The effect of COVID-19, if left uncurbed, has the capacity to be overwhelming; burial pits from Iran’s outbreak have grown so large they can be seen from space. States have a duty to protect their inhabitants, and it is understandable that more than a third of the planet’s population is subject to some form of containment protocol.
This typically involves staying home and not travelling unless essential. It started with China implementing what was then the largest quarantine in human history. However, it is important to note that it took the rest of the world two months to follow suit, precipitously implementing “shelter-in-place” policies, work-from-home requirements, and other similar orders.
At the core of this inquiry is the question: where does global and state containment leave the population in terms of individual autonomy?
These broad state measures–albeit enacted with the intention of ensuring collective health and protection–have been imperfectly executed due to delay and stringency. As a result, the protection of certain members of the global community has slipped through the cracks.
The mitigation measures, regardless of their minutiae, universally accept and promote “home” as the safest place to be. It is one’s duty to stay within the alleged comfort of one’s home. This fails to take into consideration those individuals for whom staying at home and being unable to leave is the furthest thing from safety. This includes–but is not limited to–survivors of domestic violence, those whose mental health is severely compromised by seclusion, small-business owners at risk of exploitation, and those experiencing homelessness.
DOMESTIC ABUSE
The crisis bourgeoning within the crisis is the rise in the rate and severity of domestic abuse worldwide as the result of containment measures. Delayed state reactions to COVID-19 led to individuals across the world being effectively treated as hostages by their abusive partners whose “intimate terrorism” has inadvertently been government sanctioned. The pandemic has emboldened abusers, and the isolation of their partners has blocked off access to lifelines for fear of spreading the virus in the form of support networks and means of temporary escape such as their parents’ homes.
This problem is set to worsen as the pandemic continues. It has been proven that psychological and physical abuse is likely to escalate to murder when an abuser is faced with personal calamity, like unemployment. With the inevitable economic crisis bringing with it mass unemployment and insecurity, the danger faced by those entrapped is likely to intensify. The mantra “stay home, stay safe” does not ring true here.
MENTAL HEALTHCARE
It can be unsafe for those whose mental health is challenged by the effects of the pandemic to be isolated. From healthcare workers on the frontline to the elderly who have been isolated, suicides linked to COVID-19 and its accompanying containment measures have increased globally. Containment measures, furthermore, can serve as an obstacle to the provision of mental healthcare that is typically provided face-to-face.
There are two logistical issues to address. First, licensing. Some psychologists and other practitioners are licensed to practice telepsychology or a form of teletherapy (which is conducted on the phone or via video-call). However, many are only licensed to provide services face-to-face. The rapid onset of the pandemic means that although they need to continue to consult their patients, these professionals might not be permitted to do so from a distance. This gives rise to legal barriers, potentially compromising the right to the highest attainable standard of mental health under article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Second, if impromptu virtual therapy is deemed legal in certain instances, this can still give rise to privacy concerns. If teletherapy is not part of a mental healthcare provider’s typical practice, there is a risk that the practitioner does not have sufficient data protection systems in place or the means to arrange for them whilst containment measures are in place. Encryption within apps used on a personal basis probably affords insufficient safeguards to the provision of clinical services in the long-term. This is an entirely new situation for a profession that is desperately in demand but habitually conducted with the utmost intimacy. In this way, containment measures have put at risk the individual autonomy, health, and privacy of those seeking mental healthcare during this time.
DISPARATE EFFECTS ON SMALL BUSINESSES
Small business owners worldwide are facing “extinction” as their goods and services are rendered non-essential. This raises the question of whether work-from-home protocols are fair to those small business owners who simply cannot afford to stay home.
