by Judith Bueno de Mesquita, Co-Deputy Director, Human Rights Centre, University of Essex
The emergence and rapid global spread of Covid-19 raises critical human rights questions. The initial response expressed alarm about a cover-up in China, but as the disease spread and scale of the disaster became clearer, wide-ranging human rights concerns began to emerge.
Meanwhile, UN Special Procedures and the UN High Commissioner for Human Rights have called for human rights to be at the heart of the response, while UNAIDS became the first international organisation to issue detailed rights-based guidance on dealing with an epidemic, drawing on the experience of HIV. The pervasive negative impact of the virus across economic, social and cultural rights, and responses that appeared to pit public health against civil and political rights, initially created the impression of Covid-19 as an utterly intractable human rights problem. These new resources provide much needed clarity.
The first case of Covid-19 was confirmed in the UK on 31 January and by 22 March there were 5,683 confirmed cases and 281 deaths, almost all elderly persons or persons with comorbidities; although it is thought that the number of suspected cases is much higher. With the publication on 19 March of the UK 329-page Coronavirus Bill, which includes a raft of sweeping legislative amendments, concerns remain about the inadequacy and tenor of policy responses, with human rights questions increasingly coming to the fore.
The UK Government has international human rights obligations which it must respect, protect and fulfil in its Covid-19 responses under treaties such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), as well as the European Convention on Human Rights. WHO’s International Health Regulations (2005), which exert binding obligations on states, in the context of global infectious disease responses, also pay due regard to human rights. What do these instruments obligate the UK to do, and how does the UK’s response fare?
The right to health
The “right to the highest attainable standard of health”, known as the right to health, is the primary human right at stake in the context of Covid-19. Under ICESCR article 12, states must take steps for “the prevention, treatment and control of epidemic…diseases”.
As part of this obligation, states, including the UK, must “create conditions which would assure to all, medical services and medical attention in the event of sickness.” This implies that the response must maximise the potential of healthcare services to provide Covid-19 testing and treatment to those in need, including intensive care where required, whilst maintaining services for other acute healthcare needs. Seemingly, in contradiction with available evidence in terms of the experience of other countries in containing the spread of Covid-19, the UK Government initially advocated a controlled epidemic response amid discussions with its advisors on herd immunity.
Whilst the Government has denied herd immunity was a tactic, its response elicited alarm from many public health experts, underpinned by fears of a lack of sufficient intensive care beds, and that it would result in many unnecessary deaths. This, in itself, raises significant questions in terms of the rights to health and life, and is even more troubling when viewed through the prism of equality and non-discrimination, given that the elderly and those with underlying health conditions would be affected disproportionately.
With intensive care units in hospitals across the UK already close to capacity, are we witnessing an escalation, particularly in London, that mirrors the tragedy engulfing northern Italy? There, health professionals have been left with agonising triage decisions, and where demand outstrips supply, national guidelines recommend “those patients with the highest chance of therapeutic success will retain access to intensive care.” Non-discrimination and equality also requires duties to address groups at risk. For example, there have been calls for urgent measures to protect prison populations, and homeless persons.
Beyond the field of healthcare, the right to health includes access to information and education about evidence-based ways to prevent transmission through hygiene and staying at home if symptoms develop, in addition to details on how to access care if needed. This information has been widely distributed across community venues and through the press but it does require monitoring to filter out fake news and misinformation.
The right to health also includes a right to social determinants of health, such as the neighbourhood environment. This requires that Government response minimises the risk of transmission in the community. Social (ie physical) distancing measures including closures of restaurants and pubs, school closures and home working, alongside the provision of information and facilities to promote hygiene in public and private spaces, are examples of policy measures being adopted in the UK. Ensuring compliance with social-distancing is currently under discussion.
Widespread testing and contact tracing has not been adopted in the UK as yet, though it has been viewed as central to limiting the spread of the virus, and saving lives in other countries, including South Korea, and is also recommended by the WHO, with its “test, test, test” mantra. Strategies must be in place to to support people who need to self-isolate, whilst the difficulties faced by some individuals, including the elderly and others with home care needs, must be recognised and addressed by the State.
