by Dr Pedro A. Villarreal*
The world continues to suffer the consequences of both the spread of COVID-19, as well as of the manifold limitations on the exercise of liberties and freedoms adopted to contain it. The latter include community-wide restrictions on mobility and commerce, which are commonly yet imprecisely referred to as “lockdowns”. The fluctuating infection rates have led to a vicious circle of their implementation-lifting-reimplementation. Responses are haphazard, as there is no uniform approach across countries. This raises the question of whether there are any criteria for identifying the most successful measures at mitigating the spread of COVID-19. If so, should states have some type of legal obligation to adopt them for protecting their population?
In the medical and public health communities, there are hints at an emerging consensus on the effectiveness of measures under the label of “lockdowns” in stemming the spread of the disease. This was expressed in a statement of February, 2021 by the Lancet COVID-19 Commission, composed of experts in diverse fields – including in regulatory aspects. In its statement, the members of the Commission call for all states to learn from responses to the pandemic in East Asia and the Pacific. Looking at available epidemiological data from 2020, as well as the assessment by multidisciplinary groups, the Lancet COVID-19 Commission infers that the most successful countries in controlling the spread of the disease have adopted several measures restricting mobility and commerce at a certain point in time. Previously, the World Health Organization (WHO) had issued its own guidelines on the matter, where it affirmed these measures’ effectiveness. However, the WHO warns that they must be tailored to the different factual conditions. Otherwise, their effectiveness can be hampered.
All of the above begs the question: what role do human rights play in the process of adjusting public health measures against COVID-19 to different contexts? The following lines argue that the opposition between human rights and public health is not supported on either side. Two reasons come to the fore: protecting public health actually falls within human rights obligations; and, moreover, human rights are part and parcel of the public health rationale used to justify the adoption of restrictions. Human rights considerations are actually a necessary component for adapting restrictive public health measures against COVID-19 to diverging contexts. The ensuing challenge is the role played by human rights in fostering a differentiated analysis of what measures are acceptable where. The following lines are focused on international and regional human rights instruments. This does not ignore that nationally enshrined rights are also at stake. The latter requires future studies of comparative human rights law.
2. The Normative Dimension of the Public Health Rationale
The main argument supporting the adoption of public health measures restricting individual liberties and freedoms is that they are effective for stopping the spread of the virus. During most of 2020, there was no available alternative offering the same or a greater degree of protection, particularly a vaccine. The remaining alternative is, then, attempting to change persons´ behavior in order to diminish exposition to the virus. Once safe and effective vaccines are administered to a sufficient number of persons and so-called “herd immunity” is achieved, infection rates can be expected to sink. Until this happens, the goal is to reduce personal contacts to a minimum.
If insufficient or no public health measures are adopted to mitigate the spread of COVID-19, the healthcare system is at a high risk of being overburdened with infected patients. Research has shown how the death rate in a given location increases once hospitals’ capacities are overwhelmed. Authorities must seek ways in which they can lower infection rates in order to keep healthcare services from collapsing. Public health measures limiting physical proximity between persons (also known as “social distancing”) are suitable for that purpose. By reducing person-to-person interactions, the transmission of COVID-19 decreases. Authorities can achieve the objective of allowing healthcare facilities to cope with the influx of patients –not just those due to the pandemic.
The scientific validation of restrictive public health measures’ effectiveness and the absence of less restrictive alternatives led to the normative question of whether they actually should be applied, and in what terms. There is no universal blueprint, in so far as the application of the measures to the population will depend on a series of variables. Differences in the mechanisms for compliance come to the fore. For instance, some countries may threat the use of sanctions in case of non-compliance, whereas others may abstain from doing so. Moreover, if a country lacks the financial and logistical capacity to properly implement community-wide measures, legal acts mandating them might be dead letter. This is a well-known problem in legal sociology, referred to as the distinction between “law on the books” and “law in action”. Higher degrees of acceptance by the population is considered to be a determinant of the success of public health measures. Resorting to force as the central driving factor does not necessarily guarantee observance, and can actually risk fueling a backlash.
The WHO’s guidelines regarding community-wide measures give additional elements for national authorities that choose to implement the so-called “lockdowns”. Although these guidelines are not legally binding, they provide an authoritative source on how to proceed with public health responses on the basis of state-of-the-art evidence. In the guidelines, an emphasis is placed on the need to adjust measures to diverging contexts. Authorities at the most local level of government are considered to be the most apt at grasping multiple variables, particularly empirical ones.
