International Human Rights Law and the Response to the covid-19 Pandemic

In: Journal of International Humanitarian Legal Studies
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  • 1 Griffith University, Professor of Law, Nathan, Queensland, Australia

Abstract

States have duties under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights and Article 6 of the International Covenant on Civil and Political Rights to prevent, control and treat covid-19. Implementation of these three obligations is analysed, taking account of countervailing human rights considerations. Regarding prevention, lockdowns designed to stop the spread of the virus are examined. Control measures are then discussed, namely transparency measures, quarantine, testing and tracing. The human rights compatibility of treatment measures, namely the provision of adequate medical and hospital care (or the failure to do so), are then examined. Finally, derogations from human rights treaties in times of pubic emergency are discussed.

Abstract

States have duties under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights and Article 6 of the International Covenant on Civil and Political Rights to prevent, control and treat covid-19. Implementation of these three obligations is analysed, taking account of countervailing human rights considerations. Regarding prevention, lockdowns designed to stop the spread of the virus are examined. Control measures are then discussed, namely transparency measures, quarantine, testing and tracing. The human rights compatibility of treatment measures, namely the provision of adequate medical and hospital care (or the failure to do so), are then examined. Finally, derogations from human rights treaties in times of pubic emergency are discussed.

1 Introduction

States have taken numerous measures across the world to combat covid-19. These measures, such as lockdowns, quarantines, and the provision of emergency treatment in hospitals, have engaged important human rights issues.

Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights (icescr) requires States Parties to ‘take steps … for … prevention, treatment and control of epidemic … and other diseases.’ Given the deadly nature of covid-19, the need to combat it is also implied in the right to life in Article 6 of the International Covenant on Civil and Political Rights (iccpr). Some measures, which ostensibly implement Article 12(2)(c) (and Article 6) with regard to covid-19, have detrimentally affected the enjoyment of other human rights. Any assessment of the human rights compatibility of such measures must therefore take into account the extent of the impact on those countervailing rights.

In this article, I analyse the implementation of measures adopted to combat covid-19 and their human rights implications. First, Article 12(2)(c) icescr and Article 6 iccpr are explained insofar as they are relevant to covid-19. Second, a brief history of the trajectory of covid-19 across the world is outlined. The paper then examines the key measures of implementation of Articles 12(2)(c) and 6 in terms of the requirements to prevent, control and treat covid-19, taking account of countervailing human rights considerations. Regarding prevention, lockdowns designed to stop the spread of the virus are examined. Control measures are then discussed, namely transparency requirements, quarantine, testing and tracing. The human rights compatibility of treatment measures, namely the provision of adequate medical and hospital care (or lack thereof), are then examined. Finally, derogations from human rights treaties in times of pubic emergency are discussed. The article then concludes.

It is necessary to outline some caveats to this article. I will use the two International Covenants as the touchstone for the definition of relevant human rights. These two treaties cover a broad range of rights and are recognised globally. Second, it is not possible to focus on all of the human rights issues that arise, so I will concentrate on those issues affecting the population at large, rather than sectoral rights, despite the undoubted importance of the latter. Finally, the covid-19 pandemic is a recent and ongoing event as I write: the article reflects the situation as at 10 June 2020.

2 The Obligation to Combat Epidemic Diseases

States have positive obligations under international human rights law to take steps to combat pandemics. In particular, Article 12(2)(c) of the icescr, an aspect of the general Article 12 obligation to ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,’ demands that States ‘take steps … for … prevention, treatment and control of epidemic … and other diseases.’

icescr obligations are however limited under Article 2(1), which states:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means ….

Hence, icescr obligations vary according to a State’s available resources. More is generally expected of richer States than poorer States. Furthermore, obligations are progressive rather than immediate. States are required to improve their implementation of the icescr over time, and to take steps in good faith to that end. The separate obligation of non-discrimination in Article 2(2) is not progressive, hence States must ensure that any measures taken to combat the virus are non-discriminatory.1

Regarding the right to life in Article 6, the monitoring body under the iccpr, the Human Rights Committee (hrc), has said that States ‘should take appropriate measures to address the general conditions in society that may give rise to direct threats to life,’ including ‘the prevalence of life-threatening diseases.’2 Article 6 engages a stronger obligation provision in Article 2(1) iccpr, compared to the corresponding provision of the icescr. It is an immediate obligation which is not subject to available resources. Nevertheless, this aspect of Article 6 encompasses a ‘due diligence’ obligation of conduct rather than result. Measures taken must be appropriate and reasonable, and may therefore be legitimately shaped by what a State is able to do within resource constraints. Furthermore, this aspect of Article 6 is qualified by the hrc’s use of the word ‘should,’ which reflects the language of aspiration rather than hard obligation.3 Hence Article 6, in this respect, may not be more onerous than Article 12(2)(c).

The covid-19 pandemic was perhaps not itself predictable. Nevertheless, States should not have been taken completely by surprise. After all, several new deadly viruses have emerged over the last three decades, such as sars, mers, and hiv-aids, alongside the reappearance of rare and dangerous epidemics such as Ebola in West Africa. In any case, the predictability of the covid-19 trajectory increased as it spread across the world. Under international human rights law, States must take measures under Article 12(2)(c) icescr and Article 6 iccpr to be as prepared as is reasonably possible to cope with the advent of new serious infectious diseases, and must adjust their strategies appropriately as more becomes known about any such disease, such as covid-19.

