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The IBA’s response to the war in Ukraine
Across the globe, governments have taken differing attitudes to the use of face masks as a means of controlling the Covid-19 pandemic. In Spain, which imposed one of the strictest lockdowns when the virus hit, mask wearing is mandatory in many indoor and outdoor public spaces, while Italy requires face mask use only when social distancing is not possible, such as in city centres and workplaces.
In the United States, meanwhile, despite there being no federal mandate for the wearing of masks, individual states have set their own rules. Citizens of Alaska are encouraged to wear masks in public, for example, while those in California are required to wear them in all public spaces.
Yet even in jurisdictions with the strictest rules, the rushed nature of the law-making has led to confusion about what is required and whether exemptions apply. This in turn is leading to concerns that laws designed to deal with an emergency situation could in fact be leading to some citizens’ human rights being infringed.
Dr Markus Beham
European Regional Forum Liaison Officer, IBA Human Rights Law Committee
In the United Kingdom, disability rights campaigners have warned that a failure to properly communicate exemptions to the rules is leaving people with disabilities open to potential abuse.
Ahead of England’s lockdown restrictions being eased in July, the charity Disability Rights UK said a lack of awareness meant people with disabilities were being put off travelling on public transport for fear of facing a backlash. Almost 60 per cent of respondents to the charity’s survey said they feared being challenged if they did not wear a mask, with the same proportion saying they did not feel confident enough to stand up for themselves if challenged.
Meanwhile, almost 70 per cent said they feared being judged for not wearing a mask and 55 per cent said they were afraid they would become the victim of a hate crime if they were seen without one.
For Dr Abigail Pearson, a lecturer in law at the UK’s Keele University, this represents a threat to the human rights of those affected. ‘There have been no national advertisements or awareness campaigns to clarify the exemption for people with disabilities. Instead, the exemption has been explained via online guidance from the government or organisations for people with disabilities, or by news outlets reporting in response to instances of abuse,’ she says.
Dr Pearson highlights that this is dangerous for people with disabilities – not only physically and mentally, but also in terms of their human rights. ‘If these attitudes are left unchallenged we could return to a time where people with disabilities are excluded because people mistakenly believe they are somehow dangerous,’ she adds.
Dr Markus Beham, European Regional Forum Liaison Officer of the IBA Human Rights Law Committee and an assistant professor of law at the University of Passau, notes that this is a vexed issue. On the one hand, the public at large has the right to be protected by the universal use of masks, while on the other those with existing health issues have the right not to be negatively impacted by having to wear them. In their haste to pass emergency laws, some governments may have lost sight of how those rights should be balanced, he says.
‘This is a right to health issue from different perspectives – the right to health of impaired individuals versus the right to health of the total,’ he says. ‘From a human rights perspective that all has to be taken into consideration, but not every particular interest is placed into the equation. That means you get into a situation where there is discrimination and the state has to repair that.’
Dr Beham notes that another issue not taken into consideration when governments first started mandating the use of face masks was what should happen to those masks once they have served their purpose. Though an entire commercial sector has swiftly built up around the production and sale of reusable masks, the fact that so many are single use and non-recyclable poses a more wide-reaching and longer-lasting threat to everyone’s right to health.
‘I don’t think anyone gave much thought at the beginning of the crisis about what we would do with all those disposable face masks,’ he says. ‘It’s become a pretty common sight seeing them discarded all over the place. There’s been a lot of talk across states about the new normal and how we will have to phase economies into a more climate-friendly situation, but at the same time some of the measures that are being taken right now are not considering that.’
For Jonathan Cocker, Sustainability Initiatives Officer of the IBA Environment, Health and Safety Law Committee and a Toronto-based partner at Baker McKenzie, the massive increase in the requirement for single-use, non-recyclable personal protective equipment (PPE) during the pandemic means attitudes towards recycling and the impact it has on the climate are going to have to change. If they do not, and governments’ net-zero targets are missed, then the most fundamental human right – the right to life – would be at risk.
‘There’s been a dramatic growth in the amount of material that’s deemed medical waste, which includes PPE,’ he says. ‘What we now have to consider is whether recycling is the preferred method of dealing with the exceptional growth in PPE waste or whether we look again at strategies like thermal treatment.’
‘In a lot of countries waste energy doesn’t exist, particularly outside the European Union. There’s a view that waste energy is environmentally hazardous, but that’s not necessarily the case,’ he adds.