10 Jul Too Much Too Soon? – A Snapshot of Egypt’s COVID-19 Response
[Nora Salem is Assistant Professor and Head of the Public International Law Department at the German University in Cairo with a research focus on Women’s Human Rights in the Middle East. She has recently published an entry for the MPEPIL on Sharia Reservations to Human Rights Treaties, as well as a book on The Impact of the UN Women’s Rights Convention on Egypt’s Domestic Legislation (Brill).]
After the WHO’s characterization of COVID-19 as a pandemic on 11 March 2020, the Egyptian government rapidly adopted a variety of containment measures to curb the spread of the virus on 14 March 2020, two weeks after the first confirmed COVID-19 case in Egypt. These measures were accompanied by ambitious mitigation measures to reduce the socioeconomic impacts on the most vulnerable groups. As of today, 1 July 2020, most of the containment measures, including international flight restrictions, night time curfew as well as closure of the entertainment industry, are lifted. Instead, the government announced its co-existence strategy, whereby people will have to implement certain precautionary measures, including wearing face masks, hand sanitation and operation of the entertainment industry at 25 percent capacity.
This development seems rather surprising and anticyclic, considering Egypt’s rising COVID-19 numbers, while it had a relatively low infection rate back in March. Thus, the question arises whether the lifting of containment measures is indeed “too much too soon” or rather an inevitable necessity to protect the livelihood of those not suffering from severe COVID-19 symptoms, particularly for a low-income country?
This blog will first assess the existence of an obligation to adopt public emergency measures to contain the widespread of COVID-19 (I.), and secondly assess Egypt’s compliance (II.), followed by concluding remarks (III.).
I. Egypt’s COVID-19 response in light of an international legal obligation to adopt public health measures
An international obligation to adopt domestic public health measures results from a number of internationally binding frameworks and principles, most notably the human rights framework (for discussions of other principles, see here, here and here).
The right to life is ensured in Article 6 of the International Covenant on Civil and Political Rights (ICCPR). As outlined by the Human Rights Committee (HRC), the ICCPR’s monitoring body, in its General Comment No. 36, States have an obligation to respect the right to life, meaning refraining from conduct resulting in arbitrary deprivation of life, and an obligation to ensure the right to life, meaning giving effect to it through legislative and other measures. When the right to life is threatened by acts that are not attributable to the State, such as infection with COVID-19, States parties have a due diligence obligation to take measures that protect individuals against the deprivations caused horizontally (para. 7). The HRC clarified in that same General Comment, that “the duty to protect life also implies that States Parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life […which…] may include […] the prevalence of life-threatening diseases […]” (para. 26). To comply, the HRC requests States parties to “develop strategic plans for advancing the enjoyment of the right to life […and…] when necessary, contingency plans and disaster management plans designed to increase preparedness and address natural and manmade disasters that may adversely affect enjoyment of the right to life […]” (para. 26).
The right to the ‘highest attainable standard of physical and mental health,’ in short the right to health, entailedin Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), is a right of everyone to healthcare systems, facilities, goods and services that are available, accessible, acceptable and of sufficient quality. Article 12 (2) lit. c ICESCR requires States to take steps to achieve the full realization of this right necessary for “the prevention, treatment and control of epidemic, endemic, occupational and other diseases.” To comply with this obligation, the CESCR mentions in its General Comment No. 14 that States are obliged to establish “prevention and education programmes for behavior-related health concerns.” Adopting domestic public emergency health measures to prevent the widespread of COVID-19, falls within such prevention measures and are thus required by virtue of the obligation of States to protect the right to health.
Considering that the specific design of these public emergency health measures –i.e. travel bans, lockdowns, mandatory quarantine, contact tracing– places serious restrictions on civil and political rights –i.e. the right to liberty, freedom of movement, freedom of assembly right to privacy (see detailed discussion here)– the Siracusa Principles affirm that such emergency restrictions must be strictly necessary, proportionate, carried out in accordance with law and scientific evidence, limited in duration, and subject to review (see detailed discussion here).
