COVID-19 threatens more than you think - global guidance needed for a sustained, rights-based response

Written by David Patterson LLM, MSc, PhD Researcher, Global Health Law Groningen Research Centre, d.w.patterson@rug.nl

Democratic societies require freedoms of expression, movement, association and access to information to function – without free access to information and the right to challenge government action publicly and through the courts, democratic freedoms lose meaning.

COVID-19 is undoubtedly a global health emergency which warrants broad and urgent responses. However, it also provides a pretext for autocratically inclined governments to unduly limit freedoms in the name of public health.

Human rights and public health are sometimes conceived as competing public policy objectives, with a compromise on one side needed to attain the other. This framing of the issues readily leads human rights abuses in the name of public health. A moment’s thought will identify this false dichotomy – legitimate public health measures are of course needed to protect and promote the right to health for everyone. Human rights and public health are synergistic, not competing, goals.

An alternative framing recognizes that some rights (such as freedom of expression) are not absolute. Nobody has the right to shout ‘fire’ in a crowded theatre without good reason. People with multiple drug-resistant tuberculosis who have not followed their treatment protocol may, in some circumstances, be confined. Experience and case law from Kenya demonstrate that even in these circumstances, the human rights of these patients must be respected to the fullest possible extent. [1]

International law requires that governments satisfy tests of legality, legitimacy, necessity and proportionality before they can limit rights. The onus is on the State to justify any proposed limitation on rights. Recent publications on COVID-19 from different sectors address these issues in ways which warrant our close attention.

In a recent succinct and powerful analysis, Douglas Rutzen and Nikhil Dutta of the International Center for Not-for-Profit Law (ICNL) review State action to automate social control in China and to curb protests in Iraq and Kyrgyzstan – all justified by the response to COVID-19. [2] Sanchita Hosali of the British Institute of Human Rights notes that the UK government’s 2020 Coronavirus Bill proposes to reduce human rights and legal protections in a broach range of areas for two years. [3] We don’t know how long this crisis will last, but two years seems excessive - the government can always seek an extension of more limited emergency powers from Parliament if needed.

We can certainly learn from effective public health responses to other pandemics. The UN system response to HIV is anchored in human rights. The Joint United Nations Programme on HIV/AIDS (UNAIDS)’ recent guidance on COVID-19 was developed in consultation with its independent HIV and Human Rights Reference Group, experts from civil society, academic, public health and other UN agencies. It advises ‘an empowerment approach, focused on the barriers that people face to protecting their health and the health of others.’ [4] Community based-approaches are more effective and sustainable - coercive measures are rarely justified.

We know that COVID-19 can be transmitted through casual contact – this is not the case with HIV. Yet criminalizing people with HIV or COVID-19, or suspected to be so, will not serve the public interest. It is more likely to drive people away from health services which can both help them and prevent further infection. Karl Roberts provides a good example in the policing of curfews and their exceptions. [5] Far better to engage community and opinion leaders to explain why restrictions of movement are necessary than to rely on heavy-handed approaches that put both police and communities at risk.

Some 25 years ago, UNAIDS and the UN Office of the High Commissioner for Human Rights (OHCHR) convened an expert group to draft guidance for States on their international legal obligations in the context of the HIV epidemic. The resulting ‘International Guidelines on HIV/AIDS and Human Rights’ were welcomed by the (then) UN Commission on Human Rights and provided a framework for UN-system, donor and national government responses. Most importantly, the Guidelines addressed governments obligations to create enabling legal environments to limit the spread of HIV and their obligations to ensure care, treatment and support to people living with HIV, including in resource poor settings. [6]

COVID-19 and its sequelae will probably be with us for years to come. Lower and middle income-countries will likely be hardest hit. As the experience of polio eradication demonstrates, ensuring access to an effective vaccine for vulnerable and remote communities, when it is developed, will require an immense effort, probably over many years. [7] Now is the time for WHO and OHCHR to consult and develop ‘International Guidelines on COVID-19 and Human Rights’ to guide the global response.

1. Maleche A, Were N. Petition 329: a legal challenge to the involuntary confinement of TB patients in Kenyan prisons. Health Hum Rights 2016; 18(1): 103-8.
2. Rutzen D, Dutta N. Coronavirus and civil space: preserving human rights during a pandemic. 2020. https://www.icnl.org/post/analysis/coronavirus-and-civic-space (accessed March 23, 2020).
3. Hosali S. The corona virus bill and human rights. 2020. https://www.bihr.org.uk/blog/the-corona-virus-bill-and-human-rights (accessed March 23, 2020).
4. UNAIDS. Rights in the time of COVID-19: Lessons from HIV for an effective, community-led response. 2020. https://www.unaids.org/en/resources/documents/2020/human-rights-and-covid-19 (accessed March 23, 2020).
5. Roberts K. Policing the pandemic: managing the police response to Covid-19 Coronavirus. Policinginsight, March 19, 2020. https://policinginsight.com/features/analysis/policing-the-pandemic-managing-the-police-response-to-the-coronavirus/ (accessed March 23, 2020).
6. United Nations. International Guidelines on HIV/AIDS and Human Rights (2006 consolidated version). Joint United Nations Programme on HIV/AIDS (UNAIDS) and the Office of the High Commissioner for Human Rights (OHCHR). HR/PUB/06/9; 2006.
7. Closser S, Jooma R, Varley E, et al. Polio eradication and health systems in Karachi: vaccine refusals in context. Global Health Communication 2015; 1(1): 32-40.