Human Rights / Civil Liberties / Discrimination
- This section includes literature on rights, equality and discrimination generally.
- Literature on specific rights - for example housing, health, religion - is listed under the relevant topic headings (Property Law/ Housing; Health Law, Religion and Law etc).
- Literature on international and regional human rights is listed in the International Law section.
Abstract: Zero hunger’ is a world’s pledge to end hunger, achieve food security and improve nutrition. However, the COVID-19 pandemic has hijacked the mission, whereby many economic activities ceased due to the virus’s outbreak. The situation has severely affected people’s living standards and enhanced extreme poverty, starvation, malnutrition and other health problems, especially among vulnerable children. The primary purpose of this paper is to explain ‘zero hunger’ as a fundamental legal right and identify challenges in executing this goal during the pandemic era. By using a traditional methodology of legal research, this paper finds that the epidemic has established few challenges that decelerated the progress to achieve the SDGs 2030, specifically ‘zero hunger’. This paper concludes that SDG 2 is an important goal to be fulfilled within vulnerable children to ensure their survival. Thus, the paper proposes that food assistance and humanitarian relief need to be provided by all means. Similarly, prompt measures to ensure food supply chains also need to be maintained as the pandemic has caused a massive impact on food and agricultural production. Ultimately, every government must adhere to the SDGs 2030, especially during this challenging time.
Abebe, Bezawit G, ‘Internally Displaced Persons & Covid-19 Under International Law’ (PhD Thesis, Golden Gate University School of Law, 2022) Abstract: The issue of Internally Displaced Persons (IDP) has been overshadowed by global attention on those who flee across an international border, recognized as refugees. In most cases, the only difference between IDPs and refugees is crossing an international border. This research examines the plight of (IDPs) from the perspective of international law and the additional vulnerabilities the Covid 19 pandemic brought them. The rapid growth of IDPs due to wars and disasters is concerning. Furthermore, the challenges for these already vulnerable IDPs are exacerbated by the Covid-19 global pandemic. The authority to regulate IDPs and their rights is left to the sovereign nations they reside in. However, sovereignty is also grounds for not intervening internationally. This research will critically review international and regional conventions, commentaries, and other legal materials to expose the black hole of legal protections for IDPs. Whether existing legal frameworks and international institutions effectively protect their rights. This research will thoroughly analyze primary sources to demonstrate: (1) the vulnerability of IDPs; (2) the international legal framework available for their protection; (3) international institutions that offer humanitarian relief to guarantee the respect of the rights of the affected population; and (4) the added challenges of IDPs during the Covid19 outbreak. (5) recommendations for the respect of human rights of IDPs. The research findings reveal the inconsistencies between the international rights granted to IDPs and their implementation.
Abidin, Crystal and Jing Zeng, ‘Feeling Asian Together: Coping With #COVIDRacism on Subtle Asian Traits’ (2020) 6(3) Social Media + Society (online advance article, published 1 July 2020) Abstract: Since the onset of COVID-19, incidents of racism and xenophobia have been occurring globally, especially toward people of East Asian appearance and descent. In response, this article investigates how an online Asian community has utilized social media to engage in cathartic expressions, mutual care, and discursive activism amid the rise of anti-Asian racism and xenophobia during COVID-19. Specifically, we focus on the 1.7-million-strong Facebook group ‘Subtle Asian Traits’ (SAT). Throughout the COVID-19 pandemic, the 1,200 new posts it publishes daily have swiftly pivoted to the everyday lived experiences of (diaspora) East Asians around the world. In this article, we reflect on our experiences as East Asian diaspora members on SAT and share our observations of meaning-making, identity-making, and community-making as East Asians collectively coping with COVID-19 aggression between January and May 2020.
Abioye, Funmi, ‘COVID-19, Women’s Rights, and the Rule of Law in Africa: Muddying the Waters’ (2022) Southern African Public Law (advance article, published online 29 June 2022) Abstract: The COVID-19 pandemic has disrupted the global space. African countries and societies have been greatly impacted, economies have been brought to the brink, with already established legal mechanisms designed to ensure the functioning of societies, being tested to the limit. In response, the concepts of ‘national lockdown,’ ‘social distancing,’ ‘travel restrictions’ have become too familiar as governments move to try and protect their populations. These measures have had deleterious effects on law, the rule of law and the protection of rights guaranteed by constitutions and regional instruments. In virtually every aspect of life, human rights have suffered the direct and indirect consequences of governments’ responses to the pandemic. This is particularly more so in African states, and among the vulnerable members of the African population. It is said that women in Africa have borne the brunt of the impact of the pandemic during the measures implemented by States in attempts to curb and control the pandemic. This article examines the impact of these responses on the rights of African women by drawing examples from South Africa. Constitutionalism and the rule of law are affected as rights are limited and at times derogated in an attempt to contain and control the pandemic. These derogations have had the unintended consequence of limiting the guaranteed rights of African women under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) and other international, regional and national legislative provisions. The necessary factors that States need to consider before imposing pandemic curtailment measures in future, are discussed and recommended.
Abudaram, Jacob, ‘Exploring How Disabled People Are Treated during Crises and Charting a Path Forward for a Justice-Based, Person-Centered Approach to Crisis Response’ (SSRN Scholarly Paper ID 4072363, 1 July 2020) Abstract: We are living in a moment that is both trying and telling. As of this writing (Spring/Summer 2020), the novel Coronavirus continues to spread quickly across the world and in particular across the United States, where government refusal to act preemptively and years of underfunded investment in public health infrastructure have allowed the country to have both the most cases and the most deaths due to COVID-19 while also lagging behind leading countries in tests per capita. Preliminary data in the United States shows that the virus is having a larger impact on communities of color and low-income communities. Further, as hospitals and medical professionals reach tipping points in terms of capacity and medical supplies, they face difficult decisions around what protocols to set in place for rationing equipment, particularly ventilators. Generally speaking, protocols are geared toward saving the most lives most efficiently, which often leads to the prioritization of nondisabled and younger people over older and disabled people. A majority of the obstacles that disabled people face in their lives are due to social barriers, stigma, and other factors external to any impairments they may have. This in practice puts disabled people in a ‘Double Jeopardy,’ because they are commonly marginalized and oppressed by society, they are deprioritized by that same society for life-saving medical care. This paper examines the history of disability during emergencies, making it clear that the problems that disabled and older people are facing in the midst of COVID-19 stem from preexisting disparities across different parts of life that are now proving to be fatal.
Abrusci, Elena, Sam Dubberley and Lorna McGregor, ‘An “Infodemic” in the Pandemic: Human Rights and Covid-19 Misinformation’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 287–296
Adami, Rebecca and Katy Dineen, ‘Discourses of Childism: How COVID-19 Has Unveiled Prejudice, Discrimination and Social Injustice against Children in the Everyday’ (2021) 29(2) International Journal of Children’s Rights 353–370 Abstract: Do children suffer from discriminatory structures in society and how can issues of social injustice against children be conceptualised and studied? The conceptual frame of childism is examined through everyday expressions in the aftermath of policies affecting children in Sweden, the UK and Ireland to develop knowledge of age-based and intersectional discrimination against children. While experiences in Sweden seem to indicate that young children rarely suffer severe symptoms from COVID-19, or constitute a driving force in spreading the virus, policy decisions in the UK and Ireland to close down schools have had detrimental effects on children in terms of child hunger and violence against children. Policy decisions that have prioritised adults at the cost of children have unveiled a structural injustice against children, which is mirrored by individual examples of everyday societal prejudice.
Adebayo, Kudus Oluwatoyin, ‘Pandemics and Management of “Dangerous Communities”: Ebola, COVID-19, and Africans in China’ (2023) 75(1) The Professional Geographer 164–174 Abstract: How do we unpack and make sense of anti-African/Black sentiments in the pandemic control and mitigation practices in China? This article responds to the question by drawing a parallel between the experiences of Africans in China during the Ebola virus disease and COVID-19 outbreaks. Focusing specifically on Nigerians as a subsection of the African community in Guangzhou City, China, it explores how the COVID-19-inspired discrimination against Africans reflects much of the experiences of Africans in China during the Ebola crisis of 2014. The article combines sixteen ‘Ebola experience’ data points, obtained from Nigerians in Guangzhou in 2017, with four COVID-19 experience virtual interviews, media reports, and social media archive and netnographic analysis covering April to June 2020. The experiences of Africans in Guangzhou in the early months of the COVID-19 outbreak reflect a patterned response to Africans and Blackness in the context of pandemic in China. The article contributes to the literature by examining the question of racial discrimination and the construction of African immigrant community in China as dangerous within the new geography of Afro-mobilities in East Asia.
Adegbite, Olusola B, ‘Reaching the Furthest behind: COVID-19 Measures in Nigeria and the Rights of Persons with Disabilities under Domestic and International Law’ (2024) 32(2) Michigan State International Law Review 201–252 Abstract: In response to the COVID-19 pandemic, governments across the world introduced containment measures aimed at limiting the spread of the virus and mitigating the overall impact of the pandemic. Some of the non- pharmaceutical measures introduced included country-wide lockdowns, bans on public gatherings, mandatory wearing of face masks, handwashing, and social distancing. While these measures contained the virus in most countries, they also constrained the human rights and fundamental freedoms of citizens. These measures disproportionately impacted persons belonging to vulnerable groups, such as Persons with Disabilities (PWDs). Much of this is traceable to the fact that, in the rollout of these measures, the obligations of governments regarding this class of citizens were ignored while their unique condition was not taken into consideration. This article sets out the distinctive harm caused to PWDs by reason of COVID-19 measures in Nigeria and how the government’s actions impeded the rights of this segment of society during the pandemic. Adopting a doctrinal approach, the article examines the legal framework governing the rights of PWDs under domestic and international law, highlighting specific violations against this group generated by containment measures. The article also engages the attitudinal and socio- cultural environment prevalent in Nigeria that discriminates against PWDs and how this played a significant role in exacerbating violations of their rights during the pandemic. The article recommends that the Nigerian State comply with its obligations under international law by prioritizing the development of infrastructure necessary for the everyday life of PWDs and also go further to hold both public and private actors to the same obligation as provided under domestic law. Ultimately, this will significantly transform the status of this class of citizens and improve their overall well-being.
Adekola, Tolulope Anthony and Faith O Majekolagbe, ‘Human Rights Law, Intellectual Property and Vaccine Nationalism: Lessons for the Post-COVID-19 World’ [2024] Australian Journal of Human Rights (forthcoming) Abstract: The rollout of COVID-19 vaccines during the pandemic was labeled a ‘parallel pandemic of human rights.’ Occuring simultaneously with the primary public health crisis, the production, distribution, and profiteering that followed the announcement of vaccines were satirically referred to as ‘vaccine nationalism’ or ‘vaccine apartheid’. Against the backdrop of the COVID-19 pandemic and its attendant vaccine inequality, this article examines the extent to which existing international human rights laws provide a framework for equity in global vaccine distribution. The article explores the delicate balance between protecting intellectual property and promoting public health and human rights: the private property rights of vaccine developers and the broader human rights of members of the public to vaccine access. It does this by appraising the decision on the proposed waiver of intellectual property rights for COVID-19 vaccines and treatments under the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights during the pandemic. The article argues that a reform of the WTO multilateral system is needed to ensure that in future global health emergencies, private interests are subordinated to global public health needs and that global action is not conditioned by nationalism and hegemonic positions in international relations.
Agaba, Daphine Kabagambe, ‘Tackling Inequality and Governance Challenges: Insights from the COVID-19 Pandemic’ (2021) 21(2) African Human Rights Law Journal 877–906 Abstract: The article addresses inequality and governance in the face of the COVID-19 pandemic. Globally, it highlights ways in which COVID-19 has further exacerbated the already worrying inequality levels. Specifically, it addresses issues such as vaccine nationalism, rising income inequality levels, while the minority become richer, some from the manufacturing and selling of COVID-related products. From a governance perspective, it is argued that the reliance on liberal democracies to deliver equality is proving to be insufficient as these have been noted to pursue and prioritise market-based strategies that ultimately perpetuate inequality. Ultimately, it is forwarded that there needs to be a rethinking of the global political economy policies, including debt, health systems, intellectual property laws and trade, in order to directly address how such systems perpetuate inequality. In the context of the African continent, the article highlights the difficulty in accessing vaccines, posing a major threat to the continent, which is experiencing waves of the pandemic that are more disturbing than those that went before. It also highlights the extent to which paucity of research affects vaccine efficiency on the continent. COVID-19 has further worsened the already precarious political and economic situation in most of Africa, characterised by countries being unable to pay debt, electoral political violence, COVID-19 denialism, exploiting COVID-19 to clamp down on opposition, and misuse of COVID-19 funds. Thus, it is recommended that there needs to be an overhaul of the already broken fiscal and political environments rather than the adoption of piecemeal economic solutions such as debt freezes, or politically-flawed ones, that ultimately do not work.
Agmon-Gonnen, Michal, ‘Women and COVID-19: A Gender Perspective on the Socio-Economic Crisis and the Opportunities for Change’ (LSE Legal Studies Working Paper No 18, 31 March 2023) Abstract: The COVID-19 pandemic is a global health crisis with broad socioeconomic implications. Crises usually exacerbate entrenched inequality between men and women. The pandemic is not an exception to the rule. To frame it metaphorically, when the pandemic forced everyone to put on the N-95 masks, it tore off the ‘mask of equality’ western societies had been wearing. With the coming off of the mask, came off the image the societies had portrayed of themselves, as societies whose citizens enjoyed gender equality in general, and economic gender equality more specifically. The pandemic exposed a reality of gender-based poverty that has grown worse as the crisis wore on: of women staying at home and trying to balance running the household, looking after their children, as well as their professional work; and of women, including pregnant women, being the first to be laid off and the last to return to work. The increased socio-economic harm to women during the COVID-19 pandemic cannot be ignored, and this reckoning comes with a growing understanding that what has been happening under the guise of the pandemic runs much deeper. The focus is on two key factors that contribute to gender-based poverty: Inequality in the labour market, including the gender pay gap, and invisible work, primarily in the home and with the family. This paper proposes to lay down a path towards solutions for those problems, primarily through a demand for adequate representation of women in decision-making processes and a requirement to receive gender-specific data and gender analysis of the socio-economic solutions for the crisis. The paper presents on Israel as a test case, but both the figures and the solutions apply, with the necessary adaptations, to many countries facing the crisis aftermath.
Ahmad, Saood, ‘Access Denied: Right to Education in India during Covid-19’ (2021) 1(4) Jus Corpus Law Journal 468–476 Abstract: After decades of gradual but steady progress in educating more children across the globe, the year 2020 marked the sudden halt of that development. A record-breaking 1.4 billion children were barred from attending pre-primary, primary, and secondary schools in more than 190 nations by the end of April, as part of a global attempt to contain the spread of the new coronavirus. As the pandemic continued, schools in some countries or jurisdictions reopened for in-person instruction or reopened for some students, whereas schools in other countries or jurisdictions have remained closed ever since, with learning taking place to a greater or lesser extent online or in other remote locations. The traumatic consequences of the Covid-19 epidemic are experienced disproportionately by socioeconomic groups who are already marginalised in society. Because of a countrywide full lockdown in March 2020, all educational institutions throughout India were forced to transfer their operations to online and remote learning modalities, exacerbating the already substantial disadvantages that rural Indian students already faced. This article provides a brief analysis of how the right to education is affected during the covid pandemic.
Akech, Joseph Geng, ‘Exacerbated Inequalities: Implications of COVID-19 for the Socio-Economic Rights of Women and Children in South Sudan’ (2020) 20(2) African Human Rights Law Journal 584–606 Abstract: This article critically examines measures adopted by the Revitalised Transitional Government of National Unity (TGoNU) in South Sudan to fight the COVID-19 pandemic. It analyses the implications of such measures on constitutionalism and socio-economic rights of women and children. In so doing, it reveals that policy decisions adopted by the RTGoNU exclusively focused on fighting the Coronavirus at the expense of the socio-economic rights of zol meskin (common person). In particular, the decisions lack supportive social protection packages to cushion the low-income households that depend on daily hustling, impacted by the measures adopted. This led to a disproportionate impact on women and children whose rights to livelihoods and education are more adversely affected. Such policy decisions could deepen poverty margins that already exist in South Sudanese society. As schools remain closed, with the exception of primary eight and senior four candidates, the hope of more than 2.2 million children who are already out of the education system hangs in the balance. In sum, the article demonstrates that the fight against COVID-19 appears to have been won but at a cost of losing the fight against already-rampant socio-economic inequalities. This in part is due to the fact that, on the one hand, measures adopted to fight the pandemic appear to be successful at flattening the curve as revealed by the cumulative numbers of patients and deaths but, on the other, such policies have arguably exacerbated the socio-economic conditions of the poor who already live on the brink of famine as warned by the United Nations agencies in keeping with the Integrated Food Security Phase Classification reports. The article thus recommends that the government and policy makers should consider three critical lessons for the future: (a) strengthening social welfare sector to protect vulnerable households from sudden onsets; (b) enhance disaster risk and preparedness capacities to effectively deal with pandemics in a way that protects the most vulnerable people; and (c) strengthen democratic governance and rule of law as catalysts for well-managed emergency responses.
Albader, Fatemah, ‘Coronavirus and the Resurgence of Sinophobia’ (2020) 12(2) Tsinghua China Law Review, 289–312 Abstract: With the outbreak of the coronavirus, the world has witnessed an increase in anti-Chinese sentiment, resulting from racially discriminatory policies undertaken by state governments to combat the spread of disease. States must nonetheless recall that the right to non-discrimination is a non-derogable right, one that is protected even in times of heightened anxiety. States must not impose restrictions that would contribute to the ongoing xenophobia, which is in blatant violation of human rights. Accordingly, this paper will explore and analyze the various government responses that have been undertaken in response to the coronavirus infection and will conclude with recommendations on how best to ensure compliance with the human rights framework during this time.
Albader, Fatemah and Fotouh Al-Raqom, ‘The Right to Online Education in Kuwait, Revisited in Light of Covid-19’ (2020) 27(1) ILSA Journal of International & Comparative Law 1–25 Abstract: The right to education, at all levels, is one that is recognized as a fundamental human right and one that is protected through various international instruments. Thus, it could be argued that the right to remote education during times of a national emergency is vital to the full realization of this right. Nonetheless, to guarantee proper education for all and to warrant that in times of emergency governments are equipped with the proper resources to facilitate a move toward remote learning, countries like Kuwait must reconsider blanket bans on online education. Only then may the full implementation of the right to education be achieved. must reconsider blanket bans on online education. In arguing for such, this paper is divided into four parts. Section II will examine the right to education in international human rights law, specifically the right to online education. Section III will discuss the effects of the state of the current pandemic on the right to online education and provides examples of international organizations' responses that have been undertaken in response to COVID-19. Section IV will address the situation of online learning in Kuwait and examine the current and regular regulations governing Kuwaiti students studying inside and outside of Kuwait. Lastly, Section V will conclude with a discussion on the challenges that pertain to online learning in the Arab States, with an emphasis on justifications that are often cited as to why countries in the region, including Kuwait, are fearful of moving toward online education.
Albertyn, Catherine, ‘The Role of Equality Law in Expanding Access to Social Goods and Services in South Africa: Lessons after the Pandemic’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 353 Abstract: In the context of South Africa’s deep structural inequalities, exacerbated by the Covid-19 pandemic, this chapter focuses on the role of the constitutional equality value and right (unfair discrimination and positive measures), and the Promotion of Equality and Prevention of Unfair Discrimination Act in achieving a more egalitarian and substantive provision of social goods and services. It starts by arguing that equality has played a powerful role in securing substantive outcomes in socio-economic rights cases and has multifaceted potential for securing a more egalitarian distribution of social goods and services. It then maps the jurisprudential contours of the constitutional value of equality, the section 9 right and/or the Equality Act in distributing social goods and services in four illustrative categories: (i) expanding the scope of existing social goods by adding new groups (who qualifies); (ii) challenging the distribution of resources underpinning goods and services (shifting resources from more privileged towards disadvantaged groups); (iii) preventing the regression of goods and services; and (iv) the judicial development of a positive equality duty (under section 9(2)) to implement policies and laws concerning socio-economic rights with due regard to substantive equality. It concludes by discussing what this reveals about the role of equality law and courts, and the conceptual and institutional spaces, limits, and opportunities in equality law to address structural and exponential economic inequalities and poverty in South Africa.
Alemanno, Alberto and Luiza Bialasiewicz, ‘Certifying Health. The Unequal Legal Geographies of COVID-19 Certificates’ (2021) 12(Special Issue 2) European Journal of Risk Regulation 273–286 Abstract: This article discusses some of the challenges posed by the introduction of COVID-19 certificates as a privileged tool to open up mobility and access in order to restore a semblance of normality to social life. While at present there is no international consensus neither on how – or why – such certificates should be used, nor on how they should be designed and applied, a growing number of countries have already introduced COVID-19 certificates in one form or another. Yet the scientific community as well as the World Health Organisation (WHO) have expressed caution, noting that such certificates might disproportionately discriminate against people on the basis of race, religion and socioeconomic background, as well as on the basis of age due to the sequencing of the vaccine rollout. Indeed, while the new COVID-19 certificates may appear to promise a magical solution to freeing global mobility and re-opening economies, they actually risk creating new borders and new forms of inequality through an exclusionary sorting and profiling mechanism that delimits ‘safe’ from ‘unsafe’ bodies, based on differential access to ‘immuno-privilege’ – but also differential forms of ‘bio-securitization’. They also provide an illusion of pandemic safety – assuring citizens that through the ‘fetish’ of the certificate ‘safe travel’ could magically be re-instated. Securing territories and populations has always been, in Foucauldian terms, a matter of ‘making a division between good and bad circulation and maximizing the good circulation by diminishing the bad’. We can therefore reasonably expect growing contestation, including before courts, around COVID-19 certificates in their different national and international iterations, as their inherently discriminatory nature, and other unintended consequences such as those stemming from the use of persuasive – as opposed to the more traditional coercive – governmental power, begin to unfold in their performative trajectory.
Allman, Kate, ‘Protesting a Pandemic: Do We Have a Legal Right?’ [2021] (81) LSJ: Law Society of NSW Journal 24–25 Abstract: When freedom of movement puts healthcare in jeopardy, and democratic rights clash with human rights, which comes first? Kate Allman explores the legal tensions of protesting public health orders.
Allman, Kate, ‘A Line in the Sand: Why the Fight over Bondi Was about More than Beaches’ (2020) 67 LSJ: Law Society of NSW Journal 24–26 Abstract: The COVID-19 "lockdown" period saw NSW place unprecedented restrictions on civil liberties. Amid widespread confusion over what citizens could and could not do in the temporary "new normal", tensions boiled over as communities clawed to maintain control over one much-loved Australian ritual: the right to go to the beach.
Alvarez, José, ‘The Case for Reparations for the Color of COVID’ (2022) 7(1) UC Irvine Journal of International, Transnational, and Comparative Law 7–59 Abstract: This Article surveys the data demonstrating that COVID-19, far from being the great equalizer, has generated starkly skewed adverse outcomes, including grossly disproportionate deaths, among persons of color in the U.S., Brazil, and India, and in all likelihood globally. The ‘color of COVID’ results from governmental actions and inactions that, when combined with long-standing socio-economic vulnerabilities, produce deadly results for certain groups. Global health reformers are not addressing these injustices. Like those who resist reparations for African-Americans, for the global victims of slavery, colonialism and its legacies, or for all of the current pandemic’s victims, those seeking to reform the WHO resist state responsibility or accountability for COVID. This Article argues that since, under international law, states owe a duty to provide remedies to persons within their jurisdiction who are denied fundamental rights because of de facto or de jure discrimination, there will be a substantial number of COVID-related claims presented in national courts and international venues, such as human rights courts and treaty bodies. States will face a choice between allowing judges to respond to actions or anticipating the most serious of them by establishing reparations mechanisms or commissions to address the color of COVID. As students of transitional justice can attest, there are advantages to doing both: allowing tort-like claims to proceed in judicial fora while establishing, at the national and possibly sub-national levels, mechanisms to enable contextually sensitive responses—from government apologies to forms of recompense. Intrastate reparations are more politically viable than interstate claims seeking to establish blame for the spread of COVID. National efforts to provide a measure of restorative justice to those harmed within each country by discriminatory practices are justified morally, legally, and from a utilitarian perspective. Bringing out the facts of the color of COVID and making states accountable may deter discriminatory actions (and inactions) that have furthered COVID-19 and its variants. Enabling accountability for the color of COVID can help mitigate the impact of future pandemics. Reparations would also advance the idea that all persons, irrespective of color of skin, have a basic right to life and health.
Amos, Merris, ‘Human Rights Law and the COVID-19 Pandemic in the United Kingdom Part 1’ (SSRN Scholarly Paper No ID 3576496, 15 April 2020) Abstract: The purpose of this note is to provide some further detail to the human rights law issues raised by the COVID-19 pandemic in the United Kingdom. This is a rapidly moving situation and new human rights issues and challenges arise every day. In this note, the following issues are considered: derogation from the ECHR (and HRA); the overarching Article 2 right to life duty; medical treatment for COVID-19 patients; lockdown and deprivation of liberty.
Amos, Merris, ‘Human Rights Law and the COVID-19 Pandemic in the United Kingdom Part 2’ (SSRN Scholarly Paper No ID 3577779, 16 April 2020) Abstract: The purpose of this note is to provide some further detail to the human rights law issues raised by the COVID-19 pandemic in the United Kingdom. The focus is on setting out the applicable legal rules and, where possible, suggesting how these might apply to current issues. Part 1 of this note concerned: derogation; the overarching duty to protect life; medical treatment of COVID-19 patients; and lockdown and the right to liberty. This note, Part 2 concerns: domestic violence; discrimination; self-imposed restrictions; closure of businesses; access to information; and surveillance and privacy issues arising from lifting lockdown.
Amos, Merris, ‘Lessons from the COVID-19 Pandemic for the UK Human Rights Law Framework’ (SSRN Scholarly Paper No ID 3688013, 31 July 2020) Abstract: The COVID-19 pandemic continues to lay bare the state’s weaknesses and the gross inequalities in our society which have been allowed to flourish. It has also set in motion demands for a whole variety of ‘rethinks’ once the crisis is over. In that vein the purpose of this paper is to consider what lessons the pandemic might hold for the UK human rights law framework. The paper is in four parts. In the first part a short description of the UK’s comparatively bad pandemic is set out, including the disproportionate negative impact for some groups. In the second part, the various acts and failures to act where human rights guarantees might have some influence are considered and in the third, the impact and potential impact of UK human rights law on these events. In the fourth and final part the lessons for human rights protection through law are set out.
Anand, Ishan and Anjana Thampi, ‘Pandemic and the Crisis of Extreme Inequality in India’ (JSGP Working Paper No 20–001, 15 October 2020) Abstract: The pandemic and the subsequent lockdown created a public health and humanitarian crisis for millions of workers and families in India. Through extensive data analyses of multiple nationally representative sample surveys, we argue that the effects of the pandemic and the associated lockdown have been exacerbated by the pre-existing crisis of extreme inequalities in the country. Multiple dimensions of inequality are explored, such as the disparities in the labour market and in the access to basic amenities. We briefly indicate our most striking findings. 63 percent of the workers and 53 percent of the households in India earned less than Rs 10,000 per month in 2018-19. Substantial gaps in earnings by gender, caste and area of residence persist – on average, female earnings was 63 percent of male earnings, SC earnings was 55 percent of non-ST/SC/OBC earnings and rural earnings was only half of urban earnings in 2018-19. About 905 million people did not have access to piped water, 287 million did not have access to toilets, 127 million lived in rented accommodations, and one-fourth of the population lived in single-room dwellings in 2017-18. The implications of the long-term neglect of the public healthcare system and the disparities in the access to education are discussed. In addition to inequality measures of monetary measures such as household earnings, we construct a multi-dimensional inequality index that combines indicators in housing, water and sanitation. This gives insights on the extent of inequality in non-monetary dimensions. The evidence in this paper clearly identifies that extreme multi-dimensional disparities and disadvantages lie at the heart of the current crisis in India and highlights the need to put redistribution at the centre stage of the development agenda.
Andryan et al, ‘An Analysis of the Indonesian Government Policy on the Lockdown from the Perspective of Human Rights’ (Proceedings of the 1st International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 418–425 Abstract: Corona Virus Disease 2019 (Covid-19), has become a deadly threat in countries of the world, including Indonesia. As a rule of law, Indonesia regulates matters of emergency which are synonymous with the term state of emergency. To deal with the spread of Covid-19, the Indonesian government has issued some policies policies, including the temporary closure of public spaces (lockdown). The lockdown policy is not only an effort to prevent more widespread transmission, but has the potential to reduce the right to freedom of assembly. The right to freedom of assembly and movement from one place to another is part of the constitutional rights guaranteed by the state. This paper is intended to seek a constitutional policy formulation in the perspective of Human Rights in a Modern Legal State. This research uses normative juridical research. The approach to the problem used in this study includes a statutory approach and a conceptual approach. The data obtained were collected and analyzed qualitatively with a descriptive-analytical model, so that the results could be described comprehensively and systematically. As a form of realizing welfare for the people even in an emergency, the state must always actively take the initiative to act. This is as stated in Article 28A of the The 1945 Constitution of the Republic of Indonesia, ‘Everyone has the right to live and has the right to defend his life and life’. The government must be able to make policies on handling Covid-19 from a human rights perspective. In the human rights context, there are at least 6 principles and guidelines on how to limit, delay and reduce the enjoyment of human rights. First, the determination must be based on law. Second, statements, notifications and emergency stops. Third, do not limit nonderogable rights. Fourth, it is really needed. Fifth, the arrangement is clear, strict, and does not have multiple interpretations. Six, emphasizes proportionality. The lockdown policy that prevents the people from fulfilling their daily needs, must be accompanied by policies that provide relief for the people, provide direct life insurance for all, policies to study / work at home without causing additional burdens for the family. As a modern constitutional state, one of its characteristics is the fulfillment of human rights based on the constitution. As a rule of law, the government must comply with regulations without having to make new regulations on lockdown policies, where the government must ensure the fulfillment of the basic needs of citizens and livestock feed as regulated in Article 55 paragraph (1) of Law No.6 of 2018 on Health Quarantine and ensure the quality of education and the reach of educational services that allow students to learn from home.
Angioi, Silvia, ‘Addressing Health Inequalities in Times of COVID-19: Minorities and Indigenous Peoples between Deeply Rooted and New, Emerging Forms of Discrimination’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 19–30 Abstract: In numerous countries, the spread of the COVID-19 epidemic has affected ethnic, racial and religious minorities most severely, along with indigenous peoples. On one hand, the pandemic is laying bare the presence of deeply rooted patterns of discrimination in access to health; on the other hand, for some states and non- state actors, it also represents a useful opportunity to persecute particular ethnic and religious minorities through additional forms of discrimination, labelling, stigmatization and scapegoating.
Animashaun, Oyesola and Howard Chitimira, ‘A Legal Analysis of the Protection of the Rights of Persons with Disabilities During the COVID-19 Pandemic in Nigeria’ (2022) 15(1) African Journal of Legal Studies 91–114 Abstract: Persons with disabilities are often discriminated against in society on the basis and/or grounds such as race, ethnicity, cultural beliefs, as well as religious beliefs. Moreover, there is a general negative societal attitude and a negative perception against persons with disabilities globally. For instance, persons with disabilities are negatively treated as a charitable problem of the society in many countries, including Nigeria. This approach could have deliberately or inadvertently led to the omission of the specific rights of persons with disabilities from the list of fundamental rights under the Nigerian Constitution, 1999. However, the recent enactment of the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018, could be a positive step in addressing numerous challenges such as poverty, unemployment, discrimination, and health care problems that are faced by persons with disabilities in Nigeria, especially in the wake of the novel coronavirus (COVID-19) pandemic. Against this background, the article discusses the challenges that are encountered by persons with disabilities in Nigeria during the COVID-19 pandemic. This is undertaken to, inter alia, assess the adequacy of the legal and constitutional protection on the rights of persons with disabilities, especially during the ongoing COVID-19 pandemic in Nigeria. Moreover, the flaws and gaps in the current legal and constitutional regime for the protection of the rights of persons with disabilities in Nigeria are discussed. Thereafter, possible recommendations to curb such flaws in Nigeria are provided.
Annas, George J and Sondra S Crosby, ‘Standard Racism: Trying to Use “Crisis Standards of Care” in the COVID-19 Pandemic’ (2021) 21(8) The American Journal of Bioethics 1–3 Introduction: Lowering the standard of care in a pandemic is a recipe for inferior care and discrimination. Wealthy white patients will continue to get ‘standard of care’ medicine, while the poor and racial minorities (especially black and brown people) will get what is openly described as substandard care rationalized by the assertion that substandard care is all that we can deliver to them in a crisis. (IOM 2009) Paul Farmer’s experience in responding to the Ebola outbreak in West Africa is a shocking, if extreme, example of how dangerous to patients this practice is. White patients were treated with the US standard of care, including transfer to the US for treatment, black (local) patients were often given little no medical care at all (on the premise that it was too dangerous for caregivers to touch them or to place IVs to hydrate them). The standard of care for the local population, in Farmer’s words, ‘in many cases didn’t resemble care at all.’ (Farmer 2020) As COVID-19 has taught us, structural racism in healthcare is not just a problem in West Africa, and does not just manifest itself in a pandemic.
Ansari, Bagher, ‘Human Rights Dimensions and Challenges of Covid 19’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: Dealing with the outbreak of Quid 19 requires measures and decisions that, while protecting individual and public health, may involve restrictions on human rights. Many governments have declared a state of emergency to combat the disease or, without formally declaring such a situation, have factually imposed such a situation and restricted individual rights and freedoms.
In the meantime, the international human rights system, which protects individuals rights, even in emergencies, requires governments to adhere to principles and rules that can strike a reasonable balance between protecting public health and meeting their human rights obligations.
Accordingly, the question in this article is that : what human rights issues and challenges do governments face in the process of dealing with Covid 19 and what are the solutions to address them? Referring to international human rights standards and by reference to actions of governments, it can be said that the main challenge is that most governments have pursued a policy of "this or that" and mainly prioritize the protection of public health over human rights; Whereas, from a human rights perspective, they should have pursued a policy of "both this and that."
The international human rights system, in its right-based language, prescribes a specific framework for combating Covid 19. In this context, the policy of "countering the Covid 19 at all costs" gives way to the policy of "countering the Covid 19 with respect to fundamental values." Human rights norms prevent the formation of discriminatory.
Antonisse, Larisa, ‘Strengthening the Right to Medicaid Home and Community-Based Services in the Post-Covid Era’ 121(6) Columbia Law Review 1801–1851In the meantime, the international human rights system, which protects individuals rights, even in emergencies, requires governments to adhere to principles and rules that can strike a reasonable balance between protecting public health and meeting their human rights obligations.
Accordingly, the question in this article is that : what human rights issues and challenges do governments face in the process of dealing with Covid 19 and what are the solutions to address them? Referring to international human rights standards and by reference to actions of governments, it can be said that the main challenge is that most governments have pursued a policy of "this or that" and mainly prioritize the protection of public health over human rights; Whereas, from a human rights perspective, they should have pursued a policy of "both this and that."
The international human rights system, in its right-based language, prescribes a specific framework for combating Covid 19. In this context, the policy of "countering the Covid 19 at all costs" gives way to the policy of "countering the Covid 19 with respect to fundamental values." Human rights norms prevent the formation of discriminatory.
Abstract: The COVID-19 pandemic has laid bare the severe public health danger that institutional and congregate care settings pose to people with disabilities, older adults, and the care professionals who work in those settings. While the populations residing in congregate care settings are naturally more susceptible to the virus, the COVID-19 crisis in these settings could have been far more limited if there had been broader access to home and community-based services (HCBS), which allow people to live with the supports they need in their own homes and communities and avoid many of the health risks of congregate care settings. A major barrier to broadening access to HCBS is existing judicial interpretations of the reasonable modifcations regulation under the Americans with Disabilities Act (ADA). This regulation requires states and other public entities to ‘make reasonable modifications’ to avoid disability-based discrimination (which includes unjustified institutionalization) but does not require measures that would ‘fundamentally alter’ the nature of the entity’s programs. Unfortunately, the Supreme Court’s 1999 Olmstead v. L.C. decision and subsequent lower court decisions interpreting Olmstead have created a standard for this fundamental alteration defense that fails to fully protect individuals’ ADA right to services in an integrated setting and does not account for the public health risks of institutionalization. This Note argues that in light of the new and undeniable evidence from the COVID-19 pandemic of the public health risks of institutionalization, the Department of Justice should use its broad regulatory authority under the ADA to promulgate additional regulations that clarify and strengthen the fundamental alteration framework.
Antonopoulos, Irene et al, ‘Political Rights in Times of Pandemic: A Code of Conduct for City Governance’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 149–158 Abstract: This paper discusses the implementation of a COVID-19 related Code of Conduct for local urban governments and argues that the code should consider a line-up of complementary political rights: Right to Political Participation and the related Access to information, as well as the Right to Health as the cornerstone of the Right to Life. The disconnect between day-to-day local policymaking and consideration for human rights appears inconsequential in the event of COVID-19 pandemic. Urban governments bear the in-depth understanding of the intricacies of their communities, which make them uniquely positioned to manage such a fast-moving and ever-changing emergency. Despite their vast and onerous responsibilities, they do so without the benefit of a human rights framework, which leaves local governments vulnerable to not only potential violations of political rights of the urban population but may also negatively impact the ability of public officials to effectively protect citizens in their response to the pandemic.
Antova, Ivanka, ‘Disability and COVID-19: Improving Legal and Policy Responses through Grassroots Disability Ethics’ (2021) 72(S1: Supplementary Issue on COVID-19) Northern Ireland Legal Quarterly 91–116 Abstract: The emergency legal and policy responses to COVID-19 attempt to avoid discrimination against disabled people. But they do not address deeper ableist and disableist narratives and practices embedded in emergency health policy. Adopting a disability ethics approach to the guidelines that emerged during the COVID-19 pandemic shows that they rest on dubious ethical grounds. However, emergency legal and policy responses to COVID-19 can be improved by adopting an approach based on disability ethics principles that emerge from grassroots level.
Antova, Ivanka, ‘Disability Rights During COVID-19: Emergency Law and Guidelines in England’ (2020) 28(4) Medical Law Review 804–816 Abstract: Disabled people may be disproportionately impacted by the response to the COVID-19 outbreak because of the kinds of countermeasures needed to tackle
Aoyagi, Chie, ‘Effects of COVID-19 on Regional and Gender Equality in Sub-Saharan Africa: Evidence from Nigeria and Ethiopia’ (IMF Working Paper No 2021/169, 1 June 2021) Abstract: The labor structure in sub-Saharan Africa is characterized by a high share of informal employment in the rural agricultural sector. The impact of COVID-19 on female employment may not appear to be large as the share of such employment is particularly high among women. Nevertheless, widespread income reduction was observed both in rural and urban households. This could worsen the opportunities for women as husbands’ control over the household resource is the norm. The paper also finds that rural children struggled to continue learning during school closures. Gender-sensitive policies are needed to narrow the gap during and post-pandemic.
Aprita, Serlika and Lilies Anisah, ‘The State’s Responsibility in the Welfare of People and Economic Recovery in the Face of Covid-19 from the Perspective of Law and Human Rights’ (2021) 21(2) Nurani: Jurnal Kajian Syari’ah dan Masyarakat 187–198 Abstract: The Covid-19 pandemic was taking place in almost all countries around the world. Along with the increasingly vigorous government strategy in tackling the spread of the corona virus that was still endemic until now, the government had started to enforce the Large-Scale Social Restrictions (PSBB) with the signing of Government Regulation (PP) No. 21 of 2020 about PSBB which was considered able to accelerate countermeasures while preventing the spread of corona that was increasingly widespread in Indonesia. The research method used was normative prescriptive. The government put forward the principle of the state as a problem solver. The government minimized the use of region errors as legitimacy to decentralization. The government should facilitated regional best practices in handling the pandemic. Thus, the pandemic can be handled more effectively. The consideration, the region had special needs which were not always accommodated in national policies. The government policy should be able to encourage the birth of regional innovations in handling the pandemic as a form of fulfilling human rights in the field of health. Innovation was useful in getting around the limitations and differences in the context of each region. In principle, decentralization required positive incentives, not penalties. Therefore, incentive-based central policies were more awaited in handling and minimizing the impact of the pandemic.
Arakpogun, Emmanuel et al, ‘Digital Contact-Tracing in a Pandemic… We Need One with a Blended Approach’ (SSRN Scholarly Paper No ID 3639056, 30 June 2020) Abstract: Governments across the world are rolling/planning to roll-out digital contact tracing (DCT) to manage the COVID-19 pandemic. However, deploying digital contact-tracing to curtail COVID-19 without recourse to existing structural inequalities, including digital divides, will lead to unintended consequences. Therefore, we propose that while the use of technology is welcomed, governments should bear in mind that exiting structural inequalities, including digital divides, could result in the exclusion of vulnerable people with a myriad of unintended consequences. Accordingly, governments must account for structural inequalities in the design and deployment of DCT to prevent more vulnerable people from falling through the cracks.
Arlettaz, Fernando, ‘Restrictions on Civil Rights in Time of Epidemics’ in Shinya Murase and Suzanne Zhou (eds), Epidemics and International Law (Brill Nijhoff, 2021) 319
Arthanti, Berliana Dwi and Nabilla Dyah Eka Pramudhita, ‘Law and Human Rights in Addressing Labor Problems during the Pandemic to Achieve Sustainable Development Goals’ (2020) 4(2) Lex Scientia Law Review 39–54 Abstract: The labor sector, as an important element in Indonesia’s economic growth, has also felt the impact of Covid-19. Rampant unemployment, layoffs, not being registered with the BPJS, violation of workers/labor rights during this pandemic have given negative signals for national economic growth. This is because of the increase in the number of unemployed will increase the poverty rate, reducing the national Gross Domestic Product. The Act Number 13 of 2003 concerning Manpower, which is actually the main milestone in the enforcement of human rights and democracy for manpower, has not been implemented optimally. The domino effect of Covid-19, which not only lowers the economy, also affects the government’s achievements in Sustainable Development Goals (SDGs). Therefore, It requires synergy from all fields and real human rights enforcement to ensure the workforce, revive the economy, and achieve the SDGs targets. This normative juridical research uses secondary data through literature study and qualitative analysis. Here, the researcher will understand the importance of human rights enforcement to deal with problems in the labor sector to achieve the government’s targets in the SDGs program.
Askary, Pouria and Farzad Fallah, ‘The Right to International Solidarity and Humanitarian Assistance in the Era of Covid-19 Pandemic’ (2020) 11(2) Journal of International Humanitarian Legal Studies 193–203 Abstract: From an international law point of view, the covid-19 pandemic could be described as a ‘disaster’ which has led to various calls especially from the UN system for harmonized international cooperation and global solidarity. This article focuses on the meaning of ‘solidarity’ in the context of international human rights, and elaborates on the implications of solidarity on the international law of humanitarian assistance in the current situation of the coronavirus outbreak.
Askola, Heli, ‘A Proportionate Response Is the Maximal One? Economic and Social Rights during the Pandemic’ (2022) 28(1) Australian Journal of Human Rights 118-138 Abstract: This paper analyses how responses to the COVID-19 pandemic have interacted with economic and social rights during the first two years of the pandemic (in 2020 and in 2021) in the Australian state of Victoria. The pandemic has naturally focused attention on health, resulting in much government action to protect public health by preventing COVID-19 infections. However, Victoria’s multiple lockdowns have also imposed heavy socio-economic burdens, which have been unevenly spread, exacerbating the vulnerable positions of already marginalised groups and individuals. In addition, in contrast to what was hoped for by some commentators, the crisis has failed to bring about fundamental change in economic and social policies undermining the enjoyment of economic and social rights. The reasons behind these outcomes can be located, most obviously, in the blunt approach chosen early on that characterised the pandemic response throughout. However, they also resulted from limited consideration of the demands of economic and social rights, including their inherent tensions and inter-relationships, and from lack of attention to existing inequalities.
Asudemade, Habeeb, ‘Liberty and Pandemics: A Libertarian Approach to the Global COVID-19 Situation’ (SSRN Scholarly Paper No ID 3630126, 18 June 2020) Abstract: What better way to start a discourse on civil liberty than by alluding to George Orwell’s 1984? In 1984, Orwell narrates the story of an omnipresent government called The Party and ruled by Big Brother. Big Brother controls every part of the people’s lives with little or no grace for civil liberties. To consolidate unchecked powers, Big Brother invents a language called Newspeak and a regulation called Thought-crimes – both in a bid to completely eliminate any form of opposition – or even a thought of it – to the party’s policies. And whosoever disobeys gets sent to the widely feared Room 101 for punishment. In a similar vein, our history with pandemics shows how governments can be quick to assume the post of a big brother, all in the name of national security. This was the case when the George Bush administration used the possible threat of a smallpox virus attack to justify its controversial massive smallpox vaccination program. It was the case during the Severe Acute Respiratory Syndrome (SARS) pandemic when China tried to enforce a counterproductive quarantine program.
Atrey, Shreya and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023)Link to book page on publisher website
Book summary: This book is about the operation of equality and discrimination law in times of crisis. It aims to understand: (i) how existing inequalities are exacerbated in crises; and (ii) whether equality law has tools to understand and address this contingency. Experience during the Covid-19 crisis shows that the pandemic has acted as a catalyst for ‘exponential inequalities’ related to racism, xenophobia, sexism, homophobia, transphobia, ageism, ableism, etc, but the field of equality law—which is meant to address such discrimination or inequality—has had little of immediate relevance in mitigating these exponential inequalities. This is despite the fact that countries like the UK have rather recent and state-of-the-art legislation in the field, namely the Equality Act 2010. Thus, equality law seems to be going through a crisis of its own. This book brings together contributions from leading experts in the field, revealing the crisis in equality law through the study of the operation of equality law during crises. The chapters are drawn from a range of interdisciplinary and comparative perspectives and illuminate the structural and conceptual, as well as the practical and doctrinal difficulties in equality law in addressing exponential inequalities in hard times. The book ultimately aims to propose constructive possibilities from within the extant normative and doctrinal mores of equality law which can be productively harnessed to address exponential inequalities.
Auriemma, Catherine L et al, ‘Eliminating Categorical Exclusion Criteria in Crisis Standards of Care Frameworks’ (2020) 20(7) The American Journal of Bioethics 28–36 Abstract: During public health crises including the COVID-19 pandemic, resource scarcity and contagion risks may require health systems to shift—to some degree—from a usual clinical ethic, focused on the well-being of individual patients, to a public health ethic, focused on population health. Many triage policies exist that fall under the legal protections afforded by ‘crisis standards of care,’ but they have key differences. We critically appraise one of the most fundamental differences among policies, namely the use of criteria to categorically exclude certain patients from eligibility for otherwise standard medical services. We examine these categorical exclusion criteria from ethical, legal, disability, and implementation perspectives. Focusing our analysis on the most common type of exclusion criteria, which are disease-specific, we conclude that optimal policies for critical care resource allocation and the use of cardiopulmonary resuscitation (CPR) should not use categorical exclusions. We argue that the avoidance of categorical exclusions is often practically feasible, consistent with public health norms, and mitigates discrimination against persons with disabilities.
Ayers, Samantha R, ‘Vaccinations and Fundamental Rights: The Need for Federal Vaccination Legislation’ (2021) 52(2) University of Toledo Law Review 261–287 Extract from Introduction: This note focuses on the interaction between fundamental rights and the consequences of parental refusal to vaccinate their minor children. Whereas parents have the right to raise their children,10 and a right to religious freedom, those rights are restricted by a governmental interest in protecting public health, child welfare, and promoting uniformity among the several states in the country. The note aims to explore different rights afforded to citizens by the Constitution and explain situations in which it is necessary, and constitutional, for the government to regulate behaviors and limit rights of the people, to protect the country as a whole. Section I of this note explores fundamental rights that have been granted to individuals by the Supreme Court of the United States through their interpretations of the Constitution and the Equal Protection and Due Process Clauses. Through those fundamental rights, individuals have been protected heavily from governmental intrusion into their lives. The rights granted, however, are not unqualified, and are subject to government regulation in some circumstances.
Section II of this note outlines when states are able to regulate the scope of fundamental rights. Specifically, this section discusses governmental regulation in cases of possible medical abuse or neglect, which makes it possible for the refusal to vaccinate a child to be considered medical neglect, although it has not yet been held to do so.
Section III of this note explains specific instances and reasons that the state has to intervene with, and overcome, individuals’ fundamental rights. The section aims to explain when the government is able to infringe upon an individual’s ability to choose whether to vaccinate, although it could interfere with fundamental rights that have been recognized and protected under the Constitution. Courts have continuously upheld the rights of the state governments to override parental decisions when it comes to public health and safety concerns during an outbreak.
