tag:theconversation.com,2011:/us/topics/emergency-powers-84369/articlesEmergency powers – The Conversation2021-11-17T14:13:14Ztag:theconversation.com,2011:article/1719112021-11-17T14:13:14Z2021-11-17T14:13:14ZAustria’s lockdown for the unvaccinated: what does human rights law say?<p>As winter sets in across Europe, <a href="https://www.bbc.co.uk/news/world-europe-59160525">COVID-19 cases are beginning to rise</a>, despite the vast roll-out of mass vaccination programmes earlier this year. Austria’s government has pointed the finger of blame firmly at the unvaccinated, announcing a new lockdown only for those who have not had the jab. </p>
<p>Like other pandemic policy decisions, this lockdown raises questions about how far states can take emergency powers, and whether they will violate human rights law in doing so. What might the European Convention on Human Rights say about this particular case? </p>
<p>In justifying his country’s new policy, the Austrian chancellor, <a href="https://www.theguardian.com/world/2021/nov/15/austrian-police-carry-out-routine-checks-unvaccinated-enter-lockdown-covid">Alexander Schallenberg, said</a>: “My aim is very clear: to get the unvaccinated to get vaccinated, not to lock up the unvaccinated.” The move is an attempt to get people to get vaccinated without making vaccination compulsory. In this sense, it may be seen as less intrusive on human rights than compulsory vaccination. </p>
<p>While Austria’s new lockdown is different from earlier lockdowns. by drawing a clear distinction between the vaccinated and unvaccinated, any challenge based on discriminatory treatment is unlikely to succeed. The lack of antibodies against specific disease is not a “protected characteristic” under discrimination law.</p>
<p>Many European states have <a href="https://www.dw.com/en/mandatory-covid-vaccines-a-controversy-across-europe/a-59742720">already introduced</a> compulsory vaccinations for certain sectors such as healthcare professionals and other public sector workers. Notably, in a case earlier this year, the European Court of Human Rights held that compulsory vaccination of children for certain diseases does not necessarily <a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-209039%22%5D%7D">violate human rights</a>.</p>
<p>The case, from pre-pandemic days, centred on the Czech Republic’s requirement that children be vaccinated against nine diseases to be allowed attend nursery school. The court found that this did not violate the right to respect for private life, as the policy pursued the legitimate aim of protecting health and the lives of others. It was also not a blanket ban on unvaccinated children attending school. Additionally, several grounds for exemption were built into the programme and it did not apply to older children who had reached primary school age. </p>
<p>This case therefore means that a compulsory vaccination policy does not, on its face, violate convention rights. But much will depend upon the actual policy in question. Many European states are requiring vaccines on a sector-by-sector basis – which, for those working in sectors where vaccinations are required, presents a stark choice: choose to get vaccinated or choose not to work.</p>
<p>Austria’s new policy may be viewed in a similar vein: choose to get vaccinated, or choose to go into lockdown. This may be the closest we get to mandatory vaccinations, as legally requiring everybody in a state to get vaccinated would probably be practically unworkable. </p>
<p>Whether Austrians now have free choice on whether to get vaccinated is a debate the European Court of Human Rights will be reluctant to get involved in. In the Czech case, the court stated that states have a “wide margin of appreciation” when assessing how best to strike the balance between individual freedom and the greater good. While this does not give states <em>carte blanche</em>, it does mean the court will largely defer to individual states’ views on this issue.</p>
<h2>Human rights and the pandemic</h2>
<p>The court’s reluctance to interfere can be seen in some of the early human rights cases of the pandemic. Earlier this year, it found a challenge against Romania’s lockdown laws <a href="https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7024603-9478039&filename=Decision%20Terhes%20v.%20Romania%20-%20lockdown%20ordered%20by%20the%20authorities%20to%20tackle%20the%20COVID-19%20pandemic%20could%20not%20be%20equated%20with%20house%20arrest.pdf">to be “inadmissible”</a> because the Romanian MEP who brought the case failed to show that lockdowns were particularly injurious to him. Lockdowns were, according to the court, very clearly a “restriction”, not a deprivation of liberty, and so did not violate the convention’s right to liberty under <a href="https://www.echr.coe.int/Documents/Convention_ENG.pdf">Article 5</a> of the European Convention on Human Rights.</p>
<p>This is not to say that other convention rights may not also be affected by lockdowns. The right to <a href="https://www.echr.coe.int/documents/guide_art_8_eng.pdf">private family life</a>, or <a href="https://www.echr.coe.int/Documents/Guide_Art_11_ENG.pdf">the right to freedom of association</a> may be affected. But again it is likely that a wide margin of appreciation will be afforded to states. </p>
<p>It is understandable that courts may not wish to tie the government’s hands behind its back when responding to a crisis such as the pandemic. Lockdowns are a vital response to the pandemic and can even be justified on human rights grounds as protecting people’s right to life. But we may nevertheless be uneasy about courts’ hands-off approach and the legal manner in which lockdowns have been enacted. </p>
<p>In my book <a href="https://bristoluniversitypress.co.uk/emergency-powers-in-a-time-of-pandemic">Emergency Powers in a Time of Pandemic</a>, I argue that states should have formally declared emergencies in accordance with Article 15 of the European Convention on Human Rights so as to “quarantine exceptional powers to exceptional situations”. This way, any “hands-off” court ruling allowing these exceptional powers cannot be used to justify similar interference of human rights outside the pandemic. For example, ensuring that states do not introduce similar lockdown powers to deal with less obvious threats such as terrorism when there does not exist a “public emergency threatening the life of the nation”.</p>
<p>Whether other states follow Austria’s lead on selective lockdowns is likely to depend on how successful it is in increasing vaccination rates and stopping cases. But the long-term human rights legacy of these powers will not be clear until long after the pandemic has waned.</p><img src="https://counter.theconversation.com/content/171911/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alan Greene does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Pandemic politics have continually raised questions about emergency powers and freedom.Alan Greene, Reader in Constitutional Law and Human Rights, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1716002021-11-15T03:48:19Z2021-11-15T03:48:19ZVictoria’s controversial pandemic bill: 6 ways for the government to show it is serious about scrutiny<p>Victoria’s <a href="https://www.legislation.vic.gov.au/bills/public-health-and-wellbeing-amendment-pandemic-management-bill-2021">Pandemic Management Bill</a>, designed to replace the current state of emergency powers in pandemic emergencies, has swiftly become one of the state’s most polarising pieces of legislation. </p>
<p>Amid the politics, public fear-mongering and <a href="https://www.theage.com.au/national/victoria/guy-distances-liberals-from-protesters-who-hurled-death-threats-20211114-p598sb.html">death threats</a>, there appears to be a growing consensus among lawyers the bill would bring positive changes to the way emergency powers have been exercised during the COVID pandemic. Still, it needs improvement.</p>
<p><a href="https://pursuit.unimelb.edu.au/articles/the-need-for-more-parliament-in-victoria-s-pandemic-bill">Public law academics</a>, the <a href="https://publicintegrity.org.au/welcome-changes-new-pandemic-laws-worthy-of-cautious-optimism/">Centre for Public Integrity</a>, the <a href="https://www.hrlc.org.au/news/2021/11/10/victorias-pandemic-law-new-safeguards-welcome-but-further-improvements-needed">Human Rights Law Centre</a>, the <a href="https://www.liv.asn.au/Staying-Informed/Submissions/submissions/November-2021/LIV-Position-Paper-in-response-to-the-Public-Healt">Law Institute of Victoria</a>, <a href="https://libertyvictoria.org.au/content/liberty-victoria-comment-public-health-and-wellbeing-amendment-pandemic-management-bill-2021">Liberty Victoria</a>, and a growing number of <a href="https://www.abc.net.au/news/2021-11-09/victorian-covid-pandemic-laws-dan-andrews-parliament-bill/100607240">barristers</a> are calling for key amendments to the bill, as well as an independent review of the law a year after its enactment.</p>
<p>The government’s powers rapidly expanded during the COVID pandemic. Here are six amendments to the pandemic bill we think the government must adopt to ensure these powers are used in a fair and accountable manner. </p>
<h2>1) Give parliament stronger oversight</h2>
<p>A fundamental democratic principle in Australia - called responsible government - is the ability of parliament to hold the executive branch (the premier and other ministers) to account. Parliament does this by asking questions, requiring documents to be released, and reporting on the government’s actions to the public.</p>
<p>Already, the bill includes stronger mechanisms to ensure parliament can hold the premier and health minister accountable during pandemic emergencies. For instance, it calls for the <a href="https://www.parliament.vic.gov.au/sarc/">Scrutiny of Acts and Regulations Committee</a> (otherwise known as SARC) to review the legality of public health directions, including their compatibility with the <a href="https://www.humanrights.vic.gov.au/legal-and-policy/victorias-human-rights-laws/the-charter/">Victorian human rights charter</a>. </p>
<p>However, the bill risks using the SARC to create a veneer of scrutiny only. As the <a href="https://www.vicbar.com.au/news-events/summary-victorian-bar%E2%80%99s-submission-department-health-and-expert-reference-group-public">Victorian Bar</a> has argued, amendments are needed to ensure the SARC has the powers and time to conduct those reviews effectively.</p>
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<a href="https://theconversation.com/victorias-draft-pandemic-law-is-missing-one-critical-element-stronger-oversight-of-the-governments-decisions-170623">Victoria's draft pandemic law is missing one critical element – stronger oversight of the government's decisions</a>
