Global Health: Challenge, Response, Innovation (2007) 41–64:41, Elbe, ‘Pandemics on the Radar Screen: Health Security, Infectious Disease and the Medicalisation of Insecurity’ (2011) 59(4) Political Studies 848–66.

52 Supra note 10, 496.

53 Supra note 40, at p. 235.

54 Cucinotta and Vanelli, ‘WHO Declares COVID-19 a Pandemic’ (2020) 91 Acta Bio-Medica: Atenei Parmensis 157.

55 Serhan, ‘The Case Against Waging ‘War’ on the Coronavirus’ The Atlantic (31 March 2020) <https://www.theatlantic.com/international/archive/2020/03/war-metaphor-coronavirus/609049/> accessed 11 April 2020.

56 United Nations, ‘Comprehensive Response to COVID-19: Saving Lives, Protecting Societies, Recovering Better’ June 2020, WHO, ‘COVID-19 Preparedness and Response Progress Report – 1 February to 30 June 2020’ 3 August 2020.

57 For example, Lamer, ‘From Sleepwalking into Surveillance Societies to Drifting into Permanent Securitisation: Mass Surveillance, Security and Human Rights in Europe’ (2017) 1 Global Campus Human Rights Journal 393; Baker-Beall, ‘The Discursive Construction of EU Counter-Terrorism Policy: Writing the ‘Migrant Other’, Securitisation and Control’ (2009) 5 Journal of Contemporary European Research 188.

58 Hanrieder and Kreuder-Sonnen, ‘WHO Decides on the Exception? Securitization and Emergency Governance in Global Health’ (2014) 45 Security Dialogue 331, at 335.

59 Alston, ‘The Populist Challenge to Human Rights’ (2017) 9 Journal of Human Rights Practice 1, at 4.

60 Murphy and Witty, at 232.

61 Goold and Lazarus (eds), Security and Human Rights (2019).

62 Smith, ‘International COVID-19 Tracker: How Public Opinion is Responding Around the World’ Yougov.co.uk (21 March 2020) <https://yougov.co.uk/topics/health/articles-reports/2020/03/21/international-covid-19-tracker-how-public-opinion> accessed 7 November 2020.

63 ‘There Have Now Been Over Two Million Virus-Related Deaths Worldwide’ New York Times (15 January 2021) <https://www.nytimes.com/2021/01/15/world/covid-death-news.html> accessed 7 November 2020.

64 Pleyers, ‘The Pandemic is a Battlefield. Social Movements in the COVID-19 Lockdown’ (2020) Journal of Civil Society 1–18; Mogelson, ‘The Militias Against Masks’ The New Yorker (17 August 2020) <https://www.newyorker.com/magazine/2020/08/24/the-militias-against-masks> accessed 7 November 2020.

65 Kahn, ‘Masks, Culture Wars, and Public Health Expertise: Confessions of a Mask’ Expert’ (2020) U of St. Thomas (Minnesota) Legal Studies Research Paper No. 20-08.

66 Katy Dartford, ‘“We’ve Had Enough”: In France, Spain and Denmark, Anti-Lockdown Protests Continue’ Euronews (31 January 2021) <https://www.euronews.com/2021/01/31/we-ve-had-enough-in-france-spain-and-denmark-anti-lockdown-protests-continue> accessed 22 February 2021.

67 Levenson, ‘Scale of China’s Wuhan Shutdown Is Believed to Be Without Precedent’ The New York Times (23 January 2020) <https://www.nytimes.com/2020/01/22/world/asia/coronavirus-quarantines-history.html> accessed 7 November 2020.

68 For example, Hamblin, ‘A Historic Quarantine: China’s Attempt to Curb a Viral Outbreak is a Radical Experiment in Authoritarian Medicine’ The Atlantic (24 January 2020) <https://www.theatlantic.com/health/archive/2020/01/china-quarantine-coronavirus/605455/> accessed 7 November 2020; Hodge and Barraza, ‘Violating People’s Rights Is Not the Way to Address the Coronavirus’ The Slate (24 January 2020) <https://slate.com/technology/2020/01/coronavirus-2019-ncov-china-quarantine.html> accessed 7 November 2020.

69 ‘Coronavirus: Italy Extends Emergency Measures Nationwide’ British Broadcasting Corporation 10 March 2020 <https://www.bbc.com/news/world-europe-51810673> accessed 7 November 2020.