Section IV of this note discusses the main reason a why many parents refuse to vaccinate their children: religious beliefs. It goes on to explore multiple instances in which the court has determined that although individuals have religious freedoms, the government is able to regulate their conduct when it comes to furthering important interests.
Section V provides an argument describing why there should be federal legislation regarding childhood vaccinations to promote uniformity among the states regarding the issue, as well as to promote protections of public safety and child welfare. It also proposes a possible federal law, allowing for only a medical exemption to mandatory vaccinations for minor children. There is also discussion and explanation of why federal legislation would survive multiple levels of Supreme Court review.
Aziz, M Rafliansah et al, ‘A Legal Vacuum on the Limitation of the Right to Protest during the COVID-19 Pandemic in Indonesia’ (2022) Asian Journal of Legal Studies (AJLS) 70
Azizi, Abdulla, ‘Derogation of Human Rights and Freedoms in RNM during the State of Emergency Caused by COVID-19’ (2020) 15(1) SEEU Review 24–42Section II of this note outlines when states are able to regulate the scope of fundamental rights. Specifically, this section discusses governmental regulation in cases of possible medical abuse or neglect, which makes it possible for the refusal to vaccinate a child to be considered medical neglect, although it has not yet been held to do so.
Section III of this note explains specific instances and reasons that the state has to intervene with, and overcome, individuals’ fundamental rights. The section aims to explain when the government is able to infringe upon an individual’s ability to choose whether to vaccinate, although it could interfere with fundamental rights that have been recognized and protected under the Constitution. Courts have continuously upheld the rights of the state governments to override parental decisions when it comes to public health and safety concerns during an outbreak.
Section IV of this note discusses the main reason a why many parents refuse to vaccinate their children: religious beliefs. It goes on to explore multiple instances in which the court has determined that although individuals have religious freedoms, the government is able to regulate their conduct when it comes to furthering important interests.
Section V provides an argument describing why there should be federal legislation regarding childhood vaccinations to promote uniformity among the states regarding the issue, as well as to promote protections of public safety and child welfare. It also proposes a possible federal law, allowing for only a medical exemption to mandatory vaccinations for minor children. There is also discussion and explanation of why federal legislation would survive multiple levels of Supreme Court review.
Abstract: Considering that in times of state of emergency or civil emergency (such as the pandemic caused by COVID 19), governments in many countries around the world have restricted human rights and freedoms through legally binding government decrees. These restrictive measures increasingly raise dilemmas about their effect and possible violations by the government of international norms guaranteeing human rights. The paper aims to analyze whether these restrictive measures set out in the decisions of the Government of the Republic of Northern Macedonia (RNM) are in compliance with the derogations allowed under the European Convention on Human Rights and Freedoms (ECHR) and the positive laws in power. In the framework of this paper is analyzed whether these measures have the sole purpose of protecting the health of citizens or not.</p><p>The work is limited in terms of time (as long as the state of emergency lasted three months) and territory (government decrees with the force of law).</p><p>Descriptive, historical, analytical, comparative and citizen survey methods are used in this paper. Government decrees have been analyzed in order to assess whether they were prudent, in accordance with international standards and consequences that they have caused to citizens.</p><p>The conclusions provide data on whether the management of the situation has been appropriate or not and to what extent it has been effective, as well as how much it has been within the international framework and how they have affected the quality of life of citizens.
Babiker, Mohamed Abdelsalam, ‘COVID-19 and Sudan: The Impact on Economic and Social Rights in the Context of a Fragile Democratic Transition and Suspended Constitutionalism’ (2021) 65(S2) Journal of African Law 311–331 Abstract: This article argues that the lockdown imposed in Sudan due to the COVID-19 pandemic has seriously affected the livelihood of vulnerable populations and their right to live a dignified life. It explores how emergency measures were aimed at containing the spread of the pandemic. The article argues that these measures have seriously affected the enjoyment of core economic and social rights, particularly in the context of a weak legislative framework of social protection. It concludes by arguing that Sudan’s transitional government is not subject to parliamentary scrutiny and exercises legislative and executive powers that are de facto illegitimate, as they are not subject to review by the courts and because of the current suspension of constitutional organs and governance structures. This incomplete governance structure is concerning from a rule of law perspective and has prevented scrutiny of COVID-19 emergency measures, particularly those affecting the basic rights of vulnerable groups.
Bachmann, Sascha Dov and Joachim Sanden, ‘COVID-19 And The Duty of A State to Protect the Public’s Health and Security During A Pandemic: A European Convention on Human Rights Perspective’ (2020) 7(3) Indonesian Journal of International & Comparative Law 405–428 Abstract: This article discusses the consequences of the broader concept of health as a security concept under the applicable law of the European Convention on Human Rights (ECHR) in the case of serious threats of to public health. Based on judgments by the European Court of Human Rights, a positive obligation of the Member States to act proactively towards health protection can be extracted from Article 5 (1) ECHR (liberty and security). The authors explore the scope of this provision in times of a public health emergency like a pandemic, a prolonged natural hazard or bio-terrorism to protect a citizen´s health and life. This article has particular relevance before the present global Coronavirus (COVID-19) pandemic. It argues in favour of a government’s right and duty to keep its citizens safe from harm by providing an ECHR perspective on governmental duties to act in a proactive way when dealing with public health emergencies while at the same time balancing its human rights obligations
Bäcker, Roman and Joanna Rak, ‘Enforcement of Equality Before the Law in Poland During the Coronavirus Pandemic’ in Jędrzej Skrzypczak and Oscar Pérez de la Fuente (eds), Lessons for Implementing Human Rights from COVID-19: How the Pandemic Has Changed the World (Routledge, 2024) 36-49 Abstract: On 12 March 2020, the government declared the state of the epidemic in Poland. A day later, Prime Minister Mateusz Morawiecki informed about the ban on public gatherings of more than 50 people. On 24 March 2020, the government introduced severe constraints on freedom of movement. Citizens could leave their houses only in duly justified circumstances, such as going to work or buying food. The police began controlling pedestrians and drivers to verify whether their movement was justified. All economic and social restrictions resulted in an almost complete lockdown. However, the public administration has gradually lifted the restrictions since mid-April. The will for social survival and the ruling party’s determination to secure the re-election of Andrzej Duda in the presidential elections appeared to be stronger than a fear of infection and readiness to respect civil rights. The presidential elections (the first round on 28 June and the second round on 12 July 2020), held in an atmosphere of no epidemiological threats, ended Poland’s first pandemic wave.
Bagenstos, Samuel R, ‘Who Gets the Ventilator? Disability Discrimination in COVID-19 Medical-Rationing Protocols’ (2020) 130 Yale Law Journal Forum 1–25 Abstract: The coronavirus pandemic has forced us to take the threat of rationing life-saving treatments seriously. Many health systems employ protocols that explicitly deprioritize people for these treatments based on pre-existing disabilities. This argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act.
Bailey, Zinzi D and J Robin Moon, ‘Racism and the Political Economy of COVID-19: Will We Continue to Resurrect the Past?’ (2020) 45(6) Journal of Health Politics, Policy and Law 937–950 Abstract: COVID-19 is not spreading over a level playing field; structural racism is embedded within the fabric of American culture, infrastructure investments, and public policy, and fundamentally drives inequities. The same racism that has driven the systematic dismantling of the American social safety-net has also created the policy recipe for American structural vulnerability to the impacts of this and other pandemics. The Bronx provides an important case study for investigating the historical roots of structural inequities showcased by this pandemic; current lived experiences of Bronx residents are rooted in the racialized dismantling of New York City’s public infrastructure and systematic disinvestment. The story of the Bronx is repeating itself, only this time with a novel virus. In order to address the root causes of inequities in cases and deaths due to COVID-19, we need to focus not just on restarting the economy, but on reimagining the economy, divesting of systems rooted in racism and the devaluation of Black and Brown lives.
Bald, Caroline and Sharon Walker, ‘Covid-19 and Social Inequalities in Health in the UK’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 159–166 Abstract: Shortly before the UK was struck by the Covid-19 pandemic, research was published which showed that since 2010 ‘inequalities in life expectancy have widened and life expectancy fell in the most deprived communities’.1 Such inequalities in health are mainly caused by wider social inequalities. Evidence of the demographics of those who died as a result of the virus, served to highlight how these inequalities disproportionately led to the elderly and BME communities contracting Covid-19 and succumbing to it. This article will discuss how the health and wellbeing of socially disadvantaged people were negatively impacted. It argues that these inequalities are a breach of Article 2 of the Human Rights Act 1988 - the right to life, in that this right cannot be equally accessed by all. Finally, the article explores the current and future practice implications for social workers, who work daily with some of the most vulnerable people in society.
Barnes, Ashleigh and Emilie McDonnell, ‘An Overview of Emerging International Human Rights Law Guidance: Promoting Human Rights Compatibility of Government COVID-19 Responses’ (University of Oxford, Faculty of Law, Bonavero Institute of Human Rights, Bonavero Report No 5/2020, 17 August 2020) 20 Extract from Introduction: There are now a number of international and regional human rights, rule of law and democracy organisations that have developed general guidance on how Covid-19 measures should be evaluated for their compliance with international human rights law. This report aims to collate and briefly summarise the emerging content of such guidance. Due to the proliferation of such guidance, this report is limited to the most significant pieces. It is organised thematically by reference to the following trends: accountability, emergencies and derogations, rights limitations (including privacy), socio-economic rights, discrimination, vulnerable persons, and enforcement powers and practice. This report thus provides a thematic overview of international human rights law guidance to legislatures, executives, courts and civil society in responding to the Covid-19 pandemic.
Barreneche, Sebastián Moreno, ‘Somebody to Blame: On the Construction of the Other in the Context of the Covid-19 Outbreak’ (2020) 4(2) Society Register 19–32 Abstract: Besides the impact that COVID-19 has had in the sanitary, political and economic domains, it has also triggered multiple discursive processes, what opens up the field for an analysis from sociosemiotics, the social science interested in the study of ‘meaning in action’. The aim of this article is to discuss from such a perspective how the current crisis linked to the COVID-19 virus has given place to the emergence of processes of narrative construction of an ‘Other’ to be blamed for the threat. While in some contexts the dominant narrative has been that COVID-19 is ‘the Chinese’ –and their unhealthy culinary habits– fault, in others the focus has been set on ‘the irresponsible’ that do not stay home when indicated to do so, as well as on ‘the posh’, given that they can afford travelling and hence can import the virus on their return. Departing from the premise which poses that cognition is articulated in narrative terms, the article argues how, in cases such as the current COVID-19 crisis, a discursive construction of collective actors by means of mechanisms of actorialization, generalization and axiologization is necessary for the dynamics of blame-attribution.
Bartlett, Robert P et al, ‘Algorithmic Discrimination and Input Accountability under the Civil Rights Acts’ (SSRN Scholarly Paper No ID 3674665, 1 August 2020) Abstract: The disproportionate burden of COVID-19 among communities of color, together with a necessary renewed attention to racial inequalities, have lent new urgency to concerns that algorithmic decision-making can lead to unintentional discrimination against members of historically marginalized groups. These concerns are being expressed through Congressional subpoenas, regulatory investigations, and an increasing number of algorithmic accountability bills pending in both state legislatures and Congress. To date, however, prominent efforts to define algorithmic accountability have tended to focus on output-oriented policies that may facilitate illegitimate discrimination or involve fairness corrections unlikely to be legally valid. Worse still, other approaches focus merely on a model’s predictive accuracy—an approach at odds with long-standing U.S. antidiscrimination law.We provide a workable definition of algorithmic accountability that is rooted in the caselaw addressing statistical discrimination in the context of Title VII of the Civil Rights Act of 1964. Using instruction from the burden-shifting framework, codified to implement Title VII, we formulate a simple statistical test to apply to the design and review of the inputs used in any algorithmic decision-making processes. Application of the test, which we label the input accountability test, constitutes a legally viable, deployable tool that can prevent an algorithmic model from systematically penalizing members of protected groups who are otherwise qualified in a legitimate target characteristic of interest.
Bartolozzi, Miriam et al, ‘Civil Rights in Times of Pandemic: A Code of Conduct for City Governance’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 123–133 Abstract: We discuss the need for a Code of Conduct for local urban governments that should consider a line-up of interconnected civil rights: Access to Information but also the Right to Privacy and to Personal Liberty. Local governments have a key role in collecting, analysing, and sharing information, which have a strong impact on personal liberty and privacy. However, due to COVID-19 pandemic emergency, national governments can declare derogations to the right to ‘seek, receive, and impart information’. We deliberate the value of enshrining Access to Information as an absolute human right in order prevent the spread of misinformation and ensure the accountability of multi-level governance structures. The same is true for the Right to Privacy, which is the other side of the same coin. Finally, national governments should recognize the unique needs of urbanized areas when it comes to personal liberty under present or future pandemics and establish consistent policies to support cities as duty-holders in a rights-based regime.
Bartos, Vojtech et al, ‘Covid-19 Crisis Fuels Hostility Against Foreigners’ (Working Paper of the Max Planck Institute for Tax Law and Public Finance No 2020–03, 14 May 2020) Abstract: Intergroup conflicts represent one of the most pressing problems facing human society. Sudden spikes in aggressive behavior, including pogroms, often take place during periods of economic hardship or health pandemics, but little is known about the underlying mechanism behind such change in behavior. Many scholars attribute it to scapegoating, a psychological need to redirect anger and to blame an out-group for hardship and problems beyond one’s own control. However, causal evidence of whether hardship triggers out-group hostility has been lacking. Here we test this idea in the context of the Covid-19 pandemic, focusing on the common concern that it may foster nationalistic sentiments and racism. Using a controlled money-burning task, we elicited hostile behavior among a nationally representative sample (n = 2,186) in a Central European country, at a time when the entire population was under lockdown and border closure. We find that exogenously elevating salience of thoughts related to Covid-19 pandemic magnifies hostility and discrimination against foreigners, especially from Asia. This behavioral response is large in magnitude and holds across various demographic sub-groups. For policy, the results underscore the importance of not inflaming racist sentiments and suggest that efforts to recover international trade and cooperation will need to address both social and economic damage.
Bates, Elizabeth Stubbins, ‘Article 2 ECHR’s Positive Obligations: How Can Human Rights Law Inform the Protection of Health Care Personnel and Vulnerable Patients in the COVID-19 Pandemic?’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Introduction: This post analyses the case law of the European Court of Human Rights (ECtHR) on states’ positive operational obligations to protect life under Article 2 of the ECHR, and offers concrete arguments for the protection of health care personnel and vulnerable patients through this human rights lens.
Beduschi, Ana, ‘Taking Stock of COVID-19 Health Status Certificates: Legal Implications for Data Privacy and Human Rights’ (2022) 9(1) Big Data & Society (Advance article, published online 24 January 2022) Abstract: The technological solutions adopted during the current pandemic will have a lasting impact on our societies. Currently, COVID-19 health status certificates are being deployed around the world, including in Europe, the United States and China. When combined with identity verification, these digital and paper-based certificates allow individuals to prove their health status by showing recent COVID-19 tests results, full vaccination records or evidence of recovery from COVID-19. Most countries in the Global South, where vaccination rates are low, have not yet fully implemented such certificates, although several initiatives are currently underway. That is, for instance, the case in the African Union. Yet, it is not sufficient to develop technical solutions for the verification of COVID-19 health status. Because technologies do not evolve in a legal vacuum, the existing laws and regulations must be respected. The risks of implementing such technologies must be anticipated and mitigated as much as possible before any large-scale deployment. Risk mitigation should also underpin strategies throughout the deployment of these certificates. This article evaluates the key legal implications of COVID-19 health status certificates for data privacy and human rights. In doing so, it contributes to the current debates, thus informing policymakers in this area of vital national and international interest.
Bekema, Jaye de la Cruz, ‘Pandemics and the Punitive Regulation of the Weak: Experiences of COVID-19 Survivors from Urban Poor Communities in the Philippines’ (2021) Third World Quarterly (advance article, published 3 May 2021) Abstract: Using first-hand data collected from interviews with 21 coronavirus disease (COVID-19)-positive participants in a public quarantine facility in Quezon City, the largest city in the Philippines, this research aims to uncover the ways in which features of the neoliberal agenda shape experiences of resource-poor COVID-19 positive individuals, influence the decisions they make, and mediate their interactions with actors in relative positions of advantage and power. The first part and second part lay the foundation for neoliberalism as the main lens of analysis and situate this current conjuncture within the Philippine political economy. The third looks at COVID-19 testing, and how testing is accessed and experienced by the participants in public health settings. The fourth part examines quarantine arrangements and explores the experiences of COVID-19 patients in a public quarantine facility from the point of entry until they are allowed to go home. The last part – drawing on the data of the first and second parts – reflects on the aspects of neoliberalism that impede an inclusive, pro-poor and humane response to the pandemic.
Bell, Mark, ‘More than an Afterthought? Equality Law in Ireland during the Pandemic’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 145 Abstract: This chapter explores whether equality law has functioned effectively during the pandemic through a case study of the experience in Ireland. It focuses on the impact of equality law on the actions of public bodies during this emergency. The chapter begins with an overview of data from Ireland on the disparate effects of the pandemic on certain groups in society, such as women and migrants. The chapter finds that, so far, there has been limited litigation under equality laws that directly relates to the state’s responses to the pandemic. In contrast, there are several examples of instances where measures that the state adopted, such as emergency employment supports, were contested politically due to their alleged inconsistency with equality laws. In some cases, this did result in subsequent revision of the original scheme. Irish law places public bodies under a duty to pay due regard to equality and human rights in performing their functions. This should have ensured that equality issues were taken into account during pandemic decision-making, but the chapter finds that there is limited evidence that this duty functioned effectively. The chapter concludes by arguing that the public sector equality duty needs to be strengthened. It also identifies the important role of state equality bodies in providing a voice for equality issues during a time of crisis.
Bellazzi, Francesca and Konrad v Boyneburgk, ‘COVID-19 Calls for Virtue Ethics’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa056 Abstract: The global spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or coronavirus disease 19 (COVID-19) has led to the imposition of severely restrictive measures by governments in the Western hemisphere. We feel a contrast between these measures and our freedom. This contrast, we argue, is a false perception. It only appears to us because we look at the issue through our contemporary moral philosophy of utilitarianism and an understanding of freedom as absence of constraints. Both these views can be substituted with more sophisticated alternatives, namely an ethics of virtue and a notion of freedom of the will. These offer a fuller picture of morality and enable us to cooperate with the current restrictions by consciously choosing to adhere to them instead of perceiving them as draconian and immoral. We ask whether we should collaborate with the restrictions and argue that considerations of virtue will lead to an affirmative answer. More broadly, virtue ethics permits to deal with the practical concerns about how an individual should behave during this pandemic, given the current lockdown measures or lack thereof.
In section 1, we present how utilitarianism and a notion of freedom as negative liberty support the opposition to restrictive measures. In section 2, we outline an alternative based on an ethics of virtue and a more elaborated notion of free will. In the concluding section 3, we argue that considerations of virtue should guide the individual and public response to the emergency.
Benfer, Emily A et al, ‘Health Justice Strategies to Combat the Pandemic: Eliminating Discrimination, Poverty, and Health Inequity During and After COVID-19’ (SSRN Scholarly Paper No ID 3636975, 1 June 2020) Abstract: Past infectious disease epidemics in the United States and governmental responses to them made it highly predictable that people living in poverty, people of color, and people with disabilities would bear the brunt of the coronavirus pandemic due to discrimination that limits equal access to resources, such as health care, housing, and employment. The COVID-19 pandemic magnified and accelerated the impact of longstanding discrimination and health inequity among historically marginalized groups and low-income populations. Black and Latinx populations have a higher COVID-19 contraction and mortality rate, higher rates of unemployment, less access to health care, and are at higher risk of eviction during the pandemic, among other significant inequities. Without robust and swift government interventions, the impacts of the pandemic will be wide and deep. This article analyzes mechanisms of discrimination and barriers to health in the pandemic setting using the health justice framework to address discrimination and poverty. The health justice framework offers four overarching principles to prevent and eliminate health disparities during and after the COVID-19 pandemic. First, legal and policy responses must address the impacts of discrimination and poverty on the social determinants of health, which in turn threaten to exacerbate the health, financial, and social impacts of a public health emergency on low-income communities, communities of color, and other marginalized communities. Second, interventions mandating healthy behaviors—such as staying at home from work when sick, mask wearing, and minimizing close contacts outside the home—must be accompanied by legal protections, accommodations, and social supports to enable those behaviors while minimizing economic, social, and cultural harms. Third, because emergencies typically exacerbate long-standing and interconnected crises in low-income communities and communities of color, legal and policy responses must address root problems in addition to immediate needs. Fourth, historically marginalized communities must be engaged as leaders in the development of any interventions and the attainment of health justice. To demonstrate the application of the health justice framework and principles, this article focuses upon three pillars that support resilience and equip marginalized communities to withstand the immediate and long-term impacts of the pandemic: health care, housing, and employment. This article explains how health care discrimination is a social determinant of health, how lack of access to health care operated as a barrier to health justice during the COVID-19 pandemic, and applies the health justice framework to address health inequity. Then this article explains how housing and eviction are social determinants of health, how housing discrimination is a barrier to health justice during the COVID-19 pandemic, and suggests way to achieve health justice in housing. Finally, this article discusses how poverty and employment inequity are social determinants of health, how structural discrimination is an accelerator of employment inequity during the COVID-19 pandemic, and suggests how health justice principles can help achieve equity in employment. Ultimately, the framework can be adopted across numerous social determinants of health and structures to ensure the elimination of discrimination, poverty, and poor health among marginalized people during and after the pandemic.
Benjamin, MS and C Basavaraju (eds), The Status of Human Rights During Covid-19 Pandemic (University of Mysore, 2022)Jurisdiction: India Bennett, Belinda, Ian Freckelton and Gabrielle Wolf, ‘Law, Regulation, and Rights: Reflections on the COVID-19 Pandemic’ in COVID-19, Law, and Regulation: Rights, Freedoms, and Obligations in a Pandemic (Oxford University Press, 2023) Bennett Moses, Lyria et al, ‘COVIDSafe App - Submission to the Parliamentary Joint Committee on Human Rights’ (SSRN Scholarly Paper No ID 3595109, 7 May 2020)
Abstract: This submission to the Parliamentary Joint Committee on Human Rights sets out how the Australian government’s scheme around the COVIDSafe app can better align with the human right to privacy. We recognise the app pursues a legitimate objective and that the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 (Cth) and exposure draft of Privacy Amendment (Public Health Contact Information) Bill 2020 provide important protections. Nevertheless, we make a series of recommendations that would improve the transparency of the scheme and better protect the privacy of those downloading and using the app.
Bennoune, Karima, ‘“Lest We Should Sleep”: COVID-19 and Human Rights’ (2020) 114(4) American Journal of International Law 666–676 Abstract: Any meaningful human rights law approach to COVID-19 must be holistic and recognize the breadth of the challenges to both economic, social, and cultural rights, and civil and political rights. It must be grounded in the threat posed by the disease but also address responses to it, and implicate a wide range of state and nonstate actors. Such an analysis should offer a positive vision of effective global reaction, and counter attempts to hijack rights to oppose legitimate pandemic measures.
Bertocchi, Graziella and Arcangelo Dimico, ‘Covid-19, Race, and Redlining’ (IZA Discussion Paper No 13467, 14 July 2020) Abstract: Discussion on the disproportionate impact of COVID-19 on African Americans has been at center stage since the outbreak of the epidemic in the United States. To present day, however, lack of race-disaggregated individual data has prevented a rigorous assessment of the extent of this phenomenon and the reasons why blacks may be particularly vulnerable to the disease. Using individual and georeferenced death data collected daily by the Cook County Medical Examiner, we provide first evidence that race does affect COVID-19 outcomes. The data confirm that in Cook County blacks are overrepresented in terms of COVID-19 related deaths since – as of June 16, 2020 – they constitute 35 percent of the dead, so that they are dying at a rate 1.3 times higher than their population share. Furthermore, by combining the spatial distribution of mortality with the 1930s redlining maps for the Chicago area, we obtain a block group level panel dataset of weekly deaths over the period January 1, 2020-June 16, 2020, over which we establish that, after the outbreak of the epidemic, historically lower-graded neighborhoods display a sharper increase in mortality, driven by blacks, while no pre-treatment differences are detected. Thus, we uncover a persistence influence of the racial segregation induced by the discriminatory lending practices of the 1930s, by way of a diminished resilience of the black population to the shock represented by the COVID-19 outbreak. A heterogeneity analysis reveals that the main channels of transmission are socioeconomic status and household composition, whose influence is magnified in combination with a higher black share.
Bhavnani, Sharan, Prashant Narang and Jayana Bedi, ‘Rights, Restrictions, and the Rule of Law: COVID-19 and Women Street Vendors’ (Centre for Civil Society, 2021) Abstract: This policy brief evaluates the bearing of COVID-19 restrictions on women street vendors. In particular, it outlines: i) the approach adopted by the government to regulate street vending amidst the pandemic; (ii) areas of excesses and its impact on vendors; and iii) international best practices that could guide the government’s future approach in crises.
Bień-Kacała, Agnieszka, ‘Limiting Fundamental Rights by Governmental Regulations. An Illiberal Response to the COVID-19 Pandemic in Poland’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 163–178 Abstract: The chapter focuses on the limitation of fundamental rights by governmental regulations within the Polish illiberal constitutional framework. First, the illiberalisation of human rights is presented. Then, the constitutional framework of emergencies is described with reference to the non-application of this framework. Further, the legal response to fighting the pandemic is discussed, emphasising the unconstitutionality of limitations on rights and freedoms by government acts rather than by the parliament, along with the judicial reaction to unconstitutional measures. The chapter concludes that the constitutional system and human rights protection deteriorated but have not achieved the authoritarian end yet.
Bień-Kacała, Agnieszka, ‘Limiting Fundamental Rights during the COVID-19 Pandemic in Illiberal Constitutionalism: The Case of Poland’ in Arianna Vedaschi (ed), Governmental Policies to Fight Pandemic: The Boundaries of Legitimate Limitations on Fundamental Freedoms (Brill, 2024) 286–306 Abstract: The chapter is structured as follows: first, the constitutional framework of emergencies will be described with reference to the non-application of this framework. Further, the organizational and legal response to fighting the pandemic will be discussed, emphasising the unconstitutionality of limitations on rights and freedoms. The restrictions applied will be described separately, considering political, personal, and social rights and freedoms.
Bílková, Veronika, ‘Age-Based Triage and Human Rights’ (2023) 41(1) Netherlands Quarterly of Human Rights 13–34 Abstract: The article provides the first comprehensive assessment of age-based triage from the perspective of human rights. Triage, that is the sorting of patients into categories of priority of treatment, has been known for decades. It has however got larger prominence during the Covid-19 crisis. The crisis has exposed healthcare systems in many countries to a critical shortage of resources, forcing them to consider resorting to triage. The absence of legal rules has been compensated by non-binding triage guidelines, adopted by professional medical and ethical associations. This article analyses 11 guidelines, showing that none of them is truly age neutral. Some use allocation criteria that entail disparate treatment of older persons, consisting of their de-prioritization or exclusion from access to life-saving treatment on account of their age. Others rely on allocation criteria whose application has disparate effects on older persons. The article argues that whereas the latter approach could be compatible with human rights standards, the former entails violations of the principle of non-discrimination and of several other human rights (the right to life, the prohibition of inhuman and degrading treatment, the right to private life, and the right to health).
Billauer, Barbara Pfeffer, ‘Ageism and CoVid 19: First They Lock the Oldsters Up, Then They Refuse The Ventilators. What’s Next?’ (SSRN Scholarly Paper No ID 3647209, 9 July 2020) Abstract: Most commentators claim that age is a determinant of deaths from Co-Vid 19. This paper suggests flaws in this analysis. While co-morbidities associated with age may be contributory, there is no data showing that oldsters are more vulnerable to death from CoVid 19 than they are for dying generally. In fact, it appears that the aged population is less likely to die from CoVid than from Influenza and that the healthy oldster may be able to survive CoVid better than the healthy youngster. I further claim that CoVid policies targeting the elderly have unnecessarily contributed to their deaths. Thus rationing policies depriving the elderly of respirators and imposing restrictive lockdowns themselves contributed to the very assumptions on which these policy decisions were based.
Billauer, Barbara Pfeffer, ‘On the Proposal Not to Vaccinate the Aged for COVID-19’ (SSRN Scholarly Paper No ID 3694407, 17 September 2020) Abstract: Public Health Practice champions the objective of saving lives when allocating scarce resources. Bioethical precepts advocate equal respect for individuals. Anti-discrimination laws forbid making decisions on the basis of class or stereotypes. What happens when academics propose vaccine- allocation plans (in an article in The Conversation) which trespass on all three- promising that their plain will stop the epidemic? Insidious schemes which seem to promise nirvana while violating human and civil rights need to be examined very carefully. In this case, a careful examination discloses the proposed plan is inherently flawed, not just from a legal and ethical perspective, but from a public health perspective as well.
Billauer, Barbara Pfeffer, ‘The Prejudice, Politicization, and “Pariah-Tization” Influencing Pandemic Policy and Law: Stereotype as the Driver of Public Health Response’ (SSRN Scholarly Paper No 4675060, 24 December 2023) Abstract: As the panic incident to COVID-19 subsides, various responses have come under attack. One was the misfocused targeting of the elderly; a second was ignoring the susceptibility of young. As a result. draconian lockdowns were instituted in nursing homes - a feature that exacerbated deaths in both the old, and youngsters were not monitored/masked/ or vaccinated, thereby increasing transmission and upping the incidence of disease in that group. Hard science did not support these conclusions or responses. Similarly, legal and public health responses in American to the cholera and yellow fever epidemics of the 1800s was not driven by science, as I show here. Instead, this Article demonstrates that a particular ‘pariah’ was blamed for each of various epidemics in the 1800s. The pariah or ‘other’ of choice was chosen by political expedience (e.g., the desire to control immigration) and prejudice (e.g., antisemitism and anti-Black). Laws, Legislation, and policy ignored science and proven public health practice which demonstrated that poor sewage drove the epidemics. Nevertheless, American policy makers and public health officials implemented quarantine (mistakenly believing the disease was contagious) or ordered disinfection (called sanitation) believing that disease was transmitted by ‘miasma’ or “bad air. The cohort identified as most susceptible and requiring quarantine or disinfection was predicated on stereotypes feeding ‘misinformed science’: the intemperate, the poor, the Black, the immigrant, and the Jew – all considered dirty or filth breeders.I suggest that a self-protective (and unconscious) desire by policy makers- generally younger and middle-classed – to artificially cocoon themselves from disease by creating an ‘other’ who is believed to be more susceptible seeded erroneous laws and policies of the 1800s. I suggest that same tendency was at play in ‘Pariah-tizing’ the elderly in COVID. I further suggest that awareness of this tendency by exploring past practices is the best prevention from future missteps.
Binder, Christina, ‘Emergencies in the Inter-American Human Rights System: The Example of Ecuador in Times of COVID-19’ (SSRN Scholarly Paper No 4807343, 20 April 2024) Abstract: The paper examines the handling of emergencies in the Inter-American human rights system, by using Ecuador’s response to the COVID-19 pandemic as an example. It argues that human rights and rule of law guarantees are critical safeguards to deal with states of emergency. From a substantive human rights perspective, the paper highlights the importance of absolute limits, proportionality assessments and non-discrimination considerations; from a procedurally/rule of law-oriented perspective, it emphasizes the significance of effective remedies and an independent judiciary. Guarantees at the domestic level are required by the regional emergency constitution (Article 27 of the American Convention on Human Rights) as well as by Article 4 of the International Covenant on Civil and Political Rights. The practical importance of such domestic safeguards/guarantees is shown in the case of Ecuador where careful crisis management in particular by the Ecuadorian Constitutional Court has responsibly contained executive emergency powers also in times of COVID-19.
Blackham, Alysia, ‘A Life Course Approach to Addressing Exponential Inequalities: Age, Gender, and Covid-19’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 233 Abstract: This chapter argues that age is an exponential amplifier of inequality. It puts forward a life course perspective as a nuanced lens for enriching our understanding of discrimination and its impacts over time. A life course approach offers a targeted focus for addressing exponential inequalities, drawing our attention to discrimination at critical transition points. Building on this life course perspective, experiences of discrimination over time can be seen as non-linear and multi-directional, but still interlinked and biographic, punctuating and shaping life stories in unpredictable ways. These ideas are illustrated through a case study of gendered ageism at work, drawing on empirical evidence to map how gender inequality is amplified with age and time, and further exacerbated by the impacts of the Covid-19 pandemic. Viewed with this life course lens, this chapter argues that discrimination law appears fundamentally ill-adapted for responding to exponential inequalities. The chapter therefore considers the extent to which ‘next generation’ positive duties—like the Gender Equality Act 2020 (Vic)—might address these concerns.
Blore, Ken and Felicity Nagorcka, ‘Human Rights and Trust in the Time of COVID-19: Lockdowns, Prison Conditions and Vaccine Mandates’ [2024] (110) AIAL Forum 21-49 Abstract: On the eve of the COVID-19 pandemic, Queensland joined the Australian Capital Territory and Victoria in enacting human rights legislation. The response to the pandemic required incursions on fundamental rights and freedoms which tested the human rights frameworks in each of these jurisdictions. Under that framework, whenever an act, decision or statutory provision limits a human right, generally that limit must be justified according to a test of proportionality. In this way, the legislation aims to embed a "culture of justification". This article follows how this culture of justification played out in the ACT, Victoria and Queensland for lockdowns, vaccine mandates and the heightened risks of transmission in a prison setting. It explores what these examples reveal about how human rights legislation interacts with trust in government institutions, and seeks to answer the following question: does a human rights framework help to build trust in government or might it, conversely, encourage scepticism about government decision-making?
Bohoslavsky, Juan Pablo, ‘COVID-19, the Economy and Human Rights: Inequality Is Not a Virus, but a Political Choice’ (2020) 17(30) SUR: International Journal on Human Rights 85–98 Abstract: This article presents a series of reflections on the links between the economy and human rights in times of Covid-19. It argues that the economy and human rights are not incompatible and criticises ‘the economy first’ approach that some governments are promoting, as it leads to the worst of both worlds: a fall in GDP and a rise in deaths. It also warns about the risk of implementing austerity policies, as done in the recent past, and how these policies and confinement increase the burden on women. It presents fiscal policies that could be implemented to finance social justice, while putting people’s needs and rights before capital growth and the interests of large corporations. It also discusses the regulatory conflict between individual property rights and human rights in a range of cases, including investment arbitration. Finally, he offers a series of proposals on economic, fiscal, financial, monetary, social and environmental policies that combine to form a truly transformative agenda.
Bolborici, Ana-Maria, 'Child Protection in the Context of COVID-19' (2020) 7(1) Jus et Civitas: A Journal of Social and Legal Studies 71-78 Abstract: This paper concentrates on a few aspects regarding the issues that arose after the current outbreak of the new coronavirus (SARS-CoV-2), in Europe and beyond. In this context, the purpose of the paper is to estimate, from the children's perspective, the consequences of this pandemic and what rights do children who may need special protection have. It is obvious that the children are one of the most vulnerable categories especially when they don't have the parents' or family's support so that they often become victims of violence, abuse and so on. Also, we pay special attention to the children with disabilities because they are one of the most marginalized and excluded groups in society, they need special and constant protection and sometimes experience degrading treatment or suffer other serious human rights violations. In this regard, we will present some international and European instruments which provide forms of special protection and specific procedures for children, such as the United Nations Convention on the Rights of the Child, Convention on the Rights of the Child or Convention on the Rights of Persons with Disabilities. In the end, we will conclude stressing that although the children rights are recognized and there are many organizations like UNICEF who struggle for their rights, the nowadays reality proves that there is a discrepancy in applying and respecting the elementary rights of the children who need special protection.
Bolborici, Ana Maria, ‘The COVID 19 Pandemic and the Fundamental Rights in the EU’ (2021) 14(63) Bulletin of the Transilvania University of Braşov. Series VII: Social Sciences • Law 17–22 Abstract: The year 2020 and also 2021 brought both progress and setbacks in terms of fundamental rights protection. The COVID-19 Pandemic triggered multiple crises not only at the sanitary level. In this context, people in Europe and also all over the world had the impress that their fundamental rights are not respected and limited. The paper offers a perspective about the impact of COVID-19 on human rights and emphasis some highlights weaknesses.
Bolsover, Gillian, ‘Balancing Freedoms, Rights and Responsibilities during COVID in US: A Study of Anti- and Pro-Restriction Discourse’ (SSRN Scholarly Paper No ID 3678626, 4 August 2020) Abstract: Countries across the world have instituted unprecedented restrictions on freedom of movement, privacy and individual rights to control the spread of COVID-19. These measures tend to have been derived from communally orientated East Asian cultures. The way that culturally relevant concepts of rights and freedoms underpin COVID restrictions in democratic and individually orientated countries remains unknown. This data memo addresses this issue through analysis of pro- and anti-restriction discourse on social media in the US. It finds that anti-social and economic restriction discourse more frequently articulates rights and freedoms, based on ideas of inviolable rights to freedom of movement or freedom of economic activity or a cost-benefit analysis that places economic activity over public health. Pro-social and economic restriction discourse less frequently mentions rights and freedoms, instead supporting restrictions as following state and medical advice and out of deference and respect to medical professionals. Discourse is highly polarised and divisive and articulated largely through established political identity positions. It is suggested that more attention is paid to discussions of balancing rights and freedoms in COVID control restrictions. To convince opposers of restrictions, supporters of restrictions should base arguments around communal rights and positive freedoms. It is also important to critically evaluate whether and how these perspectives need to be adapted to be appropriate and resonant in democratic and individualistic countries.
Bonacini, Luca, Giovanni Gallo and Sergio Scicchitano, ‘All That Glitters Is Not Gold. Effects of Working from Home on Income Inequality at the Time of COVID-19’ (SSRN Scholarly Paper No ID 3597996, 8 May 2020) Abstract: The recent global COVID-19 pandemic forced most of governments in developed countries to introduce severe measures limiting people mobility freedom in order to contain the infection spread. Consequently, working from home (WFH) procedures became of great importance for a large part of employees, since they represent the only option to both continue working and keep staying home. Based on influence function regression methods, our paper explores the role of WFH attitude across labour income distribution in Italy. Results show that increasing WFH attitudes of occupations would lead to a rise of wage inequality among Italian employees. The opportunity of WFH tends to benefit male, older and high-paid employees, as well as those living in provinces more affected by the novel coronavirus.
Bonds, Victoria R, ‘Tinkering with the Schoolhouse Gate: The Future of Student Speech After Mahanoy Area School District V. B.l’ (2022) 42(2) Loyola of Los Angeles Entertainment Law Review 83–109 Abstract: When the Supreme Court last created a rule about students’ First Amendment rights, MySpace was the most popular social media platform. Students’ use of social media and technology has radically changed since then, and it is time the First Amendment case law reflects that. With the transition to online learning after the COVID-19 pandemic and overall increased reliance on technology, students need clear answers about when school officials can punish them for their social media posts. The Supreme Court had a chance to clarify First Amendment student speech law this year in Mahanoy Area School District v. B.L., but instead, left it up to the lower courts to decide when school officials can punish students for their off-campus speech. However, the current circuit courts’ tests are unclear and heavily favor school officials. This Essay argues that the lower courts should instead adopt a test where school officials cannot punish students for their off-campus speech unless it falls within an exception to the First Amendment.
Bonvicini, Barbara et al, ‘Legal Scenarios in the Coronavirus Time: Medico Legal Implications in the Aspects of Governance’ (2021) 48 Legal Medicine Article 101832 Abstract: Along with rising levels of the infection around the world, the state of emergency prompted by the COVID-19 pandemic has also been having a heavy legal impact. The situation is posing important criminal challenges, as well as an ocean of social and public health issues around the world. It has not only directly affected constitutionally-guaranteed rights and individual freedoms, but also brought to the fore certain types of criminal offence that had previously been of little practical importance, such as the crime of ‘maliciously or unintentionally causing an epidemic’. Different countries and states have introduced policies to manage the emergency at different times and in different ways. The measures adopted have been the object of much criticism, also raising questions of constitutional legitimacy in countries like Italy. The present contribution begins with a brief outline of the different international scenarios. Then we examine some of the medicolegal aspects of criminal offences previously envisaged and newly introduced since the arrival of the pandemic. We suggest the need for a sort of ‘code of public health laws for the time of coronavirus’, that could also be applied to other public health emergencies, pandemic or otherwise. The idea is to give operators in the sector and the general population the opportunity to identify clear and simple rules to follow in the current complex global situation. We need a new, appropriate interpretation of the ‘boundaries’ of our individual rights in relation to the need to safeguard the wider community and its more vulnerable members.
Bowleg, Lisa, ‘We’re Not All in This Together: On COVID-19, Intersectionality, and Structural Inequality’ (2020) 110(7) American Journal of Public Health 917 Extract: Newspaper headlines swiftly affirmed the disproportionate impact of COVID-19 in Black and Navajo communities and issued ominous warnings about the pandemic’s future in poor White rural communities. My irritation with the ubiquitous phrase ‘We’re all in this together’ quickly ensued. Although seemingly innocuous and often well intentioned, the phrase reflects an intersectional color and class blinding that functions to obscure the structural inequities that befall Black and other marginalized groups, who bear the harshest and most disproportionate brunt of anything negative or calamitous: HIV/AIDS, hypertension, poverty, diabetes, climate change disasters, unemployment, mass incarceration, and, now, COVID-19.
Brady, Alan and James Rooney, ‘COVID-19 Lockdowns and the Right to Education in Ireland’ (2021) 110(440) Studies: An Irish Quarterly Review 415–424 Abstract: COVID-19 Lockdowns and the Right to Education in Ireland Alan Brady and James Rooney In January 2021, the Minister for Education ordered all schools – including special schools – closed, in response to the third, and, so far, most extreme, wave of the COVID-19 pandemic. The guidance of the National Public Health Emergency Team (NPHET) to the Minister for Health on 30 December 2020 was that ‘schools should reopen as planned.’1 NPHET continued however that, ‘the high and rising levels of community transmission will become a risk to the ongoing provision of education at primary and secondary level unless these levels of transmission can be addressed.’2 On 5 January 2021, the NPHET advised the Minister for Health: Schools are safe environments, with very little evidence of transmission within schools, so that it seems that the majority of infections of children and adolescents occurs outside the school setting’3 and that ‘the opening of schools in August 2020 had no detectable effect on the growth rate in case numbers over subsequent weeks.4 However, the NPHET continued: The current epidemiological situation has deteriorated to a point where the significant levels of mobility and linked activity that the full reopening of schools would generate, constitutes a very significant additional risk in the context of what are already unprecedented levels of disease transmission in the community. It is important to state that this advice is not based on a changed assessment of the risks in relation to transmission levels in schools. Rather, it is a reflection of the overall epidemiological situation and the absolute need now to reduce all opportunities for transmission.5 Studies • volume 110 • number 440 415 Schools are distinctive institutions within our society as they not only serve an obvious social and educational function, but they also are the means by which we ensure the protection of a key fundamental right which our constitution extends to all children in Ireland: the right to a free primary education. Further, the educational rights of Irish children are guaranteed not only in Bunreacht na hÉireann, but also in international treaties to which the state is a party, from the European Convention on Human Rights (ECHR) and the UN Convention on the Rights of the Child (UNCRC) to the UN Convention on the Rights of People with Disabilities (UNCPRD). The closure of schools, even with the provision of online learning for those in a position to access it, has significant implications for the right to education as guaranteed by the Constitution of Ireland, the ECHR and the UN Convention on the Rights of the Child (UNCRC). In this article, we examine how the blanket closure of schools affects education rights protection in Ireland. In this, we have paid particular attention to those whose education rights are most vulnerable and at risk of being denied, namely disabled children and children from socioeconomically disadvantaged backgrounds. The constitutional right to primary education Article 42.4 of the Constitution of Ireland provides: ‘the state shall provide for free primary education’. On paper this is one of the most innovative passages in our constitution, unamended since its inclusion in 1937. Its immediate predecessor – Article 10 of the Free State constitution – was the first enumerated socioeconomic right in the common law world, and only the third such right contained in any democratic constitution.6 However, for as promising as this express guarantee appears at first, a study of how it has been applied in practice is somewhat less encouraging. In Crowley v Ireland, the first case to engage with this provision – in 1980, over forty years after Article 42.4 became operative – a strike by the INTO in the three national schools in Drimoleague left the schoolchildren of Drimoleague unable to access free primary education for the duration of the strike. It was argued on behalf of the children that Article 42.4 of the constitution created a right actionable against the state when, as in this case, their source of primary education was withdrawn. The Supreme Court rejected this argument.
Brown, Elizabeth, ‘Supercharged Sexism: The Triple Threat of Workplace Monitoring for Women’ (SSRN Scholarly Paper No ID 3680861, 1 August 2020) Abstract: As biometric monitoring becomes increasingly common in workplace wellness programs, there are three reasons to believe that women will suffer disproportionately from the data collection associated with it. First, many forms of biometric monitoring are subject to gender bias, among other potential biases, because of assumptions inherent in the design and algorithms interpreting the collected data. Second, the expansion of femtech in particular creates a gender-imbalanced data source that may feed into existing workplace biases against women unless more effective safeguards emerge. Finally, many femtech platforms encourage the kind of information sharing that may reduce women’s reasonable expectations of privacy, especially with regard to fertility data, thus increasing the risk of health data privacy invasion. This triple threat to female workers may be offset somewhat by the benefits of health data collection at work and may be remedied at least in part by both legislative and non-legislative means. The current trend toward greater health data collection in the wake of COVID-19 should provoke a reexamination of how employers collect and analyze women’s health data in order to reduce the impact of these new gender bias drivers.
Brown, Italo M et al, ‘COVID-19 Disparities and the Black Community: A Health Equity–Informed Rapid Response Is Needed’ (2020) 110(9) American Journal of Public Health 1350–1351
Brown, Norrinda, ‘Black Liberty in Emergency’ (2023) 118(3) Northwestern University Law Review 691–756 Abstract: COVID-19 pandemic orders were weaponized by state and local governments in Black neighborhoods, often through violent acts of the police. This revealed an intersection of three centuries-old patterns— criminalizing Black movement, quarantining racial minorities in public health crises, and segregation. The geographic borders of the most restrictive pandemic order enforcement were nearly identical to the borders of highly segregated, historically Black neighborhoods. The right to free movement is fundamental and, as a rule, cannot be impeded by the state. But the jurisprudence around state power in public health emergencies, deriving from the 1905 case Jacobson v. Massachusetts, has practically resulted in a public health exception to this general rule. Over the past twenty years, scholars have asserted that deference in this context, including denying due process and suspending judicial review, can lead courts to sustain gross violations of civil rights in emergencies. These scholars’ arguments gained traction amongst libertarians and the courts during the COVID-19 pandemic. But scholars and courts alike have failed to sufficiently center race as they update the law of quarantine, despite a four-hundred-year history of racialized quarantines. This Article seeks to render race visible in our understanding of the nature and scope of quarantines during public health emergencies. The Article makes the claim that COVID-19 pandemic orders and their enforcement schemes are genealogically related to a larger American project of racializing neighborhood borders and constricting Black movement. And it proposes the abolition of carceral responses to public health crises in Black communities, including quarantines, and the reconstruction of liberty to bring Black communities within the sphere of the state’s protection in future emergencies.
Brown, Teneille R, Leslie P Francis and Jim Tabery, ‘Should We Discriminate Among Discriminations?’ (SSRN Scholarly Paper ID 3997371, 30 December 2021) Abstract: The COVID-19 pandemic has demonstrated the complexities of rationing needed health care in a pandemic. It has also revealed deep, structural inequities in health care systems and societies, with certain disadvantaged groups experiencing alarmingly disproportionate rates of infection. A number of anti-discrimination statutes exist to ameliorate some of these historical inequities in the United States. Under federal law, health care facilities receiving federal funding may not discriminate on the basis of race, color, or national origin; disability; age; or sex. Three of these forms of discrimination were already prohibited by statutes that have been in effect for nearly fifty years: Title VI of the Civil Rights Act of 1964 (race, color, and national origin), the Rehabilitation Act of 1973 (disability), and the Age Discrimination Act of 1975 (age). In 2010, Section 1557 of the Affordable Care Act (ACA) referenced these three statutes and a fourth, Title IX of the Education Amendments of 1972 (sex), in a prohibition of all of these forms of discrimination by health care facilities receiving federal funding. Substantially different bodies of case law have been developed for each statute, spanning the fifty years these statutes have been in effect. The ACA’s juxtaposition of the four presents a puzzle with profound legal, policy, social, and ethical implications: Does Section 1557 bring these four anti-discrimination statutes together in order to harmonize them, offering a common approach to anti-discrimination in health care for all categories? Or should there continue to be differences among how discrimination is understood for these different protected categories? Using the examples of crisis care standards and vaccine allocation, this Article explores this puzzle in interpreting Section 1557. To do so, this Article details important differences among the statutes, including their approach to disparate impact discrimination and whether they have been interpreted to permit suits by private individuals for damages. This Article also explores the legislative histories of the Age Discrimination Act and the ACA itself. This Article concludes that Section 1557 reveals but does not resolve important questions about whether there are legally relevant reasons to discriminate among discriminations.
