The Book of Miracles, Augsburg, c. 1550
There has been great international concern about the measures implemented around the world to fight the new coronavirus outbreak, many of which limit personal freedoms, including the freedom of movement (e.g. quarantine, self-isolation, closing of borders). Giorgio Agamben has written no less than five op-eds on the subject of States measures to counter Covid-19, discussing “the increasing tendency of using the state of emergency as the normal paradigm of government” (February 26), the terrible impact of the limitations of freedom of movement on human relations (March 11), the fact that society now only believes in “naked life” (March 17), etc. In typical fashion, he draws our attention towards the long-term consequences of the new laws issued by States to fight the Covid-19 outbreak. Around the world, these legal measures differ, though presenting similarities, prompting some to say that various models might be emerging (e.g. the quarantine model vs the mass-testing model, etc).
In Russia, a law issued on April 1st allows the government to declare a state of emergency – that used to be a prerogative of the Civil Defence Ministry – but the government is yet to use this power. As a Russian friend of mine puts it: “Putin’s ratings might go down, so no state of emergency. He doesn’t like to bring bad news to the family”. Following the same line of thought, it is mainly through regional and local authorities that legal measures have been taken so far, ranging from self-isolation for travellers coming from abroad to the closing of borders and the new mandatory QR code for Moscow inhabitants. How are the local measures related to international law? Is there an international framework that States have to consider in their legal response to the crisis? How does international law shape the response of Russia to the new coronavirus outbreak?
The main international body responsible for dealing with major health crises, the World Health Organization (WHO), declared the Covid-19 outbreak a public health emergency of international concern under the International Health Regulations (IHR, 2005) on 30 January 2020. The IHR are a legally binding instrument of international law that give power to the secretariat of the World Health Organization to declare such an emergency and do recommendations to countries about it. It is the sixth time that an emergency of international concern has been declared since 2005. The WHO declaration is of critical importance because, complementing ongoing international regulations, it has set in motion a series of specifically Covid 19-oriented actions. Thus, the 30 January 2020 WHO declaration led to the activation of a special crisis management UN-team and the issue of guidelines to countries on 12 February 2020 (guidelines that have been updated and complemented since then). No specific model of answer is being favoured or singled out by the World Health Organization : neither quarantine, making masks mandatory or other specific measures of the like. WHO recommendations centres around coordination and planning (e.g. through specific teams and community engagement). Specifically about quarantine rules, it should be noted that they have sometimes been perceived as a possible over-reaction by the organization but are also being recommended for parts of the population. Still, countries can choose to follow or not WHO recommendations. There are no legal requirements to report to the organization on what measures have been taken (for further discussion, see here and here).
Regarding general international law (such as human rights regarding health etc.), as pointed out here:
“international law provides for at least five different sets of ‘due diligence’ obligations which require States to take all feasible measures to contain the Covid-19 outbreak and prevent the virus from spreading even further […] that being said, the said due diligence rules do not require all States to follow the exact same approach when countering the outbreak […] They retain a measure of discretion in deciding what measures to adopt and implement among those that are feasible in the circumstances.”
In short, governments (including the Russian one) have an obligation under international law to take measures to counter and contain the outbreak, but are afforded some latitude in implementing the specific local policies they deem necessary. Assessing the legitimacy, the proportionality and the necessity of the measures taken by the Russian government (or any governments, for that matter) might not be a possible task just yet, as the Covid-19 crisis is still unfolding, and especially as the question of the declaration of a state of emergency (which would most probably bring in tougher measures) remains open.
In mid-April 2020, I would like to sketch out briefly the specific concerns over issues of human rights that the legal measures taken, or not taken, by Russia have so far triggered. Under international human rights law, Russia has a duty as a State to protect the life and health of its population. These obligations are codified by the International Covenant on Civil and Political Rights (“[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”) and the International Covenant on Economic, Social and Cultural Rights (“States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”), both of which Russia is a party (for more, see this three-part article).
Tension first arises from the conflict between the State responsibility towards its citizens and individual human rights. As pointed out in this podcast from the American Society of International Law, the question might not be whether or not you are quarantined but how you are quarantined. Issues of human rights violations have been raised about Italy and China by international lawyers and journalists alike. In Russia, concerns are especially rife about data protection, as seen here, here or in the paper Andrey Plotniskiy published alongside this one. This issue might be particularly acute in Russia because of various previous attempts of the government to take control over its citizens online data.
Another human rights issue that has received some attention is the fate of migrant workers from Central Asia that live and/or work in the Russian Federation. Cut off from work and sometimes unable to get home, this health crisis will take a particular toll on them. A general principle of equality underlies international human rights law, meaning that States should ensure the rights of all within its territory, irrespective of the lawfulness of one’s presence. But there are exceptions to this principle : narrow ones within the law (e.g. article 12 (1) of the International Covenant on Civil and Political Rights), wider in practice. While neighbouring Kazakhstan is giving monthly payments to undocumented people, the Russian government is yet to take any measures aimed at this specific part of its population.
Agamben’s articles, mentioned in introduction, have been hugely criticized, and sometimes very rightly so (e.g. this discussion on the real value of the “normal conditions of life” to be guarded from “biopolitics”). But if anything, Agamben prompts us to remember that states manage crises through law, and that it might be useful to reflect on who is included by the law, who is excluded from the law, and at what cost for both.