Covid-19: do the quarantine measures meet the proportionality criterion?

enero 16, 2021

Written by Felix Fuders, Roberto Pastén, Eugenio Figueroa y Carlos Bravo

1. Introduction: few facts and many questions

To what extent is it permissible to provoke an economic crisis, the extent and effects of which we know quite a lot about, if in return the “bad” to be limited is not known in its extent? Which restriction of fundamental rights (freedom of assembly, freedom of speech and democracy) may be used to reduce a group’s mortality risk? Are measures permissible if a similarly safe state could be achieved for a few (risk group) with less restrictive measures? Do we want to take such risks if we do not know where this path leads and therefore prevent further spread of the virus at all costs? Can a large part of society and the healthy world population be exposed to a risk of (starvation) death and social disruption, so that a small, known risk group can extend its remaining life, already marked by morbid conditions, by a few months? In the following we will go through these questions and will conclude that, even though we do not know much, to the current state of knowledge the strict quarantine measures applied in most countries in the world seem to not meet the principle of proportionality.

2. Hunger could kill more than the virus

2.1 Some figures at a glance

Here some country-specific figures: So far (07/14/20) 200,075 Covid-19 infected persons have been counted in Germany (John Hopkins University, 2020), that sounds a lot at the first glance. However, the number is put into perspective when compared to the 45,000,000 or so people who get ill of conventional cold pathogens in Germany every year. The number of people infected with conventional colds and flu every year is even significantly higher, since not everyone who gets infected also falls ill. However, reliable statistics do not exist. Also, the number of people who die from Covid-19 is frightening only at first sight. In Germany, 8,914 people have died of the new coronavirus so far (John Hopkins University, 2020); however, during the last winter 2018/2019, 25.100 people died from the classic flu in Germany (RKI, 2019), or almost three times as much as from the current pandemic. Moreover, these numbers could, in fact, be higher for most people who die of the classic flu are usually old people who, if they die at home and not in a hospital, will not appear in the statistics as influenza deaths but as natural deaths. The US Centers for Disease Control and Prevention (CDC) admits that the figures on influenza deaths can only be estimated (CDC, 2020a; 2020b)[2].

2.2 Do people die from Covid-19 or from old age and previous illnesses?

Co-morbidity greatly explains the high lethality of covid-19, especially among older people. As is the case with the classic flu, an otherwise healthy person will most probably not die of Covid-19. According to recent studies the vast majority of Covid-19 deaths are elderly people or those affected simultaneously by other diseases (Wang, et al., 2020; Guan, et al., 2020; Posch, et al., 2020; RKI, 2020; Welt, 2020). In fact, in hard-hit rich countries about 60% of all covid-19 deaths are among people of 80 years old and more. Even in the United States, which is an outlier, data released on June 16^th by the Center for Disease Control (CDC) show that the people in their 80s account for less than half of all covid-19 deaths (The Economist, 2020).

2.3 ‘Flattening’ the infection curve only works as long as the measures are maintained

The idea of flattening the infection curve is also questionable. Of course, the permanent flattening of the infection curve is not possible at all. It is not necessary to be a virologist to understand that once the quarantine is lifted, infection rates would have to rise exponentially again. According to the common belief, only one person with corona infection left over after the quarantine would be enough to start the exponential spread again. After all, it all started with a single person who had entered the respective country.

The idea of flattening the infection curve in order not to overload the health system only works as long as the measures are maintained until the entire population –or significant parts of it– is infected and has produced immunity. For example, with a daily infection rate of 3,000 people in Germany (and that was the average infection rate in Germany in April and May), it would take 26,666 days, i.e. 74 years, for 80,000,000 Germans before the quarantine could be lifted. The same rational you can apply similarly in other countries. After five years at the latest, however, we will all have starved to death. Already after half a year many will die of hunger, especially in poorer countries, where many are already destitute before the artificial economic recession started. Many small and medium sized enterprises (SMEs) will go bankrupt, and the markets will subsequently be even more concentrated, thus increasing inequality since market concentration is probably one of the most important reasons for the growing income inequality, along with our financial system (Kennedy, 2006; 2011; Fuders, 2010; 2014; 2016; Fuders & Max-Neef, 2014a; 2014b).