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<p>The bill should <a href="https://theconversation.com/victorias-draft-pandemic-law-is-missing-one-critical-element-stronger-oversight-of-the-governments-decisions-170623">also follow</a> emerging global best practice and create a specialised cross-party parliamentary committee that would immediately start operating when a pandemic declaration is put into effect. </p>
<p>This already exists at the federal level with the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/COVID-19/COVID19">Senate Select Committee on COVID-19</a>, which reviews the Commonwealth government’s actions in response to the pandemic. New Zealand also created a cross-party <a href="https://www.parliament.nz/en/visit-and-learn/history-and-buildings/special-topics/epidemic-response-committee-covid-19-2020/">Epidemic Response Committee</a> that reviews that government’s pandemic-related responses. </p>
<p>This kind of committee would have broader oversight powers of the executive and, therefore, work in conjunction with the more detailed reviews carried out by the SARC.</p>
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<h2>2) Bolster the expert oversight committee</h2>
<p>The pandemic bill creates an expert committee (including public health, law, and Indigenous rights experts) to provide advice to the health minister. However, there is little guarantee this committee would be independent from the minister, or that it would have the resources and powers it needs to do its job. </p>
<p>A merits-based appointment process should be introduced to guarantee the independence and calibre of the committee. It must include public lawyers and have a mandate to provide advice to the government on whether certain measures would infringe on fundamental human rights. </p>
<p>Finally, the committee must report to parliament, rather than to the minister.</p>
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Read more:
<a href="https://theconversation.com/have-our-governments-become-too-powerful-during-covid-19-147028">Have our governments become too powerful during COVID-19?</a>
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<h2>3) Create an emergency review mechanism</h2>
<p>One serious deficiency of the bill is its failure to provide for an expedited and independent merits review for individuals who might be detained or fined for breaching public health orders. This kind of mechanism would provide a way for people to contest a fine or detention if they believe it’s unlawful. </p>
<p>Given the significance of these powers, the inclusion of a no-cost, expedited and independent merits review process is essential – an emergency review for emergency powers. </p>
<p>This role could be performed by the ombudsman, or by the Victorian Civil and Administrative Tribunal (VCAT), and it must be properly resourced.</p>
<h2>4) Protect safe protest</h2>
<p>The bill contains no protections of the right to safe protest. The right to peaceful protest is fundamental to a liberal democracy, and is protected under the Australian constitution, the Victorian human rights charter and international law. It is <a href="https://theconversation.com/is-protesting-during-the-pandemic-an-essential-right-that-should-be-protected-136512">essential</a> during a pandemic. </p>
<p>The bill should accommodate “safe” protest that follows proper health guidelines by recognising it as an “essential” activity, similar to food shopping and exercise. </p>
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Read more:
<a href="https://theconversation.com/is-protesting-during-the-pandemic-an-essential-right-that-should-be-protected-136512">Is protesting during the pandemic an 'essential' right that should be protected?</a>
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<p>One example is allowing for socially distanced or sit-in protests (as have occurred in <a href="https://www.pbs.org/newshour/world/israeli-demonstrators-find-ways-to-protest-in-virus-era">Israel</a> and elsewhere during the pandemic), or a drive-by car protest that accords with social distancing rules.</p>
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<img alt="A socially distanced protest in Israel." src="https://images.theconversation.com/files/431867/original/file-20211115-6434-uksj7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/431867/original/file-20211115-6434-uksj7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/431867/original/file-20211115-6434-uksj7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/431867/original/file-20211115-6434-uksj7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/431867/original/file-20211115-6434-uksj7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/431867/original/file-20211115-6434-uksj7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/431867/original/file-20211115-6434-uksj7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A socially distanced protest against the Israeli government last May.</span>
<span class="attribution"><span class="source">Ariel Schalit/AP</span></span>
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<h2>5) Require justification of measures targeted at specific groups</h2>
<p>The bill currently permits a pandemic order to apply differently to people with various attributes protected under the Victorian Equal Opportunity Act, such as age and pre-existing medical conditions. The government has noted this could also include how an order applies to vaccinated versus unvaccinated people.</p>
<p>Such a differentiation may be supported if it relates to a person’s health profile. However, the attributes in the Equal Opportunity Act also include race and political and religious beliefs (among many others). This means the bill has a wider remit than just a person’s health profile. </p>
<p>This aspect of the bill has therefore led to significant <a href="https://www.sbs.com.au/news/victoria-s-proposed-pandemic-laws-trigger-melbourne-protest/627209d1-9043-4a8d-ab1b-29e3cad4eb29">community backlash and concern</a>.</p>
<p>The preferable means to deal with this is to amend the bill to ensure the health minister must justify any differentiation in pandemic restrictions or policies on health grounds. </p>
<h2>6) Require a mandatory two-year review</h2>
<p>In light of the lack of adequate time for meaningful consultation on the bill – and the serious concerns that experts have about the appropriateness of its safeguards – we recommend it should have a sunset clause. This means the law would automatically terminate after a set period of time, such as two years.</p>
<p>An alternative would be a mandatory independent review (for instance by a retired judge), to be completed within two years of the law being enacted. </p>
<p>These suggestions would allow the government to respond to the current COVID pandemic under an improved legislative framework, but also require it to conduct further consultation and review before enacting a more permanent law.</p><img src="https://counter.theconversation.com/content/171600/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby is a member of the Executive Power Project Committee for the Centre for Public Integrity. She is the constitutional consultant to the Clerk of the Commonwealth House of Representatives. She teaches the annual parliamentary law, practice and procedure course for the Australian and New Zealand Association of Clerks at the Table (ANZACATT). Gabrielle is a director of The Wilderness Society Ltd.</span></em></p><p class="fine-print"><em><span>Catherine Williams is Research Director at the Centre for Public Integrity</span></em></p><p class="fine-print"><em><span>Maria O'Sullivan previously received funding from the Commonwealth Attorney-General's Department and currently serves as a legal adviser on the Human Rights Panel with Queensland Parliamentary Services.</span></em></p><p class="fine-print"><em><span>William Partlett does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With Victoria’s parliament expected to vote on the bill this week, four legal experts recommend ways to make it better.Gabrielle Appleby, Professor, UNSW Law School, UNSW SydneyCatherine Williams, Research Director at the Centre for Public Integrity. Adjunct Research Fellow at La Trobe University, La Trobe UniversityMaria O'Sullivan, Associate Professor, Faculty of Law, and Deputy Director, Castan Centre for Human Rights Law, Monash UniversityWilliam Partlett, Associate Professor, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1446222020-08-18T09:34:31Z2020-08-18T09:34:31ZMauritius oil spill: potential government failures should be investigated – expert<p>The stranding of the MV Wakashio is one of the biggest environmental disasters in the history of the western Indian Ocean. While the full scale of the disaster is not yet known, the 1,000 tons of oil and diesel that leaked close to one of the greatest marine treasures of Mauritius <a href="https://www.forbes.com/sites/nishandegnarain/2020/08/14/toxic-in-the-tropics-the-invisible-killer-now-in-mauritian-waters/">threatens to destroy</a> this <a href="https://theconversation.com/mauritius-is-reeling-from-a-spreading-oil-spill-and-people-are-angry-with-how-the-government-has-handled-it-144288">precious habitat</a>. Recovery will be long and the disaster will occupy Mauritius for years to come.</p>
<p>Questions now arise: could the accident and the spill have been prevented? Was the country prepared? Did the coastguard and the company hired to pump oil from the stricken ship react in the right way?</p>
<p>Neither the government, nor the ship owner and salvage company will likely have an interest in such questions being answered. But an independent public investigation must be launched into the government and industry response to this disaster.</p>
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Read more:
<a href="https://theconversation.com/mauritius-is-reeling-from-a-spreading-oil-spill-and-people-are-angry-with-how-the-government-has-handled-it-144288">Mauritius is reeling from a spreading oil spill – and people are angry with how the government has handled it</a>
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<h2>Was the country unprepared?</h2>
<p><a href="http://www.safeseas.net/mauritius-oil-spill-was-the-government-unprepared/">The government was well aware of the risk</a>. Since the 1990s, Mauritius has received substantial capacity-building assistance to prevent an oil spill.</p>
<p>The country was a core beneficiary in two multi-million-dollar World Bank projects: the US$4-million <a href="https://documents.worldbank.org/en/publication/documents-reports/documentdetail/646901475073748617/africa-western-indian-ocean-islands-oil-spill-contingency-planning-gef">Western Indian Ocean Island Oil Spill Contingency Plan</a> from 1998 and 2003, and the US$24-million <a href="https://www.thegef.org/project/western-indian-ocean-marine-highway-development-and-coastal-and-marine-contamination">Western Indian Ocean Marine Highway Development and Coastal and Marine Contamination Prevention Project</a> from 2007-2012.</p>
