Reykjavík, Iceland.

COVID-19, Civil Rights, and the Rule of Law: The Case of Iceland

By Hrefna D.  Gunnarsdóttir

Response and Restrictions

In the response to the COVID-19 pandemic, Iceland rolled out an extensive strategy of testing, isolating, contact tracing, quarantining, and social distancing, which has helped the country avoid the most drastic rights restrictions.

Diagnostic testing of those with symptoms started almost a month before the first case was identified in late February. By early March, hospitals and nursing homes closed to visitors, and public health authorities teamed up with a private company, deCODE genetics, to collect samples from symptom-free/mildly symptomatic residents. The collaboration (while controversial) provided valuable information on the prevalence of COVID-19 to tailor Iceland’s response.

Consequently, legal measures have not gone as far as placing curfews. However, Iceland has employed the following strategies to contain the virus: isolation, quarantine, limitations on group gatherings (first limited to less than 100, and later reduced to 20) and distancing requirements of 2 meters (with associated fines if violated). These measures have affected the autonomy of Iceland’s residents and severely impacted businesses.

Essential institutions, such as the Parliament and the Courts continued to run adapting their schedules and procedures in line with the measures. Stress on the right to education gradually progressed and higher education institutes ultimately closed their doors and moved teaching online. Kindergartens (ages 1-5) and elementary schools (ages 6-16) mostly stayed open with modified operations.  As of 4 May, these restrictions are, little by little, being withdrawn.

Iceland also participated in temporary restrictions on non-essential travel to the Schengen Area, and enacted internal border control including 14-day quarantine upon arrival, both of which are currently set to be in place until 15 May 2020. Iceland expects to reopen to international arrivals by mid-June. While the details of the reopening are currently being finalized, the government has announced that it might entail testing and tracing measures for arriving passengers.

Respecting the Rule of Law

In the absence of a specific emergency legislation, Iceland has relied on passing executive instruments based on statutory law. The travel restrictions were set by the Minister of Justice, enacting a Regulation, as authorized in the Act on Foreign Nationals.

Other measures (on quarantine and isolation, gatherings, and schools) have been introduced by the Minister of Health’s (MoH) Rules and Advertisements seeking basis in the Act on Health Security and Communicable Diseases. The Act allows the MoH to adopt measures in response to communicable diseases based on recommendations from Iceland’s Chief Epidemiologist. The associated fines for violating the measures rely on the same legislation, while prison sentences for more severe violations were already stipulated in the Penal Code.

The judiciary has not yet had to evaluate the legality of the enacted measures but local newspapers have reported that those might be on the horizon. Before the Courts, the measures, and their legal basis, might be tested against the provisions of the Constitution and the European Convention of Human Rights,  as Iceland has neither relied on the Constitution’s unwritten necessity principle nor the European Convention of Human Rights’ derogation.

While the Health Security and Communicable Diseases Act could certainly be clearer, it explicitly stipulates isolation, quarantine, closing of schools, and gathering bans as possible measures against communicable diseases. The specific legal basis for not permitting visitors to hospitals and nursing homes has not been precisely stated. However, according to the Patients’ Rights Act, health care services and nursing homes have an obvious duty to apply measures to protect patients, and provide best health service available. Additionally, the Act on Civil Protection provides the legal basis for the national pandemic response plan, stating the protection of those responsible for indispensable services as one of the key objectives.

Trust, but Rising Tensions

In addition to legal measures, the frontline in Iceland’s response (the Director of Health, the Chief Superintendent of Police and the Chief Epidemiologist) has held daily press conferences in Icelandic.

The trio of experts has used the platform to discuss the pandemic in wide context, introduce foreseeable restrictions and advise on issues ranging from hygiene to privacy concerns of the contact tracing application (developed in cooperation with the Data Protection Authority). Maybe due to this transparency, recent polls have shown that up to 96% of residents trust Iceland’s response. Other polls demonstrate that 85% consider Iceland’s response appropriate.

While the legal measures directly linked to the response seem to have been positively perceived, the crisis has magnified longstanding inequity issues in society, demonstrated, for example, in a delay issuing guidelines for people with disabilities using personal assistance services. Despite great efforts to translate the main website on COVID-19 into 8 different languages, it is currently not known whether non-Icelandic speaking communities had sufficient access to necessary information.

The secondary impact of the restrictions, such as potential increases in domestic violence and child abuse, has also been high on the national agenda. More controversial has been the follow-up compensation scheme, introduced by Iceland’s government to tackle the restrictions’ impact on aviation, tourism, and merchants, and the associated unemployment rate. In light of this controversy, the measures and their impact on civil rights are likely to be dissected as the dust settles.

 

Hrefna D. Gunnarsdóttir holds a BA and Mag. Juris in Law from the University of Iceland and MA in Disaster Management from School of Global Health, University of Copenhagen, Denmark (UCPH). Gunnarsdóttir was a practicing Attorney at Réttur – Aðalsteinsson & Partners in Reykjavik, Iceland, before commencing her PhD at Center for Advanced studies in Biomedical Innovation Law (CeBIL) at UCPH. In her PhD study, Gunnarsdóttir explores the intersection between communicable diseases, data ethics and law from a patient governance perspective.

The Petrie-Flom Center Staff

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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