Donald, Alice

Leach, Philip

English

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Human Rights – The Essential Frameof Reference in the Global Response toCOVID-19Alice Donald 2020-05-12T10:33:46COVID-19 has created a situation unparalleled in the post-1945 era, as all nationsface the same mortal threat simultaneously. The climate emergency and terrorismare, like the pandemic, global in their causes and consequences, yet their effectsare experienced as sporadic and localised. The peril posed by COVID-19 – and therapidity and, in some cases, extremity of state responses to it – demand a universalframework which can guide decision-makers; ensure accountability for their actionsand omissions; and render visible the structural inequalities which determine thepandemic’s differential impact on groups in vulnerable circumstances. Internationalhuman rights law provides this framework. We argue that it is mistaken to conceiveof COVID-19 principally as a threat whose eradication necessarily requires rightsto be sacrificed. Rather, human rights standards and principles offer a meansof transparently balancing competing interests and priorities in the cauldron ofCOVID-19 decision-making – and rights-respecting measures which secure publicconfidence are likely to be more effective and sustainable over time than arbitrary orrepressive ones.Several themes predominate in the plethora of statements issued by United Nationsbodies (see here, here, here, here and here) and regional courts and commissions(from Africa; the Americas, see here and here; and Europe, see here, here andhere).  Rights are interdependentThe first is the sheer range of human rights at stake – and their interdependence.A woman living in insecure or overcrowded accommodation with inadequatesanitation is at heightened risk; hence, her rights to housing and health areimplicated, along with her right to life. If, during “lockdown”, she is at risk of domesticviolence and has no source of state protection or support, her right to life and to befree from inhuman or degrading treatment are at stake. If she cannot access or isactively blocked from accessing the Internet to obtain public health guidance, thenso is her right to information (protected under the right to free expression), alongwith her child’s right to education. If, additionally, she works precariously in theinformal economy in a state with no social safety net, forcing her to leave her hometo survive, then almost the full range of her socio-economic rights will be engaged.Imagine, then, that her government allows its security service to track hermovements using intrusive surveillance measures (as Israel did, before being- 1 -successfully challenged on grounds of privacy and lack of democratic oversight).Or that it starts to rule by decree and stifles free expression by permanentlycriminalising the publication of false or distorted facts that interfere with the“successful protection” of the public (like Hungary). Or that it follows Poland in usingthe COVID-19 emergency as a cloak to introduce unrelated bills to ban access toabortion and criminalise sex education.Our notional civilian tells the story of COVID-19, in which states’ pre-existing failureto realise economic and social rights helped to cause or exacerbate the pandemic, inturn creating the conditions for authoritarian power grabs and severe incursions intorights, of the kind being monitored by this Symposium, and also here, here, here andhere.What are states obliged to do in a pandemic?For public bodies to adopt a “rights-respecting” policy, they must go beyond simplyavoiding interferences with human rights, and take protective or preventive stepswhich positively ensure that certain standards are met.  Such a responsibility createspotentially far-reaching obligations during a pandemic, especially towards thosewho are worst affected. Take the right to life, a non-derogable right in peacetime(see here, para 21). The obligation to protect lives encompasses the general duty toestablish and enforce the requisite legal and administrative framework to safeguardlife; the operational duty to protect people from real and immediate risks to lifethat the state knows or ought to know about; and the duty to investigate potentialbreaches of the right to life, including those caused by the state’s omission.  