On Sea Monsters and Sandcastles: Revisiting International Legal Frameworks regarding Public Health and Human Rights in Global Health Emergencies

Abstract

As a new coronavirus, sars-CoV-2, swept across the globe with unprecedented speed in 2020, countries were faced with navigating between the proverbial Scylla and Charybdis. In a quickly evolving situation, with limited and constantly changing scientific information, governments across varied income levels adopted an array of strategies across a spectrum of divergent approaches. Some, such as Italy and Peru, focused heavily on containing contagion, and protecting population health and health systems, quickly closing borders and adopting lockdowns; others, such as Brazil and Sweden, took more hands-off approaches whether in the name of “keeping economies open” or preserving individual choice (and responsibility). Both approaches exposed – and exacerbated – the endemic plague of social inequality in many countries: lockdowns disproportionately hurt workers in informal economies, children who could not study on-line, and marginalised groups, including persons living with disabilities. Allowing COVID-19 to rage and deflecting state responsibility onto individuals also disproportionately affected diverse poor and marginalised people who often live in overcrowded conditions and have the least access to health systems. As Amnesty International's report for 2022 stated, the pandemic revealed, and sometimes aggravated, existing patterns of human rights abuses and inequalities’. Oxfam’s 2021 report, ‘The Inequality Virus’, details the intersecting dimensions of the inequality unmasked by this virus, and notes economists predict the pandemic will only exacerbate gaping social divides, as while millions were thrown into extreme poverty the world’s richest ten people increased their wealth by a staggering usd $540 billion in 2020.

Throughout history epidemics have laid bare government indifference to population suffering, extended state powers and challenged individual freedoms, exploited existing social inequalities, and raised questions about the fitness for purpose of governance institutions. However, the unprecedented magnitude and duration of the COVID-19 pandemic – called by the UN Secretary-General the ‘biggest international crisis in generations’ – has raised these questions to the level of global concerns. Further, COVID-19 struck a world in which decades of deepening neoliberal legality and governance, in areas from financial deregulation to intellectual property to taxation, had increased private capital and undermined both public resources and capacities, including with respect to health systems.

In this context, few States proved up to the challenge of responding to a little-understood and fast-spreading virus in a manner consistent with intersecting obligations stemming from the International Health Regulations (ihr) and widely ratified international human rights treaties. Relevant human rights standards had been set in treaties and case law from supra-national courts together with interpretive guidance issued by human rights treaty-monitoring bodies (TMBs), in general comments and recommendations, and in some cases were further clarified by international organisations and UN TMBs and the Human Rights Council in the context of the COVID-19 pandemic. Nonetheless, the ihr were quickly sidelined in pandemic responses as States raced to close borders, and there has been a notable gap between international normative commitments related to human rights and national legal responses.

The UN Secretary-General António Guterres denounced the ‘pandemic of human rights abuses in the wake of COVID-19’, while openly deploring the fact that States used the outbreak ‘as a pretext in many countries to crush dissent, criminalise freedoms and silence reporting’. At the same time, while countries that did follow procedural requirements regarding notification of derogations under the international and regional human rights treaties violated key provisions regarding fundamental rights, others that effectively circumscribed the use of emergency powers, and have been lauded for their management of the pandemic, often did not do so. Some failure to procedurally notify derogations can be attributed to tremendous empirical uncertainty associated with this new coronavirus, which also caused States to invoke the precautionary principle to justify additional measures adopted under international health law. However, the dismally widespread institutional failures regarding the protections of economic and social rights (esr), as well as infringements of civil and political rights, suggest more structural problems in the architecture of international human rights law.

In assessing why the normative scaffoldings in international law that had been built up over decades often seemed to crumble like sandcastles when the first wave of COVID-19 struck, the way in which plural democracies should manage both scientific uncertainty and competing normative values warrants further exploration. In this article we seek to contribute to ongoing discussions about the appropriate normative responses, and in particular to illuminate the need for further theorisation of relevant guiding principles as well as the imperative of democratically-legitimate decision making in health emergencies. The article proceeds as follows. In Part 2, we set out standards related to public health emergencies under the ihr surfacing the widespread reliance on the precautionary principle in state practice during COVID-19. In Part 3, we turn to international human rights law, and explain requirements regarding derogation and limitations as they relate to emergencies such as COVID-19. We note the need for further consideration of ways to afford enhanced accountability through notifications of derogations to international bodies as they are amended over time, as well as the need for understanding the justification for de facto restrictions of health and other economic and social rights. Few restrictions have complied with requirements regarding limitations of rights under international law and many have directly undermined core obligations, including of the right to health. We conclude that the inflection point caused by the pandemic calls for broader reflections on these gaps in international law, as well as the need to focus more attention on the infrastructures for fair and solidaristic provision of social and economic rights, including health.

Keywords: Public Health, Human Rights, Global Health Emergency