This is the third of a series of five blogs on COVID 19 and human rights, focusing on the timeline of the virus. Blog 1 focused on the beginning of the virus in China, in relation to the right to freedom of expression. Blog 2 focused on the crisis in hospitals across the world in dealing with the COVID 19 case load.
A key way of alleviating the hospital crises is by slowing or stopping the spread of the virus. Across the world, States have followed China and then Italy in adopting measures which have fundamentally changed how life is lived. Borders have been closed (including in some instances, internal borders). Some, such as those who test positive and their close contacts, and overseas arrivals, have been compulsorily quarantined for periods of a fortnight or more. “Social distancing” is mandated, whereby people must keep a certain distance away from each other. The reasons for which one is allowed to leave home are restricted. “Non-essential” businesses have been shuttered.
All of these measures entail extraordinary restrictions on numerous human rights, including the freedoms of association, assembly, movement and from arbitrary detention. As with freedom of expression (which was discussed in Blog 1), these rights can by limited by measures prescribed by law (a requirement which is discussed below) and necessary for the achievement of certain enumerated ends. The requirement that the limit be necessary in order to achieve a particular end requires that the law use proportionate means to achieve an enumerated goal. The lockdown measures have been implemented for the legitimate objectives of protecting public health, and the countervailing rights to health and life of the people who might catch and succumb to the disease if more social interaction is permitted.
Economic, social and cultural rights are also severely affected by the lockdowns. Millions have been deprived of their livelihoods, threatening rights to work and to an adequate standard of living. Under the ICESCR, Article 4 dictates that the rights therein may only be subjected to “such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” Despite the qualification to ICESCR rights in Article 2(1) ICESCR that they are to be achieved “progressively … to the maximum of State’s] s available resources”, there is a presumption that States “take steps” and move forward. There is a presumption against retrogressive steps: they must be “duly justified by reference to the totality of the rights provided for in the Covenant” (see, eg, para 21 of this General Comment on the Right to Work). The lockdowns are retrogressive measures, but they might be justified in order to promote public health in a pandemic. Such justification is more likely where governments have made available extensive economic rescue packages, as has occurred across the developed world (the adequacy of those measures is beyond the scope of these blog posts).
Despite the severity of the measures, the failure to adopt them might breach the positive duties of States to protect the rights to health and life. No government should have been unaware of just how dangerous the virus was after the catastrophic reports from Italy in early March. Despite the Italian precedent, the Trump administration in the US downplayed the seriousness of COVID 19 for much of March. This cavalier attitude probably encouraged delays in US lockdowns across its states. It is submitted that the US government failed to take measures which were foreseeably necessary to curtail the spread of the virus, which would have protected rights to life and health.
While the promotion of public health is a legitimate purpose for limiting human rights, restrictive measures must nevertheless be proportionate. In this regard, concerns over English measures have been expressed in a briefing paper from the Chair of the Parliamentary Joint Committee on Human Rights in the UK. The Health Protection (Coronavirus Restrictions) (England) Regulation 2020 mandates that people cannot go outside without “a reasonable excuse”.
A general requirement for limitations to ICCPR rights is that they be provided or prescribed by law, which means that restrictive measures must be established in an accessible and circumscribed law. It is analogous to the common law principle of legality. Yet the English measures are unclear and vest too much discretion in police officers as to how they are enforced. The requirements of the regulation have been muddied by confusing and contradictory statements by the government and inconsistent enforcement by police. Similar problems have arisen in Australia, including evidence of the disproportionate targeting by police of Indigenous and migrant Australians.
Furthermore, it seems the regulations target “going outside”, even if one goes outside by one’s self which poses virtually no threat of spreading the virus, rather than “social interaction”, which can spread the virus. The English (and Australian) laws are disproportionate in criminalising ordinary behaviour, such as sitting on a park bench alone, which does not spread the virus.
It is presently unclear how long and the extent to which lockdowns will need to remain in place: their easing is starting to happen in Australia. The detrimental human rights impacts of the lockdowns will increase the longer they last, including deteriorations in psychological health and increased jeopardy to livelihoods. Yet a premature easing of lockdown conditions could spark a resurgence of the virus, which might simply delay a hospital crisis rather than prevent it. Indeed, the easing of restrictions in the state of Georgia in the US seems reckless in that regard.
Under the right to life in article 6 of the ICCPR, one must not be “arbitrarily” deprived of one’s life, so non-arbitrary deprivations are permissible. The right to life can legitimately be balanced against other rights, even in the COVID-19 crisis. Indeed, all States balance the interest in preserving life against other societal benefits in their calibration of many routine policies, such as those regarding speed limits, and those banning or permitting dangerous activities.
Respect for and enjoyment of human rights are ends in themselves, rather than means to ends. They are not inherently utilitarian concepts. It is therefore not compatible with human rights to simply sacrifice the small percentage of people who will die if they catch COVID-19 for “the greater good”. In any case, the sheer numbers of dead would not be in the psychological or economic, let alone moral, interests of society. A complete opening up of societies so as to let the virus “rip” through the population, which would likely cause tens to hundreds of thousands of deaths, would breach the right to life.
Nor, however, do the lockdowns have to remain uniformly strict until a cure or a vaccine is developed, which will not realistically be before 2021. It is permissible to calibrate the lockdowns to increase the enjoyment of other rights even though such easing might increase the spread of COVID-19 infections and associated fatalities. The question becomes one of just how much increased sickness and death is tolerable. There is no easy answer to that question. The various conflicting rights must be taken into account in making decisions regarding the easing of lockdowns. Furthermore, while all rights are technically equal and interdependent, the nature of the right to life indicates that fewer interferences are acceptable compared to other rights. At the least, restrictions must be calibrated so as to “flatten the curve” of infection, or keep that curve flat, and avoid a swamped hospital system. Such a system benefits no-one, and endangers all staff, patients, and potential patients. Finally, the adoption of alternative feasible protection measures beyond societal lockdowns for those most at risk must be part of any strategy which eases lockdowns.
There is much we do not yet know about this virus. At the time of writing, Sweden has refrained from adopting strict lockdowns though it had implemented certain social distancing measures. It has more cases and deaths than its Scandinavian neighbours, indicating it may have recklessly endangered health and life, though its outbreak has not (yet) been of the catastrophic scale of that in Italy or the US. Only hindsight can determine whether it has adopted a suitable “middle path” which struck an appropriate balance between the rights of all in society.
The States which have been most successful in containing the virus (thus far) have combined restrictions with extensive early testing. Such States include Australia, South Korea, and Germany. Germany has fewer restrictions in place than most of Europe (but more than Sweden) and a much lower death rate compared to its neighbours. Its high rate of testing has revealed much more of the “iceberg” of underlying diagnoses than its neighbours with lower testing rates. Early testing enables tracking, tracing, and isolation of cases and contacts. Increased mass testing is a key strategy in fulfilling the right to health while fighting COVID-19. However, testing is less useful at facilitating containment once the virus has spread widely. For example, while the US massively increased its testing in April, its initial bungled approach allowed the virus to spread unknowingly and far, such that tracking and tracing is now impossible in many parts of the US.
At the time of writing, the developing world seems to be reporting comparatively low figures for COVID-19. Unfortunately, this is likely due to low rates of testing, and perhaps a lack of hospital admissions for sick people, rather than any real containment of the virus in such States.
The next blog post in this series will focus on the future of the pandemic, namely the eventual release of vaccine or effective treatment, and associated human rights issues.