Do the containment measures taken by Italy in relation to COVID-19 comply with human rights law?

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Italians, like the citizens of other democratic countries in times of peace, have learned to take for granted certain civil liberties and freedoms, such as the freedom of movement and assembly. It suddenly became evident to them that the enjoyment of these rights can be limited as the country has now been put on lockdown by the government, in an attempt to contain the spread of COVID-19, a disease caused by a new coronavirus (SARS-CoV-2).

This post will enquire about the compatibility of the containment measures taken by the Italian government with Italy’s obligations under human rights law, and particularly with the European Convention on Human Rigths (ECHR) and with the International Covenant on Civil and Political Rights (ICCPR). While there are many human rights dimensions relevant to the issue of combating the spread of COVID-19, this post is limited to showing that the measures taken by the Italian government are so far compatible with human rights law. The myth that strict containment measures cannot be adopted in a democratic society should thus not be used as an excuse to avoid taking similar steps elsewhere to stop the COVID-19 pandemic.

COVID-19 and the necessity of containment measures

COVID-19 is a disease caused by a new coronavirus, which entails mostly respiratory symptoms. Human-to-human transmission of the disease occurs through the droplets released from the nose or mouth of an infected person. The first cases of COVID-19 were reported in the Hubei province in China in December 2019. In early January 2020, China notified the WHO about the outbreak and by the end of the month China was taking strict measures aimed at its containment, and including the complete sealing off of entire cities, the closure of businesses and schools, and prohibitions of travel and going outdoors.

A joint WHO-China report defines these measures as “the most ambitious, agile and aggressive disease containment effort in history” (p. 16). Most importantly, due to the modality of transmission of the virus, such measures aimed at reducing social contacts have been effective, and COVID-19 cases are now declining in China (p.17).

According to the same report,

Much of the global community is not yet ready, in mindset and materially, to implement the measures that have been employed to contain COVID-19 in China. These are the only measures that are currently proven to interrupt or minimize transmission chains in humans. (p. 19) (emphasis added)

The media have characterized the containment measures taken by China as “draconian” and shown skepticism about whether similar measures could be “replicate[d] in democratic countries with a greater emphasis on protecting civil liberties”. Wonder no more, as Italy, one of the most affected countries in the world in terms of numbers of COVID-19 cases (24747 confirmed cases as of 15 March), has just adopted severe containment measures, subjecting the 60 million people living in the country to unprecedented restrictions. 

Overview of the containment measures implemented by the Italian government as of 11 March 2020

The situation in Italy has been evolving fast, and so has the Italian government’s response. Based on Article 77 of the Italian Constitution, in extraordinary cases of necessity and emergency, the government can adopt decrees having the force of law, which are immediately binding upon adoption but require parliamentary ratification within 60 days.

On 23 February 2020, the government adopted Decree no. 6 empowering the President of the Council of Ministers, Giuseppe Conte, to issue further and more detailed decrees aimed at the containment of COVID-19. A series of decrees adopted by Conte first instituted a containment zone concerning only the most affected areas of the country, and later went as far as extending increasingly stringent measures to the entire national territory. As of 11 March 2020, the following restrictions are provided by law in Italy.

All gatherings of people are forbidden, and the movement of people is restricted – including within the same town – to exceptional circumstances of necessity (e.g. buying groceries), health reasons and demonstrated work-related exigencies. People circulating anywhere on the national territory, including on foot, can be stopped by law enforcement officials and asked to make a written declaration justifying how their being outside falls within one of these exceptions. All retail trade is suspended, save for essential goods (including food, medicines and their supply chains) and banking, financial and insurance services. Bars, restaurants, museums, cinemas, theaters, hairdressers, gyms, pools, ski resorts and the like are closed, and so are schools and universities (distance learning has been implemented). All sport and cultural events are cancelled and no religious or civil ceremonies (including funerals) can take place. Places of worship can be open only in so far as they can allow for social distancing. In-person prison visits have been suspended and new prisoners are screened for the virus upon arrival to the detention centers. Employers are encouraged to let their employees work from home or take paid leave of absence. Workers in the health sector, however, cannot take any leave.

