By Caitlin Davis*
The COVID-19 pandemic has caused increasing amounts of fear and anxiety amongst people and societies.
Whilst the virus has no doubt had an impact on the wellbeing of communities, it does not justify violations of human rights standards.
Difficult questions are starting to arise in respect of the human rights implications as a result of the pandemic.
- Are border controls necessary and proportionate to control the spread of the virus?
- Are quarantining and isolation measures unduly restricting our freedom of movement?
- Are social distancing measures implemented without discrimination?
The balancing act of minimising harm may come at a cost to individual liberties and freedoms in a way that many individuals and communities have never experienced, and it reasonable to expect that individuals will start asking questions about their rights. In this article, I explore some of the human rights challenges faced by communities amidst the COVID-19 pandemic.
Maintaining health standards in correctional facilities
Detention centers are a hotspot for the spread of disease and pose additional risk to inmates with underlying health conditions and vulnerable populations. Correctional facilities across Australia are faced with the challenge of ensuring a safe environment for inmates who live in close proximity to one another.
Article 12(2)(c) of the Intentional Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of all persons to realise the highest attainable standard of health. This places obligations on States to take steps for the prevention, treatment and control of epidemic, endemic, occupational and other diseases.
Social distancing measures have been implemented by most States across the globe, however, inmates are not provided with such freedom, which comes at a cost to their ability to exercise health rights. Consistent with international obligations, it is essential that States act to prevent the spread of disease throughout our prison population.
In Australia, jurisdictions such as NSW have enacted emergency legislation providing additional powers for the release of some of the state’s low risk prisoners where it is “reasonably necessary” due to “the risk to public health or to the good order and security of correctional premises.” Measures such as these aim to free up prison space and enable remaining prisoners to be isolated, allowing the health needs of remaining inmates to be adequately addressed.
The right to education amidst potential school and university closures
Whether schools remain open or closed, there are various implications of the COVID-19 pandemic for ensuring the right to education.
Schools and universities provide students with a sense of stability and routine. Where this is suddenly taken away as a result of an emergency, many students will not be emotionally or intellectually supported to cope with such a situation. It is important that support for educational rights is accommodated in such situations.
UNESCO has recommended that such measures may include:
- Supporting online learning to mitigate the immediate impact of lost normal school time;
- Ensuring child rights and privacy are protected through online learning mechanisms;
- Adopt measures to mitigate the disproportionate effects on children who already experience barriers to education, or who are marginalized; and
- Working with teachers, and key personnel to assist recovery of teaching or contact hours lost, adjusting school calendars, and ensuring fair compensation for teachers and school personnel who are working additional hours.
Implications of quarantines and lockdowns
Quarantines and lockdowns impact freedom of movement and can be seen as a deprivation of liberty if they are implemented arbitrarily. Quarantine may also pose additional barriers for people to access basic necessities such as food, hygiene supplies and health care, which further impacts their human rights.
Whilst quarantines and lockdowns may be justifiable to prevent the spread of the virus, it is important to highlight the circumstances by which they are permissible under international human rights law. According to the UN International Covenant on Civil and Political Rights (ICCPR) restrictions may be imposed on the freedom of movement, if:
- They are provided by law, and necessary to protect certain specified legitimate aims, one of which is public health and “are consistent with the other rights recognized in the ICCPR.”
In circumstances where restrictions such as mandatory quarantine or isolation of symptomatic people are enforced, they must:
- be carried out in accordance with the law, be strictly necessary to achieve a legitimate objective, based on scientific evidence, proportionate to achieve that objective, neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, and subject to review.
In addition, the UN reinforced on 25 March 2020 that the provisions of the OPCAT treaty relating to preventing cruel, inhuman or degrading treatment apply to individuals in Australian jails and detention centres, and to people held by the State in quarantine.
The COVID-19 pandemic has brought various challenges for protecting human rights. In such a novel situation, it is understandable that individuals are questioning how they are supposed to know what to do.
What’s the priority: containing the virus, or protecting human rights? This is a difficult question, and both are important considerations in need of respecting.
It is also important to enhance public trust and cooperation, to respect all individuals’ right to dignity and to give individuals as much control as possible over the way they live their lives, even in a situation of crisis.
It is particularly important that, in a situation of crisis, authorities themselves must not act contrary to human rights, civil liberties and freedoms that are what create Australian society and make Australia what it is as the nation of the ‘fair go’.
- Caitlin Davis will graduate soon from the ANU with a Law degree, specialising in bioethics, before going on to undertake postgraduate study in the field of health, rights, liberties and law, particularly in relation to women and childbirth. She is a member of CLA.