Bueno De Mesquita, Judith, ‘Covid-19: An Inconvenient Truth? Re-Evaluating Progress and Confronting Challenges for the Right to Health’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights : Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 85–92
Burke, Ciarán, ‘COVID-19 and Korea: Viral Xenophobia through a Legal Lens’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 91–104 Abstract: Although South Korea’s response to COVID-19 has been praised as efficient, effective, and well-planned, the legislation devised to tackle the pandemic suffered from a lack of human rights safeguards and was rather opportunistically employed by the government to target an unpopular religious community. In such situations, it falls to the courts to provide protection to those who may have suffered as a result of state excesses. The trial of Chairman Lee Manhee of the Shincheonji Church of Jesus places these issues in sharp relief. Chairman Lee’s prosecution is instructive regarding applications of the rule of law in situations of national emergency, freedom of religion, and the inadequacy of traditional legal remedies for certain human rights violations.
Burris, Scott et al, ‘The Legal Response to COVID-19: Legal Pathways to a More Effective and Equitable Response’ (2021) 27(January/February) Journal of Public Health Management and Practice S72–S79 Abstract: COVID-19 is the new disease this country had been preparing to take on for decades. So far, the response has been a failure, with huge human and economic costs. While peer countries have managed to get the pandemic under a degree of control, the United States seems pathologically unable or unwilling to prevent rising cases and deaths. This is not a failure of resources: although decades of cutting health agency budgets is a big part of our problem, we remain a country rich in money and expertise. This is not a failure of individual courage; from health care workers through transport workers to people who produce and deliver food supplies, essential workers have shown up and done their jobs at significant personal risk. This has been, first and foremost, a failure of leadership and the development or implementation of an effective response.
Burström, Bo and Wenjing Tao, ‘Social Determinants of Health and Inequalities in COVID-19’ (2020) 30(4) European Journal of Public Health 617–618 Abstract: The COVID-19 pandemic is affecting populations worldwide. Although everyone is susceptible to the virus, there are numerous accounts of the pandemic having a greater impact on lower socioeconomic groups and minorities.1,2 Also, in Stockholm, Sweden, the infection rate is 3–4 times higher in some socioeconomically disadvantaged residential areas compared to the regional average. Scientific studies of inequalities in Coronavirus disease 2019 (COVID-19) are lacking at present, but it is reasonable to assume that disparities in social determinants of health have contributed to these early observations and result in differential exposure to the virus, differential vulnerability to the infection and differential consequences of the disease.
Buyse, Antoine, ‘Pandemic Protests: Creatively Using the Freedom of Assembly during COVID-19’ (2021) 39(4) Netherlands Quarterly of Human Rights 265–267 Abstract: It is a new truism that the COVID-19 pandemic has exacerbated an already dire human rights situation across the globe. The waves of protest that swept across the world in the year before the pandemic seemed to have been brought to a sudden halt due to lockdowns and restrictive laws. But at the same time, people everywhere have availed themselves of the wide protective scope of the freedom of assembly, newly re-emphasized in the Human Rights Committee’s General Comment of 2020, to come together, protest, and make their voices heard in numerous creative ways. Amid the restrictions, there has been resilience.
Campbell, Meghan, Sandra Fredman and Aaron Reeves, ‘Palliation or Protection: How Should the Right to Equality Inform the Government’s Response to Covid-19?’ (2020) 20(4) International Journal of Discrimination and the Law 183–202 Abstract: This article examines what role equality law can play in addressing the inequalities created and exacerbated by the British government’s response to the Covid-19 pandemic. We argue that while there is great potential in existing legislation, there is a need for both policy-makers and courts to apply a more searching and nuanced understanding of the right to equality if this potential is to be realised. We begin by examining how the burdens of confronting this pandemic as a society fall more heavily on those already at the bottom end of the scale of inequality. We then ask whether and to what extent the current legal structures protecting the right to equality can be mobilised to redress such inequalities, paying particular attention to the Public Sector Equality Duty under the Equality Act 2010 and on the Human Rights Act 1998. Finally, we argue that, to fulfil the requirements of both these legal duties, the courts should subject policies and practices to close scrutiny under the four-dimensional approach. When making and operationalising policies around Covid-19, substantive equality requires account to be taken simultaneously of the four dimensions of inequality to the greatest extent possible.
Campina, Ana and Carlos Rodrigues, ‘There Is a Relationship between the EU Charter of Fundamental Rights and the International Tax Law in the Universal Pandemic Moments? – Education Study’ (2021) 11(2) Global Journal of Sociology: Current Issues 52–70 Abstract: The unexpected pandemic 2020 context brings to humanity the effective relevance to the minimum existential, to the human rights, more than the discourse, but the real need of the protection from the main legal instruments. The paper proposes and discusses the connection with the need for tax collection by the states to meet the expenses of the social state, namely for education expenses, and whether the economic limitation caused by the current pandemic in face of the sharp decline in GDP and which has necessarily associated with a large decrease in the collection of tax revenues, which may compromise the right to education. From the findings of the study, concerning the new technologies and their dependence, the actual context shows that it is not an option but an effective need for everyone, so the states and the international community have the obligation to generate conditions of the best access and should promote the pedagogical need in this subject. Keywords: Fundamental rights, social state, taxes, property protection, education.
Cannon, Yael, ‘The Persistent Public Health Emergency’ (2024) 55(3) Columbia Human Rights Law Review 726–812 Abstract: May 11, 2023 was ostensibly a day of celebration. With infections and deaths from COVID-19 down, the federal government announced the end of the official Public Health Emergency three years after its initial declaration. But the conclusion of the Public Health Emergency also signaled the termination of unprecedented health protection measures—outside the realm of healthcare—such as eviction and utility shutoff moratoria and emergency rental and utility assistance. These COVID-era measures successfully cut eviction filings nationally by more than half and provided people in many jurisdictions with the protections and assistance needed to maintain their electricity, heat, water, and gas. Now that those measures have ended, evictions and residential utility shutoffs are again rampant, surpassing pre-pandemic levels in numerous places. For marginalized and minoritized communities that have long disproportionately experienced evictions and utility disconnections and their connected health harms, the health emergency persists. This Article scrutinizes legal drivers of health outside of healthcare—specifically in the areas of housing and residential energy access—and applies the theoretical lens of health justice to glean lessons from legal interventions in those areas during and after the COVID-19 Public Health Emergency. Drawing upon the critical theoretical perspectives that a health justice analysis necessitates, it contends that as contagion risks represented an alignment of interests among those who have long been marginalized and those with more privilege, the country engaged in a significant experiment in a time of crisis—taking unprecedented action in halting many evictions and utility disconnections and providing historic levels of emergency rental and utility assistance. Although these measures had positive impacts, they were ultimately temporary and inadequate. Instead of seizing on the opportunities for more transformative reform that can arise from a crisis, such COVID-era measures failed to lead to a meaningful disruption of the status quo. This Article concludes by arguing that to achieve health justice, reforms must be sustained, structural, and led by the communities who endure daily the legally constructed public health emergency of health inequity.
Capuano, Angelo, ‘Post-Pandemic Workplace Design and the Plight of Employees with Invisible Disabilities: Is Australian Labour Law and Anti-Discrimination Legislation Equipped to Address New and Emerging Workplace Inequalities?’ (2022) 45(2) University of New South Wales Law Journal (forthcoming) Abstract: In 2020 the COVID-19 pandemic has re-shaped the way we work. To help contain the virus employees made a mass migration from working in offices to working remotely from home, but this mass shift to working from home is expected to have a lasting impact on workplace design even after the virus is contained. Modern and post-pandemic workplaces are expected to be increasingly ‘hybrid’ and use shared workspaces to permit worker fluidity between the office and the home. This article argues that shared and fluid working arrangements significantly disadvantage and disproportionately affect employees with ‘invisible’ disability in various ways, yet the outdated design of Australian labour law and anti-discrimination law is ill-equipped to deal with these new and emerging inequalities in the workplace. The assessment of the law in this article culminates with proposed drafting improvements to the Fair Work Act 2009 (Cth) and the definition of indirect discrimination in anti-discrimination legislation, but it exposes the defences to discrimination as the most problematic features of the legal framework. Whilst defences to discrimination intend to strike a balance between the interests of employers and employees, the analysis in this article shows that modern and post-pandemic workplace design significantly disrupts that balance to skew the legal tests to favour employers. Modernising the defences to discrimination to achieve greater equilibrium is a very complicated question and will be the focus of planned future empirical research. This article does, however, propose that the legislative framework can be updated by introducing proactive measures designed to enhance ‘person-environment fit’ in workplaces. This may not only mitigate the disadvantaging effect of hybrid workplace design on employees with ‘invisible’ disability, but also reduce reliance on the complaints-based system and help circumvent problems posed by the defences to discrimination.
Carrera, Sergio and Ngo Chun Luk, ‘Love Thy Neighbour? Coronavirus Politics and Their Impact on EU Freedoms and Rule of Law in the Schengen Area’ (CEPS Paper in Liberty and Security in Europe No 2020–04, April 2020) Abstract: Restrictions on international and intra-EU traffic of persons have been at the heart of the political responses to the coronavirus pandemic. Border controls and suspensions of entry and exist have been presented as key policy priorities to prevent the spread of the virus in the EU. These measures pose however fundamental questions as to the raison d’être of the Union, and the foundations of the Single Market, the Schengen system and European citizenship. They are also profoundly intrusive regarding the fundamental rights of individuals and in many cases derogate domestic and EU rule of law checks and balances over executive decisions. This Paper examines the legality of cross-border mobility restrictions introduced in the name of COVID-19. It provides an in-depth typology and comprehensive assessment of measures including the reintroduction of internal border controls, restrictions of specific international traffic modes and intra-EU and international ‘travel bans’. Many of these have been adopted in combination with declarations of a ‘state of emergency’.
Carter, Laura, ‘Imperfect Models of the World: Gender Stereotypes and Assumptions in Covid-19 Responses’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 187–196 Abstract: As the Covid-19 pandemic has unfolded, epidemiologists have been working to build and refine models of how the disease is spread through populations: at the same time, policy-makers around the world have been taking measures to try to stem the transmission of disease, which are based on models of how they think the world works. These models may be implicit, or made explicit including through the use of statistics and data science: frequently, though, they are based on stereotypes and assumptions about how individuals and systems operate. This paper argues that it is crucial to understand to whom models are useful, and who they ignore. This paper looks at the gendered assumptions – and resulting gaps - in policy responses, which betray an understanding of the world that neglects the experiences of women and of trans and non-binary people. It examines how gendered assumptions, gender binaries and stereotypes weaken responses to the pandemic, and how they reinforce imperfect models of the world that have detrimental impacts on the people who are not included.
Casla, Koldo, ‘Rights and Responsibilities: Protecting and Fulfilling Economic and Social Rights in Times of Public Health Emergency’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 11–17 Abstract: This chapter introduces human rights and civic responsibilities as mutually reinforcing ideas in times of public health emergency. Based on rights and responsibilities, and taking the human rights principle of non-retrogression as a starting point, it is necessary to define positive obligations to protect and fulfil economic and social rights when responding to a serious public health crisis. Among other things, I argue that societies should be able to use privately owned resources and facilities, as it is sometimes not only legitimate but necessary to interfere with private property.
Castelyn, C de V et al, ‘Resource Allocation during COVID-19: A Focus on Vulnerable Populations’ (2020) 13(2) South African Journal of Bioethics and Law 83–86 Abstract: South Africa (SA) is a country of contrasts, with abundant resources, hard-won civil rights and a diverse population. Woven into the fabric of our society is a large divide between its poorest and its wealthiest members. In this article we highlight the vulnerabilities in our society that have been amplified by the COVID-19 crisis. Based on recent projections, it is very likely that the healthcare system will be overwhelmed. We acknowledge the recognition by government and civil society of these vulnerabilities, and note that difficult decisions will need to be made with regard to resource allocation. Our plea, however, is to ensure that human dignity and the principle of distributive justice are maintained, and that when difficult decisions are made, vulnerable people do not suffer disproportionately. Furthermore, it is of great concern that there is no national directive guiding resource allocation, prioritisation and triage decisions in both public and private hospitals. The Health Professions Council of SA should, as a matter of urgency, issue guidance on priority-setting and triage decisions in the context of COVID-19, based on distributive justice principles.
Cerniglia, Christine E, ‘Systemic Injustice: The Need for Disaster and Pandemic Preparedness Legislation’ (2021) 99(1) University of Detroit Mercy Law Review 54–93 Extract from Introduction: Each disaster is unique in impact, and while it is impossible to prepare for every disaster, there is a similar cycle that appears after every disaster which demonstrates structural inequities, disparate impact upon communities of color, greater suffering for those with high risk factors, long-term mental health effects and trauma upon children. The COVID-19 pandemic is a moment of reckoning with this cycle and a moment to realize the many failures and to learn from past lessons in the disaster context. Overall, this article advocates for urgent change, specifically, to ensure all stakeholders are present in decision-rooms, to create a common vocabulary, and measurement tools in order to analyze data related to ‘preparedness,’ ‘vulnerability,’ and ‘resilience’ and to create legislation which allocates resources to fund preparedness for public health needs and vulnerabilities in communities hardest hit.
Chai Yun Liew, Jamie, ‘Preventing the Spread of Anti-Asian Racism: Including Critical Race Analysis in a Pandemic Plan’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 393 Abstract: The racist discourse and attacks on Asian Canadians in the COVID-19 outbreak has illustrated the differentiated risks, vulnerability, and marginalization of racialized persons. A race-based analysis is essential in public health policy. First, public health responses may reinforce long-standing racist narratives of how a virus is transmitted. Second, the ‘viralizing’ of persons may lead to unfair blame on a racialized community for an outbreak, taking focus away from structural problems in particular environments, as for example in the case of Filipino migrant workers in meat-packing plants who have no control over their working conditions. Finally, there is now data showing that, accounting for other factors, some racialized groups of people, including Black and South Asian people, may be succumbing to COVID-19 more than others. Focusing on the partial border closure as a case study, this chapter looks at how historical and contemporary selective but simultaneous inclusion and exclusion at the border has constructed social ideas of foreigners. The border measures reflect an ongoing tension to admit cheap labour for essential services while pacifying public fear of the Asian person as a vector of the virus. Critical race analysis should be employed when evaluating public health responses to ensure that differential experiences of racialized communities are considered during a pandemic.
Chandra, Aparna, ‘A Life of Contradictions: Group Inequality and Socio-Economic Rights in the Indian Constitution’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 311 Abstract: The Covid-19 pandemic has demonstrated that crises exacerbate and are exacerbated by antecedent inequalities associated with group identity. Addressing such inequalities requires adopting a normative principle—which equality law can supply—that places a positive duty upon the state to redress socio-economic disadvantages arising from group identity. However, as this chapter argues, the Indian Supreme Court has failed to engage with questions of socio-economic disadvantage in conjunction with group inequality. On the one hand, while the Court has understood the Constitution’s equality code as encompassing a substantive vision of equality, by and large, the Court has not read into these provisions any judicially enforceable positive obligation on the state to redress group-based disadvantages. As such, state failure to secure substantive group equality remains non-justiciable. On the other hand, the Court has read in positive obligations of redistribution into its socio-economic rights jurisprudence; however, it has not engaged with questions of group equality in understanding the scope and content of these rights, the concomitant positive obligations on the state, or in the remedial action ordered by the Court. This gap between the constitutional guarantees of equality and of socio-economic justice leaves unaddressed the group-based material disadvantages that lead to exponential inequalities in times of crisis. An argument for bridging this gap would raise the question: should courts adjudicate and enforce positive state obligations at all? The chapter argues that a focus on group equality can actually address some of the concerns with the Court’s extant practices and processes regarding the adjudication of socio-economic rights.
Charles, Chris and Sarah Moulds, ‘The Right to Protest for Racial Equality during a State of Emergency: Fundamental Freedom or Sacrificial Lamb?’ (2020) 42(10) Bulletin (Law Society of South Australia) 8–10 Abstract: As 2020 creeps to an end, it is distressing to think of the millions of families grieving for loved ones lost too early. It is not just the pandemic that has fuelled this avalanche of grief and loss, but also the tragedy of hundreds of black deaths in custody around the world and here at home. The words ’ ’I can’t breathe, please! Let me up, please! I can’t breathe! I can’t breathe! resonate beyond national borders, precisely because they have not just been uttered on the streets of New York. These are the words of a 26-year-old Dunghutti man who died in a prison in south-eastern Sydney in 2016 after being restrained by five officers, the same year an Aboriginal man died in South Australia after being pulled unresponsive from a prison van at Yatala Labour prison. These words bring shame on all Australians, particularly those of us with the resources and capacity to raise our voice or take to the streets to affect change.
Chaturvedi, Aishwarya, ‘Potential Violation of the Right to Education in India: Digital Education, Underprivileged Children & COVID-19’ (SSRN Scholarly Paper ID 4031647, 10 February 2022) Abstract: In ancient India, there were no ‘formal’ schools, instead there were Gurukuls. Gurukul was a type of school where students lived on the same premises as the teacher (guru). Students would live together as equals, irrespective of their social standing, learnt from the guru and distributed chores amongst themselves to help the guru in his day-to-day life. However, times have changed and so has education. Internet has facilitated cross border business and education. Zoom, Messenger and Skype facilitate global communication and transactions and now, because of the not so novel anymore coronavirus- ‘virtual’ classrooms. This paper aims to answer the question whether digital-only-education/predominantly digital education in India is a potential violation of the fundamental right to education? It aims to bring to the fore issues related with digital education and provide prescriptive solutions for such issues. In this regard, I will analyze the situation in India to understand how the COVID-19 pandemic impacted the education of underprivileged children. I will look at some key concepts such as the right to education, right to access to the internet, digital divide, and gender disparity. I will analyze how the introduction of online/digital education during the pandemic without the requisite resources further worsened the digital divide in India and played to the disadvantage of underprivileged children, particularly females. To further aid our understanding, I will discuss the situation in certain other countries such as Madagascar, Jordan, Timor-Lester, United States of America, Fiji and Vanuatu. This paper will analyze how lack of access to the internet and electronic gadgets, and digital-only-education/predominantly digital education violate the fundamental right to education. Accordingly, I will make recommendations to facilitate and supplement online education in India.
Cheesman, Samantha Joy, ‘The Hungarian Legislative Response to the COVID-19 Pandemic and Its Challenges to the Rule of Law’ in Mathieu Deflem (ed), Crime and Social Control in Pandemic Times (Emerald, 2023) 141–154 Abstract: This chapter examines how the response to the pandemic will have an impact for many years on rule of law mechanisms and human rights within Hungary. The arguments put forward in this chapter are supported by analysis of key legislation both domestic and international concentrating on how the concept of rule of law has been redefined. This analysis is conducted by focusing on the Hungarian legislation, Fundamental Law, and key sources engaging in the analysis of the effects that the COVID-19 pandemic has had on reshaping the legal landscape. In the unprecedented times of a global pandemic it is important to reflect on how the Governments of the world responded to the immediate danger and what ramifications those changes will have as the pandemic unfolds over the coming years. This raises questions regarding the European political landscape and how the cause of the rule of law can be furthered. This chapter argues that the rule of law project of the European Union (EU) as set out in Article 2 of the Treaty of the European Union (TEU) has been circumvented by several rogue states. The European parliament now is finding new ways to engage with and curtail ‘rogue’ Member States which, according to them, step out of line.
Cheibub, Jose Antonio, Ji Yeon Jean Hong and Adam Przeworski, ‘Rights and Deaths: Government Reactions to the Pandemic’ (SSRN Scholarly Paper No ID 3645410, 7 July 2020) Abstract: Democracies reacted slower than autocracies to the specter of the pandemic, and the most solidly democratic among them were particularly slow to react. We examine at which stages of the spread of the COVID governments introduced four measures that to varying degree abrogate liberal rights: school closings, bans on public meetings, compulsory lockdowns, and shutting work. We conclude that where rights are entrenched, encroaching on them is difficult. Yet we are struck that when the threat of death became sufficiently severe, many democracies resorted to the same measures as autocracies. Still, the reactions of democracies were highly heterogenous and we are unable to account for this heterogeneity.
Chen, Bo and Donna Marie McNamara, ‘Disability Discrimination, Medical Rationing and COVID-19’ (2020) 12 Asian Bioethics Review 511–518 Abstract: The current public health crisis has exposed deep cracks in social equality and justice for marginalised and vulnerable communities around the world. The reported rise in the number of ‘do not resuscitate’ orders being imposed on people with disabilities has caused particular concerns from a human rights perspective. While the evidence of this is contested, this article will consider the human rights implications at stake and the dangers associated with using ‘quality of life’ measures as determinant of care in medical decision-making and triage assessments.
Chen, Bruce, ‘The COVID-19 Border Closure to India: Would an Australian Human Rights Act Have Made a Difference?’ (2021) 46(4) Alternative Law Journal 320–325 Abstract: In late April 2021, the Commonwealth government determined to prohibit overseas travellers who had been in India from returning to Australia, subjecting them to heavy penalties for breach. This measure was controversial and unprecedented in Australia’s response to COVID-19, drawing sharp criticism for breaching human rights. This article analyses the human rights issues arising under the Health Minister’s determination, and the ensuing Federal Court case of Newman v Minister for Health and Aged Care. Against the backdrop of a renewed push for a national Human Rights Act, it finds that a national Human Rights Act could have made a difference.
Chen, Justin A, Emily Zhang and Cindy H Liu, ‘Potential Impact of COVID-19–Related Racial Discrimination on the Health of Asian Americans’ (2020) 110(11) American Journal of Public Health 1624–1627 Abstract: Anti-Asian discrimination and assaults have increased significantly during the Coronavirus disease 2019 (COVID-19) pandemic, contributing to a ‘secondary contagion’ of racism. The United States has a long and well-documented history of both interpersonal and structural anti-Asian discrimination, and the current pandemic reinforces longstanding negative stereotypes of this rapidly growing minority group as the ‘Yellow Peril.’ We provide a general overview of the history of anti-Asian discrimination in the United States, review theoretical and empirical associations between discrimination and health, and describe the associated public health implications of the COVID-19 pandemic, citing relevant evidence from previous disasters in US history that became racialized. Although the literature suggests that COVID-19 will likely have significant negative effects on the health of Asian Americans and other vulnerable groups, there are reasons for optimism as well. These include the emergence of mechanisms for reporting and tracking incidents of racial bias, increased awareness of racism’s insidious harms and subsequent civic and political engagement by the Asian American community, and further research into resilience-promoting factors that can reduce the negative health effects of racism.
Chen, YY Brandon, ‘Migrant Health in a Time of Pandemic: Fallacies of Us-Versus-Them’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 407 Abstract: International migrants—including, among others, immigrants, refugees, asylum seekers, foreign workers, and international students— are at greater risk of being affected by COVID-19. However, following the onset of the pandemic, many of them continue to be denied publicly funded health care and income supports in Canada. For migrants who are granted entitlement to these government programs, significant access barriers exist. These exclusionary policies underscore a dynamic of us-versus-them, in which migrants are portrayed as a threat to public health and undeserving of the Canadian society’s help. This process of ‘othering’ fails to adequately appreciate migrants’ belonging in and contributions to Canada. It runs counter to the principles of equality and reciprocity that are central to our legal order, and it also risks compromising our collective pursuit of public health. An effective response to the current pandemic requires solidarity among all members of society instead of insistent line drawing between citizens and migrants who are similarly situated.
Cheong, Mark Wing Loong, Pascale Allotey and Daniel D Reidpath, ‘Unequal Access to Vaccines Will Exacerbate Other Inequalities’ (2020) 32(6–7) Asia Pacific Journal of Public Health 379–380 Abstract: There is a consensus that a vaccine, and the immunity that it confers, is required for countries to lift their restrictions and restart their economies. This has led to countries competing for supplies of potential COVID-19 vaccines. A corresponding surge of activism has occurred to ensure that vaccines will be equitably distributed. Equal access to a vaccine will be needed to prevent the development of health disparities between the vaccinated and unvaccinated. Unfair access to vaccines will also create inequalities in rights and freedom. There are numerous reports of communities who are perceived to be at higher risk of being infected, being targets of discrimination, and having their rights curtailed. It requires no stretch of the imagination to see how unequal access to a vaccine will result in the rise of a 2-caste system: the clean, who are immune and noncontagious, and the untouchables, who are nonimmune and a feared source of infection.
Chia, T and OI Oyeniran, ‘Human Health versus Human Rights: An Emerging Ethical Dilemma Arising from Coronavirus Disease Pandemic’ (2020) 14(July-September) Ethics, Medicine and Public Health 100511 Abstract: Introduction: The world is contending to contain the outbreak of coronavirus which has now resulted to36,571 mortalities out of the 754,948 confirmed cases in 202 countries, areas or territories as at March 31, 2020. Pandemics are usually characterized by a sense of panic and uncertainties. Even though global preparedness and emergency procedures have been enacted, the uncertainties surrounding this pandemic raise considerable questions to their adherence. Widespread restrictions of varying degrees have been placed on individuals, groups, communities, cities or even whole regions. These restrictions ab initio are in contradiction to civil and human rights. These measures, which are now widely implemented in many regions and countries of the globe, have thrown up fresh ethical questions. Between human health and human rights, which takes primacy?
Chiangi, Michael Aondona, Igwela P Franca and Peres Agari, ‘State Responsibility in the Wake of COVID-19 Pandemic: International Health Law and Human Rights Obligations of China’ (2020) 9(2) Port Harcourt Law Journal 162 Abstract: This article examines the law of state responsibility and its application to the events that have transpired in the wake of COVID-19. China’s delay in reporting the outbreak to the WHO and the discriminatory safety measures employed against blacks in China has raised legal questions affecting state responsibility. Some Scholars have advocated that China should be sued at the International Court of Justice for breaching her obligation under the International Health Regulations 2005 (IHR). This paper argues that this would be futile because there is no causal nexus between the alleged breach of China’s obligation and the spread of COVID-19. Also, China has not expressed consent to the jurisdiction of the ICJ which is required in contentious cases. Again, this paper argues, that the allegations of racial discrimination against China would also be difficult to redress. First, these allegations implicate both Chinese citizens and government officials. Secondly, redress would be before judicial/administrative forums in China, and the independence of such arrangements is questionable. The paper further argues that unlike in Africa, Europe and America, if an applicant is dissatisfied with the domestic remedy, there is no corresponding regional human right arrangement in Asia to which he may resort.
Chilton, Adam S et al, ‘Support for Restricting Liberty for Safety: Evidence During the COVID-19 Pandemic from the United States, Japan, and Israel’ (SSRN Scholarly Paper No ID 3591270, 2 May 2020) Abstract: Democratic governments around the world have taken dramatic steps to halt the spread of COVID-19. These steps have prevented new infections and deaths, but they have also entailed unprecedented restrictions on civil liberties. Navigating this tradeoff between security and liberty is particularly difficult for democracies because they need to maintain public support for their policies and are constrained by their constitutions. We administered surveys to nationally representative samples in three economically advanced democracies—the United States, Japan, and Israel—to assess the extent to which the public supports liberty restrictions designed to combat COVID-19. We found consistent and widespread support for policies restricting civil liberties across all three countries. We also experimentally manipulated information about (1) the constitutionality of these policies and (2) the infections they would prevent, finding evidence that respondents’ support for restrictions on civil liberties may depend more on their effectiveness than their legality.
Chohan, Usman W, ‘After the Coronavirus Vaccine’s Discovery: Concerns Regarding a COVID-19 Vaccination’s Distribution’ (CASS Working Papers on Economics and National Affairs No EC021UC, 2020) Abstract: The fervent global quest for the development of a vaccine against the novel coronavirus (COVID-19) begs the frightening questions: who will go first in receiving it? and will everyone get to receive it at all? This working paper seeks to highlight the risk that mercantilist market-logic approaches to hoard or overprice a future vaccine poses for human lives, and how it might reproduce global inequalities in a fatal manner. It draws upon the literature on socioeconomic disparities in vaccination to argue that the infrastructure for international dissemination of the vaccine must be built in advance and in a manner that forsakes the hostile mercantilism that has accompanied a shifting and combative international order.
Chowdhury, Barnali, ‘Gender Injustice and the Pandemic’ (SSRN Scholarly Paper No ID 3623145, 9 June 2020) Abstract: In this twenty first century, women continue to be reckoned as the most oppressed class; and at times are even denied the basic human rights. When women have fewer resources, less power and less influence compared to the male counterparts, they are made to experience inequality and there is discrimination based on class, ethnicity, age, as well as religious and other fundamentalism. Gender inequality, also happens to be the key driver of poverty and a fundamental denial of women’s right. Even in this 21st century, it goes without saying that, a near universal phenomenon is gender-based violence, which threatens the well-being, rights and dignity of women. An instance of such gender based violence is Domestic Violence- which forms the subject matter of this paper. Viewed from the perspective of human rights violation, with the application of human rights law, the State’s obligation to respect individual rights of each and every person gets reinforced, so much so that, the wrong doer can be held accountable for abuse of those rights of private individuals. Therefore, even if the State does not actually commit the abuse, it has the obligation to guarantee legal protection to the women victims. In attempting to discuss about one form of household abuse, which is seen to be aggravating more during this COVID-19 Pandemic, and the Lockdown that is operating in India, since March 24th, 2020, in this paper, discussion will centre round the principle of Equality which the framers of the Indian Constitution has also recognized as a Fundamental Right as well as a Directive Principle of State Policy, and which right has been secured to all citizens by the Preamble to the Indian Constitution. Despite every safeguard being provided by law, the Indian woman has been made to swim through troubled waters, which in itself is a matter of grave concern.
Christiani, Leah et al, ‘Masks and Racial Stereotypes in a Pandemic: The Case for Surgical Masks’ (SSRN Scholarly Paper No ID 3636540, 29 June 2020) Abstract: To contain the spread of COVID-19, experts emphasize the importance of wearing masks. Unfortunately, this practice may put blacks at elevated risk for being seen as potential threats by some Americans. In this study, we evaluate whether and how different types of masks affect perceptions of threat for a black male model and a white male model. We find that non-black respondents perceive a black model as more threatening when he is wearing a bandana or a homemade cloth mask relative to wearing no mask at all. However, they do not perceive him as more threatening when he is wearing a surgical mask. As expected, these effects are especially pronounced in non-black respondents who score high in racial resentment, a common social scientific measure of racial bias. Further, it is not that high racial resentment non-black respondents find bandana and cloth masks more threatening in general. Our results suggest that they do not view a white male model as more threatening when he is wearing these types of masks. Though mandated mask wearing is an ostensibly race-neutral policy, our findings demonstrate the potential implications are far from race-neutral.
Christou, Theodora A, Maria Pia Sacco and Anurag Bana, ‘Digital Contact Tracing for the COVID-19 Epidemic: A Business and Human Rights Perspective’ (SSRN Scholarly Paper No ID 3618958, 4 June 2020) Abstract: This report looks at COVID-19 pandemic responses, focusing on the contact tracing apps from a business and human rights perspective. It sets out the human rights criteria when either interfering with the private life of individuals under the ordinary limitations of the right, and also when states choose to derogate having declared a state of emergency. The key tests remain the same: legality, necessity, and proportionality.
Churches, Genna and Monika Zalnieriute, ‘The Instrumentality of Metadata Access Regime For Suppressing Political Protests In Australia’ (UNSW Law Research Paper No 20–50, 2020) Abstract: Australians, just like many other people around the world, are taking to the streets to oppose racial and environmental injustice, despite the COVID-19 risk of mass gatherings. Australian politicians have expressed strong disdain, and even threats, at protesters. Government’s desire to silence critics is not new, however today’s tracking technologies and Australia’s lax federal metadata laws give the government unprecedented tools to take action against protesters. Accessing metadata requires no warrant or reporting and enables government to draw links and amass schemes of connections between people who were organising, attending, intending or speaking at the protests. These tools, coupled with new COVID-19 powers to surveil citizens, have seriously impaired the right to protest anonymously in Australia. In this post we are not disputing the need for restrictions on mass gatherings or social distancing — to the opposite, we think they are crucial to stop the spread of virus. Instead, we are exposing the instrumentality of metadata, including location data, for the government to clamp down on peaceful protests. We propose one small step towards securing the right t protest anonymously during a time when Australians need it most: reforming the laws so that our metadata can only be accessed with a judicial warrant and further protected with detailed public reporting requirements.
Clarke, Jessica, ‘A Public Policy Approach to Inequality’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 161 Abstract: This chapter discusses diverging legal and public policy definitions of equality in the United States and explains the implications of this divergence for addressing exponential inequalities such as those unleashed by the Covid-19 pandemic. Over the past several decades, an increasingly conservative US Supreme Court has narrowly construed the project of equality law. It has marginalized theories of indirect discrimination and narrowed the scope of permissible remedial programmes that identify beneficiaries based on race. It is generally sceptical of statistical evidence of discrimination. These developments have rendered US civil rights law ill-equipped to address the disparate effects of Covid-19 based on race, gender, and other social categories. But more capacious understandings of equality have continued to influence US policy-makers, acting through legislatures, government agencies, and non-governmental organizations. These more capacious understandings of equality have inspired data collection efforts to identify disparities, to explore the causes and consequences of these disparities, and to design interventions to mitigate them. To avoid legal challenge, interventions to mitigate disparities are crafted to avoid the perception of zero-sum conflict with majority group interests. Over the longer term, as public policy approaches to equality are proven effective, they may inform legal developments, hastening the demise of legal rules that are out of sync with new understandings of what equality demands.
Clibborn, Stephen and Chris F Wright, ‘COVID-19 and the Policy-Induced Vulnerabilities of Temporary Migrant Workers in Australia’ [2020] (85) Journal of Australian Political Economy 62–70 Abstract: The COVID-19 crisis has starkly exposed the existing economic vulnerability of temporary migrants in many countries. In Australia, many temporary migrants, who were already at risk of marginalisation due to policies restricting their bargaining power and agency (Wright and Clibborn 2020), have lost their jobs and have minimal financial support due to their exclusion from public welfare.
Cohen, I Glenn, Lawrence O Gostin and Daniel J Weitzner, ‘Digital Smartphone Tracking for COVID-19: Public Health and Civil Liberties in Tension’ (2020) 323(23) Journal of the American Medical Association (JAMA) 2371–2372 Abstract: This Viewpoint compares manual and digital strategies for coronavirus disease 2019 (COVID-19) contact tracing, describes how countries in Asia and Europe have used smartphone tracking, and discusses privacy and discrimination concerns and strategies for balancing public health and civil liberties in the
Comandé, Giovanni, Denise Amram and Gianclaudio Malgieri, ‘The Democracy of Emergency at the Time of the Coronavirus: The Virtues of Privacy’ (2020) 1(1) Opinio Juris in Comparatione 1–7 Abstract: The emergency of the Coronavirus imposes a cultural debate on the balancing of rights, freedoms and social responsibilities, finalized to the protection of individual and collective health. So much and rightly has been written in these days about strategic errors of the past, and authoritarian and social control risks exploiting the fear of contagion to further compress individual freedoms. A lot has been said about the futility of privacy as well.But is there a democratic way that respects fundamental rights in an emergency? Is there a model that can turn respect for democratic freedoms into a tool for effective common struggle in an emergency?
Conklin, Michael, ‘Racial Preferences in COVID-19 Vaccination: Legal and Practical Implications’ (SSRN Scholarly Paper ID 3765168, 1 January 2021) Abstract:The severity of COVID-19 and the limited supply of vaccines poses a pressing question: Who should receive priority for the vaccine? Many experts support the controversial plan to prioritize black and Hispanic people. For justification they point to the highly disparate health outcomes minorities experience from COVID-19 that are rooted in historical racial injustice. However, such racial classifications implicate the Equal Protection Clause of the Fourteenth Amendment.This Article analyzes the potential outcome of such an equal protection challenge. It explains why strict scrutiny would be the controlling legal standard even though the issue has never been adjudicated by the Supreme Court in a health care context. Next, it considers how the existence of alternative vaccine distribution policies violate the narrowly tailored requirement. It considers the analogous case law of affirmative action in college admissions, in which the use of racial preferences is well established. And it considers alternative vaccine distribution plans that do not utilize racial preferences and how even they are susceptible to legal challenges.This Article further addresses pragmatic implications that would tangentially affect the legal determinations. These implications include potential counterproductive results of racial preferences, such as increased skepticism among the most vulnerable that they are being used as guinea pigs, a stigmatizing effect that could be used by white supremacist groups to promote a perceived martyrdom status, and the dangerous conflation of disparate health outcomes with genetic superiority and inferiority. These issues are considered against the backdrop of a changing Supreme Court, which has shown a willingness to diverge from established precedent regarding racial preferences.
Cordero, Dalmacito A, ‘I Hate You No More, Dude: Understanding and Preventing Hate Crimes and Social Discrimination in the Midst of the COVID-19 Crisis’ (2021) Journal of Public Health Article fdab 169 (advance article, published 21 May 2021) Extract: This paper suggests that in order to build solidarity among peoples to address such unjust acts against humanity, any government must enact relevant laws to promote peace and harmony among all inhabitants in their respective countries. If this is done, the implementation of these laws should be strengthened. Laws must not remain as beautiful principles and theories that are simply written and stocked in official references. They are meant to be religiously followed by everyone without exemptions. The people, on the other hand, must not only obey these laws but also practice a ‘preventive role’ to such unjust acts by being active and observant every time a possible act is bound to happen.
Costello, Sean, ‘A Novel Year for Human Rights in Queensland’ (2021) 46(3) Alternative Law Journal 228–231 Abstract: In a year of challenges from the novel coronavirus, the new Queensland Human Rights Act was applied in unexpected ways. Its new complaints process was particularly tested by hotel quarantine restrictions. Nonetheless, geographic and demographic differences between Queensland and other human rights jurisdictions are also emerging as especially relevant to how human rights protection will be applied in the state, particularly a new Australian right to health and the cultural rights of Aboriginal and Torres Strait Islander peoples.
Criste, Mircea and Andreea Verteș-Olteanu, ‘The Exercise of Fundamental Rights in Pandemic Times’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 219–232 Abstract: The present article examines the defining features of fundamental rights and freedoms in the context of the COVID-19 pandemic, with a focus on Romania’s legal framework for the establishment of a state of emergency. The pandemic presented an unparalleled opportunity to address the restrictions on fundamental rights and freedoms, particularly with regard to the limits of such restrictions. Fundamental rights are distinguished from fundamental freedoms, with the former imposing positive correlative obligations on the state and the latter being subject to negative obligations. The recognition, promotion, and protection of certain fundamental rights are related to transnational, global moral values, which have led to a real ‘inflation’ of rights. The article notes that limitations on the exercise of rights must be proportional, non-discriminatory, and cannot affect the very existence of the right or freedom. In Romania, the President has the authority to declare a state of emergency, subject to the approval of Parliament, which conducts a full analysis of the grounds and legality of the measure. The Romanian Constitution institutionalizes a series of effects generated by the establishment of the state of emergency to guarantee the exercise of parliamentary control in a situation of constitutional crisis. The aim of the article is to demonstrate that the management of crisis situations through the application of the state of emergency is a shared competence of the two representative authorities of the Romanian people—the Parliament and the President.
Croucher, Rosalind, ‘Lockdowns, Curfews and Human Rights: Unscrambling Hyperbole’ (2021) 28(3) Australian Journal of Administrative Law 137–148 Abstract: Responses to the COVID-19 pandemic have required very quick action. But those responses have also involved significant limitations on people’s rights and freedoms and implemented through executive power often with limited parliamentary involvement. One such exercise was a curfew in Victoria, which was challenged in Loielo v Giles. This article works through the decision in Loielo as a matter of legal analysis and concludes with a consideration of the democratic challenges of emergency decision-making. The decision is an instructive illustration of how human rights principles can inform decision-making and provide a framework of accountability.
Crow, Olivia, ‘Education Inequality During Covid-19: How Remote Learning Is Widening the Achievement Gap and Spurring the Need for Judicial Intervention’ (2022) 63(2) Boston College Law Review 713–752 Abstract: Remote learning during the COVID-19 pandemic (COVID-19) disrupted nearly every student’s life and will cause immense learning losses. Low income students and students of color are the most likely to be in online classes, yet the least likely to have necessary resources to succeed in a remote school environment. Studies show that the COVID-19 pandemic has and will continue to worsen the racial and socio-economic achievement gap in education. As a result, two groups of parents in California filed class action lawsuits alleging that the State of California and the Los Angeles Unified School District respectively failed to provide a basic education to students of color in impoverished neighborhoods since the school closures in spring 2020. Following the United States Supreme Court’s seminal ruling in Brown v. Board of Education in 1954, education litigation has slowly progressed under State constitutions towards recognizing an affirmative duty for States to provide a free and equal education. The Supreme Court’s decision in San Antonio Independent School District v. Rodriguez in 1963 solidified that the federal Constitution does not guarantee an equal public education for all citizens. As such, since the federal Constitution does not guarantee the right to public education, but all state constitutions do, the citizens of California and other states must use their state constitution to enforce the constitutional guarantee of a free and equal education. During the Pandemic, California’s remote learning plan has disproportionately affected low-income students of color, while privileging students in wealthier districts. This Note contends that both class action complaints sufficiently allege an equal protection violation, spurring the need for judicial intervention, and providing a model for future litigants in other states. The courts, therefore, should advise the legislature to adopt a plan that accounts for the lost learning time and ensures the most disadvantaged students receive a meaningful education during and post COVID-19.
Cuevas-Parra, Patricio, ‘Thirty Years after the UNCRC: Children and Young People’s Participation Continues to Struggle in a COVID-19 World’ (2021) 43(1) Journal of Social Welfare and Family Law 81–98 Abstract: The COVID-19 pandemic has spread to more than 200 countries and territories, despite governments’ efforts to ‘flatten the curve’. The measures to respond to the COVID-19 outbreak have been perceived as retrogressive for children and young people’s rights to participation. A common denominator across countries and regions is the reduced spaces for children and young people to influence decision-making processes and policy responses associated with COVID-19. This article critically examines the meanings and implications of children and young people’s participation rights in the time of COVID-19. In particular, it explores how lockdowns and other physical distancing measures have a negative impact on social interactions, leaving behind hard-to-reach children and young people and undermining some children and young people’s rights to participate on the premise that their protection is more relevant in crisis situations. This article discusses children and young people’s perspectives on how their opportunities to be listened to during the pandemic have been restricted. The article considers children and young people’s ability to communicate online, considering how those without access to the Internet – practically half the world – are left out, and, in the end, demonstrating that this pandemic is producing and exacerbating existing inequalities.
Curcio, Alyssa, ‘Immunizing Roe: How Court Treatment of COVID-19 Vaccine Mandates Supports Reproductive Freedom’ (2022) 43(1) Columbia Journal of Gender and Law 1–30 Abstract: This paper places legal doctrines surrounding abortion and reproductive freedom in conversation with the discourse on bodily autonomy as it relates to the COVID-19 pandemic.
Dąbrowska-Kłosińska, Patrycja, ‘The Protection of Human Rights in Pandemics: Reflections on the Past, Present, and Future’ (2021) 22(6) German Law Journal 1028–1038 Abstract: This special section tells the story of Covid-19 through the lens of national responses, serious concerns about unprecedented human rights limitations and infringements, and the respective role of courts in public health emergencies. It compiles perspectives on disease control developments in Brazil, Italy, Poland, Taiwan, the U.S., and the EU to explore various aspects of judicial review protecting, or failing to protect, human rights. It offers insights from states and regions which have experienced high pandemic rates or may attract attention for not treating human rights as a priority. Amidst the crisis of multilateralism and the World Health Organization (WHO) authority, and the fact that public health is typically a national power, the Articles focus on the state-level analyses to inspire comparative findings and further research. The section also draws on diversity and transdisciplinarity. The contributions are authored by scholars specializing in wide-ranging areas of law, including constitutional, health, private, and human rights law, as well as in political philosophy and public health. This text introduces the special section by offering a broader picture of the human rights’ problématique in times of pandemics.
Dagron, Stéphanie, ‘Going Beyond the Rhetoric: Taking Human Rights Seriously in the Post-COVID-19 World’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 123 Abstract: Multiple calls have been issued since 2020 by United Nations institutions in favour of a human rights-based approach both for the adoption of immediate responses to COVID-19 and the development of strategies for the (re)construction of resilient societies. The advantages linked with such an approach seem evident: it offers a solid framework for the adoption of responses that are legal, necessary, proportionate and non-discriminatory; and it orientates the choices to be made for the preparation of resilient societies. This chapter first exposes the linkages between health and human rights that justify the characterisation of COVID-19 as a human rights crisis, and the imperative to rely on a human rights-based approach during such a pandemic. Secondly, it identifies the concrete efforts that must be made to develop human rights-based guidance concerning states’ immediate responses to, and longer-term preparations for, public health emergencies.
Danchin, Peter et al, ‘The Pandemic Paradox in International Law’ (ANU College of Law, Legal Studies Research Paper No 20.18, 2020) Abstract: This article examines a series of paradoxes that have rendered the international legal order’s mechanisms for collective action powerless precisely when they are most needed to fight COVID-19. The ‘patriotism paradox’ is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The ‘border paradox’ is that securing domestic populations by excluding non-citizens, in the absence of accompanying regulatory mechanisms to secure adherence to internal health measures, accelerates viral spread among citizens. The ‘equality paradox’ is that while pandemics pose an equal threat to all people, their impacts compound existing inequalities.
Das, Ishita, ‘The COVID-19 Pandemic and the Right to Development: A Tale of Two Worlds’ (2024) 17(2) Law and Development Review 453–482 Abstract: The COVID-19 pandemic has exposed several chinks in the armour of public health infrastructure across the world. However, the impact of the pandemic has been assessed primarily from the perspective of the ‘privileged’ members of society. The experiences of the ‘other’ world inhabited by the marginalised communities, who have had their livelihoods crushed under the weight of the pandemic, have been scarcely documented. As thousands of migrant workers were more scared of death caused by hunger rather than the disease itself, the various steps taken by different countries to curb community transmission have unveiled the ugly side of these measures. For example, as several states such as the US, the UK, Singapore, Hong Kong, and India/Bharat imposed lockdowns, border closures, quarantines, inter alia, the most vulnerable section of the human population has been the migrant workers, especially those individuals who were employed in the unorganised sector. Thus, the global health crisis has unravelled deep-rooted deficiencies, racial biases, and an overall lack of concern and empathy for the lesser privileged, apart from the growing socio-economic divide between the rich and the poor. This research paper aims to explore the impact of the COVID-19 pandemic on migrant workers in the informal sector by exploring the measures imposed by the US, the UK, Singapore, Hong Kong, and India/Bharat and analyse how their fundamental rights, including the right to development, were compromised. Through this paper, the author provides a five-point strategic framework that can be adopted globally to prevent such instances in the future.
Dasgupta, Upasana and Vishakha Wijenayake, ‘South Asia, Let’s Examine Our Discriminatory Pandemic Policies’ (SSRN Scholarly Paper No 4909741, 17 November 2020) Abstract: This paper reviews pandemic policies of South Asian countries. We conclude that governments in South Asia should act towards the welfare of all its citizens and residents, instead of framing discriminatory policies catering to vote-bank politics.
Dastyari, Azadeh and Catherine Renshaw, ‘Frontline Workers as Human Rights Defenders: Protecting the Human Rights of Frontline Workers in Australia during the COVID-19 Pandemic’ [2020] (6) UNSW Law Journal Forum 1–12 Abstract: During the first months of the COVID-19 pandemic, as state and territory governments in Australia attempted to curb the spread of the coronavirus, attention was focused on a group that came, globally, to be known as ‘frontline workers’, which included health workers. In this article, we interrogate the construction of health workers as ‘frontline workers’ during the COVID-19 pandemic. We argue that this framing supported the narrative that the dangers to which health workers were exposed, which included threats to their lives and wellbeing, was an unfortunate but inevitable part of the war against the common enemy (COVID-19). The effect was to divert attention from what should have been the primary focus: ensuring that health workers had the equipment and conditions to carry out their jobs safely and effectively. We argue that an alternative and more appropriate understanding of the role of health workers during a pandemic – and the COVID-19 pandemic in particular – is that health workers are human rights defenders.
