Analysis of India’s contact tracing application vis à vis digital rights

by Ritwik Prakash Srivastava

Introduction

In the wake of COVID-19, the Indian government came up with a contact-tracing application Aarogya Setu (application). The Indian Prime Minister, Mr. Narendra Modi, in his address to the nation on 14 April 2020, urged the citizens to download the application to supplement the State’s struggle against the contagion. What started as a voluntary step, was first made mandatory for employees, including in the private sector, then a directive extended it to entire districts, and failure to comply resulted in a criminal penalty.

It brings to the forefront the conflict between public health and the right to privacy of an individual. While the effectiveness of contact-tracing has been proven, it is also pertinent that such a mechanism is developed within the frameworks of existing laws and a regard for human rights and constitutional rights. Interestingly enough the Supreme Court of India, in its landmark judgment of K.S. Puttaswamy v. Union of India (the judgement) in 2017, made the right to privacy a fundamental right in India. Even stating that “if the State preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health…

This piece seeks to address the viability of the Indian government’s order of making the download of Aarogya Setu application mandatory, against the touchstone of the right to privacy.

 

Analysis

The Court in its judgment recognised every individual’s right to decide for themselves the extent of information about them that could be shared with others. However, every fundamental right in India comes with its reasonable restrictions, and is not absolute (see Article 19 (2) of Constitution of India). Some of the grounds of restriction could be to preserve public order, maintain sovereignty and integrity of India, and security of the State. These restrictions have to be mandatorily in accordance with procedures established by law (see Maneka Gandhi v. Union of India).

As per paragraph 180 of the section of the judgement authored by the then Chief Justice of India, Justice Khehar, Justice R.K. Agrawal and Justice Dr D.Y. Chandrachud, before such restrictions on the right to privacy can be placed, the State must show the existence of a valid legislation, which permits the restriction to be put into place. Secondly, the restrain must be in pursuit of a legitimate aim; thirdly, it should have a rational nexus with the such aim; fourthly, it should be the least restrictive method to achieve such aim and lastly, it should be proportionate to the aim that is required to be achieved.

The Aarogya Setu application fails on the first prong itself. Not even the Epidemic Diseases Act, 1897, currently enforced in India, grants such permissions to the State. In the absence of any legislative framework to restrict its ambit, there is no guarantee that the sensitive data about individuals’ health and movement will not be used for mass surveillance, or will not be stored and used for profiling once the pandemic subsides.

Gerd Altmann from Pixabay

As the Terms and Conditions of Aarogya Setu stand currently, a user has no mechanism to seek deletion of their data uploaded on the servers of the application. Removal of the application merely means they cannot use the services, and not that they get their data erased. Without a comprehensive framework to regulate data protection, a contact tracing technology may as well mutate into a system of movement control and data profiling. The possibility of this becomes greater in the absence of any protocol which mandates a limit on the time for which such sensitive personal data of citizens can be stored by the government.

These shortcomings may have been eliminated if India had a dedicated privacy framework, as demanded in the judgement. However, even after substantial discussions and impending need of such a law, the framework is yet to be enacted, it currently exists merely as a bill. As far as international standards and European regulations on contact-tracing are concerned, the Aarogya Setu application fails on various counts.

The European Data Protection Board (“EDPB”) in its “Guidelines on the use of location data and contact tracing tools” (“Guidelines”). The foremost caveat the guidelines provide against contact-tracing is that are a grave intrusion into the privacy of an individual. The guidelines make it very clear that use of application must be voluntary. However, the orders of Indian government of mandatory download go directly against such a provision. There is an inherent lack of transparency on how the accumulated data is to be processed, or for how long it would remain in the possession of the government. The government has not shared any policies with respect to data retention and grievance redressal against the collected data.

A basic technical requirement any application which seeks to collect and process data is that of security. The guidelines mandate “state-of-the-art” cryptographic techniques to secure the data collected. However, there are already serious questions being raised at its sophistication when an ethical hacker took to Twitter to reveal the flaws with the application’s security. There have also been reports of the Aarogya Setu application exposing the users’ location data to third-party actors like YouTube.

 

Conclusion

Since the Supreme Court’s reasoning in the Puttaswamy judgement, the Indian government has had collisions with the concept of privacy multiple times. First with the nation-wide citizen identification scheme AADHAR, then with the inordinate delay in the delivery of the personal data protection law. While the current circumstances around the pandemic are nowhere near normal, the concerns arising out of unwarranted surveillance cannot be set aside.

