Let quarantine, lockdown, travel ban agree with rights norms

On March 11, 2020, the World Health Organization (WHO) declared that an outbreak of the viral disease COVID-19 – first identified in December 2019 in Wuhan, China – had reached the level of a global pandemic. Citing concerns with “the alarming levels of spread and severity,” the WHO called for governments to take urgent and aggressive action to stop the spread of the virus.International human rights law guarantees everyone the right to the highest attainable standard of health and obligates governments to take steps to prevent threats to public health and to provide medical care to those who need it. Human rights law also recognizes that in the context of serious public health threats and public emergencies threatening the life of the nation, restrictions on some rights can be justified when they have a legal basis, are strictly necessary, based on scientific evidence and neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, subject to review, and proportionate to achieve the objective.
The scale and severity of the COVID-19 pandemic clearly rises to the level of a public health threat that could justify restrictions on certain rights, such as those that result from the imposition of quarantine or isolation limiting freedom of movement. At the same time, careful attention to human rights such as non-discrimination and human rights principles such as transparency and respect for human dignity can foster an effective response amidst the turmoil and disruption that inevitably results in times of crisis and limit the harms that can come from the imposition of overly broad measures that do not meet the above criteria.
Ensure quarantines, lockdowns, and travel bans comply with rights norms
International human rights law, notably the International Covenant on Civil and Political Rights (ICCPR), requires that restrictions on rights for reasons of public health or national emergency be lawful, necessary, and proportionate. Restrictions such as mandatory quarantine or isolation of symptomatic people must, at a minimum, be carried out in accordance with the law. They must be strictly necessary to achieve a legitimate objective, based on scientific evidence, proportionate to achieve that objective, neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, and subject to review.
Broad quarantines and lockdowns of indeterminate length rarely meet these criteria and are often imposed precipitously, without ensuring the protection of those under quarantine – especially at-risk populations. Because such quarantines and lockdowns are difficult to impose and enforce uniformly, they are often arbitrary or discriminatory in application.
Freedom of movement under international human rights law protects, in principle, the right of everyone to leave any country, to enter their own country of nationality, and the right of everyone lawfully in a country to move freely in the whole territory of the country. Restrictions on these rights can only be imposed when lawful, for a legitimate purpose, and when the restrictions are proportionate, including in considering their impact. Travel bans and restrictions on freedom of movement may not be discriminatory nor have the effect of denying people the right to seek asylum or of violating the absolute ban on being returned to where they face persecution or torture.
Governments have broad authority under international law to ban visitors and migrants from other countries. However, domestic and international travel bans historically have often had limited effectiveness in preventing transmission, and may in fact accelerate disease spread if people flee from quarantine zones prior to their imposition.
In China, the government imposed an overly broad quarantine with little respect for rights:
In mid-January, authorities in China quarantined close to 60 million people in two days in an effort to limit transmission from the city of Wuhan in Hubei province, where the virus was first reported, even though by the time the quarantine started, 5 million of Wuhan’s 11 million residents had left the city. Many residents in cities under quarantine expressed difficulties obtaining medical care and other life necessities, and chilling stories have emerged of deaths and illnesses: A boy with cerebral palsy died because no one took care of him after his father was taken to be quarantined. A woman with leukemia died after being turned away by several hospitals because of concerns about cross-infection. A mother desperately pleaded to the police to let her daughter with leukemia through a checkpoint at a bridge to get chemotherapy. A man with kidney disease jumped to his death from his apartment balcony after he couldn’t get access to health facilities for dialysis. Authorities have also reportedly used various intrusive containment measures: barricading shut the doors of suspected infected families with metal poles, arresting people for refusing to wear masks, and flying drones with loudspeakers to scold people who went outside without masks. The authorities did little to combat discrimination against people from Wuhan or Hubei province who traveled elsewhere in China.