70 ‘Coronavirus: The Week the World Shut Down’ The Guardian (21 March 2020) <https://www.theguardian.com/world/2020/mar/20/coronavirus-the-week-the-world-shut-down> accessed 7 November 2020.

71 Tondo, ‘Italy Set to Quarantine Whole of Lombardy Due to Coronavirus’ The Guardian (7 March 2020) <https://www.theguardian.com/world/2020/mar/07/italy-set-to> accessed 7 November 2020.

72 ‘Uusimaa Closes Borders After Late-Night Vote in Parliament’ Yle News (28 March 2020) <https://yle.fi/uutiset/osasto/news/uusimaa_closes_borders_after_late-night_vote_in_parliament/11280719> accessed 7 November 2020.

73 Australian Interstate Quarantine, State and Territory Border Closures <https://www.interstatequarantine.org.au/state-and-territory-border-closures/> accessed 7 November 2020.

74 ‘Italy Announces Restrictions Over Entire Country in Attempt to Halt Coronavirus’ The New York Times (9 March 2020).

75 Australian Department of Home Affairs, Covid-19 and the Border: Travel Restrictions and Exemptions, Updated Regularly at: <https://covid19.homeaffairs.gov.au/travel-restrictions>.

76 McCormick, ‘Stranded at Sea’: Cruise Ships Around the World are Adrift as Ports Turn Them Away’ The Guardian (27 March 2020) <https://www.theguardian.com/world/2020/mar/27/stranded-at-sea-cruise-ships-around-the-world-are-adrift-as-ports-turn-them-away> accessed 7 November 2020.

77 World Health Organisation, International Health Regulations Guide to Ship Sanitation Third Edition, October 2007, Chapters 7.3.4 and 13.4.5.

78 Dakin and Gallman, ‘4 “Older” Guests Died on a Cruise Ship Where 2 People Have Tested Positive for Coronavirus’ Cable News Network (28 March 2020) <https://edition.cnn.com/2020/03/27/us/four-dead-holland-america-cruise-ship/index.html> accessed 7 November 2020.

79 Dowty, Closed Borders: The Contemporary Assault on Freedom of Movement (1989).

80 European Union, Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, Schengen Agreement, 14 June 1985, Official Journal L 239, 22/09/2000 P. 0013–0018, 42000A0922(01).

81 Regulation 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 77, 23.3.2016, Article 25 and Article 26.

82 ‘EU Unveils Covid-19 “Colour-Code” Travel Zones’ The EU Observer (7 September 2020) <https://euobserver.com/coronavirus/149344> accessed 7 November 2020.

83 Universal Declaration of Human Rights 1948, GA Res 217A (III), A/810 at 71 (1948), Article 13.

84 Supra note 31, Article 12.

85 McAdam, ‘An Intellectual History of Freedom of Movement in International Law: The Right to Leave as a Personal Liberty’ (2011) 12 Melbourne Journal of International Law 27, at 28.

86 Bauböck, ‘Global Justice, Freedom of Movement and Democratic Citizenship’ (2009) 50 European Journal of Sociology/Archives européennes de sociologie 1, at 7.

87 Hogan and Haltinner, ‘Floods, Invaders, and Parasites: Immigration Threat Narratives and Right-Wing Populism in the USA, UK and Australia’ (2015) 36 Journal of Intercultural Studies 520; De Witte, Bauböck and Shaw, ‘Freedom of Movement under Attack: Is it Worth Defending as the Core of EU Citizenship?’ (2016) Robert Schuman Centre for Advanced Studies Research Paper.

88 Torabian and Miller, ‘Freedom of Movement for All? Unpacking Racialized Travel Experiences’ (2017) 20 Current Issues in Tourism 931.

89 For example, Lutz, ‘Variation in Policy Success: Radical Right Populism and Migration Policy’ (2019) 42 West European Politics 517; Schain, ‘Shifting Tides: Radical-Right Populism and Immigration Policy in Europe and the United States’ (2018) Migration Policy Institute; Mughan and Paxton, ‘Anti-Immigrant Sentiment, Policy Preferences and Populist Party Voting in Australia’ (2006) 36 British Journal of Political Science 341.

90 Steiner and Wanner (eds), Migrants and Expats: The Swiss Migration and Mobility Nexus (2019); Brahic and Lallement, ‘From “Expats” to “Migrants”: Strategies of Resilience Among French Movers in Post-Brexit Manchester’ (2020) 9 Migration and Development 8.