<p>Mauritius receives support under the UN <a href="https://www.unenvironment.org/nairobiconvention/">Nairobi Convention</a> but also several <a href="https://doi.org/10.1080/01436597.2019.1660632">maritime security capacity building programmes</a> in the region. As late as March 2020, <a href="https://www.nairobiconvention.org/strengthening-preparedness-and-response-to-marine-spills-in-the-western-indian-ocean/">Mauritius gave an update on its preparedness</a> at an international workshop.</p>
<p>In <a href="https://doi.org/10.1080/01436597.2019.1660632">a recent article</a> we showed such capacity building is often experimental, focused too much on planning and strategy rather than implementation.</p>
<p>Yet Mauritius also had past experience. In 2016, a similar accident occurred. <a href="https://gcaptain.com/insurer-says-mv-benita-grounding-a-medical-issue-not-mutiny/">Back then the country was lucky</a> – the MV Benita, which crashed just 7km from Grand Port, not far from where the MV Wakashio is, sat for five weeks and was then refloated with the aim of towing to India, before <a href="https://theconversation.com/mauritius-is-reeling-from-a-spreading-oil-spill-and-people-are-angry-with-how-the-government-has-handled-it-144288">sinking 90km offshore of Mauritius</a>. A major oil spill was prevented in that case.</p>
<p>The fact that the country lacked a sufficient amount of equipment to rapidly contain the Wakashio spill, indicates that despite all the training and experience, Mauritius was still not prepared.</p>
<h2>Could the collision have been avoided?</h2>
<p><a href="https://www.forbes.com/sites/nishandegnarain/2020/08/09/how-satellites-traced-the-fateful-journey-of-the-ship-that-led-to--mauritius-worst-oil-spill-disaster/#ef32be65b428">Satellite evidence showed the Wakshio was on a collision course</a> to Mauritius, hitting the reefs at Pointe D’Esny at ocean-cruising speed. Its route clearly deviated from the traffic that usually passes by the island.</p>
<p>The coastguard could have detected this and sent out a patrol craft. While the capacity of the coastguard is limited, would it have been possible to reach the vessel in time before it hit?</p>
<h2>Was the reaction to the grounding appropriate?</h2>
<p>Once the Wakashio grounded, the coastguard was quick on site. Initial containment measures were taken and booms deployed. A salvage company was contracted to refloat the vessel and pump out the 4,000 tons of oil and diesel, yet two weeks after the initial collision not much had been done. On August 6 the environmental disaster started to unfold, when the first oil spilled. On August 15, the ship <a href="https://www.bbc.co.uk/news/world-africa-53797009">split in two</a>.</p>
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<p>The government indicated that <a href="http://www.govmu.org/English/News/Pages/Grounding-of-MV-Wakashio-at-Pointe-D%E2%80%99Esny-salvage-team-and-first-tug-PSV-Standford-Hawk-in-Mauritius.aspx">bad weather was to blame</a> for its slow response. Yet was there a discussion of alternative strategies? Did the contracted company have the right expertise to prevent an oil spill? Was there too much focus on pumping out oil and not enough on preventing a spill? How close was the crisis coordination between the government, the coastguard and foreign experts? </p>
<p>Oil spill start-ups, such as Harbo, <a href="https://www.harbo-technologies.com/">claim</a> that they could have been in the country within 24 hours after the initial grounding if they had been invited. Within 72 hours the appropriate equipment could have secured the vessel, preventing much of the consequences from a spill. Alternative courses of action for the government would have been available. </p>
<p>The vessel most likely would still have leaked oil and eventually split, yet the spread of the oil and the contamination of the shores may have been contained. </p>
<h2>Why was there no response from the region?</h2>
<p>The EU, the UK and other actors, as we <a href="https://www.palgrave.com/gp/book/9783030500634">show in a forthcoming book</a>, have substantially invested in building regional maritime security architecture in the western Indian Ocean. This includes a maritime surveillance centre as well as a centre for regional operational coordination designed to provide early warning and coordination in the region for emergencies like this.</p>
<p>It is bad news that after years of such efforts, the regional bodies were not equipped to react and respond in order to support the government of Mauritius.</p>
<h2>Action, not lip service</h2>
<p>These are only some of the questions that an independent inquiry into Mauritius’ ongoing predicament will have to investigate and assess. </p>
<p>An independent environmental assessment will also be required. And it will be in the hands of Mauritian civil society and the global community of conservation activists to ensure that a commission and inquiry is launched urgently.</p>
<p>The Indian Ocean Commission or the Indian Ocean Rim Association, active in governing the regional waters, could provide a format for this. Pressure and support from India, France or Japan and other states that have already provided emergency aid will also be necessary.</p>
<p>This inquiry will need also to offer recommendations for how a similar disaster in the region can be avoided and the architecture upgraded to offer faster response – developing a regional facility for example. And this time, action, not lip service, should be demanded of the Mauritian government.</p><img src="https://counter.theconversation.com/content/144622/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christian Bueger receives funding from from Economic and Social Research Council (ESRC), ES/S008810/1. His research is also supported by the Danish Ministry of Foreign Affairs under the Analysing Maritime Insecurity in Ghana (AMARIS) grant</span></em></p>Independent investigations will need to look into potential failures in response to the disastrous Mauritian oil spill.Christian Bueger, Professor of International Relations, University of CopenhagenLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1381142020-05-18T20:02:18Z2020-05-18T20:02:18ZAre New Zealand’s new COVID-19 laws and powers really a step towards a police state?<figure><img src="https://images.theconversation.com/files/335632/original/file-20200518-138610-1cwe2gh.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5191%2C4249&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">www.shutterstock.com</span></span></figcaption></figure><p>Reaction to the New Zealand government’s handling of the COVID-19 pandemic and resultant lockdown has ranged from high praise to criticism that its actions were illegal and its management chaotic.</p>
<p>Partly in response to the concerns, and to put the continued containment of the disease on a firmer legal footing, the <a href="http://legislation.govt.nz/act/public/2020/0012/latest/LMS344134.html?src=qs">COVID-19 Public Health Response Act</a> was passed under urgency on May 14. It was quickly met with another wave of discontent. </p>
<p>National MP Michael Woodhouse likened Prime Minister Jacinda Ardern to “<a href="https://www.odt.co.nz/news/national/dunedin-mp-slams-ardern-muldoon-slogans">Muldoon with slogans</a>”. Others <a href="https://www.rnz.co.nz/international/pacific-news/416752/public-health-response-bill-sparks-concern-in-pacific-community">recalled</a> past abuses of police power such as the “dawn raids” of the 1970s. </p>
<p>Such commentary played on fears the new law was a lurch towards authoritarianism under cover of the pandemic – but how seriously should we take it?</p>
<h2>Making the law fit for purpose</h2>
<p>Although New Zealand’s response to the emergency has been praised at home and abroad, the government was working with a multi-generational legislative framework that needed adapting as the crisis evolved.</p>
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<p>At the core of that framework were the <a href="http://www.legislation.govt.nz/act/public/2002/0033/51.0/DLM149789.html">Civil Defence Emergency Management Act</a>, the <a href="http://legislation.govt.nz/act/public/2006/0085/latest/DLM404459.html">Epidemic Preparedness Act</a> and the <a href="http://www.legislation.govt.nz/act/public/1956/0065/latest/whole.html">Health Act</a>. Despite the relative success of the response, there were clearly ambiguities and weaknesses that could be improved once the emergency was over. </p>
<p>Laws covering public hygiene, vaccination, quarantine and greater integration of local communities (including Maori) in emergency planning <a href="https://www.pressreader.com/new-zealand/the-new-zealand-herald/20200408/282127818592363">will need refining</a>. Longer term, this will be considered by select committees and may result in amendments to existing laws.</p>
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<img alt="" src="https://images.theconversation.com/files/335628/original/file-20200518-138629-2gppyc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/335628/original/file-20200518-138629-2gppyc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/335628/original/file-20200518-138629-2gppyc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/335628/original/file-20200518-138629-2gppyc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/335628/original/file-20200518-138629-2gppyc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/335628/original/file-20200518-138629-2gppyc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/335628/original/file-20200518-138629-2gppyc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The move to lockdown level 2 required better laws to manage containment or future outbreaks.</span>
<span class="attribution"><span class="source">NZ Parliamentary Services</span></span>
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<p>In the short term, however, the government decided as a matter of urgency to fast-track a new law to improve containment of the coronavirus. While the <a href="https://www.parliament.nz/en/pb/sc/scl/epidemic-response/">Epidemic Response Committee</a> could have been expected to provide strong oversight, the bill became law without wider scrutiny. </p>
<p>Parliament <a href="https://www.stuff.co.nz/national/politics/121529684/coronavirus-parliament-sends-controversial-new-covid19-level-2-law-to-be-reviewed-at-select-committee">later agreed</a> to send the law to a select committee, but too late to stop the accusations of authoritarianism by stealth.</p>
<h2>One COVID-19 law to rule them all</h2>
