Published on 16 December 2018 at 10:10am
INTRODUCTION
The international reaction to the Ebola crisis demonstrates the sheer extent to which human rights can be suspended when there is a public health emergency of international concern. The protection of public health in the case of infectious diseases and other ‘health security threats’ inevitably conflicts with the exercise of individual rights, such as the rights to freedom of movement, physical integrity and privacy.[1] The popular portrayal of public health issues as ‘bioterrorism’ and threats to national security heightens the stigma and fear around these issues and undermines the fulfilment of human rights goals such as equality for all without any discrimination.[2]
The public health limitation is essential to ensure States are able to effectively implement preventative measures to avoid the spread of infectious diseases, such as Ebola, but they must not unduly constrain individual rights.[3] The limitation has the potential to raise the profile of public health issues and increase the amount of resources directed towards combatting these issues.[4] It is also arguable that the successful global containment of SARS in 2003 highlights how the public health qualification can allow the international community, including WHO, to act proactively for the common good.[5] On the other hand, perceiving public health issues as national security threats arguably distorts public health priorities and leads to negative ramifications, especially in developing countries.[6]
A Public Emergency
Article 4(1) of the ICCPR extends State powers to allow for derogation of most rights ‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed’. The suspension of these rights may only occur ‘to the extent strictly required by the exigencies of the situation’ and any measures taken by the State must not be inconsistent with their other international legal obligations and should not ‘involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’.[7] The Siracusa Principles note that a threat to the life of the nation must be a situation of exceptional and actual or imminent danger that threatens the physical integrity of the entire population, the survival or functioning of institutions protecting rights or the territorial or political integrity of the state.[8] The purpose of declaring a state of emergency must be to restore the state of normalcy with full appreciation of human rights. [9] Theoretically, states are required to immediately notify the UN Secretary-General of the ICCPR provisions from which they are derogating and why.[10] This brings the state under international scrutiny during the period of the state of emergency so that they do not fall into a condition of lawlessness.[11]
Article 4 of the ICCPR is primarily intended to protect individuals’ rights rather than to allow the imposition of limitations by States. [12] Therefore, a State must justify measures such as mandatory quarantining and restricting the movement of people with transmissible diseases on grounds such as public order or national security.[13] These measures must comply with art 4 of the ICCPR such that they are in accordance with international human rights standards, compatible with the nature of the rights protected under the ICCPR, in the interest of legitimate aims and strictly necessary for the promotion of the general welfare in a democratic society.[14]
B Restraining Freedom of Movement and Association
On 8 August 2014, WHO declared the Ebola outbreak to be a ‘public health emergency of international concern’ but they had no capacity to enforce the International Health Regulations or to lead an international response to the epidemic.[15] The States were left to establish their own response to the outbreak, leading to a number of human rights restrictions as a result of ‘drastic preventative or precautionary measures to reduce the spread of disease’.[16] A number of states parties appeared to descend into a state of public emergency without officially notifying the UN Secretary-General and thereby avoiding significant international scrutiny. In the United States, former President Barack Obama described Ebola as a ‘national security…threat’ and the government seriously considered proposals to control Ebola by implementing passport and visa controls as well as no fly lists.[17] The United States eventually settled for adopting mandatory screening of travellers from countries affected by the Ebola outbreak at major American airports and threatened a 21-day quarantine for anyone affected by Ebola.[18]