3 A Brief History of covid-19

The novel coronavirus, covid-19, seems to have emerged in the city of Wuhan in Hubei province of China by early December 2019. By 1 March 2020, China had officially recorded over 80,000 cases and nearly 3000 deaths.4 From China, major outbreaks erupted in South Korea and Iran. By mid-March, the epicentre of the pandemic had shifted to Europe.5 In particular, Italy’s caseload had escalated exponentially by mid-March, with tens of thousands of cases and thousands of deaths. Italy’s plight, which was more transparent than China or Iran, and more serious than South Korea, revealed the extreme lethal danger of covid-19 to the world. Tragedies of a similar scale to Italy followed in Spain and France. As of 10 June 2020, the UK has the highest death toll in Europe. After Europe, the epicentre shifted to North America; the United States now has the highest official caseload and death toll in the world, reaching 100,000 dead in late May 2020. At the time of writing, cases and deaths were surging in South America, many parts of Asia, and, albeit at an apparently lower rate, Africa. Cases in Europe, as had occurred in China beforehand, were decreasing. Some States appeared to be experiencing a resurgence of cases, a so-called ‘second wave’.6

covid-19 is a highly infectious disease that has become one of the most common causes of death across the world in the first half of 2020.7 While the vast majority of those infected do not die, and most can recover at home, the long-term consequences of the infection are unknown. States have human rights obligations to take appropriate measures to prevent, control and treat covid-19. It is to these obligations that I now turn.

4 Prevention Measures: lockdowns

The most common measure adopted by States for preventing covid-19 infection is to impose lockdown measures to prevent person-to-person infection. Lockdown measures have fundamentally changed day to day life. Borders have been closed. Social distancing is mandated, whereby people must keep a certain distance from each other. The reasons for which one is allowed to leave home have been heavily restricted. Many, and in some States most, businesses have been shuttered for months.

The nature of lockdown measures have been similar, but the levels of strictness have varied. China, for example, reportedly imposed extreme measures in Wuhan, including the forced separation of families and even the welding of doors shut.8 For a time, Italy and Spain prohibited people from going outside to exercise. Australia has had less strict lockdown measures than many States, with outdoor exercise permitted and a broader range of businesses remaining open. The levels of strictness have generally, but not always, reflected the seriousness of the outbreak in a particular State. As an exception, New Zealand, which has never had a high caseload, had some of the world’s strictest measures for a time in an attempt to eliminate the virus on its soil. New Zealand declared itself covid-19 free on 7 June 2020.9

The failure to adopt lockdown measures to combat covid-19 likely breaches the positive duties of States to protect the rights to health and life.10 No government should have been unaware of the magnitude of the virus’s danger after the catastrophic reports from Italy in early March. Most States have implemented lockdown measures, though questions may be asked regarding the timeliness in which some of them did so.11

Sweden has stood out as a State which never imposed a strict lockdown, though it has implemented some social distancing measures. Sweden’s strategy has meant that less economic damage (discussed below) has arisen. Furthermore, a greater rate of infection might mean a greater rate of immunity. However, Sweden’s rates of infection and numbers of deaths are exponentially higher than those of its Scandinavian neighbours, which implemented strict lockdown measures. Sweden’s rate of infection is believed to be one of the highest in the world, yet studies indicate that it is a long way from ‘herd immunity,’ wherein spread slows to a trickle due to widespread societal immunity from infection.12 The Swedish policy, especially given its months of continuation despite the medical evidence of huge numbers of sick and dead compared to like States, can probably be seen as a breach of Sweden’s obligations regarding rights to health and life.

Nevertheless, lockdowns cannot be uniformly presumed to comply with human rights, as they entail extraordinary restrictions on countervailing human rights.

Economic social and cultural rights are severely affected by the lockdowns. Millions have been deprived of their livelihoods, threatening rights to work (Article 6 icescr) and an adequate standard of living (Article 11 icescr). As another example, the right to education in Articles 13 and 14 has been affected by school closures.

Article 4 of the icescr 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.’ icescr rights are also inherently limited by the availability of resources and the progressive nature of most of its obligations. Despite the qualifications to icescr rights in Article 2(1), States are expected to ‘take steps’ and move forward. There is a presumption against retrogressive measures, as steps must be ‘duly justified by reference to the totality of the rights provided for in the Covenant.’13 The lockdowns are retrogressive measures, but they are arguably justified in order to promote public health and the right to life in a pandemic. Such justification, and compatibility with icescr rights, is unlikely unless governments have made available extensive economic rescue packages to alleviate the impacts of lockdowns.14 As explained by the Committee on Economic, Social and Cultural Rights, the body which supervises and monitors implementation of the icescr, in an April statement on covid-19:

States parties are under an obligation to devote their maximum available resources to the full realization of all economic, social and cultural rights, including the right to health. As this pandemic and the measures taken to combat it have had a disproportionately negative impact on the most marginalized groups, States must make every effort to mobilize the necessary resources to combat covid-19 in the most equitable manner, in order to avoid imposing a further economic burden on these marginalized groups. Allocation of resources should prioritize the special needs of these groups.15

The lockdowns also interfere with iccpr rights, including freedoms of movement (Article 12 iccpr), assembly (Article 21 iccpr), and association (Article 22 iccpr). Separation of families implicates family and children’s rights (Articles 23, 24 iccpr); bans on religious gatherings raise issues regarding the right to freedom of conscience and religion (Article 18 iccpr); and court closures and trial delays have detrimentally affected the right to a fair trial (Article 14 iccpr).