<p>So what does this new law really do? Essentially, it will govern the country as we deal with all levels of the response to COVID-19. It supports “a public health response to COVID-19” that prevents and limits “the risk of, the outbreak or spread of COVID-19” in a way that is “co-ordinated, orderly, and proportionate” as well as “enforceable”. </p>
<p>Although the government has issued an <a href="http://legislation.govt.nz/regulation/public/2020/0084/latest/LMS345275.html">alert level 2 order</a>, it could equally issue new orders for level 3 or 4 under the new law if outbreaks return. Parliament has to approve all such orders within a short time, or they lapse.</p>
<p>Such <a href="http://legislation.govt.nz/act/public/2020/0012/latest/whole.html#LMS344171">orders</a> can come from either the minister of health or the director-general of health. In some areas, the same orders could be given under the current Health Act. But the new law sets this out in easier language specifically tailored to the COVID-19 crisis. </p>
<p>Some provisions (such as those to do with contact tracing) are simplified from existing rules. Others, such as the power to <a href="http://legislation.govt.nz/act/public/2020/0012/latest/whole.html#LMS344198">direct businesses to close</a> if they are operating in contravention of an order (such as not taking social distancing seriously), have a very contemporary feel.</p>
<p>The new law is particularly good at clearing up uncertainty. For example, it makes clear that orders can be <a href="http://legislation.govt.nz/act/public/2020/0012/latest/whole.html#LMS344178">applied</a> “generally to all people in New Zealand or to any specified class of people in New Zealand”. This removes an earlier assumption that the law could only be applied piecemeal.</p>
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<p>Another improvement settles the rules on community checkpoints, one of the most controversial aspects of the recent lockdown. Without reiterating the existing power officials possess to close roads, public places and stop vehicles, the new law emphasises such actions can only be done by “a constable or an enforcement officer acting under the authority of the constable”.</p>
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<h2>Concerns about enforcement powers still valid</h2>
<p>The new law has also trimmed the <a href="http://www.legislation.govt.nz/act/public/1956/0065/latest/whole.html?search=sw_096be8ed819562fd_powers+of_25_se&p=1#DLM307211">powers</a> of a constable (i.e. police) during the COVID-19 period (but these remain very wide under the Health Act). Anyone entering a place to ensure disease control rules are being followed must now report the entry and why it was necessary. </p>
<p>This reporting requirement did not exist before but it would have been better to limit this emergency power to the police alone, or only allow its operation when police are present.</p>
<p>There is a further questionable area: while it makes sense that orders can be issued when the existing Epidemic Preparedness Act or Civil Defence Emergency Management Act are in play, it is less clear why the prime minister can also <a href="http://legislation.govt.nz/act/public/2020/0012/latest/whole.html#LMS344171">make such orders</a>. Those powers should only exist when an emergency is actually declared or in operation.</p>
<p>These concerns aside, perhaps the best feature of the new law is that it is destined to have a <a href="http://legislation.govt.nz/act/public/2020/0012/latest/LMS344600.html">short life</a>. It must be renewed every 90 days or it lapses, and it lapses for good after two years. By the time it gets a retrospective grilling from a select committee it will – hopefully like the disease itself – be due to disappear.</p>
<p>Given its context, and the improvements and safeguards the act provides, it’s hard to see it as evidence of the rise of authoritarian government.</p><img src="https://counter.theconversation.com/content/138114/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Gillespie has received funding from the NZ Law Foundation; and also support via the Francqui Prize, he was awarded from Belgium.</span></em></p>Fears of looming totalitarianism are unfounded, despite some valid concerns about new COVID-19 laws.Alexander Gillespie, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1352902020-04-21T12:46:49Z2020-04-21T12:46:49ZStates are putting prisoners to work manufacturing coronavirus supplies<figure><img src="https://images.theconversation.com/files/326553/original/file-20200408-152974-15ekrbx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">New York Gov. Andrew Cuomo, right, introduces a hand sanitizer manufactured by the state of New York.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Virus-Outbreak-New-York/a1fe7c2831ed4dc4865a6814d834e24d/1/0">AP Photo/Marina Villeneuve</a></span></figcaption></figure><p>Under pressure from the coronavirus pandemic, states are turning to prisoners for support.</p>
<p>New York Gov. Andrew Cuomo announced on March 9 that the state prison system’s industrial arm, Corcraft, <a href="https://www.governor.ny.gov/news/novel-coronavirus-briefing-governor-cuomo-announces-state-will-provide-alcohol-based-hand">would help produce hand sanitizer</a>.</p>
<p>Other states followed. Incarcerated populations were put to work <a href="https://doc.mo.gov/media-center/newsroom/covid-19">washing potentially contaminated hospital laundry</a>; <a href="https://www.nwitimes.com/news/local/govt-and-politics/indiana-prisoners-set-to-begin-manufacturing-masks-gowns-and-face/article_a07a2a5c-ac37-55e6-a950-fc41fdb50e01.html">manufacturing protective equipment</a>; <a href="https://www.cdcr.ca.gov/covid19/">disinfecting cleaning supplies</a>; and <a href="https://theintercept.com/2020/03/31/rikers-island-coronavirus-mass-graves/">digging mass graves</a>. </p>
<p>To date, nearly every state in the U.S. has announced that its incarcerated populations are contributing labor to the pandemic response.</p>
<p>I am <a href="https://scholars.library.tamu.edu/vivo/display/n99ed1fa4/Persons/View%20All">a sociologist who studies</a> how emergencies affect correctional institutions. Dependence on incarcerated workers in times of disasters is embedded throughout emergency management policy and practice at the local, state and federal levels. </p>
<p>But that dependence may now be putting these prisoners at risk of illness or even death.</p>
<h2>Emergency planning</h2>
<p>In the weeks since the coronavirus began to spread across the U.S., every state has declared <a href="https://www.businessinsider.com/california-washington-state-of-emergency-coronavirus-what-it-means-2020-3">an emergency</a>, allowing state resources to be directed toward fighting the pandemic. </p>
<p>Incarcerated people in state prisons, representing approximately <a href="https://www.prisonpolicy.org/reports/pie2020.html">1.3 million potential workers</a>, are considered state resources. In my research on state-level emergency operations planning, I’ve found that the majority of states plan to use incarcerated workers to respond to emergencies and disasters.</p>
<p>For example, after <a href="https://cookcountyemergencymanagement.org/flood-faqs">disastrous flooding in Cook County, Illinois in 2016</a>, inmate labor was used for sandbagging and debris removal. In the same year, Indiana turned to state prisoners to <a href="https://www.reuters.com/article/us-health-birdflu-usa/states-enlist-prisoners-plan-biosecurity-to-combat-avian-flu-threat-idUSKBN0OG0FC20150531">cull poultry</a> infected with the avian flu.</p>
<p>Federal policy also offers an incentive for using incarcerated workers for emergency-related labor. When President Donald Trump declared a national emergency under the Stafford Act on March 13, the Federal Emergency Management Agency Public Assistance program made money available for states’ COVID response efforts. This program allows local and state government to be reimbursed for costs associated with the management of the emergency or disaster, including the costs of using incarcerated workers.</p>
<p>According to the <a href="https://www.fema.gov/media-library-data/1525468328389-4a038bbef9081cd7dfe7538e7751aa9c/PAPPG_3.1_508_FINAL_5-4-2018.pdf">program guidebook</a>, FEMA pays for prisoner labor costs “based on the rate that the applicant normally pays prisoners,” as well as “prisoner transportation to the worksite and extraordinary costs of security guards, food and lodging.” </p>
<p>Most incarcerated workers are assigned to work within the correctional institution, for local government agencies or for nonprofits. The <a href="https://www.prisonpolicy.org/blog/2017/04/10/wages">pay for such work</a> is, on average, between US$0.14 and $0.63 an hour. Certain states, including Alabama, Arkansas, Florida, Georgia and Texas, do not pay wages for such work assignments.</p>
<p>Some states have announced pay increases. In New York, incarcerated workers are reportedly being <a href="https://theintercept.com/2020/03/31/rikers-island-coronavirus-mass-graves/">paid $6 an hour</a> to dig graves, a task assigned to them in the New York City pandemic response plan. In North Dakota, incarcerated workers who clean and disinfect facilities <a href="https://corrections.nebraska.gov/ndcs-frequently-asked-questions">are being offered bonuses</a> for “good work.” </p>
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<a href="https://images.theconversation.com/files/326554/original/file-20200408-153819-cs2dfl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/326554/original/file-20200408-153819-cs2dfl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/326554/original/file-20200408-153819-cs2dfl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/326554/original/file-20200408-153819-cs2dfl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/326554/original/file-20200408-153819-cs2dfl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/326554/original/file-20200408-153819-cs2dfl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/326554/original/file-20200408-153819-cs2dfl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/326554/original/file-20200408-153819-cs2dfl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A prisoner transportation bus leaves the Twin Towers Correctional Facility. California is planning to release as many as 3,500 inmates in anticipation of a coronavirus outbreak.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Virus-Outbreak-California-Prisons/002eca9aec4c4806b3f68063b6d1e5e9/1/0">AP Photo/Damian Dovarganes</a></span>
