An analysis of national policies and legal frameworks in cooperation with the OHCHR
In response to the Covid-19 pandemic, national policies and responses included numerous restrictions. Many of these risk becoming permanent. In the long run, some may affect the protection and enjoyment of human rights. Dr. Matthew Scott, Senior Researcher and Thematic Lead for the focus area People on the Move at the Raoul Wallenberg Institute, undertook a pilot study called “National Covid-19 law and policy in a human rights perspective”, together with a number of researchers based in Lund and in Geneva.
Can you tell us a bit about why?
When the World Health Organization declared Covid -19 a pandemic in March 2020, we quickly began considering the wide-ranging human rights implications. One of the concerns we had was that states would take steps to try to prevent the spread of infection without carefully considering the implications of such measures for the enjoyment of human rights. We also recognized that other states would use the pandemic as a pretext for restricting civil and political rights, such as freedom of expression and freedom of assembly.
With the support of the Ministry of Foreign Affairs of Denmark, we worked together with the UN Office for the High Commissioner for Human Rights (OHCHR) to examine the measures states across Asia, Africa, and Latin America were taking in response to the pandemic.
What approach did you decide to use to undertake the study?
In order to ensure a robust and systematic analysis, we developed a human rights-based tool informed by the Secretary General’s Framework for the Immediate Socio-Economic Response to Covid -19. This tool underlines issues like access to information, protection from gender-based violence, access to healthcare, health and safety at work, amongst others.
We identified fourteen countries based on a number of considerations, including status on the Development Assistance Committee list and presence and networks of RWI and OHCHR. Countries included, amongst others, Ethiopia, Kenya, Zimbabwe, the Democratic Republic of Congo, Mali, Costa Rica, Ecuador, and India.
What were the findings?
“Focusing on the ten key issues identified in the UN Secretary General’s Framework for the Immediate Socio-Economic Response to Covid -19, we identified a number of areas of concern, but also noted promising practices that reflected a commitment to protecting the human rights of people in the context of the pandemic.”
One of the key areas of concern related to the lack of safeguards built into some of the legal and policy measures developed to respond to the pandemic.
Many documents granted far-reaching powers to government authorities, without clearly defining the scope and limitations of these powers. For instance, so measures granted authorities power to conduct forcible medical examinations and treatment on individuals suspected of being infected with Covid -19.
As none of the countries in the study adopted an expressly human rights-based approach to the pandemic response, legal and policy measures tended to lack systematic consideration of key issues including:
- how to tailor responses to people in situations of particular vulnerability,
- how to ensure access to information, and
- how to balance the public health priority of containing the pandemic against the foreseeable impacts of such containment measures on rights to work, to food, to shelter, to protection from particularly gender-based violence, amongst many others.
However, notwithstanding areas of concern, we also found a range of promising practices, including detailed provisions in some countries for how to address the particular situation of persons with disabilities, children, persons with mental health conditions, amongst others.
Broader public health responses that set out to ensure access to critical services were developed in many countries, as were measures to ensure continued access to education for children, protection from eviction, and access to asylum despite general border closures. With multiple issues across 14 countries, the range of insights emerging from this report is extensive.
Moving forward, we make specific recommendations relating to each of the 10 focus areas, as well as some broader recommendations relating to building back better within a human rights-based multi-level pandemic preparedness and response agenda. Some key recommendations include:
- the need to identify and consider the specific rights and needs of people in situations of potential vulnerability in an early stage of a crisis
- to ensure the economic and practical accessibility to the right to health
- to “prevent stigmatisation and the spread of misinformation, through public awareness raising and effectively spreading accurate information pertaining to Covid -19
- for States to invest the maximum of their available resources into both the immediate alleviation of individual suffering caused by the crisis, but also into building functional and equitable systems of social protection for poverty alleviation, the full enjoyment of human rights and equality in the long-term.
Although some states have certainly taken opportunities to curtail human rights in the context of the pandemic, we also see the seeds for future development in most of the countries that we looked at. The states we studied do pay attention to the rights of people in situations of potential vulnerability. There was also a focus on substantive rights and on the access of information. Across all countries, what we see is the scope for a more systematic development of pandemic preparedness and response capabilities.
There is enormous scope for working with a range of actors at national and local levels to better integrate human rights considerations into existing and future legal and policy frameworks, and to strengthen capacities through collaborative research, education and training initiatives.
“A clear conclusion of this research was that States need to take steps to integrate pandemic preparedness and response measures within a multi-level, multi-stakeholder governance framework, and for such a framework to be informed by human rights principles, as called for under all of the post-2015 development frameworks.
However, it is one thing to call for such action, and something much more challenging to develop in practice.”
Matthew Scott, Senior Researcher at RWI
To further develop what such an approach might look like in practice, and to begin to grapple with the complexities and challenges, we are continuing our collaboration with the OHCHR.
In addition, we have partnered with DanChurchAid to undertake a research and knowledge exchange initiative that focuses on how Covid -19 containment measures affected people’s enjoyment of right to health and the right to water in four municipalities in Zimbabwe.
On the results
The report has been widely circulated and findings used extensively by the OHCHR.
In the follow-up of this project, we organised a webinar with international experts. Check out the recording from the webinar on this study.
What is a Human Rights Based Approach (HRBA)?
Above you mentioned that you decided to undertake a Human Rights Based Approach (HRBA) to carry out the research. What does that mean in this case?
The human rights-based approach to
development cooperation was consolidated in a UN Common Understanding document in 2003. Departing from this, we focused in this research on core human rights principles, including nondiscrimination and equality, proportionality, transparency and accountability, as well as key standards and guidelines relating to the substantive rights themselves.
The pandemic affects a range of substantive human rights beyond the right to health, especially when measures taken to limit its spread are taken into account. Rights to freedom of movement, social security, shelter, food, liberty and security of the person, access to information. Many more are directly impacted by legal and policy measures adopted to limit the spread of Covid-19.
Even though the main purpose of the research was to examine the human rights implications of national legal and policy responses to Covid -19, the main aim was to develop a vision of what states might start to think about in terms of a more robust pandemic preparedness and response framework moving forward.
To frame this vision in one sentence, I would say that the aim of a human rights-based approach to
pandemic preparedness and response is the progressive realisation of an inclusive, multilevel, multi-stakeholder framework.
• The duty of States to respect, protect and fulfill the human rights of all persons within their jurisdiction • Cross-cutting principles of participation and non-discrimination and equality
• The principle of the rule of law
• Principles of necessity and proportionality
• Specific guidance relating to the scope of particular rights, such as the right to health, freedom of movement, right to information, and so forth