Of the more than 30 million small businesses in the United States, it is estimated that 11 million are owned by racial and ethnic minorities, and statistically immigrants in the country are more likely to start and own small businesses than non-immigrants. In response to the risk posed by COVID-19 to small businesses, the US government prepared the Paycheck Protection Program (PPP), with the aim of banks distributing relief loans backed by taxpayers’ money to businesses with up to 500 employees. The initiative, however, suffers from certain design flaws that impact the rights of immigrant and minority small business owners particularly harshly due to their race and the size of their businesses. While the PPP approach allowed for scale, and was intended to allow for speed, it favoured existing customers at large banks. This often does not include Black or minority-owned small businesses for whom this can be the first time seeking a loan. In this way, it is possible that the pandemic has rehashed the historical racism entrenched in the American banking system.
Similarly, companies on the larger end of the 500-employee spectrum are much more likely to have accountants, lawyers, and sophisticated software to apply for funds than a local mom-and-pop restaurant, for example. Only 12% of Black and Latino business owners who applied for PPP loans reported receiving what they asked for, and half of them expect to have to close permanently soon. There is a limit to how many take-out orders can tide over months of social distancing and subsequent loss of revenue. Not only is it near-impossible for small business owners to run their businesses from home, but they also are not adequately supported when they do. The PPP essentially ran out of money after just twelve days, leaving many scrambling for unemployment insurance. So, the short and long-term effects of these discriminate containment measures are already devastating the autonomy of this important section of society.
PEOPLE EXPERIENCING HOMELESSNESS CANNOT SHELTER AT HOME
What happens if one does not have a place in which to seek shelter? For people experiencing homelessness, orders to stay home are impossible to meet. In France, homeless individuals were initially fined for not sheltering in place, despite the fact that they had no alternative. Furthermore, many homeless individuals suffer from underlying health problems and compromised immune systems. This in itself makes them vulnerable to the more severe symptoms of COVID-19.
Crucially, those experiencing homelessness have been driven into shelters with the onset of containment measures. What should typically be a safer space can be the opposite in this climate. Shelters are prone to overcrowding, and mattresses or sleeping stations are often less than one foot apart. This serves as the perfect breeding environment for the highly contagious novel coronavirus. In response, charities and overstrained shelters have demanded both city and state governments block book vacant hotel rooms for those experiencing homelessness as a safer alternative. Yet, this solution is in every way a temporary fix. What will become of the homeless population once the hotels of the world inevitably seek to re-open their doors to paying clients?
DUTIES OF THE STATE TO UPHOLD AUTONOMY AND PROTECT HEALTH
Despite the problems with many of the broad security measures states across the globe have implemented, when they leave their citizens vulnerable to a pandemic by not imposing certain containment and mitigation measures, these states may breach their duty to protect and promote the health of their populations.
Had states acted in a more timely manner when monitoring the outbreak of the disease in China, global containment measures need not have been implemented so haphazardly. This could have enabled a more thoughtful approach from the outset, taking into account the individuals whose wellbeing has been an afterthought, as discussed above. Ironically, China was widely criticised when it took the first steps towards limiting internal travel in January. The measure was seen as brutal. Yet, as a result of a worldwide failure to acknowledge the interconnectedness of nation states, China’s supposedly archaic blueprint has become the prototype for the global containment measures.
By contrast, consider Hong Kong’s less stringent approach. The population was never subjected to stay-at-home orders. Instead, social distancing measures were cautiously employed from as early as January (i.e. masks, thorough hand washing, sanitising surfaces, limiting outings, and the cancellation of mass gatherings) to keep the disease at bay. Hong Kong applied the lessons learnt from the SARS outbreak that ravaged the city at the start of the millennium by taking careful action early on. The benefits of an early, deliberate response are clear: Hong Kong did not underestimate the extent of the threat of the spread of COVID-19 but acted quickly. In doing so, its citizens were thus spared the extremity of containment measures and repercussions upon individual autonomy assessed above, despite its proximity to mainland China and the source of the infection.
Containment measures as they stand, though, should not be abandoned. They are now the best tactic to reduce the damage caused by COVID-19. Rather, states should have acted in a more calculated manner far earlier. Addressing a disease as contagious as COVID-19 required an initial response other than containment so as not to inadvertently prejudice various social groups. Hong Kong established a template for the possibility and success of this. The challenges resulting fromdisorganized protection measures in other states have compromised the rights of many enshrined in the Universal Declaration of Human Rights, such as the right to privacy (article 12), the right to freedom of movement (article 13), and the right to own and run a business (articles 22 and 23). This could have been avoided through a more intentional, and preemptive, approach.
