An opinion piece by Roojin Habibi, Benjamin Mason Meier, Tim Fish Hodgson, Saman Zia-Zarifi, Ian Seiderman & Steven J. Hoffman
In the COVID-19 response, leaders around the world have resorted to wartime metaphors to defend the use of emergency health measures . Yet, as the International Commission of Jurists (ICJ) has noted, States have seldom taken into account corresponding obligations under international human rights law when formulating their ‘call to arms’ against an elusive new enemy.
In assessing the appropriateness of health measures that limit human rights, human rights defenders, academics, international organizations and, most recently, WHO Director-General Tedros Adhanom Ghebreyesus have all looked to the Siracusa Principles on the Limitation and Derogations Provisions in the International Covenant on Civil and Political Rights. Developed in 1984 through a consensus-building effort among international law experts co-convened by the ICJ, the Siracusa Principles sought to achieve “an effective implementation of the rule of law” during national states of emergency, constraining limitations of human rights in government responses. The Siracusa Principles are aimed at ensuring that emergency response imperatives are taken with human rights protections as an integral component, rather than an obstacle. The Principles have since been incorporated into the corpus of international human rights law, in particular through the jurisprudence of the UN Human Rights Committee. They have come to be widely recognized as the authoritative statement of standards that must guide State actors when they seek to limit or derogate from certain human rights obligations, particularly in times of exception – including those states of emergencies that “threaten the life of the nation.”
Framing global health law to control public health emergencies, the World Health Organization’s International Health Regulations (IHR) have long sought to codify international legal obligations to guide responses to infectious disease threats. The IHR, last revised in 2005 in the aftermath of the Severe Acute Respiratory Syndrome (SARS) outbreak, bind states under global health law to foster international cooperation in the face of public health emergencies of international concern. This WHO instrument, which in general terms must be implemented with “full respect for the dignity, human rights and fundamental freedom of persons,” seeks to prevent, detect, and provide a robust public health response to disease outbreaks while minimizing interference with international traffic and trade. Yet, the agreement that is legally binding on 194 states parties has been all but forgotten amid the biggest pandemic in a century, with its legal limitations exposed in this time of dire need.
The lack of certainty regarding the scope, meaning and implementation of international human rights obligations during an unprecedented global health emergency has enabled inappropriate and violative public health responses across nations. As the world’s struggle against the coronavirus stretches on, we must begin to consider how global health law and human rights law can be harmonized – not only to protect human dignity in the face future global health crises, but also to strengthen effective public health responses with justice.
The necessarily multi-sectoral response to COVID-19 reveals the distinctive nature of interpreting human rights limitations in a global health emergency that (1) is an international (compared to a national) phenomenon; (2) endangers not only civil liberties and fundamental freedoms, but a broad range of health-related human rights, including the right to health itself; and (3) challenges governments to assess proportionate public health responses in situations of scientific uncertainty.
Global health emergencies raise the imperative for global solidarity
It has proven challenging to ensure that States comply with international standards for permissible human rights limitations amid an emergency that extends across all nations. As a set of standards that primarily guides State conduct in response to national threats to public welfare and security, the Siracusa Principles do not fully contemplate and provide for today’s lived experience in which an international emergency has infiltrated every continent. Similarly, although the IHR make explicit the international duty to collaborate and assist in addressing global health threats, a lack of textual clarity and general failing among states parties to operationalize this obligation render the provision devoid of meaning.
Global solidarity through international cooperation is both a human rights imperative and a global public health necessity. Breakdowns in the international commitment to hasten the supply of COVID-19 vaccines to all States, however, portend future struggles in achieving unity among nations against a common danger. As a number of UN Human Rights Council experts warned in late 2020, “[t]here is no room for nationalism or profitability in decision-making about access to vaccines, essential tests and treatments, and all other medical goods, services and supplies that are at the heart of the right to the highest attainable standard of health for all.” In the coming decades, the world will inevitably face increasing, intensified, and interconnected planetary health threats, including not only the emergence of new infectious diseases, but also the evolution of highly drug-resistant microbes, environmental degradation, climate change, and biological weapons proliferation. Since no country can face these perils alone, overcoming them will require robust, science-based and enduring international cooperation within the framework of “a social and international order in which rights can be fully realized.”
