Limitations on freedom of movement through home confinement orders

New emergency laws have come into force in many countries requiring that almost all individuals stay within given geographical areas or remain confined to their homes. China’s lockdown of Wuhan and the wider Hubei Province confined about 60 million people to their homes.5 Other countries, including India, France, Italy, New Zealand, South Africa and Poland, have imposed nationwide lockdowns, save for ‘essential workers’ such as doctors, nurses, pharmacists, grocery cashiers, government workers and food delivery services.6 Governments have enforced these lockdowns with sanctions, including imprisonment, as in Australia, where leaving home without a ‘reasonable excuse’ can incur fines of up to $A11000 or 6 months’ imprisonment.7 In India and Uganda, impoverished populations in informal settlements have been threatened with violence by authorities.8 9 Some of these lockdowns have been partially or fully lifted, but they will likely be reimplemented as new outbreaks arise. While we do not dispute the public health necessity of lockdowns as a legitimate response to COVID-19, some of these measures (as in India and Uganda) use unnecessary and disproportionate force.

Other countries have imposed explicit human rights violations in responding to the COVID-19 crisis, most egregiously in Hungary’s enactment of a state of emergency without a clear time limit, allowing the prime minister to rule by decree.10 In other countries, lockdowns have had more indirect human rights impacts: for example, in Panama, the pico y género rule, which allowed men to leave their homes to buy food/medications on certain days and women to do so during other days, has disproportionately impacted transgendered women. There have been multiple reports of police harassment of trans women who had gone out to buy foods on days when women could do so.11 12 Reinforcing existing societal fault lines through confinement orders, Myanmar and Russia have introduced lengthy prison sentences and incarcerated greater numbers of individuals from marginalised populations for violating COVID-19-related measures,13 with overcrowding in prisons and detention centres inevitably increasing the potential for the rapid spread of COVID-19, worsened by substandard healthcare in prisons. Groups such as migrants and refugees are particularly vulnerable to discrimination: Nepalese and Thai citizens working abroad have found themselves in desperate circumstances when their governments denied them the right to return home during the pandemic.14 15

Human rights principles offer a clear lens for assessing the legitimacy of such confinement measures. First, while many human rights can be derogated from (or limited) to protect public health, certain rights, such as the right to life, cannot.3 16–18 Second, sanctions for violating home confinement and restricted movement orders should be proportionate to national threats of COVID-19 and should not be unduly punitive. The High Court of Kenya recently held that while curfews were lawful, the use of unreasonable force in its imposition was unlawful, finding that the police were liable for violating the rights to life and dignity of people who were alleged to have broken the curfew. Additionally, this case highlights the importance of judicial review of rights limitations.19 To ensure that such measures are not discriminatory or used as a weapon against minorities, governments must operate through transparent policymaking, engaging the participation of vulnerable populations as a basis to ensure rights realisation and public cooperation in emergency responses.

Limitations on privacy through public health surveillance

In their emergency public health responses, some states have drafted or relaxed data protection laws to monitor compliance with social distancing measures and facilitate disease surveillance.20 21 Through smartphone location data, Israel used emergency laws to introduce a surveillance programme using the national security agency to track potentially infected people;22 and South Korea released detailed identifying information on infected individuals through private apps, alerting users in their vicinity and leading to discrimination against elderly people.23 In China, all citizens must install phone software to predict health status, track and share locations with police and determine whether people can enter public spaces.24

In promoting contact tracing through digital tools, governments may also be intensifying inequalities, as many people may not have modern smartphones that support contact tracing technologies.25 Thus, when the data collected through these apps and other technologies are used to inform decision-making processes, they may omit vulnerable groups in policymaking. In Argentina, for instance, the government adopted the CuidAR COVID-19 app to facilitate contact tracing; however, the policy did not consider that many people living in informal settlements (who are among the most vulnerable to COVID-19) do not have smartphones.26–28

Increased surveillance in a health emergency may be useful to support social distancing efforts as well as to inform epidemiological research to trace contacts of infected persons in responding to outbreaks. Yet, the expansion of surveillance technologies beyond traditional public health mechanisms heightens longer standing tensions between individual rights and collective interests. Without adequate safeguards to protect or at least minimise the impact on individual rights (such as privacy and freedom of movement), emerging surveillance technologies pose serious long-term risks to human rights. In line with the principle of proportionality under human rights law, all COVID-19 surveillance tools must be proven to be strictly necessary (based on epidemiological evidence), temporary and proportionate. Large-scale data collection tools that do not identify individuals could meet those human rights requirements.29 Beyond deidentified data, governments should consider opt-in approaches first (as in Canada, Iceland and Italy, where people consent via apps for their data to be used for research).30 International human rights law also requires governments to ensure that opt-in consents are not exploited by unnecessary extensions or used for profit by the private sector.31 Private corporate surveillance on behalf of governments should be time limited and not be normalised after the pandemic.