91 Ibrahim, ‘The Securitization of Migration: A Racial Discourse’ (2005) 43 International Migration 163; Hawthorne, ‘The Question of Discrimination: Skilled Migrants’ Access to Australian Employment’ (1997) 35 International Migration 395; Van Hear, ‘Reconsidering Migration and Class’ (2014) 48 International Migration 100; Lazaridis and Wadia (eds), The Securitisation of Migration in the EU: Debates since 9/11. (2015).

92 Byaruhanga, ‘The Impact of Covid-19 on Securitization of Migration and Mobility in the United States’ (2020) 5(6) European Journal of Social Sciences Studies.

93 Smith and Holden, ‘In Shadow of Pandemic, Trump Seizes Opportunity to Push Through His Agenda’ The Guardian (9 April 2020) <https://www.theguardian.com/us-news/2020/apr/09/in-shadow-of-pandemic-trump-seizes-opportunity-to-push-through-his-agenda> accessed 7 November 2020. Inotai, ‘How Hungary’s Orban Blamed Migrants for Coronavirus’ The EU Observer (20 March 2020) <https://euobserver.com/coronavirus/147813> accessed 7 November 2020.

94 U.S. Department of Health and Human Services Centers for Disease Control And Prevention (CDC) Order Under Sections 362 & 365 Of The Public Health Service Act (42 U.S.C. 265, 268): Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists; Guttentag, ‘Coronavirus Border Expulsions: CDC’s Assault on Asylum Seekers and Unaccompanied Minors’, Just Security, 13 April 2020, <https://www.justsecurity.org/69640/coronavirus-border-expulsions-cdcs-assault-on-asylum-seekers-and-unaccompanied-minors/> accessed 1 June 2020.

95 Garnier, Bergtora Sandvik, and Cellini, ‘The COVID-19 Resettlement Freeze: Towards a Permanent Suspension?’ Kaldor Centre (14 April 2020) <kaldorcentre.unsw.edu.au/publication/covid-19-resettlement-freeze-towards-permanent-suspension> accessed 7 November 2020.

96 Office of High Commissioner for Human Rights, COVID-19 Does Not Discriminate; Nor Should Our Response.

97 ‘UK and Germany Consider Issuing Immunity Passports to Ease Lockdowns’ ABC Radio National (7 April 2020) <https://www.abc.net.au/radionational/programs/breakfast/uk-and-germany-consider-issuing-immunity-passports/12127728> accessed 10 April 2020.

98 ‘Vaccination Passports: Deals Made For Free Flow of Travel Between EU Countries For Summer 2021’ Forbes (21 February 2021) <https://www.forbes.com/sites/alexledsom/2021/02/21/vaccination-passports-deals-made-for-free-flow-of-travel-between-eu-countries-for-summer-2021/?sh=3cb259411687> accessed 22 February 2021.

99 Daubert, ‘Pandemic Fears and Contemporary Quarantine: Protecting Liberty Through a Continuum of Due Process Rights’ (2006) 54 Buffalo Law Review 1299.

100 Jacobs, ‘Rights and Quarantine During the SARS Global Health Crisis: Differentiated Legal Consciousness in Hong Kong, Shanghai, and Toronto’ (2007) 41 Law & Society Review 511.

101 Graham-Harisson, ‘Bars and Shops Closed as Europe Battles Second Wave of Coronavirus’ The Guardian (15 November 2020) <https://www.theguardian.com/world/2020/nov/15/bars-and-borders-stay-closed-as-europe-battles-second-wave-of-coronavirus> accessed 7 November 2020.

102 ‘Covid-19 Coronavirus: What New Zealanders Can and Can’t Do During Lockdown’ The New Zealand Herald (5 April 2020) <https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12319477> accessed 7 November 2020.

103 O’Carroll, ‘UK Coronavirus Lockdown: What You Can and Cannot Do’ The Guardian (26 March 2020) <https://www.theguardian.com/world/2020/mar/25/uk-coronavirus-lockdown-rules-what-you-can-and-cannot-do> accessed 7 November 2020; ‘Can I Visit My Parents or Family at Easter? Australia’s Coronavirus Lockdown Rules and Restrictions Explained’ The Guardian (11 April 2020) <https://www.theguardian.com/world/2020/apr/11/can-i-visit-my-parents-or-family-at-easter-australias-coronavirus-lockdown-rules-and-restrictions-explained> accessed 11 April 2020.