Most civil and political rights can be limited in certain circumstances. A general requirement for limitations to iccpr rights is that they be prescribed by law, which means that restrictive measures must be established in an accessible and circumscribed law.16 In this regard, concerns over English measures were expressed in a briefing paper from the Chair of the Parliamentary Joint Committee on Human Rights in the UK Parliament.17 The Health Protection (Coronavirus Restrictions) (England) Regulation 2020 mandated that people could not go outside without ‘a reasonable excuse.’ Yet the English measures were unclear and vested too much discretion in police officers as to how they were to be enforced. The requirements of the regulation were also muddied by confusing and contradictory statements by the government and inconsistent enforcement by police. Similar problems have arisen in Australia,18 including evidence of the disproportionate and therefore potentially arbitrary targeting of Indigenous peoples and racial minorities by police enforcing covid-19 regulations.19

Limitations to civil and political rights must also be necessary for the achievement of certain legitimate (and often enumerated) ends.20 The lockdown measures have been implemented for the legitimate objective of protecting public health, and the protection of countervailing rights to health and life.

Lockdown measures must still be proportionate to the goal of saving lives and preserving health. Even the right to life in Article 6(1) of the iccpr is a right which is qualified by proportionate limits. One must not be ‘arbitrarily’ deprived of life, so non-arbitrary deprivations are permissible. The right to life can therefore legitimately be balanced against other rights, including during the covid-19 crisis. Of course, the nature of the right to life indicates that fewer interferences thereto are tolerable compared to other rights. Nevertheless, all States routinely balance the interest in preserving life against other societal benefits in their calibration of numerous everyday policies, such as those regarding speed limits, and those banning or permitting dangerous activities.21

Under international human rights law, lockdowns can be adjusted to increase the enjoyment of other rights, even though any relaxation might increase the spread of covid-19 infections and associated fatalities. Indeed, an easing of lockdowns has been happening in many States to varying degrees since May 2020 as caseloads have decreased. The question becomes one of just how much increased sickness and death, or risk thereof, is permissible under international human rights law.

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.’22 Decisions regarding lockdowns and their easing must take into account the prevalence of the relevant outbreak, the availability of public health resources to treat the disease (discussed below), the nature of the lockdown measures, alternative protections for those most at risk, and the nature of the countervailing rights at issue.

Certain measures taken during lockdowns seem like blatant breaches of human rights, as they bear little relationship to the goal of combating covid-19. For example, most States have suspended in-person legislative proceedings. Such measures seem reasonable, given that parliamentary proceedings can entail large gatherings as well as travel, both of which may spread the virus. However, States ought to make use of technology, such as online meetings, to ensure continued legislative oversight of executive action. The suspension of all legislative activity and oversight is not necessary, and would breach the right to political participation in Article 25(a) iccpr. With regard to that right, the hrc has stated:

Where citizens participate in the conduct of public affairs through freely chosen representatives, it is implicit in article 25 that those representatives do in fact exercise governmental power and that they are accountable through the electoral process for their exercise of that power.23

Hence, for example, the suspension of Parliament in Hungary, along with the conferral of open-ended emergency powers on Prime Minister Viktor Orban, is unnecessary, disproportionate and in breach of Article 25.24

Some rights may never be limited, such as the right to be free from torture and ill treatment in Article 7 iccpr. Any ‘limitation’ to that right breaches the relevant human rights provision, as no exceptions are permitted. Such breaches might arise, for example, if a lockdown prohibited a person from escaping violence from a household member.25 As another example, some of the Chinese measures mentioned above could breach the absolute right to be free from inhuman and degrading treatment.26

There have been a number of domestic court decisions regarding human rights challenges to certain lockdown measures. As an example, blanket bans on assemblies larger than two people were found to breach the constitutional right to freedom of assembly in Germany in April.27 In contrast, Californian bans on church congregations were narrowly upheld by the US Supreme Court in late May, which found that the measures did not breach the constitutional right to freedom of religion.28

5 Control of covid-19

In the words of Article 12(2)(c) of the icescr, States must take measures to control the spread of the virus. Below, I consider the following control measures: transparency, quarantine, testing and tracing.

5.1 Transparency

States must not withhold ‘information vital to health protection.’29 A key element of any control strategy must be the provision to the public of appropriate information about covid-19.30 Such information includes messaging about basic protection measures (e.g. regular washing of hands), and the release of reliable figures regarding the numbers of tests for covid-19, positive test outcomes, and deaths. On 7 June 2020, the Bolsonaro government in Brazil limited the release of covid-19 data, which breached obligations regarding control of the pandemic. That situation was swiftly remedied by an order from Brazil’s Supreme Court.31

Misinformation from a government, which might lull people into false senses of security, also undermines control measures.32 Hence, blithe dismissals of the seriousness of covid-19 by leaders such as the US’s Donald Trump and Brazil’s Jair Bolsonaro have been counterproductive,33 and have undermined fulfilment of human rights obligations.

The US has accused China of withholding information at the outset of the pandemic.34 While China warned the World Health Organisation (who) about ‘44 patients with pneumonia of unknown etiology’ on 31 December 2019,35 there are credible reports that Chinese authorities suppressed important information relating to the virus, and delayed the timely release of information about human-to-human infection and its virulence.36 The government’s instinctive suppression of bad news, and the tight control of information exercised by central authorities, may have caused crucial delays in the reporting of the true nature of the outbreak.37 If so, it cost lives in Hubei province and meant that China failed to provide a timely alert to the world of those dangers, contrary to its extraterritorial obligations under Article 12 of the icescr. Regarding the latter obligations,38 the Committee on Economic, Social and Cultural Rights in its covid-19 stated:

Pandemics are a crucial example of the need for scientific international cooperation to face transnational threats. Viruses and other pathogens do not respect borders. If adequate measures are not taken, a local epidemic can very quickly become a pandemic with devastating consequences. The role of the World Health Organization (who) in this field is fundamental and should be supported. Combating pandemics effectively requires stronger commitments from States to international cooperation, as national solutions are insufficient. Enhanced international cooperation should increase the preparedness of States and of international organizations, especially who, to respond to pandemics, for instance by sharing scientific information on potential pathogens. It should also improve early warning mechanisms, based on timely and transparent information provided by States on emerging epidemics that have the potential to become pandemics. This would allow early interventions, based on the best scientific evidence, aimed at controlling these epidemics and preventing them from becoming a pandemic.39

5.2 Quarantine

A common global control measure has been the quarantining of infected persons. Certain other groups have also been quarantined. For example, in Australia, people entering from overseas are compulsorily quarantined in hotels for 14 days.40 Such measures amount to a form of detention, which is a severe restriction on freedom of movement. Detention is permissible under Article 9(1) of the iccpr if it is authorised by law and is not ‘arbitrary’, thus manifesting another requirement of proportionality.

The compulsory quarantining of a person confirmed to be infected with covid-19 is not arbitrary while they remain infectious, as such a person clearly poses a high risk of infecting others. The quarantining of other people is more controversial. However, it is submitted that the Australian measure is not arbitrary. The vast majority of Australian cases thus far have arisen from people who have returned from abroad. It appeared that numerous returnees had failed to properly isolate themselves at home as was required under previous regulations. The 14 day limit corresponds with the outer limit of the standard incubation period for a covid-19 infection. It is arguable that the hotel quarantine measure, adopted in March 2020, was the most important factor in halting the surge in Australian cases, and minimising community spread.41 Furthermore, the government pays for the hotel stays, which ameliorates the harm. Hotel quarantine also accords with the requirement of ‘humane treatment for detainees’ under Article 10 iccpr.42 It is submitted that the Australian measures are likely not in breach Article 9(1) either.

Indeed, the UK imposed quarantine requirements on incoming arrivals only in early June 2020 after its covid-19 outbreak had become one of the worst in the world, despite the adoption of such measures in most of its European neighbours.43 It is arguable that the UK’s delay in implementing such measures breached its positive obligations with regard to health and life.

5.3 Testing and Tracing

Another control measure has been the implementation of testing and tracing regimes. Testing identifies whether a person is infected with covid-19. Some States have deceptively low official caseloads due to a lack of testing.

Many of the States which have been most successful in containing the virus thus far engaged in extensive early testing, including Australia, Vietnam, Iceland, Norway, Estonia, South Korea, Singapore and Germany. Testing enables tracking, tracing, and isolation of cases and close contacts, which stops the spread of covid-19.

Hindsight demonstrates that early mass testing is a key strategy in fulfilling the right to health while fighting covid-19. Such an outcome was predictable, as testing enables a government to identify those likely to spread infection, and their close contacts. Some States, such as the US and the UK, fumbled their initial testing strategies. Such failures facilitated the initial stealthy and far-reaching spread of the virus, rendering any later contact tracing almost impossible.44 It is arguable that those failures regarding early testing amounted to breaches of these States’ human rights obligations regarding health and life.

Contact tracing raises issues of right to privacy, recognised in Article 17 iccpr. Article 17(1) prohibits ‘arbitrary’ interferences with privacy, hence non-arbitrary and proportionate interferences are permissible. Under Article 17(2), States must protect people from attacks on their privacy by law.

Contract tracing in some States is being facilitated by apps on smart phones. Such apps work by storing and communicating information about one’s whereabouts and proximity to confirmed covid-19 cases, which entails some compromising of privacy. Some interference with privacy is proportionate if the interference in fact helps to protect public health by controlling the spread of covid-19. In that respect, the efficacy of such apps is presently uncertain.

Privacy problems often crystallise with the use of new technology after its widespread deployment.45 It is fair to anticipate the same pattern arising with regard to covid-19 tracing apps. Privacy concerns may arise regarding the security of the storage of the data, alternative uses of the data by government, the ways in which such data might be susceptible to de-anonymisation, the extent to which data might be collected which is not relevant to stopping the spread of covid-19, and the possibility that people might effectively be coerced into using such apps (e.g. by the denial of access to certain places without it). At the least, privacy safeguards must be built into the design of such apps. For example, data must be expunged once it ceases to be of any use in combating covid-19. ‘Mission creep,’ whereby increased surveillance and tracking is accepted during the pandemic but continues for alternative purposes after its end, must be averted.46

Finally, as discussed below, lockdown measures are an important control measure as well as a prevention measure.

6 “Treatment” Measures

States must take appropriate measures to provide treatment to those with covid-19, in order to facilitate recovery where needed and save lives.

Lockdown measures are discussed above regarding their prevention function. Another aim of lockdown measures is to control the virus and reduce the flow of cases, thereby preventing their numbers from overwhelming a State’s hospital system.

In some instances, however, States have been unable to sufficiently control the virus so as to prevent crises within their public health systems. Failures in prevention and control of the pandemic led to failures in the treatment of covid-19 patients. For example, the public hospital system in Lombardy, the Italian province worst hit by covid-19, was unable to cope with the deluge of cases in March 2020. There was a shortage of intensive care (icu) beds as well as necessary equipment, especially ventilators.47 This fact likely increased deaths in the region from both covid-19 and non-covid related causes.