The Human Rights Committee, which monitors the International Covenant on Civiland Political Rights, requires states to adopt “appropriate measures to address thegeneral conditions in society that may give rise to direct threats to life”, includinglife threatening diseases (see here, para 26). Such measures include disastermanagement and contingency planning to increase preparedness; guaranteeingaccess on a non-discriminatory basis to food, water, shelter, healthcare andsanitation; and bolstering emergency health services.The right to life is undoubtedly engaged (see here, para 25) in respect of people inthe custody or care of the state, such as in prisons, immigration centres, psychiatricfacilities and other residential institutions, especially care homes for older people,where COVID-19 has wreaked devastating impact. The UN High Commissioner forHuman Rights has warned that the virus is “rampaging” through places of detentionworldwide, and UN bodies have urged states to release detainees or find non-custodial alternatives (see here and here). State responses have been uneven; forexample, while some have suspended immigration detention, medically vulnerablepeople in the United States are fighting to be released from over-crowded andinsanitary immigration detention facilities.How far will the state’s duty to protect the right to life extend? Certainly, as StubbinsBates argues, states’ positive obligations may be triggered in the case of health andcare workers required to work without adequate protective equipment, and instances- 2 -where “systematic or structural dysfunction in hospital services” results in medicallyvulnerable patients being deprived of access to life-saving treatment.In respect of the right to health and other rights protected under the InternationalCovenant on Economic, Social and Cultural Rights, other obligations arise. Forexample, states must devote their “maximum available resources” to combattingCOVID-19, without imposing a further economic burden on marginalised groups(see here, para 14). States should also take immediate measures to protect thejobs, pensions and other social benefits of workers during the pandemic, and tomitigate its economic impacts (see here, para 16); for example, by banning evictions(as Canada, Spain, the United Kingdom and some parts of the United States havedone). International assistance and cooperation are also enshrined in the Covenant,requiring states to share research, medical equipment and supplies, and bestpractices in combating the virus, with priority to be given to disadvantaged groupsand fragile states (see here, para 19).Balancing actIf a state takes far-reaching steps to protect life and health, it is highly likely thatthis will result in the restriction of other rights. However, as Mavronicola explains,while the pandemic may justify or even require exceptional emergency measures,it does not give carte blanche to states to take actions that are impermissible underinternational human rights law. With respect to qualified rights that may be restrictedor derogated from, such as the rights to freedom of movement and assembly andassociation, positive obligations to protect life and health only extend to measuresthat constitute legal, necessary and proportionate limitations on those rights – or, inthe case of lawful derogation, measures that are strictly required by the exigenciesof the emergency threatening the life of the nation. Since scientific evidence isconstantly changing, it follows that emergency measures must be time-limited andsubject to continuous oversight and review, since a restriction that is necessary andproportionate today may not be tomorrow.   National courts are already grappling with the appropriate balance to be struckbetween responding effectively to the pandemic, while ensuring that fundamentalrights are not swept away. For example, the German Federal Constitutional Courtgranted interim measures to protect the rights to freedom of assembly and freedomof religion, requiring local authorities to make contextualised assessments ratherthan indiscriminately banning protests and collective worship. In another instance,however, the Court rejected an application challenging state-level prohibitionson freedom of movement and freedom of assembly on the grounds that, in thecircumstances, the danger posed to life from suspending emergency measuresoutweighed the temporary restriction on personal freedom.This is the human rights framework in action, allowing not only national courts butalso ministers, public authorities and parliamentarians, to balance in a transparentand evidence-based way the competing imperatives generated by the pandemic.A human rights assessment will take account of the wider context, including limitedpublic funding, but it will also scrutinise relevant factors over the longer term -–- 3 -reviewing, for example, the contingency planning which responsible public bodiesought reasonably to have carried out, as well as the impact of a government’sbroader social and economic policies, such as austerity policies that hid the pooresthardest.