Global health emergencies call for dedicated focus on health-related rights, including the right to health
Nearly all governments have resorted to physical distancing policies to control the spread of disease. While ostensibly adopted to protect public health, such interventions have rarely been accompanied by social relief programmes, such as income support and debt suspension, that are necessary to avoid collateral damage to economic and social rights, including the rights to health, social security, work, and housing. Instead, responses to the pandemic have largely magnified the fault lines of racial, socioeconomic, disability, gender and age inequalities, intensifying the suffering of those already at greatest risk and falling short of State obligations to ensure that responses to public health emergencies do not have discriminatory impacts. However, neither the Siracusa Principles nor the IHR give sufficient attention to the breadth of health-related human rights imperilled by an emergency response. The Siracusa Principles are expressly addressed to limitations of civil and political rights under the International Covenant on Civil and Political Rights (ICCPR), and the IHR never mentions the right to health or economic, social and cultural rights, despite WHO’s constitutional mandate to advance the right to health – including the social determinants of health – being central to global health governance.
More than 30 years ago, the HIV pandemic imparted crucial lessons to the world on the intricate linkages between health and human rights. These lessons reverberate once again in the current crisis, reinforcing the interdependence of all human rights as a foundation for global health. Bearing obligations to realize collective rights to public health in a pandemic response, how should States consider the impact of public health emergency measures on their indivisible obligations to realize economic, social, and cultural rights, including the right to health and its underlying determinants? Given the rapid privatization of basic healthcare services and the interests that pharmaceutical companies hold over global vaccine distribution, what are the responsibilities of private actors in the context of public health emergencies? Global health law and human rights law must converge to account for limitations to economic, social, and cultural rights that underlie public health in the context of global health emergencies, and advance effective legal remedies to ensure accountability for the unjustified violation of all human rights in the public health response.
Global health emergencies challenge proportionality assessments in a moment of scientific uncertainty
Under the Siracusa Principles, public health emergencies allow for measures that restrict human rights only to the extent they are “necessary” – that is, measures responding to “a pressing public or social need,” in pursuit of “a legitimate aim,” and “proportionate to that aim.” Government responses to global health emergencies, however, are strained by high degrees of scientific uncertainty, especially at the outset of emerging disease outbreaks. The IHR, much like the Siracusa Principles, evaluates the proportionality of public health measures by requiring that they be no more restrictive of international traffic and no more invasive or intrusive to persons “than reasonably available alternatives,” but it further calls for their implementation to be based on “scientific principles,” “scientific evidence,” and “advice from the WHO.” However, even the IHR’s explicit consideration of scientific knowledge in the proportionality criteria have failed to guide policy actions in the pandemic response.
Selective travel restrictions, for instance, have become the prima facie response not only to the containment of the original SARS-CoV-2 virus, but also to its more transmissible and possibly more lethal variants – despite the discouragement of targeted travel bans under the explicit language of the IHR, mixed scientific evidence of their effectiveness in the absence of other non-pharmaceutical interventions, and historical lessons on their potential to disincentivize the reporting of future outbreak. Measures justified by public health concerns, of which travel restrictions are but one example, if improperly conceived and implemented, may lend themselves to politicization, ineffective or counterproductive public health impacts, discriminatory use, and human rights violations – fracturing the world and distracting from a united and sustainable response to common threats. Moreover, the scientific uncertainty that is inherent to global health emergencies is likely to challenge our conception of how long de jure or de facto national states of emergency may last, and by extension, how to maintain the rule of law, democratic functioning of societies, and realization of the right to health and health-related rights such as access to food, water and sanitation, housing, social security, education and information under such strained conditions.
To hold governments accountable for their management of prolonged global health emergencies, more nuanced normative guideposts are needed. Building on global appeals for public health responses that are anchored in transparency, meaningful public participation, and the “best available science,” careful consideration must especially be given to bridging understandings of “proportionality” under human rights law and global health law.
Harmonizing Approaches in Human Rights Law and Global Health Law: A Call to Action
The COVID-19 pandemic is a harbinger of the evolving nature of emergencies in the 21st century and beyond. Building on the Siracusa Principles and the IHR, any subsequent restatement of the law must take into account these changing circumstances. The pandemic provides an opportunity to clarify human rights law and develop global health law in step with pressing threats to human dignity and flourishment in the modern era. Processes to update, nuance and supplement the Siracusa Principles and IHR are important to this process – providing an opportunity to harmonize human rights assessments across human rights law and global health law.
Working together across legal regimes, the ICJ and the Global Health Law Consortium are developing a consensus-based restatement of principles, drawn from international legal standards, to ensure the harmonization of public health and human rights imperatives as world leaders reconsider the role of international law in guaranteeing rights-based approaches to the inevitable public health emergencies of the future. While the microbe is natural, public health is the product of human will, and in the words of Camus, “of a vigilance that must never falter.”
The ICJ-GHLC invites readers to submit their thoughts, suggestions and/or feedback on a set of principles for global health emergencies to firstname.lastname@example.org
Originally published in OpinioJuris on 24 February 2021 here.