In various European States, patients were reportedly kept out of hospital and were instead treated in care homes or transferred from hospitals to care homes. This practice led to the extensive spread of covid-19 in care homes amongst older persons, who are the demographic group most vulnerable to fatal outcomes. Indeed, care homes may account for half of Europe’s dead.48

Medical staff have become disproportionately infected, with a large number dying in Italy, the UK and the US.49 Their vulnerability is driven by their necessary proximity to sources of infection. However, their vulnerability has been exacerbated by a lack of appropriate personal protective equipment (ppe) in a number of States.50 This lack of preparedness prejudices the rights to life and health of the relevant staff, and the rights to health of the whole population which needs its trained hospital staff.51 The failure is especially egregious in those States, such as the US and the UK, that had notice from Italy of the need to urgently stockpile and distribute ppe equipment.52

The health systems in a number of developed States, where more resources are available than in developing States, were unable to adequately cope with the case load during the first months of the pandemic. In this respect, the Committee on Economic Social and Cultural Rights said, in its April 2020 statement on covid-19, that:

Health-care systems and social programmes have been weakened by decades of underinvestment in public health services …, accelerated by the global financial crisis of 2007–2008. Consequently, they are ill equipped to respond effectively and expeditiously to cope with the intensity of the current pandemic.53

The Committee indicates that several States failed to comply with Article 12 obligations in relation to the need to prepare adequately for a possible pandemic.

While States must do what they can to increase hospital capacity to address the covid-19 threat, no State has unlimited health resources. This inevitability is conceded by icescr obligations being qualified by a State’s ‘maximum available resources.’ Alarming stories emerged from Italy (and later other States) of doctors having to choose those who would be given icu beds and access to ventilators, and those who would not, likely condemning the latter to die.54 If rationing must occur, on what basis are doctors to make the choice as to who receives and who does not receive treatment? Reports have indicated that older patients are being refused certain treatment in favour of younger patients in some States.55

On 26 March 2020, the UN special rapporteurs issued a joint statement in which they stated that ‘everyone has the access to life-saving interventions,’ and that resource scarcity must not be a reason to discriminate against vulnerable groups.56 The UN statement indicates that a crude exclusion on vulnerable grounds such as age or disability is contrary to human rights.

Some guidance may be gleaned from Soobramoney v Minister of Health, KwaZulu-Natal,57 a decision of the Constitutional Court of South Africa regarding the rationing of scarce health resources. The provincial government of KwaZulu-Natal could not provide free kidney dialysis to all who needed it, so it distinguished between patients on the basis of their health status. As a sufferer of chronic irreversible kidney disease alongside other serious conditions, Mr Soobramoney was denied dialysis. The Constitutional Court rejected his argument that the denial breached his constitutional rights to emergency health care, health and life. The Constitutional Court found that the basis upon which he was denied dialysis was reasonable and rational,58 and therefore not a breach of his human rights. This was so even though the lack of dialysis would hasten his death.

Soobramoney indicates that the denial of an icu bed or ventilator to a person on the basis that they are less likely to survive than another who is allocated access is a human rights-compliant basis for that allocation. That decision should not be based purely on an element of a person’s status, such as age. However, older age is an aggravating factor that increases a person’s chance of dying from covid-19.59 Hence, it may be reasonable for age to be one factor upon which scarce resources are allocated.

However, while Soobramoney might provide guidance on the rationing of health resources, it does not itself justify governmental decisions regarding the overall availability of relevant resources, both before and during the covid-19 crisis. The Constitutional Court of South Africa did not investigate whether the total amount allocated for kidney dialysis in the province and the nation was reasonable, deferring to the government on that issue.60 A more rigorous investigation of the reasonableness of a health rationing decision would take into account not only the basis of the triaging choices, but the overall reasonableness of the budget allocated for the rationed good or service.61

7 Derogations

The covid-19 pandemic is an extraordinary crisis. International human rights law provides a mechanism for addressing human rights in crises, known as derogation. Derogation is not relevant, for reasons explained below, to Article 6 iccpr or Article 12 icescr. However, it is relevant to countervailing rights such as the rights to freedom of movement, privacy, assembly, association, and political participation.

Article 4 of the iccpr permits States Parties to derogate temporarily from iccpr obligations in times of public emergency. Article 4(1) reads:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

Derogations are only permitted in extreme circumstances. The covid 19 pandemic satisfies the description of a relevant ‘public emergency.’

There are rights from which a State may never derogate, listed in Article 4(2). Article 6, the right to life, is such a non-derogable right.

Article 4(3) requires the State to notify the UN of any derogation. As of 10 June 2020, 14 States, mostly from Latin America and Eastern Europe,62 had submitted formal notices of derogation in respect of covid-19 measures. It may be noted that it is largely the same States who have made derogations to relevant regional treaties.63 Hence, the vast number of States with lockdown measures have not formally derogated from any obligations under the iccpr. The hrc has suggested that some other States have derogated in practice from the iccpr, but have not yet alerted the UN, and are therefore in breach of Article 4(3).64

Derogation is subject to the principle of proportionality, as relevant measures may only be applied ‘to the extent strictly required by the exigencies of the situation.’ As noted above, the limits to most civil and political rights are also assessed by reference to the principle of proportionality. It is difficult to understand how a derogation would ever be needed in respect of a right that can be limited by proportionate measures anyway. Both the derogation and the limits must be proportionate in order to be valid. A difference could exist if a different test of proportionality applied to derogations compared to limitations. Yet there is no evidence that that is the case.65 Indeed, the hrc has itself indicated that derogations are not necessary if limitations are otherwise permitted to an iccpr right:

States parties should not derogate from Covenant rights or rely on a derogation made when they can attain their public health or other public policy objectives through invoking the possibility to restrict certain rights, such as Article 12 (freedom of movement), … or Article 21 (the right to peaceful assembly), in conformity with the provisions for such restrictions set out in the Covenant, or through invoking the possibility of introducing reasonable limitations on certain rights, such as Article 9 (right to personal liberty) and Article 17 (right to privacy), in accordance with their provisions.66

Thus, the real utility for States of derogation may only be when they are applied to rights which are of an absolute nature. Yet most of the absolute rights, such as Article 7 mentioned above, are in fact non-derogable under Article 4(2). It may be that derogation has limited practical applicability.

