-by Anushka Singh and Richa Hudilwala
The outbreak of COVID-19 has swept across the globe and has generated massive concerns over health worldwide. As marked by the United Nations Secretary-General, Antonio Guterres: “Coronavirus is a pandemic which is a human crisis that is fast becoming a human rights crisis”. Serious concerns over human rights violations such as censorship, discrimination, xenophobia, arbitrary detention etc. were reported in different parts of the world. Amnesty International stated that human rights violations hinder the response to public health emergencies and undercut their efficiencies. Importantly, the World Health Organization also remarked that the stay at home measure should not be practised at the expense of human rights.
This article highlights the international human rights law standards applicable to the current situation. It further analyses the diverse human rights aspects from a global perspective and argues that the competing interests of protecting citizens from a pandemic by adopting hard measures and at the same time ensuring that essential human rights of citizens are not curbed, must be balanced by adopting the proportionality principle.
Applicable International Human Rights Law Standards:
There can be no second opinion on the proposition that the current pandemic presents a challenge to the enjoyment of some of the most fundamental human rights: the right to life and the right to health. As per Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), everyone has the right to “the highest attainable standard of physical and mental health.” The UN has also proceeded to spell out duties of the States flowing from Article 12 of this treaty. The Siracusa Principles, adopted by the UN Economic and Social Council in 1984, and UN Human Rights Committee general comments on “states of emergency and freedom of movement” provide authoritative guidance on government responses that restrict human rights for reasons of public health or national emergency.
In other words, states have a due diligence obligation to protect the ‘right to life’ of individuals in times of outbreak of such deadly and life-threatening diseases such as COVID-19. The nexus between ‘right to life’ and ‘right to health’ is quite obvious but it becomes difficult to strike a balance between the two considering the multi-dimensional nature of the right to life. It is also difficult to harmonize the two with other human rights. For instance, measures of social distancing in the times of a pandemic clashes with a number of individual rights such as freedom of movement.
Furthermore, the closure of businesses and workplaces also has consequences on the enjoyment of the right to work, especially by workers in the informal economy. In that light, it becomes important to ask: are these measures legitimate under international human rights instruments? Interestingly, most human rights instruments (such as ICCPR and ECHR) stipulate that limitations on non-absolute rights are allowed when they are prescribed by law, pursuant to a legitimate aim and when such limitation is necessary for a democratic society and proportionate to the identified legitimate aim, meaning that no other less restrictive alternative is available. To understand these concerns better, state measures must be analyzed from diverse human rights aspects.
Diverse Human Rights Concerns in various Jurisdictions and State Responses:
1. Freedom of speech and expression and public access to appropriate information
According to the Universal Declaration of Human Rights 1949, everyone has the right to freedom of opinion and expression. This right includes freedom to seek, receive, and impart information and ideas through any source of media regardless of the frontiers. Freedom of expression and freedom to receive the appropriate information, acclaimed to be the most fundamental human rights universally, are being violated in various jurisdictions under the umbrella of prevention policy for COVID 19. The roll-out of the pandemic has led to the imposition of restrictions on Freedom of Press globally.
China was the most vigorous nation to curb the basic rights of the individuals by deliberately underreporting cases to the general public and refuting the probability of conveyance between humans. Officials censored detailing on the pandemic on social platforms and detained such users for “rumour-mongering”. The journalists were dismissed for publishing news critical of the Government’s strategy to control the COVID-19 outbreak.
Iran is not way behind in the infringement strategy of freedom of expression and suppression of the press. The discrepancies in reported cases by the officials are a cogent proof of the fact that there are numerous underreported cases in Iran. Thailand too failed to grasp the underlying significance of the free flow of press in informing the public about the outspread of the virus.
It should be kept in mind that these two rights must not be curbed at any cost as they allow for the constant monitoring of the legitimacy, necessity and proportionality of the containment measures taken by the government in relation to their impact on human rights.