Dawodu, Opeyemi Naimot, ‘Covid-19: A Disability under the Americans with Disabilities Act?’ (SSRN Scholarly Paper No 4384672, 17 January 2022) Abstract: The Americans with Disabilities Act has as its mandate to prohibit all forms of discrimination against persons living with disability and to ensure that such qualified persons enjoy equal employment opportunities. Persons with disabilities are a minority and have faced longstanding discrimination in terms of housing, employment, health services, recreation, voting, communication, to mention a few. Thus, the need for an Act like the ADA. This paper addresses the question: whether COVID-19 is a disability and what covered employers need to know in order not to fall short of the provision of the anti-discrimination laws. It is important for employers to be abreast of the provisions of these anti-discrimination laws and ensure they do not fall short of the law. All forms of discrimination ‘because of disability’ are prohibited. Employers should also beware of the kinds of medical enquiries they make as it relates to COVID-19 where it qualifies as a disability. Most importantly, reasonable accommodation should be given to employees with disabilities such as more flexible work schedule, work from home, if possible, adequate time off to recover.
Deslatte, Aaron, Megan E Hatch and Eric Stokan, ‘How Can Local Governments Address Pandemic Inequities?’ (2020) 80(5) Public Administration Review 827–831Jurisdiction: USA
Abstract: COVID-19 is exposing a nexus between communities disproportionately suffering from underlying health conditions, policy-reinforced disparities, and susceptibility to the disease. As the virus spreads, policy responses will need to shift from focusing on surveillance and mitigation to recovery and prevention. Local governments, with their histories of mutual aid and familiarity with local communities, are capable of meeting these challenges. However, funding must flow in a flexible enough fashion for local governments to tailor their efforts to preserve vital services and rebuild local economies. The authors argue that the Community Development Block Grant and the Energy Efficiency and Conservation Block Grant programs are mechanisms for providing funds in a manner that is adaptable to local context while also focusing on increasing social equity. Administrators must emphasize the fourth pillar of public administration—social equity—in framing government responses to the pandemic.
Dhai, Ames, ‘Access to COVID-19 Vaccines as a Global Public Good: A Co-Ordinated Global Response Based on Equality, Justice and Solidarity is Key’ (2021) 14(1) South African Journal of Bioethics and Law 2–3 Abstract: The COVID-19 pandemic has exposed the extreme selfishness of many of the globe’s rich countries who, in this unprecedented crisis, have entirely disregarded the global nature of the problem - a problem that calls for a co-ordinated global response founded on unity and solidarity. As of 31 March 2021, South Africa (SA) had recorded 1 548 487 positive cases, 52 846 deaths and 263 878 vaccines administered to healthcare workers through the Sisonke Phase 3B trial.[1] Globally, 559 million doses have been administered, with 10% of the world’s economies accounting for 77% of the total number vaccinated thus far (personal communication (bulk email), Dr Tedros Adhanom Ghebreyesus, 1 April 2021). This is clear evidence that we are steeped in unfairness globally, and that the right to health for all is once again being denied. As with other crises, we witness exacerbations of pre-existing inequalities across the world, with the most vulnerable being affected the most. The United Nations (UN) asserts that vaccine equity affirms human rights, and that vaccine nationalism denies them. It goes on further to state that vaccines must be a global public good, accessible and affordable to all.
Dias Simões, Fernando, ‘COVID-19 and International Freedom of Movement: A Stranded Human Right?’ (The Chinese University of Hong Kong Faculty of Law Research Paper No 2021–07, 8 February 2021) Abstract: Governments confronted with a pandemic have a ‘knee-jerk’ reaction of imposing travel restrictions, despite the effectiveness of such measures not being supported by scientific evidence. In response to COVID-19, most countries imposed a ban on foreign travelers, with some States even closing borders to their own nationals and residents or prohibiting them from leaving. While border control is a legitimate prerogative that States can use to assess the health condition of travelers, travel restrictions are more complex and raise intricate legal questions. This article focuses on a specific category of travel restrictions: travel bans. These measures are a blanket prohibition applied to all or certain individuals, regardless of their health state, from crossing international borders. The validity of such measures depends on several elements. First, one needs to examine the applicable legal framework – the International Health Regulations and human rights treaties – and the standards they contain. Both sets of rules protect international mobility, but with different goals and scopes of application. Freedom of movement across borders is protected by the International Covenant on Civil and Political Rights, and comprises two interdependent rights: the right to leave and the right to return. Determining whether travel bans are lawful also depends on a second element: the status of the traveler, namely, whether they qualify as nationals, residents, or something else. After reviewing the relevant legal framework and (available) information on how travel bans were applied, this article questions whether the pertinent requirements and principles were respected. Some measures that were adopted in the name of public health seem hard (if not impossible) to justify. Entry bans covering nationals and residents are clearly a breach of the right to return. Exit bans are also problematic because they affect the exercise of the right to return. Both types of measures indirectly prevent family members from exercising their right to family reunification. Foreigners do not have a right to entry a foreign country but may be affected if they are prevented from leaving, thus becoming unable to exercise their return to return to their home country. This article examines a few of the more clear-cut cases were travel bans breached the rules and principles that should govern international mobility.
Dineen, Kelly K and Elizabeth Pendo, ‘Substance Use Disorder, Discrimination, and The CARES Act: Using Disability Law to Strengthen New Protections’ [2021] (Spring) Arizona State Law Journal Online_ _Abstract: The COVID-19 pandemic is having devastating consequences for people with substance use disorders (SUD). SUD is a chronic health condition—like people with other chronic health conditions, people with SUD experience periods of remission and periods of exacerbation and relapse. Unlike people with most other chronic conditions, people with SUD who experience a relapse may face criminal charges and incarceration. They are chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. People with SUD are also at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions have led to new and increased drug use, and overdose deaths are surging. More than ever, people with SUDs need access to evidence-based treatment and other services without structural barriers and with civil rights protections. To that end, a new provision in the Coronavirus Aid, Relief, and Economic Securities Act (CARES Act) strengthens penalties for the wrongful disclosure of SUD treatment records as well as addresses discrimination in multiple settings based on the misuse of those records. People with SUD reasonably fear negative treatment and discrimination if their condition is exposed. To address this barrier, federal law strictly protects the confidentiality of SUD treatment records. These protections have existed for nearly 50 years; however, the stringent requirements have been blamed for hampered and even deadly treatment decisions by health care providers who do not have access to SUD treatment records. Section 3221 of the CARES Act, effective March 2021, enacts the first major statutory changes to SUD treatment record confidentiality since 1992 and is aimed at improving information sharing among SUD treatment providers and other health care providers. But increased information sharing also creates concerns about information misuse and discrimination, and the possibility of renewed treatment avoidance. To address the tension between the benefits of information sharing and the possible harms of discrimination after disclosure, Section 3221 strengthens the disclosure penalties to align with HIPAA. It also adds an entirely new nondiscrimination provision which prohibits discriminatory use by recipients of disclosed SUD treatment information in areas including health care, employment and receipt of worker’s compensation, rental or sale of housing, access to courts, and social services and benefits funded by federal, state, or local governments. This essay provides the first analysis of the new nondiscrimination protections in Section 3221 of CARES Act for individuals with SUD using the framework of existing protections against disability-based discrimination in the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Section 1557 of the Patient Protection and Affordable Care Act, and the Fair Housing Act. We propose that as the new protections of Section 3221 are implemented through regulations, guidance, and enforcement, they should be understood within the context of existing disability nondiscrimination laws as well as the specific purpose of Section 3221 to ensure that discrimination against such people does not continue to serve as a barrier to seeking treatment. We offer three insights to achieve this goal. First, the new protections should be understood to include current illegal substance users and should be construed broadly. Second, the scope of entities covered by the new protections should be interpreted consistently with existing definitions in laws that prohibit disability-based discrimination in employment, public programs, services, and activities, health care, and housing. Finally, robust enforcement must be coupled with educational initiatives about the pervasive discrimination faced by people with SUDs, and new and existing nondiscrimination requirements that protect them.
Diver, Alice, Rossella Pulvirenti and Leigh Roberts, ‘The Rationing of Essential Resources in Times of Crisis: Logan’s Run and the “Science-Fictional” Right to Life Under Article 2 of the ECHR’ (2023) 44(3) Liverpool Law Review 427–446 Abstract: We argue that the right to life—for example under Article 2 of the European Convention—has become an increasingly fragile thing, prone to sharp rationing by domestic law and policy makers, almost to the extent seen in certain works of dystopian science fiction. The near-future novel ‘Logan’s Run’ (1967) depicts a brutally austere regime, that is ‘justified’ in law on the basis that finite, scarcening resources must somehow be preserved, to enable survival. Over—population means that human rights are now fictive however—there are neither family life rights nor privacy rights, and human dignity is in short supply. An all-powerful AI ‘being’ governs via algorithms to ration and curtail lifespans, so that no one is allowed to be older than 21. This rule is enforced via ‘voluntary’ submission to euthanasia, and the intervention of a murderous militia for those who do not comply. As ever, patriotic behaviour is key. Arguably, not dissimilar crisis thinking was seen during the pandemic, with various resources diverted or triaged towards the worthiest citizens—those with the best chances of survival—through the use of such things as ‘frailty algorithms.’ Recent UK case law is then analysed to gauge the extent to which dystopian reasoning might be encroaching upon the effectiveness of human rights protections, post-pandemic.
Dobrzeniecki, Karol and Bogusław Przywora, ‘Legal Basis for Introducing Restrictions on Human Rights and Freedoms during the First Wave of the COVID-19 Pandemic’ (2021) 46(3) Review of European and Comparative Law 43–65 Abstract: In this article, we attempt to present the legal grounds for introducing restrictions on human rights during the COVID-19 pandemic from a comparative legal perspective. We refer to the findings of a research project completed in 2020, trying to synthesize them and confront them with existing theoretical models. We strive to capture general patterns in the legal basis for states’ actions in response to global threats such as the COVID-19 pandemic. Comparative legal research contributes to the creation of universal solutions, which, taking into account the specificity of the system, can then be applied in local conditions.
Donald, Alice and Philip Leach, ‘Human Rights: The Essential Frame of Reference in Response to the COVID-19 Pandemic’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 101 Abstract: The COVID-19 pandemic underscored the indivisibility and interdependence of human rights, as states’ pre-existing failure to realise economic and social rights, especially the right to health, exacerbated the spread of the virus, in turn creating the conditions for authoritarian power grabs and severe incursions into rights of all kinds. This chapter argues that it is mistaken to conceive of COVID-19 – or future pandemics – principally as a threat whose eradication requires rights to be sacrificed. Nor do human rights hinder decisive action to contain disease. Rather, human rights standards and principles offer a means of transparently balancing competing priorities in the cauldron of decision-making during a health emergency. The chapter synthesises trends in states’ human rights performance during the pandemic and explains the wide-ranging nature of their obligations. It explores routes to accountability for governments’ actions and omissions and discusses the human rights dimension of access to vaccines, and ‘immunity certificates’. The chapter concludes by looking ahead to the application of human rights in the post-COVID-19 world and preparedness for future pandemics.
Dongol, Nikhil and Syeda A Tripty, ‘Access to Information as a Human Right Amid the Pandemic’ (2021) 1(1) University of Asia Pacific (UAP) Law Review 71–82 Abstract: With the outbreak of coronavirus in late December 2019, people around the world were forced to stay indoors. The lockdown had moved all the works to go online or virtual. With this, a virtual world has expanded and people have been easy to reach out on the internet. On the dark side, there are rampant misinformation and disinformation throughout the online world. This paper is an attempt to attract attention towards the ensuing infodemic which has been running havoc in connivance with the pandemic. This infodemic has increased the duty of the state to prevent from creating further havoc in an already wrecked system fighting the health crisis, especially in South Asia. The objective of this article is to explore the attempts made by the government in South Asia to cope up with yet another crisis particularly in the context of the law. It aims to analyse the right to freedom of speech and expression coupled with the fundamental right of the citizen to access information. The article further discovers the relevance of the interdependence of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) more during the pandemic. However, this article does not attempt to provide a blueprint for implementation of the policy to combat the infodemic due to the diversity of situations faced by different countries to varying degrees rather would highlight the best practices of states and would explore the institutional mechanism coping with this situation. This is doctrinal legal research, where primary data was obtained from legislation and case law, whereas secondary data was obtained from various hard copy and soft copy books, journals, articles, reports as well as literature reviews. Both quantitative and qualitative data were employed to both the provisions of access to information in South Asian countries.
Doyle, Laura, ‘“All in This Together?” A Commentary on the Impact of COVID-19 on Disability Day Services in Ireland’ (2021) 36(9) Disability & Society 1538–1542 Abstract: Disability services in Ireland faced a financial crisis which was exacerbated by the impact of the COVID-19 pandemic. The resumption of day services for people with disabilities placed the bulk of the financial burden on these disability services following initial non-committal governmental support. Disability day services closed in March 2020 with services operating at a much-reduced capacity since this date. This reduction of services has negatively impacted people with disabilities who were already experiencing inequalities in Irish society pre-COVID-19. Will the commitment of financial provision to support resumption of services positively impact on people with disabilities, or are historic inequalities faced by disabled people likely to continue in Ireland?
Duman, Anil, ‘Wage Losses and Inequality in Developing Countries: Labor Market and Distributional Consequences of COVID-19 Lockdowns in Turkey’ (SSRN Scholarly Paper No ID 3645468, 7 July 2020) Abstract: We develop a possibility to work index (PWI) taking the ability to work from home and workplace closures into account. By using the data from the HLFS in Turkey, we examine the individual level determinants of PWI. Our findings reveal that PWI and ability to work from home are significantly different, and essential or closed jobs are not necessarily concentrated at the bottom of the wage distribution. Therefore, from a policy perspective, PWI can be a more encompassing measure of risk and can assist the public authorities to design better targeted social policies. Our results also point out that wage inequality is likely to deteriorate as a result of the supply shocks from confinement policies. However, the overall negative distributional effects of lockdown and disparity between employees in different economic activities become more substantial with duration. These suggest that in order to avoid major increases in earning inequalities and related social problems, governments would be better off with shorter and stricter lockdowns.
Durojaye, Ebenezer, ‘Between a Rock and a Hard Place: (Un)Balancing the Public Health Interventions and Human Rights Protection in the COVID 19 Era in South Africa’ (2022) 26(2) International Journal of Human Rights 332–347 Abstract: A State’s response to a public emergency like a pandemic constitutes a critical test on its commitment to the effective implementation of human rights. The COVID 19 pandemic has infected over 54 million people and led to approximately 1.3 million deaths leaving a toll on the enjoyment of human rights. South Africa’s figures of over 1 million infections and close to 21,000 deaths make it Africa’s epicentre. This also presents an opportunity to take stock of the adopted public health interventions and the extent of human rights protection. It is argued that the outbreak of the pandemic places South Africa between a rock and hard place in terms of striking the balance between public health interventions and the protection and the promotion of human rights. First, this article reiterates the dangers the pandemic presents where public health initiatives are not engaged. Secondly, it examines the promotion and protection of human rights in emergencies. Thirdly, a practical analysis of South Africa’s engagement of the two polarities using its national law follows. Fourthly, the contribution proposes a model that South Africa may emulate going forward. A conclusion and recommendations follow.
Dye, Alaina, ‘The Right to Health in Immigration Detention during the COVID-19 Pandemic: An Examination of Federal and International Law’ (University of San Diego, Centre for Health Law and Bioethics, CHLB Research Scholarship No 74, 2020) Abstract: This article examines the United States’ response to the severe impact of the coronavirus (COVID-19) in immigration detention centers and considers the United States’ obligations to the vulnerable population of immigrant detainees. This article argues that the COVID-19 pandemic further demonstrates the United States’ lack of guaranteed health care for immigrant detainees and deportees despite international recognition of the human rights to health and life. The United States violates international law when immigrant detainees’ human rights are disregarded by lack of appropriate access to health care during a global pandemic. This article recognizes that discrimination against immigrants under the Trump Administration and inconsistent treatment of detained populations further the vulnerability of immigrant detainees during the COVID-19 pandemic. Lastly, this article urges for reform in the United States immigration detention system, in regard to health care, to protect immigrant detainees and deportees during the harsh times of the COVID-19 pandemic.
Dyer, Fiona, Claire Lightowler and Nina Vaswani, ‘Exacerbating, Illuminating and Hiding Rights Issues: COVID-19 and Children in Conflict with the Law’ (2022) The International Journal of Human Rights (advance article, published 11 April 2022) Abstract: This article explores the impacts of the response to COVID-19 on the rights of children in conflict with the law. It focuses on three significant rights issues: responding to all children as children (UNCRC, Article 1); non-discrimination (UNCRC, Article 2) and deprivation of liberty as a last resort (UNCRC, Article 37). Completing a Child Right’s Impact Assessment, a structured approach to considering children’s rights issues, helped us identify the key concerns around these three UNCRC articles. We argue that, while the COVID-19 pandemic has precipitated an erosion of children’s rights for those in conflict with the law, the response to the pandemic has primarily compounded and illuminated pre-existing rights issues. It has also further hidden from view some children and their experiences. If we are to ensure that rights are respected, especially in future crisis scenarios, we need to ensure that upholding rights is not perceived as optional. This suggests greater efforts are needed to challenge deep-rooted societal and professional attitudes towards children in conflict with the law and their rights; to address fundamental societal inequalities, and; to strengthen the ability to challenge when rights are not respected.
Dzehtsiarou, K, ‘Article 15 Derogations: Are They Really Necessary during the COVID-19 Pandemic?’ [2020] (4) European Human Rights Law Review 359–371 Abstract: Since the beginning of the COVID-19 pandemic, a few human rights academics argued that human rights can be better protected if the governments derogate from international human rights mechanisms during the pandemic. In doing so, these governments clearly separate the regime of emergency from normalcy and hence they limit in time the measures they adopt to fight the pandemic. Article 15 allows such derogations from the European Convention on Human Rights (ECHR). In this short contribution I question the fundamentals of this argument. First, the quarantining effect of derogations is often proven by references to military emergencies. I argue that health emergencies are substantively different from the military ones and it is incorrect to draw direct parallels between them. Secondly, I argue that human rights enshrined in the ECHR have a ‘natural quarantining effect’ and Article 15 derogations are unable to change the Court’s approach to human rights during the pandemic significantly.
Easop, Bruce A, ‘Education Equity During COVID-19: Analyzing In-Person Priority Policies for Students with Disabilities’ (2022) 74(1) Stanford Law Review 223–275 Abstract: During the COVID-19 pandemic, schools nationwide failed to provide essential supports and services to students with disabilities. Based on reviews of 115 school-district reopening plans, this Note finds that numerous schools sought to remedy these gaps through in-person priority policies designed to return students with disabilities to physical classrooms before other students. This Note evaluates the legal and policy implications of such in-person priority policies through the lenses of critical race theory and dis/ability critical race studies (DisCrit). This Note begins by identifying the structural barriers to learning that students with disabilities faced during school closures, including disparities in internet access and accessibility, removal or reduction of related services, absence of social interaction and structure, and heightened trauma and mental health concerns. While in-person priority policies are meant to mitigate these barriers, this Note argues that they ultimately segregate classrooms and exacerbate already egregious disciplinary disparities. Consequently, these policies impose disproportionate harm on students of color with disabilities. Additionally, this Note calls on policymakers to develop individualized approaches to inperson priority, adopt nonexclusionary disciplinary policies, and expand access to compensatory education and extended school year services. Beyond the current crisis, policymakers must commit to eliminating systems of stratification that categorically filter students into segregated classroom settings. By centering students of color, schools can reimagine special education to ensure that all students receive the education they deserve.
Ebi, Abangma Alain, ‘The Negative Impact of Covid-19 on the Enjoyment of Legal Freedoms’ 9(3) International Journal of Social Science and Humanities Research 467–471Jurisdiction: Cameroon
Abstract: Coronavirus disease (COVID-19) is an infectious disease caused by a newly discovered coronavirus. Most people infected with the COVID-19 virus experience mild to moderate respiratory illness and recover without requiring special treatment. Older people and those with underlying medical problems like cardiovascular disease, diabetes, chronic respiratory disease, and cancer are more likely to develop serious illness. The disease was discovered in December 2019. On 31st December 2019, a series of pneumonia cases of unknown cause was detected in the People’s Republic of China (PRC). COVID-19 has caused States to restrict movements, closed down schools, major markets and churches and thus the virus has serious impact on the enjoyment of legal freedoms. Covid-19 has very devastating effects on economic activities generally and thus the urgent need to reduce the spread but the situation in Cameroon is difficult to handle as the negative impacts of the virus are further compounded by lack of support from the government to boost economic activities like supporting small businesses with funding and reducing taxes for big enterprises so as to reduce costs and encourage production. The general objective of this paper is to critically examine the negative impact of COVID-19 on the enjoyment of legal freedoms. One of the main findings of the paper is that Cameroon as a State committed to the protection of its citizens’ rights has ratified treaties protecting human rights of people including legal freedoms and thus to eradicate the impact COVID-19 has on these legal freedoms, the work strongly recommends that as disease outbreaks are not likely to disappear in the near future, proactive international actions are required to not only save lives but also protect economic prosperity.
El-Mohandes, Ayman et al, ‘COVID-19: A Barometer for Social Justice in New York City’ [2020] American Journal of Public Health e1-e3 ( advance article, published 10 September 2020) Abstract: A recent study by researchers at Harvard University found that mortality ratios for Black and Latinx communities in the United States were 3.6 and 2.6 times higher, respectively, than the mortality ratio for non-Hispanic Whites,1 a stark gap also reported in New York City (NYC).2 During the COVID-19 pandemic, in NYC other similar patterns were found. Mortality rates for the Latinx and Black populations are 242 per 100 000 and 226 per 100 000, respectively, both more than twice those for White and Asian American residents.3 Surveys conducted by the City University of New York (CUNY) Graduate School of Public Health & Health Policy and others tell an even more alarming story. The gaps in mortality rates are just the tip of an iceberg of long-standing public health–related inequities among people of color in the United States. These discrepancies threaten all US citizens—wealthy and poor alike—and they have been exacerbated by the coronavirus. (Am J Public Health. Published online ahead of print September 10, 2020: e1–e3. doi:10.2105/AJPH.2020.305939)
Elson, Diane and Marion Sharples, ‘Addressing Intersecting Inequalities through Alternative Economic Strategies’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 43-48 Abstract: This chapter examines inequalities in income, wealth, and health in the United Kingdom (UK) prior to Covid-19, focusing on class, gender; and race. It shows how these inequalities have intensified during the pandemic and discusses ways in which these inequalities could be reduced through alternative economic strategies put forward by feminist economists. Central to these strategies is public investment in care services. The chapter argues for going beyond this to make the whole economy a caring economy in which we give priority to care for one another and the planet in the ways in which we produce and consume all goods and services. Eight steps towards bringing this about are set out, steps which can be strengthened by redressing the imbalance between the commercial property rights of corporations and rentiers and the economic and social rights of disadvantaged people.
Epstein, Wendy Netter, ‘A Legal Paradigm for the Health Inequity Crisis’ (SSRN Scholarly Paper No ID 3787539, 17 February 2021) Abstract: People of color and the poor die younger than the white and prosperous. And when they are alive, they are sicker. Health inequity is morally tragic. But it is also economically inefficient, raising the nation’s healthcare bill and lowering productivity. The COVID pandemic only, albeit dramatically, highlights these pre-existing inequities. COVID sufferers of color die at twice the rate of whites. The cause, in large part, is structural inequality and racism.Neither the popular nor the scholarly discussion of health care inequity, while robust, has translated into palpable and rapid progress. This Article describes why health inequity has so far proven intractable. In a system where no one actor has both adequate incentive and adequate wherewithal to create progress, progress languishes. The solution this Article proffers draws unexpected inspiration from the analogy that the Health Insurance Portability and Accountability Act (HIPAA) provides. HIPAA’s example of a binding federal mandate (hard law) coupled with collaboration between federal, state, local, public and private entities (soft law), suggests a successful framework that offers hope for more rapid remediation of health care’s inequities.
Erasmus, N, ‘Age Discrimination in Critical Care Triage in South Africa: The Law and the Allocation of Scarce Health Resources in the COVID-19 Pandemic’ (2020) 110(12) South African Medical Journal 1172–1175 Abstract: No one may be refused emergency medical treatment in South Africa (SA). Yet score-based categorical exclusions used in critical care triage guidelines disproportionately discriminate against older adults, the cognitively and physically impaired, and the disabled. Adults over the age of 60, who make up 9.1% of the SA population, are most likely to present with disabilities and comorbidities at triage. Score-based models, drawn from international precedents, deny these patients admission to an ICU when resources are constrained, such as during influenza and COVID-19 outbreaks. The Critical Care Society of Southern Africa and the South African Medical Association adopted the Clinical Frailty Scale, which progressively withholds admission to ICUs based on age, frailty and comorbidities in a manner that potentially contravenes constitutional and equality prohibitions against unfair discrimination. The legal implications for healthcare providers are extensive, ranging from personal liability to hate speech and crimes against humanity. COVID-19 guidelines and score-based triage protocols must be revised urgently to eliminate unlawful discrimination against legally protected categories of patients in SA, including the disabled and the elderly. That will ensure legal certainty for health practitioners, and secure the full protections of the law to which the health-vulnerable and those of advanced age are constitutionally entitled.
Erdianti, Ratri Novita and Nur Putri Hidayah, ‘Study at Home during the Covid-19 Pandemic as a Legal Protection for Children’s Rights in Indonesia’ (2020) 28(2) Legality : Jurnal Ilmiah Hukum 245–258 Abstract: The application of the online learning system during the COVID-19 pandemic has caused problems related to learning methods that require adequate facilities that not all students have. In addition, the community also feels that this method is not optimal for students, especially elementary school students who find it difficult to accept online learning which also due to heaps of works to replace the material students can use. The purpose of this paper is to see that the study at the home policy is the right government action to take in accordance with the legal protection mandated by Law No. 35 of 2014 concerning Amendments to Law No. 23 of 2002 concerning Child Protection to continue on carrying out the learning process so that the world of education is not paralyzed due to the spread of COVID-19. The purpose of this study is to examine the study at the home policy as a guarantee of legal protection mandated by Law No. 35 of 2014 concerning Amendments to Law No. 23 of 2002 concerning Child Protection. The method used in this study is the normative method. The outcomes show that online learning policies are the best solution and are in line with the principles of legal protection for children’s rights in Indonesia, especially regarding the right to be safe from harm, to be kept away from disease, and the right to live and develop.
Estrada, Ruiz and Mario Arturo, ‘Can COVID-19 Shows Income Inequality?’ (SSRN Scholarly Paper No ID 3638160, 29 June 2020) Abstract: This paper attempts to investigate the existence of a correlation between COVID-19 and income inequality. This research paper’s primary objective is to prove that the fast expansion of COVID-19 cases can be related to the income inequality levels in any country. However, this paper is not looking at economic growth. We focus on how people benefit from this economic growth through the income (re)distribution among different social groups in the same country. According to the World Health Organization (WHO), the top countries with more COVID-19 infected cases, such as the U.S., Brazil, Russia, India, United Kingdom, Peru, Chile, Spain, Italy, and Iran. According to our preliminary results from the ten countries in mention, we can observe the sad reality of income inequality worldwide. Therefore, the COVID-19 can be an alternative parameter to evaluate the income inequality. Finally, this the paper tries to present policies and recommendations to solve income inequality from a holistic approach.
Estrada, Ruiz and Mario Arturo, ‘Is Poverty the Best Allied of COVID-19 in Developing Countries? The Case of Guatemala’ (SSRN Scholarly Paper No ID 3645045, 7 July 2020) Abstract: This paper tries to expose how poverty can be a crucial issue in the faster expansion of COVID-19 in developing countries like Guatemala. This research paper’s primary objective is to prove that the rapid development of COVID-19 infected cases is directly involved in the massive poverty levels in developing countries. However, this paper also looks at the dramatic reduction of the middle class and the expansion of poverty. This research focuses on how developing, and least developed countries are extremely vulnerable to COVID-19. According to the World Health Organization (WHO), how developing countries such as Guatemala got exponential COVID-19 contagious cases growth rates of 300% daily. According to our preliminary results in the case of Guatemala, we can observe that poverty originated from enormous inflation, massive unemployment, deep-rooted discrimination-by race and economic-, income inequality-the largest in Latin America-, a large informal economy-urban and rural-, and a vast corruption-myopic governments with personal agendas-. Finally, this paper tries to present policies (Ruiz Estrada, 2011) and (Ruiz Estrada and Park, 2018) to the Guatemalan government, the private sector, and civil society from a holistic approach to Guatemala conditions and characteristics.
Evans, Kylie and Nicholas Petrie, ‘COVID-19 and the Australian Human Rights Acts’ (2020) 45(3) Alternative Law Journal 175-179 Abstract: This article considers how the response to COVID-19 in Australia may be examined and challenged by the Human Rights Act 2004 (ACT), the Charter of Human Rights and Responsibilities 2006 (Vic) and the Human Rights Act 2019 (Qld) (collectively, the Australian HRAs). It also considers the unique model of rights protection provided at the Commonwealth level under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (2011 Act). The authors argue the Australian HRAs and the 2011 Act have the potential to play a key role in scrutinising some laws implementing the COVID-19 measures, and action taken under those laws.
‘Eviction of Travellers and the Significance of the Pandemic’ [2020] (September) Housing Law Monitor 8–12 Abstract: Considers Chichester DC v Sullivan (HC) on whether evicting a large group of travellers from a site in an Area of Outstanding Natural Beauty, where there were no other authorised sites available, was a proportionate and necessary interference with the travellers’ rights under ECHR art.8 and Protocol 1 art.1. Notes the court’s consideration of the impact of the coronavirus pandemic on the analysis of proportionality.
Fagan, Andrew, ‘The Politics of Identity in the UK: Before, During and After Covid-19’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 149–157 Extract from Introduction: After several months of the spread of Covid-19 throughout the developed world, we now know that the fate of Boris Johnson revealed little about peoples’ vulnerability to the virus. In stark contrast to the claim that the virus did not discriminate, it became quickly apparent that the likelihood of becoming infected is far higher amongst some socio-economic, racial and ethnic groups than others. Identity is an aetiological factor in the spread of the virus. This is not because of the differing physiological or DNA composition of those who have disproportionately been infected by the virus. Biology is not destiny. Rather, those most likely to become infected and thus to die from the virus are also many of the poorest and most socially marginalised within our societies. In addition to its biomedical properties, Covid-19 must also be understood as a profoundly social and political pathogen, that sheds an unrelenting light on the social and political pathologies of affluent, notionally democratic societies such as the United Kingdom.
Fairchild, Amy, Lawrence Gostin and Ronald Bayer, ‘Vexing, Veiled, and Inequitable: Social Distancing and the “Rights” Divide in the Age of COVID-19’ (2020) 20(7) The American Journal of Bioethics 55–61 Abstract: Although unprecedented in scope and beyond all our life experiences, sweeping social distancing measures are not without historical precedent. Historically, racism, stigma, and discrimination resulted in grossly inequitable application of disease containment measures. But history also provides examples in which broad measures enjoyed remarkable public support. When it comes to COVID-19, blame and division continue to shape containment responses. But the COVID-19 pandemic also resonates with moments in which there was broad social support for containment precisely because lockdowns or stay at home orders are, on the surface, remarkably equitable. Yet even in a context in which a majority of Americans support social distancing, small but coordinated conservative groups are challenging social distancing as a matter of individual rights. In sharp contrast, vulnerable populations, who bear the heaviest burden of disease, have claimed a right to social distancing as a matter of protection.
Fambasayi, Rongedzayi and Hadiza Omoyemhe Okunrobo, ‘Children’s Rights and COVID-19 Responses under the African Union: Recent Developments and Challenges’ (2021) 54(1) Comparative and International Law Journal of Southern Africa 1–31 Abstract: There is little doubt that children are at risk of being seriously affected by the socio-economic impact and the response measures to the COVID-19 pandemic that may inadvertently affect their rights, interests and well-being. UNICEF has declared that unless states act together, globally and regionally, to address this, it is possible that the pandemic will permanently cause damage to children and our shared future. The pandemic poses real challenges for children around the world, particularly the developing countries in Africa. Most African countries are already bedevilled by socio-economic frailties, corruption, conflict and institutional problems. In this article we explore responses to COVID-19 from the African Union (AU), to ascertain how regional responses have integrated the protection of the rights and interests of children. With the African Children’s Charter as a guide, it is argued that institutions at the AU continental and subregional levels are increasingly becoming aware of the importance of children’s rights as a distinct issue rather than being part of women’s concerns. The AU celebrated the thirtieth anniversary of the African Children’s Charter in 2020, and this occasion provides a timely opportunity to reflect on how regional institutions are integrating the principles of children’s rights in regional governance processes and decision-making.
Fan, Jizeng and Yuhong Wang, ‘Precautionary Proportionality Principle as an Instrumental Preventive Measure from the COVID-19: Can European Human Rights Survive in the State of Public Health Emergency?’ [2021] (1) Przegląd Europejski 117–143 Abstract: The authors believe that the C. Schmitt’s notion of unconstraint sovereignty is not flawless. Both A. Dicey’s theory of British constitutional law and the international human rights instruments have required the measures of the derogation of human rights must be given in accordance with pro proportionality principle. However, these normative requirements have hardly been applied to the judicial scrutiny by the two supranational courts in Europe. Correspondingly, some European public authorities favour the more radical precautionary principle. Although this principle is more effective in suppressing the new coronavirus, it is associated with numerous side effects. Thus, the authors propose in this article an innovative concept of precautionary proportionality principle.
Faraday, Fay, ‘Intersectional Feminism, Racial Capitalism, and the Covid-19 Pandemic’ (2021) 72 University of New Brunswick Law Journal 222-256 Extract from Introduction: By comparing pandemic-era decision-making by different Canadian jurisdictions, the paper aims to contribute to deepening the legal analysis of systemic discrimination, and to understanding how individual laws and policies build upon, accumulate, imbricate, and institutionalize systemic discrimination.
Farha, Leilani and Kaitlin Schwan, ‘The Front Line Defence: Housing and Human Rights in the Time of COVID-19’’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 355 Abstract: COVID-19 has laid bare the failure of Canadian governments to effectively implement the right to housing. In this chapter, we argue the pandemic presents Canada with the opportunity to correct the structural weaknesses of our housing system to ensure housing for all and reposition housing as a social good rather than a commodity. We explore how housing status has been determinative of outcomes for three vulnerable populations during the pandemic—people experiencing homelessness, survivors of intimate partner violence, and low-income renters. Their experiences demonstrate the urgent need for a rights-based approach to housing, highlighting the importance of breathing life into the National Housing Strategy and the National Housing Strategy Act. We argue that Canadian governments must act before this opportunity passes them by; otherwise they will find that though the pandemic itself is over, housing inequality has only worsened.
Farre, Lidia et al, ‘How the Covid-19 Lockdown Affected Gender Inequality in Paid and Unpaid Work in Spain’ (IZA Discussion Paper No 13434, 7 July 2020) Abstract: The covid-19 pandemic led many countries to close schools and declare lockdowns during the Spring of 2020, with important impacts on the labor market. We document the effects of the covid-19 lockdown in Spain, which was hit early and hard by the pandemic and suffered one of the strictest lockdowns in Europe. We collected rich household survey data in early May of 2020. We document large employment losses during the lockdown, especially in "quarantined" sectors and non-essential sectors that do not allow for remote work. Employment losses were mostly temporary, and hit lower-educated workers particularly hard.Women were slightly more likely to lose their job than men, and those who remained employed were more likely to work from home. The lockdown led to a large increase in childcare and housework, given the closing of schools and the inability to outsource. We find that men increased their participation in housework and childcare slightly, but most of the burden fell on women, who were already doing most of the housework before the lockdown. Overall, we find that the covid-19 crisis appears to have increased gender inequalities in both paid and unpaid work in the short-term.
Fassiaux, Sébastien, ‘Comparative Survey on Vaccination’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 181–196 Abstract: Vaccination is considered the most effective way of ending the COVID-19 pandemic that has been raging since March 2020. As with other issues during the pandemic, vaccination has generated important litigation involving the balancing of fundamental rights. This article surveys four key areas in vaccination litigation around the world from a comparative perspective. First, the article analyzes the issue of compulsory vaccination and links it to the government measures that potentially discriminate citizens based on their vaccination status. The second issue relates to prioritization, which is also subject to extensive litigation because some categories of people believe they should be prioritized for vaccination. The third issue deals with the processing of vaccination data, in particular the extent to which authorities can collect and process citizens’ health data linked to vaccination. Finally, the fourth issue is institutional, as it concerns litigation regarding which level of government is competent to lead vaccination campaigns. Overall, the survey shows the important role that courts have been playing in balancing fundamental rights in the context of ongoing vaccination campaigns worldwide.
Faturoti, Bukola, ‘Online Learning during COVID19 and beyond: A Human Right Based Approach to Internet Access in Africa’ (2022) 36(1) International Review of Law, Computers & Technology 68–90 Abstract: Teaching and learning were disrupted due to lockdown imposed as part of efforts to curb the spread of the COVID19 virus that hit the world in 2020. As a result, many national governments requested educational establishments to migrate their teachings online. In Africa, internet penetration has improved in the last decade. However, the continent still lags in integrating the Internet into learning. Besides, there is unequal access to technologies used in online education and unequal access to data and connectivity. Regarding access to quality learning, the COVID-19 pandemic has widened the gap between the rich and the poor and has exposed society’s fragility. This paper evaluates the strategies of African leaders in sustaining access to learning and the experience of learners during COVID19 lockdown. It argues that most African countries’ educational systems are unprepared for the sudden switch to online learning. Finally, it investigates future policy strategies in bringing more Africans out of the digital desert.
Fellows, Jamie and Mark David Chong, ‘Australia’s Modern Slavery Act: Challenges for a Post-COVID World?’ (2020) 45(3) Alternative Law Journal 209–214 Abstract: When the coronavirus pandemic (COVID-19) struck in early 2020, the Commonwealth government eased reporting deadlines and extended the date for firms required to submit modern slavery statements under Australia’s Modern Slavery Act 2018 (Cth). The economic recession caused by COVID-19 has produced the necessary conditions for further exploitation and enslavement of vulnerable individuals. This article asserts that, even without COVID-19, the Modern Slavery Act 2018 (Cth) in its current form will do little to address forms of modern slavery such as sexual exploitation, forced marriage, trafficking and domestic servitude. This is because the Modern Slavery Act 2018 (Cth) primarily targets labour exploitation and requires suppliers to voluntarily disclose their involvement with modern slavery.
Fernandes, Eugene J, ‘Immunizing Canada from Pandemic Populism’ (2021) [ no publication information] Abstract: In Canada, are individual citizens ends in themselves, or are they ‘simply tools of collective national policy’ as in China? This philosophical question is brought into sharp focus when we analyze the rights and freedoms that unvaccinated Canadians are denied. Contrary to popular belief, vaccine passports do not clearly violate a citizen’s rights because the government does not mandate him to do or not do anything. 1 Instead, the government mandates that businesses ensure that their guests be vaccinated. The Canadian Charter of Rights and Freedoms protects individual rights more than business rights, so this essay will focus on vaccine mandates where a governmental body imposes an obligation to be vaccinated on an individual, in violation of a right. I will argue that the law should not give the vaccinated more rights than the unvaccinated. We otherwise become a segregated and unethical nation with partial and illiberal institutions.
Ferraz, Octávio Luiz Motta, ‘Covid-19 and Inequality: The Importance of Social Rights’ (2021) 32(1) King’s Law Journal 109–121 Abstract: Governments responses to the Covid-19 pandemic have included drastic public health measures that restrict personal freedoms on a scale not seen outside of war times. Less attention has been devoted to their impact rights to an adequate standard of living, social security, housing, education, and even the right to health (‘social rights’). This piece explores this less debated but nonetheless important and complex relationship between pandemics and social rights, focusing on the disproportionately negative impact that pandemics and their responses have on the poorer’s health and socio-economic well-being (part I), and on what social rights have to offer, if anything, to address or at least minimise this impact (part II). It concludes that improving social rights and reducing inequalities in normal times is not only a moral and legal duty of governments and societies but also an effective pandemic preparedness measure.
Filho, Luciano Bottini, ‘Covid-19 Through Brazilian Courts: The Deserving and the Undeserving Vulnerable’ (2021) 22(6) German Law Journal 1098–1114 Abstract: Looking into these times of neoconservatism in Brazil, marked by a far-right agenda and populism, this Article explores the role of vulnerability (as a legal theory, a legal principle or factual consideration) in the litigation prompted by the pandemic in Brazil. The usages of vulnerability as a form of resistance to the denial of their identity and vulnerable condition show that vulnerability can take different forms through litigants and may have an independent meaning to what is defined in legal theory or law. This is most evident by the fact that litigants dispute government policies based on ideologies that contest their identities (and not merely their vulnerability). Four case studies substantiate this Article with lawsuits brought to higher courts by judicially active groups: prisoners, indigenous people, Afro-Brazilian ethnic communities and gig economy drivers. They are what I call ‘undeserving vulnerables’, groups discriminated from a legally recognized vulnerable group through attacks to their identity.
Fineman, Martha Albertson, ‘Populations, Pandemics, and Politics’ (2021) International Journal of Discrimination and the Law (forthcoming) Abstract: Discussions about social justice and governmental responsibility are often framed in abstract terms, referencing aspirational concepts such as ‘equality’ or ‘autonomy.’ While this is particularly evident in law, grand narratives also shape policies related to public health and welfare, as well as many other areas that overlap with law. Of specific interest in the context of this collection is the idealized rendition of the body that permeates these grand narratives. In law, as well as in political theory, philosophy, economics, and ethics, the body is abstracted to the point that its material realities and their implications for social policy can be conveniently ignored.The pandemic has disrupted, even discredited, dominant political narratives, which minimized or ridiculed the need for safety nets and other social welfare policies. COVID-19 has forced a consideration of the inescapably and uncomfortably concrete into public consciousness, opening up the possibility for a revisioning of our thinking about both individual and societal requirements and responsibilities. Fortunately, vulnerability theory presents a constructive and needed alternative to the traditional paradigm for thinking about the nature of the state and its social institutions and relationships in this post-pandemic reality.
Finlay, Lorraine and Rosalind Croucher, ‘Limiting Rights and Freedoms in the Name of Public Health: Ensuring Accountability during the COVID-19 Pandemic Response’ in Belinda Bennett and Ian Freckelton (eds), Australian Public Health Law: Contemporary Issues and Challenges (Federation Press, 2023) ch 7
Fins, Joseph J, ‘Resuscitating Patient Rights during the Pandemic: COVID-19 and the Risk of Resurgent Paternalism’ [2020] Cambridge Quarterly of Healthcare Ethics advance article, published 24 June 2020) 1-7 Abstract: By late March 2020, New York was in crisis mode. Our Emergency Department - like its counterparts across the City - was bulging at its seams. We were overwhelmed by the COVID-19 surge. Patients were arriving in respiratory failure at the cusp of needing to be resuscitated and the sheer volume of critically-ill patients appearing at the same time was as if there had been a major plane crash at LaGuardia Airport. The only difference was that this was a sustained disaster with a steady flow of dying patients arriving at the hospital. And this was a stress test for medical ethics, for distributive justice and the allocation of scarce resources. Simply put, there were more patients to be resuscitated than available personnel, much less equipment.
Flood, Colleen M, Bryan Thomas and Kumanan Wilson, ‘Civil Liberties vs. Public Health’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 249 Abstract: The COVID-19 pandemic highlights the challenges governments face in balancing civil liberties against the exigencies of public health, amid the chaos of a public health emergency. A key question concerns the evidentiary standards for justifying interferences with civil liberties. Superficially, civil liberties law and public health appear to invoke opposite evidentiary standards: under the principle of proportionality, civil libertarians demand strong evidence of the necessity of interference with civil liberties, while public health officials, invoking the precautionary principle, urge that intrusive measures be taken—limits on social gatherings, for example—even without conclusive evidence of their necessity. In this chapter, we argue that the two principles are not so oppositional in practice. In testing for proportionality, courts recognize the need to defer to governments on complex policy matters, especially where the interests of vulnerable populations are at stake. For their part, public health experts have incorporated ideas of proportionality in their evolving understanding of the precautionary principle. We emphasize the importance of agility in the COVID-19 response, pointing to strategies that might simultaneously satisfy the proportionality and precautionary principles.
Foglia, Massimo et al, Crisis Patient Prioritization and the Law: The Pandemic Experience (Wolters Kluwer, 2024) Book summary: The allocation of scarce health resources remains a persistent and critical challenge for global health systems. The Covid-19 pandemic brought this issue to the forefront on an unprecedented scale, testing even the most robust health systems of industrialized nations. Depletion of resources, particularly in intensive care units, forced daily triage decisions. Each country, facing its unique circumstances, had to devise its own solution to the sudden calamity. While universal principles are applied, the book presents eleven comprehensive national reports from Europe, North and South America, and Africa. These reports are structured to facilitate a nuanced comparison of individual strategies as well as overarching systematic differences. In addition to the national perspectives, the book includes a dedicated theoretical chapter analyzing the legal-ethical foundations and limits of crisis patient prioritisation. As the urgency of the Covid-19 pandemic wanes in the public eye and among stakeholders, there is a concerning lack of willingness to extract vital lessons for future crises. Nevertheless, neglecting the insights gained from the events of 2020 and 2021 would be a grave error. The book aspires to preserve the lessons of the pandemic, offering valuable insights to those who seek better preparation for potential future crises.
Freckelton, Ian, ‘COVID-19: Criminal Law, Public Assemblies and Human Rights Litigation’ (2020) 27(4) Journal of Law and Medicine 790–806 Abstract: Australia’s criminal law was affected by the COVID-19 pandemic from the outset and then progressively as statutory measures and judicial rulings on matters such as bail entitlements, judge-alone trials, sentences and applications for demonstrations and public assemblies were made by courts. This column identifies some of the major decisions made during the period of the lockdown measures between March and July 2020, and reviews significant New South Wales judgments in relation to the lawfulness of mass gatherings during the period of lockdown as expert assessments of risks of community transmission of the virus waxed and waned. It explores the importation into Australia’s criminal law of public health principles for the protection of the community, and its compatibility with traditional principles of criminal justice.
Frees, Edward W and Fei Huang, ‘The Discriminating (Pricing) Actuary’ (SSRN Scholarly Paper No ID 3592475, 4 May 2020) Abstract: The insurance industry is built on risk classification, grouping insureds into homogeneous classes. Through actions such as underwriting, pricing and so forth, it differentiates, or discriminates, among insureds. Actuaries have responsibility for pricing insurance risk transfers and are intimately involved in other aspects of company actions and so have a keen interest in whether or not discrimination is appropriate from both company and societal viewpoints. This paper reviews social and economic principles that can be used to assess the appropriateness of insurance discrimination. Discrimination issues vary by the line of insurance business and by the country and legal jurisdiction. This paper examines social and economic principles from the vantage of a specific line of business and jurisdiction; these vantage points provide insights into principles. To sharpen understanding of the social and economic principles, this paper also describes discrimination considerations for prohibitions based on diagnosis of COVID-19, the pandemic that swept the globe in 2020. Insurance discrimination issues have been an important topic for the insurance industry for decades and is evolving in part due to insurers’ extensive use of Big Data, that is, the increasing capacity and computational abilities of computers, availability of new and innovative sources of data, and advanced algorithms that can detect patterns in insurance activities that were previously unknown. On the one hand, the fundamental issues of insurance discrimination have not changed with Big Data; one can think of credit-based insurance scoring and price optimization as simply forerunners of this movement. On the other hand, issues regarding privacy and use of algorithmic proxies take on increased importance as insurers’ extensive use of data and computational abilities evolve.
Fuente, Oscar Pérez de la, ‘Accountability and COVID-19: The Spanish Perspective 1’ in Jędrzej Skrzypczak and Oscar Pérez de la Fuente (eds), Lessons for Implementing Human Rights from COVID-19 (Routledge, 2024) Abstract: Accountability is a key element in understanding the exercise of political responsibility in democratic societies. Each political culture has its own conception of how this public servant accountability is to be specifically produced, sometimes limited to purely administrative issues, sometimes with an essentially political component. Free and pluralistic elections are one of the most common and effective mechanisms by which politicians are held accountable.