The violation of any of these provisions amounts to a criminal offense, punished with detention up to 3 months or a fine up to 206€ pursuant to Article 650 of the Italian Penal Code. Additionally, individuals who have tested positive to the coronavirus and defy mandatory quarantine can be prosecuted pursuant to Articles 438 or 452 of the Penal Code, with penalties going up to life imprisonment.

The decrees are valid for a few weeks. Based on the Chinese experience, the government expects to see some results regarding the slow-down of the spread of the epidemic within this timeframe, before evaluating what measures to take next.

Milan Central Station, 11 March 2020 (Vittorio Zunino Celotto/Getty Images).

The compatibility of the containment measures with human rights law

The containment measures adopted by the Italian government evidently have a huge impact not only on the economy of the country but also on the daily life of the 60 million people subjected to them and on their enjoyment of personal freedoms. Calls to take containment measures that respect human rights have been issued by scholars as well as by the UN High Commissioner for Human Rights and the WHO Director-General.

It is worth recalling that some human rights (such as the freedom from torture and slavery) are absolute and allow for no limitations, balancing with other rights or derogations. However, most human rights are not absolute and can be restricted, albeit within certain limits. Limitations/restrictions to non-absolute rights are allowed when they are prescribed by law, pursuant to a legitimate aim and when such limitation is necessary in a democratic society and proportionate to the identified legitimate aim. Limitations allow for the balancing of individual and collective interests and are built into several provisions of the ICCPR and the ECHR (and its Protocols), to which Italy is a party.

While worded in slightly different ways, both the ECHR and the ICCPR identify legitimate aims including national security, public safety, public order, public health or morals, as grounds for limiting – by law and when necessary and proportionate to such identified aims – the following rights: the right to respect for private and family life (Art. 8 ECHR), freedom to manifest one’s religion or belief (Art. 9 ECHR and Art. 18 ICCPR), freedom of expression (Article 10 ECHR and Art. 19 ICCPR), freedom of assembly and association (Art. 11 ECHR and Arts 21-22 ICCPR), freedom of movement (Art. 2 ECHR Protocol no. 4 and Art. 12 ICCPR).

The containment measures outlined in the decrees recently adopted by the Italian government seem fully in compliance with the limitations imposed by the ECHR and ICCPR to the enjoyments of these fundamental rights. In particular, they have been adopted by law, with the legitimate aim of protecting public health from an epidemic and are both necessary and proportionate. In fact, measures limiting social contacts are not simply adequate, but have in fact proven to be the only effective ones to limit the spread of the new coronavirus. Moreover, the measure taken by the Italian government are strictly limited – materially, temporally, and initially also geographically – to the exigencies of the situation.

Additionally, both the ECHR (Art. 4(3)(c)) and the ICCPR (Art. 8(3)(c)(iii)) exclude from the definition of forced or compulsory labor, which is prohibited under both treaties, “any service exacted in case of an emergency or calamity threatening the life or well-being of the community”. The prohibition for Italian health workers to take days off falls squarely within such clause. The right to personal freedom is clearly also impacted by the containment measures, particularly in so far as the mandatory quarantine of individuals who tested positive to the new coronavirus goes. Deprivation of liberty, including by involuntary hospitalization and mandatory quarantine at home, in this case is mandated by law and not arbitrary under Article 9 ICCPR. Notably, “the lawful detention of persons for the prevention of the spreading of infectious diseases” is also one of the six lawful grounds of detention exhaustively identified by Article 5 ECHR.

