Picture Credits: Ontario Human Rights Commission
The outbreak of coronavirus ( COVID-19) first detected in December 2019 in Wuhan, China has created a worldwide scare and has highlighted the global vulnerability to all nations alike. It has been declared as a “ public health emergency of international concern”. With the propensity of the disease to spread rapidly, ad-hoc emergency measures are being taken and laws and policies are being implemented relating to health measures, isolations, and travel bans. This pandemic clearly raises concerns regarding the viability of the international legal instruments in place to cater to such situations. Human rights concerns like the right to health, liberty, privacy, and freedom of movement all have come to test. Along with isolation, discrimination is another concern.[i] The problems that it has raised include “self-isolation” leading to loss of job or pay thereby affecting the livelihood of the people particularly the lower-income groups. While COVID may receive attention, the medical care of those suffering from other chronic or serious conditions may be affected. Further, small and medium-sized businesses may suffer because of travel bans. The UN High Commissioner for Human Rights, Michelle Bachelet, has asked the governments to carry on their containment efforts “holistically,” and make all relevant information public to everyone. This blog post outlines some of the international laws that would come into play at this time.
Isolation is a containment strategy that is currently being employed in most countries including the United Kingdom, Italy, United States, Canada, and Australia. The U.K. has passed the Health Protection (Coronavirus) Regulations 2020 which provides for the detention of any person who poses the risk of infection based on reasonable suspicion. According to regulation 9, such detention can be authorized for a period of 24 hours to 14 days with further extension if needed. Further, the law also creates new criminal penalties for those abscond or attempt to abscond from the detention or isolation centers, give false information or obstruct public health officials.
At this juncture, it may be difficult to counter these preventive strategies which aim at the protection of global health. However, arguments are being raised that such forced detention may affect human rights such as the rights to freedom of movement and peaceful assembly as recognized in the Universal Declaration of Human Rights ( “UDHR”). Restrictions may be imposed as per the General Comment 14 of the Committee on Economic, Social and Cultural Rights’ which provides that the right to health includes the right to control the spread of infectious diseases and further that in such situations, “the least restrictive alternative must be adopted,”. It also says that restrictions must be of, “ limited duration and subject to review.” Another important international instrument that the people can refer to is the International Covenant on Civil and Political Rights which provides that the rights to freedom of movement, holding opinions, peaceful assembly and freedom of association may be limited on grounds of public health.
International law provides that these limitations on the rights must meet the tests of legality, necessity, and proportionality. All these should be supported with reliable evidence. However, because of the rapid spread, one may have to evolve laws quickly. Thus, once the epidemic subsides, the measures taken will have to be tested on these grounds and research would be required to see how human rights standards in such emergencies of public health met the requirements of necessity, proportionality and legitimate public ends.[ii]
The main concern regarding human rights violations has emerged from the policies of the Chinese Government. As Human Rights Watch notes since mid-January, Chinese authorities have quarantined around 50 million people in an effort to limit transmission from the city of Wuhan in Hubei province, where the virus originated, to the rest of China. Further, authorities have detained people for “rumor-mongering,” censored online discussions of the epidemic, curbed media reporting, and Human Rights Watch further points that it has failed to ensure appropriate access to medical care for those with virus symptoms and others with medical needs.[iii] It is argued that while it is a good step to stop the spread of misleading information, isolation coupled with curbing media reports and communication can lead to further chaos. Further legally such a response by the government does not meet the justifications for limitations including evidence-based necessity. Ford Liao, a Professor at Academic Sinica, Taiwan notes that, “Quarantine becomes arbitrary detention when there is no doubt or legal reason a person is forced to be in a particular place and not allowed to apply for judicial review.”[iv]
In this crisis, the World Health Organisation is providing the necessary guidance and assistance, research, and framing the normative international response following the International Health Regulations of 2005. The International Health Regulations, 2005 which were adopted by the World Health Assembly in 2005 and are in force for 196 states since June 2007, are the sole binding global legal instrument dedicated to the prevention and control of the international spread of disease.[v] The current COVID-19 outbreak is testing the effectiveness and credibility of these regulations and the academics must study the same to understand it not only as an international law tool but also as an instrument of public health narrative cutting across issues of politics and sovereignty.[vi]
The International Health Regulations explicitly includes specific measures at ports, airports and ground crossings to limit the spread of health risks to neighboring countries and to prevent unwarranted travel and trade restrictions so that traffic and trade disruption is kept to a minimum. It consists of provisions relating to respect for dignity, human rights, and other fundamental freedoms during public health crises.[vii] In particular, Article 32 talks about “ Treatment of travelers”:
In implementing health measures under these Regulations, States Parties shall treat travellers with respect for their dignity, human rights and fundamental freedoms and minimize any discomfort or distress associated with such measures, including by:
- treating all travellers with courtesy and respect;
- taking into consideration the gender, sociocultural, ethnic or religious concerns of travellers; and
- providing or arranging for adequate food and water, appropriate accommodation and clothing, protection for baggage and other possessions, appropriate medical treatment, means of necessary communication if possible in a language that they can understand and other appropriate assistance for travellers who are quarantined, isolated or subject to medical examinations or other procedures for public health purposes.
