Human Rights During the Pandemic


With Bernard Duhaime and Vardit Ravitsky 





Vardit Ravitsky: Since the beginning of the pandemic, as we were following the medical and scientific debates and discoveries as closely as possible, we became aware of another phenomenon that was somewhat unexpected for many of us: the confrontation between the powers of governments and individual rights, in the context of a public health crisis. But early on, BernardDuhaime, professor of international law at the Université du Québec à Montréal, came to the conclusion that this debate would be one of the most relevant. 


Bernard Duhaime: During the crisis, I observed human rights issues and the pandemic. I set up a small research team with volunteers and a colleague at the university. We produced a research report for a non-governmental organization, in which we essentially studied the impacts exceptional measures, especially during a pandemic like this one, can have on our rights. Another big part of the work I did during this whole pandemic was as a member of the Working Group on Enforced or Involuntary Disappearances at the United Nations, a special procedure of the Human Rights Council. We examined the impact of government policies on the issue of enforced disappearances, adopted in the context of COVID-19. We adopted a series of very important recommendations, which were made public during the pandemic. They deal, for example, with the fact that public forces used the pandemic as an excuse to justify the capture of certain people, and then refused to reveal their whereabouts. Therefore, they were making “enforced disappearances” as defined by the international law. But we also discussed the pandemic’s impact on the work of families and human rights organizations, in their search for missing persons who are likely held by the authorities in a clandestine manner.


Vardit Ravitsky: Can you give us some examples of human rights that normally, in non-pandemic times, the people and the public take for granted, but that were almost violated or clearly limited during the implementation of health measures? Can you give us some concrete examples? 


Bernard Duhaime: On the one hand, there’s obviously the fact that this is an exceptional situation, and thus governments are adopting exceptional measures that can sometimes suspend or limit certain guarantees or rights. And in the case of our study, we were mainly interested in issues related to freedom of movement, access to information and discrimination. We were obviously interested in the impacts the pandemic may have on more marginalized groups, or those more likely to be discriminated against. For instance, we’re thinking of migrants, who had more difficulties at the borders (some were completely closed in some cases), of groups of migrants who were prevented from entering.These are always populations that are more at risk. And yet, these are people who went to the front lines in many cases, accepting precarious and difficult jobs that exposed them to the pandemic. On the issue of access to information, as you know, several governments have chosen to censure the flow of information about the virus itself, but some have also used the context of the pandemic to limit it, either directly, by suspending access to certain public information, or indirectly, by using the pandemic as a pretext to excuse significant delays in requests for accessing public information which, of course, can have serious implications for human rights and democracy. 


Vardit Ravitsky: I would like to address an issue that is very interesting for the public at this time. You mentioned the right of movement, and we know that we are very limited in this regard today. In your opinion, is the curfew a real violation of our right of movement or can it be justified under the current circumstances? 


Bernard Duhaime: Measures to limit freedom of movement such as this can be justified in certain circumstances, but they must always obey criteria of necessity and proportionality and still be reasonable. It must always be done, obviously, without any discriminatory impact. And we have observed that in the case of past pandemics, often these types of measures were adopted with some discriminatory perspectives or they had discriminatory effects on certain groups, either on the people perceived as the cause of these pandemics, or on more vulnerable populations who have less protection of their rights. Think of migrants, for example, whose rights are often subject to repression or limitations. So, obviously, it’s always a question that must be studied case-by-case, depending on each measure adopted. But freedom of movement is a right that, under certain circumstances, can be subject to limitations.


Vardit Ravitsky: We talk about the pandemic as being this great revealer, this light that is thrown on injustices, on discrimination. What discriminatory effects do you see here in Canada that are particular to vulnerable or marginalized groups or populations here? 


Bernard Duhaime: Our study was not strictly about Canada. The objective is to have a broader look and comparative approaches, but certainly there have been impacts on the right to equal access to health care. We will recall the impact that this had in the CHSLDs for this category of older people, who were more vulnerable from a health perspective. There were also several indirect impacts on the right to health, especially when we think of this whole series of treatments that have been suspended couldn’t be provided as planned, especially in the case of quite serious diseases. So, we will obviously have to see how people who were not able to fully access these right to health’s benefits will be able to do so quickly, and thus limit the possible impacts on their health status. 


