Building Back Better and Being Prepared: Lessons from COVID-19

[Rhona Smith is Professor of International Human Rights at Newcastle Law School.]

Photo credit: Rhona Smith

The précis presented herein is simple, all States are obliged both to ‘build back better’ in the wake of the current SARS-CoV-2 pandemic and to be better prepared for COVID-19, any future variations and indeed other pandemics. These obligations are grounded in international laws and frameworks accepted by all UN member states.  To support this contention, salient elements of the human rights framework and guidance on building back better will be outlined, concluding with consideration of solidarity, collaboration and partnerships.

International Human Rights and Positive Obligations

That the current pandemic impacts on human rights is a moot point. Those rights and freedoms most frequently highlighted include rights to highest attainable physical and mental health, safe working conditions, freedom of movement within and to states, respect for life, family rights, education, housing, water and sanitation, food, and freedoms of association, expression and assembly. Given the scale of the pandemic and diverse government responses, however, almost all rights are engaged and crosscutting any rights analysis are freedom from discrimination and the right to equality of enjoyment of all rights. Of course rights and freedoms are interrelated, interdependent indivisible and universal (Vienna Declaration, 1993, at para 5) with applicable grounds of discrimination often multiple and intersecting. States are obliged to conform with core international human rights standards including during emergencies; protecting rights and freedoms are arguably even more important in times of crisis.

Whilst it is acknowledged that States can legally derogate elements of protection of some rights and freedoms during public emergencies, such derogations depend on the pre-existence of a state of emergency and must only be to the extent strictly required by that emergency. As the UN High Commissioner for Human Rights, Michelle Bachelet, noted in April 2020, emergency powers ‘should be used to cope effectively with the pandemic – nothing more, nothing less’. With the transmission of COVID-19, states sought more to derogate from regional treaty obligations (Council of Europe and Organisation of American States) than co-applicable UN treaty obligations. Some instruments of derogation have been revoked by the state/s concerned, whilst others remain in force. Nevertheless, many states are infringing human rights and freedoms in their legislative and policy COVID-19 responses. Permissible grounds claimed for limiting rights and freedoms include maintaining public order and protecting public health. Lebret highlights the need to ensure vulnerable people are not disproportionately affected by any lawful restrictions on, or derogations from, rights and freedoms.

According to Michele Bachelet, human rights is the vaccine everyone needs. Stronger protection and promotion of human rights during and after the pandemic certainly would positively contribute to global recovery and rehabilitation. For those states in the throes of the pandemic, robust protection of rights and freedoms will, like a vaccine, offer protection to people in the state. For states yet to experience uncontrollable community transmission, human rights offers a framework. The High Commissioner’s comment was made in the context of increased push back against international human rights with rights and freedoms increasingly under pressure, a situation magnified by state responses to the pandemic. Around the world, many freedoms were and are restricted and emergency laws enacted/invoked to provide a legal basis for broad restrictions on rights of individuals and groups and wide powers being wielded by authorities.

During the pandemic, states increasingly took positive measures to impede the enjoyment of rights and freedoms. As a consequence of the positive obligations inherent in human rights, they must also take positive steps to realise aspects of rights. Positive obligations inherent in human rights obligations remain sometimes contentious. Of particular relevance in the pandemic era are positive rights embedded in respect for the right to life. States are, for example, required to ensure appropriate personal protective equipment for healthcare workers and other public service workers exposed to viral loads (eg see Mallory)  and to ensure all measures are taken to minimise deaths and investigate deaths thereafter. The European Court has upheld a duty on states to investigate deaths caused by environmental disasters: in Öneryıldız v Turkey a methane explosion at a municipal rubbish dump causing a fatal landslide.  All states are legally obliged to take steps to ensure that rights and freedoms are protected within their jurisdiction in terms of core human rights treaties.  The UN Human Rights Committee, which reviews state compliance with the International Covenant on Civil and Political Rights, indicated potential responsibility arising in respect of environmental degradation and natural disasters (General Comment 36(2018), para 62), and elaborated further on this vis-a-vs climate change in its opinion on communication Ioane Teitiota v New Zealand. To discharge positive obligations, states must be conscious of all possible consequences of their action, or indeed inaction. The European Court of Human Rights, in Budayeva and others v Russia, considered at length the positive obligations incumbent on states to be prepared for known risks, in that instance mudslides.

Whilst not necessarily fully embraced by states, the primary duty bearers, there are positive obligations incumbent on states and action is required on the part of states to ensure human rights are centred in their pandemic responses (and indeed community transmission preparations).  What is perhaps less clear is the range of positive obligations applicable moving forward in the aftermath of the pandemic and, for those states which has so far avoided mass infections, if community transmissions occur and/or rise. To better understand the consequences, it is necessary to draw on human rights treaties as well as international guidance on disaster preparedness, response and recovery.