In Article 42, regulations further state that, “health measures taken pursuant to these Regulations shall be initiated and completed without delay, and applied in a transparent and non-discriminatory manner.”
Thus, the passengers stuck at airports and other places, have clear rights prescribed under international law. Several Indian passengers have been stuck in the European nation, despite having confirmed tickets. This was after Italian authorities and Emirates airlines refused to take them following a circular issued by the DGCA stipulating that people traveling from Italy or South Korea and desirous of entering India should obtain certificates of having tested negative for Covid-19 from those countries.[viii]
People who are already struggling to survive may be forced to take extraordinary measures to save themselves. Governments and businesses all must be prepared to take on the consequences of the decisions. Governments must be able to provide justifications for the measures that they are taking and avoiding to contain the virus. Public health is an issue of community participation and effort. Without public support and cooperation, all measures may fail. [ix] Alicia Ely Yamin and Roojin Habibi note that “This crisis may provide an opportunity to see the value of truth and trust in democracy and multilateralism, and the starkly dystopian reality we face without them.”[x] Thus, it is important that people are not excluded from the health care system based on their economic status, immigration status or employment because such a marginalized community may be more susceptible. Italy, for example, has come up with a law that allows people to work from home ( Art. 4.1(.a) of the Decree of the President of the Council of Ministers of 1 March 2020)- Simplified Remote Working Regime. Further, Rizvi elaborates that,
“As we move towards a better alternative, a minimum first step should be to require conditions to safeguard affordable global access in all COVID-19 government grants, contracts, and licensing arrangements. This should include prohibiting exclusive licenses on government-funded inventions. If the government nonetheless grants an exclusive license, it should ensure that the scope of rights is not broader than reasonably necessary to induce the investment needed to commercialize the technology and ensure reasonable pricing.” [xi]
Interestingly, the Ontario Human Rights Commission has issued a statement declaring that discrimination in employment on the basis of COVID-19 constitutes discrimination on the basis of “disability” within the meaning of Canada’s Human Rights Code that would also trigger an employer’s duty to accommodate. Thus, already the issue of whether COVID-19 is a disability or not for employment purposes is a human rights issue. Such issues would emerge in other countries as well.
To conclude, “COVID-19 is a test for our societies, and we are all learning and adapting as we respond to the virus. Human dignity and rights need to be front and centre in that effort, not an afterthought.”[xii]
[i] Ella Torres, Backlash against Asians could hinder efforts to contain coronavirus, expert says, ( 13 March, 2020) https://abcnews.go.com/US/backlash-asians-hinder-efforts-coronavirus-expert/story?id=69556008
[ii] V. Ferreres Comella. “Beyond the principle of proportionality”. In Comparative Constitutional Theory, (Cheltenham, UK: Edward Elgar Publishing, 2018).
[iii] Human Rights Watch, China: Respect Rights in Coronavirus Response ( January 30, 2020) https://www.hrw.org/news/2020/01/30/china-respect-rights-coronavirus-response
[iv] Mia Swart, How the coronavirus has deepened human rights abuses in China ( 12 March 2020) https://www.aljazeera.com/news/2020/03/cloneofcloneofcoronavirus-deepened-human-right-200312074518781.html
[v]International Health Regulations of 2005, https://www.who.int/ihr/publications/9789241596664/en/
[vi] Gian Luca Burci, The Outbreak of COVID-19 Coronavirus: are the International Health Regulations fit for purpose?, February 27, 2020, Available at: https://www.ejiltalk.org/the-outbreak-of-covid-19-coronavirus-are-the-international-health-regulations-fit-for-purpose/
[vii] WHO, International Health Regulations, 2005 https://apps.who.int/iris/bitstream/handle/10665/246107/9789241580496-eng.pdf;jsessionid=81AD7AD11B7C657B5D5EDDE9B82EB890?sequence=1
[viii] 21 stranded Indian passengers from coronavirus-hit Italy arrive in Kerala ( March 14, 2020, India Today) available at https://www.indiatoday.in/india/story/stranded-passengers-coronavirus-italy-arrive-in-kerala-kochi-1655441-2020-03-14
[ix] Office of the High Commissioner for Human Rights. “Universal Declaration of Human Rights”: Available at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23957&LangID=E
[x] Alicia Ely Yamin and Roojin Habibi, Human Rights and Coronavirus: What’s at Stake for Truth, Trust, and Democracy? ( March 1, 2020): Available at https://www.hhrjournal.org/2020/03/human-rights-and-coronavirus-whats-at-stake-for-truth-trust-and-democracy/
[xii] Coronavirus: Human rights need to be front and centre in response, says Bachelet https://www.ohchr.org/en/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID%3D14455%26LangID%3DR