There is no derogation clause in the icescr. The inherent limits to icescr rights contained within Article 2(1) and 4 were presumably deemed to suffice, even in times of public emergency such as the covid-19 pandemic. Indeed, it is notable that a derogation provision is also absent from most global human rights treaties.

8 Conclusion

covid-19 has caused a global public health emergency, a global economic emergency, and a global human rights emergency. States have obligations under international human rights law to be adequately prepared in the event of a pandemic, and to take reasonable measures to combat covid-19. Most States have responded to covid-19 by enforcing measures such as lockdowns, quarantines, testing and tracing strategies. States must balance rights to health and life against the many rights detrimentally affected by their pandemic response measures, including almost all economic, social, cultural, civil and political rights.

Many States have so far managed to prevent large numbers of deaths, including developing States and territories in very close proximity to the initial outbreak such as Vietnam, Hong Kong and Chinese Taipei. These States, and other States that have been comparatively successful, such as Australia and Estonia, demonstrate that catastrophe was not inevitable. The huge numbers of fatalities, and the extent of hospital crises, especially in States which had notice of the Italian situation such as the UK and the US, indicates that those States failed to fulfil relevant human rights obligations regarding this pandemic. The pandemic is not yet over, so hopefully all States will learn from their own successes and mistakes, and those of others, during the ongoing crisis.

Finally, while the covid-19 pandemic is arguably the worst global crisis since World War ii, it is not clear that the possibility of derogation from human rights obligations adds much, if anything, to the arsenal of States in taking measures to combat the virus. Most States may agree, given the majority have not formally derogated from their iccpr obligations.

1

Committee on Economic, Social and Cultural Rights ‘General Comment 20’ in ‘Non-­discrimination in Economic, Social and Cultural Rights’ (2 July 2009) UN doc E/C.12/GC/20, para 7. Note that the other putative immediate icescr obligation, the “minimum core” of each right, is not discussed in this article.

2

Human Rights Committee ‘General Comment 36’ in ‘Article 6 of the International Covenant on Civil and Political Rights, on the right to life’ (30 October 2018) UN doc ccpr/C/GC/36, para 26.

3

Sarah Joseph, ‘Extending the Right to Life under the International Covenant on Civil and Political Rights: General Comment 36’ (2019) 19 Human Rights Law Review 347, 356–357.

4

All figures in this article are taken from the Worldometers Coronavirus site at https://www.worldometers.info/coronavirus/. Note that statistics for all States regarding covid-19 are dependent on government sources. Official figures may be skewed by variables such as rates of testing, and the ways in which causes of death are officially recorded and determined.

5

Stephanie Nebehay, ‘Europe is the new epicenter of coronavirus: who,’ (Reuters, 13 March 2020) <www.reuters.com/article/us-health-coronavirus-who/europe-is-epicenter-of-coronavirus-pandemic-who-idUSKBN2102Q0>.

6

For example, a resurgence of cases is evident from the figures released by Iran: see Patrick Wintour, ‘Iran cases hit record high in second wave of coronavirus,’ (Guardian, 4 June 2020) <www.theguardian.com/world/2020/jun/04/iran-faces-crisis-amid-record-number-of-daily-coronavirus-infections>.

7

The Economist, ‘Covid-19 has become one of the biggest killers of 2020’ (The Economist, 1 May 2020) <www.economist.com/graphic-detail/2020/05/01/covid-19-has-become-one-of-the-biggest-killers-of-2020>.

8

Kim Hjelmgaard et al, ‘This is what China did to beat coronavirus: Experts say America couldn’t handle it’ (usa Today, 1 April 2020) <www.usatoday.com/story/news/world/2020/04/01/coronavirus-covid-19-china-radical-measures-lockdowns-mass-quarantines/2938374001/>.

9

bbc, ‘New Zealand lifts all Covid restrictions, declaring nation virus-free,’ (bbc, 8 June 2020) <www.bbc.com/news/world-asia-52961539> New Zealand has however reported a small number of new cases since that date.

10

UN Human Rights Committee, ‘Statement on derogations from the Covenant in connection with the covid-19 pandemic’ (24 April 2020) UN doc ccpr/C/128/2, para 2.

11

For example, regarding the UK, see Nick Triggle, ‘Coronavirus: lockdown delay “cost a lot of lives”, says science adviser’ (bbc, 7 June 2020) <www.bbc.com/news/uk-politics-52955034>.

12

Niceletta Lanese, ‘Sweden’s lax covid-19 response causes too many deaths, country’s top epidemiologist says’ (Live Science, 6 June 2020) <www.livescience.com/results-of-sweden-covid19-response.html>.

13

See e.g. UN Committee on Economic Social and Cultural Rights, ‘General Comment 18: The Right to Work (Article 6)’ (date??) UN doc E/C.12/GC/18, para 21.

14

The adequacy of such financial assistance measures, which have been adopted by numerous State but differ greatly between them, is beyond the scope of this article.

15

UN Committee on Economic, Social and Cultural Rights, ‘Statement on the coronavirus disease (covid-19) pandemic and economic, social and cultural rights’ (6 April 2020) UN doc E/C.12/2020/1, para 14. Note, for example, that interferences with the right to education entailed in school closures could be offset to an extent by the provision of internet facilities to students who lacked them, to facilitate equal access to online learning.