As far as public emergency health measures constrain economic, social and cultural rights –i.e. the right to education, right to social protection, right to work, right to an adequate standard of living– the ‘minimum core obligations’ doctrine, developed by the CESCR in its General Comment No. 3, requires the immediate and non-retrogressive realization of a minimum core of each right entailed in the ICESCR (see detailed discussion here).
II. Egypt’s compliance
Egypt is party to the earlier mentioned human rights treaties, ICCPR and ICESCR, and thus internationally obliged to adopt public health measures to contain the widespread of COVID-19. According to Article 93 of Egypt’s 2014 Constitution, international treaties have the status of statutory laws.
In accordance with Article 154 of the Constitution in conjunction with the newly amended Law 162 of 1958, the Egyptian government has formally declared the state of emergency for three months on 28 April 2020, which is an ongoing extension of Egypt’s state of emergency since 2015. The specific containment measures were issued in a number of executive decrees (Executive Decrees issued by the Prime Minister, 606/2020; 717/2020; 718/2020; 719/2020; 724/2020; 768/2020; 852/2020; 923/2020; 939/2020; 940/2020; 1024/2020; 1069/2020; 1196/2020; 1093/2020, available in Arabic here) and established on 14 March 2020 a country-wide partial lockdown, meaning a curfew during night hours (varying between 5pm-8am at its peak) for all individuals and businesses, including commercial shops, public and private transportation (with exemptions for essential goods), banks, grocery shops, pharmacies; complete closure of entertainment and amusement facilities, including sports and youth centers, parks, beaches, hotels, bars, coffee shops, restaurants (exemption for home delivery outside curfew hours); suspension of non-essential governmental services, nurseries, schools, universities, and air-traffic (exemption for repatriation flights for Egyptian citizens with a mandatory seven-day quarantine); while hospitals, medical centers, media outlets, and the transportation of medical supplies, petroleum and food are exempted from the partial lockdown. Violations of the partial lockdown is threatened with imprisonment and / or fines up to EGP 5,000 (EUR 275). These measures aim to curb the widespread of COVID-19.
During Egypt’s gradual re-opening phase, between 14 – 30 June 2020, the curfew was further reduced to night hours from 8pm – 4am for the above mentioned businesses and movement of individuals; closure of above mentioned facilities, albeit opening of hotels for local tourism with a 25 percent occupancy rate; and continued suspension of non-essential services and educational facilities pursuant to Executive Decree No. 1196 of 2020, from 11 June 2020. The decree also stipulates mandatory precautionary measures. As of today, 1 July 2020, most of the containment measures –including international flight restrictions, night time curfew as well as closure of the entertainment industry– are lifted, while people have to abide by the mentioned precautionary measures, including wearing face masks, hand sanitation and operation of the entertainment industry at 25 percent capacity.
In order to reduce the socioeconomic impacts on the most vulnerable persons, the Egyptian government adopted numerous measures, including the allocation of EGP 100 billion (EUR 5.5 billion) to fund a comprehensive plan to combat the economic effects of COVID-19, mainly the tourism sector, poor families and the stock market. In addition, the government allocated EGP 50 million (EUR 2.8 million) for economic incentives to workers in the informal labor sector, including women, and expanded the national social protection program (an analysis of Egypt’s gender-sensitive COVID-19 response has been submitted to the American Journal of International Law for peer review by the author).
III. Too much too soon?
While some may criticize Egypt’s COVID-19 response for being too weak, it should be born in mind that 63 percent of total employment in Egypt is in the informal sector (between 30-40% of GDP), and 32 percent live below the national poverty line. Implementing a full lockdown to contain the widespread of COVID-19 will lead to unprecedented poverty since the majority of informal workers are daily workers and depend on leaving the house to provide for their families (OECD estimated a rise of poverty rates by 12 percent, driving 44.4 percent, meaning 12.9 million workers, below the poverty line).
The above-mentioned mitigation measures to reduce socioeconomic impacts on the most vulnerable groups will, however, neither cover the initial 32 percent of the overall population living in extreme poverty, nor prevent the middle class from falling into poverty.
While protecting lives should be the highest virtue of all governments, it is a sad reality that the financial capabilities of a country inform the dimension of protection measures, even more so for low-income countries. It is that light in which Egypt’s previous moderate public health measures and today’s shift from containment to precautionary measures must be seen.