104 ‘Coronavirus: Russia Includes Jail Terms to Enforce Crackdown’ British Broadcasting Corporation (31 March 2020) <https://www.bbc.com/news/world-europe-52109892> accessed 11 April 2020; Cohen, ‘South Africa Bans Outdoor Exercise for Lockdown, Minister Says’ Bloomberg (25 March 2020) <https://www.bloomberg.com/news/articles/2020-03-25/good-news-for-runners-facing-south-african-virus-lockdown> accessed 11 April 2020.

105 Human Rights Committee, General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988.

106 Supra note 91.

107 ‘IVF Sector in Limbo as Coronavirus Crisis Threatens to Shut Down Infertility Industry’ The Sydney Morning Herald (24 March 2020) <https://www.smh.com.au/national/ivf-sector-in-limbo-as-coronavirus-crisis-threatens-to-shut-down-infertility-industry-20200324-p54dbz.html> accessed 11 April 2020.

108 Mann et al., ‘Health and Human Rights’ (1994) 1 Health and Human Rights 6, at 15.

109 Annas, ‘The Statue of Security: Human Rights and post-9/11 Epidemics’ (2005) 38 Journal of Health Law 319.

110 Ding and Pitts, ‘Singapore’s Quarantine Rhetoric and Human Rights in Emergency Health Risks’ (2013) 4 Rhetoric, Professional Communication, and Globalization 55, at 69–70.

111 Supra note 21.

112 Supra note 35, at para 25.

113 Supra note 91, at 547.

114 United Nations, ‘COVID-19 and Human Rights, We Are All in This Together’ April 2020.

115 Ibid., at 539–40.

116 Ontario Nurses Association v. Sunnybrook and Women’s College Health Sciences Centre, CanLII 35717 (ON L.R.B.) (2004).

117 Hotez, ‘COVID19 Meets the Antivaccine Movement’ Microbes and Infection (2020).

118 Watt, ‘The Right to Privacy and the Future of Mass Surveillance’ (2017) 21 The International Journal of Human Rights 773.

119 Thomas, ‘Sydney Black Lives Matter Rally Organisers Win Last-Minute Appeal to Overturn Ban’ The Sydney Morning Herald (6 June 2020) <https://www.abc.net.au/news/2020-06-06/sydney-black-lives-matter-protesters-launch-rally-appeal/12328784> accessed 8 June 2020. The decision is awaiting publication.

120 Joel Simon, ‘COVID-19 is Spawning a Global Press-Freedom Crackdown’ Columbia Review of Journalism (25 March 2020) <https://www.cjr.org/analysis/coronavirus-press-freedom-crackdown.php> accessed 11 April 2020.

121 Kari Paul, ‘Facebook to Ban Ads Discouraging Vaccination’ The Guardian (14 October 2020) <https://www.theguardian.com/technology/2020/oct/13/facebook-vaccine-ads-ban> accessed 22 February 2021.

122 ‘Should Spreading Anti-Vaccine Misinformation Be Criminalised?’ BMJ (2021) 372, 272.

123 For example, Margulies, ‘Surveillance By Algorithm: The NSA, Computerized Intelligence Collection, and Human Rights’ (2016) 68 Florida Law Review 1045; B. Ganor, ‘Artificial or Human: A New Era of Counterterrorism Intelligence?’ (2019) Studies in Conflict & Terrorism 1–20.

124 Joe Stone, ‘Coronavirus: UK Lockdown Supported by 93 Per Cent of Public, Poll Finds’ The Independent (24 March 2020) <https://www.independent.co.uk/news/uk/politics/coronavirus-uk-lockdown-boris-johnson-poll-yougov-latest-a9420526.html> accessed 11 April 2020.

125 Supra note 9.

126 Supra note 109.

127 Thoman and Nguyen, ‘Coronavirus Social Distancing Breaches Could Lead to Fines and Jail Time, NSW Police Announces’ Australian Broadcasting Corporation (25 March 2020) <https://www.abc.net.au/news/2020-03-25/nsw-police-will-fine-breaches-for-coronavirus-social-distancing/12089732> accessed 11 April 2020.

128 Wahlquist, ‘Australia’s Coronavirus Self-Isolation Rules: Who Has to Do It and How It Works’ The Guardian (24 March 2020) <https://www.theguardian.com/world/2020/mar/24/australias-coronavirus-self-isolation-rules-who-has-to-do-it-and-how-it-works> accessed 11 April 2020.

