Reviewing the Necessity Test in a PHEIC: “Least Intrusiveness” or “Reasonable Necessity”

Abstract

Abstract The COVID-19 pandemic challenged traditional thinking about permitted limitations on human rights and signaled how vulnerable and fragile our world could be. Despite the pandemic being declared terminated by the WHO in 2023, lessons have not yet been fully learned therefrom to cope with health crises that we would encounter in future. How stringent measures are adaptable to the necessity test in a public health emergency of international concern (PHEIC) requires continuous examination. This article critically reviews the incompatibility of the least intrusive standard with profound scientific uncertainty in a PHEIC. This test is likely to strike a poor balance between effectiveness, efficiency, and intrusiveness. When States took precautionary measures without full scientific support, the least intrusive standard turned out to be only presumptive with a de facto reasonable necessity test stepping in. The article rationalizes the adoption of the reasonable necessity test as a contextual interpretation and adaptation of necessity and precaution in the events of PHEIC. It further contours the test through a risk-based approach and in consideration of the economic and social impact of intrusive measures.