Benjamin Mason Meier, Hanna E. Huffstetler, and Roojin Habibi
Global health law is essential in framing national responses to the globalized threats of infectious disease, yet the legal foundations of the global health system are now being tested as never before. The International Health Regulations (IHR), the principal international legal framework governing infectious disease control, are designed to promote global health security while respecting human rights imperatives. Revised in 2005 to respond to the global health challenges of the 21st century, the IHR reflect a need to ensure human rights in responding to infectious disease. Yet the COVID-19 pandemic has exposed continuing weaknesses in the IHR, contributing to widespread rights violations and igniting calls for further reforms. As the IHR are revised anew to meet future global health threats, this Viewpoint examines the continuing importance of human rights in infectious disease control, balancing public health necessities and individual rights protections and reinforcing the connections between global health law and human rights law.
Human rights obligations in public health emergencies
International human rights law fosters accountability for state obligations to prevent, detect, and respond to infectious disease, offering frameworks to balance individual rights and public health. Notwithstanding the indivisibility of human rights, international human rights law recognizes the need for derogation (suspension) or limitation of certain rights to protect the public.[1] In clarifying human rights derogation, states sought in the 1966 International Covenant on Civil and Political Rights (ICCPR) to identify which rights are derogable, delimit the grounds for rights derogation, and outline transparent government processes for derogating from international obligations in the context of an emergency.[2] Yet, as governments exploited emergency declarations as a pretext to suppress fundamental freedoms and quell political dissent, there arose a need for interpretive guidance to elucidate the grounds that warrant the temporary curtailment of human rights in narrowly defined circumstances.[3]
Developed by international law scholars convened by the International Commission of Jurists and other partners, the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa Principles) provide a legal framework to assess restrictive measures developed in response to national emergencies.[4] Adopted in 1984, the Siracusa Principles clarified that the restriction of human rights in the context of an emergency should be undertaken only when, among other things, such measures are:
- responsive to a pressing public need (for example, protecting public health);
- deemed necessary and proportionate to a legitimate aim;
- prescribed by law and not imposed arbitrarily; and
- applied as a last resort using the least restrictive means available.[5]
However, when faced with an expanding HIV/AIDS pandemic in the 1980s, governments responded through public health policies grounded in human rights restrictions, including compulsory testing, named reporting, and travel restrictions.[6] These intrusive limitations on individual liberty undermined support from key populations, hobbling public health efforts to prevent disease.[7] Activists united under demands for rights, fueling a health and human rights movement that recognized the promotion of human rights as a precondition for public health.[8] Drawing from this advocacy, the World Health Organization (WHO) embraced the inextricable linkages between human rights in public health, stressing the need for health programs to realize rights–in the HIV/AIDS response and across public health challenges.[9]
Incorporating human rights in the IHR
The IHR have evolved to respond to the international challenges posed by infectious disease. Arising out of international health diplomacy dating back to the 19th century, WHO member states adopted the International Sanitary Regulations in 1951.[10] Renamed the “International Health Regulations” in 1969, the initial IHR bound all WHO member states to monitor outbreaks of cholera, plague, yellow fever, and smallpox. While providing an international framework for national disease control policies, the IHR were narrow in disease scope, inadequate for state accountability, and inattentive to human rights.