Build Back Better: Sendai Framework

Positive obligations also require states to take steps to protect lives of those within their jurisdiction from any violation of rights caused by future pandemics. Dr Michael Ryan highlighted at the General Assembly in October 2020 that ‘COVID-19 may just be a harbinger of what may come’ though history also attests to the ebbs and flows of pandemics and the WHO and scientists have long been warning of the increasing risks of zoonotic diseases. ‘The ultimate test of preparedness is response’ and certainly governments’ responses are now being considered and, as noted above, should be comprehensively reviewed ex post facto. Lessons must certainly be learned. However, national preparedness must also be honed and tested for future pandemics.  This means reviewing and updating pandemic preparedness plans, generally that being those for seasonal influenza.

Writing in December 2020, on the African response to COVID-19, Justice King highlights the importance of socio-economic rights, including their fulfilment by private sector actors, to ‘“building back better” to ensure improved resilience to future public health and other emergencies’.  This reflects elements of the Bangkok Principles for the implementation of the health aspects of the Sendai Framework for Disaster Risk Reduction 2015-2030 which advocated a ‘whole-of-government, whole-of-society’ approach placing populations and communities at risk at the centre of disaster and emergency risk management measures. More broadly, Ruger has posited building ‘flourishing and resilient communities’ on a basis of robust public health systems operating under principles of positive public health ethics. More than political commitment is required, rhetoric must transform to reality. Sustained investment is also needed, not only establishing and maintaining public health systems, but also addressing the underlying issues in each state which impact on health, particularly health inequalities.

Addressing health inequalities requires states to consider the findings of the WHO’s Commission on the Social Determinants of Health. In particular, the issues of poverty and its causes, must be identified and concrete steps taken to remedy them. As Marmot notes (p1103) ‘action on the social determinants of health is necessary not only to improve health but also because such improvement will indicate that society has moved in a direction of meeting human needs’. Ensuring the most vulnerable are protected is captured by ‘leaving no one behind’, a central theme of the UN Sustainable Development Goals, agreed by UN states the same year as the Sendai Framework on Disaster Risk Reduction.  Achieving the goals, all goals, will address social determinants of health in a meaningful way, building stronger and more resilient states. Of course, it is well established that the goals map directly on to human rights (Danish Institute for Human Rights) so strengthening protection and promotion of rights and freedoms will contribute to this.

Building back better requires the addressing of inequalities in states. In terms of socio-economic rights, inequalities within states have been magnified by the pandemic. Work is being undertaken in many states to disaggregate deaths and infections by age, race, socio-economic status, employment, and so on. Obviously in other states, the numbers are small and infections mostly imported. Statistical information is easier to gather and disaggregate when there is little or no community transmission and accessible and effective testing. Disaggregated statistics play a central role in identifying those vulnerable to being left behind, offering evidence based ways forward.   Writing before the COVID-19 pandemic, Seatzu posits a duty to protect victims of global health emergencies drawing on international human rights treaties, with arguments that can be applied more generally to pandemic recovery.

International Partnerships, Collaboration and Solidarity

Pandemics, by definition are transnational events. Particularly in our high connected global world, they necessitate an international response with global partnerships and international collaboration. As Kreienkamp concludes ‘catastrophic risks cannot be successfully addressed anywhere unless they are addressed everywhere’, a point echoed by the UN High Commissioner for Human Rights in December 2020: ‘[t]he pandemic has highlighted over and over again that no one is safe until everyone is safe’.  With reference to the post-pandemic period, Woods draws parallels with the actions taken after the second world war to rebuild devastated economies and disparate populations. That period in history was a catalyst for the inception of modern human rights and fostered an international sharing of (some) resources at international and regional levels.  The rapid spread of COVID-19 in 2020 evidences the shared global vulnerability to aerosol-transmitted highly infectious viruses. A shared risk necessitates a shared response: partnerships and collaboration are crucial in responses to the SARS-CoV-2 pandemic.

O’Donnell and Allan posit an international duty of solidarity, concluding that a duty on states to offer assistance in time of disasters, ‘would lend a concreteness to the material edge of international solidarity’. This was written against a backdrop of the International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disaster but certainly is tested in the swift mobilisation of scientific and medical resources during the pandemic. Nevertheless, responses to the pandemic did illustrate considerable nationalistic tendencies with wealthier states competing to source as much personal protective equipment and ventilators as possible in early 2020. Nevertheless, there were and are incidences of solidarity in other regions, with support offered to pacific island states, within southeast Asia and elsewhere. The COVAX programme will hopefully be a success. Through this the World Health Organisation promotes equitable global access to vaccines, particularly for health care workers and those most-at-risk in the pandemic: it aims at fairly distributing two billion doses by the end of 2021, a significant challenge when global wealth inequality is so evident in the regulatory approval and rollout of COVID-19 vaccines. The need to redress such inequalities also finds expression in the work of Ruger who has focussed on the interrelationship of public health and global governance.  They are indelibly linked. Improving public health, and in particular, combatting major threats to global health does demand collaboration, partnerships and a sharing of resources and experience. This is nothing new, with similar arguments having been made for decades with respect to the climate emergency.

Final Remarks

With the world reaching a crossroads, now is the time for states to embrace human rights and collaborative partnerships as they seek to build back better from the COVID-19 pandemic. A truly global recovery effort could strengthen resilience, and make concrete advances towards fulfilling political and legal commitments States have made in terms of human rights, sustainable development and disaster risk reduction.