MRU Experts on COVID-19

2020-04-08 00:00:01

Prof. Katuoka: Quarantine or State of Emergency - What does International Law Say?

katuoka The world is facing a problem – fighting the coronavirus pandemic. The coronavirus has touched all countries and only differs in the way the coronavirus is spreading and its result in different countries. Therefore, we can say that the coronavirus pandemics a global problem. That is why resolution of this problem calls for participation of not only separate countries, but also international organizations.

In my opinion, the most important global organization is the World Health Organization (WHO) which unites 194 countries. It should play a leading role in this crisis. The World Health Organization, just like specialized United Nation organizations, have as one of its main aims to fight infectious diseases, to help separate countries and their appropriate health institutions. With the efforts of the WHO there were a whole host of recommendations prepared for citizens in how to act during an epidemic, which is spreading quickly including recommendations regarding international travel and how to protect medical staff during the pandemic. According to WHO data, Lithuania’s portals rather quickly provide information about the coronavirus in different countries. Often there are records of the amount of people infected globally, and the number of those sick, who have gotten well and the number of deaths.

In addition, the WHO on Jan. 30th, 2020, announced a State of Emergency in regard to the development of the coronavirus in China. With the efforts of WHO Secretary General Tedros Adhanom Ghebreyesus, we found that one of the main forms of fighting the coronavirus is testing of individuals. Thereby the Lithuanian Health Ministry. putting on notice the municipality of Vilnius to reduce by twice the testing amount is not fully understandable. So the question arises – why? However, the main responsibility for a successful fight against the coronavirus is up to nation states. It is these institutions of the nations that have to prepare and implement appropriate fight with coronavirus means, meaning appropriate tactics and strategy.


Defining a State of Emergency

Therefore, every country reacting to the coronavirus pandemic has to use those means, which it feels are necessary. We take into consideration that the Government of Latvia, on the basis of a decision on March 12th, 2020, declared a State of Emergency from March 13th to April 14th. The Government of Lithuania took a decision on March 14th, 2020, Order No. 207, “Regarding Announcement of Quarantine in the Territory of the Republic of Lithuania” and introduced a regime, which is referred to as quarantine. The beginning of the period of the quarantine was announced with the possibility to extend this period, which was later done

Introduction of the quarantine period in the Republic of Lithuania is based on two Laws of the Republic of Lithuania: the Infectious Diseases and Control Law and the Civil Safety Law. It is thereby by the aforementioned laws that allow the Lithuanian government to take action in the event of the coronavirus pandemic. However, in this situation, the question arises – quarantine or a State of Emergency? Which regime does not come into conflict with the Constitution of the Republic of Lithuania and which would be more appropriate in the situation that has arisen in Lithuania at this time.

Prof. Egidijus Šileikis in his article, “Coronavirus and the Constitution: Quarantine or a State of Emergency?” raises these issues. Answers to the question are sought through the prism of the Constitution. In my opinion, these questions require a wider view and also outlook through the prism of international law.  

For example, regarding questions about the State of Emergency and restrictions on human rights, all issues must be resolved in keeping with international agreements of which the Republic of Lithuania is a party and which regulates such issues.

In the case of quarantine, as well as the State of Emergency, the task before state institutions is how to overcome the pandemic situation in the shortest time possible and to ensure the safety of the public’s health, public order and the normal functioning of state institutions. On the other hand, it is necessary to ensure the necessary respect for human rights and basic freedoms.

In 2008, along with colleague M. Krasnickas, we prepared an article, Deviations from Obligations according to the European Human Rights and Basic Freedoms Convention in a State of Emergency.” At that time there were no articles regarding this issue in Lithuanian language. Today the introduction of a quarantine period is not a theoretical question, but reality. However, some of the article’s provisions are also appropriate and interesting today, so we will be citing them.

The question of introduction of quarantine, or a State of Emergency is a complex question. This issue is resolved in national law, as well as international Law. If we would talk about national law then in the opinion of specialists, the important spheres are: constitutional law and criminal law, administrative law.

Announcing quarantine or a State of Emergency in market conditions, labour and civil law norms are in effect that is why it is important to consult with specialists from these areas. First of all, it is necessary to consult in the area of restricting certain human rights.

Quarantine and the State of Emergency are two separate categories that differ first of all, depending on which state institution has competency over the area of quarantine or state of Emergency implementation. Clearly, the regime may differ during quarantine as well as during the State of Emergency. For example, implementation of the State of Emergency during time of war, without a doubt, would differ from quarantine implementation during a pandemic.

Implementation of quarantine is often associated with infectious diseases and with possible pandemics. Although there is a State of Emergency in the Republic of Latvia, and a quarantine implemented in Lithuania, the restrictive measures in both these countries, in essence, are the same. In the doctrine of International Law it is stipulated that a State of Emergency is implemented based on the principle of necessity  It is held that each state has the right to take the necessary measures to defend and safeguard the unity of the state and public health.

The State of Emergency, as well as quarantine can be connected with a crisis, which affects the entire state or society. In this case, the state is allowed to take measures that do not interfere with obligations and according to appropriate international treaty articles. In international agreements the State of Emergency is defined as certain circumstances which cause a threat to the nation or the existence of the country. Therefore in interpreting the State of Emergency it is necessary to rely not only on international agreements, but also other sources of international law. It must be noted that the basis regulation of the State of Emergency through possible restrictions is intertwined (itvirtina) in 2 international agreements: The European Human Rights and Basic Freedoms Convention (EZTK) and the International Civil and Political Rights Pact (TPPTP).