The threat that the pandemic poses to digital rights was specifically addressed in a joint-statement issued by United Nations, the Inter-American Commission for Human Rights, and the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe. The joint-statement provided that the use of any technology for surveillance should  conform to the strictest standards of protections provided by the domestic law and the principles of international human rights.

New privacy concerns arise every day out of ever-developing technologies, be it in terms of facial recognition, mass surveillance, or tracking online activities of citizens.  The digital ecosystem has become an intricate part of the personal life of every citizen. While the current status quo with the Coronavirus pandemic is largely out of the ordinary, it is important nonetheless that the governments remember that privacy rights of citizens cannot be suppressed even during an unusual situation.  Now more than ever, it is important that any derogation from or limitation to digital rights remains lawful, and is appropriately scrutinised by the states and their respective courts.

 

ABOUT THE AUTHOR

Ritwik Prakash Srivastava Ritwik Prakash Srivastava is a third-year B.A.LL.B. (Hons.) student at National Law Institute University, Bhopal.  He is currently the Co-Convenor of the Centre for Research in International Law at NLIU, Bhopal. His research interests include technology and media law, cyber law, and public international law.  He may be reached at ritwiksrivastava.ug@nliu.ac.in.

Calamitous coronavirus xenophobia: A new-age predicament

by Tushar Behl and Medha Patil

 

Sunset Park, in southwest Brooklyn, houses New York City’s largest Chinese community. Chinese immigrants have settled and built their lives for more than two decades after being moved from Manhattan’s Chinatown due to the overflowing population. People from all over the city visit Sunset Park to buy fresh meat and eat at the authentic Chinese restaurants but it is no more. From the beginning of this pandemic, the Asian community across the world has been subjected to serious racial discrimination and xenophobia. The xenophobia compounded with general fears of COVID-19, the disease caused by the virus has taken a great toll on the livelihood of Chinese immigrants and workers, especially those in smaller communities.

This article examines contemporary issues faced by Asian Communities amidst the outbreak of the novel coronavirus by highlighting the previous historical instances of xenophobia, coupled with racism, its implications, and also proffering recommendations to address such prejudice.

 

The Problems

There are currently more than 12,964,809 cases of COVID-19 around the world, as evident from the WHO Coronavirus Disease Dashboard.  As of today, the majority of these cases are present in the United States of America (“USA”) since not long ago it surpassed China where the disease was first detected in November of 2019. Unfortunately, this divide that COVID-19 has created travelled great lengths and continues affecting the innocent Asian population.

Most recently, a single but highly derogatory remark made by President Trump in his press briefing at the White House stood out and captured a lot of angry attention. In the President’s note, the word “corona” had been replaced by the word “Chinese” which sparked a fury, too deep to be a mere offense. Critics have said that such a deliberate use could lead to increased discrimination and racism towards Asian-Americans who are a marginalized group with a long history of being painted as scapegoats in instances of public health crises.

This anti-Asian harassment is not just limited to the USA, rather, various international outlets have reported such cases in major white nations such as Canada, where Chinese-Canadian students have been isolated from local school districts; in Australia, where people have refused to get treatment from Asian doctors and in Germany, where an Asian woman was asked to move her “corona-riddled body” while she was on her train to work.

‘Sinophobia’ is another specific type of prejudice that is magnified by the news of coronavirus outbreak. It is a type of aggression against China, its population, or people of Chinese descent. In the past, President Chester A. Arthur signed the Chinese Exclusion Act of 1882 that banned the immigration of Chinese laborers to the USA for 10 years. President Donald Trump has also been restricting the immigration of Chinese students and scholars since 2018. Today, increasing migration means that a growing number of states have become or are becoming more multi-ethnic, and are confronted with the challenge of accommodating people from different cultures, races, religions, and languages.

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Pandemics and Racism

Viral outbreaks or pandemics go hand in hand with racism. When we look into the past, dating back centuries, just like the xenophobic attacks and actions amidst COVID-19, the denigration of certain populations sounds more of a familiar symptom of virus-related outbreaks. These gruesome diseases, causing mass human suffering are often used to rationalize bias. For instance, yellow fever, one of the most dangerous infectious diseases, was pegged to the Africans initially, owing to the first epidemic reported in Yucatan in 1648. But later, the 1853 epidemic in the USA targeted European immigrants, since they were more vulnerable to it. On the other hand, the 2003 SARS outbreak in Toronto, billed the east-Asians.