16

See e.g. UN Human Rights Committee, ‘General Comment 34: Article 19 – Freedom of Opinion and Expression’ (12 September 2011) UN doc ccpr/C/GC/34, paras 24–25.

18

Jordan Baker, ‘Not black and white”: Lawyers warn fines for public health breaches could fall over in court’ (Sydney Morning Herald, 13 April 2020) <www.smh.com.au/national/nsw/not-black-and-white-lawyers-warn-fines-for-public-health-breaches-could-fall-over-in-court-20200411-p54j1v.html>.

19

Osman Faruqi, ‘Compliance fines under the microscope,’ (The Saturday Paper, 18 April 2020) <www.thesaturdaypaper.com.au/news/health/2020/04/18/compliance-fines-under-the-microscope/15871320009710>.

20

iccpr limits are often explicitly circumscribed in clawback clauses. Alternatively, they may be expressed in more general language, as is the case with Articles 6 and 17, discussed below.

21

See e.g. Hassan Vally, ‘What’s most likely to kill you? Measuring how deadly our daily activities are’ (The Conversation, 22 February 2017) <theconversation.com/whats-most-likely-to-kill-you-measuring-how-deadly-our-daily-activities-are-72505>.

22

In any case, the sheer numbers of dead would not be in the psychological or economic, let alone moral, interests of the majority.

23

Human Rights Committee, ‘General Comment 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art 25)’ (12 July 1996) UN doc ccpr/C/21/Rev.1/Add.7, para 7.

24

Frank Suyak, ‘Hungarian mep defends Viktor Orban’s emergency powers’ (DW, 21 May 2010) <https://www.dw.com/en/hungarian-mep-defends-viktor-orbans-emergency-powers/a-53522400>.

25

See also Tammy Mills, ‘New reports of family violence spike in covid-19 lockdown, study finds,’ (The Age, 8 June 2020) <www.theage.com.au/national/victoria/new-reports-of-family-violence-spike-in-covid-19-lockdown-study-finds-20200607-p55096.html>.

26

China is not a party to the iccpr, but it has relevant obligations under the Convention against Torture, Cruel and other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; and customary international law.

27

Joseph Nasr, ‘Germans have right to protest during pandemic: court’ (Reuters, 16 April 2020) <www.reuters.com/article/us-health-coronavirus-germany-protests/germans-have-right-to-protest-during-coronavirus-pandemic-court-idUSKCN21Y220>.

28

South Bay Pentecostal Church et al v Newsom, Governor of Califonia 590 US (2020).

29

Committee on Economic, Social and Cultural Rights ‘General Comment 14: The Right to the Highest Attainable Standard of Health (Art. 12)’ (11 August 2000) UN doc. E/C.12/2000/4, para 50.

30

Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression ‘Disease pandemics and the freedom of opinion and expression’ (23 April 2020) UN doc A/hrc/44/49, para 20.

31

Marcelo Silva da Sousa, ‘Bolsonaro government ordered to publish Brazil’s full covid-19 toll’ (Sydney Morning Herald, 10 June 2020) <www.smh.com.au/world/south-america/bolsonaro-government-ordered-to-publish-brazil-s-full-covid-19-toll-20200610-p55126.html>.

32

See also Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, above note 30, paras 47.

33

See e.g. Sharon Lerner, ‘Trump’s deadly mistake in comparing Coronavirus to flu’ (The Intercept, 25 March 2020) <theintercept.com/2020/03/25/coronavirus-flu-comparison-trump/>.

34

Andrew Jacobs et al, ‘US-China Feud over Coronavirus erupts at World Health Assembly’ (New York Times, 18 May 2020) <www.nytimes.com/2020/05/18/health/coronavirus-who-china-trump.html>.

35

World Health Organisation, ‘Disease outbreak news’ (who, 5 January 2020) <www.who.int/csr/don/05-january-2020-pneumonia-of-unkown-cause-china/en/>.

36

See e.g. Chris Buckley and Steven Lee Myers, ‘As new Coronavirus spread, China’s old habits delayed fight’ (New York Times, 1 February 2020) < www.nytimes.com/2020/02/01/world/asia/china-coronavirus.html>; Verna Yu, ‘If China valued free speech, there would be no coronavirus crisis’ (The Guardian, 8 February 2020) <www.theguardian.com/world/2020/feb/08/if-china-valued-free-speech-there-would-be-no-coronavirus-crisis>; Associated Press, ‘China didn’t warn public of likely pandemic for 6 key days,’ (Associated Press, 15 April 2020) <apnews.com/68a9e1b91de4ffc166acd6012d82c2f9>.

37

See also Paul Gardner, ‘China’s coronavirus coverup: how censorship and propaganda obstructed the truth’ (The Conversation, 7 March 2020) < theconversation.com/chinas-coronavirus-cover-up-how-censorship-and-propaganda-obstructed-the-truth-133095>.

38

China is not a party to the iccpr, so it has no extraterritorial obligations under Article 6 per se. See, on extraterritorial obligations under the icescr, Sarah Joseph and Sam Dipnall, ‘Scope of Application’, in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (oup, 3rd ed, 2017), 165–167.

39

Committee on Economic, Social and Cultural Rights, above note 15, para 23.

41

See e.g. Paul Osborne, ‘Hotel quarantine key to Australia’s speedy recovery amid coronavirus pandemic’ (Illawarra Mercury, 26 May 2020) <www.illawarramercury.com.au/story/6769358/hotel-quarantine-key-to-australias-speedy-recovery-amid-coronavirus-pandemic/>.

