New study from Germanybreveals that cases of #COVID19 in young children are missed more often than in adults or older kids. This has #HumanRights implications. A thread. 1/x https://twitter.com/DrZoeHyde/status/1322198487975424001

2/x The state has a positive duty to protect against harm. This does not mean protection against all possible risks, but human rights such as the right to life and the right to health have what lawyers call positive dimensions.

3/x This means that the state not only must not interfere with your rights, such as your freedom of expression or freedom of religion, but that the state has to take active measures in order to protect your rights.

4/x Sometimes this requires the state to create institutions, for example electoral commissions to ensure that you can enjoy your right to vote in a fair and free manner and without fear of reprisals. In some cases, for example concerning the right to life, the state has ...

5/x ... to take specific measures. International human rights institutions had on several occasions dealt for example with state obligations in the context of the threat of domestic violence. The state has a duty to protect you against such specific risks.

6/x But the state also has a positive duty to protect us against less specific risks. This is why there are speed limits on roads and why criminal laws exist. Creating and enforcing such rules serve the purpose of fulfilling the state's duty to protect.

7/x This is not a perfect system. Despite regulations, there are traffic accidents - but the important point is that the state has to take those measures which are useful, necessary and proportionate to achieve the goal of protecting against harm.

8/x In the context of road safety, it would be disproportionate to outlaw all cars, but it makes sense to have speed limits which are specific to certain situation (different speed limits on a highway or in front of a school).

9/x We can look at state obligations in the context of the #COVID19 pandemic in the same way. Take my home country, Germany, as an example. When the new measures were presented this week, Dr. Merkel emphasized that these measures are useful, necessary and proportionate.

10/ These terms (geeignet, erforderlich and angemessen or verhältnismäßig) are at the core of human rights discourses and something every first year law student will be able to discuss in their sleep. This is the core of the relationship between the state and the individual.

11/x Originally, this three-step test was devised in the context of interferences with human rights and in this sense it is understood when it comes to the negative effects of the so-called lockdown (which is not really a lockdown in the sense that the word is used in English).

12/x With regard to the protection of the rights to life and health, the positive measures taken by the state also have to be useful. There has to be a certain likelihood that the measures are actually enough. Having a speed limit is useless if the speed limit is 200 mph in a ...

13/x ... residential area. Hence, it is necessary to ask whether measures which are aimed at protecting human life are actually enough. Here the comparison to road traffic might be useful once more. In the first 6 months of the pandemic, before the case numbers exploded in ...

14/x ... recent weeks, i.e. from February until August, Germany saw somewhat over 9,000 deaths from #COVID19. This is roughly the same as the total number of people killed in road traffic in Germany in the years 2017, 2018 and 2019 combined - in just half a year.

15/x To make road traffic safer, a large number of measures are taken everywhere, all the time. Road signs, speeding checks etc. - and these measures are widely accepted, although in some cases, it took some time, for example when seat belts were first made mandatory.

16/x The rights to life and health require certain measures to be taken and the number of deaths from road accidents in Germany has gone down significantly since around 1970. This did not happen on its own but it happened because new laws were introduced, such as speed limits on

17/x overland roads or the seat belt requirement. Regulation can enhance human safety. The same approach applies to enhancing protection against #COVID19. The measures which have been taken now are a step in the right direction - just like the introduction of the duty to wear a

18/x seat belt was in 1976. But it is not enough. Once more the seat belt analogy can help here to explain why: Germany made it obligatory to wear a seat belt starting in 1976, but less than 2 out of 3 people wore a seat belt. Why was that? Of course it was something new and ...

19/x ... uncomfortable (sound familiar?), but the key factor that led to a change in individual behavior and which brought the use rate up to 90 % was the introduction of a 40 DM fine in 1984 (equivalent to a bit under 30 EUR in today's value). This might not sound like much but

20/x for a lot of people that was a significant amount (the average pre-tax income in West Germany was just over 34,000 DM per year). This made a difference. The legal requirement was backed up by an enforcement mechanism, a fine. And it applied to everybody. If your kid on the

21/x backseat didn't wear a seat belt, it would cost you 40 DM. This has saved thousands of lives every year since then. By creating and enforcing effective laws, the state has honored its obligation to protect.

22/x The new study mentioned at the beginning of this thread now provides evidence that children have to be taken into account more than before when it comes to devising ways to fight the spread of SARS-CoV-2. Currently, schools remain open and elementary school children are not

23/x required to wear a mask. Often, kids who want to wear a mask although they might not be legally required to do so are teased or mobbed by others and there have been cases in which teachers told kids to remove their masks in closed poorly ventilated rooms. By not taking into

24/x account the now identified role of children in the transmission of the virus, because they are often asymptomatic but can spread the virus, the state has failed children, teachers and society as a whole. The reason why Kindergartens and schools are open is that parents

25/x are supposed to work and keep the economy running. While the economy is important, the balancing act undertaken by state governments (which are responsible for schools) fails to take into account the reality of the pandemic and of the role of children in spreading the virus.

26/x New scientific information has to be taken into account in such decision-making processes. The fact that younger children are asymptomatic more often than thought means that measures which involve them have to be rethought. The duty to protect requires the state to act on

27/x the available information. In the case of #COVID19 in children this means allowing for homeschooling and offering online teaching. This could be offered at least as an option, so that the kids who have the environment needed to do so can study at home and parents in jobs

28/x which absolutely require their presence and which are relevant for society as a whole (from supermarkets to waste removal to health care) actually know that their kids learn in a safe environment. Realizing this will not be easy and it will not be cheap. It has to be made

29/x sure that no kid is left behind and that the safety and wellbeing of kids is prioritized. But the positive duty to protect the human rights to life and health requires the state to take such action. Elsewhere, this is possible without problems. As I wrote here the other day,

30/x there had been two cases at a school nearby (I am currently in Rovaniemi, Finland) and as a result the whole school and a neighboring school have switched to distance learning for 2 weeks. Of course, unlike in Germany, homeschooling is legal here, too. Given the excellent

31/x track record of the educational system here, which is much more aimed at providing access to education for everybody regardless of their background than the German school system is, it might be time to look beyond the borders of one's own country and learn from others. /END