Alicia Ely Yamin and Roojin Habibi
It has scarcely been a month since COVID-19 (then simply known as the disease caused by a novel ‘coronavirus’) was declared a “public health emergency of international concern”. The virus has since travelled to every continent except Antarctica, and prompted at least 80 travel restrictions against China, with many others now targeting secondarily affected countries, such as Iran, Italy, and South Korea.
Although World Health Organization (WHO) Director General Dr. Tedros Ghebreyesus has called for solidarity, not stigma, it is notable that to date WHO has not issued any substantive guidance on how countries can take public health measures that achieve health protection while respecting human rights. Amid growing public fears, confusion, and misinformation, as well as government reactions that may fuel rather than mitigate intolerance, discrimination and exclusion, it is critical to set out some key human rights principles and the guidance they provide.
First, we live in an inexorably globalized world; people travel, goods move, and economies (on which livelihoods depend) rely on networks of exchange. The International Health Regulations, binding upon all 196 member states of WHO, explicitly aim to reduce the spread of disease while minimizing disruptions to travel and trade and respecting the dignity, human rights, and fundamental freedoms of persons during public health crises. In practice, this means, among other things, treating travelers with courtesy and respect; taking gender, sociocultural, ethnic, and religious concerns into consideration; arranging basic living necessities and appropriate communication during the application of health measures and most fundamentally, non-discrimination.
Second, domestically most countries have statutes (and sometimes interpretations of constitutional provisions) that allow for human rights derogations or limitations in times of public health and/or national emergency. However, under international law as well as constitutional law in democratic states where this has been tested, such measures have to be necessary, proportionate, and reasonably related to legitimate public ends.
It is not enough for any government to merely assert they are doing what is necessary or effective. The essence of human rights—and democracy—is that the authority of government resides in the people. We are not passive targets either of an oncoming virus, or of governmental programs. Governments must be able to provide adequate and transparent justification for the measures being taken (and those not taken) to contain the virus and protect public health. And contrary to views that people’s active participation would slow down command-and-control decisions regarding the virus, every experience with past outbreaks, everywhere in the world demonstrates that the agency and meaningful (not tokenistic) engagement of individuals and communities is essential for effectively managing the spread of disease.
Third, “we the public” are not all the same; gender, race, caste, class, disability, ethnicity, and other axes of identity determine our inclusion within society and by extension, our vulnerability to epidemics. Even when measures may seem neutral on their face, public health—especially when controlling infectious diseases—tends to follow an inexorably utilitarian logic, which can often lead to inadvertent discrimination. For example, women are overwhelmingly responsible for caretaking both at home and as front-line health providers. And “social distancing” means little in crowded housing conditions, prisons, and public transportation and may lead to stigmatization of already marginalized groups; mass school closings may mean some children go without the only meal they receive every day, and add to gendered care-giving burdens; and transferring public preparedness responsibilities to individuals and individual employers reinforces entrenched patterns of privilege and deprivation across social determinants of health.
Fourth, within the health care system, if people are excluded based on resources, employment and/or immigration status, and the like, the impacts of an outbreak are exponentially greater on those excluded populations—with respect to access to information, as well as to diagnostic testing and treatment. Needless to say, viruses don’t obey taxonomies of legal entitlement, so such non-universal systems further entrench the virus in societies and aggravate social and economic disruption. If there were any remaining doubt as to how ill-advised (as well as unethical and inconsistent with human rights) market-based allocation of essential health care and punitive austerity measures that retract health and social protection for the poor are, the looming COVID-19 pandemic should surely set those questions to rest.
Accountability and transparency also must apply to the private sector, from providers to industry, which is rapidly developing therapeutics and vaccines. For example, there should be no price gouging on essential food or medical supplies and at a minimum a very high burden of justification to obtain exclusive licensing of any potential new therapy during a pandemic.
We should have learned by now that human rights protections cannot be an afterthought in epidemics. This crisis may provide an opportunity to see the value of truth and trust in democracy and multilateralism, and the starkly dystopian reality we face without them.
Alicia Ely Yamin, JD MPH, is a Senior Fellow at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
Roojin Habibi is a Research Fellow, Global Strategy Lab, and PhD Candidate, Law, York University.
 S. Kiernan and M. De Vita, “Travel Restrictions on China due to COVID-19.” Think Global Health, last modified February 25, 2020. Available at https://www.thinkglobalhealth.org/article/travel-restrictions-china-due-covid-19; “US imposes new travel restrictions after first coronavirus death.” Aljazeera, February 29, 2020. Available at https://www.aljazeera.com/news/2020/02/reports-death-due-coronavirus-200229183250291.html; D. Meyer, “Italy and South Korea join China as coronavirus pariahs as countries close borders.” Fortune, February 27, 2020. Available at https://fortune.com/2020/02/27/coronavirus-travel-ban-italy-south-korea/.
 Ghebreyesus, Tedros. “WHO Director-General’s statement on IHR Emergency Committee on Novel Coronavirus (2019-nCoV).” World Health Organization, January 30, 2020. Available at https://www.who.int/dg/speeches/detail/who-director-general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-ncov); “Coronavirus disease (COVID-19) technical guidance.” World Health Organization, last accessed March 1, 2020. Available at https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance.
 G. Ippolito, et al. “Toning down the 2019-nCoV media hype—and restoring hope,” The Lancet Respiratory Medicine (2020), https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30070-9/abstract (last visited Mar 1, 2020); G. Tétrault-Farber. “China to Russia: End discriminatory coronavirus measures against Chinese.” Reuters, February 26, 2020. Available at https://www.reuters.com/article/us-china-health-moscow-letter/china-to-russia-end-discriminatory-coronavirus-measures-against-chinese-idUSKCN20K1HU
 WHO. International Health Regulations, WHA 58.3, 2nd edn. Geneva: World Health Organization, 2005, art 3.1
 Ibid, art 32(a) (b) (c), art 42.
 V. Ferreres Comella. “Beyond the principle of proportionality”. In Comparative Constitutional Theory, (Cheltenham, UK: Edward Elgar Publishing, 2018).
 Office of the High Commissioner for Human Rights. “Universal Declaration of Human Rights at 70: 30 Articles on 30 Articles – Article 21.” Available at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23957&LangID=E (last visited Mar 1, 2020).
 R. C. Virchow. Collected Essays on Public Health and Epidemiology. Vol 1. Rather LJ, ed. Boston, Mass: Science History Publications; 1985:204–319; UN Committee on Economic, Social and Cultural Rights (CESCR), General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, E/C.12/GC/20. Available at: https://www.refworld.org/docid/4a60961f2.html [accessed 1 March 2020]