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<p>Participation in correctional industries is voluntary and the pay is higher, on average between $0.33 and $1.41. However the conditions under which incarcerated individuals participate can be coercive. The 13th Amendment to the U.S. Constitution was passed to abolish slavery, but <a href="https://www.history.com/news/13th-amendment-slavery-loophole-jim-crow-prisons">an exception was created</a> for persons convicted of a crime. </p>
<p>Incarcerated people <a href="https://www.theatlantic.com/business/archive/2015/09/prison-labor-in-america/406177/">do not have the constitutional right</a> to refuse to work. If they don’t volunteer to participate in a certain type of labor, they can be assigned to work in another area that would offer significantly less pay or even no pay, depending upon the state. </p>
<p>Furthermore, they do not have any control over their work conditions, though
<a href="https://incarceratedworkers.org/campaigns/prison-strike-2018">incarcerated workers have protested</a> against exploitative labor practices by organizing work strikes in prison systems across the U.S., most recently in 2018.</p>
<h2>Work conditions</h2>
<p>In February, I began to track how state prison systems are adapting their operations and policies in response to the coronavirus, including the decision to use incarcerated workers for response efforts.</p>
<p>Research shows that decision places the workers in danger.</p>
<p>Correctional and detention facilities <a href="https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf">are particularly vulnerable to the risks of the coronavirus</a>. Incarcerated populations go about their daily routines within a crowded environment. That poses significant challenges to implementing effective social distancing practices. </p>
<p><a href="https://www.cdc.gov/correctionalhealth/rec-guide.html">The Centers for Disease Control and Prevention suggests</a> canceling assignments that take incarcerated workers outside of the facilities and that administrations plan for the need to “implement alternate work arrangements.” The CDC also suggests – but does not mandate – certain safety precautions for incarcerated workers if infections appear within a facility, including social distancing and the distribution of personal protective equipment.</p>
<p>Evidence is emerging that corrections officials may not practice the recommended social distancing. </p>
<p>On April 3, <a href="https://www.facebook.com/ARDeptofCorrections/photos/a.885985974784883/3045814952135297/?type=3&theater">the Arkansas Department of Corrections posted an image</a> of incarcerated workers making masks while sitting next to one another. <a href="https://twitter.com/AZCorrections/status/1247630453273583616">A video</a> posted on April 7 showed incarcerated women in Arizona making masks, at times working only within inches of each other. </p>
<p><a href="https://www.themarshallproject.org/2020/03/26/they-don-t-care-families-of-the-incarcerated-fear-the-worst-as-coronavirus-spreads">In a report from The Marshall Project</a>, one former prisoner says that incarcerated workers within state prison industries do not have access to masks and gloves. </p>
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<p><a href="https://ci.idaho.gov/">Idaho has shuttered</a> its correctional industries operations out of safety concerns related to the coronavirus.</p>
<p>Meanwhile, in Pennsylvania, as prison manufacturing ramps up, incarcerated people are working longer hours. With <a href="https://www.media.pa.gov/Pages/corrections_details.aspx?newsid=455">the entire state prison system under quarantine</a>, some Pennsylvania prisoners are now working 12 hours a day, six days a week to produce masks, antibacterial soap, medical gowns and disinfectant. (According to the <a href="https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/816%20Inmate%20Compensation.pdf">state department of corrections</a>, the standard workday for incarcerated workers is six hours a day, five days a week.)</p>
<p>In Missouri, incarcerated workers are continuing <a href="https://doc.mo.gov/media-center/newsroom/covid-19">to wash and handle hospital laundry</a>. This arrangement has the potential to introduce the coronavirus to the state’s incarcerated populations. </p>
<p>In early February, the Healthcare Laundry Accreditation Council president issued a statement on the impact of the coronavirus on laundry practices. She described how “all soiled linen should be handled as if it is contaminated.” And the <a href="https://590ba01b-dcbf-4e77-94ad-ad2a3ff26d55.filesusr.com/ugd/076879_f1469c4510464048999c64c1149c6799.pdf">organization states that</a> following their standards only “minimizes” the risks of exposure from contaminated materials.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/326544/original/file-20200408-179217-1c6c7z8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/326544/original/file-20200408-179217-1c6c7z8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/326544/original/file-20200408-179217-1c6c7z8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/326544/original/file-20200408-179217-1c6c7z8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/326544/original/file-20200408-179217-1c6c7z8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/326544/original/file-20200408-179217-1c6c7z8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/326544/original/file-20200408-179217-1c6c7z8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/326544/original/file-20200408-179217-1c6c7z8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Philadelphia protesters call for officials to release people from jails, prisons and immigration detention centers in response to the coronavirus.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Virus-Outbreak-Pennsylvania/5b704ca6ed47472ab1720783e76c9e06/36/0">AP Photo/Matt Rourke</a></span>
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<h2>Exposure to hazards</h2>
<p>States and the federal government look to incarcerated populations to supply labor at a reduced cost, even as it may subject them to risk of harm and even death. </p>
<p>The most visible example of this are the incarcerated who volunteer to fight fires. <a href="https://time.com/5457637/inmate-firefighters-injuries-death/">These firefighters in California</a> are more likely to experience certain injuries, including fractures and dislocations, as well as inhalation of smoke and particulates, when compared to civilian firefighters. </p>
<p>The decision to continue to use incarcerated workers for hazardous work that could expose them to the coronavirus or facilitate the spread within the facility lies with corrections authorities and emergency management officials. </p>
<p>Every day, <a href="https://www.nytimes.com/2020/03/30/us/coronavirus-prisons-jails.html">the number of incarcerated persons and prison workers</a> who have tested positive for COVID-19 grows. In my view, corrections and emergency officials should be doing everything in their power to reduce the impact of the coronavirus on a vulnerable population by following recommended health guidelines.</p>
<p>[<em>You need to understand the coronavirus pandemic, and we can help.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-help">Read The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/135290/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carlee Purdum received funding to study the role of incarcerated workers in Hurricane Irma from the Quick Response Grant Program at the University of Colorado in 2017 which is funded by the National Science Foundation. </span></em></p>Incarcerated Americans have been tasked with washing hospital laundry, manufacturing protective equipment, disinfecting cleaning supplies and digging mass graves.J. Carlee Purdum, Research Assistant Professor, Texas A&M UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1352782020-04-06T22:09:03Z2020-04-06T22:09:03ZCoronavirus versus democracy: 5 countries where emergency powers risk abuse<figure><img src="https://images.theconversation.com/files/325758/original/file-20200406-51213-oubkg8.jpg?ixlib=rb-1.1.0&rect=7%2C31%2C5304%2C3504&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Hungarian police officers check cars at the closed Austria-Hungary border, March 18, 2020.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/hungarian-police-officers-check-cars-at-the-nickelsdorf-news-photo/1207611670?adppopup=true">Alex Halada/AFP via Getty Images</a></span></figcaption></figure><p><em>Editor’s note: Emergencies like the coronavirus pandemic set the conditions for political leaders to use expansive powers. They are, as a result, a test of the government’s commitment to human rights and civil liberties.</em> </p>
<p><em>Most of the travel bans, stay-at-home orders and business closures <a href="https://www.nytimes.com/article/coronavirus-travel-restrictions.html">taking effect worldwide</a> follow health experts’ advice on curbing the spread of this highly infectious disease. But other restrictions governments say are meant to protect people seem designed to curtail human rights, suppress dissent and consolidate authoritarian power.</em></p>
<p><em>We asked political scientists for a non-exhaustive list of where they’re watching the state of democracy.</em> </p>
<h2>1. Hungary</h2>
<p><strong>John Shattuck, Tufts University</strong></p>
<p>The global pandemic claimed its first democracy on March 30 when Hungarian Prime Minister Viktor Orban won approval from his parliament to <a href="https://www.politico.com/news/2020/03/31/rule-by-decree-in-hungary-reopens-wounds-on-european-center-right-158366">rule Hungary indefinitely by decree</a>, bypassing lawmakers.</p>
<p>Orban’s new powers give him unlimited authority to fight the coronavirus by suspending parliament and all future elections, overriding the Hungarian constitution and imprisoning people for the new crimes of “violating a quarantine” and “spreading false information.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/325767/original/file-20200406-104477-1vjjsng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/325767/original/file-20200406-104477-1vjjsng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/325767/original/file-20200406-104477-1vjjsng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/325767/original/file-20200406-104477-1vjjsng.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/325767/original/file-20200406-104477-1vjjsng.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/325767/original/file-20200406-104477-1vjjsng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/325767/original/file-20200406-104477-1vjjsng.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/325767/original/file-20200406-104477-1vjjsng.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Orban is using coronavirus to maximize his power.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/hungarys-prime-minister-viktor-orban-gives-a-joint-press-news-photo/1205043650?adppopup=true">MICHAL CIZEK/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>Orban has been <a href="https://theconversation.com/how-viktor-orban-degraded-hungarys-weak-democracy-109046">working toward authoritarianism for a decade</a>. Soon after coming to power in 2010, he announced that Hungary would become something unheard of: an “<a href="https://www.nytimes.com/2019/12/23/world/europe/tusk-orban-migration-eu.html">illiberal democracy</a>.” He has since used his leadership to undermine democratic institutions, including the media, the judiciary and civil society. </p>