In Italy the government has imposed a lockdown but with greater protections for individual rights. The Italian government adopted progressively restrictive measures since the first major outbreak of COVID-19 cases in the country in late February. Authorities initially placed ten towns in Lombardy and one in Veneto under strict quarantine, prohibiting residents from leaving the areas. At the same time, they closed schools in affected regions. Citing a surge in cases and an increasingly unsustainable burden on the public healthcare system, the government on March 8 imposed a slew of new measures on much of the country’s north that put in place much more severe restrictions on movement and basic freedoms. The next day, the measures were applied across the country. Further measures imposed included restrictions on travel except for essential work or health reasons (upon self-certification), closure of all cultural centers (cinemas, museums), and cancellation of sports events and public gatherings. On March 11 the government closed all bars, restaurants, and stores except food markets and pharmacies (and a few other exceptions) across the country. People who disobey the travel restrictions without a valid reason can be fined up to 206 euros and face a three-month prison term. All schools and universities were closed throughout the country. People have been allowed out to shop for essential items, exercise, work (if unable to perform work from home), and for health reasons (including care for a sick relative).
Other governments, such as those in South Korea, Hong Kong, Taiwan, and Singapore have responded to the outbreak without enacting sweeping restrictions on personal liberty, but have reduced the number of travelers from other countries with significant outbreaks. In South Korea, the government adopted proactive and ramped-up testing for COVID-19. It focused on identifying infection hotspots, conducting a large number of tests on at-risk people without charge, disinfecting streets in areas with high numbers of infections, setting up drive-through testing centers, and promoting social distancing. In Hong Kong, there have been concerted efforts to promote social distancing, handwashing, and mask-wearing. Taiwan proactively identified patients who sought health care for symptoms of respiratory illness and had some tested for COVID-19. It also set up a system that alerts the authorities based on travel history and symptoms during clinical visits to aid in case identification and monitoring. Singapore adopted a contact-tracing program for those confirmed to have the virus, among other measures. However, the government’s decision to deport four foreign workers for violating a mandatory 14-day leave of absence from work and ban them from working in the country raises concern of disproportionate penalties.
Recommendations:
Governments should avoid sweeping and overly broad restrictions on movement and personal liberty, and only move towards mandatory restrictions when scientifically warranted and necessary and when mechanisms for support of those affected can be ensured. A letter from more than 800 public health and legal experts in the US stated, “Voluntary self-isolation measures [combined with education, widespread screening, and universal access to treatment] are more likely to induce cooperation and protect public trust than coercive measures and are more likely to prevent attempts to avoid contact with the healthcare system.”
When quarantines or lockdowns are imposed, governments are obligated to ensure access to food, water, health care, and care-giving support. Many older people and people with disabilities rely on uninterrupted home and community services and support. Ensuring continuity of these services and operations means that public agencies, community organizations, health care providers, and other essential service providers are able to continue performing essential functions to meet the needs of older people and people with disabilities. Government strategies should minimize disruption in services and develop contingent sources of comparable services. Disruption of community-based services can result in the institutionalization of persons with disabilities and older people, which can lead to negative health outcomes, including death, as discussed below.
Protect people in custody and in institutions
COVID-19, like other infectious diseases, poses a higher risk to populations that live in close proximity to each other. And it disproportionately affects older people and individuals with underlying illnesses such as cardiovascular disease, diabetes, chronic respiratory disease, and hypertension. Eighty percent of the people who have died of COVID-19 in China were over the age of 60.
This risk is particularly acute in places of detention, such as prisons, jails, and immigration detention centers, as well as residential institutions for people with disabilities and nursing facilities for older people, where the virus can spread rapidly, especially if access to health care is already poor. States have an obligation to ensure medical care for those in their custody at least equivalent to that available to the general population, and must not deny detainees, including asylum seekers or undocumented migrants, equal access to preventive, curative or palliative health care. Asylum seekers, refugees living in camps, and people experiencing homelessness may also be at increased risk because of their lack of access to adequate water and hygiene facilities.
In nursing facilities and other settings with large numbers of older people, visitor policies should balance the protection of older and at-risk residents with their need for family and connection. The US Department of Veterans Affairs announced a “no visitors” policy at its 134 nursing homes around the country in response to the risk of COVID-19. While the risk to older people is serious, blanket policies do not take into account public health guidance or the needs of older people.
People in prisons, jails, and immigration detention centers frequently do not receive adequate health care under normal circumstances, even in economically developed countries. Severely substandard health care has contributed to recent deaths of immigrants in the custody of US Immigration and Customs Enforcement. Populations in custody often include older people and people with serious chronic health conditions, meaning they are at greater risk for illness from COVID-19.