So far, the containment measures taken by the Italian government appear to be consistent with Italy’s human rights obligations. Exceptionally, further restrictions could take place not through simple limitations, but rather through derogations. While some provisions of the ECHR and the ICCPR cannot be derogated from in any circumstance, both instruments allow for derogations to some obligations in times of public emergency threatening the life of a nation (Art. 4 ICCPR and Art. 15 ECHR). Derogations are allowed only to the extent that they are strictly required by the exigencies of the situation and are not inconsistent with the State’s other obligations under international law. Derogations must also follow the procedure outlined in the relevant treaty provisions. In General Comment No. 29 (at para. 5), the Human Rights Committee, explained that

“If States purport to invoke the right to derogate from the Covenant during, for instance, a natural catastrophe, a mass demonstration including instances of violence, or a major industrial accident, they must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measures derogating from the Covenant are strictly required by the exigencies of the situation. In the opinion of the Committee, the possibility of restricting certain Covenant rights under the terms of, for instance, freedom of movement (art. 12) or freedom of assembly (art. 21) is generally sufficient during such situations and no derogation from the provisions in question would be justified by the exigencies of the situation.”

These considerations would seem applicable also in case of an epidemic, which was not explicitly considered by the Committee. If the Italian government thus decided to take further steps and derogate from some of its obligations under human rights law, it would have to justify such an extreme choice accordingly.

Conclusion

While the analysis conducted in this post shows that the containment measures taken by the Italian government do comply with Italy’s obligations under human rights law, I do not deny that combating the COVID-19 pandemic poses many challenges to the protection of human rights. One must also recognize, however, that, based on evidence coming from China and from the first areas impacted by the outbreak and by the measures in Italy, stringent measures to limit social interactions seem to be the only effective way of addressing this global crisis. While governmental action with respect to containment measures should be constantly monitored in relation to human rights standards, we should encourage the taking of containment measures enforcing social distancing, which temporarily curtail some of our individual rights for the sake of protecting public health. The pressing need for drastic measures is evident when one juxtaposes the current critical situation in Italy – a developed country with an excellent public healthcare system – with the unpreparedness, crowdedness and lack of access to healthcare in other countries or in places like refugee and IDP camps. Italians are largely (and uncharacteristically) complying with the measures that have been ordered and are being enforced by the government. Hopefully, the Italian example will show and that such severe containment measures can and must be taken by other democratic governments in Europe and elsewhere, fully respecting human rights law.

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Ed Robinson says

March 16, 2020

Thanks for a very interesting and informative discussion Alessandra. The question of necessity, i.e. whether or not the public health objectives could be achieved effectively by less restrictive measures, would seem to be central here? In the circumstances I imagine Italy would have considerable latitude, although I also imagine there is room for debate regarding particular measures?

In addition to what restrictions are permitted by IHRL, there's also the question of what restrictions are required by it; such as what the ECHR Article 2 positive obligation requires states to do in the face of a 'real and immediate risk' to life posed by the virus. I see this morning that in Northern Ireland a human rights challenge is being brought to the decision to leave schools open, for example: https://www.belfasttelegraph.co.uk/news/health/coronavirus/coronavirus-parents-of-children-with-health-issues-launch-legal-bid-to-have-northern-ireland-schools-closed-39046274.html

Letizia Lo Giacco says

March 16, 2020

Thank you Alessandra for this important clarifications! It would be interesting to explore the issue from a flip side perspective, namely to what extent states' failure to adopt measures to counter/contain COVID-19 amount to a breach of due diligence obligations under IHRL, especially in those case where the risk is publicly acknowledged as unprecedented and leading to many deaths.

Adriana Privitera says

March 16, 2020

Grazie infinite Alessandra per la chiarezza dell 'articolo, la capacità di sintesi e la relazione interessante tra efficacia e misure adottate nel rispetto della tutela dei diritti umani.

