“Panic and discrimination never solved a crisis. Political leaders must take the lead, earning trust through transparent and timely information, working together for the common good, and empowering people to participate in protecting health.”
- Michelle Bachelet, UN High Commissioner for Human Rights, and Filippo Grandi, UN High Commissioner for Refugees
The current COVID-19 pandemic presents a rare, hopefully unique, opportunity to consider the application of human rights in the context of a global health crisis. Impacts on some rights may seem obvious, like the rights to health, freedom of movement, and an adequate standard of living. But many other human rights are also affected by the actions taken by individuals, societies, and states.
This article briefly examines how the actions being taken by states comport with their human rights obligations. This article does not give an exhaustive review of all human rights or state actions related to the pandemic, but it provides a basic understanding of the human rights situation in the context of our current global health crisis. First, it provides a general background on the sources of human rights obligations for states and the various mechanisms that currently exist to monitor the implementation of those obligations. Then, the article focuses on the human rights implications of state actions taken to address the COVID-19 pandemic and some of the concerns expressed by international human rights mechanisms.
HUMAN RIGHTS OBLIGATIONS OF STATES
Modern human rights were first fully articulated in the Universal Declaration of Human Rights (UDHR)[1], a post-World War II document adopted by the United Nations (UN) that expressed, for the first time, a set of basic rights that are enjoyed equally by all people in all nations on the planet. The rights briefly expressed in the UDHR cover a wide range of issues incorporating civil, political, economic, social, and cultural rights that were later elaborated and incorporated into a pair of treaties, or “covenants”: the International Covenant on Civil and Political Rights (ICCPR)[2] and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[3]. These two treaties form the international legal basis of state obligations to protect and promote all human rights.[4] There are also five additional human rights treaties related to specific groups of people who are often particularly vulnerable to human rights abuses.[5] They take the universal human rights and apply them to the specific needs and conditions faced by these vulnerable groups.
A key aspect of all human rights treaties is a requirement that human rights be applied in a non-discriminatory way. Article 2 of both covenants, reflecting language in the UDHR, requires all rights be protected and promoted without regard to “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[6] In addition, Article 3 of each covenant contains common language committing states to ensure the “equal right of men and women to the enjoyment of all … rights set forth” in the covenants. Between the two articles, each covenant establishes a broad principle of non-discrimination in the application of human rights and specifically highlights the need for gender equality in human rights. This principle has been echoed in all subsequent human rights treaties.
IMPLEMENTATION MECHANISMS
Both covenants clarified that states bear the obligation to protect and promote the human rights of all people, including their own. Typically, treaties create obligations between states that are then enforceable by the states against each other. However, “the people” do not have the ability to enforce international law against states. So, the covenants created a new accountability mechanism: a committee established under each covenant to oversee the implementation of the treaty obligations by all the states that are parties to the covenants. These committees comprise individual experts, elected by the states party, who each serves in his or her individual capacity as an expert and not as a representative of any state. The purpose of the committees is to create transparency and accountability in the implementation of the human rights obligations and to provide a non-punitive forum for states to receive advice and encouragement on how to better satisfy their obligations. This approach has been repeated in subsequent human rights treaties, thus creating a group of committees collectively called “treaty bodies”.
The UN Commission on Human Rights, which drafted the UDHR and served as the main UN body overseeing human rights issues, was reorganised in 2006 into the UN Human Rights Council (HRC). Since 2006, the HRC has created a series of volunteer positions (often referred to as “mandates”) filled by individual experts or groups of experts who focus on a particular aspect of human rights. Most of these mandates are dedicated to studying a particular human right at the global level or examining the impact of a particular issue on human rights generally, while a few mandates address the general human rights situation in particular countries.[7] Together, these mandates are referred to as the “special procedures” of the HRC. The Special Procedures conduct independent investigations and analyses related to their mandates and often work in collaboration with the Treaty Bodies to share information and coordinate their responses to urgent human rights situations.