Many people in US jails have not been convicted of a crime but are locked up simply because they cannot afford to pay the bail set in their case. Older men and women are the fastest growing group in US prisons due to lengthy sentences, and prison officials already have difficulty providing them appropriate medical care. As a response, in one county in the US state of Ohio, the courts expedited review of people in jail, releasing some and transferring others to prisons. The American Civil Liberties Union has filed a lawsuit that seeks to challenge ongoing immigrant detention in the context of the virus.
Prisoners in Iran have reportedly tested positive for the coronavirus, including in Evin prison in Tehran and in the cities of Euromieh and Rasht. In an open letter in February, families of 25 prisoners detained for peaceful activism sought their at least temporary release amid the outbreak and lack of sufficient prison medical care. In March, the Iranian judiciary reportedly temporarily released about 85,000 prisoners for the Persian New Year (Nowruz), a substantially greater number than normal for the holiday, apparently because of health concerns surrounding the coronavirus outbreak. However, dozens of human rights defenders and others held on vaguely defined national security crimes remained in prison.
On March 12, Bahrain’s King Hamad bin Isa Al-Khalifa reportedly pardoned 901 detainees “for humanitarian reasons, in the backdrop of the current circumstances,” likely in reference to the coronavirus outbreak. The Ministry of Interior announced that another 585 detainees would be released and granted non-custodial sentences.
In Italy, prisoners in over 40 prisons have protested over fears of contagion in overcrowded facilities and against bans on family visits and supervised release during the coronavirus pandemic. In response, authorities have authorized for the first time the use of email and Skype for contact between prisoners and their families and for educational purposes and announced a plan to release and place under house arrest prisoners with less than 18 months on their sentence. The main prisoner rights organization in Italy, Antigone, estimated this could benefit at most 3,000 prisoners, while the penitentiary system is at around 14,000 over capacity. The organization called for broader measures to ensure the release of a greater number of detainees, including in particular older detainees and those with at-risk health profiles, among other measures. Civil society organizations have also called for alternatives to detention for all people currently detained in immigration detention centers in Italy due to the increased risk of infection and no prospect for deportation.
Recommendations:
Government agencies with authority over people housed in prisons, jails, and immigration detention centers should consider reducing their populations through appropriate supervised or early release of low-risk category of detainees including for example, those whose scheduled release may be soon, those who are in pre-trial detention for non-violent and lesser offenses, or whose continued detention is similarly unnecessary or not justified. Detained individuals at high risk of suffering serious effects from the virus, such as older people and people with underlying health conditions, should also be considered for similar release with regard to whether the detention facility has the capacity to protect their health, including guaranteed access to treatment, and taking into consideration factors such as the gravity of the crime committed and time served.
If safe and legal deportations are suspended due to the virus, the legal justification for detaining people pending deportation may no longer exist. In these cases, authorities should release detainees and institute alternatives to detention.
Authorities that operate prisons, jails, and immigration detention centers should publicly disclose their plans of action to reduce the risk of coronavirus infection in their facilities and the steps they will take to contain the infection and protect prisoners, prison staff, and visitors, if cases of the virus or exposure to it are present. Persons in any form of detention have the same right to health as the non-incarcerated population and are entitled to the same standards of prevention and treatment. The detained population and the general population have a compelling interest to know in advance what plans authorities have put in place for handling COVID-19.

Police patrol near the Arc de Triomphe on the first day of confinement due to COVID-19, Paris, France, March 17, 2020. © 2020 Sipa via AP Images

Authorities should take steps to ensure they are appropriately coordinating with public health departments and communicating openly with staff and people in custody. They should also screen and test for COVID-19 according to the most recent recommendations of health authorities. They should provide appropriate hygiene training and supplies and ensure that all areas susceptible to harboring the virus and accessible to prisoners, prison staff, and visitors, are disinfected regularly, consistent with accepted best practices. They should develop plans for housing people exposed to or infected with the virus. They should ensure that individuals released or put on supervised leave have access to appropriate accommodations and health care. Any plans for lockdowns or isolation should be limited in scope and duration based on the best science available, and they should not be or seem punitive, as fear of being placed in lockdowns or isolation could delay people notifying medical staff if they experience symptoms of infection. Detention centers should consider alternative strategies such as video conferencing for individuals to be able to connect with family or legal counsel.
