The Coronavirus crisis is detrimentally affecting all recognised human rights in every country.
Unrestrained spread of COVID-19 is prejudicial to the human rights to life and health.
COVID-19 restrictions have imposed extraordinary restrictions on human rights. COVID measures interfere with economic, social and cultural rights, such as rights to work, adequate standards of living, education, and mental health. They also interfere with civil and political rights such as freedoms of movement, association, assembly, the right to a fair trial, as well as the rights of families and children.
However, human rights are not optional extras, even in this pandemic.
Limits to human rights
Most internationally recognised human rights can be limited in certain circumstances. Even the right to life, globally recognised in Article 6(1) of the International Covenant on Civil and Political Rights, is subject to limitations. A person must not be “arbitrarily” deprived of life, so “non-arbitrary” deprivations are permissible.
Indeed, every government routinely balances the interest in preserving life against other societal benefits in their calibration of numerous everyday policies, such as those regarding speed limits.
The Coronavirus crisis is detrimentally affecting all recognised human rights in every country
Of course, the nature of the right to life dictates that few limitations are tolerable. Furthermore, a COVID outbreak has the potential to be catastrophic, costing many lives, causing debilitating long-term illness to many more, and overwhelming health systems.
But there must be some limit, even in the context of COVID-19. Human rights law does not mandate harsh lockdowns until elimination of COVID-19 or the development of a cure or vaccine. The question becomes one of just how much increased sickness and death, or risk thereof, is permissible under international human rights law?
The flipside of that question is to ask what human rights restrictions are permissible to suppress COVID-19 and decrease the risk of sickness and death?
Proportionality, risk and catastrophe
A key concept in working out the appropriate limitations to rights is that of proportionality: are the limiting measures reasonably necessary for the achievement of a legitimate purpose?
A key consideration in the test of proportionality is how important the limitation might be. The purpose of stopping the spread of COVID-19 is vitally important. But a more precise way of phrasing the purpose of most restrictions is to “stop the risk of the spread of COVID-19”.
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For example, the quarantining of a person known to have COVID-19 contains spread, whereas the quarantining of someone who might have it contains risk. As it is impossible to know who might have COVID-19, it may be assumed that containment of spread is the same as containment of risk. But is this so? Not all risks are the same.
Many countries have imposed border restrictions of varying degrees of strictness and geographic impact to stop infections from being introduced from abroad. These measures restrict freedom of movement and have separated families and friends; people have missed weddings, funerals or been stranded for months at their holiday destination for what should have been a weekend away from their children.
Unrestrained spread of COVID-19 is prejudicial to the human rights to life and health
Are these events a breach of right to family life? While the chances of individuals who have quarantined and observed social distancing laws infecting others are small, the problem is that every single catastrophic outbreak, anywhere, has logically been sparked by a single case.
So there is, on the one hand, a miniscule risk, but on the other, the potential for devastating outcomes if the risk materialises. Furthermore, the stakes seem amplified when COVID-19 is under ostensible control: few decision-makers want to risk the replacement of a situation of control with one of a lack of control.
If decisions can be justified by the possibility of catastrophic outcomes from tiny risks, they can logically be justified if risks are larger, even if still very small. However, there is the danger any measure can be justified based on its marginal impact, or even potentially marginal impact, on reducing the risk of catastrophic outbreak.
Curfews have received similar scrutiny. Perhaps a curfew prevented a party which might have led to further spread of the virus?
Or perhaps curfews meant people gathered secretly during the day. It’s hard to say. In the UAE, recent government announcements reiterated how important personal responsibility is in preventing the spread of the virus, citing increased cases as curfews and lockdown conditions were eased.
Government officials around the world deserve some sympathy in having to engage in a balancing exercise involving a novel deadly pathogen. But it is very likely some laws and decisions have overreached, and important human rights have been displaced by restrictions with dubious benefit. It is vital that governments remain accountable over the human rights compatibility of COVID measures.
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The World Health Organisation is leading the battle against the coronavirus pandemic
Systems matter
Under international human rights laws, governments must take all reasonable measures to prevent and manage COVID infections. Requisite measures extend beyond coercive restrictions to the establishment of appropriate systems to control spread of the virus.
This is particularly important as system failure has contributed greatly to the spread of the virus. There were major weaknesses in the regulation of aged care homes in the UK, for example, where there has been a devastating death toll.
Hotel quarantine failure sparked a second wave in Australia, while the failure of American leadership to properly enforce mask wearing has resulted in catastrophically high numbers of deaths in the United States.
Communications strategies must ensure public health messaging reaches all parts of society. Indeed, the pandemic has exposed the inadequacy of public services globally in coping with an emergency after years of austerity policies.
System improvements will help to ensure against further major outbreaks. Lockdowns and other general human rights restrictions are not the only tool in the kitbox. System improvements should give governments greater confidence in managing the risks associated with any easing of coercive restrictions.
Balancing the right to life with the right to live
Sensibly, most people are prioritising safety for themselves and their communities over freedom during the COVID-19 pandemic. But how much risk avoidance is sustainable socially, economically, politically, and even legally, if COVID cures and vaccines remain unavailable?
The continued adoption of an extreme precautionary approach could mean societies remain balkanised, loved ones (including the vulnerable) separated, livelihoods destroyed, and coercive measures tolerated where they offer little benefit. And the countervailing human rights issues will only loom larger and larger.
The human right to life is vitally important, but there is also a human right to live.
– Theconversation.com
Sarah Joseph is a Professor of Human Rights Law at Griffith University, Queensland Australia