State Responsibility for the (Public) Right to Health and Security in Times of Covid Pandemic

• Author: Sascha-Domimik (Dov) Bachmann/Joachim Sanden
• Position: Canberra Law School, Australia/Ministry of Urban Development and Environment of the Free and Hanseatic City of Hamburg, Germany
• Pages: 407-430

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2017 e Institute for Migrant Rights Press

Professor Sanden sadly passed away before the completion of this article. In the

memory of Professor Sanden, Professor Bachmann dedicates this article to his life

and work as an academic, state civil servant and personal friend .

statE rEsPonsiBility for thE (PuBliC)

right to hEalth and sECurity in

timEs of Covid PandEmiC

A europeAn perspeCtive

Sascha-Dominik (Dov) Bachmann

Canberra Law School, Australia

e-mail: sascha.bachmann@canberra.edu.au

Joachim Sanden

e Ministry of Urban Development and Environment of the Free and

Hanseatic City of Hamburg, Germany

is article discusses the consequences of the broader concept of health as a

security concept under the applicable law of the European Convention on Hu-

man Rights (ECHR) in the case of serious threats of to public health. Based on

judgments by the European Court of Human Rights, a positive obligation of the

Member States to act proactively towards health protection can be extracted

from Article 5 (1) ECHR (liberty and security). e paper explores the scope of

this provision in times of a public health emergency like a pandemic, a prolonged

natural hazard or bioterrorism to protect a citizen´s health and life. is arti-

cle has particular relevance before the present global Coronavirus (COVID-19)

pandemic. Specically, it argues in favour of a government’s right and duty to

keep its citizens safe from harm by providing an ECHR perspective on govern-

mental duties to act in a proactive way when dealing with public health emer-

gencies while at the same time balancing its human rights obligations.

Keywords: Human Rights, European Convention on Human Rights, Europe-

an Court of Human Rights, Bioterrorism, Health Crisis, State Responsibility.

VII Indonesian Journal of International & Comparative Law 407-30 (July 2020)

408

Bachmann & Sanden

INTRODUCTION

e current Coronavirus (COVID-19) health emergency and pandemic

was detected rst in Wuhan, China, in December 20191 and has spread

at the time of the writing of this article and at least killed 530,900 peo-

ple.2 Its high mortality rate of potentially 3.4% of the infections glob-

ally3 and its continuing spread highlight the potential of COVID-19 of

becoming a global pandemic. Consequently governments across the

globe are trying to contain the spread by rstly promoting informa-

tion to their populations on how to reduce the risk of spreading of the

virus as part of pandemic preparedness and secondly adopting strict

countermeasures including quarantine and travel restrictions, bans re-

spectively, to atten the curve. e overall impact on the lifes of people

across the world, international trade and commerce is signicant and

has the potential to severely aect the overall outlook for the global

economy for years to come.4

Against the backdrop of the current global COVID-19 pandemic

this article looks at state duties under the European Convention on

Human Rights of 1950 (hereinaer: ECHR) as a positive state duty to

1. W H O., Q&A on coronaviruses (COVID-19) (Apr. 17,

2020), available at https://www.who.int/emergencies/diseases/novel-

coronavirus-2019/question-and-answers-hub/q-a-detail/q-a-coronaviruses

(last visited July 5, 2020).

2. See e.g., Coronavirus Map: Tracking the Global Outbreak, N.Y. T, https://

www.nytimes.com/interactive/2020/world/coronavirus-maps.html (last

updated July 5, 2020).

3. Berkeley Lovelace, Jr. & Noah Higgins-Dunn, WHO says coronavirus death rate

is 3.4 % globally, higher than previously thought, CNBC (Mar. 3 2020), available

at https://www.cnbc.com/2020/03/03/who-says-coronavirus-death-rate-is-

3point4percent-globally-higher-than-previously-thought.html. e mortality

rate for COVID-19 is not denite as scientic reports were only being written

at the time this article was concluded in May 2020. See also Smriti Mallapaty,

How deadly is the coronavirus? Scientists are close to an answer, N (June

16, 2020), https://www.cnbc.com/2020/03/03/who-says-coronavirus-death-

rate-is-3point4percent-globally-higher-than-previously-thought.html.

4. Philipp Carlsson-Szlezak, Martin Reeves & Paul Swartz, What Coronavirus

Could Mean for the Global Economy, Harv. Bus. Rev. (Mar. 3, 2020), available

at https://hbr.org/2020/03/what-coronavirus-could-mean-for-the-global-

economy (last visited July 5, 2020).