“The virus doesn’t discriminate but its impacts do”The COVID-19 pandemic is not, as one British minister averred, a leveller. Onthe contrary, it has both exposed and exacerbated deep structural inequalities inthe social determinants of health both within and between nations. This “uniqueecology of sickness”, as the World Health Organisation puts it, provides the starkestpossible illustration of the effects of indirect discrimination. Evidence is growing thatthe effects of the pandemic fall heaviest on the lives and livelihoods of people invulnerable circumstances, such as older people; people with disabilities; women andgirls; ethnic minorities; indigenous peoples; people in places of detention; migrants;refugees and displaced people; people working in the informal economy; peoplewho are homeless; and residents of informal settlements and slums.The positiveduties which result from a genuinely human rights-based approach require states torespond (in different ways, as necessary) to protect the lives and health (and otherrights) of such people. An example of such an intervention is Portugal’s decisionto treat all migrants as residents to give them full access to health and other publicservices during the pandemic.Human rights bodies have also sounded the alarm about direct discrimination andstigma targeted at communities on the basis of, among other characteristics, theirreligion, nationality or ethnic origin; the UN Special rapporteur on racism reservedspecial opprobrium for President Trump’s reference to COVID-19 as a “Chinese”virus, which spawned attacks on people of Chinese or other East Asian descent.  The connecting thread between these various forms of discrimination is clear: wherestates fail to pay explicit attention to the vulnerabilities faced by certain groups, ortolerate or encourage stigmatising behaviour, this not only violates the human rightsof those groups but also undermines the broader COVID-19 response and prolongsthe danger to everyone.  Why rights-respecting measures work betterIn other respects, too, measures adopted by states which comply with a humanrights framework are likely to  be more effective in protecting life and health, thanones that restrict other rights disproportionately. For example, voluntary contacttracing apps (installed onto smart phones) which rely on a critical mass of publicuptake will not be effective if there are concerns about a disproportionate invasion ofprivacy (see here, here, here , here, and here.It is vital, too, that the right to freedom of expression is vigorously upheld; heavy-handed measures (see, for example, Turkmenistan, Thailand and Russia) have a- 4 -chilling effect and impede epidemiological control by silencing journalists, whistleblowers or legitimate dissent that exposes failingsHow can the international human rights machinerybe used?Even now, in the throes of the pandemic, there are ways in which the internationalhuman rights machinery can be utilised. There is certainly potential for theapplication of urgent measures aimed at preventing irreparable harm (known asinterim measures under the European Convention and in the UN system (see hereand here); and precautionary or provisional measures in the inter-American humanrights system). For example, urgent orders may be sought to ensure that vulnerablepeople in detention are properly protected (or released). The European Court ofHuman Rights has established practice in applying interim measures in this way, butit has also gone further in recent years to invoke this mechanism, for example, tosupport the rights of investigative journalists.There are other means which could be employed within the Council of Europe torespond to states which exploit the imposition of emergency powers for ulterior,coercive reasons which restrict human rights. For example, the Secretary-Generalcould instigate an Article 52 inquiry, which would enable further scrutiny of theegregious practice of states such as Hungary.ConclusionIn recent years, some politicians and commentators have decried the breadth ofhuman rights laws, and complained about ‘mission creep’ by both national andregional courts. However, international human rights conventions were deliberatelydrafted as a broadly-framed set of standards which could be applied in any andevery situation, including, as now, during an unforeseen global pandemic. They needto have sufficient range and flexibility, so that they can be objectively applied to novelproposals and circumstances, such as contact tracing apps to counter the threat ofCOVID-19 (as discussed above).Just as states are seeking to get ahead of the COVID-19 curve, so musthuman rights advocates steal a march on those who would use the emergencyopportunistically to erode human rights, democracy and the rule of law. This meansrethinking the role of the state from a human rights perspective, asking what thestate is obliged to do for and with us and not just what it has the power to do to us.In our view, the pandemic also demands that we seek to develop rights in aprogressive direction; for example, it has created a strong basis for insistingthat access to the Internet should be regarded as a fundamental right, and formaking economic and social rights legally enforceable. Above all, as the UNHigh Commissioner for Human Rights argues, the universality of the threat fromCOVID-19 creates “the most compelling argument there has ever been for universaland affordable access to health care”, because no-one is safe until everyone is safe. - 5 -- 6 -

Human Rights: The Essential Frame of Reference in the Global Response to COVID-19

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Human Rights: The Essential Frame of Reference in the Global Response to COVID-19

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