Xenophobic reactions are not limited to Asians, it mostly depends on the origin of the disease. Reference can be taken from the Ebola virus, which was discovered near the Ebola River (Now, the Democratic Republic of Congo) in 1976, and soon the Africans were targeted with hate.

Although the WHO came through, by opting this practice of not naming the disease based on geographical location, an animal, an individual or a group of people, as it did in the case of Ebola and now COVID-19, xenophobia stimulates quickly, interlaces with politics and paint’s the ideology of people and their Governments.

 

What Does the Law State?

International human rights instruments generally prohibit racism and racial discrimination, the same cannot be said for xenophobia and resulting discrimination. Xenophobia itself is rarely mentioned in international instruments and distinctions made between citizens and aliens on the basis of race is predominantly rampant when it comes to exercising fundamental rights. It is therefore, sometimes expressly prohibited to make such a distinction which would in turn lead to hampering of such rights.

The ICESCR and ICCPR under Article 2, and the ECHR and IACHR under Article 1 respectively, enable protection against any form of racial discrimination but the same is silent when it comes xenophobia. Moreover, the status of Customary International Law is quite ambiguous than that of treaty law since there exists a divergence of opinion on whether the norms of xenophobia and discrimination have become part of Customary law.

 

Conclusion

The issue of racial discrimination and xenophobia has a tough influence on state legislations. Owing to such fundamental divergence in legal measures of various states, where one has adopted comprehensive anti-discrimination laws and the other has enacted a sectoral legislation, is problematic. Avoiding all forms of racial segregation and setting out a comprehensive legislation is the need of the hour since common human rights ideals are the main antidote to the persistence of racism.

The pandemic is taking a massive toll on people’s lives all over the world. A disease like COVID-19 does not discriminate while spreading and yet new cases of racial discrimination and xenophobia are coming up every day. Unfortunately, this divide, is in turn, causing additional damage to this existing calamitous situation. Therefore, our willingness to understand each other will protect us from fear and its disastrous consequences.

 

ABOUT THE AUTHORS

TUSHAR BEHL__1590856734_106.215.2.102
Tushar Behl LL.B. (Hons) is a 2020 Graduate from the School of Law, University of Petroleum and Energy Studies. He is an Advocate from India and currently working as a Research Associate at the Supreme Court of India. He is an avid reader, writer, and interested in International Relations and Politics. 

Medha Patil.
Medha Patil is a final year Law Student from Maharashtra National Law University, Nagpur, India.  She is an avid writer and interested in Human Rights and Public International Law.

Stranger than Fiction: Opportunities for a new narrative in Dominico-Haitian relations under Covid-19

by Maria Cristina Fumagalli and  Bridget Wooding

In May 2012, the Dominican writer Junot Díaz published ‘Monstro,’ a science-fictional short story which depicts the post-apocalyptic scenario of a mysterious viral outbreak in Haiti and its repercussions on the island of Hispaniola as a whole and in the Dominican Republic in particular. We will not provide a full analysis of the short story itself here — for more on ‘Monstro’ in the wider context of Hispaniola border relation see Fumagalli’s On the Edge: Writing the Border between Haiti and the Dominican Republic (LUP, 2015; 2018)– but, since Díaz’s dystopic future clearly resonated with the present of his 2012 readers and anticipates aspects of our current predicament, we will use it as a springboard to provide a quick snapshot of a ‘life as we know it’ to which, post-Covid-19, the island of Hispaniola cannot and should not return.

Taking place in a non-specified point in the future where most of the beaches of the Dominican Republic are submerged and the countryside is deserted because of the ‘Long Drought,’ ‘Monstro’ suggests that this lethal viral outbreak is concomitant, possibly even directly connected with environmental degradation and what is no longer possible to call ‘natural’ disasters since they are provoked or made much more severe by human action and political choices. ‘Monstro’ then informs us that the first Haitians to be infected are the ‘poorest of the poor,’ foregrounding the pernicious correlation between health and wealth and indirectly denouncing how political neglect increases the vulnerability of those who are not in a position to protect themselves. These poor, in fact, are housed in unspecified ‘relocation camps,’ a reference which evoked the precarious life conditions of those who were relocated in relief camps created in Haiti after the devastating 2010 earthquake which claimed the lives of hundreds of thousands and affected millions. These camps were still open when Díaz published his short story two years after the earthquake and, distressingly, on the tenth anniversary of the earthquake in January 2020, the Director of the International Organisation for Migration (IOM) in Haiti lamented that 30,000 earthquake survivors were still encamped in Haiti, without access to promised housing.

