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Coronavirus and the IHR: Safeguarding Human Rights in a Crisis

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About The Author

Adiba Firmansyah (Regular Writer)

Adiba is currently studying for her LLB at Middlesex University, Dubai. Her main areas of interest are human rights and public law. Outside of the law, Adiba enjoys running, cycling and drawing.

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Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge…

Preamble to the Universal Declaration of Human Rights

As of 24th March, the novel coronavirus pandemic has killed at least 14,000 people, infected more than 330,000 globally, and continues to spread far beyond the city of Wuhan in China where the virus was first detected. The human rights of those affected - or suspected of being affected - by the coronavirus, and in particular their rights to health, liberty, and privacy must be respected, even as states aim to limit these rights in order to manage the threat of the spread of the disease.

In January, the coronavirus was declared a Public Health Emergency of International Concern (PHEIC) by the World Health Organisation (WHO). In March, it was additionally characterised as a pandemic due to the international spread of the disease. The PHEIC framework deals with international cooperation to combat the spread of the coronavirus. Yet this framework does not adequately set out the scope of human rights obligations that states must continue to uphold, even as the measures they take to contain the coronavirus grow more extreme.

This article will examine the measures that states have taken to manage the spread of the coronavirus by situating them within the international health law framework and the ethical frame within which PHEIC declarations are used, before discussing the ways that states have attempted to disregard human rights through arguably excessive and disproportionate limitations on, and derogations from, the rights to health, liberty, and privacy. The current crisis has made clear that the exact scope of the human rights obligations applying during a PHEIC should be stated much more clearly and implemented both at an international and domestic level.

International Health Law and the IHR

International health law is an emerging field of public international law focusing on the protection of health. The field draws on international standard-setting instruments adopted by the WHO and under human rights law, and incorporates health-related rules, norms and other non-binding standards from other branches of international law, including humanitarian law, patients' rights and medical ethics.

The ethical basis for international health law is respect for the autonomy of the individual. There are, however, times when individual autonomy must be restricted in favour of a more paternalistic approach, in which decisions must be made on others’ behalf. During international public health emergencies, the autonomy of suspected or affected persons will often be restricted by states which are legitimately seeking to contain the spread of a disease.

The rapid expansion of global trade and travel has brought with it the appearance and reappearance of global disease threats and other health risks. In response to this, the International Health Regulations (IHR) were approved by the World Health Assembly in 2005 in line with Article 21 of the WHO Constitution. Article 21 allows the World Health Assembly to issue regulations for 'procedures designed to prevent the international spread of disease'. Entering into force in 2007, the IHR are binding in 194 states, requiring them to report certain diseases of known risk to the WHO and to assess the risk coming from other diseases of known risk 'that have demonstrated the ability to cause serious public health impact and to spread rapidly internationally'.

Human Rights and PHEICs

On 30 January 2020, the Director-General declared that the spread of 2019-nCoV (now officially named SARS-CoV-2 or COVID-19) constituted a public health emergency of international concern (PHEIC) under Article 12 of the IHR. Under the IHR, PHEIC declarations do not impose additional international law obligations on states, but any measures that states take to contain disease must be carried out with full respect for human rights. This underlying principle of the IHR is enshrined in Article 3(1):

The implementation of these Regulations shall be with full respect for the dignity, human rights and fundamental freedoms of persons'.

This provision links the IHR with human rights, thereby integrating the international human rights regime into the IHR's framework. In implementing the health measures contained in the IHR, states must therefore ensure that these measures are compatible with international human rights standards.

However, Article 3(1) does not set out the exact scope of the obligation to protect human rights in times of a PHEIC. It therefore serves mainly as a guideline or an interpretive principle. To some extent, the ambiguity is resolved by Article 3(2), requiring the IHR’s implementation to be guided by the Charter of the United Nations. However, the Charter incorporates a wide body of human rights documents and standards adopted within the UN framework, leaving the exact scope of the IHR’s human rights obligations ambiguo

Identifying the Scope of the Human Rights Obligation

This ambiguity could be clarified by amending the IHR to make explicit reference to three of the most fundamental human rights documents: the Universal Declaration of Human Rights (UDHR),the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). There are a number of rights issues which need to be clarified in IHR, either by reference to these documents or by explicit drafting.

Infringement or Derogation?

The IHR makes no distinction between the possible ways in which infringements on human rights could be justified. However, in situations where public threats such as the coronavirus affect the protection of human rights, the UDHR and ICCPR provide for two ways in which infringements on human rights may be justified. First, they can be limited where the infringement:

(i) is justified on grounds such as public health, public order, or other persons’ human rights;

(ii) is a response to a pressing public or social need;

(iii) pursues a legitimate aim; and

(iv) is proportionate to that aim.

Second, states may take measures derogating from their human rights obligations in times of public emergency. It is important for any future amendments to the IHR to distinguish between these two, as there are stricter criteria that must be met before a situation can be named as an emergency that allows for derogations in rights.

As it stands, for many states, the coronavirus has indeed been considered to be such a circumstance and has risen to the level of a public emergency so as to both limit and derogate from the rights to health, liberty, and privacy. Given the ambiguity of Art 3(1), it is unclear whether this was the intention of the IHR.

The Right to Health

The purpose of the IHR is to strengthen the capacity of national health systems to combat infectious diseases. Combating infectious diseases is a state obligation strongly connected to the right to health enshrined in Article 12 of  ICESCR, which recognizes ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ and requires states to take those steps necessary ‘for the prevention, treatment, and control of epidemic... diseases’.