HUMAN RIGHTS SITUATION WITH COVID-19
The dramatic health crisis facing the world due to the COVID-19 pandemic demands that individuals, societies, and governments around the globe take strong and quick action. In fact, the right to health (ICESCR, art. 12) requires states to take steps for the “prevention, treatment and control of epidemic … and other diseases.” However, governments must be cautious about going too far and trampling other human rights in their efforts to slow the outbreak and treat those afflicted with the disease.
As the virus has spread, UN human rights experts have issued a series of statements reminding states of the need to act with human rights at the forefront. In one statement, the chairpersons of the Treaty Bodies urged countries to “ensure that human rights are respected in government measures to tackle the public health threat” and warned against scapegoating individuals or groups out of fear.[8] Early on, they reminded states that “any emergency responses to the coronavirus must be proportionate, necessary and non-discriminatory”.[9] Even during times of global crisis, human rights should not be sacrificed. On the contrary, a human rights-based approach to the pandemic can actually help states fight its spread more effectively.
LIMITING BUSINESS AND OTHER ACTIVITIES
Many of the actions taken by governments have been for the purpose of accomplishing physical separation of people, which has been dubbed “social distancing”. The set of actions that have had perhaps the greatest impact on people’s lives is the closure of businesses, cancelation of events, and limitation of access to public spaces and facilities to slow the spread of the virus. These actions implicate a host of human rights and may have particularly dire effects on certain vulnerable populations.
The right to work (ICESCR, art. 6) is severely restricted wherever governments have shut down businesses. This, in turn, results in restrictions on the right to an adequate standard of living (ICESCR, art. 11) when unemployment and underemployment threaten people’s financial security and their ability to afford adequate food and housing. One Special Procedure stressed the need to “put finance at the service of human rights and to support the less well-off through bold financial approaches”.[10] His remarks discussed the need to guarantee an adequate standard of living for displaced workers during the crisis and for everyone who is not financially able to withstand an anticipated, severe global recession. Another Special Procedure explained how the impact of COVID-19 is often greater for people with disabilities. She noted, “Containment measures, such as social distancing and self-isolation, may be impossible for those who rely on the support of others to eat, dress and bathe.”[11] She stressed the need for reasonable accommodation for people with disabilities who may depend on businesses and services that have been suspended.
Another measure to encourage social distancing is limiting the number of people who can physically gather together. When applied to an entire community or society, this is a serious restriction on the freedom of peaceful assembly (ICCPR, art. 21). While potentially effective for slowing the spread of disease, it can also be used to stifle dissent. Experts have urged states to keep security measures in check and stressed that emergency declarations should not “function as a cover for repressive action under the guise of protecting health.”[12]
The right to education (ICESCR, art. 13) and the right to take part in cultural life (ICESCR, art. 15) have been restricted by the closure of schools and cultural and entertainment facilities. States must take special care to support and encourage alternative approaches for students, especially children, to continue their education when schooling has been disrupted. In addition, states must continue to support cultural life by allowing and helping communities to be connected in new ways.
LIMITING MOVEMENT
The right to freedom of movement (ICCPR, art. 12) has been severely restricted in many places due to policies that prohibit people from leaving their homes or gathering in groups except under certain conditions. These policies, ranging from curfews to all-out lockdowns and border closures, restrict the right to move freely about one’s country of residence and often the right to leave a country and return to one’s own country. Where governments have ordered citizens to stay home, the right to adequate housing (ICESCR, art. 11) becomes especially critical. As one Special Procedure noted: “Housing has become the front line defence against the coronavirus.”[13] However, since nearly two billion people globally are either homeless or have inadequate housing, she stressed that measures that require people to stay home must be enforced in a way that does not punish people who have no home. In addition, for people who have lost their jobs, measures must be taken to ensure they do not lose their homes due to financial distress.