Vardit Ravitsky: Everyone is now talking about vaccine passports or vaccination certificates, which will be required for international travel or even for accessing social and cultural activities at home. Does this type of passport have important implications for human rights? 


Bernard Duhaime: This is a proposal that’s being discussed here and in other parts of the world, such as Europe. But obviously, this type of information or this type of document or measure could have impacts on people’s privacy and on their freedom of movement. This measure could have discriminatory effects, and effects on specific groups of the population. You’ll understand that I always come back to the issue of population groups that are exposed to situations of vulnerability. One of the things we’ve noticed in our work at the United Nations and in our study for Amnesty International with colleagues at the university is that measures like this often have a disproportionate impact on people from humbler socio-economic backgrounds, minorities or people in migratory situations. So, we will have to study the goal of such a passport. Is it to allow essential, strictly essential travel? Or is it to be adopted in completely different circumstances? At that point, depending on the need for such measures, we will no longer be in a position to assess whether their implied restrictions on human rights are proportional to those goals. 


Vardit Ravitsky: We’re coming towards the end of our conversation and we talked a lot about the negative impacts of these restrictions on human rights. In what you’ve seen over the past year, do you think there’s an opening for positive change in our society? 


Bernard Duhaime: This is an opportunity for us to do some introspection. What are our objectives as a society? For example, in Quebec, I think that the elderly have been marginalized for some time now. And the dangers to which they’re exposed, it’s not a new phenomenon, but it will bring radical changes in public policies for populations such as this one. I think that it can be a good thing to reflect rather severely on what has worked, what hasn’t and what has been in place for some time and should’ve been modified. Let’s think about the public, we’ve had to be self-critical of the different biases we had towards certain groups, whether it was before, during and soon after the pandemic. We have to realize that there were, for example, migrant populations without permanent residency who came to the front lines to work in the health care field, and thus exposing themselves to difficult conditions. This makes us think about how we should treat people who are willing to risk their lives and their health to live in our societies. So, I think that all these are positive elements that will help us to face what’s ahead of us. Because obviously, once the pandemic is over, our work will not be over. We’re gonna have to rebuild. We’re gonna have to make up for lost time, and that too is an extremely important issue that will require some very important thinking. What will we prioritize? Why? How will we fund these programs? And so on. You know, there are several public services that have been operating in slow motion and that will have to resume their operations at full speed, and this will also have consequences on the enjoyment of our rights. 


Vardit Ravitsky: You know, in the statement we wrote as the Committee on the impacts of COVID-19, we start from the assumption that everyone is eager to get back to a normal life, and we say no, we don’t want to go back to normal. We will go towards a society that approaches its problems much more responsibly than before. What elements of life do you want to see return to normal? And for which aspects would you like to see a change, whether on a social or personal level? 


Bernard Duhaime: We’re all anxious to be able to resume a more social life that’s a little closer to normal, to see our extended families, our good friends, and to be able to enjoy, collectively, different leisure activities. It’s definitely something we look forward to. Of course, there are some things that should not go back to what used to be called “normal”, such as policies that have had negative impacts on groups more likely to experience discrimination: seniors, migrants, aboriginal peoples, women, and youth who’ve suffered significant mental health or domestic violence issues in the past year. They must not go back to what used to be called “normal”. Normal meant somewhat closing our eyes in a hypocritical way, closing our eyes to injustices for the sake of our own comfort when, socially, we should all be taking responsibility and learning from this crisis! 


Vardit Ravitsky: I strongly agree with you. What a great way to end in a positive spirit, and appreciate what we always had before and what we hope to have back soon. Thank you so much, Bernard, for such a fascinating and informative conversation. 

Bernard Duhaime: Thank you, Vardit, and thank you for all the work you’ve done with us during this difficult time. See you soon. 

Vardit Ravitsky: See you soon. This concludes this episode of the Pierre Elliott Trudeau Foundation’s COVID-19 Impact Committee. We would like to extend a special thank you to McGill University and the Université de Montréal for allowing us to have this important discussion. Follow the Pierre Elliott Trudeau Foundation on Facebook, LinkedIn and Twitter to get updates from our community and, of course, to subscribe to the podcast. Until next time!