3. The principle of proportionality is not respected

3.1 There is a milder remedy than the total standstill of the economy

Why is quarantine not simply limited to the persons belonging to the risk group? As already mentioned, the majority of deaths are elderly people (which is why these could be interpreted as natural deaths due to old age or deaths due to the respective previous illness rather than Covid-19 associated deaths). That is to say, even if we deemed Covid-19 to be so dangerous that it is justified for the first time in history not only to put the sick under quarantine, there is absolutely no reason why we should restrict fundamental rights (especially right of assembly) to those who have no or very little probability to die.

If it was possible to achieve the same effect, namely the protection of the most vulnerable people, by a milder means than the total standstill of the economy, why not do it? To answer this question, it is important to apply the normative criterion of proportionality in order to discern the correct balance between the objective pursued and the means and methods used to attain it as well as their consequences. Proportionality is a core principle in public law, which provides a logical method to assist in determining the legality of a certain action. If it is possible to achieve a legitimate objective with a smaller restriction of freedoms, then the principle of proportionality, belonging to the fundamental principles of a constitutional state, even obliges the legislator to do so[4]. In the case of the covid-19 pandemic at hand, the proportionality principle constitutes not only a compelling normative criterion to guide the required public policies, but it also provides a useful practical tool to minimize, although not to eliminate, both of the arising conflicting consequences from the necessary public actions, the health costs and the economic and social costs involved in these actions pursuing the desired objective of controlling and stopping the epidemic.

3.2 There could be more deaths from hunger than from the virus

However, even if there were no milder means of achieving the same legitimate objective (the protection of human lives), the drastic quarantine measures currently enforced almost everywhere in the world can hardly be considered adequate. With the economy running almost to zero, we run the risk of creating an unprecedented wave of bankruptcies, especially, but possibly not only in SMEs, and because most people work in SMEs of creating an unprecedented economic crisis and unemployment, which could be much worse than the crisis of the 1930s. It is not unlikely that massive credit defaults will then trigger the overdue (Fuders, 2010; 2017; Fuders & Max-Neef, 2014a; 2014b; Fuders, et al., 2013) world financial crisis. Here it would be enough for only one country to experience a Bank Run that could then expand to other countries (contagion effect) because capital markets being highly interconnected. As was the case in the Great Depression, such a financial crisis will melt down the money multiplier effect (Dornbusch, et al., 2009), resulting in a strong decrease of money supply with a strong deflationary tendency on the real economy.

Even without financial crisis, the World Trade Organization expects world trade to decrease by 32% (WTO, 2020). If companies went bankrupt, the collapse of the globally integrated value chains and thus the collapse of the global economy could persist for many years, even if the quarantine was abrogated after a few months. If the quarantine is maintained for a few more months, it is not unlikely that we will see famines, especially in developing and emerging countries where the public sector does not have the means to subsidize unemployment over a longer period of time. In many countries, the retail trade alone plus the tourism sector account for 20% of GDP. Then there are suppliers and all those companies that have suffered heavy losses because many have less income at the moment and also spend less. For example, in Germany even the automobile industry got to a standstill in April and May, and that had never happened before, not even during World War II. If this lockdown of the economy lasted a year, GDP in Germany –and similarly in many other countries– could fall by up to 50%. But just three months would already lead to a GDP decrease of 3/12 of 50%, that is 12.5%. The problems already affecting the world aviation industry, the tourism industry as well as the global oil industry are signs of how troublesome the future can be for many other areas of the global economic activity.