Governments seeking to contain the spread of the virus should evaluate and modify as necessary during the time of the outbreak measures used to enforce immigration laws, including court hearings and check-ins with authorities as alternatives to detention. Authorities should provide public notice that there will be no negative repercussions for missed court dates or check-ins during the time of the outbreak. Authorities should stop arbitrary detentions of migrants, seek alternatives to detention for people currently in immigration detention, and opt for release where possible, particularly for those in high-risk categories if infected and for people who are being held with no prospect for imminent, safe, and legal deportation.
In the absence of adequate state support, the United Nations and other inter-governmental agencies should urgently press for access to formal and informal detention facilities to provide detainees with life-saving assistance.
Governments housing refugees and asylum seekers should ensure their response to COVID-19 includes prevention and treatment measures, with particular attention to measures to alleviate overcrowding in detention centers and camps, improve sanitation and access to health care, and resort to time-bound quarantines and isolation only as necessary.
Ensure protection of health workers
As part of the right to health, the ICESCR provides that governments should create conditions that “would assure to all medical service and medical attention in the event of sickness.”
Governments have an obligation to minimize the risk of occupational accidents and diseases including by ensuring workers have health information and adequate protective clothing and equipment. This means providing health workers and others involved in the COVID-19 response with appropriate training in infection control and with appropriate protective gear.
Combating the spread of COVID-19 requires that health facilities have adequate water, sanitation, hygiene, healthcare waste management, and cleaning. A 2019 baseline report by WHO and the UN Children’s Fund (UNICEF) found that “[a]n estimated 896 million people use health care facilities with no water service and 1.5 billion use facilities with no sanitation service.”
Human Rights Watch research into hospital-acquired infections in Hungary suggests the nation’s mismanaged, underfunded, and understaffed public healthcare system is poorly equipped to handle a COVID-19 outbreak. Patients and medical experts described a lack of basic hygiene protocol, lack of isolation rooms, and a shortage of health professionals, doctors and nurses, and medical supplies in general. One doctor said it was nearly impossible to get essential items like disinfectant and respirator masks, which are critical to protect against viruses.
In Venezuela, Human Rights Watch has documented a health system in utter collapse. Hospitals have closed or are operating at a fraction of their capacity, many without regular access to electricity or water. Vaccine-preventable diseases such as measles and diphtheria have returned long before the pandemic hit.
Broad sanctions imposed by the US on Iran have drastically constrained the ability of the country to finance humanitarian imports, including medicines. This has caused serious hardships for ordinary Iranians. Concerned governments should support Iran’s efforts to combat the COVID-19, including by providing access to medical devices and testing kits.
In Thailand, public health capacity has been diminished by corruption. Medical personnel lack surgical masks and local supplies have been diverted and shipped to China and other markets in part due to corruption.
The Health Ministry in Egypt in February sent doctors and medical teams to a quarantine facility without informing them that their transfer was part of the COVID-19 response or of the risks entailed. Medical staff said they were “tricked” into the assignment.
In Lebanon, the spokesperson for the country’s medical supply importers told Human Rights Watch that the country had run out of gloves, masks, gowns, and other supplies necessary to deal with the coronavirus outbreak due to the financial crisis that had prevented them from importing needed goods. She added that medical supply importers have brought in just US$10 million of the $120 million in goods they have sought since October and nearly all transactions have been frozen since February due to the country’s ongoing economic crisis. The head of the Syndicate of Private Hospitals said that the government owes private hospitals more than $1.3 billion, compromising their ability to pay staff and purchase medical equipment. Yet the Lebanese government has not put in place any measures to address the economic crisis threatening access to medical care, medicine, and medical equipment.
Recommendations:
Governments should take measures so that health care is available to all, accessible without discrimination, affordable, respectful of medical ethics, culturally appropriate, and of good quality.
Governments should ensure that health workers have access to appropriate protective equipment and that social protection programs are in place for the families of workers who die or become ill as a result of their work, and ensure such programs include informal workers, who represent a large share of the caregiving sector.
In past epidemics, fear of exposure has led to attacks on health workers. Governments should monitor for such attacks to deter them, and ensure that they can quickly, adequately, and appropriately respond if attacks occur.
– Human Rights Watch