Coronavirus Containment Measures Raise International Human Rights Concerns
As governments all over the world make their best efforts to help top the rapid spread of COVID-19, they will continue to face difficult questions regarding the permissible scope of their human rights restrictions.
By: Nika Madyoon, Staff member
The outbreak of COVID-19 (Coronavirus) has rattled the world over the past several weeks. As the disease continues to spread rapidly, states have begun to institute a variety of new laws and procedures in an effort to contain the spread of the virus. These policies raise important international legal concerns, specifically as they relate to human rights including liberty, privacy, and freedom of movement.
One approach common to most containment strategies is imposing isolation. On February 10, the United Kingdom passed a law allowing for the lawful detention of any person “reasonably suspected” of posing a risk of infection. The secretary of state for health or any government health official can authorize detention for between 24 hours and 14 days, with the ability to extend the detention period if deemed necessary. Permissible purposes of detention include “screening for the virus…the collection of personal health information and biological samples,” and isolation. Notably, the law creates new criminal penalties for those who evade detention orders, leave a place of isolation, give false information or obstruct public health officials.
The United States, Canada, and Australia have similar measures in place. Such approaches make sense from the perspective of needing to contain the outbreak, and it may be hard to argue against them given the state’s clear interest in protecting its citizens (and really, the global order at large) from the continued spread of the disease. Nevertheless, compulsory detention and the forced sharing of health information can have significant implications when it comes to fundamental human rights such as the rights to freedom of movement and peaceful assembly—both recognized in the Universal Declaration of Human Rights.
There are certainly legal exceptions to these rights. The Committee on Economic, Social and Cultural Rights’ General Comment No. 14 (GC 14) addresses “[t]he Right to the Highest Attainable Standard of Health,” and provides that the right to health includes the right to control the spread of infectious diseases. The International Covenant on Civil and Political Rights (ICCPR) also provides that the rights to freedom of movement, holding opinions, peaceful assembly and freedom of association are subject to limitations in the public health context. These exceptions, however, must meet requirements of legality, necessity based on concrete and reliable evidence, and proportionality. Indeed, GC 14 notes that “the least restrictive alternative must be adopted,” and that limitations “should be of limited duration and subject to review.” Additionally, people must have a right to challenge their detention.
While many state measures do not yet appear to run afoul of these basic human rights obligations on their face, it will be important to monitor how they are carried out on the ground. Given the rapidly changing landscape, it may be difficult to determine which exceptions satisfy necessity and proportionality requirements. As scientists work to discover more information about the virus and develop potential solutions, for example, assessments of the “necessity” for certain detention or containment procedures will likely continue to change. Nevertheless, some restrictions appear clearly over the line. Human Rights Watch has highlighted some of the concerns arising from the Chinese government’s policies. Chinese authorities have “detained people for ‘rumor-mongering,’ censored online discussions of the epidemic, curbed media reporting, and failure to ensure appropriate access to medical care” for those with symptoms of the virus. Although it makes sense for governments to attempt to stop the spread of misleading or alarmist information, reports indicate that the Chinese government has gone much further —blocking “officially sanctioned facts and information” as well as neutral references to the state’s handling of the disease outbreak. This response does not appear to meet the requirements for human rights exceptions. It is difficult to argue that such censorship meets the human rights exception requirement of evidence-based necessity; in fact, preventing the publication of accurate information online could have deleterious effects on the containment effort.
The Chinese government has also instituted severe restrictions on movement. Since January, 56 million people in the province of Hubei have been kept from leaving. Cities have been closed off by roadblocks and public transportation in some areas has been shut down entirely; private cars have been prohibited on the roads. In Wuhan, where the original outbreak occurred, residents have been barred from leaving their homes. These restrictions have limited access to medical care; indeed, some have complained of being denied access to HIV medicine refills and cancer medication.
Discrimination has also become a significant problem, not just in China but all over the world. Wuhan residents currently outside the city reported that their personal information (including address, phone number, and ID number) was posted online without their consent, leading to harassment. The Russian government has prohibited some categories of Chinese nationals from crossing its border. Russian authorities have also conducted raids on potential carriers of Coronavirus at individual homes or hotel rooms, and “us[ed] facial recognition technology to enforce quarantine measures.” There have been reports of the government monitoring Chinese nationals “ubiquitous[ly]”, including while using public transport in Moscow.
Last Friday, the UN High Commissioner for Human Rights, Michelle Bachelet, urged governments to approach their containment efforts “holistically,” highlighting the heightened adverse effects of certain strategies on the more vulnerable in society (such as low-income earners and isolated rural populations) and emphasizing the need to make relevant information available to everyone without exception.
As governments all over the world make their best efforts to help top the virus’ rapid spread, they will continue to face difficult questions regarding the permissible scope of their human rights restrictions. As Bachelet put it, “COVID-19 is a test for our societies.” As the global pandemic continues to unfold, it remains to be seen whether states will put their human rights obligations first, or at least on par with their containment agendas.
Nika Madyoon is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Columbia University in 2016 with a B.A. in Political Science and Philosophy. Before law school, Nika worked as a litigation analyst for two years.