With states increasingly unable to respond to emerging diseases in a rapidly globalizing world, the World Health Assembly formally launched a WHO process in 1995 to revise the IHR.[11] The revision process progressed slowly until the emergence of a new infectious disease threat not covered by the IHR: Severe Acute Respiratory Syndrome (SARS).[12] Limitations in effectively responding to this 2002 outbreak underscored the inadequacy of the IHR and brought new urgency to the revision process.[13] Compounding this inadequacy, national governments responded to SARS through public health actions that violated individual rights, resorting once again to isolation, quarantine, and surveillance measures that restricted individual liberties.[14]
As the impact of SARS mounted, WHO released a draft of the revised IHR, which incorporated human rights into the IHR for the first time. States broadly recognized the importance of human rights in subsequent negotiations, and in May 2005, the World Health Assembly adopted the revised IHR (2005), codifying that states implement the IHR “with full respect for the dignity, human rights and fundamental freedoms of persons.”[15] Thus, national measures under the IHR must be based on scientific risk assessment and must not be more restrictive of international traffic, or more intrusive to individuals, than reasonably available alternatives.[16] The IHR additionally support human rights through global solidarity, seeking international collaboration and assistance to support national public health capacities.[17] These IHR commitments introduce a limited set of human rights obligations into global health law, yet ongoing global health challenges have raised a need to further reform the international legal frameworks that guide national responses to public health emergencies.[18]
Restricting human rights in the COVID-19 response
State public health measures have tested global health law in responding to the COVID-19 pandemic. With the pandemic threatening every WHO member state, governments have taken extensive actions that restrict human rights without any effort to explain the legitimacy, necessity, or proportionality of such measures or to justify human rights derogations to protect public health.[19]
- Travel bans–Under the IHR, health responses “shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives,” yet in responding to the pandemic, many states rushed to implement selective bans on international travel.[20] Despite their limited public health effectiveness, these travel bans restrict the human right to freedom of movement and undermine the global solidarity needed in the pandemic response.[21]
- Discrimination–While the IHR require health measures to be applied in a non-discriminatory manner, many national responses to the pandemic are grounded in racism and xenophobia.[22] Non-discrimination is a foundational principle of international human rights law, wherein all people are entitled to the equal enjoyment of rights, but many leaders have invoked nationalist rhetoric in the pandemic response, resulting in stigma, discrimination, and violence that sows division and undercuts public health.[23]
- Privacy violations–Data collection is recognized as necessary under the IHR to detect infectious disease threats.[24] However, in responding to COVID-19, governments are increasingly turning to intrusive surveillance technologies, using data monitoring of infectious disease to exercise autocratic control.[25] The use of these new technologies can violate rights to privacy, and despite the purported use of surveillance for public health purposes, these data are being abused by governments to facilitate other violations.[26]
- Nationalism–The IHR provide a path for international collaboration to strengthen national public health capacities. In realizing global solidarity, the right to health recognizes assistance and cooperation as international obligations, requiring states to coordinate efforts to reduce the impacts of disease and share health research, medical equipment, and best practices.[27] Despite this imperative, many nationalist governments are failing to provide sufficient assistance in the global pandemic response, with isolationism threatening the health and human rights of the most marginalized.[28]
Reinforcing connections between global health law and human rights law
It is crucial that states respect, protect, and fulfill human rights in infectious disease control following the COVID-19 response, but there is a need to more clearly articulate the balance between public health and human rights in future IHR revisions. While seeking to reconcile public health and human rights obligations under global health law, the IHR do not detail human rights responsibilities during public health emergencies. The IHR aim to limit restrictions on individual rights; however, the instrument provides little guidance on whether, when, and how to resort to public health measures that restrict human rights.[29] Although the IHR require that such public health measures be legitimate, necessary, and proportionate, more explicit provisions would facilitate accountability for rights-based government efforts in an urgent pandemic response. Drawing from the Siracusa Principles, future revisions of the IHR must mainstream human rights throughout infectious disease control.[30]
Correspondingly, human rights law must also evolve to reflect contemporary public health emergencies. The COVID-19 pandemic serves as a stark reminder that health and human rights are inextricably bound together, and member states must “build back better” by engaging in a critical reflection on the imperative to respond to global public health threats through the lens of a comprehensive human rights framework. Where public health emergencies are suffused with scientific uncertainty and demand global solidarity, it is necessary to build on the Siracusa Principles to develop robust human rights norms and principles specific to global public health emergencies.[31] Aligning human rights law with global health law, these interconnected reforms of both the IHR and the Siracusa Principles can ensure state accountability for rights-based responses to the public health threats of the future.