Many West African nations adopted a more extreme response to the outbreak by using the military to enforce quarantined zones, imposing curfews and lockdowns, forcing medical tests on individuals, screening individuals entering major towns and cities and requiring cremation of the bodies of Ebola victims.[19] These actions appear to be in direct conflict with art 5.1 of the ICCPR, which requires that ‘the least restrictive alternative must be adopted where several types of limitations are available’ and any limitation adopted by a State must be ‘of limited duration and subject to review’.[20]
It is also important to note that international law has recognised certain human rights, such as the rights to freedom from torture and slavery, as absolute rights that cannot be subject to limitation for any reason.[21] However, the international response to Ebola appears to have suspended even the non-derogable right to freedom from degrading, cruel and inhuman treatment. For example, the three West African countries worst affected by Ebola (Guinea, Liberia, and Sierra Leone), established ‘a mass quarantine in vast forest areas around their common borders’ that were ‘considered the epicentre of the outbreak’ but there was evidence that Ebola had already passed out of these quarantined zones.[22] These nations were able to use military force to create mandatory quarantine zones, impose curfews and lockdowns, force medical tests and screening, with little international interference.[23] These actions disproportionately affected poorer populations, for example Liberian authorities imposed a 10-day quarantine over the country’s largest slum, with soldiers enforcing the blockade of its inhabitants. [24] The actions of these states also conflict with paragraphs 25 and 26 of the Siracusa Principles which provide that, having regard to the International Health Regulations of the World Health Organisation (WHO), ‘public health may be invoked as a ground for limiting certain rights in order to allow a State to take measures dealing with a serious threat to the health of the population or individual members of the population’ but such measures must specifically aim to prevent disease or injury or provide care for the sick and injured.[25]
The drastic measures adopted by the States to prevent the spread of Ebola, including the quarantine of Ebola patients, were clearly necessary due to the fatal nature of the disease.[26] However, the limitations were unnecessary to the extent that they used quarantine as a routine measure or targeted certain parts of the population.[27] The use of military rhetoric and the description of the Ebola crisis as a threat to national security or bioterrorism was largely counterproductive, as it undermined the right to equality by compounding societal fears of Ebola and potentially contributing to the severe measures taken to prevent its spread.[28] The Ebola crisis significantly diminished the attainment of human rights goals and arguably demonstrated that there is no global body capable of effectively responding to an international public health epidemic.[29]
[1] Brigit Toebes, ‘Human rights and public health: towards a balanced relationship’ (2015) 19(4) The International Journal of Human Rights 488, 489. [2] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) art 7. [3] Ebenezer T. Durojaye and Gladys Mirugi-Mukundi, ‘The Ebola Virus and Human Rights Concerns in Africa’ (2015) 19(3) African Journal of Reproductive Health 18, 21. [4] Therese Murphy, Health and Human Rights (Hart, 2013) 67 [5] Ibid 67-8. [6] Ibid 68. [7] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 4(1). [8] Andraž Zidar, ‘WHO International Health Regualtions and human rights: from allusions to inclusion’ (2015) 19(4) The International Journal of Human Rights 505, 507-8. [9] Ibid 508. [10] Ibid. [11] Ibid; International Covenant on Civil and Political Rights, above n 7, art 4(3). [12] Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social & Cultural Rights: Commentary, Cases and Materials (Oxford University Press, 2014) 982. [13] Ibid. [14] Ibid. [15] George J Anas, ‘Ebola and Human Rights: Post 9/11 Public Health and Safety in Epidemics’ (2016) 42 American Journal of Law and Medicine 333, 342; World Health Organisation, Statement on the 1st meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa (Media Statement, 8 August 2014) <http://www.who.int/mediacentre/news/statements/2014/ebola-20140808/en/>. [16] Durojaye and Mirugi-Mukundi, above n 3, 21. [17] Anas, above n 15, 344. [18] Ibid 348. [19] Durojaye and Mirugi-Mukundi, above n 3, 21. [20] Saul, Kinley and Mowbray, above n 12, 982. [21] International Covenant on Civil and Political Rights, above n 7, arts 7-8, 11, 15-16; Universal Declaration of Human Rights, above n 2, art 5. [22] Patrick Eba, ‘Ebola and Human Rights in West Africa’ (2014) 384(9960) The Lancet 2091, 2092. [23] Durojaye and Mirugi-Mukundi, above n 3, 21. [24] Eba, above n 22, 2092. [25] Saul, Kinley and Mowbray, above n 12, 497. [26] Durojaye and Mirugi-Mukundi, above n 3, 22. [27] Ibid. [28] Annas, above n 15, 343-344. [29] Ibid 351.
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