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Defending Human Rights in 2022: pandemic and war in Ukraine

December 10, 2022

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Diario de Navarra

Juan Cianciardo

Full Professor of Philosophy of Law and director of Master's Degree of Human Rights of the University of Navarra.

Seventy-four years ago today, the United Nations General Assembly adopted the "Universal Declaration of Human Rights," a milestone that justifies the celebration of Human Rights Day every December 10. If we think about this anniversary, we can see that much of what has happened around us this year is particularly related to these rights.

The most obvious is the war. On February 24, Russia decided to invade Ukraine. This violation of human rights was followed by a political response: widespread support for Ukraine and the sending of armaments. There was also a moral response, a widespread movement of solidarity with the victims, especially in Europe, especially in the first quarter, in the face of a growing issue of Ukrainian citizens who left their country and demanded shelter.

The European Union decided for the first time in its history to authorize the Temporary Protection Directive. In the case of our country, between last March 10 and last October 25, the Office of Refuge and Asylum of the Ministry of the Interior and the National Police had processed and granted 150,078 protections to Ukrainian refugees. In the case of Navarre, the sum amounted to 1,538 persons.

This moral response also had a symbol: the submission of the award Nobel Peace Prize to the human rights organizations Memorial (Russia) and the Center for Civil Liberties (Ukraine), and to the imprisoned Belarusian activist Ales Bialiatski. Finally, there was also a legal-political response, perhaps the most forceful gesture of which was the expulsion of Russia from committee in Europe on March 16. Only once in history had such a decision been taken: it was against Greece, in 1969, after the "colonels' coup", and it ended with the re-incorporation of this country in 1974.

We are also in a year in which the Covid-19 pandemic was significantly attenuated. We are back to business as usual. Looking back, there remains to a large extent an assessment extent to which the severe restrictions on human rights that occurred during the pandemic were reasonable.

Situations of grave emergency for human rights are not found outside the Constitution, but rather the Constitution itself provides for them, and creates tools to combat them should they occur. In these cases, the constitutions create paths that allow the adoption of urgent measures, outside the ordinary decision-making process, the transit of which would render them inefficient. In the case of Spain, these are the states of alarm, of exception and of siege.

It is also foreseen that the measures adopted may affect fundamental rights more profoundly than in periods of normality. Even if, due to the emergency, the initiative is taken by the Executive Power at position , both the pertinence of the chosen way to regulate, as well as the depth of the effect, end up being the object of the parliamentary discussion and the control of constitutionality.

One of the terms core topic of the constitutional discussion is "proportionality": restrictions on fundamental rights must always be "proportionate", and judges may declare them unconstitutional if they are not. That is, adequate for the achievement of a "socially relevant" end; necessary, because there is no other suitable alternative and less restrictive of the rights at stake, and proportionate in the strict sense, because whoever ordered them made a good balance between the costs and benefits generated by them.

Regarding the latter, it is worth noting that although it was always clear among the costs of the measures adopted that an economic crisis would be generated -we are experiencing it today-, it was not so clear, on the other hand, that there would be such a serious increase in mental health disorders. In the case of minors, according to the association Española de Pediatría, the increase reaches 47%.

Fighting the abuses of a tyrant or the excesses of governments in the pandemic are objectives that are pursued through human rights as part of a utopia: to find within a world with an enormous diversity of understandings about what is good and what is just, a path that avoids the abysses of perversity and cynicism, capable of recognizing, promote and protecting the dignity of every human being.