Benjamin Mason Meier is an Associate Professor of Global Health Policy at the University of North Carolina at Chapel Hill, USA.
Hanna Huffstetler is a Master of Public Health candidate at the University of North Carolina Gillings School of Global Public Health.
Roojin Habibi is a Research Fellow, Global Strategy Lab, and PhD Candidate, Law, York University.
References
[1] L. Gostin and J. Mann, “Towards the Development of a Human Rights Impact Assessment for the Formulation and Evaluation of Health Policies” Health and Human Rights 1/1 (1994) 70-71.
[2] International Covenant on Civil and Political Rights (ICCPR). G.A. Res. 2200A (XXI) (1966); Article 4 of the International Covenant on Civil and Political Rights sets out that certain rights are non-derogable under any circumstances, including times of emergency that threaten the life of the nation: the right to life (Article 6); the right to be free from torture, cruel, inhuman and degrading treatment, including medical or scientific experimentation without consent (Article 7); the right to be free from slavery, slave trade, and servitude (Article 8); the right to be free from imprisonment due to an inability to fulfill a contractual obligation (Article 11); the right to be free from being held guilty of any criminal offense that was not considered a criminal offense at the time it was committed (Article 15); the right to be recognized everywhere as a person before the law (Article 16); and the right to freedom of thought, conscience, and religion (Article 18).
[3] E. J. Criddle and E. Fox-Decent, “Human Rights, Emergencies, and the Rule of Law,” Human Rights Quarterly 34/39 (2012).
[4] D. S. Silva and M. J. Smith, “Commentary: Limiting Rights and Freedoms in the Context of Ebola and Other Public Health Emergencies: How the Principle of Reciprocity Can Enrich the Application of the Siracusa Principles” Health and Human Rights 17/1 (2015).
[5] The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4, Annex (1985).
[6] M. Kirby, “Human rights and the HIV paradox,” The Lancet 348 (1996), pp. 1217-1218.
[7] J. M. Mann, L.O. Gostin, S. Gruskin, et al., “Health and Human Rights,” Health and Human Rights 1/1 (1994).
[8] J. J. Amon and E. Friedman, “Human Rights Advocacy in Global Health,” in L.O. Gostin and B.M. Meier (eds) Foundations of Global Health & Human Rights (New York: Oxford University Press, 2020).
[9] E. Fee and M. Parry, “Johnathan Mann, HIV/AIDS, and Human Rights,” Journal of Health Policy 29/1 (2008), pp. 54-7 1; S. Gruskin, E.J. Mills, D. Tarantola, “History, Principles, and Practice of Health and Human Rights,” The Lancet 370/9585 (2007), pp. 449-455; B.M. Meier, K.N. Brugh, and Y. Halima, “Conceptualizing a Human Right to Prevention in Global HIV/AIDS Policy,” Public Health Ethics 5/3 (2012), pp. 263-282.
[10] L.O. Gostin and B.M. Meier, “Introducing Global Health Law,” Journal of Law, Medicine, and Ethics 47 (2019), pp. 788-793.
[11] Revision and Updating of the International Health Regulations. UN Doc. WHA 48/7 (1995).
[12] D. P. Fidler, “Revision of the World Health Organization’s International Health Regulations,” ASIL Insights 8/8 (2004). Retrieved: https://www.asil.org/insights/volume/8/issue/8/revision-world-health-organizations-international-health-regulations.
[13] D. P. Fidler, “Germs, Governance, and Global Public Health in the Wake of SARS,” Journal of Clinical Investigation (2004), pp. 799–804.
[14] K. J. Monaghan, “SARS: Down but Still a Threat,” in S. Knobler, A. Mahmoud, S. Lemon et al (eds) Learning from SARS: Preparing for the Next Disease Outbreak: Workshop Summary (Washington DC: Institute of Medicine, 2004).
