The State’s obligation to vindicate the right to life and the right to health applies without discrimination
t has been suggested by some commentators that human rights present an obstacle to the necessary public health response to COVID-19. This narrative belies a fundamental misunderstanding of human rights.
Human rights are not about individualism; rather they represent democratically agreed rules about how we can live together equally, fairly and with dignity. Human rights law places obligations on the State to vindicate and protect our rights as a bulwark against abuse of power. It also provides a framework to balance individual and community interests. This is why we talk about balancing rights rather than suspending one right in favour of another.
In the main, human rights principles have informed our government and community responses to COVID-19 up to this point and it is essential that they continue to do so. The State’s obligation to vindicate the right to life and the right to health applies without discrimination. It requires respect for the inherent dignity of everyone. This means the right to life must be put above economic considerations. Everyone enjoys an equal right to care regardless of wealth, age, disability, or underlying medical condition.
Human rights are expressive of solidarity and require the State to take special measures to protect those most at risk. It was Michael Ryan of the WHO who most clearly linked public health and human rights, saying, “We cannot forget migrants, we cannot forget undocumented workers, we cannot forget prisoners…the only way to beat [CORONAVIRUS]is to leave no one behind… we are in this together”. This is our social contract.
Human rights also demand accountability and transparency. When governments take steps to restrict our rights, even in the most extreme circumstances, they must remain subject to the rule of law. That is why ICCL argued strongly that the duration of Ireland’s period of emergency should be controlled by the Oireachtas – the people’s representatives – and not by Government. It’s also why we must ensure that individuals affected by emergency measures retain the right of access to the Courts to protect themselves against unjust State action. Our right to information also requires the Government to be honest with us.
The powers that have been introduced in Ireland are extreme by any measure. Government can ban public events, restrict our movement, confine us to our homes, and even order detention of those who refuse to self-isolate. Our rights to work, to recreation and to worship have been impacted too. Human rights law foresees that these restrictions can be necessary but requires them to be always proportionate to the risk to health and life.
We all accept coordinated collective action is necessary at this time, but even under emergency legislation, the State can choose to pursue coercion or cooperation. The Government introduced extraordinary powers to provide for a worst case scenario, but both the Taoiseach and Garda Commissioner have expressed their preference for policing by consent. Every use of those powers demands close vigilance and accountability, but our aim must be that the powers be used sparingly or not at all.
At the same time, we have seen radical State action to protect access to housing and basic income. The human right to housing is now being directly vindicated by the State, with those rights trumping fiscal considerations and the established orthodoxy about legal protection of property. Eviction bans and rent freezes have suddenly become possible. The rigidity of our two-tier health care system has also evaporated in the face of an urgent demand to ensure respect of the right to access healthcare.
We are glimpsing what a system of laws and policies that are built from real respect for universal human rights might look like. Solidarity is empowering and collective effort breeds a sense that how we live together can be reimagined. If homelessness, evictions, and waiting lists are intolerable now and can be redressed, why would we tolerate them in a few months’ time?
For now, our focus must be on protecting each other, based on what each person needs. This response can and must be informed by human rights. The Government must be open about its actions and use its powers sparingly. Above all, we must look out for those whose situation is most pressing – people experiencing homelessness, people in our nursing homes, in direct provision centres, in halting sites and in prisons. We must leave no one behind.