Blogpost on COVID-19 and the right to health by Katharina Ó Cathaoir, assistant professor of health law at the Faculty of Law, University of Copenhagen
Health law and governance has never enjoyed so much public support. Faced with a global pandemic, parliaments that previously agreed on little, are unanimously, and rapidly, breathing new life into antiquated health laws. Now that most appear to recognise states’ obligations to safeguard the right to health, we must ensure the quality of public health legislation. Among the important human rights principles, transparency, proportionality and solidarity deserve highlighting.
The principle of transparency underscores that states must adequately inform and include all segments of the population in decision-making. The necessity of public outreach is heightened in an emergency due to the collective vulnerability of the population. Adequate access to the reasons underlining law-making is particularly important given that states are choosing to enact such different measures. Furthermore, accountability is unachievable if citizens lack the information needed to evaluate and criticise decision-making. Yet, during the COVID-19 outbreak, often the basis for government decisions have been unclear. The Danish prime minister, for instance, closed Denmark’s borders, only later admitting that this was a political decision, contrary to the advice of the national health authority. Missteps like this can undermine public trust, which the Ebola outbreak highlighted, is crucial to managing an outbreak.
Transparency must also be central to the use of big data in responding to COVID-19. Several governments are launching mobile apps for contact tracing. While this serves a worthy aim, citizens must be included and informed about how their data will be used and stored. Adequate safeguards, such as, secure storage, timely deletion of data, and not sharing the data for other purposes must be upheld, regardless of the emergency. Consent must be genuinely free; civil liberties cannot be dangled as a carrot to boost participation.
Proportionality is a central legal device common to international human rights and health law. In an earlier judgment, the European Court of Human Rights held that detention must only be used as the “last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest”. Similarly, the World Health Organization’s International Health Regulations (the only internationally binding treaty on global health security) underscores that public health measures “shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection”. In determining whether to implement restrictions, states should have regard to scientific principles, scientific evidence and specific guidance or advice from WHO.
With many states adopting very far reaching, often protectionist measures, the principles of last resort and less severe measures are tacitly being rewritten. Governments have enacting unprecedented restrictions on civil liberties, often with little public debate. Arbitrary limits are being enshrined in law, for example in Ireland, one may only exercise within 2km of one’s home (a rule that does not apply in Northern Ireland). In Austria, a country that recently criminalised full face veils, face masks are now required for grocery shopping. While governments have a wide margin in deciding which public health measures to adopt, they must consider whether the measures are necessary and whether less restrictive measures could be adopted.
From a human rights perspective, it is of particular concern that police are being given far reaching powers to fine and imprison those who do not comply with public health guidance. This is in opposition to the human rights approach to HIV/AIDS prevention – the most recent pandemic. Advocates have fought to remove criminal law from the response to AIDS, arguing that criminal laws are ineffective and likely to increase stigma and discrimination. Criminalisation can furthermore breed distrust, especially if abuses of power occur.
Instead, solidarity within and beyond the state’s borders is vital to ensure a human rights compliant response to COVID-19. Solidarity requires that governments protect the health of all segments of the population and do not neglect the most vulnerable. Alarming reports reveal that persons in the care of the state, including persons in residential care, asylum seekers, refugees and prisoners, are dangerously exposed and increasingly isolated from the outside world. In Ireland, it is believed that one third of care homes have COVID-19. States have heightened obligations towards those who are under their care.
At an international level, global solidarity mandates that governments look for common solutions to shared challenges, such as lack of personal protective equipment. Under the right to health, states have a “collective responsibility” to address disease outbreaks. Countries with the resources must support those that are hardest hit. Solidarity is likely to again be tested when a vaccine is approved and states compete to gain access.
Governments have enacted far reaching restrictions in response to COVID-19, previously unheard of in democracies. While the pandemic has caught many by surprise, experts have long warned that a pandemic was expected. Yet, governments, driven by short-sighted political goals have failed to meet their obligations to shore up health security. Emergency responses must not neglect human rights obligations and principles, notably transparency, proportionality and solidarity. To do so would set a dangerous precedent, likely to be replicated in later outbreaks.
Katharina Ó Cathaoir is an assistant professor of health law at the Faculty of Law, University of Copenhagen
 Laura Friis Wang, Sundhedsstyrelsen: Vi har ikke anbefalet lukning af grænserne. Det er en politisk beslutning (Information, 14 March 2020), available at: https://www.information.dk/indland/2020/03/sundhedsstyrelsen-anbefalet-lukning-graenserne-politisk-beslutning
 European Court of Human Rights, Enhorn v. Sweden 56529/00.
 Article 43, World Health Organization, International Health Regulations (2005).
 Vivienne Clarke, Paul Cullen, One-third of all nursing homes now have virus as expert warns of ‘catastrophe’ (Irish Times, 16 April 2020) Available at: www.irishtimes.com/news/health/one-third-of-all-nursing-homes-now-have-virus-as-expert-warns-of-catastrophe-1.4230418
 CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)
Adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000 (Contained in Document E/C.12/2000/4), para 40.
 Bill Gates, ‘The next outbreak? We’re not ready’ (Tedtalk, 2015)
 Lawrence O. Gostin & Katharina E. Ó Cathaoir, Lurching from Complacency to Panic in the Fight Against Dangerous Microbes: A Blueprint for a Common Secure Future, 67 Emory L.J. 337-396 (2018)