Good hygiene, including access to safe and clean water, is a critical aspect of curbing the spread of any communicable disease. Several Special Procedures have noted that many people around the world, usually the most vulnerable, lack access to clean water.[14] They stressed that “governments must pay special attention to marginalised groups” when considering water and sanitation policies in order to effectively fight COVID-19.[15] Clearly, if many millions of people lack clean water supplies, hygiene and sanitation will suffer, and it will be more difficult for governments to control the spread of the virus.
A group of Special Procedures has highlighted the need to protect individuals, especially women and children, from domestic violence when people are ordered to stay at home. “For too many women and children, home can be a place of fear and abuse.”[16] Restrictions in public services may also mean fewer shelters and possibly less intervention by police or courts to protect domestic violence victims. The group urged governments to continue combatting domestic violence and maintaining the safe places and legal procedures required by victims seeking safety.
Elderly people face particular difficulty and isolation during a lockdown. Especially for the many elderly living alone, the lack of visitors becomes social exclusion. Considering the higher risk of illness faced by the elderly, especially those with underlying health conditions, governments must take particular care to ensure the elderly are not ignored and health treatment is not prioritised “solely on the basis of age”.[17] Such prioritising may not only violate the right to health but also the right to life(ICCPR, art. 6) of the elderly. The many elderly people and people with disabilities who live in institutional or group settings are also particularly vulnerable to disease transmission, so governments should take special care to ensure health protocols are being followed in these settings.
People who live in institutions also include millions of people who have been deprived of their liberty, such as those in prisons, immigration detention facilities, closed refugee camps, and psychiatric hospitals. In addition to the increased risk of infection in such environments, a restriction on visitors means these detainees and residents are shut off from the world and the risk of mistreatment rises. Depending on its nature and severity, mistreatment may violate the freedom from torture or cruel, inhuman or degrading treatment (ICCPR, art. 7). According to one Treaty Body, detainees must have “access to appropriate levels of health care and … contact with families and the outside world”.[18] The group called on national monitoring bodies to “continue exercising their preventive mandate during the pandemic, including visits to places of detention when possible.”
In some cases, movement restrictions have resulted in the closing of borders. However, states continue to have an obligation to offer assistance to refugees and asylum to those legitimately fleeing their countries in fear for their lives. Closing borders to daily traffic cannot mean leaving individuals to face exploitation or death in their home countries. States must identify ways to satisfy these legal obligations and offer humanitarian assistance while protecting the larger population from the virus.
CONTROLLING TECHNOLOGY AND INFORMATION
Where governments restrict communication, whether in person, in print, or through any electronic medium, they are restricting the right to freedom of expression, including the right to seek, receive and impart information (ICCPR, art. 19). Numerous human rights mechanisms have expressed concerns about such restrictions, especially restrictions on internet communications. One Special Procedure and representatives of two other international organisations have asserted that staying healthy depends not only on access to health care but also “on access to accurate information about the nature of the threats and the means to protect oneself”.[19] In particular, they stressed the need for governments to refrain from blocking internet access and to provide journalists with information critical to the public. It is also important to ensure that information about prevention and care is made available in different formats so it is accessible for people with disabilities.
These experts have also expressed concern about the use of surveillance technology in ways that invade the privacy of individuals and families and stressed the importance of limiting their use. In some cases, states like China have been using technology to track people’s movements and health conditions, often without the knowledge or consent of those being tracked. This is a restriction of the right to freedom from arbitrary interference with privacy, family, or home (ICCPR, art. 17).
SPREADING MISINFORMATION AND PROPAGANDA
Aside from impacting particular rights, some state actions violate the principle of non-discrimination in the protection of human rights. One Special Procedure has pointed out actions during the pandemic that contribute to racial discrimination and xenophobia. In particular, she called out state officials, including the US President,[20] for “adopting alternative names for the COVID-19” virus.[21] She condemned the “calculated use of a geographic-based name” for the virus that stigmatises individuals associated with China or East Asia generally. There have been numerous reports of virus-related racist attacks since the outbreak began.[22] She noted that racist attitudes and behaviors are actually counterproductive to fighting the pandemic because people must be able to access information and healthcare “without fear of discrimination.” In other words, spreading misinformation and fear actually impedes efforts to fight the virus.