The Covid-19 response must be grounded in human rights principles, including transparency, participation, and accountability. Transparency means there must be clarity about the aims of responses, as well as the medical and epidemiological evidence underpinning them, and yet this has been lacking in the UK response. The input of affected groups is essential in supporting a robust, rights-sensitive and sustainable response, yet the degree to which this is occurring is unclear. Accountability requires a range of independent oversight procedures and already we are seeing calls for a review, in due course, of the Government’s handling of the outbreak. In the meantime, the Joint Committee on Human Rights has launched an inquiry into the Government’s response.
Restrictions of human rights
Most human rights are not absolute. Under the ICCPR, public health is one of the grounds for permissible limitations to freedoms of movement, assembly, association and expression. The Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR stress these limitations should be used as an option of last resort and that any limitations must be:
- provided for and carried out in accordance with the law;
- in the interest of a legitimate objective of general interest;
- strictly necessary in a democratic society to achieve the objective;
- based on scientific evidence and not drafted or imposed arbitrarily i.e. in an unreasonable or otherwise discriminatory manner.
The self-isolation and quarantine policies already in place are voluntary measures, and, as such, do not raise particular concerns according to these criteria. They also reflect the notion that human rights embrace duties to the community (Universal Declaration on Human Rights art 29).
Of greater concern, however, is the Coronavirus Bill which sets out open-ended powers of detention, by police & public health professionals, of individuals who may be infected and might infect others. Experience from the control of other infectious diseases, such as HIV, Ebola and TB, suggests that such measures are often ineffective as prevention policies, particularly where there is no effective treatment, and may discourage some individuals, particularly from marginalised groups, from seeking care. Access to community testing (still not available in the UK) and voluntary treatment are the mainstays of healthcare responses to infectious disease, whilst compulsory approaches should only be used as a last resort, if at all, and only where voluntary approaches have failed.
The far-reaching public health response, as well as the response of businesses and individuals, also runs the risk of severely compromising other social and economic rights in a litany of ways. The closure of schools to protect public health not only poses obstacles for the right to education, but it can also disrupt the right to food for families that benefit from free school meals, and leave vulnerable children at risk.
The right to work is threatened by economic precarity and if people are not paid, or cannot work, whether due to ill-health or redundancy, they may have difficulty in paying their mortgage or rent, or buying food. Panic buying of groceries threatens the ability of vulnerable groups, including the elderly, to access to food, with food banks also struggling to operate. Attention also needs to be given to the broader disproportionate impact on particular groups such as women, who more often assume caring roles in the event that schools are closed, limiting their work and economic opportunities.
A public health crisis is not a carte-blanche to trade economic and social rights off against each other. Governments have a positive obligation to protect other economic and social rights affected during public health crises, particularly for the most vulnerable groups. Though some issues remain unresolved, the UK government has loosened its purse strings and adopted wide-ranging measures intended to protect an adequate standard of living and income, for those employed by businesses. The self-employed, however, are yet to see the same level of protection.
Lastly, and certainly the biggest challenge of all, is international cooperation, an often-neglected dimension of international human rights obligations. The pandemic response requires global cooperation by countries and international organisations, through the sharing of expertise and resources. Leaders, experts and the wider community must look outwards as well as inwards in their crisis response, not only to learn from the good practice of others, but equally to support preparedness and response elsewhere. Dire predictions of the impact of the virus on countries in conflict, in refugee camps, and on the continent of Africa which “faces a catastrophe to dwarf all others”, all require immediate action.
Experience with other infectious diseases shows that, alongside appropriate public health and economic measures, human rights are an essential part of any effective strategy for preventing, treating and controlling infectious disease. As clearly summed up by UNAIDS, “responding to an epidemic is not a question of balancing public health and human rights but rather that a successful and effective response requires us to adhere to human rights principles.” Though human rights were largely absent from discourse in the early stage of the UK’s response, it is encouraging that the human rights community has found its voice.
As we await the development of vaccines and other treatments, which are in themselves entitlements of the right to health, the human rights community’s guidance can complement public health evidence to support a more robust response going forwards. This will be most successful where the two communities work closely together to ensure that human rights standards underpin public health interventions, and evidence underpins how human rights standards are interpreted and applied.
ABOUT THE AUTHOR
Judith Bueno de Mesquita is Co-Deputy Director of the Human Rights Centre and a Lecturer in International Human Rights Law at the University of Essex. Her research focuses particularly on health and human rights, and economic, social and cultural rights. She has worked closely with public health organisations over many years, notably WHO, UNFPA, and UNAIDS.