franco correzzola says

March 16, 2020

Well done, but I got the feeling that we miss the target here...
What make me more disappointed from the set of rules in the mentionend decrees is the fact they never used the term "everybody is prohibited to move outside home"... this was only said on TV by the Prime Minister.
Let me clear the point: DPCM 8th March described more possibly situations, given different rules for each of them.
a) "evitare ogni spostamento... salvo che per gli spostamenti motivati da comprovate esigenze..." (roughly, it has to be avoid any unnecessary movement) giving a wide margin of discretionary evaluation of such necessity;
b) any person who is affected from fever (more than 37,5 degre) or respiratory problems is strongly suggested to stay home;
c) if a person was positive to the COVID19 test (or diagnosed) he is obliged to stay home (i.e. absolute prohibition to move out).
It is quite evident that the order to stay home was set only for the last of the above hyphotesis.
The following decrees never modified such provisions.
So far, the administrative and police autorithies are prosecuting people for a crime ex art. 650 c.p. (criminal law) who punishes anybody who fail to comply an order motivated from a public health emergency.
The more, they introduced an arbitrary request to anyone stopped to sign a "declaration of reason to move" (BTW referring to a misleaded law) in order to prosecute them for a heavier crime.
In conclusion, you have the right to limit my freedom in such a circumstances, but only if you are very detailed and respecting my right of defence.

Vincent Bulus says

March 20, 2020

Great write up by author. I found it highly resourceful for my course this semester a lot. Bravo!!!!

Vincent Bulus Ph.D

Leave a Comment

Your comment will be revised by the site if needed.

Comments

7 comments

Ed Robinson says

March 16, 2020

Thanks for a very interesting and informative discussion Alessandra. The question of necessity, i.e. whether or not the public health objectives could be achieved effectively by less restrictive measures, would seem to be central here? In the circumstances I imagine Italy would have considerable latitude, although I also imagine there is room for debate regarding particular measures?

In addition to what restrictions are permitted by IHRL, there's also the question of what restrictions are required by it; such as what the ECHR Article 2 positive obligation requires states to do in the face of a 'real and immediate risk' to life posed by the virus. I see this morning that in Northern Ireland a human rights challenge is being brought to the decision to leave schools open, for example: https://www.belfasttelegraph.co.uk/news/health/coronavirus/coronavirus-parents-of-children-with-health-issues-launch-legal-bid-to-have-northern-ireland-schools-closed-39046274.html

Letizia Lo Giacco says

March 16, 2020

Thank you Alessandra for this important clarifications! It would be interesting to explore the issue from a flip side perspective, namely to what extent states' failure to adopt measures to counter/contain COVID-19 amount to a breach of due diligence obligations under IHRL, especially in those case where the risk is publicly acknowledged as unprecedented and leading to many deaths.

Adriana Privitera says

March 16, 2020

Grazie infinite Alessandra per la chiarezza dell 'articolo, la capacità di sintesi e la relazione interessante tra efficacia e misure adottate nel rispetto della tutela dei diritti umani.

franco correzzola says

March 16, 2020

Well done, but I got the feeling that we miss the target here...
What make me more disappointed from the set of rules in the mentionend decrees is the fact they never used the term "everybody is prohibited to move outside home"... this was only said on TV by the Prime Minister.
Let me clear the point: DPCM 8th March described more possibly situations, given different rules for each of them.
a) "evitare ogni spostamento... salvo che per gli spostamenti motivati da comprovate esigenze..." (roughly, it has to be avoid any unnecessary movement) giving a wide margin of discretionary evaluation of such necessity;
b) any person who is affected from fever (more than 37,5 degre) or respiratory problems is strongly suggested to stay home;
c) if a person was positive to the COVID19 test (or diagnosed) he is obliged to stay home (i.e. absolute prohibition to move out).
It is quite evident that the order to stay home was set only for the last of the above hyphotesis.
The following decrees never modified such provisions.
So far, the administrative and police autorithies are prosecuting people for a crime ex art. 650 c.p. (criminal law) who punishes anybody who fail to comply an order motivated from a public health emergency.
The more, they introduced an arbitrary request to anyone stopped to sign a "declaration of reason to move" (BTW referring to a misleaded law) in order to prosecute them for a heavier crime.
In conclusion, you have the right to limit my freedom in such a circumstances, but only if you are very detailed and respecting my right of defence.

Vincent Bulus says

March 20, 2020

Great write up by author. I found it highly resourceful for my course this semester a lot. Bravo!!!!

Vincent Bulus Ph.D