If people worldwide earned 12.5% less on average, then the poorest will starve to death. The poorest, that is almost 10% of the world’s population or 700 million people (Roser & Ortiz-Ospina, 2013). Even of the Spanish flu, which is considered the deadliest pandemic ever recorded, only 20-50 million died (WHO, 2017). Here it is important to remember that poor people and generally those belonging to the lower wage groups are relatively more affected than the average. In Chile (an OECD country), beggars and ambulant street vendors are already starving to death, as there is no one on the streets today who could give alms as usual. People are living similar or even worse situations in many other countries poorer than Chile. This cannot persist for a much longer period without a significant increase in the possibilities of future social unrests, political conflicts, and riots, assaults and lootings by desperate mobs trying to survive.

3.3 Deaths due to malnutrition and lack of hospital beds

Hunger and malnutrition and the resulting weakening of the human immune system could then lead to the spread of other diseases, such as tuberculosis, cholera or typhoid, which especially affect immunocompromised patients. Also, the number of people dying of Covd-19 itself could increase because of the malnutrition. Would those cases then enter the statistic as Covid-19 deaths or deaths due to malnutrition?

And how many people die because they cannot get adequate treatment now, as hospital beds are occupied by corona patients, even though a causal treatment against coronavirae until today does not exist (Berdel, et al., 2004; Kasper, et al., 2015; Bhat, et al., 2016)? There is only symptom treatment, and even this is likely to be unhealthy rather than beneficial to recovery, as the body produces symptoms such as fever and rhinitis for good reason. Certainly, the symptoms are not a failure of nature, and man does not improve nature. A million-year-old equilibrium by definition cannot be improved. Imagine an ancient and weak patient, now weakened extra by the corona infection, who is then also (mal)treated with an immunosuppressive viral static (chemotherapeutic agent). It is understandable that this patient’s immune system then collapses completely, so that his pneumonia becomes so severe that ventilators are needed. Hence, not only are many hospital beds unnecessarily occupied, one might argue that some of the “corona dead” could possibly still be alive if they had stayed at home. However, reliable figures do not exit and can only be estimated.

4. Conclusion and outlook

Independently of how strong this worldwide shut down of countries’ economies will eventually affect livelihoods, it is fairly incomprehensible why the quarantines have not been limited to those at risk instead of paralyzing the entire economies. In fact, this is the first time in human history that a quarantine is deemed to be necessary to be applied not to the sick, but to the healthy part of the population. This leads us to the next point. Laws and the threat of fines would not even be necessary, for people belonging to the risk group will stay at home voluntarily. The danger of an economic collapse would be avoided by this milder means. Since the same effect of protecting people belonging to the risk group can be achieved with less drastic and above all dangerous measures, the legislator is even OBLIGED to apply this milder measure. The principle of proportionality, which is one of the fundamental legal principles in a constitutional state, obliges the legislature to do so.

It seems to be urgent to adopt, extended and update epidemiological models incorporating economic and social variables determining peoples’ behavior responses to policy prescriptions imposed by governments to better project pandemic evolutions in the future. The current response of the scientific community producing a large number of papers and manuscripts in the indicating direction within a period of only few months, allows us to be optimistic that this challenge can be met soon. This will hopefully facilitate future compliance with the proportionality criterion which can be easily overlooked and violated if the economic and social drivers of people’s behavior continue to be disregarded by the epidemiological models used to design health policies.

This is a summary of a working paper published at Universidad de Chile. Complete paper can be seen here.

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[1] Correspoding author, email: felix.fuders@uach.cl

[2] Moreover, in the US, as of 07/02/2020, and according to the estimates of the CDC, the number of covid-19 related deaths had been 128,024, which is only a bit more than a quarter of the common influenza death toll in the same country, during the 2018/2019 season.

[3] Viruses are part of a set of life forms that are usually found in a human being (along with bacteria, fungi, protozoa and helminths) (Delwart, 2016).

[4] Any measure that interferes with fundamental rights must be appropriate, necessary and proportionate. A measure which does not meet these requirements is unlawful. The necessity must always be denied if there is a milder means of achieving the legitimate objective. On the principle of proportionality, see for example Emmerich-Fritsche 2000; Schachtschneider, 2007, p. 342 ff; Cottier, et al., 2012.