Covid-19 has stirred panic around the world putting global health at risk. It has prompted countries to adopt strong and quick measures designed to contain the virus and to alleviate the economic impacts resulting from the pandemic. Nevertheless, some of these measures have strong human right implications and numerous international human rights have voiced concerns over the need to act with human rights at the forefront. The Chairpersons of the 10 UN Treaty Bodies have urged global leaders to ensure that human rights are respected in government measures to tackle the public health threat posed by the Covid-19 pandemic.
The obligation to protect and enforce fundamental human rights are enshrined in a state's constitutional document but the international legal basis of state obligations to protect and promote all human rights stems from treaties like the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These two treaties are legally binding treaties, adopted by the UN General Assembly and ratified by states. However, such treaty obligations are only enforceable by the states against each other, and not by citizens against the state.
Most of the measures adopted by states are consistent with Article 12 of the ICESCR which requires states to ensure the prevention, treatment and control of epidemic, endemic, occupational and other diseases. To slow the spread of the coronavirus, states have imposed lockdowns prompting the closure of businesses and educational institutions, cancellation of events, restrictions on social gatherings and entertainment facilities etc.
These actions may appear necessary, reasonable and effective in containing the coronavirus but they have dire human rights implications. It is being argued that states are trampling into other human rights in their efforts to slow the outbreak and treat those afflicted with the disease.
Article 6 of ICESCR requires states to take appropriate steps to safeguard the right to work which is currently severely restricted as governments have imposed lockdowns prompting businesses to remain closed. This is having a resultant effect on the right of everyone to an adequate standard of living (article 11 of ICESCR) as businesses are laying off and/or retrenching employees reducing employees' ability to afford adequate food, clothing and housing.
The International Labour Organisation (ILO) reported that, through the massive economic disruption, the Covid-19 crisis is affecting the world's workforce of 3.3 billion. Full or partial lockdown measures are now affecting almost 2.7 billion workers, representing around 81 % of the world's workforce.
Nevertheless, many states have formulated fiscal stimulus and social protection packages to mitigate the devastating economic consequences ensuing from the COVID-19 lockdowns. For instance, the Italian government adopted a €25 billion "Cura Italia" emergency package which includes the following elements: (i) measures valued at €10.3 billion for preserving jobs and support income of laid-off workers and self-employed (Italy has pledged up to 80 % of an employee's salary for nine weeks up to a maximum of €1,130 net per month; Self-employed workers will be given a one-off payment of €600.); (ii) other measures valued at €6.4 billion to support businesses, including tax deferrals and postponement of utility bill payments in most affected municipalities; (iii) measures to support credit supply (€5.1 billion). On 06 April 2020, the Liquidity Decree allowed for additional state guarantees of up to €400 billion. This is line with the suggestions of UN human rights expert, Juan Pablo Bohoslavsky, who have urged governments to put finance at the service of human rights and to support the less well-off through bold financial approaches.
The closure of educational institutes, cancellation of events and restriction on public gatherings pose potential violations of article 13 of ICESCR which provides for the right of everyone to education, and article 15(1)(a) of ICESCR which recognises the right of everyone to take part in cultural life. However, some countries are minimisng the restrictions through effective measures of distance learning for education (e.g. New Zealand adopted distance learning for all students) and digitalising cultural celebrations (e.g. Bangladesh celebrated Bengali new year digitally).
Amongst the all measures taken by states to contain the COVID-19, the important of them all has been to encourage social distancing by limiting the number of people who can gather together. Some states have taken extreme measures to enforce social distancing: Kenya imposed curfews whereas Austria imposed bans on social gatherings of more than five people. These are serious restrictions and can potentially conflict with freedom of movement and the right of peaceful assembly as provided in articles 12 and 21 of the ICCPR respectively. Although both the articles permit restrictions to be imposed on grounds of public health, states must ensure that such measures are not being used a tool to silence dissent.
