Dr Başak Bağlayan is a post-doctoral researcher in fundamental rights at the University of Luxembourg’s Faculty of Law, Economics and Finance.
In the context of the COVID-19 pandemic, Dr Başak Bağlayan is part of the PROLAW (“Protection against infection through regulatory law”) research project, under the coordination of Prof. Stefan Braum. The 3-year project aims to cover an evolutionary arc from taking stock of the existing measures to contain the virus in various European countries, through the evaluation of possible consequences for fundamental rights, to the development of a normative legal framework for infection protection.
Could you tell us more about your background and expertise?
I am a post-doctoral researcher in fundamental rights at the University of Luxembourg, where I obtained my PhD in public international law. Before moving to Luxembourg, I obtained a Master degree in human rights from the University of Essex. Besides my academic work, I acquired practical experience working with refugees and asylum seekers in a London based human rights law firm. I have published on various human rights topics, including the law and procedure of the European Court of Human Rights and business & human rights. I also act as an adviser to the Luxembourg Ministry of Foreign and European Affairs on the latter topic.
How is your expertise relevant in the current COVID context?
You might call it professional deformation, but I have started to see COVID-19 as a human rights crisis in addition to a public health emergency. In particular, as we move along the different stages of the pandemic, we see how human rights are relevant to each and every aspect of the current context.
When COVID-19 emerged, the primary concern of governments was to provide healthcare and medical treatment to all and save as many lives as possible. These objectives involve fundamental human rights obligations – protecting the right to health and the right to life, respecting the prohibition of discrimination. However, the measures adopted to save lives, such as social distancing, travel bans, quarantines and “lockdowns” also have a profound impact on other core human rights including the rights to liberty and security, respect for private and family life, freedom of assembly and of association, freedom of religion, and freedom of movement. Closing schools has an impact on the right to education, including a disproportionate impact on children that do not have adequate internet access; the shutting down of businesses has an impact on many worker’s rights; the halting or slowing down of the work of courts has an impact on the right to access to justice, in particular the right to an effective remedy; various virus tracing apps can have a significant impact on right to privacy, etc.
Moreover, while COVID-19 and the measures to fight it can impact anybody’s human rights, it is also clear that certain individuals and groups are more vulnerable to these impacts due to their socio-economic or health conditions including children, women, migrants and refugees, persons with disabilities, LGBTI people, older persons, and national, ethnic or religious minorities.
Approaching COVID-19 with a human rights perspective allows us to understand more comprehensively the social consequences of the pandemic. It also helps to ensure that measures adopted to combat the virus do not restrict fundamental rights in a disproportionate or discriminatory manner.
What is your specific role in ongoing COVID projects?
I am part of the research project PROLAW (Protection against infection by regulatory framework). The current crisis has shown us that there is no coherent legal framework that adequately addresses the problems of a pandemic. PROLAW attempts to fill this gap. We will first critically analyse the existing legislative responses to combat the pandemic across EU member states as well as selected other countries and identify best practices. Next, we will investigate the societal and historical context of the existing normative problems in the fight against COVID-19. And finally, we will have a post-crisis evaluation in order to better understand the lasting impact of the measures, including on human rights, and propose a legal framework for future health and biopolitical decisions.
The PROLAW project will run for three years and involves a collaboration of various colleagues with different expertise. It is led by Prof. Stefan Braum, who, together with Prof. Silvia Allegrezza and Prof. Katalin Ligeti, focuses on the European and international criminal law aspects of the project. Prof. Mark Cole will deal with data protection issues, and Prof. Sévèrine Ménetrey and Dr Fatima Chaouche will work on issues related to access to justice. PhD researchers Loren Jolly, Nicole Citeroni and Lisa Urban are also working on the project.
Together with Prof. Jörg Gerkrath, I will address the constitutional law and fundamental rights aspects of the crisis. While Prof. Gerkrath will make a comparative assessment of state of emergency measures across different constitutional systems, I will address the international legal framework that allows states to introduce emergency laws. Under international human rights law certain rights are absolute, meaning that they can never be curtailed, such as the prohibition of torture, slavery, and the retroactive application of criminal laws. However, various other human rights can be limited under certain circumstances, and through emergency measures states can derogate from some of their human rights obligations. International law regulates how this is to be done and sets clear conditions for governments to observe. For example, there has to be a legal basis for the limitation, which needs to pursue a legitimate aim and has to be necessary, proportionate and non-discriminatory. The measure has to be limited in duration and subject to review. My role in the PROLAW project is to focus on this international legal framework and provide an assessment of the existing measures against these criteria.