16 Jun Is an Ineffective State Response to COVID-19 a Violation of Human Rights?
[Haniya Hasan is a Pakistani legal researcher, based in Islamabad, conducting research on issues of international human rights and humanitarian law.]
The State response to the COVID-19 pandemic has been varied procedurally, operationally, and in terms of overall success. Nevertheless, key procedural and operational factors contributing to an effective State response (e.g. New Zealand’s) has shared certain characteristics: speedy precautionary measures, consistent and up-to-date information, and well-maintained healthcare services. In almost every case of an ineffective response such as that of the UK in March, or the US, one or more of these factors has been lacking. Delayed, inconsistent, relaxed, and/or mismanaged State responses to COVID-19 have led to several thousand ‘preventable’ deaths.
The relevant human rights context of State responses
The relevant human rights in the context of COVID-19 relate primarily to the right to accessible and quality healthcare. The right to the ‘highest attainable standard’ of health is expressed in Article 12 of the ICESCR. To ensure accessible and quality healthcare is also accepted as a positive obligation on States under Article 2 of the ECHR (Osman v UK; Asiye Genc v Turkey). The Inter-American Court of Human Rights has also interpreted the ACHR as establishing a justiciable right of health in Poblete Vilches and Others v Chile and Cuscul Piraval and Others v Guatemala. Linked with a comprehensive right to health is the freedom of access to information (CESCR General Comment 14, para. 44(d)) and the rights of marginalized groups (such as asylum seekers and prisoners), minority communities, and the elderly to receive quality healthcare without discrimination (ibid., para.43 (a)).
The right to health is subject to ‘progressive realization’. This means that it is not a right that demands immediate fulfilment. However, General Comment 14 provides that the core obligations to take effective steps towards full realisation and to ensure non-discrimination while upholding the right to health are immediate imperatives to the State (para. 30). The jurisprudence from regional human rights systems also echoes the reasoning that the right to health obliges States to ‘respond appropriately to avoidable health risks, that is, ones that can be controlled by human action’. (Lopes de Sousa Fernandes v Portugal, para. 24; see also Poblete Vilches v. Chile).
These human rights create a landscape in which States’ accountability for their response to COVID-19 can be adjudged upon. Ineffective State responses to the COVID-19 pandemic might not ostensibly go against international or regional human rights standards. However, when reviewed, violations of human rights become apparent. A common response by States that were ineffective in controlling the pandemic was a delayed response. The failure to act, especially when legally obligated to take measures to control and treat epidemics is a violation of Article 12 of the ICESCR (General Comment 14, para. 49). Under the ECHR, where the standard of knowledge of risk has been met by a State, it cannot justify a prolonged response as adequate (Brincat v Malta, para. 110).
Another major marker of an ineffective State response was inaccurate or inconsistent information regarding the spread of the virus and safety guidelines. The right to health is inherently associated with the freedom to seek, receive, and impart information regarding healthcare issues (General Comment 14, para 12; Oneryildiz v Turkey para. 90). Failure to provide such information is a violation of this freedom.
Interpretation of Article 12 of the ICESCR and Article 2 of the ECHR elucidate that states are obliged to allocate and spend funds on healthcare facilities. In Asiye Genc v Turkey, the ECtHR’s Grand Chamber held that Turkey had not taken ‘sufficient care’ to maintain smooth and accurate functioning of its health system. This could not be attributed ‘solely to an unforeseeable shortage of places’ (para. 80). Inadequate or under-resourced healthcare facilities (including the lack of PPE for medical staff and ventilators for patients) during the pandemic, therefore, fall within the purview of such obligations (Stubbin-Bates, 2020).
At the intersections of age, race, economic class, legal status or marginalization, the failures, to guarantee the right to health take on an altogether more concerning character. The right to health is emphatically non-discriminatory; it is one of the core elements of the right itself (General Comment 14, paras. 30, 34, 43, 50; Alyne da Silva Pimentel v. Brazil, CEDAW Communication 17/2008). The burden is on states to provide healthcare facilities and services to vulnerable persons including prisoners and other detainees such as asylum seekers and illegal migrants (Principle 9, Basic Principles for the Treatment of Prisoners; OHCHR Human Rights Dispatch ‘COVID-19 and Protection of right to life in places of detention’). The Refugee Convention also imparts that all refugees shall receive the same level and quality of healthcare as citizens of that country (Article 23) as well as having recourse to the ICESCR, and other human rights standards.
Defences available to a State for human rights violations
Wrongfulness of a state’s violation of international legal obligation can be precluded through Articles 23-25 of the ARISWA: i.e. force majeure, distress, and necessity. The impact of state-responsibility on human rights violations, particularly violations of progressive rights is difficult to adjudge due to the uncertainty of when an obligation might be breached (Zhang, 2018). However, as this does not erase the applicability of state-responsibility on human rights violations, the defences are still of import to the discussion.
Force majeure is available where performing an obligation is made impossible due to an irresistible force. In the context of human rights violations during the pandemic, State response leading to failures to comply were not borne out of a ‘material and absolute impossibility’ to comply with human rights obligations (Rainbow Warrior case). Enforcing those rights might have been rendered more challenging which is not enough to amount to precluding wrongfulness (Commentary to the ARSIWA, Article 23, s. 3).
Necessity as a defence is only applicable where the State commits a wrongful act to safeguard an ‘essential interest’ against imminent peril. What is an ‘essential interest’ is relative and must reasonably outweigh all competing interests. (ibid., Article 25, s. 17). For instance, pandemic-related economic crises may not qualify as essential interests given that the outbreak is classified as an international-level emergency; the right to health is likely to outweigh any other interests that States may rely on to preclude violations of their human rights obligations.
Distress is available as a defence where the State has ‘no other reasonable way’ to save lives in its ‘care’. This is arguably the only defence that States could rely on given that it has more vagueness regarding the choice of action the State could ‘reasonably’ perform (Paddeau and Jephcot, 2020). Nevertheless, the defence is bound by proportionality; like the defence of necessity, the interest protected through State action must outweigh all other competing interests that were impaired.
The doctrine of margin of appreciation is used by the ECtHR to give a State some discretion when implementing a Convention right, subject to ECtHR supervision. The margin of appreciation is most articulated in ECtHR judgments and is not elucidated within the Convention or its travaux préparatoires. With the right to health, the case law is uneven (Opinion of Jude Albuquerque, Lopes de Sousa v. Portugal). But a major through-line is that a State will engage its responsibility where it fails to ensure that its public health system is functioning correctly and adequately to preserve the lives of those in its jurisdiction. Positive obligations, like that of ensuring the right to health, can be fulfilled in a number of ways (Brincat v Malta, para. 116), but where the State fails to do so, with actual or constructive knowledge of the risk to lives, then it will engage responsibility. A ‘chronic state of affairs’, failure to ensure ‘correct functioning’ of the public health system, and ‘structural dysfunction’ in hospital services have all been deemed by the ECtHR as precluding a wide margin of appreciation.
Ultimately, the defences available must be contextualised to the kind of legal obligation compromised by a State’s action. Human rights obligations, particularly the rights to life and health, the principle of non-discrimination, and the freedom of information about health, are usually non-derogable in most human rights systems. Violations of these obligations are, therefore, most concerning and demand accountability.