The human rights perspective is necessary when adapting public health measures to diverging contexts. There is an awareness in the medical and public health communities of how restrictions on individual liberties and freedoms are justified only to the extent that they are necessary for reducing COVID-19 transmission. The aforementioned statement by the Lancet COVID-19 Commission, as well as the WHO’s guidelines, underscore how national authorities must balance the competing interests at stake. These insights from medicine and public health confirm how the impact on the enjoyment of personal liberties and freedoms should always be taken into account.
3. The Public Health Rationale as a Human Rights Issue
The right to health, as framed in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), enshrines states´ obligation to protect persons against the spread of communicable diseases. The provision does not specify exactly which steps should be taken to face threats more specifically. This vagueness is understandable, as the decision to do so will depend on what type of medical information is available in a given situation. When facing a novel disease, i.e. one that was previously not circulating amongst humans, evidence might not be available at the outset.
Since protecting the population against COVID-19 is a human rights obligation, states need to take active steps towards achieving that objective. As argued elsewhere, when imposing mobility restrictions for fulfilling the goal of protecting public health, authorities might need to restrict the enjoyment of certain individual freedoms protected in the International Covenant on Civil and Political Rights (ICCPR). This includes, inter alia, the freedom of movement through quarantines, isolations and stay-at-home orders (Article 12 ICCPR); the freedom of assembly, by prohibiting gatherings in public (Article 21 ICCPR); and, in the case of measures where persons are confined in specific facilities, personal liberty may be at stake (Article 9 ICCPR).
Defining a more precise catalogue of measures that states should adopt to face a pandemic inevitably requires input from the medical and public health communities. Taking stock of available empirical evidence on the effectiveness of those measures will determine what exactly states should do. This can then be a yardstick for assessing when exactly these obligations are being disregarded. Moreover, the right to health is not the only source of obligations in this vein. The mitigation of COVID-19 is also related to obligations under the right to life. Such approach was recently adopted in a case at the European Court of Human Rights, Le Mailloux v France. The court dismissed the case due to Mr. Le Mailloux´s failure to demonstrate that the alleged “insufficiency and inadequacy” of the measures against COVID-19 implemented by the French government affected him personally. Nevertheless, the court took the opportunity to affirm states´ obligations under the right to life and to physical integrity, on the basis of Articles 2 and 8 of the European Convention of Human Rights, to take the “necessary” measures in the area of public health for fulfilling that goal. The Court did not specify which ones are “necessary” in the face of COVID-19. It is up to national authorities to determine it on the basis of available scientific evidence. The public health rationale deeming measures to be effective becomes a human rights issue, since fulfilling the obligation to protect the health of the population is dependent on their effectiveness.
4. Human Rights Issues as Public Health Rationale
The preceding section argued that the public health rationale, as espoused by the WHO and the Lancet COVID-19 Commission, contributes to determine the extent of states’ human rights obligations by identifying which responses to the ongoing pandemic are the most effective. But at the same time, the need to adapt measures to diverging contexts, including by paying heed to the human rights dimension, is also a component of the public health rationale.
The international community has witnessed an unprecedented degree of restrictions of individual liberties and freedoms due to COVID-19. Nevertheless, others have argued for a human rights mainstreaming throughout national authorities’ responses to the pandemic. This makes sense not only on the basis human rights obligations at the international, regional and national levels. Rather, in light of the WHO’s and the Lancet COVID-19 Commission’s assessments, human rights considerations are part and parcel of the public health rationale. The widespread curtailment of the enjoyment of liberties and freedoms should be limited in time until more individualized and targeted measures are sufficient for preventing the spread of the disease. Otherwise, population fatigue and economic damage may erode the acceptance of the measures, thus undermining their effectiveness.
Even if a set of measures are tagged, in general, as the most effective ones for mitigating, suppressing or even stopping COVID-19 transmission, there is still the question regarding their implementation in different contexts. No universal formula exists. Some of the most successful countries, like New Zealand, have decided to adopt harsher measures even when there was a very low degree of community transmission of COVID-19. However, public health research points towards its geographical features as an island nation as contributing to the positive outcome. This means caution should be exerted when expecting similar results in different settings. Additionally, the government’s communication with the population contributed to the acceptance of the response against COVID-19. The use of police force in New Zealand, while present, has by no means been the only measure for increasing the population’s compliance. Longstanding human rights doctrine and practice has pointed towards avoiding coercion as the only means of implementation. This actually also makes sense from a public health perspective.
