Royal Palace of Madrid, Madrid, Spain.

COVID-19 and the State of Alarm vis-à-vis Human Rights in Spain

By Dorothy Estrada-Tanck

As of May 20, 2020, Spain had the second highest per capita rate of COVID-19 deaths in the world, with 59.5 deaths per 100,000.

In response to the coronavirus crisis, Spain declared a state of alarm on 14 March 2020, which lasted for fifteen days. It did so through “Royal Decree 463/2020, declaring a state of alarm to manage the health crisis caused by COVID-19,” adopted by left-wing Prime Minister Pedro Sánchez and his Council of Ministers in the executive branch of government and signed by King Philip VI. The state of alarm has been prolonged through Royal Decrees five times to last until June 7th.

According to article 116 of the Spanish Constitution, and “Organic Law 4/1981, on states of alarm, exception and siege,” states of alarm declared by the Executive must be ratified by one of the chambers of the legislative branch of government – the Congress of Deputies — a requirement which, to the date of writing, has been secured, although with opposition and debate. At the same time, robust economic and social measures have been adopted to counterbalance the effects of the lockdown.

RD 463/2020 institutes a nationwide state of alarm due to the coronavirus pandemic and limits the freedom of movement of people (art. 7) and the right to property (art. 13). It restricts individual movement to certain essential activities (procuring food or medical care and ensuring the supply of goods and services necessary for the protection of public health). It also suspends the operation of non-essential businesses, and centralizes control of health services and other critical government functions. Indirectly, the rights to family life, peaceful assembly, access to culture and recreation have also been affected.

While the state of emergency was adopted observing democratic principles, its legal basis has been debated among scholars – particularly concerning whether the decreed “limitation” of rights is de facto a full “suspension” – finding detractors and supporters alike.

The constitutionality of RD 463/2020 has been challenged by Spain’s far-right party, before the Constitutional Court, which is currently analyzing the appeal. While the Spanish state of alarm has been considered predominantly justified under the European Convention on Human Rights, questions have been raised regarding concrete violations related to its application. These concerns center around the potential challenges some COVID-19 responses may entail for individual persons, e.g., possible violation of the right to privacy through implementation of an executive order that allows for geo-localization to track infected people.

At a social level, there has been general observance of confinement measures, and solid support for hospital personnel expressed every day by an overwhelming majority of people clapping on balconies and outside windows at 8pm. At the same time, certain dissent with King Philip VI and the Government has been manifested on some days through pot-banging (“caceroladas”) at 9pm.

Children have experienced disproportionate effects of these measures, some of which are extremely restrictive. Indeed, the lockdown in Spain has particularly affected children’s rights in a country where almost 7 of every 10 people live in a flat or apartment. This is to be viewed coupled with the prohibition in RD 463/2020 of being in “spaces of public use,” unless individually, and the consequent recommendation of avoiding common spaces in residential buildings such as patios, yards and even rooftops. As such, the physical, emotional and psychological effects on children (and their families) cannot be overstated, as highlighted by the UN Committee on the Rights of the Child.

After a long-awaited relaxation on confinement measures for children, when the Spanish Government first announced on April 21st that children would only be able to go out accompanying a care-taker to authorized activities (e.g., the supermarket, bank or pharmacy), general outrage was expressed through a socially concerted “cacerolada” at 7pm. That same day, the Government rectified the measure and determined that children of up to 14 years of age could also leave home once a day with one adult for one-hour walks (“paseos”). After 43 days of staying at home and mostly of not being in any open space whatsoever, more than 6 million girls and boys in Spain went out on April 26th.

Discrimination against racial minorities, migrants, and homeless people has also been documented, as well as detriment to socio-economic human rights and the tremendous impact of COVID-19 and resulting measures on persons living in conditions of poverty, particularly those in overcrowded informal settlements and without running water. Social solidarity and help provided to these people by charitable associations and NGOs has also been a constant during confinement.

At the same time, windows of opportunity are being opened by this crisis. Due to state of alarm-derived border controls restricting people from travel outside Spain, immigration detention of people pending deportation was deemed to be unlawful and liberation of migrants or transfer to safe places for lockdown was recommended by Spain’s ombudsman. As a result, all centers for internment of foreigners (“CIEs”) are now closed  – an achievement that seemed impossible only a few months ago. Thus, alternatives to migratory detention are now a reality and the possibility of ending migratory detention as a structural and permanent option in the aftermath of the lockdown is now a prospect within reach.

One can only hope that in a post-confinement world where our interconnectedness is more evident to many, we may articulate a politics of solidarity and social justice to be able to protect the rights of those in the most vulnerable conditions and safeguard our planet for this generation and those to come.

 

Dorothy Estrada-Tanck is Assistant Professor of International Law and International Relations and Director of the Legal Clinic of the Faculty of Law at University of Murcia, Spain. She was a Visiting Fellow at the Harvard Human Rights Program during the spring term when the coronavirus pandemic broke out.

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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