<p>To mobilize support for this agenda, Orban has skillfully presented himself as the protector of Hungarians from real and exaggerated external threats. Today’s public health crisis is very real – but Orban is using coronavirus to suspend democracy in ways that will outlast the current emergency.</p>
<h2>2. India</h2>
<p><strong>Ramya Vijaya, Stockton University</strong></p>
<p>For two months before the coronavirus outbreak, India had seen <a href="https://www.nytimes.com/2019/12/27/opinion/india-constitution-protests.html">sustained nationwide protests</a> against the efforts by the Hindu Nationalist ruling party to <a href="https://theconversation.com/why-modis-india-has-become-a-dangerous-place-for-muslims-132591">marginalize religious minorities</a>. These included an iconic <a href="https://theconversation.com/indian-women-protest-new-citizenship-laws-joining-a-global-fourth-wave-feminist-movement-129602">peaceful sit-in</a> spearheaded largely by Muslim women in the Shaheen Bagh section of Delhi. </p>
<p>On March 23 the Shaheen Bagh sit-in was <a href="https://www.bbc.com/news/world-asia-india-52015464">cleared by police</a> – part of India’s national COVID-19 lockdown. </p>
<p>Some Indians are nervous that Indian police will enforce the shelter-in-place rule. In February, officers used <a href="https://www.washingtonpost.com/world/asia_pacific/police-stormed-a-university-in-india-muslim-students-say-the-violence-was-an-act-of-revenge/2020/02/16/6727aa24-37e8-11ea-a1ff-c48c1d59a4a1_story.html">brutal force against anti-government demonstrators</a> and turned a blind eye to – and <a href="https://scroll.in/article/957517/month-after-video-of-delhi-police-assault-sparked-outrage-four-survivors-have-no-hope-for-justice">in some cases seemingly abetted</a> – a wave of mob violence that <a href="https://www.theatlantic.com/ideas/archive/2020/02/what-happened-delhi-was-pogrom/607198/">terrorized Muslim neighborhoods in Delhi</a>. </p>
<p>More law enforcement on the streets during the coronavirus shutdown leaves many minority communities in India <a href="https://www.outlookindia.com/website/story/opinion-what-india-has-now-is-a-clone-emergency-just-ask-the-police/349605?fbclid=IwAR1FNanFZvZMFOOZ12hrTwXm3kosks05xUU1i28Gf_Pl0XM3lv-xtRglxHo">feeling less safe</a>, not more. </p>
<p>India is continuing to <a href="https://www.washingtonpost.com/world/asia_pacific/he-is-a-prominent-anti-modi-intellectual-the-indian-government-wants-him-behind-bars/2019/02/20/e2b5dbe4-2e47-11e9-8781-763619f12cb4_story.html">harass</a> and <a href="https://www.washingtonpost.com/opinions/2020/03/24/destruction-indias-judicial-independence-is-almost-complete/">arrest</a> its most vocal critics, raising fears that the government will use the pandemic chaos to suppress protests and civil society activism in the foreseeable future.</p>
<h2>3. Zimbabwe</h2>
<p><strong>Paul Friesen, University of Notre Dame, and Chipo Dendere, Wellesley University</strong></p>
<p>While reported cases of coronavirus are not yet significant in Africa, the pandemic is already <a href="https://nehandaradio.com/2020/03/31/human-rights-group-concerned-about-army-and-police-abuses-during-lockdown/">emboldening several governments on the continent</a> to flex their state powers in the name of protecting citizens. </p>
<p>Zimbabwe’s authoritarian-leaning government already inspired <a href="http://www.afrobarometer.org">fear</a> and <a href="http://afrobarometer.org/publications/ad240-ill-prepared-health-care-service-delivery-zimbabwe">distrust among citizens</a>. Then, on March 30, President Emmerson Mnangagwa, who came to power after the removal of Robert Mugabe in 2017, issued a <a href="https://www.reuters.com/article/us-health-coronavirus-zimbabwe/zimbabwe-locks-down-to-fight-coronavirus-amid-economic-crisis-idUSKBN21H2DF">sudden and strict 21-day lockdown</a>, clamping down on nearly all movement and activities. </p>
<p>The total shutdown comes with no government bailout, and Zimbabwe is already in <a href="https://www.cnn.com/2019/12/31/africa/zimbabwe-economic-crisis-intl/index.html">economic crisis</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/325763/original/file-20200406-191235-1061kdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/325763/original/file-20200406-191235-1061kdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/325763/original/file-20200406-191235-1061kdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/325763/original/file-20200406-191235-1061kdb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/325763/original/file-20200406-191235-1061kdb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/325763/original/file-20200406-191235-1061kdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/325763/original/file-20200406-191235-1061kdb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/325763/original/file-20200406-191235-1061kdb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A man is arrested after resisting orders to vacate a vegetable market area in Bulawayo, Zimbabwe, March 31, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/man-is-arrested-by-police-officers-after-resisting-orders-news-photo/1208727087?adppopup=true">ZINYANGE AUNTONY/AFP via Getty Images</a></span>
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</figure>
<p>Fear of government forces has so far proven effective in motivating most of Zimbabwe’s <a href="https://www.aljazeera.com/news/2020/03/zimbabwe-launches-21-day-nationwide-lockdown0-200330174200621.html">15 million people to stay at home</a>. But inevitably, many people will have to violate the lockdown to get food, water and other basics goods that are <a href="https://afrobarometer.org/sites/default/files/publications/Dispatches/ab_r7_dispatchno349_pap14_water_and_sanitation_in_africa.pdf">hard to access even in normal times</a>. </p>
<p>Mnangagwa recently <a href="https://www.zimeye.net/2020/03/29/useless-obadiah-moyo-loses-key-position-to-chiwenga-oppah-muchinguri/">ousted</a> Zimbabwe’s health minister as COVID-19 czar and appointed his military hardliner vice president to manage the pandemic response. That was a signal about the potential for use of force. With Zimbabwe forcing citizens to choose between eating and facing the wrath of the military, there could be a flare-up of violence. </p>
<h2>4. Peru</h2>
<p><strong>Anthony Bebbington, Clark University, and Gisselle Vila Benites, University of Melbourne</strong></p>
<p>Peruvian President Martín Vizcarra’s rapid response to COVID-19 – which includes a <a href="https://elpais.com/economia/2020-04-04/peru-aplica-el-plan-economico-mas-ambicioso-de-la-region-para-enfrentar-la-pandemia.html">$26 billion stimulus package to aid both businesses and families</a> passed shortly after <a href="https://busquedas.elperuano.pe/normaslegales/decreto-supremo-que-declara-estado-de-emergencia-nacional-po-decreto-supremo-n-044-2020-pcm-1864948-2/">a March 15 state of emergency decree</a> – has been <a href="https://www.economist.com/the-americas/2020/04/04/the-wisdom-and-witlessness-of-latin-americas-leaders">praised domestically and internationally</a> for its sensitivity to the social and economic impacts of the pandemic. </p>
<p>Vizcarra is unlikely to use coronavirus to consolidate authoritarian power, but Peru’s history of impunity during previous states of emergency raises other concerns. </p>
<p>Civil society, <a href="http://cooperaccion.org.pe/el-uso-de-la-fuerza-en-los-tiempos-del-covid-19/">human rights groups</a>, journalists and even the Justice Ministry have <a href="https://ojo-publico.com/1723/ley-de-proteccion-policial-oportunismo-en-tiempos-de-crisis">flagged</a>, for example, the risks of a new <a href="https://ojo-publico.com/1723/ley-de-proteccion-policial-oportunismo-en-tiempos-de-crisis">“police protection” law</a> passed by the president of the Congress, Manuel Merino. It exempts officers and soldiers from criminal responsibility for any death or injury caused during the state of emergency.</p>
<p>Peru’s government also has a track record of using <a href="https://www.bbc.com/news/world-latin-america-34400831">emergency powers to protect its mining industry against protests</a>. Mined silver, gold, copper, zinc and other precious metals account for <a href="https://elperuano.pe/noticia-mef-apoyara-proyectos-inversion-mineria-90798.aspx">12% of Peru’s gross domestic product</a>, though many local people and environmental groups oppose these massive projects.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/325769/original/file-20200406-74220-g7u05q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/325769/original/file-20200406-74220-g7u05q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/325769/original/file-20200406-74220-g7u05q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/325769/original/file-20200406-74220-g7u05q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/325769/original/file-20200406-74220-g7u05q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/325769/original/file-20200406-74220-g7u05q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/325769/original/file-20200406-74220-g7u05q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/325769/original/file-20200406-74220-g7u05q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Peruvian mine workers protest a court decision allowing companies to lower their salaries in 2016, Lima, Peru.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/workers-from-shougang-iron-mining-along-with-thousands-of-news-photo/630286434?adppopup=true">Fotoholica Press/LightRocket via Getty Images</a></span>
</figcaption>
</figure>
<p>The possibility that the COVID-19 state of emergency could be abused by Peruvian police and mining elites to repress civil liberties merits monitoring.</p>
<h2>5. United States</h2>
<p><strong>Austin Sarat, Amherst College</strong></p>
<p>While the <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1417&context=facpubs">American Constitution says</a> nothing about emergency powers, Congress has historically <a href="https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/">authorized executive action</a> in response to financial, national security and health crises. These disaster-time measures, once passed, are <a href="https://www.brennancenter.org/our-work/research-reports/declared-national-emergencies-under-national-emergencies-act">seldom curtailed when these crises end</a>. </p>