Ganty, Sarah, ‘Socioeconomic Precariousness in Times of COVID-19: A Human Rights Quandary under the ECHR’ (2021) Polish Yearbook of International Law (forthcoming) Abstract: The COVID-19 pandemic, and pandemics in general, affect socioeconomically disadvantaged people more severely. This is due not only to their precarious living, health, and working condi-tions, but also to public actions and omissions. However, their plight remains mostly invisible to the public, governments, and legislators, which raises many questions regarding respect of their fundamental rights. In this contribution, I explore these questions in light of the European Convention on Human Rights (ECHR). On the basis of the corpus of literature in the field, I show that the European Court of Human Rights (ECtHR) has developed some protection for people in a precarious situation, especially under the prohibition of inhuman and degrading treatment and the right to private and family life. This case law is likely to be relevant to the protection of socioeconomically underprivileged people during pandemics. However, this pro-tection is limited and imbued with pitfalls. Against this background, I show that there is an ur-gent need for practitioners and courts to explore an additional tool under the ECHR: the prohi-bition of discrimination on grounds of socioeconomic status. This tool can be used to tackle issues of misrecognition which particularly affect socioeconomically underprivileged people, who are more severely affected by public actions and omissions in the context of the current pandemic.
Ganty, Sarah, ‘The Veil of the COVID-19 Vaccination Certificates: Ignorance of Poverty, Injustice Towards the Poor’ (2021) 12(Special Issue 2) European Journal of Risk Regulation 343–354 Abstract: Socioeconomic disadvantages are amplified by the COVID-19 pandemic all over the world. Public actions and omissions severely affect the poor, alongside their precarious living, health and working conditions. As we slowly prepare for the aftermath of the pandemic, thanks to the progression of the vaccination, especially in developed countries, certain measures taken in this context, more specifically the ‘vaccination certificates’, are likely particularly to affect the poor, who usually also belong to other vulnerable groups such as ethnic minorities or single parents, and could eventually constitute for them a state of permanent quarantine. In this contribution, I argue that COVID-19 vaccination certificates are a slippery slope towards exclusion and stigmatisation of the poor through a bureaucratic system based on privileges which raises important questions in light of the fundamental rights of the people who reside at society’s margins, struggling to conform to the ‘phantom of normalcy’.
Gao, Grace and Linna Sai, ‘Opposing the Toxic Apartheid: The Painted Veil of the COVID-19 Pandemic, Race and Racism’ (2021) 28(S1) Gender, Work & Organization 183–189 Abstract: This article is a personal reflection of how the coronavirus exposes ‘shocking’ levels of racism against us, and our vulnerability as Chinese women living in Britain. By reflecting our experiences of verbal and physical race-based violence connected to coronavirus, we explore the fluidity of our racial identities, the taken-for-granted racial stereotypes and white privilege, and everyday racism in the UK. Can the vulnerable use vulnerability as an agent to shift the moment of helplessness? We contribute to the uncomfortable yet important debate on racism against Chinese women living in the UK through voicing up our embodied vulnerability as invisible and disempowered subjects to this viral anti-Chinese racism. This is a form of resistance where we care for the racialized and marginalized others. In doing so, we lift the painted veil of the pandemic, race and racism to collectively combat racial inequalities.
García, Helena Alviar, ‘The Interaction of Laws Enabling Gender Equality with Other Legal Regimes: Limiting Progress in Times of Crisis’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 200 Abstract: The chapter analyses women’s precarious access to work before and during the Covid-19 crisis. It explores gendered access to work in one of the most important sectors of the Colombian economy: mining. Along with the economic challenges that Colombian women faced before Covid-19, the legal tools available to attack diverse sources of inequality were superficial, lacked sufficient public resources, and demanded very little from the private sector. Therefore, once faced with a crisis of the magnitude of the pandemic, legal instruments remained weak and insufficient. As women’s access to mining jobs illustrates, existing legal and institutional problems invite us to move beyond promises of equality law alone and focus instead on the assignment of public resources, the strength of institutions designed to deploy and distribute those resources across gender lines, and the use of policies targeted towards women in the informal sector.
Gatter, Robert and Seema Mohapatra, ‘COVID-19 and the Conundrum of Mask Requirements’ (2020) 77(1) Washington and Lee Law Review Online 17–30 Abstract: As states begin to loosen their COVID-19 restrictions, public debate is underway about what public health measures are appropriate. Many states have some form of mask-wearing orders to prevent the spread of COVID-19 infection. Public health guidance from the Centers for Disease Control and Prevention and the World Health Organization has conflicted. From a public health point of view, it is not clear what the right answer is. In the absence of directives, individuals are also making their own choices about mask use. At a time when public health measures, like shelter-in-place orders and social distancing, are being used to stop the spread of coronavirus, wearing masks can be seen as a form of solidarity and desire to not infect others. Similarly, not wearing a mask can also be a political statement of sorts. Additionally, black men wearing masks have reported being asked to leave stores and fearing for their own safety. This essay provides an overview of the legal and policy landscape and focuses on the potential for policing against African Americans when mask mandates are in place. Despite the public health benefits of mask usage, due to mask mandates likely being enforced discriminatorily, we advise caution against mask mandates. Rather, we suggest ways to support mask use, such as normalizing their use via advertising and media buy-in.
Gaynor, Tia Sherèe and Meghan E Wilson, ‘Social Vulnerability and Equity: The Disproportionate Impact of COVID-19’ (2020) 80(5) Public Administration Review 832–838 Abstract: As the architect of racial disparity, racism shapes the vulnerability of communities. Socially vulnerable communities are less resilient in their ability to respond to and recover from natural and man-made disasters when compared to resourced communities. This essay argues that racism exposes existing practices and structures in public administration that, along with the effects of COVID-19, have led to disproportionate infection and death rates of Black people. Using the Centers for Disease Control’s Social Vulnerability Index (SVI) authors analyze the ways Black bodies occupy the most vulnerable communities, making them bear the brunt of COVID-19’s impact. Findings suggest that existing disparities exacerbate COVID-19 outcomes for Black people. Targeted universalism is offered as an administrative framework to meet the needs of all people impacted by COVID-19. This article is protected by copyright. All rights reserved.
Gaze, Beth, ‘Responding to Exponential Inequalities in Australia: Beyond the Limits of Equality and Discrimination Law’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 183 Abstract: This chapter discusses the Covid-19 pandemic in Australia and the effects on equity of the pandemic and the government response. Vulnerable groups such as the elderly, and low paid, precarious workers and the people they cared for were the most affected and exposed to risk. The pandemic’s impact on already disadvantaged groups was partially ameliorated by the government’s public health response, although selective government responses left many vulnerable groups inadequately protected. Public health is not adequately dealt with in the equality and discrimination laws. The chapter argues for dual reforms: first to fill the gaps in Australia’s anti-discrimination laws, and secondly, more broadly, to adopt an approach that recognizes universal vulnerability to social, economic, and health risks, where government’s role includes providing basic protection for everyone regardless of protected attributes.
Gee, Gilbert C, Marguerite J Ro and Anne W Rimoin, ‘Seven Reasons to Care About Racism and COVID-19 and Seven Things to Do to Stop It’ (2020) 110(7) American Journal of Public Health 954–955 Abstract: As the architect of racial disparity, racism shapes the vulnerability of communities. Socially vulnerable communities are less resilient in their ability to respond to and recover from natural and man-made disasters when compared to resourced communities. This essay argues that racism exposes existing practices and structures in public administration that, along with the effects of COVID-19, have led to disproportionate infection and death rates of Black people. Using the Centers for Disease Control’s Social Vulnerability Index (SVI) authors analyze the ways Black bodies occupy the most vulnerable communities, making them bear the brunt of COVID-19’s impact. Findings suggest that existing disparities exacerbate COVID-19 outcomes for Black people. Targeted universalism is offered as an administrative framework to meet the needs of all people impacted by COVID-19.
Germain, Sabrina and Adrienne Yong (eds), Beyond the Virus: Multidisciplinary and International Perspectives on Inequalities Raised by COVID-19 (Bristol University Press, forthcoming 2024) Link to book page on publisher website Book summary: Stark social inequalities have been revealed and exacerbated by the COVID-19 pandemic. This book explores these inequalities through three thematic strands: power and governance, gender, and marginalized communities. Through its examination, the book uncovers how unequal the pandemic truly is.
Selected Contents:
- 1. Beyond Liberty: A Republican Perspective on COVID-19 Restrictions and the Politics of Freedom - Gwilym David Blunt
- 2. Beyond Authority and Governance in Israel during the COVID-19 Pandemic: A Crumbling of Solidarity and the Rise of Social Inequalities - Roy Gilbar and Nili Karako-Eyal
- 3. Mitigating Social Inequities in Quebec: Governance Law to the Rescue? - Marie-Ève Couture-Ménard et al
- 6. Beyond Privacy: South Korea’s Digital Technology-led Policy on COVID-19 and Its Impact on Human Rights Buhm-Suk Baek
- 7. Business as Usual: Inequality and Health Litigation during the COVID-19 Pandemic in Brazil - Natalia Pires de Vasconcelos
- 8. Beyond the Rhetoric of Essentiality: Canada’s Neoliberal Migrant Worker Policy during the COVID-19 Pandemic - Y.Y. Brandon Chen
Abstract: Our commentary aims to show that the COVID-19 pandemic has amplified existing barriers to healthcare in England for ethnic minority and migrant women. We expose how the pandemic has affected the allocation of healthcare resources leading to the prioritisation of COVID-19 patients and suspending the equal access to healthcare services approach. We argue that we must look beyond this disruption in provision by examining existing barriers to access that have been amplified by the pandemic in order to understand the poorer health outcomes for women in ethnic minority and migrant communities. The reflection focuses on racialised medical perceptions, gendered cultural norms including information barriers and stigma, and specific legal barriers.
Gezici, Armagan and Ozge Ozay, ‘How Race and Gender Shape COVID-19 Unemployment Probability’ (SSRN Scholarly Paper No ID 3675022, 16 July 2020) Abstract: Using the April 2020 Current Population Survey (CPS) micro dataset, we explore the racialized and gendered effects of the COVID-19 pandemic on the probability of being unemployed. The distribution of job losses from COVID-19 for women and men or for different racial/ethnic categories has been studied in the recent literature. We contribute to this literature by providing the first intersectional analysis of unemployment under COVID-19, where we examine the differences in the likelihood of unemployment across groups of White men, White women, Black men, Black women, Hispanic men, and Hispanic women. Controlling for individual characteristics such as education and age, as well as industry and occupation effects, we show that women of all three racial/ethnic categories are more likely to be unemployed compared to men, yet there are substantial differences across these groups based on different unemployment measures. Hispanic women have the highest likelihood of being unemployed, followed by Black women, who are still more likely to be unemployed than White women. We also examine if the ability to work from home has benefited any particular group in terms of lowering their likelihood of unemployment during the pandemic. We find that in industries with a high degree of teleworkable jobs, White women, Black men, and Hispanic men are no longer more likely to be unemployed relative to White men. However, Black women and Hispanic Women still experience a significantly higher probability of losing their jobs compared to White men even if they are employed in industries with highly teleworkable jobs. As we control for both individual and aggregate factors, our results suggest that these differences are not simply the result of the overrepresentation of women of color in certain industries and occupations; rather, unobservable factors such as discrimination could be at work.
Giannoulopoulos, Dimitrios, ‘The Eurosceptic Right and (Our) Human Rights: The Threat to the Human Rights Act and the European Convention on Human Rights Is Alive and Well’ (2020) 2020(3) European Human Rights Law Review 225–242 Abstract: The Conservative party’s policy on the Human Rights Act (HRA) and the European Convention on Human Rights (ECHR) has, in recent years, mutated from direct political aggression (with the pledge to repeal the Act in the 2015 manifesto) to a strategy of creating ambiguity and chipping away at its democratic legitimacy (with the 2017 and 2019 manifestos). In the latest development in the saga of UK hostility towards the ECHR and the HRA, Britain has refused to commit to the ECHR as an essential element in any future partnership with the EU. This article examines the significance of this development, deducing from it that the Eurosceptic right in the UK quite openly spies another chance to fulfil its long-held ambition of getting rid of European human rights, having identified Strasbourg as the next target in the project to ‘take back control’. The article also contends that the magnitude of the risk that the HRA and ECHR are facing in the UK post Brexit cannot be fully grasped absent an analysis of how deep a Eurosceptic, anti-human rights, executive sovereignty-centred ideology now runs within the governing party. The article undertakes such analysis with reference to some of the Eurosceptic, anti-human rights ideologues in the Conservative party. It concludes by bringing into focus the potential impact of two external developments — the Covid-19 crisis, and the election of Sir Keir Starmer as leader of the opposition — upon the future of the HRA and the ECHR in the UK.
Gilchrist, Heidi, ‘“Act Normal or Leave”: When Law and Culture Collide’ [2020] Columbia Journal of European Law (forthcoming)_ _Abstract: ‘Act normal or leave’ wrote the Prime Minister of the Netherlands before the 2017 elections in an open letter published on-line and in full-page newspaper advertisements. This article examines the idea of legislating ‘normal’ and what this means in a diverse world. I specifically explore laws that criminalize dress in Europe - burqa bans that can even carry jail time for women who cover their face in public. I look at these laws as forced assimilation and as simply a ‘Muslim ban.’ Not only is forced assimilation ineffective, it is a national security threat. In upholding and justifying these laws, I question whether the European Court of Human Rights has created a dangerous new right of the majority not to be offended. Although I argue against these criminal laws, I also consider the issue of what duty to integrate newcomers do have to a host country where they are living and ways in which pop culture can help this integration take place. I then analogize local laws in the United States that criminalize ‘saggy pants.’ In Louisiana, a young man died after being chased by police for wearing saggy pants. Although obvious differences, these laws share the flaw of using the force of law against a minority group by criminalizing dress. The COVID-19 pandemic and recent laws in Europe requiring face masks, but still criminalizing burqas, highlight the injustice.
Goldmann, Matthias, ‘Human Rights and Democracy in Economic Policy Reform: The European COVID-19 Response under Scrutiny’ (2020) 24(9) The International Journal of Human Rights 1290–1310 Abstract: This article argues that the impact of economic policy reforms on democratic institutions might compromise the enjoyment of human rights, especially economic, social, and cultural rights (ESC rights). This impact is twofold: First, economic reform policies driven by international and supranational institutions compromise democratic self-determination. Second, economic reform policies driven by the need to reduce public expenditure might put marginalised groups at risk and hamper their democratic participation. Since the realisation of ESC rights requires a framework for legitimate redistributive decisions, any such impairment of democratic institutions poses a risk to the realisation of ESC rights. Courts are unlikely to fully compensate for this risk. The Guiding Principles on Human Rights Impact Assessments of Economic Reforms (the Guiding Principles) devise a way for jointly strengthening human rights and democracy. Crucially, they urge states to subject economic policy reforms to democratic control. Human rights impact assessments may empower the public sphere and shift economic policy reforms from the Arcanum of high-level international negotiations back to democratic processes. Moreover, the Guiding Principles oblige states to design comprehensive and participatory economic policy reforms. The article shows the potential of the Guiding Principles by probing the European Union’s response to COVID-19 and suggests improvements.
Gombo, Putu Daniel, ‘Minol (Alcoholic Beverage) Bill in the Time of the Covid-19 Pandemic in Perspective Law and HAM’ (2021) 3(1) Ganesha Law Review 68–78 Jurisdiction: Indonesia
Abstract: This study aims to analyze the Covid-19 pandemic Minol (Alcoholic Drinks) Prohibition Bill from a legal and human rights perspective and review the draft Law on the Prohibition of Minol (Alcoholic Drinks). This research is a research that uses normative legal research methods using the invitation approach (statue approach). This normative study was conducted by collecting primary, secondary and tresier legal materials. The material collected is then arranged systematically and analyzed using descriptive qualitative methods. The results of this study indicate that the existence of the Bill or Bill on the Prohibition of Minol (Alcoholic Drinks) is one of the things that threatens legal human rights (the right to legal equality) for alcoholic drink lovers and some residents who do not have a source of water that makes drinks. alcoholic as a water appearance. The Bill or Draft Bill on the Prohibition of Minol (Alcoholic Drinks), which is being drafted in the discussion at the House of Representatives, has triggered a trigger for crime in Indonesia.
Gomez-Velez, Natalie, ‘Reimagining Public Education Equity after COVID-19: Will Public Voices from New York’s Epicenter Be Heard Over the Siren Song of Billionaires?’ (2021) Fordham Urban Law Journal (forthcoming) Abstract: This Article discusses how New York City public schools planned to reopen in the fall of 2020, given the COVID-19 crisis, and what educators and elected leaders charged with school governance consider when closing and reopening schools to support public health and address and alleviate the stark inequities the pandemic exposed and exacerbated. This Article also explores who should decide the terms and, moreover, what theories and methods of leadership and governance might best respond to the stark social and educational inequities that the pandemic revealed and worsened.
Goodwin, Michele, ‘Women on the Frontlines’ (2021) 106 Cornell Law Review (forthcoming) Abstract: This Article takes aim at the troubling and persistent disempowerment and invisibility of women generally, and particularly marginalized women of color even one hundred years after the ratification of the Nineteenth Amendment. It observes how the persistence of sexism, toxically combined with racism, impedes full political, economic, and social personhood of women and girls in society, sometimes to deadly effect. On the centennial anniversary of the Nineteenth Amendment, it speculates reasons for women’s labor being undervalued, even while on the frontlines of service to their families, employers, and our nation. It examines how women’s invisibility and sacrifice are particularly striking during the 2020 pandemic—a public health crisis so severe that nations besieged by the novel coronavirus or COVID-19 closed their borders, issued shelter-in-place orders, or imposed quarantines.In the United States, COVID-19 exposes preexisting institutional and infrastructural social problems, laid bare by a suffocating, debilitating virus. Racism, sexism, and xenophobia are the preexisting social conditions that further exacerbate harms manifested by the disease. Written during the heat of a pandemic, this Article closely examines the unique ways in which centuries of stereotypes and stigma further undermine women and girls as laborers during the 2020 pandemic and as patients. Meanwhile, their suffering is obscured in news media and not sufficiently accounted for in political spheres.
Gordon, Jeffrey, ‘Protest Before and During a Pandemic’ (2022) 50(4) Federal Law Review 421–448 [accepted manuscript version available on SSRN] Abstract: Liberal democracies have struggled recently with protecting freedom of speech and assembly during the COVID-19 pandemic. This is an old, general problem in new, specific guise. In Australia, the Supreme Court of New South Wales has been exercising a statutory jurisdiction to authorise or prohibit proposed public assemblies for 40 years. This article offers the first sustained analysis of the Court’s jurisprudence. After describing the operation of the statutory permit scheme and systematising the case law, this article critiques the Court’s jurisprudence from the perspective of free speech and freedom of assembly. It then argues that there is a puzzle at the heart of the legislative scheme: the conferral of a wide discretion the exercise of which produces a narrow legal order. This puzzle suggests that the legal effect of an authorising or prohibiting order does not exhaust its broader social significance.
Goschke, Alaina, ‘Virtual Learning in a Pandemic and Its Effects on Lower-Income Students: How the Education Gap Is Widening Beyond Repair’ (2022) 19(1) Indiana Health Law Review 157–189 Extract from Introduction: Section II of this Note discusses the history of children in poverty in the United States and how socioeconomic status effects the quality of education for low-income students. It also addresses how the education gap among low-income and affluent students has been deepened in recent years due to the ‘homework gap’ and how children in poverty and education have been addressed at a national level, with the enactment of the National School Lunch Act. Section III of this Note offers an analysis of how COVID-19 has widened the education gap beyond repair with the emergence of virtual learning, arguing that low-income students, and even parents, were in dire need to return to in-person learning. Additionally, this section analyzes various cities and states in the United States and their handling of education during the pandemic compared to that of other countries, particularly Germany, Spain, and Switzerland- asserting that the United States took a much more detrimental approach.
Gostin, Lawrence O and Eric Friedman, ‘Imagining Global Health with Justice: Transformative Ideas for Health and Wellbeing While Leaving No One Behind’ (2020) 108(6) Georgetown Law Journal 1535–1606 Abstract: The disproportionate impact of COVID-19 on communities of color in the United States and immense vulnerabilities in lower-income countries has revealed a global health reality that is often overshadowed by decades of progress in overall global health, with new lows in child and maternal deaths every year, more people with HIV receiving access to lifesaving anti-retroviral therapy, and rising life expectancies. That reality is one of vast national and global inequalities, with the lived experiences of members of marginalized populations far removed from laudatory health headlines. Here, we propose an ambitious agenda to bridge the gap between progress in global health and the realities of vast swaths of the world’s people. These proposals could comprise part of a new post-COVID-19 global health architecture to prepare the world for the next pandemic and protect even the poorest people in the poorest countries. We offer three ideas that, collectively, would span from international law to domestic law and policy to grassroots empowerment: a Framework Convention on Global Health, health equity programs of action, and a Right to Health Capacity Fund.A Framework Convention on Global Health would be a global treaty based in the right to health and aimed at national and global health equity, creating a missing regime of accountability for the right to health. It would take the right to health to the next level, bringing specificity to presently vague human rights standards and providing concrete tools to achieve them. Health equity programs of action would be systemic, systematic, and inclusive approaches to address health inequities that each marginalized population experiences, across the determinants of health. And a Right to Health Capacity Fund would empower right to health advocacy and advance equity, accountability, and participation by providing grants to civil society organizations advocating for the right to health and by supporting accountability and participation mechanisms. If brought to fruition, these proposals, which would interact with and reinforce with one another, would have a transformative impact on global health, greatly reducing health inequities – leaving no one behind in health in both ordinary and extraordinary times.
Gostin, Lawrence O and Eric A Friedman, ‘Health Inequalities’ (2020) 50(4) Hastings Center Report 6–8 Abstract: Health inequalities are embedded in a complex array of social, political, and economic inequalities. Responding to health inequalities will require systematic action targeting all the underlying (‘upstream’) social determinants that powerfully affect health and well-being. Systemic inequalities are a major reason for the rise of modern populism that has deeply divided polities and infected politics, perhaps nowhere more so than in the United States. Concerted action to mitigate shocking levels of inequality could be a powerful antidote to nationalist populism. A basic yet critical start to addressing health inequalities is to recognize them, which demands improving data collection and analysis. Certainly, global indicators show vast progress in reducing poverty and extending life. Yet aggregate health data mask a deeper reality: health gains have disproportionately benefited the well-off, leaving the poor and middle-class behind.
Gostin, Lawrence O, Eric Friedman and Sarah Wetter, ‘Responding to COVID‐19: How to Navigate a Public Health Emergency Legally and Ethically’ (SSRN Scholarly Paper No ID 3579094, 26 March 2020) Abstract: Widespread social separation is rapidly becoming the norm, including closure of schools and universities, tele-commuting to work, bans on large gatherings, and millions of people isolated in their homes or make-shift facilities. Bans on international travel are already pervasive. Domestic travel restrictions are exceedingly rare, but now within the realm of possibility. Officials are even discussing cordon sanitaires (guarded areas where people may not enter or leave), popularly described as ‘lockdowns’ or mass quarantines. When the health system becomes stretched beyond capacity, how can we ethically allocate scarce health goods and services? How can we ensure that marginalized populations can access the care they need? What ethical duties do we owe to vulnerable people separated from their families and communities? And how do we ethically and legally balance public health with civil liberties?
Gostin, Lawrence O and James G Hodge, ‘US Emergency Legal Responses to Novel Coronavirus: Balancing Public Health and Civil Liberties’ (2020) 323(12) Journal of the American Medical Association (JAMA) 1131–1132 Abstract: With increasing numbers of cases of coronavirus disease 2019 (COVID-19) globally and in the United States, Health and Human Services (HHS) Secretary Alex Azar declared a national public health emergency on January 31. The emergency declaration of the HHS authorizes additional resources, enhanced federal powers, interjurisdictional coordination, and waivers of specific regulations. State and local public health emergency declarations are also likely. During crises, government has a special responsibility to thoughtfully balance public health protections and civil liberties.
Gostin, Lawrence O, Safura Abdool Karim and Benjamin Mason Meier, ‘Facilitating Access to a COVID-19 Vaccine through Global Health Law’ (2020) 48(3) The Journal of Law, Medicine & Ethics 622–626
Goutte, Stephane, Thomas Porcher and Thomas Péran, ‘Social Inequalities and Vulnerability of Population Facing the COVID-19: The Case of Seine-Saint-Denis in Ile-De-France’ (SSRN Scholarly Paper No ID 3605881, 20 May 2020) Abstract: The vast majority of research focuses on the individual factors leading to coronavirus mortality. Numerous studies have shown that the age of the population is the dominant factor explaining mortality. Other more recent work has added gender, comorbidity, ethnicity and obesity. Based on the most populous and dense region of France — Ile-d-de-France, grouping 8 heterogeneous departments in terms of wealth — our study seeks to identify whether economic and financial or structural factors related to housing can explain a faster circulation of the virus during social distancing like lockdown, and therefore lead to excess mortality. We show that agglomerations with higher precariousness indicators (unemployment benefit income, poverty rate, social minima in income, little or no graduate in the workforce) and less suitable housing (potentially unworthy housing, household size, overcrowded housing) are more at risk, including if their population is younger. Our study therefore provides political leaders with a number of indications allowing them to take effective measures in the event of a second wave of COVID-19 or forthcoming coronavirus pandemics.
Grace, Jamie, ‘UK Human Rights Cases in the Time of COVID-19’ (SSRN Scholarly Paper No ID 3745960, 6 January 2021) Abstract: Judicial review claims throughout the 2020 pandemic phase have highlighted both the social justice and the civil liberties issues with the UK government response to the impact and seriousness of COVID-19. These legal claims have been based around Human Rights Act grounds, and sometimes on wider international human rights law instruments, and also on traditional common law grounds of review; such as irrationality, failure to consult, and other types of illegality ground. The COVID-19 pandemic has been an exercise in exploring the multitude of ways in which drastic public health policy can affect human rights even as it entails those legislative measures that are taken to protect us from a virulent disease, with all-too-often fatal consequences for those who are infected. As shown in the important Court of Appeal judgment in the ‘lockdown’ case of Dolan, discussed in this paper, rights under the European Convention on Human Rights (1950), in taking effect through the Human Rights Act 1998, work on the basis of a variety of structures and degrees of importance and protection, depending on the rights concerned - and the range of rights at stake under the ECHR, through the coronavirus pandemic, has been very great indeed. However, judicial consideration of key cases to date, such as Dolan, has highlighted the latitude given to executive discretion used in dealing with the public health crisis of the pandemic, as it has affected the UK.
Graham, Jessica R and Kyle J Morgan, ‘God, Guns, and Hair Salons: Public Perceptions of Rights and Liberties During the COVID-19 Pandemic’ (2022) 125(1) West Virginia Law Review 87–122 Abstract: In response to the COVID-19 pandemic, elected officials across the United States took efforts to slow the spread of the virus. Some of these efforts raised constitutional questions about the ability of the government to curtail rights during a crisis. This project makes use of an original dataset—letters to the editor submitted to 33 of the nation’s largest newspapers during the early months of the pandemic—to analyze public attitudes about these restrictions. Like much of the previous work regarding attitudes towards rights and liberties during a crisis, we find that these concerns are not front of mind to the public. However, our analysis suggests that this did not come from an ambivalence towards rights and liberties, and instead showed a level of nuance and sophistication among the public in how they conceptualized the tension between individual rights and public safety.
Granat, Mirosław, ‘Limitations of Civil Rights During a Period of Introduction of Extraordinary Measures in Poland Vis-à-Vis the Pandemic Caused by the SARS-CoV-2 Virus’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 151–161 Abstract: In Poland, during the COVID-19 pandemic, the legislator did not introduce any extraordinary measures provided for in the 1997 Constitution of Poland, including the state of natural disaster, even though there existed grounds for its introduction. It seems that the legislator’s decision was motivated by the preparations for the presidential elections. During the pandemic, a specific legal regime, referred to as ‘the state of epidemic’, was introduced by means of ordinary statutes and secondary legislation. In a situation where executive bodies regulate the legal position of citizens by means of lower-order legal acts, civil rights are inevitably infringed upon. This situation caused a great deal of social tension. Interference with civil liberties was to some extent limited by judgements of common courts and administrative courts. If the period of the epidemic had any positive side, it was to demonstrate the great value of independent courts and judges for the protection of civil rights.
Greene, Alan, ‘Derogating from the European Convention on Human Rights in Response to the Coronavirus Pandemic: If Not Now, When?’ [2020] (3) European Human Rights Law Review 262–276 Abstract: This article argues in favour of the use of derogations in accordance with Article 15 of the European Convention on Human Rights in response to the COVID-19 pandemic. States of emergency are designed to quarantine exceptional powers to exceptional situations. In contrast, far from protecting human rights, failure to use Article 15 ECHR risks normalising exceptional powers and permanently recalibrating human rights protections downwards.Part 1 outlines why the work of Carl Schmitt has distorted perceptions of states of emergency, emphasising their antagonistic relation to the extant legal order while ignoring their potential to protect legal norms in a time of normalcy by quarantining exceptional powers to exceptional situations. Part 2 then discusses illustrative examples of rights that may be affected by lockdown measures, arguing that ambiguity as to the scope of the right to liberty in Article 5 ECHR should be resolved in favour of as narrow an interpretation of Article 5 as possible, conceptualising lockdown measures as deprivations of liberty falling outside the scope of Article 5.1(e)—deprivation of liberty to prevent the spread of infectious diseases. Part 3 then addresses some of the critiques of derogations, arguing that the real risk of emergency powers is their propensity to become permanent. This risk is amplified by the failure to declare a de jure state of emergency. Ultimately, this article asks: if not now, when?
Grey, Alexandra, ‘Communicative Justice and COVID-19: Australia’s Pandemic Response and International Guidance’ (2023) 45(1) Sydney Law Review 1–43 Abstract: This article is driven by concerns over communicative justice and the author’s earlier research finding that only a patchy framework of laws and policies guides decisionmaking for Australian governments’ multilingual public communications. The article investigates the additional guiding role of international law, specifically the International Covenant on Economic, Social and Cultural Rights and recent commentary by international organisations, alongside an original, empirical case study of Australian governments’ COVID-19 communications. In analysing the Australian case study in light of the international guidance, the article concludes that although Australian COVID-19 communications were available in a relatively high number of languages, they were characterised by inefficiencies and limited community input or strategic planning, leaving Australia arguably falling short of progressively realising its right-to-health obligations.
Griffin, Frank, ‘COVID-19 and the Americans with Disabilities Act: Balancing Fear, Safety, and Risk as America Goes Back to Work’ (2020) 51(2) Seton Hall Law Review 383–430 Abstract: The Americans with Disabilities Act (ADA) will play a significant role in protecting employees and employers while reversing the massive work disruptions caused by COVID-19. The United States’ unemployment rate reflects the magnitude of the disruptions; the unemployment rate reached almost 15%, and over 43 million Americans filed unemployment claims during the first half of 2020. Additionally, millions of Americans began working from home or otherwise altering their work routine to protect themselves and others from spreading the virus. Researchers and the Centers for Disease Control and Prevention (CDC) state that COVID-19 will likely become endemic to the United States’ population. The endemic presence of COVID-19 will create new ongoing legal obligations for employers under the ADA, which are explored in this paper.
Griffin, Frank, ‘COVID-19 and Public Accommodations Under the Americans with Disabilities Act: Getting Americans Safely Back to Restaurants, Theaters, Gyms, and “Normal”’ (2021) 65(2) Saint Louis University Law Journal (forthcoming)_ _Abstract: COVID-19 permanently changed the way places of public accommodation like restaurants, theaters, medical facilities, arenas, gyms, and many other proprietors of mainstream American activities must operate in order to accommodate people with newly-defined, COVID-19-related disabilities under Title III of the Americans with Disabilities Act (ADA). The required modifications will affect all patrons and employees of these establishments. Under the ADA, places of public accommodation are barred from discriminating against people with disabilities in the full and equal enjoyment of goods, services, and facilities. Infectious diseases like tuberculosis and HIV have been categorized as disabilities under the ADA, and COVID-19 is defining new categories of individuals with disabilities (including individuals vulnerable to COVID-19 complications) as revealed in this paper. Places of public accommodation will be required to establish non-discriminatory methods to identify ‘direct threats,’ to modify policies and procedures for COVID-19-related disability groups identified here, and remove structural barriers that discriminate against those same groups. Controversial measures like fever checkpoints, mandatory face masking, and required social distancing are discussed in depth and analyzed in light of the ADA’s requirements.
Grogan, Joelle and Alice Donald, ‘Policy Paper on the Implications of COVID-19: Insights into State Governance and the Rule of Law, Human Rights and Good Governance during the COVID-19 Pandemic’ (RECONNECT Project, European Commission, 30 January 2022) Abstract: This paper outlines the key findings of our research on the impact of the COVID-19 pandemic on law and legal systems throughout the world from the perspective of the rule of law, democracy and human rights. It highlights challenges to pre-existing assumptions about state performance during conditions of a health crisis, and puts forward recommendations based on what can be identified as positive practices both within the European Union (EU) and beyond it. The research is based on the RECONNECT supported ‘Power and the COVID-19 Pandemic’ Symposium, which published comparative analyses on the impact of the pandemic - and government responses to it - on the legal systems in 64 countries worldwide, including 26 EU Member States, and it also draws from further bodies of research to support these findings. This paper provides a preliminary analysis on how the global health crisis has affected the state of democracy and the rule of law. While the findings are drawn from a global study, specific highlight and focus in the formulation of this paper was given to EU Member States and the actions they took over the course of the first 18 months of pandemic. The key findings and policy-oriented recommendations for post-pandemic measures and processes are applicable in a global setting, but are, again, targeted for particular relevance to EU Member States.
Grogan, Joelle and Alicia Ely Yamin, ‘Mapping COVID-19 Legal Responses: A Functionalist Analysis’ in Glenn I Cohen et al (eds), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, 2023) 354–366 Abstract: Drawing on insights from two global symposia that together reported on governmental responses to COVID-19 in 75 countries, this chapter traces two cross-cutting themes that shed greater light on varied impacts on civil liberties and socio-economic rights. First, it considers whether a constitutional state of exception is preferable to using ordinary legislation in managing the impacts on civil liberties of a health and social crisis. The chapter suggests that whether countries are successful in limiting the potential for abuses is best understood in light of socio-historical factors, as well as informal rules that underpin normative and institutional legitimacy, as much as the formal legal vehicles used. Second, the pandemic has exposed the effects of decades of privatization, reduced social spending and rising inequality on health. The chapter suggests that the ways laws structure financing and organization of health systems (public health and care) are as critical to understanding responses as legal recognition of health-related rights. With respect to both civil liberties and health-related rights, the chapter argues that the key to understanding the varied impacts and responses to COVID-19, as well as to consolidating the democratic rule of law post-pandemic, is examining the wider contexts and contingencies that shape how formal legal rules operate.
Grugorovych, Chystokletov Leontii et al, ‘Administrative and Legal Principles of Human Rights Protection in the Conditions of Coronavirus COVID-19 in Ukraine’ (2020) 7(18) Journal of Critical Reviews 1316–1323 Abstract: On the basis of theoretical and practical views, the administrative and legal principles of human rights protection in the context of the coronavirus COVID-19 spread, which is relevant in Ukraine and around the world, have been examined in the article. In this regard, the question of the effectiveness of activities in counteracting the epidemic created in accordance with the new tasks of public authorities and, above all, health authorities, without violating the basic rights of the individual and citizen, is of great importance. It has been proved that the legal analysis of the implementation of international and domestic regulations indicates the unusual views on the problems of human rights provision during the emergency situation that has developed in connection with the fight against the coronavirus COVID-19. Grounded on international and national practice, attention has been drawn to the administrative and legal principles of medical secrecy protection during the epidemic. It has been proven that the disclosure of medical secrets is allowed in cases of suspicion of the patient’s intention to commit a crime, or on the basis of a court decision to disclose information about a dangerous infectious disease. Recommendations aimed at improving measures to protect human and civil rights in the context of counteracting the spread of coronavirus COVID-19 have been given in the article.
Grugorovych, Chystokletov Leontii et al, ‘Conditions for the Protection of Human Rights While Covid-19, Legal Principles and Administrative Barriers in Ukraine’ (2021) 9(2) Information Technology in Industry 867–875 Abstract: The article describes both the administrative and legal principles of human rights protection in the context of the spread of coronavirus, which is used in Ukraine and all over the world on the basis of theoretical and practical methods. In this regard, the question of the efficiency of the measures to lessen the spread of the virus, made in connection with the new tasks of the state authorities and, first of all, health authorities, without violating the basic rights of the people becomes relevant. It is proved that the legal analysis of the ratification of international and domestic regulations indicates extraordinary opinions on the issue of ensuring human rights in an emergency relative to the struggle with the infection. Basing on international and national practice, attention is grabbed to the administrative and legal principles of ensuring medical confidentiality during the pandemic. It is shown that the disclosure of medical secrets is allowed in cases of suspicion of the patient intending to commit a crime or on the basis of a decision of a court. Current work provides guidelines directed at enhancing the measures for protecting peoples’ rights in the situation of suppressing the spread of COVID-19.
Grugorovych, Chystokletov Leontii et al, ‘Human Rights Protection Conditions of Covid-19, Legal Principals and Administrative Barriers in Ukraine’ (2020) 17(7) PalArch’s Journal of Archaeology of Egypt / Egyptology 11198–11210
Gutiérrez Silva, Rodolfo, ‘Judicial Protection of the Right to Health in the Context of Covid-19 and Populism in Brazil’ (2023) 2023(178) Médecine & Droit 13–19 Abstract: The Covid-19 pandemic has brought new challenges to the health systems of Latin America. However, the institutions and mechanisms created by the Social State of Law were unable to confront these new risks. As a result of that, populist governments have used this crisis as an opportunity to deepen the high levels of inequalities through the appropriation of power, wealth and social welfare. Courts have also reacted in order to guarantee the right to health; however, many challenges remain. There is an inversely proportional relationship between the intensity of the crisis and the level of judicial activism on the part of the Courts. Therefore, the more the scale and intensity of the crisis generated by populist governments in the context of pandemics, uncertainty, and inequality the more reflexive, and strategic courts should be and the more protection, defense and monitoring should be promoted in order to ensure the fulfilment of the right to the highest attainable level of health especially of the most vulnerable. On the other hand, the more compliance through the availability of health goods and services, and the more availability of health workers with better salaries, social security and working conditions the more resilient the State will be to face emergencies, which at the same time will promote fewer restrictions on fundamental rights. Courts play a special role in protecting the right to health, especially in the context of emergencies and crises. States must adopt measures by using the maximum available resources in order to protect the right to the highest attainable standard of health.
Habibi, Roojin, Timothy Fish Hodgson and Steven J Hoffman, ‘Failing Forward: How Human Rights Failures in Governments’ COVID-19 Responses Can Inform the Development of International Human Rights Law’ (2022) 24(3) International Community Law Review 209–232 Abstract: Despite the pandemic’s widespread and transnational impact on human rights, both solidarity and human rights have been side-lined in key intergovernmental discussions on global health law reform to date, while conversations about the development of international human rights law seldom consider global health law’s import to the field. This article argues that in spite of states’ apparent reluctance to reconcile and harmonise global health law and international human rights law for fairer and more effective public health emergency preparedness and response, international law experts and practitioners are well-placed to indirectly influence normative development in this direction, drawing on their past successes in clarifying and elaborating upon informal international legal standards. Merging strengths from existing legal frameworks of global health law and international human rights law, such expert standard setting efforts can help reimagine a ‘progressively harmonised’ framework of legal regimes for public health emergency preparedness and response.
Hafetz, Jonathan, ‘State Interventions During the COVID-19 Pandemic: The Case for Mask Mandates Under Human Rights Law’ in Tomas Zima and David N Weisstub (eds), Medical Research Ethics: Challenges in the 21st Century (Springer, 2023) 337–354 Abstract: The coronavirus pandemic has sparked political and legal conflict over medical guidance from public health authorities. Public health measures can raise constitutional questions regarding both the government’s authority and the restriction on individual liberty. Despite initial conflicting advice, public health experts have issued clear and repeated warnings that measures such as social distancing and mask wearing are essential to reducing transmission of the virus. Yet, these measures have prompted significant backlash, often out of proportion to the burden on individuals. The chapter will examine constitutional power of the state to implement public health measures during the pandemic that restrict individual freedom. While the chapter will focus on the United States, it will also consider how international law informs the constitutional analysis. Further, the chapter will examine the value of more coercive forms of enforcement, including monetary sanctions, to foster compliance. Not only are such sanctions lawful, but they are particularly important given the hyperpolarized climate and widespread dissemination of misinformation surrounding the virus.
Hajdini, Bojana and Gentjan Skara, ‘The Right to Freedom of Peaceful Assembly During the Covid-19 Pandemic in the Light of ECHR Standards’ (2022) 6 EU and Comparative Law Issues and Challenges Series (ECLIC) 267–286 Abstract: The COVID-19 crisis confronted states with the challenge of finding an immediate balance between public health measures and the principles of the rule of law. The rapid spread of the virus associated with the severe consequences on human health and life required prompt action, without the necessary scientific evidence to assess the effectiveness of the measures taken. Being faced with such a situation, numerous countries opted for drastic measures, like lock down and the restriction of some fundamental human rights and freedoms. This paper analyses the freedom of peaceful assembly during the COVID-19 pandemic in Albania, addressing the research question of whether and to what extent the response of the Albanian government to the COVID-19 pandemic was in compliance with the European Convention of Human Rights (ECHR). In this attempt, it will briefly introduce the measures taken by the Albanian government in the face of the situation and their impact. Following, it will focus on the recent decision of the Constitutional Court of Albania (D-11/21) in relation to the constitutionality of Order 633/2020 of the Ministry of Health and Social Protection which restricted the right of assembly. It will also analyze the extensively-discussed Order 633/2020 in the light of the ECHR and EU standards. The paper concludes that the measures taken by the Ministry of Health and Social Protection of Albanian lacked clarity on ratio legis and most importantly, information on how these measures would be implemented and to what extent they would restrict human rights.
Hansungule, Zita M et al, ‘Reinforcing Inequality: First 100 Days of South African COVID-19 Policy’ in Aleksandar Stojanović, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) 295–339 Abstract: The aim of this chapter is to examine the effects of the pandemic on socio-economic justice in South Africa, using the consequences of national policy choices prior to, and during, the first 100 days of the outbreak of COVID-19. It traverses issues pertaining to democratic governance and social activism; surveillance and security; economic policy; the labour market; health infrastructure; and the education sector. Based on an analysis of the inequality within the nation entrenched by a neoliberal period, commencing post-independence, it is proposed that the State must depart from a neo-liberal stance and adopt urgent pro-poor and human rights based resource allocation measures to the greatest extent possible to promote, respect, protect and fulfil fundamental human rights. Importantly, this involves reprioritising and streamlining budget considerations across the indigent sectors resulting from the pandemic. Moreover, we propose potential post-pandemic policies within these areas which may assist in guiding South Africa out of its precarious economic position.
Harris, Curtis E, ‘The Conflict of Public Health Law and Civil Liberties Part III: A Myriad of Partially Effective Attempts to Mitigate COVID-19’ [2023] The American Journal of Medicine (advance article, published online 22 September 2023) Abstract: Over the last three years, various nations have responded in remarkably different ways to the enforcement of various Public Health laws, each thought at the time to be effective measures to prevent the spread of the disease. For example, China made violation of mandatory masking and quarantine rules subject to criminal enforcement, while the Netherlands generally had few restrictions on public gatherings. The policies in the United States were a hodgepodge of rules and laws, based largely on the response of each State to the recommendations of the Center for Disease Control (CDC) and the recommendations of the various State Departments of Public Health. Because of the widely variable attempts in many nations to slow the spread of COVID-19, it is now possible to study which measures were or were not effective.
Harris, Jasmine, ‘COVID-19, Disability, and the Rise of a Modern Deinstitutionalization Movement’ (2021) 106 _Cornell Law Review Online (forthcoming)_ Abstract: This Article argues that the current pandemic has raised the stakes (and, in some respects, has cleared the way) for a modern deinstitutionalization movement. The hotbeds of COVID-19 continue to be congregate ‘custodial spaces’ such as nursing homes, prisons/jails, psychiatric hospitals, group homes, and immigration detention centers. This project makes three unique contributions to the emerging legal literature on COVID-19 and equality law. First and descriptively, I show how the design of congregate facilities makes them ill-suited for effective responses to the current pandemic by interrogating early design choices as illustrative of penal intent and control. By juxtaposing the criminalization and institutionalization of disfavored bodies and minds through multiple bodies of law – criminal law, immigration law, and disability laws – a clearer image of structural subordination emerges that unites the often-siloed movements for racial and disability justice. Second, this Article offers a typology of legal interventions designed to address the growing COVID-19 risks to particularly vulnerable groups of people with pre-existing disabilities and older adults with compromised immune systems. This typology allows for a more critical examination of the ability of existing laws to address the systemic inequities of the current public health crisis. Third, with the previous lessons and framework, I join the normative conversation on reform versus abolition of largescale institutions as service providers with particular attention to the role of race and disability.
Harris, Jasmine, ‘The Frailty of Disability Rights’ (2020) 169(1) University of Pennsylvania Law Review Online 29–63 Abstract: Whoever said pandemics were equalizers doesn’t know a thing about disability legal history. It does not take much of a pretext to rollback disability rights. This is because disability rights laws, despite enumerated principles of equal opportunity and civil rights, have always been viewed as ‘nice to do’ and not ‘must do.’ Simply put, society continues to misunderstand disability—what it means, who the category includes or excludes, its relationship to impairment, its valence and construction as an identity. Moral and religious-tinged frames have trumped the perception of disability as a protected class akin to race, gender, or national origin. This view explains Congress’s intent that the Americans with Disabilities Act (ADA) play, not only a remedial role for disability discrimination ex post, but a proactive, ex ante role in upending problematic social norms that treat disability and incapacity as synonymous. Similarly, the perception of disability as a different kind of civil right helps explain the Supreme Court’s interpretive missteps in the infancy and adolescence of the ADA and Congress’s direct reproach and redirection of the Court in the ADA Amendments Act eighteen years later. Inattention to underlying social judgments about disability and the associated discrimination has caught up with us. Progressive legislation in this pandemic without requisite interventions designed to address how people interpret the disability laws offers precarious protections for people with disabilities. The stakes could not be higher in some areas, namely, life or death denials of health care access based on certain disabilities or biased quality of life measures. Disability scholars in recent weeks have largely focused on addressing why COVID-19-related rationing on the categorical basis of disability offends federal (and state) disability antidiscrimination laws as a means to ensure people with disabilities have access to life-saving medical treatment in and out of hospitals. They persuasively apply disability laws and principles of legal and medical ethics to show why disability is an improper consideration in rationing care and resources. The underlying problem with rationing is much larger and is slowly unfolding with respect to access and rights in other areas including education, housing, and employment. That is, it is not just about devaluation of the lives of individuals with disabilities; it is a symptom of something much deeper. The pervasive and negative impacts of this devaluation will endure long after the immediate healthcare issues are tackled. This Essay surfaces a broader, unresolved issue in disability law laid bare by the current pandemic—that disability rights have never had the public understanding and buy in necessary to exercise and interpret disability laws to generate largescale structural reform. As a result, when people with disabilities are seen (and treated) as unequal, deficient, and incapable, legal enforcement of antidiscrimination laws is, at best, seen as optional and aspirational, creating space for the current manifestations of disability discrimination during the coronavirus crisis. These problems are compounded when medical supplies, personnel, and time are limited. Part I describes real time rollbacks of disability rights in the healthcare access context that are currently unfolding, and the legal responses designed to push back on health care rationing. I then shift to a less studied area, access to education, an evolving landscape as students across the country face the realities of distance learning. Part II argues that the current forms of discrimination lay bare the fundamental information deficits about disability that negatively skew legal interpretation and undermine the protections of disability laws. Part III identifies key questions and areas of concern as we contend with the virus and its aftermath.
Harris, Patricia J, Aysha Pamukcu and Efthimios Parasidis, ‘Fostering the Civil Rights of Health’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 252–256 Abstract: Pandemics, like climate disasters, thrive on inequality. COVID-19 is no exception, flourishing where inequality has weakened the social fabric. One of these weaknesses is long-standing racial discrimination, which has produced unjust, racialized disparities in COVID-19 transmission and mortality, and disproportionate economic harm to people of color. Efforts to address these racial disparities have been hindered by a series of governance and advocacy disconnects. Some of these disconnects are wellknown and widely discussed, such as fractures in federal, state, and local leadership that have politicized basic public health measures such as wearing masks. Less-well understood is the society-wide failure to adequately address racial discrimination in all its forms. This has perpetuated the disconnection of public health and civil rights advocacy from one another, and the disconnection of public health and civil rights professionals from anti-discrimination social movements. One promising tool to bridge these disconnects is research on the social determinants of health. Highlighting the ways in which discrimination is a public health problem allows legal advocates to use civil rights law as a health intervention and public health advocates to squarely challenge discrimination. In keeping with the emergent health justice movement, civil rights and public health advocates can amplify their effectiveness by partnering with organizations that fight discrimination. We call this approach ‘the civil rights of health.’ This agenda for action requires (1) integrating civil rights and public health initiatives and (2) fostering three-way partnerships among civil rights, public health, and justice movement leaders (Harris & Pamukcu, 2019).