POSSIBLE EXCEPTIONS TO HUMAN RIGHTS OBLIGATIONS
Although the faithful fulfillment of state human rights obligations should be expected at all times, states are allowed to limit their human rights obligations in certain ways and under limited circumstances according to the two covenants. The ICCPR recognises that restrictions on certain rights may be appropriate or unavoidable during a “public emergency which threatens the life of the nation”. Article 4 of the covenant allows a state to take measures that depart, or “derogate”, from many of its obligations but only: (1) if the emergency is officially proclaimed, (2) to the “extent strictly required by the exigencies of the situation,” and (3) if the measures “do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”. However, the article limits the ability to derogate by listing seven specific rights from which derogation is not allowed.[23] When derogating from rights in times of public emergency, a state party is required to notify the UN Secretary-General of the “provisions from which it has derogated and of the reasons” for the derogation. Another notification is required when the derogation ends. The Secretary-General publishes these notifications to the other states party.
It is clear from global news reports that many countries have declared states of emergency and taken extraordinary actions to slow the spread of COVID-19. However, so far only ten states have notified the UN that they have derogated from their ICCPR obligations due to the pandemic.[24] None of the countries hit hardest, such as China, Italy, Spain, and the United States, have provided notification, and yet they have clearly taken actions that derogate from their obligations under the ICCPR. By not providing notification, states violate a human rights obligation even if the specific actions taken are reasonable.
Unlike the ICCPR, the ICESCR does not have a derogation provision. However, the nature of the rights in this covenant are different; they tend to require positive action and allocation of resources by states. As a result, there is a recognition that states will take time to fully achieve the rights. Nevertheless, the covenant only allows for limitations on rights that are “determined by law [and] only in so far as [the limitations] may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”.[25] Therefore, even in a state of emergency, any restriction on these rights must promote the general welfare and, of course, be non-discriminatory.
CONCLUSION
As the pandemic continues to spread, the situation in every country is changing from one day to the next. States must respond to protect their citizens, and citizens should work together and with their political leaders to ensure the health and safety of everyone. However, during such times of uncertainty and upheaval, there are individuals and governments who would take advantage of the situation. The unscrupulous will attempt to benefit themselves, and many people will be left behind. We must all be vigilant against human rights violations and hold states accountable to their obligations. Leaving anyone behind is unacceptable. By working together and respecting the human rights of each and every person, we will emerge from this crisis with dignity and an even greater appreciation of the interconnectedness of our global society.
[1] See The Universal Declaration of Human Rights, Office of the High Commissioner for Human Rights, United Nations, https://www.ohchr.org/EN/UDHR/Pages/UDHRIndex.aspx.
[2] International Covenant on Civil and Political Rights, opened for signature 16 Dec. 1966, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.
[3] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 Dec. 1966, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx.
[4] There are also two treaties that elaborate more specific obligations with regard to particular human rights (freedom from torture and inhuman treatment, and freedom from enforced disappearance), but these rights are also covered broadly within the ICCPR.
[5] These groups are racial minorities, women, children, migrant workers, and persons with disabilities.
[6] This language appears in Article 2 of the UDHR.
[7] As of the end of 2019, there were 12 country-specific mandates and 44 thematic mandates. For more information, see Special Procedures of the Human Rights Council, Office of the High Commissioner for Human Rights, United Nations, https://www.ohchr.org/EN/HRBodies/SP/Pages/Introduction.aspx.
[8] Press Release, UN Human Rights Treaty Bodies call for human rights approach in fighting COVID-19, United Nations (24 Mar. 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25742&LangID=E.
[9] Press Release, COVID-19: States should not abuse emergency measures to suppress human rights – UN experts, Office of the High Commissioner for Human Rights, United Nations (16 March 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25722&LangID=E.