<p>As a result, President Donald Trump can now use <a href="https://www.brennancenter.org/our-work/research-reports/guide-emergency-powers-and-their-use">136 different statutory powers</a> to deal with coronavirus. They include <a href="https://www.washingtonpost.com/world/2020/03/27/coronavirus-latest-news/">directing private companies</a> to produce surgical equipment, taking “measures to prevent the entry and spread of communicable diseases <a href="https://www.phe.gov/Preparedness/legal/Pages/phedeclaration.aspx">from foreign countries … and between states</a>,” physically confining the ill and <a href="https://www.law.cornell.edu/uscode/text/47/606">shutting down or taking control of</a> communications centers. </p>
<p>Civil liberties groups like <a href="https://www.aclu.org/press-releases/aclu-comment-us-response-coronavirus">the American Civil Liberties Union</a> and <a href="https://www.splcenter.org/hatewatch/2020/03/23/white-house-contemplates-coronavirus-asylum-ban-hate-groups-urge-trump-seize-moment">Southern Poverty Law Center</a> have flagged certain uses of these powers, criticizing Trump for, among other things, imposing international travel bans and banning asylum-seekers. </p>
<p>They say the president is abusing the coronavirus crisis to <a href="https://www.washingtonpost.com/opinions/2020/03/23/he-bungles-this-crisis-trump-turns-familiar-scapegoat-immigration/">stoke xenophobia and hostility against immigrants</a>. As evidence, critics point to Trump’s insistence on <a href="https://www.cnn.com/2020/03/17/politics/trump-china-coronavirus/index.html">calling COVID-19</a> the “Chinese virus.” </p>
<p>Emergency powers can be dangerous. They are, as the U.S. Supreme Court Justice Robert Jackson once noted, “a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” </p>
<p>[<em>You’re too busy to read everything. We get it. That’s why we’ve got a weekly newsletter.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybusy">Sign up for good Sunday reading.</a> ]</p><img src="https://counter.theconversation.com/content/135278/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Bebbington receives or has received funding from: Ford Foundation; Climate and Land Use Alliance; SESYNC; National Science Foundation; Australian Research Council; SSHRC. Anthony Bebbington is on the Board of Directors of Oxfam America and a Research Associate of RIMISP-Centro Latinoamericano para el Desarrollo Rural.</span></em></p><p class="fine-print"><em><span>Gisselle Vila Benites receives or has received funding from the IFEA (Andean Scholarship). She is also an adjunct researcher at the the Center for Mining and Sustainability Studies at Peru's Pacifico University.</span></em></p><p class="fine-print"><em><span>John Shattuck was the president and rector of the Central European University, in Hungary, from 2009 to 2016. He is currently affiliated with the Carr Center for Human Rights Policy, at the Harvard Kennedy School. </span></em></p><p class="fine-print"><em><span>Austin Sarat, Chipo Dendere, Paul Friesen, and Ramya Devan do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>National emergencies allow for the purest expressions of sovereign power, testing the government’s commitment to human rights. Some leaders are failing the coronavirus test, experts say.Ramya Devan, Professor of Economics, Stockton UniversityAnthony Bebbington, Milton P. and Alice C. Higgins Professor of Environment and Society, Professor of Geography, Clark UniversityAustin Sarat, Professor of Jurisprudence and Political Science, Amherst CollegeChipo Dendere, Assistant Professor, Africana Studies, Wellesley CollegeGisselle Vila Benites, PhD Candidate in Geography, The University of MelbourneJohn Shattuck, Professor of Practice in Diplomacy, Tufts UniversityPaul Friesen, PhD Candidate in Political Science, University of Notre DameLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1344952020-03-30T14:24:35Z2020-03-30T14:24:35ZState of emergency: how different countries are invoking extra powers to stop the coronavirus<figure><img src="https://images.theconversation.com/files/323269/original/file-20200326-133016-dtm7ke.jpg?ixlib=rb-1.1.0&rect=105%2C32%2C2961%2C2009&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In Italy, police are deploying drones to ensure citizens comply with self-isolation rules.</span> <span class="attribution"><span class="source">EPA/Luca Zennaro</span></span></figcaption></figure><p>National constitutions and international human rights treaties often contain clauses that allow governments to temporarily suspend their obligations in a time of crisis. They can invoke special powers that would normally be considered infringements on liberty.</p>
<p>However, while many states have enacted what have been described as emergency laws in response to the coronavirus pandemic, not all of these countries have actually declared a state of emergency under law. That could have future implications for their citizens.</p>
<p>Many states are using emergency powers to impose “lockdowns”, for instance. This is not a technical legal term but the status seems to include measures like new powers of detention, closing non-essential businesses, limiting public gatherings and limiting people’s movement, monitoring the streets to ensure they remain inside.</p>
<p>These measures have serious implications for the right to liberty, freedom of association, and freedom of movement. For example, <a href="https://services.parliament.uk/Bills/2019-21/coronavirus/documents.html">powers</a> to break up and limit gatherings are aimed at stopping people from spreading the virus, but they could also potentially be applied to breaking up trade unions, political parties and other organisations that are absolutely vital for democracy.</p>
<p>This is not a priority right now, but it could happen in the future. This is why citizens should be aware of which exceptional powers their governments have invoked and when they will relinquish them.</p>
<h2>Declaring a state of emergency</h2>
<p>It’s useful to use the European Convention on Human Rights (ECHR) as a benchmark for good practice because 47 states have signed up to the document. It therefore gives a good indication of what they agree is acceptable and what is not. <a href="https://www.echr.coe.int/Documents/Guide_Art_15_ENG.pdf">Article 15</a> of the ECHR allows countries to declare a state of emergency “in times of war or other public emergency threatening the life of the nation”. </p>
<p>States can’t just do whatever they like to respond to the crisis, however. Exceptional powers are only allowed “to the extent strictly required by the exigencies of the situation”. Some rules – such as the prohibition on torture – can never be abandoned. </p>
<p>So far, <a href="https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations?p_auth=oC00wpDO">six ECHR nations</a> have declared a state of emergency under Article 15 in response to the pandemic. They are Armenia, Estonia, Georgia, Latvia, Moldova and Romania.</p>
<p>Others, like <a href="https://www.france24.com/en/20200131-italy-declares-state-of-emergency-over-coronavirus">Italy</a> and <a href="https://www.euronews.com/2020/03/22/covid-19-spain-extends-state-of-emergency-until-11-april">Spain</a>, have not used the ECHR mechanism but have declared states of emergency in accordance with their constitutional provisions. Italy’s constitution, for example, only allows an emergency to be declared by the government, subject to review by its legislature.</p>
<p>It may be that these countries believe their constitutions provide better protections for rights than the ECHR and these higher protections need departing from. Or they may feel the need to circumvent the ordinary decision-making processes in their constitutions that prevent them from acting swiftly to respond to this emergency. </p>
<p><a href="https://services.parliament.uk/Bills/2019-21/coronavirus/documents.html">The UK</a>, meanwhile, has introduced what politicians have described as “emergency powers” but has not declared a state of emergency. The government convinced parliament to pass <a href="http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted/data.htm">lengthy legislation</a> allowing extra powers in less than a week. </p>
<p>This shows that there is some confusion about whether a country should declare a state of emergency under the ECHR or whether it can simply go it alone. Some <a href="https://www.euractiv.com/section/justice-home-affairs/news/coronavirus-derogations-from-human-rights-send-wrong-signal-say-meps/">MEPs say</a> derogating from the ECHR sends out the “wrong signal” about a state’s commitment to human rights. This is because countries with poor human rights records (such as Turkey) often declare states of emergency. </p>
<p>This may be the key reason why countries like Spain, Italy and the UK are taking a different route and relying solely on their constitutional provision.</p>
<h2>Accountability</h2>
<p>On the other hand, failing to declare a state of emergency via the ECHR may leave these nations less accountable to the international treaties they themselves signed.</p>
<p>Officially declaring a state of emergency allows exceptional powers in exceptional circumstances, which means the mechanism is also supposed to prevent such powers from being enacted in a <a href="https://www.cambridge.org/core/services/aop-cambridge-core/content/view/69FC23C08C89B473A1294F63A03AA656/S2071832200017557a.pdf/separating_normalcy_from_emergency_the_jurisprudence_of_article_15_of_the_european_convention_on_human_rights.pdf">time of “normalcy”</a>. If a state of emergency is not declared, this “quarantining effect” of the special powers is lost. Instead, states can pretend that the exceptional measures they have invoked are perfectly compatible with the normal legal framework.</p>
<p>It will be some time before the European Court of Human Rights definitively rules on whether a state of emergency is needed to authorise the emergency pandemic powers under the ECHR. By then, the crisis will hopefully be over. However, emergency powers have a worrying tendency of <a href="https://www.bloomsburyprofessional.com/uk/permanent-states-of-emergency-and-the-rule-of-law-9781509906154/">becoming permanent</a>.</p>
<p>It does not take much imagination to see how powers restricting public gatherings to control a pandemic could be used to other ends. We are already seeing worrying developments in some European states in response to the pandemic. <a href="https://www.theguardian.com/world/2020/mar/23/hungary-to-consider-bill-that-would-allow-orban-to-rule-by-decree">Hungary</a> is currently considering an emergency bill that would allow its president Victor Orban to rule by decree with no cut-off date.</p>