CONTEMPLATING PRIVACY RIGHTS
The amount of information shared and stored on various, virtual platforms is increasing at lightning speed. The capability of virtual connection has a positive effect in a sense–enabling one not to feel entirely alone socially and allowing formal education, even while isolated physically, to continue, for example. Has privacy, though, been sacrificed beyond the point of return in light of this pandemic?
States are now accustomed to tracking citizens’ activities more closely during this period of enforced quarantines, such as through government-sanctioned phone-tracking in Taiwan, to ensure that individuals remain at home. In some jurisdictions, if one’s phone remains off for over 15 minutes, the police have the authority to turn up at their door in the name of national security.
It is not outrageous to believe that personal information will be used, if not to one’s active detriment, in ways that push the boundaries of privacy. For example, the contact tracing plan proposed by Apple and Google has been singled out as a likely target for cybercriminals. Lawyers have flagged concerns about the scheme, stating that it could enable hackers looking for sensitive health data to access files outlining who has been infected by the virus. This would be a violation of legal rights to privacy and could lead to costly litigation for public health agencies whose systems do not have the appropriate cybersecurity shields in place to meet the high standard of data protection. Furthermore, individuals would have a difficult time suing for contact tracing data breaches, because they would have to prove a high legal standard, which requires a definitive showing of “specific harm”.
This scenario relates to health information stored by public agencies. If their encryption systems may be inadequate, lay people likely do not stand a chance against cyber-criminality. Author Yuval Noah Harari argues, in one instance, that we have been made to choose between privacy and health in facing the spreading coronavirus.
THE COVID-19 RESPONSE AS A TEMPLATE FOR ADDRESSING CLIMATE CHANGE
In the global response to COVID-19, we might find a template for tackling the growing environmental crisis on Earth. Former Irish President Mary Robinson has suggested that instead of seeking to rise from the economic impact of the pandemic by directing economic packages towards industries that rely on fossil fuels, like airlines, now could be the prime time to initiate a “Just Transition”. Under this framework, jobs in carbon-reliant industries may meet their end. The lockdowns in response to COVID-19 are undeniably changing the environment. Studies by NASA have confirmed that with the closure of borders and limitation of travel, air traffic has been cut down by 70% in Atlanta alone. Air quality has improved globally. In Venice, the water in the canals runs clear. As the virus travelled and containment measures followed, this pattern of a lightened load of environmental toxicity has surfaced worldwide.
Robinson also points out that, through social distancing and containment, the people have, largely, effectively mobilised a response to a deadly threat in next to no time. A shift in institutional economic priorities paired with the mobilisation of the global population could catalyse a bottom-up approach to addressing the environmental crisis. The response of the global population to the virus serves as a strong template for tackling the enemy of climate change, which is just as threatening, yet not as invisible.
CONCLUSION
Broad containment and protection measures against the COVID-19 pandemic has left some members of society significantly worse off. The proposed antidote to this problem in the future would be to act early and deliberately, introducing more moderate measures before the threat concretises itself. Failing to recognise the interconnectedness of global states has harmed society indiscriminately and arguably amounts to a breach of state duty to uphold individual autonomy and protect public health.
On the other hand, the radical global response to the outbreak has set a positive precedent for what humans are capable of achieving when goals are aligned across borders, and this may serve as a template in addressing the looming environmental crisis.
While collective privacy has likely been compromised in significant ways due to a now-largely-virtual reality for those isolating from the virus, the longer-term implications of this are yet to be seen.
This was a summary of Yumna's final paper; if you'd like to read the full dissertation, please contact her directly via LinkedIn.
Yumna is an aspiring barrister. Her fields of interest are immigration and refugee law, and international human rights.