42

See nsw Government Health, ‘covid-19: Support for people in hotel quarantine’ <www.health.nsw.gov.au/Infectious/factsheets/Pages/hotel-quarantine.aspx>.

43

Jessica Murray, ‘First arrivals under UK quarantine rules’ (abc, 8 June 2020) <www.abc.net.au/news/2020-05-23/uk-to-introduce-14-day-coronavirus-quarantine-on-all-internatio/12279302>.

44

See, regarding the US, Michael D. Shear et al, ‘The Lost Month: How a Failure to Test Blinded the US to covid-19’ (New York Times, 28 March 2020) <www.nytimes.com/2020/03/28/us/testing-coronavirus-pandemic.html>.

45

See generally, Omer Tene and Jules Polonetsky, ‘A Theory of Creepy: Technology, Privacy and Shifting Social Norms’ (2013) 16 Yale Journal of Law and Technology 59.

46

See generally, Neema Singh Guliani, ‘Government safeguards for tech-assisted contact tracing’ (American Civil Liberties Union White Paper, 18 May 2020) <www.aclu.org/other/aclu-white-paper-government-safeguards-tech-assisted-contact-tracing>; Jessica Davis, ‘covid-19 contact tracing apps spotlight privacy, security concerns’ (Health, IT Security, 20 May 2020) <healthitsecurity.com/news/covid-19-contact-tracing-apps-spotlight-privacy-security-rights>.

47

Giacomo Grasselli MD et al, ‘Critical Care Utilization for the covid-19 Outbreak in Lombardy, Italy’ (jama Network, 13 March 2020) <jamanetwork.com/journals/jama/fullarticle/2763188>.

48

Observer reports, ‘Across the world figures reveal horrific toll of care home deaths’ (The Guardian, 17 May 2020) <www.theguardian.com/world/2020/may/16/across-the-world-figures-reveal-horrific-covid-19-toll-of-care-home-deaths>; Valerie Gauriat, ‘The deadly impact of covid-19 on Europe’s care homes’ (Euronews, 14 May 2020) <www.euronews.com/2020/05/08/the-deadly-impact-of-covid-19-on-europe-s-care-home>.

49

Sally Lockwood, ‘Coronavirus: Italy’s doctors and nurses are in trauma over the deaths of more than 100 colleagues’ (Sky News, 6 April 2020) <news.sky.com/story/coronavirus-italys-doctors-and-nurses-are-in-trauma-over-deaths-of-more-than-100-colleagues-11968928>.

50

Zoe Schlanger, ‘Begging for Thermometers, Body Bags, and Gowns: US Health Workers are Dangerously Ill-Equipped to fight covid-19,’ (Time, 20 April 2020) < time.com/5823983/coronavirus-ppe-shortage/>.

51

See UN Committee on Economic, Social and Cultural Rights, above note 15, paras 5 and 13.

52

See, regarding the UK and possible breaches in this respect of the right to life, Stephen Cragg and Emily Jade-Defriend, ‘Has the government broken the law by putting nhs staff in harm’s way?”’ (The Guardian, 25 April 2020) <www.theguardian.com/commentisfree/2020/apr/25/nhs-staff-government-ppe-coronavirus>.

53

UN Committee on Economic, Social and Cultural Rights, above note 15, para 4.

54

Nick Romeo, ‘The grim ethical dilemma of rationing medical care, explained,’ (Vox, 31 March 2020) <www.vox.com/coronavirus-covid19/2020/3/31/21199721/coronavirus-covid-19-hospitals-triage-rationing-italy-new-york>.

55

European Union Agency for Fundamental Rights, Coronavirus Pandemic in the EU – ­Fundamental Rights Implications (Bulletin 1, fra, 8 April 2020), p. 8; see also Frances Ryan, ‘It is not coronavirus that risks infecting society – our prejudices do, too’ (The Guardian, 9 April 2020) <www.theguardian.com/commentisfree/2020/apr/09/nice-guidelines-coronavirus-pandemic-disabled>.

56

UN Press Release, ‘No exceptions with covid-19: “Everybody has the right to life-saving interventions” – UN experts say’ (United Nations, 26 March 2020) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25746&LangID=E>.

57

1997 (12) bclr 1696 (cc).

58

Ibid, paras 25, 29.

59

See e.g. Neil Monnery, ‘Adjusting covid-19 expectations to the age profile of deaths,’ (lse Business Review, 9 April 2020) < blogs.lse.ac.uk/businessreview/2020/04/09/adjusting-covid-19-expectations-to-the-age-profile-of-deaths/>.

60

1997 (12) bclr 1696 (cc), paras 2, 24.

61

Charles Ngwena, ‘Scope and Limits of Judicialisation of the Constitutional Right to Health in South Africa: An Appraisal of Key Cases with Particular Reference to Justiciability’ (2013) 14 R. Dir. Sanit. Sao Paulo 43, 56.

63

There are some discrepancies. For example, by 10 June 2020, Albania had derogated from the European Convention on Human Rights but not the iccpr, while Argentina had derogated from the American Convention on Human Rights but not the iccpr.

64

Human Rights Committee ‘Statement on derogations from the Covenant in connection with the covid-19 pandemic’ (24 April 2020) UN doc ccpr/C/128/2, para 1.

65

The European Court of Human Rights has indicated that States have a large “margin of appreciation” when adopting derogation measures, which may not necessarily apply in other situations of limiting rights. This is not a position adopted by the hrc: see Human Rights Committee, “General Comment 29: States of Emergency (article 4)”, UN doc ccpr/C/21/Rev.1/Add.11, 31 August 2001.

66

Human Rights Committee, above note 65, para 2(c).