However, the first question that we must answer is how is the State of Emergency understood in international law?

Answering this question we can rely on various, aforementioned agreements and the practice of international courts. Trying to explore the nuances of the State of Emergency it is necessary to rely on supplementary sources of international law. First of all, I have in mind the 1984 International Lawyers’ Association’s approved document drafted during the 61st Paris convention determining human rights and freedom safeguarding standards and the regime of the State of Emergency. In this document, which is by nature recommendatory, there is more detailed information about the State of Emergency and the discussion about restrictions about human rights and other State of Emergency nuances. For example, it is stipulated that if the right to implement the State of Emergency belongs to the government, than the legislative branch of the government, depending on the situation, always has the right to change the term of the State of Emergency or recall it.


In all cases, when extending the term of the State of Emergency, the Legislative branch must agree to the extension. Therefore, we can maintain that the actions of the legislative branch in cases of quarantine or State of Emergency directly depend on the activeness of these institutions. As noted by the International Law Association, the State of Emergency can be defined as taking in a very wide spectrum of different situations including misfortunes, floods, earthquakes, war, famine or epidemics. However, it is not desirable and overall impossible to determine specific events which countries could consider and introduce a State of Emergency. Each case must be considered separately taking into account that first threats must be determined and he danger to a country and society. So a country modelling a situation decides to introduce the State of Emergency and determines specific terms.

In this case, it is presumed that a country must act conscientiously and not seek to to abuse the freedom of action. The state takes such a decision seeking its main aim – the survival of the nation. The survival of the nation as a basis to introduce the State of Emergency was for the first time anchored in the European Convention on Human Rights’ 15th article. In the event of war or other extraordinary emergencies during which there is a threat to the existence of a nation, each country can take measures stipulated in the Convention’s 15th article. It must be noted that the European Council’s Human Rights Commission in the 1969 Greek case noted that the State of Emergency must include the following: 1.) it must be in existence or inevitable 2.) it must affect the entire nation; 3.) it must pose a threat to the continuity of organized life in a society; 4.) it’s a crisis or threat that should be an exception in the sense that normal means or restrictions allowed by the Convention’s public safety, health or order are clearly not sufficient.

The State of Emergency and Restrictions on Human Rights

Taking into account the issue of human rights and restrictions on freedoms during the State of Emergency in the case of the Republic of Lithuania, first it is necessary to take into consideration two international treaties. They are: the European Convention on Human Rights and the International Covenant on Civil and Political Rights. (ICCPR). Lithuania is a party to both of these international agreements. The first agreement went into effect for the Republic of Lithuania from April 27th, 1995. The second went into effect from Feb. 20th, 1992. The European Convention on Human Rights’15th article as well as the ICCPR’s 4th article allow deviations from international obligations, when human rights are in question during a State of Emergency. Both Agreements Allow Conditions for Deviation from Human Rights.
.
First condition is clear – deviation is possible only under an existing situation of a State of Emergency for which there is a threat to the existence of the nation. The deviation is possible only in times of a State of Emergency. This first deviation from conditions of human rights is considered from the right to a State of Emergency.

Second condition is associated with deviations from the aspect of proportionality. It is possible to deviate from rights, but not more than is necessary for the extraordinary situation. In this case less important interests are sacrificed in order to safeguard basic interests for the nation to survive.
.
Third condition-forbids deviations from non-deviational rights. In accordance with the European Convention on Human Rights, non-deviational rights are stipulated as those that are elementary rights: the right to life, prohibition of torture, prohibition of slavery, no punishment without legal basis. The International Convenant on Civil and Political Rights prohibits TPPTP discrimination on the basis of race, colour, sex, language, religion or social identity. A rather wide list of non-deviational rights is presented in the U.S. Convention on Human Rights stipulating that it is not possible to deviate during a State of Emergency from the legal guarantees in family law, the right to one’s name, children’s rights, the right to citizenship, the right to participate in a nation’s governing.

Fourth condition –relates to compatibility whereas the state’s obligations conform to obligations under international law. Therefore, there are possible deviations from rights but they must not conflict with international agreements of other countries, general principles of international law, ius cogens norms.

Fifth condition – relates to resolution of procedural questions. It is natural that the Act implementing the State of Emergency in a country should be announced. In the European Convention of Human Rights 15th article, 3rd part, is a requirement for the state, which uses the right to deviate from obligations in the area of human rights, to fully report this situation to the European Council’s General Secretary. It is obligatory to report about the measures, which the state has taken including motivation. The state also must report when these measures will no longer be in effect and from when the provisions of the European Convention of Human Rights will be fully in effect again.

In conclusion, I would like to note where I recommend researchers further extrapolate on the issue. Despite the fact that we indicated at the beginning of this article that the legal category, “State of Emergency” and quarantine are different, we believe that these categories are closely intertwined. That is why we conclude that quarantine is a specific form of a State of Emergency. This conclusion allows us to state that during the time of quarantine, Lithuania must adhere to all international obligations, which are determined by Lithuania’s obligatory international agreements: the European Convention on Human Rights and the Intewrnational Covenant on Civil and Political Rights. Did the state of Lithuania act properly when it implemented quarantine on the basis of the coronavirus pandemic? Did it properly select the tactics and strategy to fight the coronavirus will be evident in the future. All will depend now on successful results fighting the coronavirus.

Saulius Katuoka is a professor of International and European Law at Mykolas Romeris University.