2. Discrimination and xenophobia
COVID-19 has spurred fear leading to global anti-China sentiments and xenophobia. Reports state that people of Asian descent are being violently attacked due to the existing xenophobic views. US President, Trump had portrayed the virus to be a ‘Chinese virus’, contributing to the discrimination. The xenophobic views appeared to spread faster than the pandemic itself but were not limited to the US. Some reports state that Hong Kong based companies have refused to provide services to their Chinese customers. Discrimination does not find its end in these two countries but has spread rapidly all around the world. Such a worldwide equality crackdown is a sheer violation of the International Convention on the Elimination of Racial Discrimination.
Racial attacks were witnessed in India towards people of the North Eastern origin. they were spat on and were called ‘Coronavirus’. Reportedly, some of them were detained and quarantined even when no symptoms of the virus could be detected.
3. Protection of persons’ in custody and in other institutions
Enforcement of an individual’s right to liberty is violated by detention in a confined environment. Inmates have a right to be protected from all dangers in prisons. Contracting any disease is not a part of a prisoner’s sentence. The perils of getting infected with COVID-19 are very acute in prisons and other detention centres such as institutions for disabled and older people.
Notably, the Supreme Court of India took suo moto cognizance on the issue and directed all States to release inmates serving imprisonment up to seven years. Amnesty International reported extreme overcrowding and “inhumane conditions” in a Cambodian prison amid the coronavirus pandemic. For the containment of such human rights violations, states should make proper mechanisms for the redressal of prisoners’ concerns and ensure proper health facilities. “Authorities should examine ways to release those vulnerable to COVID-19, among them older detainees and those who are sick as well as low-risk offenders”.
4. Protection of migrant workers
A fundamental concern amidst the pandemic has been the plight of migrant workers. With the worldwide effect of lockdowns, many migrant workers were left jobless and were forced to march towards their homes miles away. The government of India is preparing a database of all the scattered migrant workers to provide them required urgent help. After periods of hard lockdown measures, the Indian government recently allowed conditional inter-state travel of migrant workers. Unfortunately, due to incoordination between the Central and State governments, the move has lead to devastating consequences for such workers. In these difficult times, the burden on police authorities and other institutions cannot be underestimated but at the same time ignorance to the trouble faced by these workers will lead to the serious human rights infringement.
As per UN recommendations, the nations should work in cooperation with the civil societies and should adhere to international human rights standards. Humane treatment should be given to such jobless and vulnerable groups of the society. To state simply, no one should be left behind in such difficult times.
Conclusion- The Need for Inherent and Procedural Safeguards:
The afore-mentioned concerns clearly highlight that there is a need to ensure that states do not carry out permanent, over-arching restrictions under the garb of ‘public health’ measures. A prime example in this regard would be that of Hungary where Prime Minister Viktor Orbán has assumed power to rule indefinitely by decree without the oversight of Parliament.
The authors believe that a two-fold strategy of employing inherent and procedural safeguards would help to maintain oversight. The principle of proportionality which prescribes that all statutes affecting human rights should be reasonable and proportionate will serve as the inherent safeguard. The proportionality test is mostly based on its necessity factor. The principle also extends to test whether certain combinations of right to enjoyment coupled with the achievement of other interests is acceptable or not. It is imperative for the countries to give effect to the proportionality principle and strike a balance between two competing interests; i.e., right to life and health and other fundamental human rights. All measures and actions should be subject to legislative and judicial oversight.
In India, to combat racial attacks amid the deadly virus, the suggestions put forward by the North East Students’ Organisation (NESO) should be adopted by the Chief Ministers of the North-Eastern states to actively liaise with their counterparts in other states so as to make sure that the perpetrators of hate crime are brought to book and any such unwanted incidents in future are completely avoided. Lastly, there is an immediate need to set up significant procedural safeguards with respect to the Disaster Management Act in India. Constitutional courts must register sue moto PILS and minutely monitor the operation of the DM Act and find redressal for all the provisions clashing with individual rights. Courts must maintain oversight over measures adopted by the state to avoid unscrupulous exploitation of the provisions of the Act, ensuring that a balance is struck between powers for combating the pandemic and rights of the individuals.
The views are personal.
Image Courtesy: Swarajya.
ABOUT THE AUTHOR
Anushka Singh and Richa Hudilwala are third year B.A.LL.B[Hons.] students at Dr. Ram Manohar Lohiya National Law University, Lucknow.