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A boy stands at a makeshift camp on the grounds of the Petionville Golf Course in Port-au-Prince, Haiti, January 26, 2010 (Photo. REUTERS).

In the Dominican Republic, Haiti is used as the negative foil in anti-Haitian, racist, and ultra-nationalistic discourses which offer a simplified artificial picture which posits the two countries and peoples sharing the island of Hispaniola as different and incompatible (i.e. Dominicans are white or mixed race; Haitians are black; Dominicans are Catholic, Haitians practise Voudou), demonize Haitians, and disenfranchise Dominicans of Haitian descent.  In the aftermath of the devastating 2010 earthquake, these discourses, capitalising on the strategically fomented fear of a Haitian invasion which (allegedly) perpetually threatens the Dominican Republic, warned that the Dominican apocalypse was impending due to the imminence of a stampede of desperate Haitians crossing the border into the country.  This stampede, which never happened in reality, is represented, in Diaz’s ‘Monstro,’ by a horde of Haitians who, infected by the virus and turned into an unmanageable, bloodthirsty, and homogenous mass of murderers and cannibals, are ominously moving in unison towards the border with the Dominican Republic.

When the Haitian horde reaches the border, Dominican authorities decide to close it and instruct the army to meet the “invaders […] with ultimate force’ to prevent the viral infection spreading to the Dominican Republic. Similarly, when faced with the 2011 Haitian outbreak of cholera which was to kill thousands of Haitians, the immediate answer of the government of the Dominican Republic was, as it is the case in Diaz’s ‘Monstro,’ to close the border, (allegedly) to prevent the spreading of this potentially lethal disease.  This pathologization of Haiti and the Haitians was not a novelty: in the early 1980s, for example, Haitians were classified by the United States’ Center for Disease Control (CDC) as a ‘risk category’ and HIV-carriers based on an erroneous identification of Haiti as the point of origin of AIDS.

In ‘Monstro,’ the spreading of this mysterious virus in Haiti is facilitated by international neglect: since “it was just poor Haitians types getting fucked up,” Díaz’s narrator explains, “once the initial bulla died down, only a couple of underfunded teams stayed on” to try to better understand the virus and mitigate its consequences.  Haiti had begun its long battle with the cholera epidemic only a year before the publication of ‘Monstro,’ but it was already becoming clear (staunch denials on the part of the UN notwithstanding) that the epidemic had been introduced in the country by a Nepalese contingent of the United Nations mobilised to assist the population after the earthquake. In May, in a letter to the United Nations secretary general, António Guterres, thirteen UN rights monitors strongly criticised the UN for its “deeply disappointing” failure to make amends for having brought cholera to Haiti. After highlighting the inadequacy of the UN response to the Haitian crisis, the lead signatory of the letter, Philip Alston, the UN monitor on extreme poverty and human rights, concluded that the UN’s reprehensible conduct could only be understood by accepting that “racism” must have played a part.

In a move that reveals how racism and colourism also go hand in hand with anti-Haitianism in the Dominican Republic, the popular name of the epidemic which, in Díaz’s short story, begins to manifest itself by making Haitians blacker, is ‘Negrura.’  We are informed that Haitian–Dominicans and Haitians living in the Dominican Republic began to be ‘deported over a freckle,’ a comment that openly criticises the way in which, over many years, the Dominican government has been using arbitrary deportations (often targeting dark-skinned individuals regardless of their legal status) as a means to control and regulate ‘Haitian’ immigration, and, more specifically, of the resumption of deportations after the cholera epidemic as a ‘prophylactic’ measure.