Harris, Rahadyan Fajar and Natalia Carolina Simanjuntak, ‘Implementation of The Siracusa Principles as Foundations for Reformulation of Social Restriction Policies in Public Health Emergencies’ (2022) 8(1) Unnes Law Journal: Jurnal Hukum Universitas Negeri Semarang 39–64 Abstract: The purpose of this research is to implement the Siracusa Principles as the basis for the formulation and evaluation of public policies that have the potential to restrict people’s rights and freedoms during social restrictions. This research uses the statutory and conceptual approaches of normative juridical methods as instruments of analysis. The findings of this paper include 667 cases of human rights violations released by LBH Jakarta throughout 2020. There are result of the government’s social restriction policy to suppress COVID-19 transmission. Although Article 4 of the International Covenant on Civil and Political Rights (ICCPR) allows governments to restrict certain rights during public emergencies that threaten the life of the nation, states are not allowed to arbitrarily restrict people’s rights and freedoms. Therefore, a mechanism is needed that can set restrictions on public rights in a balanced manner. In this regard, the Siracusa Principles can be implemented as a basis for the formulation of public policy through human rights due diligence and evaluating the government’s compliance in implementing its policies. The novelty of this paper contains comprehensive discourses and recommendations in reformulating social restriction policies that are less friendly to human rights protection through restrictions on rights proportionally and internationally, and allow for the existence of check and balances mechanisms for the course of public policy. Therefore, with the implementation of the Siracusa Principles can be the basis for establishing restrictions on rights proportionally in order to develop policies of social restrictions and health quarantine that are more friendly to human rights protection and can minimize the occurrence of policy formulation errors that have the potential to violate human rights.
Harrop, Sarah, ‘Racial and Ethnic Diversity in the Workplace: A Work in Progress’ (2020) 2040 Estates Gazette 49–50 Abstract: Examines the equality and diversity provisions under the Equality Act 2010 which aim to prevent discrimination in the workplace, focusing on those enabling employers to take positive action. Looks at gender pay gap reporting requirements and the risks to BAME individuals posed by Covid-19.
Haskell, Eric A, ‘Free Speech in the Time of Coronavirus’ (2022) 103(4) Massachusetts Law Review 89–96 Abstract: On March 10, 2020, Gov. Charlie Baker declared a state of emergency pertaining to the spread of the SARS-CoV-2 virus (‘COVID-19’ or simply ‘the coronavirus’). That declaration, which was issued pursuant to both the commonwealth’s Civil Defense Act and its Public Health Act, in turn, empowered the governor to issue extraordinary executive orders ‘necessary or expedient for meeting said state of emergency.’ Before rescinding the emergency declaration on June 15, 2021, Baker issued some 69 extraordinary orders in response to the coronavirus, on topics ranging from the mundane to the sort rarely seen outside of wartime. Other organs of the state government also made extraordinary responses to the pandemic. Numerous administrative agencies issued coronavirus-related orders as delegated by the governor or pursuant to an independent statutory authority. Attorney General Maura Healey promulgated emergency consumer protection regulations concerning debt collection practices during the pandemic. And the legislature passed extensive legislation in response to the pandemic, including a moratorium on ‘non-essential’ residential evictions. Many of these enactments were challenged in court. Many of those court challenges, in turn, asserted violations of the Free Speech, Assembly or Petition clauses of the First Amendment. This essay reviews those challenges, focusing on what they mean for the issue of First Amendment ‘coverage’ — that is, what activities may be regulated or curtailed by the government without implicating the First Amendment at all.
Health and Human Rights Journal (2020) 22(1)Link to entire issue
- Amon, Joseph J, ‘COVID-19 and Detention: Respecting Human Rights’ 367-370 also put in crim and refugee
- Bohoslavsky, Juan Pablo, ‘COVID-19 Economy vs Human Rights: A Misleading Dichotomy’ 383-385
- Chimowa, Takondwa, Stephen Hall and Bernadette O’Hare, ‘Public Money Creation to Maintain Fundamental Human Rights during the COVID-19 Pandemic’ 395-397
- Forman, Lisa, ‘The Evolution of the Right to Health in the Shadow of COVID-19’ 375-378
- Friedman, Eric A et al, ‘Global Health in the Age of COVID-19: Responsive Health Systems Through a Right to Health Fund’ (2020) 22(1) 199–207 replacement
- Jolivet, R Rima et al, ‘Upholding Rights Under COVID-19: The Respectful Maternity Care Charter’ 391-394
- Matache, Margareta and Jacqueline Bhabha, ‘Anti-Roma Racism is Spiraling during COVID-19 Pandemic’ 379-382
- Somse, Pierre and Patrick M Eba, ‘Lessons from HIV to Guide COVID-19 Responses in the Central African Republic’ 371-374
Abstract: Numerous governments have responded to the COVID-19 pandemic by declaring states of emergency and restricting individual liberties protected by international law. However, many more states have adopted emergency measures than have formally derogated from human rights conventions. This Editorial Comment critically evaluates the existing system of human rights treaty derogations. It analyzes the system’s problems, identifies recent developments that have exacerbated these problems, and proposes a range of reforms in five areas—embeddedness, engagement, information, timing, and scope.
Hellman, Deborah and Kate Nicholson, ‘Rationing and Disability in a State of Crisis’ (Virginia Public Law and Legal Theory Research Paper No 2020–33, 2020) Abstract: The rise in COVID-19 cases is soon to overwhelm health care systems, leading to difficult moral and legal choices about how to ration scarce resources, and, most especially, ventilators. Many states have protocols that address this question. These protocols adopt a fully utilitarian approach, aiming simply to save as many lives as possible. To do so, they prioritize patients who are most likely to benefit from care and set standard benchmarks for how quickly a patient must show improvement to continue ventilation. These protocols and related policies of private health care systems are likely to disadvantage people with disabilities, as a disproportionate number of disabled people have health conditions that will make them less likely to survive or will require them to have more time to show improvement.This (draft) Article examines whether the utilitarian approach, which considers only aggregate harms and benefits, is consistent with The Americans With Disabilities Act, and other discrimination statutes, which pay significant attention to the distribution of harms and benefits. The Article focuses especially on facially-neutral policies that will have the effect of discriminating impermissibly against the disabled. As such, it considers four rationing principles that track those used by states and ultimately argues that none balances equity with utility, as discrimination law demands.
Hemming, Andrew, ‘Will Democratic Freedoms and Human Rights Survive a Second Pandemic in Australia?: A Case Study of the Legal Foundations and Mechanisms of Implementation of Australia’s COVID-19 Response’ (2024) 98(8) Australian Law Journal 578–595 Abstract: This article is a case study of the laws and regulations at both the Commonwealth and State level that were relied upon to uphold Australia’s COVID-19 response, and the behavioural mechanisms used by governments in Australia to implement these regulatory policies. The question will be posed now that borders have been re-opened and normality restored in a ‘we will have to live with COVID-19’ environment, whether the draconian restrictions on democratic freedoms and human rights could reoccur unless Australia changes the manner in which these laws and regulations are imposed by governments and interpreted by the courts, especially given the High Court’s decision in ‘Palmer v Western Australia’. This question is particularly important given the announcement on 21 September 2023 that the Commonwealth Government was setting up a COVID-19 Response Inquiry to identify lessons learned to improve Australia’s preparedness for future pandemics.
Hendl, Tereza, Ryoa Chung and Verina Wild, ‘Pandemic Surveillance and Racialized Subpopulations: Mitigating Vulnerabilities in COVID-19 Apps’ (2020) 17(4) Journal of Bioethical Inquiry 829–834 Abstract: Debates about effective responses to the COVID-19 pandemic have emphasized the paramount importance of digital tracing technology in suppressing the disease. So far, discussions about the ethics of this technology have focused on privacy concerns, efficacy, and uptake. However, important issues regarding power imbalances and vulnerability also warrant attention. As demonstrated in other forms of digital surveillance, vulnerable subpopulations pay a higher price for surveillance measures. There is reason to worry that some types of COVID-19 technology might lead to the employment of disproportionate profiling, policing, and criminalization of marginalized groups. It is, thus, of crucial importance to interrogate vulnerability in COVID-19 apps and ensure that the development, implementation, and data use of this surveillance technology avoids exacerbating vulnerability and the risk of harm to surveilled subpopulations, while maintaining the benefits of data collection across the whole population. This paper outlines the major challenges and a set of values that should be taken into account when implementing disease surveillance technology in the pandemic response.
Hine, Emmie et al, ‘COVID-19 Vaccine Passports: Human Rights and the Need for Pro-Ethical Design’ (SSRN Scholarly Paper ID 3885252, 12 July 2021) Abstract: Since the first case was reported to the World Health Organisation in December 2019, SARS-CoV-2 (COVID-19) has caused social and economic devastation on a scale not seen since World War 2. As the milestone of 2 years of ‘living with the virus’ approaches, Governments and businesses are desperate to develop interventions that can facilitate the reopening of society whilst still protecting public health. As the roll-out of COVID-19 vaccinations has gathered pace worldwide, particularly in wealthier countries, those responsible for developing such interventions have begun to focus on the use of digital ‘COVID-19 Vaccine Passports’, which can be used to prove that an individual has had an approved COVID-19 vaccination (both doses where applicable). Governments hope that Vaccine Passports may be used to facilitate international travel and permit increased domestic liberties, for example allowing people to access public venues, to attend large gatherings, or to return to work without compromising personal safety and public health. ‘Yellow Fever certificates’, required to enter a specific list of countries maintained by the World Health Organisation, provide a precedent for this type of intervention. However, there are concerns that the use of COVID-19 Vaccine Passports could be viewed as a mechanism for introducing a mandatory vaccination policy, and there are also concerns that due to issues related to the unequal global distribution of effective vaccines and ‘the digital divide’ their use could exacerbate inequalities. Therefore, we set out to answer the following questions: a) how should businesses and Governments assess the risks challenging human rights, public health, and digital ethics, which emerge from developing and deploying COVID-19 Vaccine Passports; b) do the implications for human rights, public health, and data ethics vary depending on where and when COVID-19 Vaccine Passports are used; c) what design decisions should businesses make when developing COVID-19 Vaccine Passports to help ensure they respect human rights, and both public health and data ethics; d) what are the rights and powers of the individual to object to, or seek remedy for, the use of COVID-19 Vaccine Passports; and e) how can the risks of inequalities and social division derived from the use of COVID-19 Vaccine Passports be avoided or mitigated? Here we discuss our findings based on a systematised literature review and documentary analysis. We find that in the context of a global public health emergency, COVID-19 status passes are ethically and legally permissible under relevant human rights and international health regulations, provided they are designed, implemented, and used in accordance with the least infringement principle and the value of equality. We then set out 17 concrete recommendations for supranational bodies, national governments, and businesses to help ensure they develop and deploy COVID-19 Vaccine Passports accordingly.
Hodge, James G, Hanna Reinke and Claudia M Reeves, ‘Balancing Religious Freedoms and Public Health Protections During the COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 3619427, 4 June 2020) Abstract: Extraordinary responses to the COVID-19 pandemic are generating substantial debates over the scope and reach of public health powers and religious freedoms. Emergency declarations at every level of government to limit societal impacts of COVID-19 may shift constitutional norms, but do not completely negate rights to free exercise or assemble. Yet, no one has an unmitigated right to harm others in pursuit of their faith. Somewhere between individual religious rights and communal public health objectives lies a legally viable balance. Finding it during the pandemic is controversial. Among the most contentious issues are governments’ temporary orders suspending large religious gatherings to maintain social distances. While many religious leaders have complied, others have vociferously objected. Reaching accord begins with an assessment of legal principles of separation of church and state, especially concerning claims of religious rights to assemble despite unprecedented public health risks.
Hodgson, Timothy Fish, ‘The Unvaccinated: Equality Not Charity in Southern Africa’ (International Commission of Jurists, Briefing Paper, May 2021) Abstract: The paper focuses on the impact of COVID-19 on countries of the Southern African Development Community (SADC), a regional economic community comprising 16 Southern African countries whose goal is to enhance the standard and quality of life of the peoples in the region. Southern African States have individually and collectively failed to provide sufficient and equitable COVID-19 vaccine access to meet their human rights obligations.
Hodgson, Tim Fish and Ian Seiderman, ‘COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the Right to Health (Part 1)’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Introduction: Part 1 addresses the general obligation of States to protect the right to health in the context of COVID-19. We then to turn to that obligation as it relates to the private health sector and private health actors’ responsibilities to respect the right to health.
Hodgson, Tim Fish and Ian Seiderman, ‘COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the Right to Health (Part 2)’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Introduction: Part 1 addresses the general obligation of States to protect the right to health in the context of COVID-19. We then to turn to that obligation as it relates to the private health sector and private health actors’ responsibilities to respect the right to health.
Hoffman, Allison K, ‘How Medicalization of Civil Rights Could Disappoint’ (University of Pennsylvania Law School, Public Law Research Paper No 20–28, 20 August 2020) Abstract: This essay reflects on Craig Konnoth’s recent Article, Medicalization and the New Civil Rights, which is a carefully crafted and thought-provoking description of the refashioning of civil rights claims into medical rights frameworks. He compellingly threads together many intellectual traditions—from antidiscrimination law to disability law to health law—to illustrate the pervasiveness of the phenomenon that he describes and why it might be productive as a tool to advance civil rights. This response, however, offers several reasons why medicalization may not cure all that ails civil rights litigation’s pains and elaborates on the potential risks of overinvesting in medical rights-seeking. It concludes by considering how the COVID-19 pandemic, which has produced a dramatic medical manifestation of social inequities growing out of decades of civil rights deprivation, can illuminate potential benefits and risks of medicalization.
Hoffman, István and Jarosław Kostrubiec, ‘Political Freedoms and Rights in Relation to the COVID-19 Pandemic in Poland and Hungary in a Comparative Legal Perspective’ (2022) 27(2) Białostockie Studia Prawnicze 31–53 Abstract: Th e subject of the article are selected political rights and freedoms guaranteed by the Polish and Hungarian constitutions, which are analysed in the context of possible limitations due to the COVID-19 pandemic. Th e analysis covers the right to vote in elections and referendums, the freedom of expression and opinion, and the freedom of assembly. Th e main aim of the article is to identify similarities and diff erences in the legal solutions adopted in Poland and Hungary in the context of restrictions or threats to political freedoms and rights. As a result of the research carried out, the authors positively verifi ed the hypothesis that Poland and Hungary, although they chose diff erent methodologies to implement the specifi c legal order applicable due to the coronavirus pandemic, namely Hungary has introduced one of the constitutional states of exception, i.e. the state of danger, while Poland did not introduce a state of natural disaster, the formula for sanctioning restrictions on political freedoms and rights with secondary legislation was similar in both countries. Th e authors express the view that continuous eff orts should be made to develop legal institutions that would allow for a balance between the need to preserve political rights and freedoms and the need to make quick decisions in relation to the pandemic and citizens’ right to health. A pandemic should never be an excuse for those in power to restrict political freedoms and rights for longer periods of time, so as not to make these freedoms and rights the next victims of the SARS-CoV–2 virus.
Holcroft-Emmess, Natasha, ‘Communauté Genevoise D’action Syndicale (CGAS) v Switzerland: Proportionate Limitation or (Non-Notified) Derogation? A Chamber Divided Over Covid-19 Pandemic Restrictions’ (SSRN Scholarly Paper No 4642544, 23 November 2023) Abstract: During the Covid-19 pandemic, public gatherings were restricted in Switzerland. Those who participated in a prohibited event became liable to up to three-years’ imprisonment. A workers’ rights association (CGAS) alleged that it was unable to organise a lawful public demonstration during the period of restrictions and this entailed a violation of Article 11 ECHR (freedom of assembly). By a 4:3 majority, a chamber of the ECtHR concluded that the Swiss measures violated Art. 11 ECHR. The case – which narrowly divided the chamber and has since been referred to the Grand Chamber – raises a number of important questions. First, how should measures restricting rights during a pandemic or other emergencies be conceptualised: as limitations, purported derogation measures, or violations of human rights? The classification mattered in CGAS, because Switzerland had not notified the measures under the Convention’s derogation clause: Article 15 ECHR. Second, if (as the majority appears to have concluded) the measures were, in effect, non-notified derogation measures, what were the consequences of their not having been notified under Art. 15(3) ECHR? Did a violation of Art. 11 necessarily follow, or could there have been some other decision by the Court? This question has been left open in prior ECtHR case law. The CGAS case therefore sheds light on a vexed question about the status of Art. 15(3): the requirement to notify derogation measures.
Hong, Seung-Hun, Ha Hwang and Min-Hye Park, ‘Effect of COVID-19 Non-Pharmaceutical Interventions and Threats to Human Rights’ (SSRN Scholarly Paper No ID 3677019, 19 August 2020) Abstract: In response to the COVID-19 pandemic, many governments have implemented non-pharmaceutical interventions (NPIs) to curb rapid virus transmission. A growing concern is that such interventions, aimed at ensuring public safety, may severely restrain fundamental human rights. This paper examines which NPIs are more effective than others in containing COVID-19 with the consideration of their threat to human rights. After classifying NPIs into three categories according to their threat to human rights: the right to freedom of movement, the right to freedom of assembly, and the right to privacy, this paper conducts linear regression analyses on the effectiveness of NPIs in containing COVID-19 over 108 countries. This paper finds that school closure is effective in containing COVID-19 only when it is implemented along with complete contact tracing. We confirm the results of the regression analysis by examining the changes in the cumulated number of confirmed cases and the changes of NPIs in ten selected countries. Our findings imply that to contain COVID-19 effectively and minimize the risk of human rights abuse, governments should consider implementing prudently designed full contact tracing and school closure policies, among others. Other interventions limiting freedom of movement and assembly should be carefully adopted with minimal infringement of human rights.
Hu, Luojia and Bo E Honoré, ‘The Covid-19 Pandemic and Asian American Employment’ (FRB of Chicago Working Paper No 2020–19, 21 September 2020) Abstract: This paper documents that the employment of Asian Americans with no college education has been especially hard hit by the economic crisis associated with the Covid-19 pandemic. This cannot be explained by differences in demographics or in job characteristics. Asian American employment is also harder hit unconditional on education. This suggests that different selection into education levels across ethnic groups alone cannot explain the main results. This pattern does not apply to the 2008 economic crisis. Our findings suggest that this period might be fundamentally different from the previous recession.
Huang, Peter, ‘Anti-Asian American Racism, COVID-19, Racism Contested, Humor, and Empathy’ (2022) 16(3) FIU Law Review 669 Abstract: This Article analyzes the history of anti-Asian American racism. This Article considers how anger, fear, and hatred over COVID-19 fueled the increase of anti-Asian American racism. This Article introduces the phrase, racism contested, to describe an incident where some people view racism as clearly involved, while some people do not. This Article critiques respectability politics for being an ineffective response to racism. This Article proposes how to utilize humor to engage non-violent racism. This Article studies how to achieve DEI (Diversity, Equity, and Inclusion) by Empathy Through Personal Perspective Pivoting (ETPPP).
Huang, Peter H, ‘COVID-19, Anti-Asian Racism, and Anti-Asian American Racism’ (SSRN Scholarly Paper No ID 3664356, 30 July 2020) Abstract: This Essay analyzes how fear, anger, and hatred over COVID-19 fueled anti-Asian racism and anti-Asian American racism. This Essay also critiques respectability politics in response to racism. Finally, this Essay examines utilizing humor to reject anti-Asian American racism.
Hubail, Fatema, ‘In the Shadow of the Law: Bahraini Women’s Realities within the Covid-19 Pandemic’ (2022) 3(2) Amicus Curiae, Series 2 218-250 Abstract: With the emergence of the Covid-19 global pandemic, the questions of gender and sect have been reintroduced in Bahraini media as examples, spectacles and objects of critique. The pandemic does not only carry a health risk, but it has also become a means of social-conditioning, surveillance and the reification of difference for Bahrainis. In the cases of Ania and Fatima, the pandemic was a time that defined key moments in their lives: their ability to name and shame their abusers online. However, as these women bravely shared their stories, they were confronted by social and cultural forces that attempted to silence them. Although these two testimonies are not representative of all women’s experiences in Bahrain, they shed light on the various legal, familial and social structures that affect women’s lived experiences. This research will further explore the legal and social silencing of women’s lived experiences through the lens of the Covid-19 pandemic. This research aspires to carve an academic space that brings some justice to these women, by sharing their experiences in light of the emerging sociopolitical, sociolegal and cultural contexts of their society. In this research, I answer the following questions: (1) to what extent does Law No 19 of 2017 on the Family Law (also known as the Unified Family Law of 2017) perpetuate silencing on the grounds of gender and sect throughout the pandemic in Bahrain? And (2) to what extent has the Covid-19 pandemic amplified the expectations ascribed to women on the grounds of gender and sect in Bahrain? The focus on the Unified Bahraini Family Law of 2017 is vital to understanding the social expectations that frame women’s lived experiences in Bahrain. It complicates the lives of women, as the state imagines unification, but the reality suggests that women are found at the intersection of gender, sect, structures of kin, trauma and, lastly, the sociopolitical implications of the Covid-19 pandemic.
‘Human Rights’ [2020] (July) Public Law 561–563 Abstract: Reviews developments relating to human rights, including: a statement of principles on the treatment of persons deprived of their liberty in the context of the coronavirus pandemic; the inaugural Bonavero Institute of Human Rights Lecture entitled ‘The Democratic Virtues of Human Rights Law’; delegated legislation for the coronavirus ‘lockdown’; the Marmont report, ‘Health Equity in England’; and Equality and Human Rights Commission’s reports.
Hunt, Paul and Sophie Bradwell-Pollak, ‘Access to Vaccines and New Zealand’s Distinctive Response to COVID-19’ (2022) 24(2) Health and Human Rights Journal 215–218 Abstract: When considering equitable access to vaccines, and New Zealand’s general response to the pandemic, it is important to recognize New Zealand’s foundation document, Te Tiriti o Waitangi, which was agreed in 1840 between the Crown and Māori, the Indigenous peoples of New Zealand. Crucially, article 3 of Te Tiriti sets out a commitment to equity. In this viewpoint, we consider how New Zealand’s vaccine rollout drew, to one degree or another, from the country’s distinctive approach to human rights.
Ige, Temitope, ‘Human Rights: A Vaccine for the Pandemic’ (SSRN Scholarly Paper ID 3897424, 1 August 2021) Abstract: After the emergence of a pandemic, the world’s next task of immediate concern is the discovery of a vaccine to tackle the scourge. Before this discovery, it is Human rights that fill the vacuum. It is relevant before, during and after the pandemic. Much more, Human rights cover the field; it makes provision for people’s health without jeopardizing other rights. Using COVID-19 as a reference point, the paper principally considers to how Human rights can mitigate the deadly impact of the pandemic while exposing the inadequacy of the ordinary pandemic restrictive legal response.
Ignovska, Elena, ‘Human Rights and Bioethics During the Covid-19 Pandemic: The International Legal Match Djokovic v. Australia’ in Čović, Ana and Oliver Nikolić (eds), Pravni i Društveni Aspekti Vakcinacije Tokom Pandemije Kovida 19 / Legal And Social Aspects Of Vaccination During The Covid-19 Pandemic (Institute of Comparative Law, 2022) 71-86 *[OPEN ACCESS BOOK]* Abstract: The (in)glorious case of Novak Djokovic posed serious questions to the way societies were dealing with the pandemics, the crucial being: could the right to make informed decisions about one’s body and announce them endanger the public health through the spread of the anti-vaccination idea and not the infectious disease per se? Legal and ethical issues at stake are observed through the prism of: private life (related to the bioethical concept of individual autonomy) and public health (related to the bioethical concepts of beneficence and non-maleficence). However, the author concludes that irrelevant of the assessment of these two, if personal views about own choices are expressed publicly and, as a result, a person is refrained from enjoyment of some human rights, then the legal certainty and the freedom of thought and expression are affected too.
Illangarathne, Raveesha, ‘COVID-19 Pandemic Outbreak and Violation of Human Rights’ (SSRN Scholarly Paper No 4569278, 12 September 2023) Jurisdiction: Sri Lanka
Abstract: Human Rights are standards that identify and protect the dignity of all human beings.They emphasize how human beings survive in the society with others. Moreover, maintainence of healthy relationships with the state and the obligations the state bears toward them are eloborated (Unicef ,2015). The Human Rights Law is responsible to make the governments to fulfill their responsibilities to the human beings. On the other hand, individuals also have the responsibility to use their human rights while respecting the rights of others. At the same time no one has the power in violating the rights of others. Accordingly, this study attempts to elaborate about the violation of human rights along with the imposition of the rules and regulations during the covid-19 pandemic. Subsequently, the findings revealed that human rights have been violated along with the implementation of covid-19 restrictions and prevention measures like curfew impositions.
Iorio, Cristina Lucia Seabra and Vanice Valle, ‘The Legal Vulnerability and Invisibility of the Roma People in Brazil in Times of COVID-19 Pandemic’ (2021) 24(36) JURIS POIESIS 350–356 Abstract: I argue that there is a legal invisibility of Roma people in the Brazilian legal field, as an ethnic minority and vulnerable group. The racial prejudice that the Roma community is subject to seems to have only been recorded in videos and social networks, and has not yet been adjudicated upon by the judiciary. This environment of prejudice and lack of access to fundamental rights has deepened especially in the scenario of the COVID-19 pandemic. As can be seen in a number of reports that end up giving voice to this minority, Roma peoples in Brazil are suffering from repossession suits or even expulsion from their camps by the police, on the basis of a widespread belief that they are dirty and transmitters of the CORONA vírus.
Irawan, Benny Bambang, Suroto and Sri Setiawati, ‘Legal Policy Analysis Of Handling Covid-19 In The Perspective Of Human Rights Protection’ (2022) 3(1) International Journal of Educational Research & Social Sciences 557–566 Abstract: The Indonesian government has issued several regulations for the handling of Corona Virus Disease 2019 (Covid-19), which aims to handle the Covid-19 pandemic in Indonesia can run well and be adhered to by all communities. But the legal order issued by the Government of Indonesia in dealing with Covid-19 and the implementation of physical distancing has not been maximal in protecting the rights of the Indonesian people. To prevent the spread of Covid-19, the government asks people to keep their distance from each other, avoid crowded places such as gathering in houses of worship, markets, malls, and not to conduct events that reason many people such as weddings, meetings, and seminars. Against the steps taken by this government, many people think that it is contrary to human rights. This research method uses normative juridical approach methods with data analysis methods using qualitative data analysis. The results of this study show that government regulation should still pay attention to people’s rights, such as the right to work, health, and so on. Applying the law in an emergency must be acted wisely, not to debate so that people’s rights are ignored. In addition, the role of the community is also needed to remain in compliance with health protocols in a disciplined manner so that the transmission of the Covid-19 virus can be suppressed.
Isaq, Mohammad, ‘Navigating Legal Terrain: The Interplay of Human Rights and Judicial Review Law in the COVID-19 Era’ (2024) 13(2) Leicester Student Law Review 74–88
Istrefi, Remzije, ‘Emergency State Powers and Human Rights’ in Shinya Murase and Suzanne Zhou (eds), Epidemics and International Law (Brill Nijhoff, 2021) 343
Jackman, Martha, ‘Fault Lines: COVID-19, the Charter, and Long-Term Care’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 339 Abstract: COVID-19 has underscored the crucial role of the single-payer health care system in ensuring access to care based on need, consistent with the Canadian Charter of Rights and Freedoms (the Charter) and international human rights guarantees. But significant fault lines were exposed when health authorities across the country concentrated their pandemic readiness efforts on maximizing hospitals’ capacity to deal with the anticipated surge of COVID-19 patients, without considering the potentially disastrous consequences for an already struggling long-term care system. COVID-19 laid bare the reality that barriers to care continue to exist as a function of who patients are and where they are being treated. Focussing on COVID-19 hospital transfer decisions and their impact on the life, liberty, and security of the person and the equality rights of long-term care residents, this chapter argues that governments and health care decision makers in Canada must recognize that access to a comprehensive range of care is a fundamental right, and that human rights–based accountability is urgently needed in the battle against COVID-19, and beyond.
Jain, Neha, ‘Pandemics as Rights-Generators’ (2020) 114(4) American Journal of International Law 677–686 Abstract: While the global pandemic has exposed the fragility of human rights protections, it has also resulted in rights victories for some of the most vulnerable members of society. This Essay examines epistemic, consequentialist, and normative rights reframing efforts that have been mobilized to advocate for and secure human rights during the pandemic through the lens of prisoners’ rights. It argues that these rights seeking strategies hold promise for advancing rights claims of prisoners and other marginalized groups beyond the pandemic.
Jefferies, Regina, Jane McAdam and Sangeetha Pillai, ‘Can We Still Call Australia Home? The Right to Return and the Legality of Australia’s COVID-19 Travel Restrictions’ (2022) Australian Journal of Human Rights (Advance article, published online 24 January 2022) Abstract: In the two years since Australia logged its first COVID-19 case and sealed its borders, thousands of citizens and permanent residents were locked out. Despite having a formal right to return, their ability to come home was hampered by a ‘one size fits all’ approach to hotel quarantine, travel caps linked to state/territory capacity, and a lack of federal facilities. This article examines the legality of Australia’s entry controls in light of international and domestic law. It documents the evolution of Australia’s response from the initial outbreak in China to the 2021 Delta outbreak in India, analysing the (limited) publicly available information as to the rationale for the restrictions. It examines the right to return in Australian domestic law, including whether citizens have a constitutionally protected right of entry. It also analyses the right to enter under international law, evaluating whether Australia’s settings constitute an arbitrary restriction of that right—especially since the drafters of the International Covenant on Civil and Political Rights thought it ‘inconceivable’ that a government would prevent citizens from returning for public health reasons.
Jiang, Jue, ‘A Question of Human Rights or Human Left? The “People’s War against COVID-19” under the “Gridded Management” System in China’ (2021) Journal of Contemporary China (forthcoming) Abstract: The ‘gridded management’ system is officially highlighted as playing a key role in China’s combat against COVID-19. Relying largely on the Maoist ideology of the ‘Mass Line,’ this system appears to effectively mobilize the people at the most grassroots level in the ‘war against COVID-19.’ This article, drawing upon a critical examination of this ‘People’s War’ from a Foucauldian governmentality perspective, discusses the violation of human rights and dignity and argues that the violations are inherent in the binary and utilitarian ideology of the ‘Mass Line’ deployed by the mobilizational party. As this methodology is embedded in China’s social management agenda raised by Xi Jinping in 2017, this article sheds crucial light on the ‘Chinese vision of human rights’ and China’s governance model today.
Jizeng, Fan and Yuhong Wang, ‘Precautionary Proportionality Principle as An Instrumental Preventive Measure from the COVID-19: Can European Human Rights Survive in the State of Public Health Emergency?’ (2021) 21(1) Przegląd Europejski 117-143 (pre-print) Abstract: The authors believe that the C. Schmitt’s notion of unconstraint sovereignty is not flawless. Both A. Dicey’s theory of British constitutional law and the international human rights instruments have required the measures of the derogation of human rights must be given in accordance with proportionality principle. However, these normative requirements have hardly been applied to the judicial scrutiny by the two supranational courts in Europe. Correspondingly, some European public authorities favour the more radical precautionary principle. Although this principle is more effective in suppressing the new coronavirus, it is associated with numerous side effects. Thus, the authors propose in this article an innovative concept of precautionary proportionality principle.
Johnson, Eddie Bernice and Lawrence J Trautman, ‘The Demographics of Death: An Early Look at COVID-19, Cultural and Racial Bias in America’ _Hastings Constitutional Law Quarterly (Forthcoming)_ Abstract: During late 2019, reports emerge that a mysterious coronavirus is resulting in high contagion and many deaths in Wuhan, China. In just a few weeks, cases are rising quickly in Seattle, have spread to California, and the first case is reported in New York (from Iran) on March 1, 2020. Apparent that necessary widespread testing efforts for the virus have been botched by the U.S. government, reports emerge that: well-known celebrities, Washington politicians, and even entire N.B.A. teams were somehow finding available coronavirus testing, while the very scarce testing is denied to first responders and millions of other Americans. As the months pass it is abundantly clear that less wealthy Americans have far fewer options amid the new normal of shelter-in-place orders, school closings, and shuttered businesses. The poor and other certain populations may be genetically pre-disposed to heart disease and diabetic issues. Poverty dictates cheaper diets that may be high in carbohydrates (macaroni and cheese, pasta, etc.) and thus more likely to result in poor nutrition. COIVD-19 lays bare the fundamental racism in U.S. culture and public policy. The virus does not care about personal wealth, religion, or race. Enlightened self- interest dictates that we take care of the least fortunate among us. From a global perspective, corona virus is an issue that impacts and threatens us all. Census data reveals that sixty (60) percent of Black Americans (42.5 million) live in just 10 U.S. States. Can the super concentration of Black Americans in cities be a culprit in the disease ratios? What about hyper-exposure to fast-food and sugary drinks which is genuinely attributable to obesity and diabetes in old-age? Within a very few months, words such as apocalyptic are used to describe the 2020 American pandemic experience. By August 2020, it is obvious that the U.S. caseload leads the world with over 5 million infected.
Jones, Nicky, ‘Law and the International Community: Looking Into the (Post-COVID-19) Future’ (Proceedings of the 3rd International Conference on Indonesian Legal Studies, ICILS 2020, 1 July 2020, Semarang, Indonesia) 2021 Jurisdiction: Australia
Abstract: This article aims to discuss the global legal challenges in the post-COVID 19. One of the most visible challenges is the human rights challenge created by the COVID-19 restrictions has been the focus of serious debate in Australia. In the state of Queensland, legislation enacted on 18 March 2020 empowers the Chief Health Officer ('CHO’) and other emergency officers to implement social distancing measures, including arranging mass gatherings, isolating or quarantining people suspected or known to have been exposed to COVID -19. These restrictions affect movement and gatherings across communities in contexts such as schools, higher education, hospital, court proceedings, family gatherings, sporting and community events, public entertainment, tourism, travel and vacations. There are many reasons why governments limit the human rights of its citizens. The challenge for society and government is to ensure that any restrictions on human rights are reasonable and justifiable.
Joseph, Sarah, ‘International Human Rights Law and the Response to the Covid-19 Pandemic’ (2020) 11(2) Journal of International Humanitarian Legal Studies 249–269 Abstract: States have duties under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights and Article 6 of the International Covenant on Civil and Political Rights to prevent, control and treat covid-19. Implementation of these three obligations is analysed, taking account of countervailing human rights considerations. Regarding prevention, lockdowns designed to stop the spread of the virus are examined. Control measures are then discussed, namely transparency measures, quarantine, testing and tracing. The human rights compatibility of treatment measures, namely the provision of adequate medical and hospital care (or the failure to do so), are then examined. Finally, derogations from human rights treaties in times of pubic emergency are discussed.
Joseph, Sarah and Gregory J Dore, ‘Vaccine Apartheid: A Human Rights Analysis of COVID-19 Vaccine Inequity’ (SSRN Scholarly Paper ID 3876848, 30 June 2021) Abstract: In this paper, we analyse vaccine inequity under international human rights law. In Part 1, we introduce the currently available COVID-19 vaccines, before discussing causes and consequences of vaccine inequity, as well as current efforts to expand global vaccine access. In Part 2, we turn to explain the relevant, including extraterritorial, obligations of states regarding human rights to health, life, and equitable access to the benefits of technology. In light of those obligations, we assess the human rights compatibility of the following circumstances which hinder and facilitate vaccine access: embargoes on vaccines; national procurement and vaccine hoarding; and vaccine aid. Part 2 concludes with a short discussion of the possible human rights responsibilities of the entities that own the vaccines, multinational pharmaceutical companies. In Part 3, we analyse proposals to waive global intellectual property rights in respect of COVID-19 vaccines, and whether assent to such a waiver is demanded under international human rights law. Part 4 concludes this paper.
Jovičić, Sanja, ‘COVID-19 Restrictions on Human Rights in the Light of the Case-Law of the European Court of Human Rights’ (2021) 21(4) ERA Forum 545–560 Abstract: The aim of this article is to examine the restrictions imposed by European States on individual human rights during the COVID-19 pandemic in the light of the European Convention of Human Rights and Fundamental Freedoms. After an overview of the development of the case-law of the European Court of Human Rights on public emergencies and Article 15 of the Convention, the article will examine how the Court’s case-law could be applied to the current sanitary situation.
Jyotika and Satvik Garg, ‘Violation of Human Rights Amid COVID-19’ (2021) 25 Supremo Amicus Journal (unpaginated) Abstract: Covid-19 brought a pause to the world and everything shifted online. The Government of India tried to mitigate the spread of coronavirus by introducing an emergency measure of country-wide lockdown that restricted the economic and social rights of individuals restraining them from moving freely. Schools and workplaces were closed, public gatherings were cancelled and necessary home confinement regulations were mandated to prevent the virus from spreading. This countrywide lockdown majorly affected the vulnerable class of the society i.e., the poor. The basic human rights of people which includes the right to food, clothes and shelter were infringed due to loss of employment and lack of social support. The second wave of Covid-19 proved to be more fatal as it had serious outcomes through spiralling cases, decreased supplies of necessary medicines, and a rising number of deaths, especially in the young generation. This steep rise in the number of cases added to the crimes of black marketing and the basic right to healthcare was not accessible. Throughout this, the principles of human rights were barely addressed despite how significantly important these rights are to the people. The Indian Judiciary also failed to protect the basic rights and dignity of its citizens in such crucial times. This article discusses the discriminatory impacts of Covid-19 on the different sections of society and their struggles against vulnerabilities. This article also lays down various suggestive recommendations which could have been adopted by the people and governments to curtail the impact. This piece also lays down a comparison with international standards and suggests effective measures to protect the human rights of the citizens of India.
Kahl, Wolfgang and Konstantina-Antigoni Poulou, ‘The Rule of Law and Fundamental Rights in the Coronavirus Pandemic in Germany’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer International Publishing, 2022) 125–146 Abstract: The coronavirus pandemic has been a great challenge for most constitutional states in many aspects. This will be illustrated in this contribution taking Germany as an example, with the focus lying mainly on the rule of law principle and fundamental rights, examined in light of the case law developed so far. Notably during the first lockdown, a lot of fundamental rights in Germany were massively curtailed. This is why this unprecedented situation was sometimes qualified as a ‘state of emergency’ or a ‘corona-dictatorship’, given that the breadth, depth and duration of the encroachments on fundamental rights were, and in some cases still are, exceptionally great. Nevertheless, the following contribution demonstrates that such an approach is misplaced. The German Basic Law (‘Grundgesetz’) does not provide for a state of emergency or any other exceptional provisions regarding the interventions in fundamental rights in times of crisis. The traditional model of the separation of powers has proven to be sufficiently flexible to meet the needs for even far-reaching encroachments on fundamental rights on the one hand, and to adequately control and react to these encroachments in accordance with the rule of law on the other.
Kahn, Jonathan D, ‘Diversity’s Pandemic Distractions’ (2022) 32(1) Health Matrix: Journal of Law-Medicine 149–213 Abstract: Pandemic diseases have a nasty history of racialization. COVID-19 is no exception. Beyond the obvious racist invocations of the ‘China virus’ or the ‘Wuhan Flu’ are subtler racializing dynamics that are often veiled in more benign motives but are nonetheless deeply problematic. The racialization of COVID-19 proceeded along two distinct trajectories each of which threatened to reinforce inaccurate biologized conceptions of race while diverting attention from the social, legal, and political forces historically structuring race-based health disparities. First, early on as significant racial disparities in disease incidence and mortality became evident, a frame of race-based genetic difference came to the fore as a possible explanation. Second, as vaccine development ramped up there came widespread calls for racially ‘diversifying’ clinical trials for the vaccines being tested. The rationales for such diversification were varied but tended to reinforce genetic frames of racial difference. Most common was the assertion (without substantial evidence) that vaccines might work differently in Black or Brown bodies and so racial diversity in trials was imperative for reasons of safety and efficacy. Derrick Bell cautioned 20 years ago that ‘the concept of diversity . . . is a serious distraction in the ongoing efforts to achieve racial justice.’ (Diversity’s Distractions, 103 Colum. L. Rev. 1622, 1622 (2003).) This article explores the dynamics of how the concept of ‘diversity’ racialized responses to COVID-19 and considers their broader implications for understanding and responding to racial disparities in the face of pandemic emergencies and beyond. In the short term, vaccine developers did a decent job of enrolling minorities in their clinical trials and the vaccines have proven to have the same safety and efficacy across races. In the long term, diversity in the biomedical context of pandemic response not only distracts attention from important structural causes of health injustice, it also focuses attention on the genetics of disparities in a manner that has the potential to reinforce pernicious and false ideas of essential biological difference among racial groups. This article argues that an uncritical embrace of the idea of diversity in analyzing and responding to emergent health crises has the potential to distract us from considering deeper historical and structural formations contributing to racial health disparities. It proceeds first by exploring the dynamics through which initial responses to racial disparities in COVID-19 became geneticized . It will then move on to unpack the rationales for such racialization, examine their merits (or lack thereof), and consider their implications for developing an equitable response to pandemic emergencies. The next section will examine the subsequent racialization of clinical trials for COVID-19 vaccines through the concept of ‘diversity.’ It then moves on to explore how the geneticization of COVID-19 racial disparities laid the foundations for a similar geneticization of race in vaccine development. It will argue that in failing to clearly distinguish social and biological rationales for diversity, such framings, while generally well-intentioned, are poorly supported and work in tandem with the geneticization of racial disparities in COVID-19 morbidity and mortality to locate the causes of disparities in the minds and bodies of minoritized populations; again this distracts attention from the historical and structural forces contributing to such disparities. The article concludes by recognizing a certain intractability to the problems of using race in biomedical research and practice, particularly in the context of public health emergencies. It offers modest suggestions for improvement that could have significant practical effects if taken to heart by researchers, clinicians, and policy makers.
Kahn, Rob, ‘COVID Masks as Semiotic Expressions of Hate’ (2022) 35(6) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 2391–2407 Abstract: In April 2021, as COVID briefly appeared to recede in the United States, Fox News host Tucker Carlson went on a lengthy rant against mask wearers. It appeared as if, to paraphrase Hegel, the owl of Minerva was flying at dusk. Why complain about masks at the very time mask mandates were being rolled back and society was—or so it seemed—returning to normal? The answer must lie in the mask itself, and what it represents. In anti-masking discourse, the mask has had two symbolic meanings—mask wearers as sheep, and the masks as burqas. Sheep are obedient, while burqas are instruments of social control. At a deeper level, the very act of mask wearing becomes seen as oppressive, while revealing one’s face is freedom itself. This view of masking (and revealing one’s face) is not new, rather it dates back in Europe to a ‘revolutionary transparency’ that emerged in the wake of the French Revolution that has been appropriated by anti-maskers. While the sheep and burqa images have some play in anti-masking discourse, the connection between freedom and showing one’s face is the most durable message anti-maskers see conveyed by the COVID face mask.
Kahn, Robert, ‘“My Face, My Choice?”: Mask Mandates, Bans, and Burqas in the Covid Age’ (University of St Thomas (Minnesota) Legal Studies Research Paper No 2021–06, 2021) Abstract: During the 2010s mask bans were on the rise. In the United States, the bans targeted environmentalists and Antifa; in Europe, country after country, offended by the burqa, banned face veils, which supposedly violated the European project of ‘living together.’ Then came Covid-19, and mask mandates. Yet the mask and face veil bans did not go away, something that proved troublesome for both sides of the mask mandate debate. For supporters, mask bans have the potential to impede mask wearing; yet removing them goes against the ethos of state power the mandates rely on for their legitimacy. For opponents, bans run counter to the libertarianism that animates their opposition to mask mandates, yet the cry ‘my face, my choice’ is rarely applied to those, including many burqa wearers, who voluntarily choose to don a mask as a rational response to an age of increasing mass surveillance. This essay explores the current juxtaposition of mask mandates and mask bans, while advocating for the general idea that, most of the time, people should be free to cover (or not cover) their faces.
Kajeepeta, Sandhya, ‘Lessons Learned from COVID-19 for Racially Equitable Decarceration’ (SSRN Scholarly Paper No 4696765, 1 January 2023)
Abstract: After four decades of growth, the size of the U.S. incarcerated population has been declining for the past decade, and racial disparities were beginning to shrink. The start of the COVID-19 pandemic triggered immediate calls for decarceration (i.e., reducing the number of people incarcerated), given the high risk of the virus spreading in congregate settings like jails and prisons and subsequent, inevitable spread to the neighboring community. Although the majority of incarcerated people were left behind bars to face potential illness and death, the U.S. incarcerated population experienced its largest recorded one-year population reduction in U.S. history. This large-scale decarceration undoubtedly saved lives and will have long-term benefits for those who were diverted out of jails and prisons, as well as their families and communities. However, not all benefited from the decarceration equally: racial disparities in jail and prison worsened during the COVID-19 pandemic, and Black people represented a larger percentage of the incarcerated population as it declined. In this brief, we examine the drivers of pandemic-related decarceration, interrogate its impacts on racial disparities, and draw lessons to inform policy recommendations for racially equitable decarceration.
Kamga, Serges Djoyou, ‘COVID-19 and the Violation of the Right to Basic Education of Learners with Disabilities in South Africa: An Examination of Centre for Child Law v Minister of Basic Education’ (2021) 65(S2) Journal of African Law 347–360 Abstract: This article explores the extent to which the right to basic education of learners with disabilities in South Africa was guaranteed during the COVID-19 pandemic. It uses the Centre for Child Law v Minister of Basic Education (Centre for Child Law) as the main canvas for discussion. It argues that, notwithstanding its normative compliance with the international regime of the right to an inclusive basic education, the government has failed learners with disabilities during COVID-19. An examination of Centre for Child Law reveals that, not only did the government’s directions for the phased return to school exclude learners with disabilities, they also required the closure of special schools where compliance with social distancing rules was impossible. This violated the right to inclusive education and substantive equality of learners with disabilities and highlighted the need to advance these rights through reasonable accommodation initiatives.
Kamiloglu, Ozan, ‘Rethinking Minimum Guarantees after the Pandemic: The Invisible Violence of Neoliberal Rationality’ in Carla Ferstman et al (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 19–26 Abstract: This essay suggests that the pandemic brings unprecedented economic and social challenges while simultaneously opening the door for the renegotiation of minimum guarantees that human rights discourses conceptualise. The particular conditions of the pandemic have the potential to crystallise slow and structured forms of violence, and widen our imagination of the possibilities for human rights discourses. This is especially the case because neoliberal rationality doesn’t have the hegemony over social movements and human rights imagination, as it may have done in the 90s.
Kaminer, Debbie, ‘Discrimination Against Employees Without COVID-19 Antibodies’ New York Law Journal (4 May 2020) Abstract: Policies favoring those with immunity to a contagious disease are a novel concept. It is therefore important to think about the legal and policy issues associated with banning employees without immunity to COVID-19 from the workplace and the appropriate balance between an individual’s right to work and the public health of the nation.
Kansra, Deepa, ‘Rights and Obligations during COVID-19: A Look at Selected UN Statements’ (SSRN Scholarly Paper No ID 3637217, 15 May 2020) Abstract: In April 2020, the UN Office of the Commissioner of Human Rights & the Committee under ICESCR [International Covenant on Economic, Social, Cultural Rights] issued general and special statements addressing the challenges being faced by individuals & States in light of the prevailing global health crisis.The statements highlight the key human rights principles and standards applicable in light of COVID 19. At the same time, developments around the world open up for scrutiny questions on the current status of human rights and responsibilities. Several themes have become critical including the powers of states to declare emergency, the limitations on human rights derogations, and the scope and applicability of rights including right to scientific information.