[10] Press Release, “An Immediate Human Rights Response To Counter the COVID-19 and the Global Recession Ahead Is an Urgent Priority,” Says UN Expert, United Nations (20 Mar. 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25732&LangID=E.
[11] Press Release, COVID-19: Who is Protecting the People with Disabilities? – UN Rights Expert, United Nations (17 Mar. 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25725&LangID=E.
[12] Press Release, supra note 9.
[13] Press Release, “Housing, the front line defence against the COVID-19 outbreak,” says UN expert, United Nations (18 Mar. 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25727&LangID=E.
[14] Although a right to water is not specifically mentioned in either covenant, the ICESCR committee has inferred its existence because water is indispensable for daily life and necessary for the achievement of many other human rights. Committee on Economic, Social and Cultural Rights, General Comment No. 15 (2002): The Right to Water, U.N. Doc. E/C.12/2002/11.
[15] Press Release, COVID-19 Will Not Be Stopped Without Providing Safe Water to People Living in Vulnerability – UN Experts, United Nations (23 Mar. 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25738&LangID=E.
[16] Press Release, States Must Combat Domestic Violence in the Context of COVID-19 Lockdowns – UN Rights Expert, United Nations (27 Mar. 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25749&LangID=E.
[17] Press Release, “Unacceptable” – UN Expert Urges Better Protection of Older Persons Facing the Highest Risk of the COVID-19 Pandemic, United Nations (27 Mar. 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25748&LangID=E.
[18] Press Release, COVID-19: Measures Needed To Protect People Deprived of Liberty, UN Torture Prevention Body Says, United Nations (30 Mar. 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25756&LangID=E.
[19] Press Release, COVID-19: Governments Must Promote and Protect Access to and Free Flow of Information During Pandemic – International Experts, United Nations (19 Mar. 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25729&LangID=E.
[20] US President Donald Trump regularly referred to COVID-19 as the “Chinese virus.” Dan Mangan, Trump Defends Calling Coronavirus “Chinese virus” – “It’s not racist at all”, CNBC (18 Mar. 2020), https://www.cnbc.com/2020/03/18/coronavirus-criticism-trump-defends-saying-chinese-virus.html. More recently, the US sought to use the term “Wuhan virus” in a G7 statement. Alex Marquardt & Jennifer Hansler, US Push to Include “Wuhan Virus” Language in G7 Joint Statement Fractures Alliance, CNN (26 Mar. 2020), https://www.cnn.com/2020/03/25/politics/g7-coronavirus-statement/index.html.
[21] Press Release, States Should Take Action Against COVID-19-related Expressions of Xenophobia, Says UN Expert, United Nations (23 Mar. 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25739&LangID=E.
[22] List of Incidents of Xenophobia and Racism Related to the 2019–20 Coronavirus Pandemic, Wikipedia, https://en.wikipedia.org/wiki/List_of_incidents_of_xenophobia_and_racism_related_to_the_2019%E2%80%9320_coronavirus_pandemic (last updated 31 March 2020, 00:54 UTC).
[23] Derogation is not allowed from the following rights: right to life, no torture, no slavery, no imprisonment due to debt, no criminal conviction for acts not a crime by law, recognition as a person before the law, and freedom of thought, conscience and religion.
[24] So far, notifications of derogation per Article 4 of the ICCPR have been reported by the UN Secretary-General from only the following ten countries: Armenia, Chile, Ecuador, Estonia, Georgia, Guatemala, Latvia, Palestine, Peru, and Romania. Depositary Notifications (CNs) by the Secretary-General, United Nations, https://treaties.un.org/Pages/CNs.aspx?cnTab=tab1&clang=_en (last visited 13 April 2020).
[25] ICESCR, art. 4.
Chris is an attorney for small businesses, editor and occasional photographer. He has lived on three continents and strongly believes that the world benefits from a strong system of International Law. Chris has degrees in urban and regional planning, a Juris Doctor from The Ohio State University, and was Editor in Chief of the Ohio State Law Journal. He researches and writes on International Law with particular interest in human rights, space law and extraterritorial issues.