 

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Face in limbo, camp Parc Cadeau, Haiti, December 4, 2015 (Photo. Michelle Siu)

Sadly, deportations continued to be used also after the publication of Diaz’s story in 2012.  On the 23rd September 2013, a ruling of the Dominican Constitutional Court ordered all birth registries from 1929 had to be audited for people who had been (allegedly) wrongly registered as Dominican citizens, de facto denationalizing over 133,000 Dominicans, mainly of Haitian descent.  The 2013 ruling was supported by the same well-established Dominican anti-Haitian racist ultra-nationalistic discourses which in the post-earthquake and post-cholera scenarios –but also on a myriad of many other occasions– had fomented hatred and paranoia, and demonized or pathologized Haiti, Haitians, and Dominicans of Haitian descent. A moratorium on deportations of Haitians with irregular migration status in the Dominican Republic took place during the eighteen months while a national regularization plan for foreigners was operated up until the middle of 2015, when registration for the plan lapsed. Deportations started up again in earnest. Unfortunately, the mix of euphemistically labelled “spontaneous returns” (often motivated by anti-Haitianism whipped up by elite nationalists), extra-official deportations and official deportations evidenced many of the shortcomings seen earlier in the process of deportations, when expulsions of Haitians had happened, en masse, from the Dominican Republic.  The humanitarian crisis derived from this intense cross-border movement is perhaps best exemplified by the camps established on the Haitian-Dominican border, such as the Parc Cadeau complex, where scholars suggest that, from a bio-politic prism, this forced displacement could be included in the “death zones of the world.”

 

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Masked mask, part of sculpture, Jean Philippe Moiseau, May 2020

Ironically, in 2020, before the first case of Covid-19 was detected in Haiti, it was the Haitian President Jovenel Moïse who unilaterally closed the land border with the Dominican Republic, mindful of the country’s long struggle against cholera which was only controlled in January 2019.  Paradoxically, Haiti had its lock-down first in the Americas before the arrival of Covid-19 and is one of the last countries assailed by the pandemic in the western hemisphere.  In the final months of 2019, in fact, Haiti was in lock-down, or peyi-lok, a creole epithet which alludes to the nationwide political and economic protests which, precipitated by anticorruption scandals revealed in mid-2018, paralysed the country. The Haiti-Dominican Republic border was not closed but most schools and businesses were shut down.

It is evident that the Covid-19 emergency constitutes a huge challenge for the island of Hispaniola, where health services in both countries are far from fit for purpose and containment and control will likely consist in a long haul. Haiti will be hard put to deal with coronavirus, due to a notorious lack of installed health services capacity and social distancing will be virtually impossible in urban areas because of overcrowded housing and informal labour patterns. Similarly, health services are weak in the neighbouring Dominican Republic and containment measures have not been uniformly applied despite a state of emergency having been decreed. On top of that, legislation adopted in the Dominican Republic in 2014 to restore the documents of denationalised persons has been unevenly and timidly applied, such that most of those affected by the operation of the law do not have their Dominican ID, hence have limitations on realising their rights to health and education and have been absent from ongoing social protection measures in place prior to the pandemic.  Likewise, hundreds of thousands of irregular migrants have, since 2014, engaged with the state in a regularisation programme only to find that they currently have a fragile or out-of-status legality. In these circumstances there is little incentive for them to come forward and stake claim to humanitarian aid from the authorities because they may fear deportation when the health crisis subsides.

 

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Masked Mask, Jean Philippe Moiseau, June 2020

The Dominican Republic and Haitian authorities have been correct in leaving a certain flexibility with the land border, enabling some 50,000 Haitians to return home since the pandemic was declared.  However, there is the danger that once more the border area between the two countries becomes instrumentalized as a temporary humanitarian corridor for the duration of the health crisis and the long term demands of cross-border workers may be yet again overlooked.

Despite all the challenges that it presents, however, the pandemic also provides opportunities to improve border relations and finally address the predicament of segments of the populations in precarious legality like Haitian migrants and denationalised Dominicans of Haitian ancestry.  Social protection mechanisms activated by the Dominican authorities for humanitarian assistance and those made unemployed by the health crisis, in fact, do not cover persons living and working in the country without a Dominican ID document.  In order to be effective in the Dominican Republic, which has the worst mortality rate in the insular Caribbean, in fact, the Coronavirus response has to include those who have been routinely marginalised and neglected.