These examples of rights restrictions under emergency laws suggest several cross-cutting human rights principles to frame public health-related limitations of human rights: governments must prioritise protecting the most vulnerable people in society. Initiatives like social distancing and self-isolation will disproportionately affect vulnerable people, including the precariously employed, migrant populations and homeless.32 Before restraining individual liberties, states must be transparent in communicating the scientific advice informing decision-making. Governments must also enable public participation by vulnerable populations to the greatest extent possible, building trust among citizens, compliance with government rights restrictions and accountability for rights violations.33 Additionally, governments should ensure that even in times of crisis, there are restrictions on the circumstances under which state agents can use force, limiting the use of coercive measures such as fines and imprisonment to enforce public health objectives.

The right to available, accessible, acceptable and good quality healthcare

COVID-19 has illustrated to many countries that their health systems are unable to withstand a prolonged health crisis. Many countries such as the UK, Italy, Spain and the USA are struggling to respond, partly due to years of budget cuts under austerity measures.46–51 As a result, they have struggled to source adequate diagnostic testing and personal protective equipment (PPE) to prevent disease transmission.52 53 Compounded by discrimination in healthcare settings, marginalised groups such as migrants and displaced persons, racial and ethnic minorities, women, sexual minorities, older persons, incarcerated populations and those living with HIV are particularly vulnerable to violations of the right to health.54 For example, the UN High Commissioner for Refugees has identified thousands of migrants at risk of further harm without adequate healthcare. Bosnian authorities, for instance, transferred thousands of migrants to a remote camp in Lipa, 25 km from the Croatian border, without access to healthcare.55 To comply with the right to health, states must ensure that access to appropriate COVID-related diagnostic testing and emergency healthcare for such groups is prioritised within healthcare policies, programmes and practices, and that states conduct human rights impact assessments to analyse the impacts of healthcare inequalities on vulnerable and marginalised groups.

Yet many countries have been unable to operationalise the right to health to enable available, accessible, acceptable and good quality PPE, diagnostic testing, contact tracing and healthcare services.56 Countries such as South Africa introduced a mass testing programme which was made free available to everyone,52 and in countries with health inequalities between public and private care (like Spain and the UK), private hospitals are being nationalised to ensure that all citizens have equitable access to treatment.57 58 However, in countries like the USA, those without medical insurance are being denied access to treatment or facing prohibitive user fees for basic COVID-19 treatment, resulting in inequitable mortality.59–61

Rights relating to the underlying determinants of health

Beyond the right to health in healthcare settings, other economic and social rights impact public health during periods of physical distancing, including rights to housing, social security, employment, food, water and sanitation. Widescale social distancing highlights existing vulnerabilities within economic systems: large numbers of people are employed in service and manufacturing sectors not amenable to social distancing; the growth in precarious work has threatened continuing income, with social security systems weakened and housing increasingly insecure and inadequate.62 These underlying determinants to health, often reflected in other health-related human rights, must not be neglected amidst public health emergency measures. For those unable to work, social distancing disproportionately impacts vulnerable groups by harming the health of those who are poor, struggling to survive, homeless, or lacking food, water and sanitation.63 Women across the world have been particularly impacted by the COVID-19 crisis. Many women who were already less likely to be in secure work or have access to unemployment benefits are more likely to stay home and care for family based on discriminatory policies and gender norms. National lockdowns are particularly dangerous for women at risk of domestic violence, who cannot access domestic abuse shelters, with an exponential increase in domestic abuse during the timeline of the pandemic.64 65

The predominant policy response has been to facilitate economic bailouts of institutions and individuals to enable citizens to comply with social distancing while meeting basic needs. Businesses have received economic bailouts, cheap credit from central banks, altered tax laws and increased social security payments to support employees.66 Some governments have indemnified workers’ wages to allow company closures for as long as necessary.67–70 Spain specifically cited constitutional rights when it allocated resources to a ‘social shield’ package, which included a moratorium on mortgage and utility payments for people unable to pay; increased unemployment benefits and social services for citizens most at risk, such as the elderly, disabled or those with low incomes; and the state acting as a payer of last resort to stave off mass lay-offs.71 Yet stimulus packages in France, Denmark, the UK and India did not explicitly mention social rights or address the plight of vulnerable groups, reinforcing a narrative of economic stimulus at the expense of the vulnerable.72 For instance, India’s stimulus package only allocated food to vulnerable groups for 2 months, while South Africa gave out food parcels in ways that overlooked refugees and asylum seekers. Courts have stepped in to enforce rights amidst social distancing. In Malawi, the High Court instituted an injunction against the national lockdown because the government made insufficient provision to stop poor people from going hungry or being denied water and sanitation.73 74 UN Habitat is providing clean water to many citizens in informal settlements in many countries,75 and the South African government increased water and sanitation measures in high-density public areas, informal settlements and rural areas.