5. On-the-Ground Challenges for Contextualizing Human Rights in the COVID-19 Era
The distinction between “law on the books” and “law in action” is unavoidable when choosing the best possible responses to COVID-19. Difficulties in contextualizing public health measures to the different human rights constellations can be attested in practice. For illustrative purposes, two examples are chosen, one pre- and one post-vaccines against COVID-19.
In the era preceding COVID-19 vaccines, wide-ranging restrictions or “lockdowns” were first imposed globally in Wuhan, China. Authorities in the city had to face the nightmarish scenario of unrelenting infection rates and overcrowded hospitals as a result. To face the challenge, Chinese authorities developed a new mode of facilities called “Fangcang shelter hospitals” – as thoroughly described in a research article in the Lancet.
In very summarized terms, Fangcang shelter hospitals consist of facilities previously used for other purposes, such as stadiums, which are refurbished for providing healthcare services to COVID-19 patients. These facilities allowed for isolating new COVID-19 patients with mild or moderate symptoms. In the process, patients are separated from the families and communities so as to avoid infection. One feature is that remaining in Fangcang shelter hospitals is not optional, as patients must remain under observation.
The Fangcang system contributes to the protection of public health by preventing infected persons from being in contact with others while keeping them under medical supervision in case their situation worsens. If and when their symptoms turn into a severe case of COVID-19, they are referred to an actual hospital for treatment. By initially separating the mild and moderate infections from severe ones, Fangcang shelter hospitals prevent other healthcare facilities from becoming even more overburdened with new patients.
The description of the conditions to which patients were subjected may fit the definition of detention for the purposes of Article 9 of the ICCPR. Under this provision, persons finding themselves in conditions of detention are entitled to having access to judicial review. Judges may then confirm or reject the legality of decisions to deprive persons of their liberty, even if it only takes place for a relatively short duration. But China is not a State Party to the ICCPR, hence the legal argument is not readily available.
Fangcang shelter hospitals have been hailed in public health research as an innovation, and their application in other countries and against other threats similar to COVID-19 worth exploring. Here lies a question for human rights contextualization: would these measures, despite being effective, be in conformity with the ICCPR’s human rights requirements under Article 9? Would it be sufficient to subject them to a personalized judicial review for their acceptability elsewhere?
The post-vaccines against COVID-19 era also poses challenges for contextualizing human rights. Increasing vaccination rates might gradually lead to a return to “normality”. Once vaccines become sufficiently available and campaigns for their distribution progress, a sufficient level of protection in society might be achieved through herd immunity. The need to limit persons´ physical contact to the maximum may no longer be necessary. Thus, the public health rationale for maintaining “lockdowns” might not be in place. In this sense, countries with the most advanced vaccination campaigns, particularly Israel, can be a mirror of future developments.
Currently, individuals in Israel may participate in certain public and private activities only after showing proof of vaccination in documents called “green passports”. Questions of whether such distinction is legally justified, or whether it infringes obligations of non-discrimination such as those enshrined in Article 26 ICCPR, come to the fore. If the model is legally confirmed in Israel, would this nevertheless require a different human rights assessment in other countries? Such a question will become more pressing to the extent the model is gradually replicated.
6. Conclusions
This contribution has claimed that the public health rationale, which helps identify the most successful responses to the COVID-19 pandemic, and human rights considerations do not stand in opposition, but are actually indivisible. The harshest ‘lockdowns’ do have a prima facie human rights justification in light of their effectiveness in stemming COVID-19 infection rates. But the assessments by the medical and public health community confirm that there is no one-size-fits-all formula, rather that national authorities’ responses must be adjusted to different contexts. The respect for individual liberties and freedoms, including those enshrined in international and regional human rights instruments, must be included in such adjustment process. Striking the proper balance between the protection of public health and the avoidance of unnecessary restrictions on individual freedoms and liberties has gone hand-in-hand in several of the most effective national responses to COVID-19. In fact, epidemiological studies comparing these responses have asserted that the possibility to adopt less intrusive alternatives for countering the virus’ spread should be incorporated into the public health rationale. This confirms that the antagonism “public health vs human rights” is actually a misnomer. It is high time for their discursive and practical fusion in the era of COVID-19 - and beyond.
* Dr Pedro Villareal, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany (villarreal@mpil.de). The author would like to thank Professor Ayeal Gross of Tel Aviv University for key insights about Israel.
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