We have engaged, since 2013, in the development of artistic and literary projects (i.e. public talks, book launches, workshops, concerts, photographic exhibitions, artistic performances, publications in English, French, and Spanish, YouTube video) aimed at foregrounding and enhancing social and cultural unity in order to counter dominant discourses and pernicious racist and discriminatory practices which deny the existence of collaborative linkages and cultural continuities between the peoples and countries sharing the island of Hispaniola.  We are therefore fully alert to the notion that a post-Covid-19 return to ‘life as we know it’ whereby anti-Haitianism, deportations, and denationalization are the status quo, is to be firmly resisted and avoided and, as many other activists on the ground, we believe that policy advocacy must support different ways of sustainably including these side-lined groups, often ostracised because of their ethnicity, in order that they may fully belong in Dominican society, benefiting from risk management both now and in the future.

 

ABOUT THE AUTHORS

Maria_FumagalliMaria Cristina Fumagalli is Professor of Literature at the University of Essex. She is the author of On the Edge: Writing the Border between Haiti and the Dominican Republic (2015; 2018), the first cultural and literary history of the region, and, more recently, of the chapter   “‘When Dialogue is No Longer Possible, What Still Exists Is the Mystery of Hope’: Migration and Citizenship in the Dominican Republic in Film, Theatre and Performance” in Border Transgression and Reconfiguration of Caribbean Spaces. Moïse, Myriam & Fred Réno (Eds). NY: Palgrave MacMillan (2020). She is Investigadora Asociada of Observatory Caribbean Migrants (OBMICA), Santo Domingo.

Bridget_WoodingBridget Wooding is a researcher, advocate, writer, trainer, and expert witness on migration related issues. She coordinates the Observatory for Caribbean Migrants (OBMICA), based in Santo Domingo (www.obmica.org), since 2009. She is the author of numerous publications, including books and articles on nationality matters and the migration dynamics affecting the Dominican Republic, the island of Hispaniola, the insular Caribbean, and respective Diasporas. She is the author of the chapter “The seeds of Anger: Contemporary issues in forced migration across the Dominican-Haitian border” in Border Transgression and Reconfiguration of Caribbean Spaces. Moïse, Myriam & Fred Réno (Eds). NY: Palgrave MacMillan (2020).

Protecting the rights of sex workers during a pandemic

by Astha Madan Grover

 

The COVID-19 pandemic has exposed many of the the pre-existing inequalities in society. It has disproportionately affected already marginalized communities that live outside societal protection mechanisms, often in financially precarious situations.  Sex workers are one such community whose rights need to be protected and respected.  Sex workers are entitled to human rights which include labour rights under the aegis of international protection frameworks.

From an International Law Perspective, the United Nations Charter (1945) obligates all UN bodies and agencies to promote and respect the “dignity and worth of the human person”, and The Convention on the Elimination of all Forms of Discrimination Against Women (1979) safeguards the right of female sex workers against discrimination.  It also grants them the right to social and economic security, right to privacy, the right to work, the right to freedom from stigma and prejudice and equal protection from the law and freedom from discrimination.  Recent research by Human Rights Watch shows that the criminalisation of sex work increases the vulnerability of sex workers, because attackers perceive them as easy targets due to stigmatization by law enforcement agencies.  Criminalisation has also been found to restrict sex workers’ right to health.

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Issues faced by sex workers due to COVID-19

Unfortunately, due to the COVID-19 pandemic, sex workers are facing increased harassment and discrimination due to a lack of access to emergency social protection programmes as well as financial difficulties.  In most countries, given the criminalization of some or all aspects of sex work, the informal sector is unable to grant them benefits, such as access to national social protection schemes.  Migrant sex workers also face the risk of deportation due to lack of work permits.

Workers can also get pushed into compromising situations, where they are taken to work with clients who may not have their safety or best interests in mind.  They lower the price to attract more clients so they can support themselves.  Workers may also stay on with abusive partners to avoid homelessness.  Sex workers, who still engage with clients may contract the virus despite taking precautions such as checking for fever and taking the client’s travel history.

Many workers live in shared accommodation,  which enables the rapid spread of the virus.  Sex workers, including those working in brothels, are usually self-employed.  They receive no remuneration for the period during which they do not get work.  Workers are unable to provide for their families due to the lack of clients and may have no other employment prospects as many of them have been forced into prostitution from a young age.

The HIV epidemic is an ever-present threat to sex workers and it has now been added to by COVID-19.  HIV, though does not spread through the air and can be prevented by using protection while engaging in sexual intercourse.  HIV can also be treated through the use of antiretroviral therapy (ART).  While it does not completely cure patients, it does enable them to live long and healthy lives.