However, as a precondition to exercising the right to health in individual cases, the strengthening of the capacity of national health systems is an unattained aim of the IHR – in other words, national health systems have not been maintained adequately to ensure the right in Article 12 ICESCR.

At the height of the outbreak in Wuhan, Amnesty International reported that the health system was overwhelmed, with health facilities and health workers struggling to cope with the sheer scale of the pandemic: patients were turned away from hospitals after queuing for hours, hospitals struggled to access the tests they needed, and public transportation shutdowns meant patients were unable to get to hospitals when they needed to and were unable to remove affected persons from their homes.

All states must ensure that persons affected by the coronavirus – and future pandemics - can access adequate health care. While containing the disease is important, prevention and treatment is also crucial, which is why the right to health must be an integral part of the response, and must be defined broadly to include access to healthcare and preparation for crises, not merely treatment of individual cases.

The Right to Liberty

Article 9 of the International Covenant on Civil and Political Rights (ICCPR) states that 'everyone has the right to liberty and security of person' and goes on to prescribe that no-one should be subject to arbitrary or unlawful deprivation of liberty. This provision applies to the freedom of bodily movement and the forceful detention of persons. These standards place limitations on the health measures states may take under the IHR.

Under the IHR, there are three levels of health measures which have an impact on the right to liberty:

(i) placing suspected persons under observation

(ii) imposing a quarantine or other similar health measures for suspected persons

(iii) isolating and treating affecting persons where necessary

These measures limit the liberty of a suspected or affected person, increasing in intensity from observation to isolation.

Articles 9 and 25 of the ICCPR therefore require that health measures follow certain standards. First, health measures must be based on lawful grounds and must not be arbitrary (per Article 9, ‘no one shall be subjected to arbitrary arrest’). Deprivation of liberty due to infectious diseases should only be for as long as necessary to eliminate reasons for the spread of a particular disease. Second, when an individual is deprived of their liberty, they should be informed of the reasons for doing so (again per Article 9, ‘anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest’) - for infectious diseases, health concerns must be the sole reason. Third, and most obviously, a detained person must have adequate medical examination, care, and treatment per the right to health.

However, for the thousands of people who were quarantined onboard the Diamond Princess cruise ship in Japan in February, human rights appeared to have become ‘a secondary concern during this pandemic’, according to Mark Eccleston-Turner, a lecturer on global health law who argued the measures imposed on the ship did not appear meet the standards in the ICCPR. This is primarily because the quarantine was arbitrary. Usually, only people who are known to have an infectious disease are quarantined while the vast majority of people on the cruise ship were not infected at the start of the quarantine, and the public health merits of the measure were questionable at best. 

All crew and passengers have now been disembarked from Diamond Princess, but the confusion of the episode shows a need for the WHO to take stronger a stance against such policies, while working to make the right to liberty – as set out in the ICCPR - explicit within the International Health Regulations.

The Right to Privacy

Under Article 12 of the UDHR, 'no one shall be subjected to arbitrary interference with his privacy' and everyone has 'the right to the protection of the law against such interference.’ The IHR does not specifically protect the right to privacy but under Article 17 of the ICCPR, all health measures that interfere with the right to privacy should be lawful, non-arbitrary, and proportionate to the intended purpose.

The IHR sets out multiple measures that states may take that interfere with an individual’s right to privacy, including:

(i) reviewing travellers' travel history

(ii) reviewing medical records of suspected or affected persons

(iii) tracing contacts of suspected or affected persons

(iv) requiring individuals to go through medical check-ups

(v) requiring individuals to be vaccinated or take other preventative measures

In taking these measures, Article 45(1) of the IHR provides that any personal data processed by states must be collected and received in a confidential way and processed in accordance with domestic law. However, an exception to this rule in Article 45(2) of the IHR allows states to disclose personal data in order to assess and manage a public risk. Yet to ensure compliance with the right to privacy, it is essential that this balancing act should be carried out to meet the standards of lawfulness, non-arbitrariness and proportionality as required by Article 17 of the ICCPR.

In order to control the coronavirus pandemic, Chinese health authorities and other stakeholders including airlines, rail operators, and property management companies collected large amounts of personal data, including data on recent travelers to Wuhan and those who have been in contact with affected persons. These collections of data have been handled in such a way as to be vulnerable to data breaches, leading to rising concerns over privacy as well as potential discrimination against people from Wuhan and Hubei Province.

Since the meaning of the right to privacy is not fully set out in the IHR, despite providing states with multiple avenues to infringe on that right, and in the face of these potential violations in practice, the current overly general references to human rights are no longer adequate.

Instead of providing a comprehensive framework for protecting human rights, the IHR alludes to rights as something external to the subject matter. Little wonder, then, that health and governmental authorities may perceive the protection of human rights as secondary in carrying out health measures against the coronavir

Conclusion

In managing the threat of the coronavirus, states will all too often invoke the derogations model and/or the limitations model of the human rights regime to allow for temporary infringements on human rights, without ensuring that all the conditions and guarantees from international human rights law also apply.

While the IHR only alludes to human rights, the draconian measures states have taken in responding to the coronavirus show the need for the integration of the international human rights regime into the legal framework of the IHR for the sake of clarity. The next step would then be to include these human rights standards in training and educating the public and health officials so that they apply not only in theory, but in practice, at the level of national public health systems.

Crucially, such practice would not only ensure respect for the autonomy of suspected and affected persons, but also prevent states from exceeding the boundaries of legitimate response to crisis, and subjecting these individuals to human rights violations during this and future pandemics.

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Tagged: Human Rights, International Law

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