Written by Abie Longstaff 

Pandemic planning encompasses more than simply disease control. With the threat to social, political and economic security that a pandemic could entail, a range of additional issues need to be considered such as the control of civil order, the closure of borders or the monitoring of how the virus is spreading. Many of these measures would necessitate some curtailment of citizens’ rights and freedoms, yet European pandemic plans have not always given due weight to human rights issues. It is difficult to predict how a virus will develop and how serious a disease will become.  Pandemic plans thus need to allow for a wide range of possible outcomes, including facing a worst case scenario; and it is important that laws are drafted with enough flexibility to allow states to react when unforeseen situations develop that require an urgent and critical response.

Timely consideration of human rights is important, not only because we have a duty to do so under the European Convention of Human Rights, but also because preparedness plans and legislation with visible and well-balanced respect for human rights increase dramatically the confidence in, and acceptance of, decisions of authorities. The virus may mutate very quickly and in a crisis situation there will be limited time to assess important questions. There is a danger that if we leave human rights considerations to the last moment they will not be given due weight or attention.

Some European states, for example, have not legislated directly for a pandemic, but envisage using emergency legislation to respond. Emergency legislation is law that can be passed in a crisis at speed. Due to this it is frequently exempt from the usual safeguards, double checks and standards applied in the making of primary legislation. Furthermore, emergency legislation is apt to put powers in place that are not primarily driven by epidemiological and medical assessment of the emergency situation at hand. This may result in ill-adapted or ineffective public health measures as well as measures which potentially breach human rights obligations. It is important to consider that disease outbreaks can last for significant periods of time and any ‘temporary’ emergency legislation might in fact need to be in place for many years.

The more safeguards we put in place in advance and the more consideration that is given now, then the more chance we have of creating a public health pandemic framework that respects human rights and ensures their protection.

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Call for Papers - 1st HEC Paris Workshop on Regulation

Emergency Regulation under the Threat of a Catastrophe: A Hard Look at the Volcanic Ash Crisis. Deadline 15 September 2010. Click here to view full details. 

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