 

Measures taken worldwide to protect sex workers

Germany legalised sex work in 2002 and has over 200,000 practising sex workers.  The government ordered the closure of all brothels and other ‘non-essential’ businesses such as clubs and bars on the 14th of March.  Susanne Wilp, the spokesperson for the Association of Erotic and Sexual Services Providers, states that business has gone down by 90% and due to their lack of income, they face homelessness.  A similar fate is being faced by sex workers in Amsterdam, where sex work is also legal.

Japan has allowed sex workers to apply for governmental aid in some cases.  However, the requirements for applications are rigid and will force workers to ‘out’ themselves to their communities.  Employers are eligible for subsidies, if their employees have to stay home to care for children during school closures, and sex workers can also receive cash handouts.  (Though the requirements do not clearly state whether the handout is for those who have lost a portion of their income or those who have been dismissed entirely.)  The rigid rules require workers to show proof of income, which is difficult to show as they are usually paid under the table.  Many sex workers do not report their occupation or entire income on their tax returns due to a fear of repercussions and a sense of stigma.  Admitting non-disclosure of income could lead to its own set of consequences.

Thailand has made sex workers eligible for grants in the government’s pandemic relief package and the Malaysian government is providing housing and monthly remuneration for the homeless; most of whom are sex workers.  These workers have to hide their occupation to receive the benefits as sex work is illegal in Malaysia despite being practised widely.

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The Way Forward

Taking sex work online is one way for workers to protect themselves during the pandemic.  This is done through photos, videos, video conferencing, and phone sex.  However, this kind of work has its limitations as well.  Workers may not have the required equipment or technical know-how to facilitate work this way.  Workers with an existing base of online followers find it easier to monetize their online services.  In addition, posting online may compromise the privacy of workers who may not want to reveal the nature of their work to family and friends.  Performing online may also not be a viable solution for workers with children and families at home.  A lack of consistent internet access may also hinder the ability to perform online.  Moreover, workers earn less working online and laws are not designed to protect these workers from privacy breaches and dangerous clients they could encounter as a result of working online.

UNAIDS and the Global Network of Sex Work Projects have called on countries to take action to protect the health and human rights of sex workers.  These measures should include access to national social security schemes, unemployment benefits and financial aid, providing healthcare services to migrant sex workers, appropriating emergency housing for homeless sex workers, halting prosecution and arrests for all sex work-related activities, ending the use of criminal law, promoting COVID-19 testing and providing visa extensions to migrant sex workers.

Sex workers need more allies. Global bodies such as Amnesty International and the World Health Organisation support their demands for legalization and decriminalisation.  Sex worker rights should matter to everyone who cares about gender inequality, migration, public health or poverty.  The need to protect sex workers during this pandemic is incredibly important as they are one of the most marginalised groups in society. Sex workers must be included in the decision-making process when it comes to legislation and programmes that can impact them.  They should have the right to work safely and on their terms and this includes protection during a world-wide pandemic.

 

ABOUT THE AUTHOR

Astha Madan Grover - Photo (1)Astha is a second-year law student at the National University of Juridical Sciences, Kolkata.  She has a keen interest in public policy, gender law, and public health.

Might or right: The devastating impact of US sanctions on the rights of Iranian citizens amidst the Covid-19 outbreak

by Hetal Doshi & Sankalp Udgata

Much has been said about the insensitivity of the Trump administration’s approach to tackling the outbreak of COVID-19, but little compares to Trump’s unswerving decision to continue economic sanctions against Iran amidst this global pandemic. The spread of coronavirus has been nothing less than a catastrophe for the people of Iran.  As COVID-19 rips through country after country, Iran’s experience has been particularly devastating with more than 182,525 confirmed cases and 8,659 declared deaths (as of 11 June 2020).  With no end to this pandemic in sight for the foreseeable future, the Iranian government is facing the unique challenge of providing medical equipment to doctors alongside access to food, basic medical facilities, and isolation centres to patients while, at the same time, trying to uplift the already crippled economy.

It is undisputed that a great deal of the suffering of the Iranian people lies within the responsibility of their own government. Nevertheless, the re-imposition of severe economic sanctions in 2018 by the United States after it unilaterally withdrew its participation in the Joint Comprehensive Plan of Action (i.e. the nuclear deal), has had devastating impacts on the economy and has severely undermined humanitarian trade with Iran.