Karagkouni, Vasiliki (ed), The Impact of the Covid-19 Pandemic on Human Rights: Collective Research Project (Logos Verlag Berlin, 2024) [OPEN ACCESS E-BOOK] Contents:
- Ioannis Revolidis, ‘Introduction on the impact of the COVID-19 pandemic on human rights’ 11
- Vasiliki Karagkouni, ‘The impact of the COVID-19 pandemic on women’s working life in the EU 17
- Konstantinos Kouroupis, ‘Digital transformation – digitalization in the COVID-19 era 31
- Dimitrios Devetzis, ‘The Janus’s two faces in the case of tracing apps: Safety v. Privacy’ 47
- Alexandros Argyriadis, Agathi Argyriadi, ‘Effects of the COVID-19 pandemic crisis on General Population Mental Health’ 63
- Stavros K. Parlalis, Demetris Hadjicharalambous, ‘Employee rights during pandemic in social sciences’ 75
- Ioannis Voudouris, Nicholas G. Berketis, ‘The impact of COVID-19 pandemic on ship operations, ports, and the rights of seafarers’ 93
- Aikaterini K. Sykiotis-Charalambakis, ‘How criminal law helps to tackle the pandemic’ 121
- Maria Stylianidou, ‘Corruption risks in public procurement in the context of COVID-19’ 139 Panagiotis Degleris ‘Epimeter: Pandemic, Law,and State: The constant mutation of the raised issues – Reflections and points to note 159
Abstract: In times of war, the right to speak freely is often the first casualty. As global leaders have come to use the language of war to describe their efforts to stop COVID-19, it leads to natural questions on the extent to which freedom of expression might be compromised in order to protect public health. In particular, governments around the world have enacted new policies targeting misinformation as the pandemic has spread, or increased enforcement of existing rules. While the World Health Organization has warned of an ‘infodemic’ of fake news which ‘spreads faster and more easily than this virus’, human rights mechanisms have expressed alarm at the impacts of the accompanying crackdown on freedom of expression. This paper discusses the global human rights implications of aggressive measures targeting the spread of COVID-19-related misinformation. Part I discusses the international human rights standards with regard to misinformation. Part II explores various regulatory responses to misinformation amongst COVID-19 thus showing the impact on international human rights. Part III explores the applicability of international human rights law, specifically the standards for derogation in key human rights documents, to the current exceptional circumstances of COVID-19. Part VI asses the measures against international human rights standards, finding significant cause for concern, particularly if these enforcement postures become normalized. Part V offers alternative solutions to the human rights challenges posed by health misinformation, particularly restrictions which are more carefully targeted and less open to abuse as well as transparency measures to promote trust and accountability in public institutions. Part VI concludes.
Kaya, Ibrahim, ‘Human Rights in the Age of Pandemics’ (Proceedings of the 1st International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 1–4 Abstract: Covid-19, which has been declared as a pandemic by the World Health Organization (WHO), is having very important impacts at the global level. By definition a pandemic concerns all states and therefore a close co-operation between states is essential to combat it in an adequate manner. States, sometimes unilaterally and sometimes collectively, are taking measures against the spread of the pandemic. Both international law and national laws also set out important rules for states to combat pandemics. The measures taken by states range from announcing simple cautions to total restrictions on the movement of people and even forced lock down, both for individuals and communities. States surely may take the necessary measures to maintain public health and the lives of individuals. Furthermore, it can be said that they are obliged to do so. On the other hand, due to the principle of rule of law, states are required to act in accordance with legal requirements including due process and human rights obligations. However, the effects of various legal measures taken by states in the struggle against Covid-19 pandemic raise some concerns on the basis of international regulations and domestic rules. These legal measures are closely related with certain rights protected under international human rights conventions, of which many states are parties. Consequently, they have already become a matter of dispute in many countries and there are clear signs that this dispute would evolve into a judicial question before international and national judicial authorities. This paper aims to examine the legality of the Covid-19 measures. To this end, first various international legal instruments will be analysed to find out the limits within which states can take and implement their measures in case of public emergencies. These will include global conventions such as the Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights and regional ones such as the European Convention on Human Rights and American Convention on Human Rights. Then, the World Health Organization’s legal instruments that were drafted for the prevention of pandemics will be assessed in terms of human rights law. Finally, a discussion on the Covid-19 measures and human rights will be made.
Keleher, Christopher, ‘The Antidote of Free Speech: Censorship During the Pandemic’ (2024) 73(2) Catholic University Law Review 213–272 Abstract: Free speech in America stands at a precipice. The nation must decide if the First Amendment protects controversial, unconventional, and unpopular speech, or only that which is mainstream, fashionable, and government-approved. This debate is one of many legal battles brought to the fore during Covid-19. But the fallout of the free speech question will transcend Covid-19. During the pandemic, the federal government took unprecedented steps to pressure private entities to push messages it approved and squelch those it did not. The Supreme Court will soon grapple with the issue of censorship during the pandemic. This article examines this litigation, along with the speech restrictions enacted by social media platforms at the behest of federal officials. It does so through a historical lens as it applies to free speech and prior restraint. Tracing this lineage is vital to understanding the importance of the right to think freely in the Covid era and how to apply historical concepts of free speech to contemporary challenges. I conclude the solution to the problem of misinformation is more speech, not suppression. Unconventional speech thus warrants constitutional protection. The First Amendment is designed to preserve an uninhibited marketplace of ideas where truth will ultimately prevail. That process is difficult, time consuming, and not without error. However, it is the most prudent alternative to reliance on the government intrusion of prior restraint and viewpoint discrimination.
Kemboi, Leo Kipkogei, ‘Kenya’s COVID-19 Policy Responses Furthering Inequality’ (SSRN Scholarly Paper ID 3750751, 17 December 2020) Abstract:The government response in appropriating more resources, public health responses, social protection measures and virtual learning in Education have excluded persons at different levels. Failure of government to respond appropriately have led to additional costs which cannot be recovered hence furthering economic inequality.
Keys, Clare et al, ‘Health Inequalities and Ethnic Vulnerabilities During COVID-19 in the UK: A Reflection on the PHE Reports’ (2021) 29(1) Feminist Legal Studies 107–118 Abstract: COVID-19 has uncovered the vulnerabilities, inequalities and fragility present within our social community which has exposed and exacerbated the pre-existing racial and socioeconomic inequalities that disproportionately affect health outcomes for Black, Asian and Minority Ethnic (BAME) people. Such disparities are fuelled by complex socioeconomic health determinants and longstanding structural inequalities. This paper aims to explore the inequalities and vulnerabilities of BAME communities laid bare by the Public Health England (PHE) reports published in June 2020, concluding with suggested strategies to address inequalities in a post COVID-19 recovery.
Khabook, Reza, ‘Application of the Precautionary Principle in Dealing with Future Pandemic Diseases: The Dilemma of Legality and Legitimacy Under the Rule of Law’ (2024) 20(3) Utrecht Law Review 10–25 Abstract: Over the past few decades, governments have increasingly employed extraordinary measures in their legal and political decision-making processes. These measures often align with the contemporary risk management approach grounded in the precautionary principle. This shift can be attributed to the uncertain nature of recent times, marked by various viral outbreaks, most notably the enduring COVID-19 pandemic. Furthermore, in the context of governmentality, which represents a modern and post-emergency response to pandemics, governments have favoured the enactment of ‘exceptional laws’ (Ausnahmegesetze) over the declaration of a ‘state of exception’ (Ausnahmezustand). This choice is made to uphold their commitment to democratic values and the rule of law. This article claims that the current approach to legislating precautionary-principle-based laws through exceptional laws represents backsliding in terms of upholding the rule of law. Consequently, it emphasises the need to prevent any erosion of the rule of law and its potential consequences for human rights. To address this concern, the article advocates moving beyond a mere focus on legality and instead scrutinising these laws through the lens of legitimacy.
Kharytonov, Evgen et al, ‘The Covid-19 Pandemic and the Rights of the Individual in Terms of Private and Public Law’ 9(2) Ius Humani Law Journal 225–250 Abstract: The principles of adjusting the regulation of civil relations in the context of the Covid-19 pandemic are analyzed. The admissibility of restricting human rights in the context of the conflict of private and public interests are researched. Besides, the authors tried to determine the optimal algorithm of government actions aimed at preventing the spread of the epidemic. The main approach to the understanding of human rights in the article is based on Dworkin’s concept of ‘rights as trumps’. A system of such categories as ‘a man’, ‘a private person’, ‘natural private rights’, ‘private law’ and ‘national civil law’ is analyzed. The conclusion is that the importance of the category of ‘natural’ human rights is underestimated, which exacerbates the problem of ensuring human rights in a pandemic, when the state actively uses public law to cope with the crisis. As a result, there is a conflict of basic principles of private and public law: ‘everything is allowed except what is prohibited by law’ vs. ‘only what is allowed by law is possible’. It is proposed to assume that the usual way of the legal existence of a person is that he/she acts as a participant in civil relations of a private type, even in a pandemic. Private relations, which arise during the quarantine period, are proposed to be regulated mainly by private law methods, limiting the influence of the state. This will allow us to reach a compromise of private and public interests, without restricting the rights of individuals voluntarily.
Killmister, Suzy, ‘COVID-19 and the Right of Return’ [2021] Australian Journal of Human Rights (advance article, published online 12 Oct 2021) Abstract: Throughout 2020 and 2021, a human right most Australians presumably took for granted was effectively suspended by the Australian government: if you were an Australian citizen overseas, you no longer had any guaranteed right of return. Taking as given that we do in fact have a moral right to re-enter the country of which we are a citizen, in this commentary I draw on the work of philosopher Judith Jarvis Thomson to critically examine three possible pathways by which the suspension of this right could—at least theoretically—be morally justified.
Kilonzo, Kethi D, ‘Playing Tag with the Rule of Law: Balancing Fundamental Rights and Public Health in Kenya in the Shadow of COVID-19’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium IV: Governance, Rights, and Institutions) Abstract: The first case of Covid-19 infection within Kenya’s borders was reported on 13th March 2019. The global pandemic has brought the Rule of Law in Kenya to a cross-roads as the government attempts to strike a delicate balance between the health and safety of the public, on the one hand, and their economic and social well-being, on the other. The choices have been tough, and the outcomes have been mixed. All of its policies and regulations have been met with mixed reactions as well as political and legal challenges. Covid-19 has led to many fundamental human rights and freedoms being temporarily stripped by governments and authorities across the globe. Kenya has been no exception. Since 13th March 2020, the fundamental rights to freedom of association, movement, access to justice, access to administrative action, property, assembly, demonstrations, grouping and picketing, have been suspended, impeded and or affected. In Kenya, such restrictions have a constitutional foundation in Kenya’s 2010 Constitution.
King, Brandon, ‘Covid and the Court: Why the Supreme Court Should Not Diffuse European Speech Restrictions into American Law’ (2024) 11 Brandeis University Law Journal 61–78 Abstract: Speech constitutes an immense power which, at its best, can lead to open dialogue that creates the opportunity to achieve positive political and social change. At its worst, the freedom to speak can precipitate hate speech and violence. Across the world, the standards governing free speech are not necessarily the same. This article aims to analyze the constructs of free speech in both Europe and the United States. To this end, this article concerns two major questions: should the United States adopt legislation to combat hate speech in line with the Digital Services Act which the European Union previously enacted; and should this be enacted via the Supreme Court’s opinion in Murthy v. Missouri, a case analyzing possible infringement of Free Speech by the federal government on social media sites. This article discusses the nature of how and which comparative law principles and jurisprudence should be diffused into judicial opinions written by U.S. judges. As well as why this issue is not one that should be handled by the courts, especially through the diffusion of European authored regulations on speech.
Kirby, Tony, ‘Evidence Mounts on the Disproportionate Effect of COVID-19 on Ethnic Minorities’ (2020) 8(6) The Lancet Respiratory Medicine 547–548 Abstract: As the cases of coronavirus disease 2019 (COVID-19) continue to increase across the world, evidence is continuing to emerge that the pandemic could be disproportionately affecting people from black, Asian, and minority ethnic (BAME) communities.
Kitai-Sangero, Rinat, ‘Pandemics of Limitation of Rights’ (2024) 39(1) Touro Law Review 89–130 Abstract: This Article discusses the limitation of rights due to pandemics. It analyzes from a constitutional standpoint the holding of the German Federal Constitutional Court (Das BUNDESVERFASSUNGSGERICHT) from April 2022 as a symptom of moral panic disguised through an analytical process. Though it focuses on this case, it sheds light on the moral panic that characterized many countries’ approaches during the COVID-19 pandemic. On April 27, 2022, the German Federal Constitutional Court held that a provision to provide proof of vaccination against COVID-19, recovery from COVID-19, or a medical exemption to COVID-19 vaccination as a condition of employment in the health and care sectors was constitutional. In the name of the necessity to protect life—which is undoubtedly the supreme value—the German Federal Constitutional Court was dragged after the global moral panic and has given a hand to disproportionately trampling human rights. It refused to recognize an alternative means of submitting negative COVID-19 tests as a condition of working with vulnerable people and as a less restrictive means of reaching the goal of protecting vulnerable people. It did not give weight to the autonomy of the individual, including vulnerable people, to take risks. It did not accord the due weight to the injury to livelihoods, career losses, the interruption of academic studies, and the breach of bodily integrity. It needed to adequately address the legitimacy of the sacrifice of the individual for the collective good. The failure to satisfy the requirement of proportionality could indicate the underlying intention of the ruling—putting pressure on people to get vaccinated. The COVID-19 pandemic crisis illustrates the great potential of coercive public health powers to infringe on civil liberties and the fragility of human rights when faced with danger to health. This Article advances the case for demonstrating greater respect for peoples’ autonomy to take health risks before establishing coercive measures— which curtail fundamental rights—to prevent or reduce the spread of infectious diseases. The Article sets forth principles the state should consider before limiting constitutional rights and claims that people around the world should not be deprived of their choices.
Kivalov, Serhil, ‘Ensuring the Human Rights and Freedoms in the Context of the Pandemic Covid-19’ (2020) 9(2) Ius Humani Law Journal 1–23 Abstract: The study is devoted to the establishment of the current state of ensuring of human rights and freedoms in Ukraine while counteracting the spread of the Covid-19 pandemic taking into account the institutional and legal basis of the quarantine regime, transformations of ensuring of human rights and freedoms and the rights of participants in administrative procedures. Close attention is drawn to the impossibility of restricting human rights and freedoms that go beyond the goals of Covid-19 dissemination. In carrying out this study, general philosophical and special methods of scientific knowledge were used, namely the methods of: system analysis, dialectical, formal-logical and structural-functional, as well as some empirical methods. The practical significance of the study is that its results are relevant for domestic legislators and entities that carry out public administration in the field of health care against the background of updating trends in the response to the Covid-19 pandemic. A number of measures have been proposed to develop a strategy to counter the spread of the Covid-19 pandemic; creation of subjects of public administration, the competence of which will include ensuring the state policy in the field of ensuring the proper condition and maintaining the mental health of the population; implementation of the concept of electronic justice (e-court) as the only possible mechanism to ensure effective protection of the rights, freedoms, and interests of man and citizen in the face of the Covid-19 pandemic.
Kohek, Jessica et al, ‘Mandatory Mask Bylaws: Considerations Beyond Exemption for Persons with Disabilities’ (University of Calgary, School of Public Policy Publications No 13–20, 2020) Abstract: The city of Calgary, like many other cities, has made wearing a mask mandatory in most public spaces in order to slow the spread of COVID-19, but adhering to the rule will not always be possible for people with disabilities. The city is clearly aware of the mask-wearing challenges faced by some people with disabilities and their caregivers, and has created exemptions to the rule for them. However, that awareness needs to be publicly promoted, otherwise people with disabilities could face social stigma, criticism or be refused service when they try to reenter the economy without a mask. This could add to the already greater risks and burdens that people with disabilities have faced throughout the pandemic. Even those people with disabilities who are able to wear masks may be unable to get ahold of masks. The province has been distributing free masks through fast-food drive-thrus. However, those may be inaccessible to people with disabilities. The city of Calgary has also distributed masks on public transit, but some people with disabilities may not be using transit given that so many places have been closed during the pandemic or because of the higher risk of illness while travelling outside their homes. Calgary needs to provide more than mask exemptions for people with disabilities to ensure that the reopening of the economy is truly inclusive. It should find new ways to distribute masks that are more accessible and it should promote public awareness of the exemptions and their rationale to encourage greater empathy and understanding in society towards unmasked people with disabilities. It should also research alternatives to masks that can be accepted under the bylaw, since standard face shields are currently not considered a substitute. People with disabilities are already at higher risk of serious illness because of COVID-19, and have already faced disproportionate isolation and stigma during the pandemic. The city of Calgary’s mandatory mask policies should be designed to account for the challenges of people with disabilities so that these people are not excluded from the reopening of the economy and made to bear a greater burden than they already have.
Koltay, András, ‘The Punishment of Scaremongering in the Hungarian Legal System. Freedom of Speech in the Times of the COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 3735867, 23 November 2020) Abstract: Scaremongering is restrained by criminal law as a limitation to freedom of speech in Hungarian law. Without relevant case law, free speech commentators had rarely discussed the provision until the government’s actions taken in order to step up against the COVID-19 pandemic, and the following amendment of the Criminal Code in Spring 2020 brought the subject back into the field of public debates. The article analyses the constitutional issues related to the limitation of scaremongering, and takes the two constitutional court decisions in this subject as guideline.
Konnoth, Craig J, ‘Supporting LGBT Communities in the COVID-19 Pandemic’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 234–239 Abstract: LGBT individuals suffer disproportionately in the COVID-19 pandemic. They are likely to be exposed to COVID-19 in greater numbers and suffer to a greater degree if they contract the disease. They are more likely to lose access to essential medical services, including gender confirmation and HIV medications. They are likely to suffer economic harms to a greater degree, since they are more likely to work in industries with exposure to, and likely to close because of COVID-19. They also are more likely to experience mental and emotional harms arising from the isolation, or sheltering-in-place COVID-19 necessitates. Such isolation often occurs with hostile or violent family members, while LGBT safe-spaces, organizations, institutions, and events, such as LGBT pride and LGBT centers are shut down or go virtual. This can take a toll on physical, emotional, and mental health, especially for youth and elderly LGBT individuals. Finally, when LGBT individuals seek assistance from elsewhere, including through social services, homeless shelters, and welfare, they often suffer discrimination. All these harms fall even more disproportionally on LGBT people of color and transgender individuals. To combat these harms, policymakers must implement stringent antidiscrimination protections and policies that cover the needs of LGBT individuals such as access to certain medical services. But more importantly, they should ensure that the LGBT organizations providing these services in a safe space remain funded and open. They should also collect data on the LGBT community.
Korenica, Fisnik and Bardhyl Hasanpapaj, ‘Limitation of Rights in the Times of the COVID-19 Pandemic: A View from Kosovo’s Constitutional Court’s “Shaky” Jurisprudence’ (2023) 27(5) The International Journal of Human Rights 872–895 Abstract: The COVID-19 pandemic has forced governments across the globe to take infection-control actions by and large unforeseen and unforeseeable in their constitutional frameworks. Several measures forcing restrictions on travel, business operations, labour, healthcare and/or the education system have characterised public policy in most of them. A fair number of those restrictions adopted in the form of government or legislature decisions are labelled as ‘lockdown measures’. This article examines two recent cases ruled upon by the Constitutional Court of Kosovo (CCK or Court), whose primary aim was to pronounce on whether the Kosovo government’s lockdown measures were compatible with the criteria authorising a limitation of fundamental rights. These two cases present an outstandingly activist attitude of the Court in controlling government behaviour in times of a pandemic outbreak, by primarily questioning the state’s negative obligations in the face of freedom of movement, right to private and family life, and freedom of assembly; whereas positive obligations of the state with regard to the right to life and its associated right, the right to health, were neglected altogether. The article concludes that the mechanical interpretation which the two Court cases drew neither contributes to a richer substantive human rights protection, nor functionally elevates the concept of human rights in times of pandemic.
Krajewska, Atina, ‘Connecting Reproductive Rights, Democracy, and the Rule of Law: Lessons from Poland in Times of COVID-19’ (2021) 22(6) German Law Journal 1072–1097 Abstract: This article examines the relationship between reproductive rights, democracy, and the rule of law in transitional societies. As a case study, it examines the development of abortion law in Poland. The article makes three primary claims. First, it argues that the relationship between reproductive rights and the rule of law in Poland came clearly into view through the abortion judgment K 1/20, handed down by the Constitutional Tribunal in the middle of the COVID-19 pandemic. The judgment and the context in which it was issued and published are interpreted as reflections of deep-lying processes and problems in Polish society. Consequently, second, the article argues that analysis of the history of reproductive rights in recent decades in Poland reveals weak institutionalization of the rule of law. This is manifest in the ways in which different professional groups, especially doctors and lawyers, have addressed questions regarding abortion law. Therefore, third, the article argues that any assessment of the rule of law should take into account how powerful professional actors and organizations interact with the law. The Polish case study shows that reproductive rights should be seen as important parts of a ‘litmus test,’ which we can use to examine the efficacy of democratic transitions and the quality of the democracies in which such transitions result.
Krumbein, Frederic, ‘The Protection of Human Rights by Taiwan’s Legislative Yuan during Taiwan’s Crisis Management of the COVID-19 Pandemic’ (SSRN Scholarly Paper No 4325837, 16 January 2023) Abstract: Taiwan is a success story compared to other countries in terms of the number of COVID-19 infections and deaths. Taiwan’s achievement has relied on effective institutions, crisis management, and cooperation between state and society. While the success factors of Taiwan’s crisis management of COVID-19 have been analyzed, less research has been conducted about the protection of human rights during Taiwan’s fight against the COVID-19 pandemic, in particular the role of Taiwan’s Legislative Yuan. The paper analyzes Taiwan’s COVID-19 policies, their impact on human rights, and the role of Taiwan’s parliament in safeguarding human rights in Taiwan’s pandemic management. Overall, Taiwan’s government and parliament tried to protect human rights by avoiding serious infringements on personal liberty, such as lockdowns and curfews, and by including provisions for protecting human rights in the pandemic prevention policies and measures, such as regulations for protection of personal data. However, not all measures were proportional or necessary, and overall, the parliament has been reluctant in exercising its powers of oversight and control over the government’s COVID-19 policies.
Kulkarni, Manjusha P, ‘Stopping AAPI Hate: COVID-19 Related Racism and Discrimination Against Asian Americans and Pacific Islanders, Its Origins, Our History and Avenues for Redress’ (2023) 26(1) Asian Pacific American Law Journal 75–102 Abstract: Between March 2020 and March 2022, Stop AAPI Hate received over eleven thousand reports of anti-Asian hate and discrimination. Analysis of the data indicates that 67% of incidents involve harassment, 17% involve physical assault and 12% involve civil rights violations, including refusal of service, vandalism and discrimination in housing and the workplace. Impacts on community members have been significant. Many have turned to criminal law enforcement as the answer. Given that a significant majority of incidents reported to Stop AAPI Hate are not hate crimes, more appropriate means of addressing the harm include prevention and non-carceral approaches, such as civil rights enforcement, community safety, and education equity. Toward that end, Stop AAPI Hate focused its efforts in California on the No Place for Hate CA Campaign that resulted in the enactment of two bills, SB 1161 and AB 2448, to address harassment in public transit and discrimination in retail. Stopping anti-Asian hate and preventing it from happening in the future can only be achieved through a comprehensive framework which includes providing redress and resources to victims through civil rights enforcement, ensuring long term community safety through strong wages and safe, affordable housing, and guaranteeing education equity by teaching ethnic studies in K-12 schools.
Kużelewska, Elżbieta and Mariusz Tomaszuk, ‘European Human Rights Dimension of the Online Access to Cultural Heritage in Times of the COVID-19 Outbreak’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1067–1079 Abstract: The 1948 Universal Declaration of Human Rights recognized that ‘everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’. As a result, cultural rights have been understood as inseparable from human rights and require protection mechanisms within particular international (including regional) legal systems. The European continent is proud to have developed one of the most effective mechanisms of the human rights protection by establishing the Council of Europe and adopting the European Court of Human Rights. The recent outbreak of the COVID-19 reformulated many concepts of access to human rights and possibilities to enjoy freedoms. Even if access to culture (access to cultural heritage) has been available online for many years, it is the time of globally occurring lockdowns that forced people to stay home and found themselves in a situation when all of a sudden online access to culture became the only way of access to culture. The article aims to analyze the current situation in Europe by asking questions if and how online access to culture is recognized and protected under the Council of Europe’s mechanisms with special emphasis on the case-law of the European Court of Human Rights in this field.
Lachmayer, Konrad, ‘Democracy, Death and Dying: The Potential and Limits of Legal Rationalisation’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 47-68 Abstract: The first part and starting point of the chapter (section II) refers to the shift of the paradigm of death from an unpredictable though inevitable condition of life to the economised timing of death. This rationalised approach has given governments the possibility to influence death and dying. In terms of Foucault’s bio-politics, governments not only control the bodies of the people, but also decide upon their life and death. During the COVID-19 pandemic, (European) states have come under pressure to protect the lives of the people and to keep death rates low. This role of the state in managing death and dying is also expressed in law, which I will focus on in the second part of the chapter (section III) . Democratic processes have created the legal framework of life and death (legal thanatology). Budgetary law can serve as an example for the democratic decision-making about life expectancy. As courts strengthen and enhance the effectiveness of rights, they also have an effect on the life and death of human beings. While the discussion on a traditional liberal rights perspective can be understood as an empowerment of the people to decide for themselves about life and death (individual autonomy), state obligations to guarantee liberal rights (eg, the right to life) or social rights (eg, right to health) affect the government’s decisions about life and death. The possibilities and limits of the rationalising function of the rights-based case law will be discussed. In the third part of the chapter (section IV) the effects of legal thanatology in the COVID-19 pandemic will be analysed. Different approaches of European democracies illustrate that decision-making on life and death will lead to different consequences. Moreover, an international perspective demonstrates European privileges as well as European responsibilities in a post-colonial world. In the concluding section V, the necessity to negotiate about death and dying in democratic societies will be addressed.
Langowski, Jamie et al, ‘Qualified Renters Need Not Apply: Race and Housing Voucher Discrimination in the Metro Boston Rental Housing Market’ [2020] Georgetown Journal on Poverty Law Policy (forthcoming) Abstract: Black, Indigenous, and People of Color have long had to navigate the barriers of racist laws, policies, and actions in housing. Housing discrimination perpetuates segregation and contributes to maintaining the status quo of disparities with respect to health inequities as well as income, wealth, and opportunity gaps. The COVID-19 pandemic has put these inequities in stark relief. Data on the current status of such discrimination is valuable for policy makers who should develop anti-racist policies that dismantle structural racism and its attendant harms.Using matched-pair testing, we measure the level of discrimination based on race and income level in the Greater Boston rental housing market, where both race- and income-based housing discrimination is illegal. Data from the study show high levels of discrimination against both black people and individuals using housing vouchers throughout the pre-rental application.
Laster Pirtle, Whitney N, ‘Racial Capitalism: A Fundamental Cause of Novel Coronavirus (COVID-19) Pandemic Inequities in the United States’ (2020) 47(4) Health Education & Behavior 504–508 Abstract: Racial capitalism is a fundamental cause of the racial and socioeconomic inequities within the novel coronavirus pandemic (COVID-19) in the United States. The overrepresentation of Black death reported in Detroit, Michigan is a case study for this argument. Racism and capitalism mutually construct harmful social conditions that fundamentally shape COVID-19 disease inequities because they (a) shape multiple diseases that interact with COVID-19 to influence poor health outcomes; (b) affect disease outcomes through increasing multiple risk factors for poor, people of color, including racial residential segregation, homelessness, and medical bias; (c) shape access to flexible resources, such as medical knowledge and freedom, which can be used to minimize both risks and the consequences of disease; and (d) replicate historical patterns of inequities within pandemics, despite newer intervening mechanisms thought to ameliorate health consequences. Interventions should address social inequality to achieve health equity across pandemics.
Lawrence, Meghan K, ‘Tinker Stays Home: Student Freedom of Expression in Virtual Learning Platforms’ (2021) 101(6) Boston University Law Review 2249–2288 Abstract: Following the COVID-19 outbreak of March 2020, states imposed mandatory ‘lockdowns,’ forcing schools throughout the country to move to virtual learning platforms. With this unprecedented shift came many unforeseen challenges for school officials, including assessing what First Amendment rights students retain in virtual learning platforms. Falling into an unusual gray area where students are technically ‘in school’ because they are attending school-run classes, and yet off campus as they are doing so from the privacy of their homes, school officials have little guidance from the currently established student speech categories to make these determinations. While this issue originally arose out of the unique circumstances surrounding the COVID-19 pandemic, schools will likely continue to face this problem in the future, whether by the uncertain prospect of further school closings as new COVID-19 variants emerge or by schools and students continuing to take advantage of the convenience and safety provided by online platforms. This Note focuses on the intersection of existing student First Amendment rights both on and off campus and the constitutional protections afforded to speech and expression within the home. Ultimately, this Note concludes that there is no one-size-fits-all test that can be applied to all aspects of the virtual learning platform. While schools arguably must have some authority to limit student expression within virtual learning platforms, that authority must be balanced with students’ First Amendment rights. The two central problems posed by virtual learning platforms, virtual backgrounds and physical backgrounds, require a unique solution to balance protection of students’ rights and respect for a school’s authority. This Note argues that schools should wield far more authority over students’ virtual backgrounds and less authority over their physical backgrounds. To control physical backgrounds, school officials must presume students are entitled to First Amendment protection over student expression subject to only few exceptions in specific categories of speech. Virtual backgrounds, on the other hand, do not exist outside of the virtual class, and thus do not implicate the same First Amendment and privacy concerns. This bifurcated solution thus accounts for the nature of virtual learning environments and balances school authority with not only students’ First Amendment rights but also students’ privacy rights, students’ autonomy, and the authority of students’ parents to control their homelife.
Lawson, Anna and Lisa Waddington, ‘Disability in Times of Emergency: Exponential Inequality and the Role of Reasonable Accommodation Duties’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 255 Abstract: This chapter explores whether the ‘traditional’ reasonable accommodation duty is ‘fit for purpose’ in times of crisis and whether variations of this duty might be better suited to the task. The reasonable accommodation obligation requires duty-bearers to take disability into account, and to make an adjustment, alteration, or accommodation to their standard practices, policies, and structures in order to meet the needs of a particular disabled individual. One limitation of the ‘traditional’ reasonable accommodation duty is that it is ex post, in that it is triggered only when an individual indicates that they are facing a barrier. Other types of reasonable accommodation duties adopt a more pro-active or ex ante approach. One example is the anticipatory reasonable adjustment duty in the Equality Act 2010. This requires duty-bearers to consider the foreseeable needs of disabled people in advance of an individual request being made. There is little evidence of Covid-19-related litigation based on the ‘traditional’ ex post reasonable accommodation duty. In contrast, the ex ante anticipatory reasonable adjustment duty in the Equality Act 2010 has been heavily used during the Covid-19 crisis. The fact that it focuses attention on what duty-bearers should have been doing to avoid creating disadvantage, rather than on simply what they can do to remove it once in place, is perhaps more useful in times of crisis. The chapter nevertheless finds that there is much more that needs to be done to build a legal framework that robustly embeds disability equality.
Lawton, Betsy, ‘COVID-19 Illustrates Need to Close the Digital Divide’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 222–227 Abstract: The COVID-19 pandemic has heightened the need for internet connectedness – school and work closures and social distancing measures to slow the spread of COVID-19 require individuals to rely even more heavily on internet access to participate in telehealth programs, distance learning, and job opportunities. Yet, there remains a large digital divide in the United States, with many households lacking access to reliable broadband services. This digital divide has long been a factor limiting the achievement of public health goals for individuals that lack essential broadband infrastructure and COVID-19 response efforts have further limited internet access for those that rely on public internet access points such as public libraries. This Chapter will explore law and policy opportunities to reduce the digital divide and the resulting public health consequences flowing from the digital divide.
Lazarus, Dr Liora, ‘A Preliminary Human Rights Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 11 Jurisdictions’ (University of Oxford, Faculty of Law, Bonavero Institute of Human Rights, Bonavero Report No 3/2020, 6 May 2020) Extract from Introduction: Our evaluation of Covid 19 measures also takes into account the positive obligations that States bear to protect life, access to health and health security, and the extent to which these obligations should be shaped by countervailing negative rights. A stereoscopic view of the human rights engaged in public health emergencies is thus crucial in assessing the rights conformity of particular measures. What is essential in this evaluation, are robust, transparent and expert mechanisms of accountability which are able to evaluate the scientific justifications of both rights limitations and the requirements of positive duties. This is not only a matter of proper constitutional practice, but also a requirement flowing from the effective protection of these rights…. The following report includes analyses of a cross section of jurisdictions from the global South and North. A crucial material divide between these jurisdictions lies in medical care capacity, the material impact of containment measures, and the capacity of States to mitigate the economic impact of containment measures on citizens. Each section of the report provides detailed examination of the lockdown measures and evaluates their constitutional and human rights implications. Despite these evident differences, there are clear trends and similarities across jurisdictions which this introduction will briefly highlight.
Le Bouthillier, Yves and Delphine Nakache, ‘The Right of Citizens Abroad to Return During a Pandemic’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 299 Abstract: To prevent the spread of COVID-19 Canada has, like most other states, temporarily limited access to its territory. It has, as requested by international law, allowed the return of its own citizens. However, in contrast to other countries, Canada has opted for a more restrictive approach by requesting air carriers to deny boarding to any passengers abroad, citizen or not, with symptoms suggestive of COVID-19. In this article, we assess the legality of Canada’s approach regarding the return of citizens, both under international human rights law and Canadian constitutional law.
Leader, Sheldon, ‘The Reach of Rights in the Crisis’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 5–9 Introduction: This chapter explores some central challenges to bringing domestic and international human rights principles to bear on the provision of health care in this pandemic. It looks at the ways in which policy aims to balance a variety of competing rights and demands. Some involve competition for access to scarce resources in hospitals, where the competition might be between possessors of the same right to enjoy the highest attainable standard of health: a gain for one might require a loss for another. Other situations involve a competition between a human right that might conflict with institutional demands that do not themselves rank as implementing human rights, but are nevertheless demands that are sometimes considered legitimate and which can exercise considerable downward pressure on the ability to give full effect to the human rights in question. This happens in the present pandemic, for example, when orders, backed by the threat of dismissal, are given by some enterprises to their workforces to return to work despite evidence that this return can jeopardise their health. While the enterprise cannot usually claim to be making a human rights-based demand in an order to return to work, there is here a recognisable competition between the right to health and the demand to stimulate the economy.
Lebret, Audrey, ‘COVID-19 Pandemic and Derogation to Human Rights’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa015 Abstract: Under international human rights law, States can limit the exercise of most human rights if it is necessary to protect the rights of others or collective interests. The exceptional circumstances brought by the COVID-19 global pandemic lead to more extensive, on both their scope and their duration, restrictions of human rights than in usual times. This article introduces the States’ specific right to derogate to human rights in circumstances of public emergency and the conditions of a legitimate derogation in the context of COVID-19. It argues that States must ensure that the general measures they adopt to face the crisis do not disproportionally harm vulnerable people.
Lee, Tsung-ling, ‘Pandemic Accord, Digital Health Literacy, and Human Rights in the Era of Infodemic’ (2023) 18(2) Asian Journal of WTO & International Health Law and Policy 397–422 Abstract: The unprecedented spread of false or misleading information through social and digital platforms during the COVID-19 pandemic was a major challenge for governments worldwide. The widespread misinformation caused confusion about the benefits of public health interventions, undermined trust in science and public health authorities, and weakened the uptake and adherence to public health measures. The World Health Organization (WHO) identifies the phenomena as ‘infodemic’— excessive information of varying quality that makes it difficult to access and identify trustworthy sources and information. Concerns over the infodemic have prompted governments to take various regulatory actions, ranging from disseminating accurate information, restricting the spread of disinformation, false information, and misinformation, regulating the service providers, to criminalizing expression in the digital environment. However, some governments have expanded their police power under the guise of public health, arresting and prosecuting citizens and journalists for discussing or criticizing governments’ role in responding to and managing the pandemic.As the world negotiates for a new pandemic treaty, this article focuses on the right to information and digital health literacy as essential components of pandemic prevention, preparedness, and response. It assesses the public health communication provision in the draft of the Pandemic Prevention, Preparedness, and Response Accord (hereinafter ‘Pandemic Accord’) by drawing from the Principles and Guidelines on Human Rights and Public Health Emergencies, demonstrating the complementarity of a human-rights based approach with the Pandemic Accord in expressing the right to health and the right to freedom of expression and opinion in particular.
Lee, Tsung-Ling, ‘The Rise of Technocracy and the COVID-19 Pandemic in Taiwan: Courts, Human Rights, and the Protection of Vulnerable Populations’ (2021) 22(6) German Law Journal 1115–1132 Abstract: Driven by the need to address the immediate public health threats of the COVID-19 pandemic, this has seen a rise of the technocratic mode of governance around the world. A technocratic approach is evidence-based and relies upon the guidance of experts to respond to the public health crisis. The rise of technocracy reflects a utilitarian calculus that seeks to preserve the greater good. Taiwan’s pandemic response exemplifies the strengths and weaknesses of this type of governance. Based on an analysis of the relevant case law of the Taiwan Constitutional Court, legislation, and political developments this Article takes a legal-historical look and traces the current technocratic approach—defined for this Article as an experts-driven and procedural-driven process—which is a hallmark of Taiwan’s pandemic response. Examining Taiwan’s pandemic response through a human rights lens sheds light on a more complex relationship between the collective right to health and life, and the individual rights to health, work, privacy, and liberty during the pandemic.
Leigh, Andrew, ‘We Can’t Let Coronavirus Worsen Inequality’ (2020) 85 Journal of Australian Political Economy 57–61 Abstract: Over the three-month American summer break, school students regularly diverge. In high-income families, students keep learning, thanks to museum trips, instructional camps and home tutoring. In low-income families, students slip backwards, losing one to two months’ worth of learning by the time they return to school. According to one study, the ‘summer slide’ accounts for two-thirds of the difference between poor and rich students (Alexander ‘et al.’ 2007).
Lemmens, Trudo and Roxanne Mykitiuk, ‘Disability Rights Concerns and Clinical Triage Protocol Development During the COVID-19 Pandemic’ (2020) 40(4) Health Law in Canada 103–112 Abstract: In the context of the COVID-19 pandemic a number of jurisdictions and authorities have drafted triage protocols to guide decision making in the face of severe shortage of ventilators and intensive care resources. Several of these have evoked debate about their compatibility with human rights standards, and in particular the rights of people with disabilities. In Canada, the Canadian Medical Association came out with a general Framework for Ethical Decision Making, while Ontario Health produced a draft Clinical Triage Protocol for Major Surge in COVID Pandemic. In this commentary we critically review both documents to determine how their development process and their substantive provisions align with approaches to substantive equality and the promotion of human rights of persons with disabilities. We offer a number of recommendations to ensure that the human rights of persons with disabilities are promoted in COVID-19 triage policies.
Leung, Hannah and Jemimah Steinfeld, ‘Virus Masks a Different Threat: China Is Using Covid-19 Responses and Hong Kong’s New Security Law to Reduce Freedoms in the City State’ (2020) 49(2) Index on Censorship 8–10
Levashenko, Antonina and Olga Magomedova, ‘Risks of Digital Discrimination in the Wake of COVID-19’ (2020) 13(115) Monitoring of Russia’s Economic Outlook: Trends and Challenges of Socio-economic Development 3–6 Abstract: The escalation of discrimination in the context of the COVID-19 pandemic affects participants in the digital economy and other Internet users.
Lewis, Oliver, ‘Supranational Human Rights Bodies and Protecting the Rights of People With Disabilities in the COVID-19 Pandemic’ [2020] (4) European human rights law review 372–393 Abstract: This article has three aims. The first is to understand the array of advice, guidance, policy briefs, statements, toolkits, briefings and press releases of supranational human rights bodies (and allied bodies such as the World Health Organization) in relation to the rights of people with disabilities in the COVID-19 pandemic. The analysis is set out in nine themes that recur across the guidance and are of particular relevance to people with disabilities: information accessibility, physical distancing, social protection, rights in institutional settings, independent living, monitoring institutional settings, health, education and participation. At the start of the pandemic, a group of international human rights experts called on states ‘to remain steadfast in maintaining a human rights-based approach to regulating this pandemic’, which inspires the second aim which is to investigate whether the supranational bodies remained sufficiently steadfast to a human rights-based approach in their response to the pandemic in relation to people with disabilities. The third aim is to suggest how can these supranational bodies make sense of this inflection point to ensure that disability rights norms are implemented beyond the crisis.
Li, Qi, ‘State Regulation, Pandemic, and Africans in South China’ [2020] Conflict, Justice, Decolonization: Critical Studies of Inter-Asian Societies 1–9 Abstract: During the Covid-19 pandemic, African nationals were maltreated in Guangdong Province, China. African students and businesspeople were forced to undergo additional quarantine and nucleic acid tests. Meanwhile, they were unwelcomed on the street, at their places of work and even their accommodations. In contrast to the pro-Africa diplomatic policy of the state authority, the discriminative treatment that African nationals received in China reflects a hybrid ideology of Chinese nationalism, racism, and patriarchy. Sino-African relations in Chinese society are deteriorating.
Li, Yan and Sandro Galea, ‘Racism and the COVID-19 Epidemic: Recommendations for Health Care Workers’ (2020) 110(7) American Journal of Public Health 956–957 Abstract: In the midst of the COVID-19 pandemic, racism and racial discrimination against people of Asian descent may have the following adverse health consequences. First, racism causes mental health problems—such as depression and anxiety—among those targeted. As misinformation about the causes of the virus spread rapidly on social media, people of Chinese or other Asian descent have been increasingly discriminated against and isolated at work, at school, and in other public places. Several countries and many local businesses have decided to ban Chinese nationals from entry, which inevitably increases the stress level of those thus restricted and may have long-term mental health consequences for them.
Liebenberg, Sandra, ‘Austerity in the Midst of a Pandemic: Pursuing Accountability through the Socio-Economic Rights Doctrine of Non-Retrogression’ (2021) South African Journal on Human Rights (advance article, published online 6 September 2021) Abstract: This article examines the potential of the socio-economic rights doctrine of non-retrogression to hold the state accountable for policies of fiscal consolidation (‘austerity measures’) in South Africa. These policies threaten to erode many programmes and institutions critical to the delivery of the socio-economic rights recognised in the Constitution. The article provides a contextual analysis of fiscal consolidation policies in South Africa both in the lead up to and during the Covid-19 pandemic. It examines the nature of the doctrine of non-retrogression in international human rights law, and considers how the doctrine could be translated into South Africa’s existing jurisprudential framework on socio-economic rights. It concludes by considering how the procedural and participatory dimensions of the non-retrogression doctrine can play an important role in alleviating the institutional tensions involved in the judicial review of retrogressive measures. Ultimately, the article seeks to demonstrate that the doctrine of non-retrogression provides a framework and set of principles that can advance greater accountability for rights-eroding budgetary decisions.
Lim, Woojin, ‘Assessing the Implications of Digital Contact Tracing for COVID-19 for Human Rights and the Rule of Law in South Africa’ (2020) 20(2) African Human Rights Law Journal 540–557 Abstract: The article argues that the establishment of centralised and aggregated databases and applications enabling mass digital surveillance, despite their public health merits in the containment of the COVID-19 pandemic, is likely to lead to the erosion of South Africa’s constitutional human rights, including rights to equality, privacy, human dignity, as well as freedom of speech, association and movement, and security of the person. While derogation clauses have been invoked, thereby limiting International Covenant on Civil and Political Rights clauses and enabling the mass collection of location data only for contact tracing purposes under the Disaster Management Act, a sustained breach of these rights may pose an impending threat to the human rights framework in South Africa. Any proposed digital contact tracing technologies in their design, development and adoption must pass the firm legal muster and adhere to human rights prescripts relating to user-centric transparency and confidentiality, personal information, data privacy and protection that have recently been enacted through the latest development on Protection of Personal Information Act.
Litshani, Pfariso Victoria, ‘The Flattening of the COVID-19 Pandemic Curve and the Legal Paradox of Socio-Economic Rights in South Africa’ (LLM Thesis, University of Venda, 2023) Abstract: Major public health and socio-economic issues have been brought on by COVID-19, an infectious respiratory virus that causes symptoms similar to those of pneumonia. This study seeks to interrogate the implications of the legal approaches taken to address COVID-19 pandemic issues on the socio-economic rights in South Africa. To better understand the laws governing COVID-19 regulations and socio-economic rights and to provide an argument for their more effective application, the study used a doctrinal legal research methodology. Evidence that has been examined and interpreted in regard to socio-economic rights demonstrates that nations are obligated to act in a particular way in the event of pandemics under international human rights law. However, tension may arise as the performance of such obligations may clash with key individual rights of populations. South Africa is one of the most unequal nations in the world, yet its COVID-19 regulations were implemented with minimum regard for certain socio-economic rights of the population. Based on this finding, it is recommended that states, including South Africa need to respect, protect, and fulfil the enjoyment of basic human rights during pandemic times.
Litwin, Tomasz, ‘Is Obligatory Vaccination Against COVID-19 Acceptable from the Human Rights Perspective?’ in Jędrzej Skrzypczak and Oscar Pérez de la Fuente (eds), Lessons for Implementing Human Rights from COVID-19 (Routledge, 2024) Abstract: The COVID-19 pandemic caused the death of more than 6 million people worldwide (Covid-19 WHO, 2022). This disease is regarded as severe, possibly leading to death, and also very infectious. Even after being recognised as cured, many individuals infected by the SARS-CoV-2 virus suffer from long-term adverse effects. The pandemic forced governments to introduce lockdowns that limited rights and freedoms and worsened the economic situation of individuals and states.
Lokhandwala, Zainab, ‘Environmental Law in the Middle East and North Africa’ [2020] Opinio Juris in Comparatione (pre-print) Abstract: This paper analyses the impact of the Covid-19 pandemic on the Middle Eastern and North African (MENA) region against the backdrop of two themes: climate action and human rights. In the climate context, the renewable energy sector will certainly suffer in the immediate aftermath of Covid 19. At the same time, globally, renewables have shown more resilience than fossil fuels during this crisis, which may lead to increased investments in the long-term. Nevertheless, pre-Covid commitments and estimated future gains (if any) in renewables were not enough for combating climate change. The trajectory of regional climate action was slow and inadequate to begin with, and it is likely to suffer even further, owing to economic slowdown and relief measures that will pull resources away from climate action. In the human rights context, the Covid 19 crisis has led to increased authoritarianism and has added a new layer to existing human rights and humanitarian issues. As political stability is a prerequisite for the growth and execution of environmental law, public discontent against governments will only delay and detract the environmental agenda. Overall, these two legs of analysis show how the pandemic has led to a retraction of environmental law. Coming out of the crisis, there are many lessons to be learnt. Interdisciplinary approaches that draw a human-ecological-health nexus may offer solutions in the Middle East as in the world. The Berlin Principles 2019 are a positive step in this direction which could pave the way for more ecosystemic and holistic environmental legal development.
Longobardo, Marco, ‘The Duties of Occupying Powers in Relation to the Fight against COVID-19’ Abstract: Significant scholarship is investigating the array of international legal issues pertaining to the fight against COVID-19. This brief post aims at contributing to this debate by assessing the obligations upon occupying powers in this regard. Many sources have been reported that COVID-19 has reached occupied areas such as the OPT and Northern Cyprus. This post does not focus on the legality of the specific measures undertaken by some occupying powers, which will require more in-depth knowledge of facts and figures than the one currently available. Rather, it describes in wide brushstrokes the relevant legal framework to pave the way to future further analysis.
Loper, Kelley, ‘Intersecting Crises and Exponential Inequalities: The View from Hong Kong’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 97–118 Abstract: This chapter considers the capacity of equality law to address exponential inequalities arising from intersecting crises, that is, when more than one crisis occurs simultaneously or in close succession. It examines the case of Hong Kong, which has, in recent years, experienced increasing inequalities arising from a democracy deficit, shrinking space for civil society, political and ideological polarization, and strict responses to the Covid-19 pandemic. This has played out against the backdrop of a vast wealth gap and shortage of affordable housing. These crises intersect in complex ways with negative implications for the aims of substantive equality. They have also occurred alongside, and been influenced by, global developments including the pandemic, the rise of authoritarian regimes and populist movements, and other threats to democracy and human rights. As such, insights from Hong Kong may inform strategies for dealing with the effects of crisis elsewhere. Multiple crises in Hong Kong have predominantly impacted groups facing intersectional disadvantage, including migrant domestic workers, refugees, mainland immigrants, and people of South Asian origin. Hong Kong equality law, however, is generally ill-equipped to prevent or remedy such complex disadvantage. The Hong Kong situation illustrates the importance of enhancing the participation of groups lacking political and social voice as a critical element of substantive equality. When a democracy deficit prevails, the general inability to participate, compounded by a worsening disproportionate lack of representation by marginalized communities, makes it even more difficult to advance equality claims.
