The COVID-19 Pandemic cannot be used as a reason to arbitrarily de-legitimize the BLM protests.

George Floyd’s death has reignited the Black Lives Matter (BLM) movement and brought it back into the limelight of media and politics. Protests across the world are voicing demands for justice for people of color against systemic violence. However, these protests are occurring against the backdrop of a deadly pandemic, which has to date claimed the lives of over half a million people. The infectious and viral nature of the disease makes the BLM protests somewhat of a contentious subject. Despite the growing popularity of the movement, attempts to destabilize and question its legitimacy have been made by governments and state authorities using the argument of public health. Indeed, many have voiced fears that the protests may do more harm than good by further spreading COVID-19.

Although governments have tried to halt the protests using the public health argument, the movement should not be quelled by these political motives. While social distancing measures and health safety remain of utmost importance, BLM can, and should, continue to make itself heard globally. In the first part of the blog, I will analyse how the protests are valid under the norms of International Law. In the second part of the blog, I will argue for the need to continue the protest even during times of a pandemic.

1. BLM: Escaping the clutches of the ‘Public Health’ exception

Article 21 of the ICCPR explicitly recognizes the freedom of assembly, derived from the freedom of expression outlined in the UDHR. Conducting and organizing protests engage both of these freedoms, considered to be sacred social and political rights in most democracies across the world. Indeed, the right to protest provides a channel to voice discontent and an opportunity to be heard by democratic institutions and decision-makers. In short, the right to protest is at the core of the healthy functioning of any democracy. However, this right is not absolute. In fact, in exceptional circumstances, it can be curtailed for the purpose of public safety. Article 21 of the ICCPR and Article 25 of the Siracusa Principles lay down that rights and freedoms can be limited in order to protect public health and to stop the spread of infectious diseases. However, any restriction on such freedoms need to be necessary and non-discriminatory. In addition to this, out of all the options available to protect public health, the least intrusive option should be adopted – that is, the one that least threatens individual and collective liberties.

Law enforcement officials have requested states to invoke this public health exception to justify the banning of the recent BLM protests.  In fact, in some countries like Australia, police have directly approached the courts to ban the protests.  It is not just police officials who have  tried to destabilize the moment in the name of ‘public health’. Government officials too have invoked ‘public health’ to build a sentiment against the movement.  

Countries around the world are opening up their economies, and business have restarted their operations. This has been allowed despite the continuing increase in the number of COVID-19 cases. This has been justified because the livelihoods of millions of people are at stake and continuing the lockdown might further affect their economic security. In this context, decisions to halt BLM protests can be perceived as discriminatory, as states appear to be restricting certain activities, while classifying others as more necessary to the functioning of society. However, there is currently an element of risk in all social encounters – going to a restaurant and attending a protest both increase the risk of spreading the virus. In fact, the available scientific evidence shows that COVID-19 is more prone to spread indoors rather than outdoors. Thus, attending protests that are conducted with adequate safety measures and with social distancing norms is much more safer than going to an indoor restaurant or a bar. In that sense, banning political protests while allowing for leisurely activities appears somewhat hypocritical; while economic rights are being protected, the dignity, safety and aspirations of Black people are being suppressed in the name of public health. Once again, capitalism appears to trump basic freedoms.  Furthermore, there is no data linking the recent spike in coronavirus cases to the BLM protests. Without such evidence, government officials should refrain from blaming protestors for increases in COVID-19 cases. In fact, such claims mislead the general public and may turn public opinion against the BLM movement. 

Moreover, the state can fulfill its obligation to protect public health without halting the protests altogether. States can do so by releasing guidelines for protesting and by ensuring  that its own administrative policies facilitate safer protests. So far, the policing methods adopted have only made the protests more unsafe. The very members of law enforcement who ask people not to participate in the protests in order to protect their health, do not seem to care about health once protests take place. Indeed, practices such as kettling – a technique wherein officers surround demonstrators to corral them before making arrests – which completely disregard social distancing norms, have been heavily adopted against BLM protestors. Furthermore, police have also heavily used pepper spray and tear gas to disperse crowds. These not only lead to close contact between people, but may also make the protestors more vulnerable to health risks and thus more likely to catch the coronavirus. While states also have an obligation to protect the lives of demonstrators, this seems to have been temporarily forgotten during the wave of BLM demonstrations.