Additionally, is pertinent for states to ensure that their measures offer pervasive protection of human rights: many states' measures are failing to address the potential human rights violation of certain classes and groups of people. An example of such groups of people are those who are residents and detainees in prisons, immigration detention facilities, refugee camps and psychiatric hospital. Such centers and facilities are prone to infections, and with the lockdowns imposing restriction on visitors, the residents and detainees could possibly be experiencing mistreatment. Depending on the nature and degree of mistreatment, their freedom from torture or cruel, inhuman or degrading treatment (article 7 of ICCPR) is at risk of violation. In this regard, Sir Malcolm Evans, Chairperson of the The United Nations Subcommittee on Prevention of Torture stated that "Governments have to take precautionary measures necessary to prevent the spread of infection, and to implement emergency measures to ensure detainees have access to appropriate levels of health care and to maintain contact with families and the outside world". Furthermore, many accused criminal offenders have been imprisoned pending investigations in their matters. With the ongoing lockdowns, the investigations are likely to be slow which may cause undue delay in their trial resulting in a violation of article 14(3)(C) of ICCPR.
Marginalised communities are another example of groups whose human rights are not being adequately protected during the pandemic whereas these communities are at high risk of being infected. If governments do not pay special attention to marginalised communities, they will be violating the very right they sought to protect in the first place, the right to health (article 12 of ICESCR).
Surveillance technology and contact tracing are being implemented by many states to effectively control the spread of the coronavirus. Countries must be careful to ensure that they do not invade the privacy of individuals and families. Some countries are using these methods to track people's movement and health conditions, often without the consent or knowledge of being tracked. This is contradictory to article 17 of ICCPR which states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence and that everyone has the right to the protection of the law against such interference. States must implement surveillance technology in ways that do not invade the privacy of individuals and families.
At this time of crisis, it is likely to be difficult for states to ensure strict adherence to their human rights obligations. The ICESCR and ICCPR allow states to limit their human rights obligations in certain ways and under limited circumstances. ICESCR does not have an express derogation provision but it allows states to impose limitations on rights provided the limitations are: (i) compatible with the nature of the rights and (2) solely for the purpose of promoting the general welfare. ICCPR, however, has an express derogation provision (article 4) which permits states to take measures that derogate from its obligations only: (1) if emergency is officially proclaimed, (2) to the extent strictly required by the exigencies of the situation, (3) if the measures are not inconsistent with the states' obligations under international law and (4) if the measures do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
It must be noted that article 4 of ICCPR requires states who are availing the right of derogation to immediately inform other states through the intermediary of the Secretary-General of the United Nations of the provisions from which it has derogated and of the reasons by which the deorgation was actuated. However, while many countries have declared emergency and have taken extraordinary actions amounting to derogation under ICCPR, they have not notified the UN of it. As of 29 April 2020, only thirteen states have notified the UN that they have derogated from their ICCPR obligations due to the pandemic. Unfortunately, the countries which have been hit the hardest – China, Italy, Spain and the United State of America – have not provided notification to the UN. In the absence of such notifications, they are at risk of violating human rights obligations even if their measures are reasonable.
It is during such times of crisis when the competencies of governments are best tested and it appears that many governments are struggling to design policies around human rights. Most state policies which seek to address the COVID-19 crisis have been formulated with a view to protect the economy and such policies seem to be free of human rights considerations. In this regard it is imperative to refer to Václav Havel who in his interview with Radio Free Europe/Radio Liberty stated "There's a dilemma over how to balance concrete economic interests with critical opinions on the state of human rights. It's the human rights that suffer, and that's a great price to pay". While it is important to take measures to safeguard the economy, such measures must not be covers for repressive action under the guise of protecting public health and must not be enforced at the expense of human rights.
The author of the article is Barrister Mohammad Taqi Yasir who is an Associate of Stellar Chambers and the Vice President of Footsteps Bangladesh.