The COVID-19 outbreak has led states around the globe to enforce measures aimed at preventing the spread of the virus and mitigating the consequences of the pandemic. These emergency measures have in some cases been in tension with human rights and liberties. Some of the most basic rights, such as freedom of movement or association, have been suspended by several governments to alleviate the health situation caused by the virus. In 2020, Argentina implemented one of the strictest lockdowns in the world, and it recently announced another. The enforcement of lockdown measures, as any other restriction of liberties, must be in observance of human rights standards.

Freedom of Movement and its Suspension under the ACHR

Argentina is party to the American Convention on Human Rights (ACHR), which features a set of basic human rights and liberties. In particular, the Convention guarantees member states’ citizens the right of freedom of movement, establishing that “[e]very person lawfully in the territory of a State Party has the right to move about in it.”

This freedom of movement can be restricted “to the extent necessary in a democratic society to… protect national security, public safety, public order… public health, or the rights or freedoms of others.” Rights under the Convention, including freedom of movement, may be suspended in keeping with the terms of Art. 27, “to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with [a state’s] other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.” Certain core rights – like the right to life, non-discrimination, and the right to dignity through the protection of physical and mental integrity – may not be suspended under any circumstances.

The ACHR therefore allows for limitations to be imposed on certain specific rights in a very  pacific manner, for a period of time limited strictly to what is required by the emergency, and in observance of other obligations under international law, including other human rights obligations. A state’s decision to suspend any guarantee can be a highly sensitive matter, as noted by the Inter-American Court of Human Rights, as it may lead to abuses. “It  cannot  be  denied  that under  certain  circumstances  the  suspension  of  guarantees may be the only way to deal with emergency situations and, thereby, to preserve  the  highest  values  of  a  democratic  society,” the IACHR noted in its opinion. “[However,] the suspension of guarantees lacks all legitimacy whenever it is resorted to for  the  purpose  of  undermining  the  democratic  system.  That  system  establishes  limits that may not be transgressed, thus ensuring that certain fundamental human rights remain permanently protected.”

Even when some guarantees are legitimately suspended, therefore, there are fundamental rights that must always be observed. Many of those rights were regrettably not respected during Argentina’s first lockdown, initially imposed in 2020.

Suspension of the Right of Movement in Argentina

The COVID-19 pandemic is indeed a public health reason that could justify some restrictions to freedom of movement, in keeping with the terms of the ACHR suspension provisions.

But Argentina has arguably gone far beyond the limits of the ACHR’s terms, depriving its citizens of fundamental rights that must never be curbed. In March 2020, Argentina imposed a nationwide lockdown that required people to quarantine at home, closed businesses and schools, and restricted travel and movement. Security officers were given wide enforcement authority, and police were empowered to stop and question virtually anyone on the street. During this first lockdown, reports by Human Rights Watch show that officers beat people who were on the streets, shot live ammunition to disperse crowds, and took other abusive measures that resulted in sexual abuse, injury, and death.

It is beyond question that Argentina, in response to the pandemic, was and remains authorized to suspend the enjoyment of the freedom of movement under the ACHR. However, the observance of other fundamental rights – such as physical integrity and the right to life – is essential, even during a suspension of freedom of movement. In fact, the observance of human rights becomes even more critical during the suspension of such guarantees, as the risk of abuse becomes greater.

A New Lockdown in 2021

On 7 April 2021, Argentina announced a new nationwide lockdown due to the country’s increase of COVID-19 cases. During the announcement of this lockdown, the Governor of the province of Buenos Aires stated that there would be strict controls and severe penalties imposed on anyone who breaches the lockdown measures. Additionally, the president declared that the army would assist in the lockdown enforcement, though Minister Rossi later clarified that the army’s role would be limited to providing sanitary assistance.

Again, while this suspension of the freedom of movement is permissible under the ACHR, such suspension must be enforced in a peaceful manner, with respect for and recognition of other human rights. Argentina’s first lockdown experience teaches a lesson: observance of the whole body of human rights is critical, and even when one right is limited, others must be observed.

Argentina’s second strict lockdown may well be necessary to ensure the health of the nation’s citizens. But Argentina must take heed of the lessons it has hopefully learned from the tragedies endured during its first lockdown, and take preventive measures to avoid abuses in the enforcement of the new lockdown. The state should provide adequate training of enforcement officers and create a system of scrutiny to prevent and sanction any human rights abuses. In this extremely sensitive situation in which the enjoyment of some human rights has been restricted, the state has an augmented duty to protect all others.

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Ivan Levy is a lecturer at the University of Buenos Aires Law School in the fields of international law and international arbitration. He holds a J.D. from the University of Buenos Aires Law School and an LL.M. from Columbia Law School, where he studied as a Fulbright Scholar. Formerly a member of the winning team of the 2016 Willem C. Vis moot, he now coaches university teams for both the Foreign Direct Investment and Willem C. Vis Moots.