129 Bostock, ‘South Korea Launched Wristbands for Those Breaking Quarantine Because People Were Leaving Their Phones at Home to Trick Government Tracking Apps’ Business Insider Australia (11 April 2020) <https://www.businessinsider.com.au/south-korea-wristbands-coronavirus-catch-people-dodging-tracking-app-2020-4?r=US&IR=T> accessed 11 April 2020.

130 Serhan, ‘The Case Against Waging “War” on the Coronavirus’ The Atlantic (31 March 2020) <https://www.theatlantic.com/international/archive/2020/03/war-metaphor-coronavirus/609049/> accessed 11 April 2020; Christoyannopoulos, ‘Stop Calling Coronavirus Pandemic a “War”’ The Conversation (8 April 2020) <https://theconversation.com/stop-calling-coronavirus-pandemic-a-war-135486> accessed 11 April 2020.

131 Greenleaf and Kemp, ‘Australia’s “COVID Safe App”: An Experiment in Surveillance, Trust and Law’ (2020) UNSW SSRN Papers.

132 Welch, ‘Trampling Human Rights in the War on Terror: Implications to the Sociology of Denial’ (2004) 12 Critical Criminology 1.

133 Malik, ‘In The United States, Coronavirus Coughing Attacks May Be Prosecuted As Terrorism’ Forbes (14 April 2020) <https://www.forbes.com/sites/nikitamalik/2020/04/14/in-the-united-states-coronavirus-coughing-attacks-may-be-prosecuted-as-terrorism/#4a9958ee2a88> accessed 14 April 2020.

134 Hicks, ‘The Impact of Counter Terror on the Promotion and Protection of Human Rights: A Global Perspective’ in Wilson (ed), Human Rights in the 'War on Terror (2005), 209, at 216.

135 Ibid.

136 Lachmayer and Witzleb, ‘The Challenge to Privacy From Ever Increasing State Surveillance: A Comparative Perspective’ (2014) 37 University of New South Wales Law Journal 748, at 774.

137 Gray and Citron, ‘The Right to Quantitative Privacy’ (2013) 98 Minnesota Law Review 62, at 82.

138 Voss, ‘Privacy Law Implications of the Use of Drones for Security and Justice Purposes’ (2013) 6 International Journal of Liability and Scientific Enquiry 171.

139 McNeal, ‘Drones and the Future of Aerial Surveillance’ (2016) 84 George Washington Law Review 354, at 394.

140 Supra note 124, at 143; Marin and Krajčíková, ‘Deploying Drones in Policing Southern European Borders: Constraints and Challenges for Data Protection and Human Rights’ in Zavrsnik (ed), Drones and Unmanned Aerial Systems (2016) 101–27, at 122.

141 Supra note 119.

142 Takahashi, Timothy, ‘Drones and Privacy’ (2012) 14 The Columbia Science and Technology Law Review 72, at 113.

143 Greenleaf and Kemp, ‘Australia’s COVID Safe Experiment, Phase III: Legislation for Trust in Contact Tracing’ (2020) UNSW SSRN Papers 39–40.

144 Iwaya et al., ‘Overview of Privacy Challenges in Mobile Health Data Collection Systems’ (2018) Medical Informatics Europe: MIE 2018.

145 Cainkar and Selod, ‘Review of Race Scholarship and the War on Terror’ (2018) 4 Sociology of Race and Ethnicity 165.

146 Rowe, ‘Contact Tracing Apps and Values Dilemmas: A Privacy Paradox in a Neo-Liberal World’ (2020) 55 International Journal of Information Management 102178.

147 ‘France Introduces Controversial COVID-19 Vaccine Passport Amid “Stratospheric” Rise in Delta Cases’ ABC News (21 July 2021) <https://www.abc.net.au/news/2021-07-22/france-covid-passport-vaccine-health-pass/100314072> accessed 30 July 2021.

148 ‘With New Vaccine and Mask Requirements, Businesses Scramble to Respond to Delta Variant and Shifting Health Guidance’ Washington Post <https://www.washingtonpost.com/business/2021/08/01/businesses-delta-vaccine-mandates/> accessed 30 July 2021.

149 ‘Retaining QR Codes After COVID-19 Idea Draws Fire in South Australia’ ABC Radio Australia (1 February 2021) <https://www.abc.net.au/news/2021-02-01/thought-bubble-to-retain-qr-codes-draw-fire-in-south-australia/13108786> accessed 7 November 2020.