The damage done to Iran’s economy by US sanctions left it ill-prepared for the COVID-19 crisis. The gross domestic product of Iran shrank by 9.5 percent, oil exports were down by 80 percent, and inflation is now nearly 40 percent. Now, with the spread of coronavirus in Iran increasing at an unprecedented rate, sanctions are contributing to a shortage of testing kits, medical devices, and hygienic supplies required to prevent further spread.

Impact of ‘Inhuman’ Sanctions on the Right to Health  of Iranian Citizens’

While the United States government continues to insist that it has created exemptions for humanitarian imports into its sanctions regime, broad sanctions against Iranian banks, coupled with aggressive rhetoric from US officials and a lack of clarity on how secondary sanctions will be imposed, have drastically constrained Iran’s ability to finance such humanitarian imports. A Human Rights Watch report also states that, in practice, these exemptions have failed to offset the strong reluctance of US and European companies and banks to risk facing the legal and financial risks associated with exporting or financing exempted humanitarian goods, such as vital medicines and medical equipment.

DT signing EO sanctions

 

The consequence of such sanctions has resulted in impairing the ability of Iranian people to secure their right to health and access to essential medicines.  Health is a fundamental human right indispensable for the exercise of other human rights and is recognized under Article 25(1) of the Universal Declaration of Human Rights and Article 12(1) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR).  In July 2019, the UN Special Rapporteur on the situation of human rights in the Islamic Republic of Iran stated that the sanctions and banking restrictions will unduly affect food security and the availability and distribution of medicines and pharmaceutical equipment. The continuance of these sanctions has resulted in nothing less than gross violations of the human rights of Iranian citizens.

Extra Territorial Application of the Right to Health

The question of the extra-territorial application of the right to health has always been debatable. The ICESCR does not contain any provision on the jurisdictional or territorial applicability of the treaty. However, CESCR General Comment No. 14 declares that all states must take steps to prevent violations of the right to health (Article 12) in other countries. Thus, under ICESCR the USA has an obligation to ensure that its actions take due account of the right to health of citizens of other countries.

The US is in direct breach of these obligations, as the brunt of the economic sanctions on Iran is being faced directly by Iranian people.   Iranian suppliers of equipment like respiratory masks and ventilators are out of stock, and the Iranian government is struggling to import the raw materials that it needs to manufacture antiviral drugs amid the raging COVID-19 pandemic. These sanctions, as discussed above, have crippled the economy of Iran and prevented the import of health care equipment required to control this pandemic. This has direct effects on the availability and quality of health care facilities which form an essential element of the right to health, thus resulting in a clear violation of this right.

Coronavirus_patients_at_the_Imam_Khomeini_Hospital_in_Tehran,_Iran_--_بخش_ویژه_بیماران_کرونا_در_بیمارستان_امام_خمینی_تهران_--_March_1,_2020

It is important to note that in the case of Iran v. USA the International Court of Justice (ICJ) has held, in its order on provisional measures, that US Sanctions are detrimental to the humanitarian needs and rights of Iranian citizens, and its exemptions do not help with assurances to the contrary.  Instead of adhering to the order, the United States government decided to terminate the 1955 U.S.-Iran Treaty of Amity, which was the basis of the relief granted by the ICJ.  This was announced on the same day in which the ICJ passed the order.

The paradoxical stance of the US Administration

The contradictory stance of the US government is further evident as, despite sanctions being exempt on humanitarian goods, the US Treasury Department had previously prosecuted medical companies for selling small amounts of medical supplies to Iran. While Iran’s dire circumstances have prompted calls from around the world for the United States to roll back its deep economic sanctions on the country, the US has instead imposed new sanctions amid the increasing cases of COVID-19 which will further add to Iran’s economic and diplomatic isolation.

With hospitals overrun and Iranian doctors struggling to procure necessary equipment, the US must be part of the solution rather than part of the problem. A global pandemic requires a global response, not a piecemeal one based on local politics.

 

ABOUT THE AUTHORS

Photo.HetalHetal Doshi is a law student at the National University of Study and Research in Law (NUSRL), Ranchi, India.  She can be reached at hetaldoshi.hvd@gmail.com.

 

Photo.SankalpSankalp Udgata is a law student at the National University of Study and Research in Law (NUSRL), Ranchi, India.  He can be reached at sankalp.udgata123@gmail.com.