<p>In contrast, Spain’s state of emergency expires after 30 days but it can be renewed for another 30 days. The UK government’s extra powers must be renewed by parliament after six months and will expire in full after two years. </p>
<p>However, time-limits to emergency legislation have a poor reputation for actually working. This is best illustrated by the <a href="https://www.vox.com/2015/6/2/8701499/patriot-act-explain">US Patriot Act</a> enacted shortly after September 11 2001. Many of the most controversial provisions of this law are still in force today, despite the fact they were originally due to expire on December 31 2005.</p>
<p>Declaring a state of emergency under Article 15 of the ECHR and expressly acknowledging the unpalatable and temporary nature of these measures is best practice. It ensures that other states and international human rights organisations can monitor and even police how powers are being implemented.</p>
<p>Emergency powers were instrumental in ending the Roman Republic and in the rise of Adolf Hitler, so we should always be wary of them. Declaring a state of emergency has the useful effect of defining the boundaries of exceptional powers so that checks are in place.</p><img src="https://counter.theconversation.com/content/134495/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alan Greene does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>History is full of examples of despots making use of emergency powers to manipulate citizens, which is why states must act responsibly in times of crisis.Alan Greene, Senior Lecturer in Law, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1344392020-03-26T12:11:12Z2020-03-26T12:11:12ZWhat does a state of emergency mean in the face of the coronavirus?<figure><img src="https://images.theconversation.com/files/322337/original/file-20200323-112720-ed3qt6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pence and Trump attend a coronavirus task force briefing.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/APTOPIX-Virus-Outbreak-Trump/d035a160923e4c27a8ab2454dd9ad165/78/0">AP Photo/Patrick Semansky</a></span></figcaption></figure><p>Following Donald Trump’s declaration of a federal state of <a href="https://www.vogue.com/article/state-of-emergency-coronavirus">emergency nearly two weeks ago</a>, <a href="https://www.businessinsider.com/california-washington-state-of-emergency-coronavirus-what-it-means-2020-3#ohio-13.%20https://kfor.com/health/coronavirus/oklahoma-coronavirus-cases-grow-to-106-with-3-deaths/">every state except West Virginia</a> had also declared a state of emergency over COVID-19.</p>
<p>States <a href="https://astho.org/Programs/Preparedness/Public-Health-Emergency-Law/Emergency-Authority-and-Immunity-Toolkit/Emergency-Declarations-and-Authorities-Fact-Sheet/">have statutes</a> that give police powers to the government in situations like hurricanes, fires or disease outbreaks.</p>
<p>But <a href="https://www.researchgate.net/profile/Amy_Fairchild">as experts</a> in <a href="https://sph.umd.edu/people/marian-moser-jones">public health</a>, we know that different states empower different types of officials to declare an emergency. This is important because a <a href="https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.25.4.958">lack of clear lines complicated</a> the response to Hurricane Katrina in Louisiana and, later, Hurricane Rita in Texas.</p>
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<h2>Who decides?</h2>
<p>In most states, the power to declare an emergency lies with the governor. Several have used this authority in cases of <a href="https://www.usatoday.com/story/news/nation-now/2015/12/10/washington-gov-declares-weather-emergency/77081310/">weather emergencies</a> or <a href="https://www.bing.com/videos/search?q=state+of+emergency&view=detail&mid=49F7854B52AA934BE6EB49F7854B52AA934BE6EB&FORM=VIRE">severe flooding</a>, for example.</p>
<p>In some states, both governors and local officials like mayors have the authority to grant such a declaration. Although Gov. Andrew Cuomo declared a state of emergency on March 7, New York City Mayor Bill De Blasio – though having <a href="https://nypost.com/2020/03/12/de-blasio-declares-nyc-state-of-emergency-to-stem-coronavirus">declared a state of emergency in the city on March 11</a> – kept <a href="https://www.msn.com/en-us/news/politics/de-blasio-announces-nyc-schools-will-close-due-to-coronavirus/ar-BB11e5zU">schools open until March 15</a>. The dual lines of authority underscored the struggles that can unfold between mayors and governors.</p>
<p>The federal government also has power to prevent disease transmission across states and territories <a href="https://www.fema.gov/robert-t-stafford-disaster-relief-and-emergency-assistance-act-public-law-93-288-amended">because of the 1974 Stafford Act</a>. Evoking this is contingent on a governor’s request, based upon “<a href="https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.25.4.958">a finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the state</a>.”</p>
<p>In the case of COVID-19, the Department of Health and Human Services, using the federal <a href="https://www.law.cornell.edu/uscode/text/42/264">Public Health Services Act</a>, invoked federal powers to prevent “<a href="https://jamanetwork-com.proxy.lib.ohio-state.edu/journals/jama/fullarticle/2761556">cascading public health, economic, national security and societal consequences</a>.” In addition to this, federal authority empowers the Centers for Disease Control and Prevention to examine and <a href="https://www.law.cornell.edu/uscode/text/42">quarantine anyone entering the U.S. or traveling across state lines</a>. </p>
<p>Another key rationale for invoking emergency powers is to <a href="https://www.fmcsa.dot.gov/emergency-declarations">trigger federal disaster relief</a> to states. The amount is being debated in Congress as we write.</p>
<p>Before getting federal assistance, the governor must declare a state of emergency and begin to follow <a href="https://www.law.cornell.edu/uscode/text/42/5191">the state’s emergency plan</a>, a provision which emphasizes that the state is the primary authority in the disaster. That is important because emergency powers not only allow state governments to “provide for” populations, but also “decide for” individuals <a href="https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/">in ways that might limit their rights</a>.</p>
<p>The idea is that <a href="https://www.nejm.org/doi/full/10.1056/NEJMp1406167">sticking to normal legislative processes and legal standards takes time – and that during a crisis delays could cost lives</a>. In an outbreak, such limits on individual rights involve <a href="https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html">travel restrictions</a>, <a href="https://time.com/5800442/social-distancing-coronavirus/">social distancing measures</a> and <a href="https://www.cdc.gov/quarantine/index.html">isolation and quarantine</a>.</p>
<h2>Protecting everyone at once</h2>
<p>During an outbreak, people typically accept limits on the liberty of those who are infected as necessary to protect the uninfected.</p>
<p>It doesn’t matter if a person with COVID-19 wants to go to the mall, for example. As a society we are willing to order that individual’s confinement to protect others. But what distinguishes the U.S. from authoritarian nations is that those compelled into confinement can always challenge those orders in a court of law.</p>
<p>Emergency powers also allow state and federal governments to <a href="https://www.billboard.com/articles/business/touring/9323647/concerts-canceled-coronavirus-list">cancel public events</a> and <a href="https://www.msn.com/en-au/news/other/perth-streets-empty-as-businesses-close-to-comply-with-coronavirus-lockdown-measures/ar-BB11zAj5">close businesses</a>. These kinds of measures are designed to keep unexposed folks safe at home but also to protect those who would be willing to risk getting infected at a bar, restaurant or concert hall. </p>
<p>Emergency orders that protect us from our own poor judgment are the most controversial. After all, we often allow adults to take risks that could harm them. <a href="https://definitions.uslegal.com/s/smoking/">Smoking is legal</a>. In some states, so is <a href="https://www.dmv.org/articles/do-i-need-to-wear-a-helmet-on-my-motorcycle/">riding a motorcycle without a helmet</a>. Neither do we prohibit adults from participating in “extreme sports,” such as rock climbing, sky diving or auto racing, <a href="https://bjsm.bmj.com/content/38/3/337">knowing well that some will suffer injuries from these activities</a>.</p>
<p>An outbreak is different. Even mild or <a href="https://www.inverse.com/mind-body/coronavirus-how-asymptomatic-carriers-spread-virus-like-covid-19">asymptomatic COVID-19 cases pose a risk to others</a>. And every case poses a risk to health care personnel, who are called on to treat the most serious cases of infection and who <a href="https://www.nytimes.com/interactive/2020/03/15/business/economy/coronavirus-worker-risk.html">run a high risk of infection</a>. Furthermore, health care systems <a href="https://thehill.com/policy/healthcare/480590-coronavirus-poses-new-test-for-strained-public-health-system">become strained with a scarcity of human and other resources</a>, including beds, <a href="https://news.yahoo.com/ventilators-respirators-masks-gowns-hospitals-are-all-competing-to-fill-their-shelves-as-wave-of-coronavirus-cases-approaches-233125517.html">respirators and</a> <a href="https://www.nytimes.com/2020/03/09/health/coronavirus-n95-face-masks.html">masks</a>.</p>
<p>Ultimately, emergency public health orders slow the spread of disease, protecting individuals by limiting some choice regardless of their personal perception of risk. This both prevents new infections and protects the ability of the health care system to save lives.</p>
<p>[<em>Get facts about coronavirus and the latest research.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-facts">Sign up for our newsletter.</a>]</p><img src="https://counter.theconversation.com/content/134439/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Lauren Fairchild receives funding from National Endowment for the Humanities. </span></em></p><p class="fine-print"><em><span>Marian Moser Jones does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The federal government has declared a state of emergency over COVID-19. Two public health scholars explain what that means.Amy Lauren Fairchild, Dean and Professor, College of Public Health, The Ohio State UniversityMarian Moser Jones, Associate Professor and Graduate Director of Family Science, University of MarylandLicensed as Creative Commons – attribution, no derivatives.