Limiting human rights during COVID-19 – is it only legitimate if it is proportional?

The normative standards in international human rights obligate governments to respect, protect and fulfil the human rights of all people in their territory. Following the World Health Organization declaring COVID-19 a pandemic on 11 March 2020, many state parties across the globe introduced harsh lockdown containment measures with severe wide-ranging interference with fundamental human rights on a scale unseen in living memory. Democratic and totalitarian state parties misused their emergency powers with a flagrant disregard for constitutional limits to policymaking. COVID-19-related regulations infringed the fundamental rights of billions of people around the world − the right to personal liberty, freedom of assembly and association, freedom of movement, freedom of religion, the right to work and earn a living and the right to education, to name but a few. A pertinent question arising from this scenario is whether the lockdown containment measures adopted by state parties to the International Covenant on Civil and Political Rights exceed the limits of what is strictly necessary to combat the spread of an infectious disease with a crude mortality rate of 0,14% in the USA and 0,081 in South-Africa. This article examines the notion that the limitation of fundamental human rights by the lockdown regulations of state parties is legitimate only if it is proportional. Proportionality is the mainstay of the protection of human rights in many Western democracies and the most important standard that must be met with regard to human rights restrictions. It is a substantive requirement as it defines how far governments may go in limiting fundamental human rights.De Rebus SA's Attorneys Journal May 2021 14 - 1