[15] M. Whelan, Negotiating the International Health Regulations (Geneva, Switzerland: The Graduate Institute Geneva, 2008); International Health Regulations (IHR), UN Doc. WHA 58.3, 2nd ed., (2005), Art. 12. See also S. Negri, “Communicable Disease Control,” in G.L. Burci and B. Toebes (eds) Research Handbook on Global Health Law (Edward Elgar Publications, 2018), pp. 265–302.
[16] IHR, art. 43.
[17] IHR, art. 44.
[18] D. Fidler and L.O. Gostin, “The New International Health Regulations: An Historic Development for International Law and Public Health,” Journal of Law, Medicine, and Ethics (2006), pp. 85-94.
[19] Human Rights Watch. (2020, March 19). “Human Rights Dimensions of the COVID-19 Response.” Retrieved from: https://www.hrw.org/news/2020/03/19/human-rights-dimensions-covid-19-response; Lebret A. COVID-19 Pandemic and Derogation to Human Rights. Journal of Law and Biosciences. 2020; 7(1).
[20] IHR Art. 43.
[21] N. A. Errett, L. M. Sauer, L. Rutkow, “An Integrative Review of the Limited Evidence on International Travel Bans as an Emerging Infectious Disease Disaster Control Measure.” Journal of Emergency Management 8 (2020); R. Habibi, G.L. Burci, T.C. de Campos, et al, “Do not violate the International Health Regulations during the COVID-19 outbreak,” The Lancet 395/10225 (2020), pp. 664-666; UN General Assembly. 2020. Global solidarity to fight the coronavirus disease (COVID-19). UN Doc : A/RES/74/270.
[22] IHR, Art. 42.
[23] Universal Declaration of Human Rights (UDHR), G.A. Res. 217A (III) (1948), Art. 1; ICCPR Art. 1 and 26; International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200A (XXI) (1966), Art. 2 and 3; International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965) Art.1; Human Rights Watch, “COVID-19 Fueling Anti-Asian Racism and Xenophobia Worldwide,” Human Rights Watch (2020). Retrieved: https://www.hrw.org/news/2020/05/12/covid-19-fueling-anti-asian-racism-and-xenophobia-worldwide
[24] IHR Art. 5.
[25] A. Kharpal, “Use of Surveillance to Fight Coronavirus Raises Concerns about Government Power After Pandemic Ends,” CNBC (2020). Retrieved: https://www.cnbc.com/2020/03/27/coronavirus-surveillance-used-by-governments-to-fight-pandemic-privacy-concerns.html.
[26] International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI) (1966), Art. 17; O. Nay, “Can a virus undermine human rights?” Lancet Public Health 5/5 (2020), pp. e238-e239.
[27] D. Pūras, J. Bueno de Mesquita, L. Cabal, et al, “The Right to Health Must Guide Responses to COVID-19,” 395/10241 (2020), pp. 1888-1890.
[28] IHR, Art. 44; See also L.O. Gostin and R. Katz. “The International Health Regulations: The Governing Framework for Global Health Security,” Millbank Quarterly 94/2 (2016); J. Bueno de Mesquita and B.M. Meier, “Moving towards global solidarity for global health through multilateral governance in the covid-19 response,” in COVID-19, Law and Human Rights: Essex Dialogues (University of Essex, 2020), pp. 31-40.
[29] L. O. Gostin, B. M. Meier and R. Habibi, “Has Global Health Law Risen to Meet the COVID-19 Challenge? Revisiting the International Health Regulations to Prepare for Future Threats” Journal of Law, Medicine & Ethics 48 (2020), pp. 376-381.
[30] N. Sun, “Applying Siracusa: A Call for a General Comment on Public Health Emergencies,” Health and Human Rights Journal (2020). Retrieved: https://www.hhrjournal.org/2020/04/applying-siracusa-a-call-for-a-general-comment-on-public-health-emergencies/.
[31] L. Rubenstein and M. DeCamp, “Revisiting Restrictions of Rights After COVID-19,” Health and Human Rights Journal (2020). Retrieved: https://www.hhrjournal.org/2020/06/revisiting-restrictions-of-rights-after-covid-19/.