A recent report by Amnesty International, has conclusively laid down that state and police action against BLM protestors has been unduly violent and militaristic in nature. Another report by Amnesty has further concluded that the USA law enforcement officials have violated the BLM protestors human rights by acts of police violence and use of excessive force. Therefore, there is an urgent need to change approaches towards these protests, finding a balance between political expression, public health and the safety of protestors themselves.  In fact, the duty of the state to protect public health should in no way encourage it to cause harm in other ways, as all rights must always be equally upheld when possible. Instead, a balance must be struck wherein none of these crucial rights are compromised.

2. Establishing the need to protest (even during a pandemic)

A short-sighted view on the BLM protests may conclude that the coronavirus will kill more people than police brutality and hence there is no need for such protests. Such an argument assumes that BLM is a movement solely against police brutality. However, while BLM is a direct reaction to recent police killings, the movement and protests are aimed at a broader fight against systemic racism engrained in social, political and economic spheres. The above argument blatantly disregards the sustained violence and injustice suffered by people color for centuries, which can hardly be compared to the biological threat posed by the virus.

The prime concern of those against the protests appears to be ‘public health’. However, racism affects public health in a much more monumental way than Covid-19. In fact, the pandemic has itself shed light on the racial disparities in access to health, as Black people have been the worst affected by the pandemic. Statistics from the US show that Blacks have suffered 23.8% of known Covid-19 deaths, despite representing just 12.4% of the US population. In the US, if the mortality rate of Blacks was to be brought down to that of White Americans, every year around 80,000 African American deaths would need to be prevented.  Such disproportionate mortality rates are the direct result of long-term policy measures that have discriminated against Blacks in every sphere of life. Income disparities, lack of medical insurance  and the poor housing and living conditions among Blacks is a clear manifestation of the deep racial injustices meted out against them in the USA. As a consequence, African Americans have unequal access to healthcare and are more prone to chronic diseases like diabetes.  Therefore, protests against such a system of oppression will only help improve equal access to public health through the fight for racial justice. A more long-sighted view of the issue at hand may reveal the importance of these protests.

But why now? Why can’t these protests be resumed after the pandemic ends?  First, it is impossible to predict when the pandemic will come to an end – if it goes on for the next two years does that mean freedom of expression should be curtailed for the entirety of this period? Instead a more pragmatic approach should be taken to balance both public health and the right to protest. It should also be noted here that, the protesters and the organizations leading the protests are not unaware of the risks of protesting. Most organizations leading demonstrations have come out with clear guidelines on safe protesting. Moreover, for the success of any political movement, awareness and momentum are essential. If the protests are stopped now, BLM may eventually fizzle out of public consciousness, preventing it from converting its social power into political power, without which it cannot bring much-needed substantial  policy change to help improve the lives of people of color. To give an example, the recent protests have had a huge impact on shaping the views of people, especially the younger generation with respect to race and how it drives the way we function as a society. However, to bring about change, the movement should not only bring about awareness, but also encourage people to take explicit steps towards change, for example by encouraging people to vote for those who promise to address racial inequality. To attain this political power and significantly advance the fight for equal justice, these protests should be continued, even during the Covid-19 pandemic. This movement, like any social uprising, cannot guarantee change. However, it has presented an opportunity to reignite a long-standing debate and has garnered significant support and public anger to fight for this change. As James Baldwin puts it, “not everything that is faced can be changed, but nothing can be changed until it is faced”.

ABOUT THE AUTHOR

V Shanthan Reddy

Shanthan is a third-year law student from NALSAR University of Law. He has a deep interest in human rights, public policy and commercial laws. He can be visited on LinkedIn or via mail at shanthanreddy@nalsar.ac.in.