Lumley-Sapanski, Audrey et al, ‘Exacerbating Pre-Existing Vulnerabilities: An Analysis of the Effects of the COVID-19 Pandemic on Human Trafficking in Sudan’ (2023) 24(3) Human Rights Review 341–361 Abstract: COVID-19 has caused far-reaching humanitarian challenges. Amongst the emerging impacts of the pandemic is on the dynamics of human trafficking. This paper presents findings from a multi-methods study interrogating the impacts of COVID-19 on human trafficking in Sudan—a critical source, destination, and transit country. The analysis combines a systematic evidence review, semi-structured interviews, and a focus group with survivors, conducted between January and May of 2021. We find key risks have been exacerbated, and simultaneously, critical infrastructure for identifying victims, providing support, and ensuring accountability of perpetrators has been impeded. Centrally, the co-occurrence of the pandemic and the democratic transition undercut the institutional and governance capacity, limiting the anti-trafficking response and exposing already vulnerable groups to increased risks of human trafficking. Findings point to increased vulnerabilities for individuals with one or more of the following identities: migrants, refugees, females, and informal labourers.
da Luz Scherf, Erick, Marcos Vinicius Viana da Silva and Janaína S. F., ‘The Management (or Lack Thereof) of COVID-19 in Brazil: Implications for Human Rights and Public Health’ (SSRN Scholarly Paper No ID 3609303, 24 May 2020) Abstract: The objective of this article is to explore how the COVID-19 pandemic has been managed in Brazil, especially through the analysis of the actions and inactions of the Brazilian president Jair Bolsonaro related to the complete denial of the global threat that the new coronavirus represents, seeking to demonstrate its major impacts on human rights and public health in the country. Our main conclusions were that: (i) since the election of Bolsonaro in 2018, Brazilian politics have been entrenched with a neoliberal spirit marked by illiberal notions that have compromised Brazil’s democracy and rights regime; (ii) since 2016, the Brazilian Unified Health System (SUS) has been subjected to a privatizing logic guided by market rules and exploitation of health as a source of profits, which represents a serious threat to the right to health in the country as a result of the first; (iii) by not making sufficient efforts to safeguard the lives of Brazilians or to strengthen public health institutions in the middle of the new coronavirus pandemic, the Brazilian State is violating the rights to life and health by omission; (iv) ultimately, it was demonstrated that Bolsonaro has worked unceasingly to bulldoze anti-COVID-19 efforts in Brazil and how it can be better explained through the concept of necropolitics.
Maguire, Amy and Donna McNamara, ‘Human Rights and the Post-Pandemic Return to Classroom Education in Australia’ (2020) 45(3) Alternative Law Journal 202–208 Abstract: This article identifies tensions between the human rights central to a return to classroom-based education during the COVID-19 pandemic. It notes the complexity of balancing rights to health, education and work for students, teachers and school staff, including for the most vulnerable in those groups. The authors argue that Australia would be well served by a comprehensive human rights framework to support difficult processes of balancing rights in tension.
Mannan, Sonia, Jobair Alam and Md Habibur Rahman, ‘Human Rights Dimensions of COVID-19 Responses in Bangladesh: Challenges and Recommendations’ [2021] International Journal of Human Rights in Healthcare (advance artiicle, publlished online 23 June 2021) Abstract: The purpose of this paper is to scrutinize the human rights dimensions of COVID-19 responses in Bangladesh through a viewpoint methodology in four critical areas: freedom of opinion and expression; access to information; protection of health-care workers; and marginalized populations’ access to health care. However, these responses remain non-aligned with the international human rights law obligations of Bangladesh, which undermines the human rights and dignity of its population. Based on the responses shaping and aggravating the situation, this paper concludes with some recommendations, which can be helpful for Bangladesh for better human rights responses in these areas, should a parallel situation emerge in the future.
Manrique De Lara, Amaranta and María De Jesús Medina Arellano, ‘The COVID-19 Pandemic and Ethics in Mexico Through a Gender Lens’ (2020) 17(4) Journal of Bioethical Inquiry 613–617 Abstract: In Mexico, significant ethical and social issues have been raised by the COVID-19 pandemic. Some of the most pressing issues are the extent of restrictive measures, the reciprocal duties to healthcare workers, the allocation of scarce resources, and the need for research. While policy and ethical frameworks are being developed to face these problems, the gender perspective has been largely overlooked in most of the issues at stake. Domestic violence is the most prevalent form of violence against women, which can be exacerbated during a pandemic: stress and economic uncertainty are triggers for abuse, and confinement limits access to support networks. Confinement also exacerbates the unfair distribution of unpaid labor, which is disproportionately assigned to women and girls, and highlights inequality in the overall labor market. Lack of security measures has resulted in attacks towards health workers, particularly female nurses, due to fear of contamination. Finally, resource results in lack of access to other health necessities, including sexual and reproductive health services. Research across all disciplines to face—and to learn from—this crisis should be done through a gender lens, because understanding the realities of women is essential to understand the pandemic’s true effects in Mexico and the world.
Mapako, Kudakwashe, ‘Proportionality of Fundamental Human Rights: A Reflection of Low Income Communities Vis-a-Vis Corona Virus Epidemic’ (SSRN Scholarly Paper ID 3623079, 9 June 2020) Abstract: Proportionality has been a pivotal pillar in upholding the Rule of Law and also providing limitations to human rights interference by States as a way of preserving Human Rights and establishing a balance. This article seeks to shed light and spark a discussion around the issue of Proportionality of Fundamental Human Rights in the wake of a global emergency/threat. By looking at measures of ‘isolation and lockdown’ that have been inserted by States around the globe to mitigate and deal with the Coronavirus epidemic. Thereby unpacking proportionality with consideration of the severity and effects it has waged to low-income communities. Thus a discussion whether the interference of fundamental human rights in low-income communities is justified to the objective, which has been identified as of sufficient importance.
Marastoni, Marzia, ‘COVID-19 and Human Rights Law: A Legal and Philosophical Approach’ (2021) 14(40) HUMANA.MENTE Journal of Philosophical Studies 55–87 Abstract: At the time of writing, an infectious disease, named COVID-19, has spread globally, resulting in the on-going pandemic. For this reason, more than ever it is fundamentally important to address the issue on how to allow government sufficient discretion, flexibility, and powers to deal with emergencies, such as COVID-19, while respecting the rule of law. Notably, there are some exceptional situations where States can restrict or derogate from certain human rights. Yet, what are the moral principles that should guide democracies when dealing with the limitation or suspension of rights in times of public emergencies? Through the lenses of utilitarianism and liberalism, this paper aimed at providing both a legal and a philosophical overview of the limitation, or suspension, of human rights in emergency situations – such as the COVID-19 pandemic. The legal-philosophical approach of this paper is, therefore, fundamental in order to understand the current situation. In other words, the legal-philosophical approach of this paper will help to understand the current challenges for human rights during times of crisis. To understand why we are where we are.
Martin, Greg, ‘Protest, Policing and Law during COVID-19: On the Legality of Mass Gatherings in a Health Crisis’ (2021) 46(4) Alternative Law Journal 275–281 Abstract: This article considers the legal status of protest rights in Australia during the COVID-19 public health crisis. It discusses jurisprudence of the New South Wales Supreme Court regarding the legality of mass gatherings for the purpose of protest during the COVID pandemic. Balancing protest rights with risks to community safety posed by possible coronavirus transmission at public assemblies, the Court has sometimes allowed and sometimes prohibited protests. The article critically examines the policing of protest during the pandemic and explores some of the implications of comparing emergency measures introduced during the COVID crisis with similar measures introduced in the wake of the 9/11 terror attacks.
Marsons, Lee and Sarah Nason, ‘Equality and the Coronavirus Job Retention Scheme’ [2020] (October) Public Law 776–778 Abstract: Notes R. (on the application of Adiatu) v HM Treasury (DC) on whether the exclusion from eligibility for the Coronavirus Job Retention Scheme and statutory sick pay of those without employment contracts but who fell to be treated as workers within the Employment Rights Act 1996 s.230(3)(b) was unlawfully discriminatory in breach of ECHR art.14 and Protocol 1 art.1 or the public sector equality duty under the Equality Act 2010 s.149.
Marsons, Lee and Sarah Nason, ‘Human Rights’ [2020] (October) Public Law 773–778 Abstract: Reviews human rights developments, including the rules permitting the 1 June 2020 reopening of schools, colleges and nurseries in specific circumstances, the May 2020 launch of the NHS Track and Trace Scheme, the impact of a rise in community transmission of COVID-19 on lockdown restrictions, and an inquiry by the Equality and Human Rights Commission into how the coronavirus pandemic has affected ethnic minorities. Notes case law relating to litigants in person, eligibility for the Coronavirus Job Retention Scheme and tenancies for housing benefit claimants.
Marszałek-Kawa, Joanna and Kateryna Holovko, ‘The Limitations of Human and Civil Rights in the Era of the COVID-19 Pandemic and the Activity of the State and Law: The Case of Estonia’ (2023) 7(1) Bratislava Law Review 89–100 Abstract: Restrictions in the sphere of civil rights and freedoms introduced by governments led to the numerous demonstrations of citizens in the whole world. During street protests, they expressed their disapproval of the radical measures taken by authorities. The main research problem of this paper relates to the impact of repression on the course of social protest using the example of Estonia. The findings of the study will serve as the basis for formulating more general conclusions concerning protests in the pandemic era. We will describe repressive and non-repressive protest policing from the spring of 2020 to the autumn of 2021. Having in mind the above, we formulated two principal research aims. The first of them refers to the identification of the main reasons behind the organisations of protests in Estonia and what steps the demonstrators took. The other, equally important research aim is to establish what factors influenced the course of demonstrations. In particular, the response of the police to civil disorder will be analysed. The thesis posed in this paper assumes that the high level of political culture, resulting in trust in the institution of the state, contributes to the de-escalation of protests and influences the non-repressive behaviour of the police towards demonstrators. The method used in this study is the qualitative source analysis text analysis. It draws on the technique of content analysis of the specific media coverage of the activities of the police and protest participants during the indicated period. The study rests on the reports that appeared on the most important websites and Internet portals reporting on the course of the protests.
Martin, Greg, ‘Protest, Policing and Law during COVID-19: On the Legality of Mass Gatherings in a Health Crisis’ (2021) Alternative Law Journal (advance article, published online 25 June 2021) Abstract: This article considers the legal status of protest rights in Australia during the COVID-19 public health crisis. It discusses jurisprudence of the New South Wales Supreme Court regarding the legality of mass gatherings for the purpose of protest during the COVID pandemic. Balancing protest rights with risks to community safety posed by possible coronavirus transmission at public assemblies, the Court has sometimes allowed and sometimes prohibited protests. The article critically examines the policing of protest during the pandemic and explores some of the implications of comparing emergency measures introduced during the COVID crisis with similar measures introduced in the wake of the 9/11 terror attacks.
Martin‐Howard, Simone and JD Kyle Farmbry, ‘Framing a Needed Discourse on Health Disparities and Social Inequities: Drawing Lessons from a Pandemic’ (2020) 80(5) Public Administration Review 839–844 Abstract: COVID-19 provides numerous opportunities for policymakers to consider matters of social equity in relation to the field of public health. Specifically, by reflecting on health disparities in relation to the disproportionate impact of COVID-19 on minority and historically underserved populations, we can leverage a needed discourse on health outcomes for many communities. Grounded in the social determinants of health conceptual framework, this article explores the application of the disproportionate impact of COVID-19 on vulnerable populations and communities of color for a discussion on strategies for minimizing health disparities.
Masselot, Annick and Maria Hayes, ‘Exposing Gender Inequalities: Impacts of Covid-19 on Aotearoa ǀ New Zealand Employment’ (2020) 45(2) New Zealand Journal of Employment Relations (advance article, published 29 October 2020) Abstract: This article outlines how the Covid-19 pandemic exacerbates economic and social gender inequalities in Aotearoa ǀ New Zealand. While this crisis highlights the central part played by women in the economy, the gender impacts of the pandemic are visible in connection to a decrease in job security and financial safety for female workers; to a rise in the duplication of paid and unpaid work; to an increase violence in and outside of homes; a heightened risk exposure to the virus and worse health outcomes. Not all women are equally positioned in this crisis, women of Māori and Pacific descent are disproportionately feeling the effects of the pandemic. The two-prong, government’s recovery plan, which only partially ensures a fair and equal economic rebuild, is critically assessed. While the economic response fails to take a systematic gender approach, scope for challenging traditional gender assumptions is met head-on in relation to policy on violence against women. The article considers flexible working options and focuses on options for reframing employment law in a post-pandemic environment with a view to achieve and deliver equality between men and women through an intersectional lens.
Matthew, Danya Bowen, ‘Structural Inequality: The Real COVID-19 Threat to America’s Health and How Strengthening the Affordable Care Act Can Help’ (2020) 108(6) Georgetown Law Journal 1679–1716 Abstract: This Essay addresses two of the many lessons America must learn from the COVID-19 pandemic in order to survive. Both lessons are about structural inequality. The first is that structural inequality threatens the health of our entire population. The COVID-19 pandemic laid bare the fallacy of imagining that inequality is only a problem for the marginalized among us. Although it is all too true that the pandemic has disproportionately ravaged poor neighborhoods as compared to wealthy ones, killed more blacks than it did whites, and afflicted the elderly more severely than the young, by attacking the most vulnerable, it crippled us all. The virus shut down at least one-quarter of the U.S. economy. No community was isolated from the dangers the disease that daily threatened the ‘essential’ workers who delivered groceries, stocked shelves, harvested fruit, drove buses, and provided healthcare for everyone in the nation. The threat of death and economic destruction touched all, though it was borne most heavily by a few. Indeed, this pandemic has taught that we will ignore the disproportionate devastation suffered by the least privileged among us to our collective peril. The second vital lesson is that structural racism is the greatest threat America now faces to our democracy. Structural racism may be defined as the brand of structural inequality fomented by unchecked racial discrimination in housing, education, the environment, and criminal justice, and other major societal institutions. I argue that the key to overcoming this dual public health threat lies in health providers, patients, and lawmakers uniting to dismantle structural racism. First, we must rectify systemic racial discrimination in housing, education, the environment, and radically reform the American criminal justice system. Systematic discrimination in each of these domains not only disproportionately disrupts access to the basic building blocks known as the social determinants of health, but it also fixes disadvantage in black and brown communities, while concomitantly fixing advantage in white communities. This fundamentally defeats the core American value of equal opportunity and justice for all. Moreover, structural racism forges racial isolation and segregation fomenting the fear, stigmatization, stereotyping, and resentment that makes democratic reform impossible, and unchecked violent reactions likely. The result is an irrepressible eruption of hatred and violence; we must give credence to the cry of activists who are filling streets around the world: America must now ‘Know Justice, to know peace!’ This essay calls upon lawmakers to reverse structural racism, beginning with equalizing access to high quality health care, that screens for and treats all inequities in the social determinants of health as medicine. I identify strengthening Section 1557 – the Health Care Civil Rights provision of the Affordable Care Act as a starting point. However that will not be enough. Beyond universalizing health care, we must universalize the example set for us by healthcare workers during the COVID-19 crisis. They have stood on the frontlines against a pandemic, to fight for the lives of all, especially the most vulnerable among us, putting their own lives at risk for the greater good. They have shown us what it means to regard all humanity as equally valuable before the Creator. I argue that it is time for lawmakers and the all of us to do the same.
May, James R and Erin Daly, ‘Dignity Rights for a Pandemic’ (SSRN Scholarly Paper No ID 3661019, 4 July 2020) Abstract: Dignity under law can help in times of strife, including pandemic. Attempts to contain the infection has led to quarantine, global lockdowns, closed borders, dislocated families, shuttered businesses, emptied airlines, airports and other constituents of travel, and vast social distancing across all sectors of society. As of this writing, there is no vaccine or cure and treatments of dubious efficacy. Hospitals and healthcare systems and workers are overwhelmed if not overwrought. Plans for schools, restaurants, bars and businesses changes daily. Health workers are putting their lives on the line. Many of those infected are sitting ducks, cordoned in elderly care facilities, prisons and hospitals. Foreigners are blamed. Each and every pandemic-induced tremor and aftershock tests the bounds of human dignity as a value and as a right.The concept of human dignity means, quite simply, that every person has inherent equal worth. This incontrovertible but profound concept is derived from the body of dignity law that has developed since the end of World War II at the international, regional, national, and subnational levels, where dignity has become the central axis around which law rotates. Dignity recognizes that every member of the human family has worth that is equal, inherent and universal. Dignity is also law. Both the UN Charter and the Universal Declaration of Human Rights (UDHR) confirm the foundational place of the recognition of human dignity in the building of the new post-war world order. Advancing human dignity also is a central premise of the binding International Covenant on Civil and Political Rights and International Covenant on Social, Economic and Cultural Rights, and virtually all subsequent instruments addressing human well-being. It is recognized in the constitutions of more than 160 countries, including all 49 constitutions adopted since 2003, as a fundamental value and/or as an actionable right. And, the 400,000 member strong American Bar Association recently recognized dignity as foundational to the rule of law. Courts around the globe have applied the right to dignity in thousands of cases involving abortion, assembly, death penalty, due process, education, the environment and climate change, equal protection and affirmative action, family law, gender and sexual identity, health care, immigration, incarceration, patents, professional ethics, religion, speech, torture, work, voting, and more.This chapter highlights the normative and legal dimensions of dignity, and how taking account of dignity under law can improve outcomes during a pandemic.
Mazur, Anatoliy, ‘Pandemic as a Challenge to International and National Law’ [2021] (2) Customs Scientific Journal 44–51 Abstract: The article is devoted to the analysis of the impact of the pandemic caused by COVID-19 on human rights. The analysis is carried out through the prism of studying two practices: (a) the use by states in the new conditions of a specific instrument ‘derogations from the Covenant’; (b) interpretation by the courts of government anti-epidemic restrictions and prohibitions.
McClain, Linda and Naomi Cahn, ‘Gendered Complications of Covid-19: Towards a Feminist Recovery Plan’ (Boston University School of Law Public Law & Legal Theory Paper No 20–30, 1 September 2020) Abstract: Gendered inequalities are on the frontlines of Covid-19. The catalogue of Covid-19’s impact covers all aspects of women’s lives: work, family, education, health, reproduction, mental and physical well-being, and leisure. The pandemic has exposed the limitations in the current economic system on public and private support for gender equity and the intersecting impact of gender, race, and class in that lack of support. Women of color, particularly Black, Latina, and Native American, are at the intersection of the inequities in the emerging stay-at-home economy. This Article argues that Covid-19 is likely to have complex implications for gender equality and gender equity as state and local governments, the federal government, and private actors focus on recovery plans. The negative impact includes hundreds of thousands of deaths, lingering health complications for many among the several million people who have already contracted the virus, massive economic disruption and loss for individuals, families, and communities and the exacerbation of structural inequalities. The creative policy responses prompted by the devastating impact of Covid-19 provide promise for building a more transformative and equitable future. Indeed, any roadmap to resilience is incomplete without addressing the gender inequities in our social infrastructure. Proposing a feminist recovery plan, this Article focuses on a set of issues relating to gender inequities concerning work and family, including the gender pay gap, the child care crisis, and the disproportionate role of women—particularly, women of color— in providing essential but undervalued care work.
McMellon, Christina and A MacLachlan, ‘Young People’s Rights and Mental Health During a Pandemic: An Analysis of the Impact of Emergency Legislation in Scotland’ (2021) 29(4_suppl) YOUNG S11–S34 Abstract: Emerging evidence indicates that the COVID-19 pandemic and government measures put in place in response to this have had a detrimental impact on young people’s mental health. A children’s human rights-based approach was taken to examine the impact of the legislative and policy measures that were implemented in Scotland in response to the pandemic on children’s rights related to their mental health. Key concerns were identified around children’s rights to access mental health services and information, participation in decision-making and non-discrimination of vulnerable groups. Although the analysis focussed on Scotland, recommendations to protect these rights are likely to be relevant to other countries following similar approaches as lockdown restrictions are eased, or in the event that stricter local or national measures are required again to curb rising infection rates or subsequent wave(s).
McWhirter, Rebekah, ‘The Right to Liberty in a Pandemic’ (2021) 40(2) The University of Queensland Law Journal 159–179 Abstract: The European Convention on Human Rights has given rise to the most extensive and influential case law of any human rights jurisdiction, and the inclusion of an express infectious diseases exception to the right to liberty suggests that its jurisprudence is likely to provide the best available guidance to states on the circumstances in which such measures may be justifiable and lawful. However, this article argues that the principles developed to date are limited in their applicability to the current crisis, and are insufficient for determining the appropriate balance between public health and the right to liberty when seeking to control the spread of a large-scale, highly infectious disease.
Meier, Benjamin Mason, Dabney P Evans and Alexandra Phelan, ‘Rights-Based Approaches to Preventing, Detecting, and Responding to Infectious Disease’ in Mark Eccleston-Turner and Iain Brassington (eds), Infectious Diseases in the New Millennium: Legal and Ethical Challenges (Springer, 2020) Abstract: Human rights offer universal frameworks to advance justice in public health, codifying international standards to frame government obligations. Health-related human rights have evolved dramatically over the past thirty years to offer a normative framework for justice in preventing, detecting, and responding to infectious disease outbreaks. Where human rights were long neglected in international health debates, the advent of the HIV/AIDS pandemic response would operationalise human rights for public health, as advocates looked explicitly to human rights in framing public health efforts. In this period of heightened fear and emerging advocacy, policymakers first sought to implement human rights law in public health law—viewing discrimination as counterproductive to public health goals, abandoning coercive tools of public health, and applying human rights to focus on the individual risk behaviours leading to HIV transmission. By finding a link between public health and human rights, the health and human rights movement could move away from its early focus on the conflicts between public health goals and individual human rights, employing human rights to advance public health. However, infectious disease control efforts continue to challenge the notion that individual rights can best support population health. In the new millennium—from the 2005 revision of the International Health Regulations to the 2014 birth of the Global Health Security Agenda—policymakers have sought to balance infectious disease imperatives for the public’s health with individual dignity protections in human rights. Yet, national public health efforts continue to employ mechanisms that infringe individual rights—from the recent Ebola epidemics in Sub-Saharan Africa to the ongoing COVID-19 pandemic that threatens the world—with public health laws violating individual bodily integrity through vaccination mandates, violating individual medical privacy through surveillance and reporting, and violating individual liberty through quarantine and isolation.
Michalowski, Sabine, ‘The Use of Age as a Triage Criterion’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 93–100 Extract from Introduction: This contribution will address some of the ethical and human rights considerations that should inform the discussion of whether age can be regarded as a valid criterion to decide who receives life-saving treatment at a time of acute scarcity of medical resources, using the Covid-19 pandemic as a case study.
Milczarek-Desai, Shefali and Tara Sklar, ‘The Return of Typhoid Mary? Immigrant Workers in Nursing Homes’ [2021] Journal of Elder Policy (forthcoming) Abstract: Nursing homes are dependent on immigrant, female labor as nursing aides, yet these workers are provided with minimal employment benefits, which has led to devastating consequences for vulnerable, older residents during COVID-19. Emerging research suggests that aides are contributors to the increase in coronavirus outbreaks due to working in multiple long-term care facilities and refer to these individuals as ‘superspreaders.’ Specifically, aides have been tied to unwittingly passing on the virus as they may be asymptomatic or pressured to work by employers while symptomatic with limited access to paid sick leave. The plight of these women harkens back to ‘Typhoid Mary’—also a poor, immigrant woman who was accused of spreading typhoid fever a century ago. This Article applies lessons learned from Mary’s shocking and tragic trajectory, then employs critical race and feminist jurisprudence to highlight examples of structural and institutional disparities that exist in current paid sick leave laws. Recommendations call for improved oversight in delivery of quality and safety in long-term care by addressing racial, gender, and economic inequalities through paid sick leave laws coupled with strong enforcement.
Miller, Romaine and Rachel Tsang, ‘The Judiciary, Police Detention, and COVID-19. A Brief Review of Abridged Rights and Freedom in National Crises’ (SSRN Scholarly Paper No ID 3593997, 6 May 2020) Abstract: In this paper, the writers wish to prose [sic] their thoughts on questions surrounding Police Detention and the Judiciary’s responsibility to uphold the rights and freedom of citizen [sic] in police custody during this on-going global COVID-19 pandemic. Whilst also examining how national emergencies extend state power and diminish fundamental rights.
Minson, Shona and Catherine Flynn, ‘Symbiotic Harms of Imprisonment and the Effect on Children’s Right to Family Life: Comparing the Impact of Covid-19 Prison Visiting Restrictions in the UK and Australia’ (2021) 29(2) International Journal of Children’s Rights 305–325 Abstract: Measures taken by governments to address COVID-19 in prisons, have impacted significantly on the lives and rights of children. There has been consequential interference with children’s rights to family life and to contact with a parent from whom they have been separated. Since the onset of the pandemic, prisoners in many jurisdictions have lived under restricted regimes with almost universal bans on family visits. Children have not had face-to-face contact with their imprisoned parents, and alternate forms of contact have not always been available to them. Using survey and interview data collected during lockdowns in the UK and Australia, we consider the implications of the interference with the rights of children with an imprisoned parent. Focusing on their relationships, health and wellbeing and using the concept of symbiotic harms, we note how children’s experiences of the cessation of contact interacted with parents’ and caregivers’ experiences, amplifying the harms to children.
Mitchell, Lynsey and Michelle Weldon-Johns, ‘Law’s Invisible Women: The Unintended Gendered Consequences of the Covid-19 Lockdown’ (2022) 3(2) Amicus Curiae, Series 2 188–217 Abstract: This article examines the unintended gendered consequences of lockdown on women’s rights, particularly those related to women’s work, health and wellbeing. Situating this assessment within wider feminist legal scholarship, which exposes the gendered nature of law and the tendency to legislate in a way that prioritizes a privileged male legal subject, we argue that legislation and subsequent decisions fail to centre women’s lived experiences and so deprioritize women’s needs. We ultimately argue that lessons need to be learned regarding how post-pandemic responses are implemented to mitigate the impacts on women and ensure gender is mainstreamed within the law-making process.
Mitrović, Ljubinko and Predrag Raosavljević, ‘Human Rights Ombudsmen in the Pandemic: Challenges in Protection of Vulnerable Groups’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 805–819 Abstract: Pandemic of virus COVID-19 posed numerous and unprecedented challenges to citizens and authorities which required shift in behavior and actions of all segments of society. Representing Ombudsmen Institution of Bosnia and Herzegovina, authors shared their experience in monitoring implementation of the decisions of all levels of government and presented challenges in striking the right balance between interests of public health and protection of rights of vulnerable groups. Public authorities in Bosnia and Herzegovina have passed emergency measures aimed at containing the spread of virus, but some of them failed to maintain human rights standards. Following the decisions of crisis centers to limit the freedom of movement, it was necessary to secure rights of children to education, protection from domestic violence and neglect in the family context. In introducing online education, authorities were asked to adapt recognition and grading system to the children in different conditions and circumstances, especially to the children with difficulties in development, children living in poverty and on margins of society such as Roma children or those living in institutions. Ombudsmen Institution registered increase in the number of domestic violence cases because measures limiting freedom of movement had impact on victims’ ability to seek help from trusted sources, usually members of immediate family or representatives of law enforcement agencies. Having in mind that large number of citizens could not afford access to the official gazettes in any form, Ombudsmen requested that all enacted legislation be accessible online recommended that the decision banning reporters from conferences be reconsidered, guided by the right of citizens to be informed of their government actions. Examining the practice of placing COVID stickers on mail by the Post Office, Ombudsmen issued recommendation to stop such practice as it was deemed disproportional to the right to privacy and protection of personal data, while the protection of postal workers could have been ensured by other protective measures. It also became evident that national budgetary capacities had to be increased in order to prevent deterioration in provision of basic public services such as health and social protection, since economic consequences of the pandemic were disproportionally felt by the groups exposed to poverty, such as Roma, refugees or migrants. Drawing conclusion from concrete cases, authors offer review of particular emergency measures, analyze their adequacy, justifiability and timeliness, while presenting authorities’ response to Ombudsmen’s findings in formulating more adequate and efficient but, at the same time, least intrusive measures taken in response to the disaster. In search of common response to such widespread phenomenon, governments should recognize the intention of Ombudsmen Institutions to be in „permanent session“ over protection of vulnerable groups and should more actively involve it in discussions on emergency measures and their effect on human rights and freedoms. It proved to be better suited to act quickly, to apply more effective remedies and to correct government actions thanks to its knowledge of the local context than traditional institutions for protection of human rights, such as constitutional courts, international courts or treaty bodies.
Miyandazi, Victoria, ‘An Equality-Sensitive Approach to Delivering Socio-Economic Rights during Crises: A Focus on Kenya’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 335–352 Abstract: This chapter discusses how the dire situation of vulnerable groups in Kenya is exacerbated in times of crises, such as the Covid-19 pandemic. Loss of employment, food shortages, and the high cost of living, coupled with the lack of equality-sensitive interventions by the government, have led to a rise in the number of Kenyans living in absolute poverty. This is despite the fact that Kenya’s 2010 Constitution contains multiple provisions on the protection of the socio-economic rights of vulnerable groups, with Article 20(5)(b) going even further to require the prioritization of the needs of vulnerable groups when implementing the socio-economic rights in Article 43 of the Constitution, to ensure their widest possible enjoyment. The chapter argues that, as much as Kenya’s laws provide the necessary legal framework and impetus for applying equality-sensitive approaches to delivering socio-economic rights and to avoid reinforcing inequality in times of crisis, they are not implemented by those in charge. The challenge, therefore, is the lack of application of actual laws in practice to facilitate the implementation of socio-economic rights to address the adverse effects of crises and their aftermath. In the final analysis, the chapter emphasizes that the needs of the most vulnerable in society should be prioritized when the state is implementing initiatives to respond to crises. This is what is constitutionally mandated in Kenya. To achieve this may mean the enactment of laws to best tackle contempt of court orders and blatant disregard of the law.
Mizan, Arpeeta Shams, ‘Invisible to the Law: COVID-19 and the Legal Consciousness of Persons with Disabilities in Bangladesh’ (2021) 8(1) Disability and the Global South 1892–1909 Abstract: Despite disability rights being recognized through formal legislation in Bangladesh, the rights of persons with disabilities are still not effectively ensured. State interventions during the pandemic have not sufficiently accommodated the rights of Persons with Disabilities. Pre-existing social prejudices have added to their plight. Due to social prejudice and myriad access to justice challenges, persons with disabilities in Bangladesh face negative attitudes when it comes to exercising their legal rights. The article uses primary data obtained through qualitative interviews and secondary sources to illustrate how the Covid19 pandemic has reinforced structural discriminations and increased the vulnerability of persons with disabilities.
Mohee, Mansha, ‘Electoral Governance and Human Rights Amid Pandemics in Africa: Key Lessons from the Early COVID-19 Experience’ (2021) 65(S2) Journal of African Law 209–236 Abstract: Over 25 African countries had planned elections for 2020. In the face of the onset of the COVID-19 pandemic in March, states resorted to one of two courses of action: adherence to planned electoral timelines in the shadow of the outbreak, which largely led to record low voter turnouts and hastened the spread of the virus; or adjourning elections with ill-defined election programming, constitutional tensions and unrest over delayed polls. The global health crisis not only frustrated the organization of the electoral process but set severe challenges to democracy, the rule of law and human rights in the region at a time of landmark elections, notably in Ethiopia, Burundi and Malawi. This article analyses initial state responses in electoral administration in light of international electoral norms, and interrogates the role of national and regional mechanisms in securing safe, inclusive, timely, free and fair elections amid new infectious disease outbreaks.
Morag, Nadav (ed), Impacts of the Covid-19 Pandemic: International Laws, Policies, and Civil Liberties (Wiley, 2022) Contents:
- Wierenga, Adriaan J and Jorrit Westerhof, ‘The Netherlands: Dutch COVID-19 Policy Viewed from a Fundamental Rights Perspective’ 1–22
- Greene, Alan, ‘Emergencies, Executive Power, and Ireland’s Response to the Covid-19 Pandemic’ 23–40
- Uhlmann, Felix, ‘COVID-19: Legal Lessons Learned in Switzerland’ 41–57
- Halladay, Carolyn, ‘Not Dead Yet: Protest, Process, and Germany’s Constitutional Democracy Amid the Coronavirus Response’ 59–78
- Cormacain, Ronan and Duncan Fairgrieve, ‘The United Kingdom Legislative Response to Coronavirus: Shotgun or Machine Gun’ (Wiley, 2022) 79–97
- Malandrino, Anna, Margherita Paola Poto and Elena Demichelis, ‘The State of Exception and Its Effects on Civil Liberties in Italy During the COVID-19 Crisis’ 99–119
- Halladay, Carolyn, Florina C Matei and Andres de Castro, ‘Praise the Alarm: Spain’s Coronavirus Approach’ 121–140
- Matei, Florina C, ‘Pandemic Pangs and Fangs: Romania’s Public Safety and Civil Liberties in the COVID-19 Era’ 141–163
- Palle, Angelique et al, ‘Policymaking and Liberty Restrictions in the Covid-19 Crisis, the Case of France’ 165–180
- Lin, Cheryl et al, ‘Policy Measures, Information Technology, and People’s Collective Behavior in Taiwan’s COVID-19 Response’ 181–208
- Trung, Nguyen T and Nguyen Q Duong, ‘The Legislative and Political Responses of Viet Nam to the Covid-19 Pandemic: The Balancing of Public Health and Collective Civil Liberties’ 209–234
- Chen, Jacinta I-Pei et al, ‘Singapore United’ 235–300
- Cameron, Iain and Anna Jonsson Cornell, ‘Sweden and Covid-19: A (Mainly) Recommendary Approach’ 301–321
- Tsuji, Yuichiro, ‘Administrative Guidance in Coronavirus Special Measures Act in 2021 in Japan’ 323–338
- Syed, Iffath U, ‘Canada’s Fight Against COVID-19: Constitutionalism, Laws, and the Global Pandemic’ 339–357
- Abenheim, Donald and Carolyn Halladay, ‘Coronavirus and the Social State: Austria in the Pandemic’ 359–377
Abstract: This paper presents the decision of the Inter-American Court of Human Rights in the Lhaka Honhat v. Argentina case, focusing on the Court’s recognition of water as an autonomous right. The main argument is that the case is a milestone in the jurisprudence of the Court since for the first time it recognizes the direct justiciability of the right to water, offering a holistic approach to tackle inequalities and to provide means for overcoming marginalization. In the current context of COVID-19 pandemic, the decision becomes a paramount reference for judicial protection of vulnerable groups, proposing legal arguments for the guarantee of access to safe water. It is argued that the ruling has the potential to transcend the individual case and to enhance the transformative mandate of the IACtHR. The method used is bibliographic review, mostly based upon primary sources (judicial decisions). It relates to two theoretical backgrounds, the theory on intersectional discrimination and the ius constitutionale commune framework. The Court’s decision and its victim-centred approach is discussed in light of the situation of poverty and multiplied vulnerability that indigenous peoples in Latin America face. Besides, it is contextualized with precedents of indirect recognition of social rights to indigenous peoples through the affirmation of the right to a dignified life. A comparative perspective gives insights into the decision’s potential to transcend the individual case and, more specifically, to enforce the protection of indigenous rights during the COVID-19 pandemic. Finally, within the framework of a ius constitutionale commune, the Court is attributed a transformative mandate through which it can combat discrimination and promote structural change. The paper concludes stressing the importance of the recognition of intersectional discrimination in order to ensure access to safe water to indigenous peoples and other vulnerable groups. It also highlights the significance of the recognition of direct justiciability of social rights in order to tackle inequalities in times of pandemic.
Morang’a, Emmaqulate K, ‘COVID-19 and the State of Socio-Economic Rights in Kenya: Why We Must Take These Rights Seriously’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium IV: Governance, Rights, and Institutions, 26 May 2020) Extract: Due to lack of specific permanent measures to promote socio-economic rights, the capacity of the Government to cushion Kenyans against the economic harshness of COVID-19 is being put into test. Despite the government having formulated some measures especially in form of tax reliefs, basic needs of most vulnerable families are being met through donations from the corporate Kenya as philanthropy. For human dignity, in the bare minimum, a country’s people should be able to meet their basic human needs, which include shelter and food. Also noting the Government’s efforts through the Big 4 Agenda, the biggest question remains the executive’s accountability in its implementation. As long as the hands of the judiciary on enforcement of socio-economic rights remain tied, socio-economic rights remain a dream for many Kenyans especially in times of disasters. If we are to take anything home from COVID-19, is that socio-economic rights are basic human needs and we must take them seriously.
Morris, Katie, ‘Faces of Hunger: An Intersectional Approach to Children’s Right to Food in the United Kingdom’ (2022) 49(4) Journal of Law and Society 726–752 Abstract: This article explores the extent to which the right to food is currently enjoyed by children within the United Kingdom (UK) using image analysis of the food parcels received by children eligible for free school meals during the COVID-19 pandemic. It argues that child food poverty serves as an illustration of the failings of neoliberalism in the UK context, which had already been observed prior to the pandemic in relation to the current Universal Credit system. The article adopts an intersectional approach, connecting the increased risk of food insecurity experienced by Black, Asian, and minority ethnic (BAME) children from low-income backgrounds to the broader notions of racial capitalism and food oppression. It concludes by offering proposals to target inequalities and improve the realization of the right to food for all children in the UK, which could be adopted by other states to enhance the protection of children’s right to food around the globe.
Mukhlis, Muchammad Fauzan and Faridatul Fauziah, ‘The Risk of Pregnancy and Labour during the Covid19 Pandemic Relationship to Children’s Health Insurance Related To Law No 35 of 2014 Concerning Child Protection and Law No 36 of 2009 about Health’ (2021) 4(4) Budapest International Research and Critics Institute (BIRCI-Journal): Humanities and Social Sciences 11264–11274Jurisdiction: Indonesia
Abstract: Pregnancy and childbirth are happy moments for every mother-to-be in the world. However, pregnancy and childbirth during a pandemic have risks for transmission to both the mother and the fetus. Thus, giving attention to children is given since the child is conceived, during the delivery process and after delivery. During the COVID-19 pandemic, mothers can check their pregnancy 6 times during pregnancy. Preparing to give birth during the COVID-19 pandemic needs to be considered. The choice of place to give birth, be it at home, clinic, or hospital, taking into account the risks and benefits. After the baby is born it is important to continue to do consultations, including undergoing routine immunizations. Every mother should be more active in asking about safe ways to make appointments for consultations and immunizations in the midst of a pandemic. Given the bad impact, the government pays special attention to child protection by issuing Law Number 35 of 2014 concerning Child Protection in Article 1 it is stated that children are given special protection, namely a form of protection received by children in certain situations and conditions to get guarantees. a sense of security against threats that endanger themselves and their lives in their growth and development. Law Number 36 of 2009 concerning Health states that maternal health efforts must be aimed at maintaining maternal health so that they are able to give birth to a healthy and quality generation and reduce maternal mortality. Therefore, the role and alertness of the government and health workers as the front line in handling Covid-19 can provide peace to pregnant women through pregnancy and childbirth in the midst of a pandemic. Pregnant women need to pay more attention to complying with health protocols even though they have made an agreement to consult with health workers when preparing for pregnancy and childbirth during the COVID-19 pandemic.
Mulrenan, Stephen, ‘China’s Belt and Road Initiative Faces Major Challenges’ (2020) 74(3) IBA Global Insight 26–33 Abstract: China’s transformation from developing economy to powerhouse status ranks among the most dramatic stories of the 21st century, with the Belt and Road Initiative its latest chapter. But serious concerns over the government’s treatment of the Uighurs and human rights, and the devastating outbreak of Covid-19, threaten to derail the country’s ambitious project.
Muriungi, Muriuki and Naomi Musau, ‘Inequality Dimensions of Kenya’s Responses to COVID-19’ in Aleksandar Stojanović, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) 273–294 Abstract: This chapter assesses Kenya’s COVID-19 policy responses with a view to exploring the dynamics of inequality of these responses. It highlights the pernicious effects of the various COVID-19 responses during the pandemic, particularly on the vulnerable, tracing the same to the structuring of the economy and failure to undertake a socio-economic impact assessment of the responses. The chapter argues that the policy responses, taken together, partially challenged the neoliberal framework, at least in so far that they involved a more active role on the part of the state. The chapter then calls for reassertion and mainstreaming of these responses beyond the post-COVID era.
Mushak, Nataliia, ‘Constitutional Restrictions of Human Rights Under the State of Emergency’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 179–185 Abstract: This article is devoted to the impact of COVID-19 on the constitutional restrictions of human rights under the state of emergency. The author analyzes the main and important by-laws adopted by the Ukrainian state authorities on restrictions of human rights in view of the rapid spread of the coronavirus pandemic in the world. The research established that under the martial law or a state of emergency, certain restrictions on rights and freedoms may be established, indicating the validity of these restrictions. This article stipulates that under the Constitution of Ukraine the constitutional rights and freedoms of a person and a citizen cannot be limited, except in cases stipulated exclusively by the Constitution of Ukraine.
Mutongoreya, Garikayi, ‘Education as a Human Right: Exploring the African Context’ (SSRN Scholarly Paper ID 3784615, 11 December 2020) Abstract: This article submits that the right to education is a fundamental human right and it notes a plethora of changes and subsequent conventions after the 1948 declaration of human rights, all in attempt to enforce the right to education. Despite all the convections, the right to education continues to be violated as children in most African countries are still paying fees at primary school level. The article also notes contextual narratives that affects the implementation of the right to education such as historical perspectives, financial matters and recently how this right has been curtailed by the effect of the COVID-19 pandemic.
Mykhalovskiy, Eric et al, ‘Human Rights, Public Health and COVID-19 in Canada’ (2020) 111(6) Canadian Journal of Public Health 975–979 Abstract: Faced with the extraordinary global public health crisis of COVID-19, governments across Canada must decide, often with limited and imperfect evidence, how to implement measures to reduce its spread. Drawing on a health and human rights framework, this commentary explores several features of the Canadian response to date that raise human rights concerns. Our discussion focuses on criminal law, fines, data collection, and so-called snitch lines. We argue that the approach of governmental and public health authorities must be grounded in the best available scientific evidence and align with human rights standards. Our aim is to encourage dialogue within the public health community in Canada about the importance of human rights-based responses to COVID-19.
Nadkarni, Abhijit, Arjun Kapoor and Soumitra Pathare, ‘COVID-19 and Forced Alcohol Abstinence in India: The Dilemmas around Ethics and Rights’ (2020) 71(July-August) International Journal of Law and Psychiatry: Special Issue on Mental health, Mental Capacity, Ethics and the Law in the Context of Covid-19 (Coronavirus) Article 101579 Abstract: In response to the COVID-19 pandemic, as with other countries across the world, the Central and State Governments of India initiated several measures to slow down the spread of the virus and to ‘flatten the curve’. One such measure was a ‘total lockdown’ for several weeks across the country. A complex and unexpected outcome of the lockdown which has medical, ethical, economic, and social dimensions is related to alcohol consumption. The lockdown and consequent acute non-availability of alcohol resulted in people with alcohol dependence going into withdrawals, black marketing of alcohol, and in extreme cases suicide resulting from the alleged frustration of not having access to alcohol. The health dilemmas around this situation are biological (e.g. pushing people into risky situations-potentially fatal alcohol withdrawal, consumption of illicit or other non-consumable alcohol) and psychosocial (e.g. isolation increasing the risk of relapses, loss of control over the decision to abstain which can be detrimental to recovery, restriction of access to services for alcohol problems). The legal and rights-related dilemmas are centred around whether States have the right to impinge on individual autonomy on the grounds of public health, the capacity of the health systems to provide appropriate services to cope with those who will struggle with the unavailability of alcohol, the constitutionality of the Central government’s impinging on jurisdiction of states under the guise of a health emergency caused by the pandemic, and the ability of the State to make unbiased decisions about this issue when it is highly dependent on the revenue from the sale of alcohol and associated industries. The way forward could be a pragmatic and utilitarian approach involving continued access to alcohol, while observing all physical distancing norms necessary during the pandemic, for those who want to continue drinking; and implementing innovative measures such as tele-counselling for those who wish not to return back to drinking.
Nakane, Ikuko, ‘Online Discrimination Based on COVID-19: A Language and Law Perspective’ in Anne Wagner and Sarah Marusek (eds), Handbook on Cyber Hate: The Modern Cyber Evil (Springer, 2024) 357–384 Abstract: This chapter attempts to unpack the language of cyber discrimination based on COVID-19, drawing on the frameworks of Systemic Functional Linguistics and Critical Discourse Analysis. It discusses how language realises hate through its construction and speech act functions in the evolving social and geopolitical contexts of the pandemic and identifies discursive strategies which serve to attack and negatively represent the ‘other’. Targets were chosen primarily based on their ethnic, regional, national and religious affiliations as well as contact with the virus. In addition, implicit and explicit blame for being irresponsible, and thus spreading the virus, emerges as a justification for hate speech. The chapter also discusses the legal implications of COVID-19-related cyber discrimination, by examining examples from a court case which illustrate what could be deemed incitement to cause harm; and how a grassroots movement led to the convictions that were needed to address the social divisions.
Nath, Jeuti, ‘Human Rights Violations during Covid-19’ (2022) 7 Law & Political Review 67–72 Abstract: Covid-19 has had an unprecedented impact on societies, livelihoods, communities and the wellbeing of families, redefining the overall everyday life of people all around the world. All of these covid-19 have a brutal impact on human rights. While covid-19 poses a huge challenge to the whole society, the impact on vulnerable groups is at its peak. This paper is a study about the impact of public health policies on the enjoyment of human rights. The worsening of such human rights violations increases the need to utilize a human rights approach in response to covid-19.
Nawrot, Oktawian, Justyna Nawrot and Valeri Vachev, ‘The Right to Healthcare during the Covid-19 Pandemic under the European Convention on Human Rights’ (2023) 27(5) The International Journal of Human Rights 789–808 Abstract: The article presents the challenges exposed by the COVID-19 pandemic from a European perspective, especially its consequences in light of the European Convention on Human Rights’ (ECHR) guarantees of the right to health. It is the first attempt to comprehensively examine these challenges for the State Parties of the ECHR. The right to health has traditionally been included in the second generation of human rights; therefore, presumably, it does not in itself give rise to any specific rights for an individual. However, the European Court on Human Rights (ECtHR) has recently been linking the right to health with specific provisions of the European Convention on Human Rights, in particular with Articles 2, 3, and 8. We analyse the Court’s relevant rulings and their possible consequences for the assessment of the actions taken by the States Parties in order to fight COVID-19, with special emphasis on possible State responsibility for violating the Convention. This can happen when the State’s actions result in different levels of health care access available to different groups of patients (patients with COVID-19 and patients with other conditions). The analysis reveals the weakness of the approach taken by ECtHR in the face of the COVID-19 pandemic.
Negi, Chitranjali, ‘Human Rights Violations of Migrants Workers in India During COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 3629773, 17 June 2020) Abstract: ‘No work is insignificant. All labor that uplifts humanity has dignity and importance and should be undertaken with painstaking excellence.’–Dr. Martin Luther King Jr. Today, the important issue is how to save the human rights & dignity of migrant workers The problems of migrant workers have become very important in many developing countries of the world. Migration of labour started in India during the period of British colonial rule. The National Commission on Rural Labour in India (NCRL,1991) estimates more than 10 million circular migrants in the rural areas alone. These include an estimated 4.5 million interstate migrants and 6 million inter-state migrants in India. One of the reasons behind the Human Rights Violation of State Migrants workers in India are political and economic. State Migrants are outsiders in other State, they do not vote and thus cannot put governments under electoral pressure.On 24th March 2020, the Government of India ordered a nationwide lock down in India- starting midnight to stop the Corona virus from spreading in Country. Lock down in India has impacted millions of migrant’s workers. Lack of food and basic amenities, loss of employment, fear of unknown and lack of social support were major reasons for struggle in this huge part of population. Due to the lock-down, more than three hundred deaths were reported, with reasons ranging from starvation, suicides, exhaustion, road and rail accidents, police brutality and denial of timely medical care. Eighty migrants died while travelling back home on the Shramik Special trains. Several incidents, viral videos of police misbehavior, brutality (beating with cane-charged) on migrant workers, have been reported from across the country.The Indian Judiciary has also not protected itself in glory by failing in its duty to protect the rights and dignity of migrant labour citing the ground of non-interference in policy. India is a founding member of the ILO and it has been a permanent member of the ILO Governing Body since 1922. India has ratified six out of the eight-core/fundamental ILO conventions. India has not ratified the two core fundamental conventions (Convention No 87,98). It is necessary to maintain important aspects of labour standards & labour rights (Migrants Rights) and aim of achieving a system where there are no barriers to the smooth process of the Rule of Law.
van Niekerk, Bouwer and Parveen Munga, ‘COVID-19 and the Right to Freedom of Movement’ (2020) 20(4) Without Prejudice 20–22 Abstract: Section 21 of our Constitution concerns the rights to freedom of movement and residence, in terms of which every person is guaranteed the right to freedom of movement and every citizen is guaranteed the right to enter, remain and reside anywhere in the Republic. The importance of the rights enshrined in s21 cannot be overstated. Its effect is to preclude the former policy of segregation and the severe restrictions imposed on the black populace. It, like many of the rights enshrined in our Constitution, also serves as a stark reminder of the conditions and status quo that warranted the inclusion of a right seemingly manifest. Remarkably, this section is not comprehensively dealt with in some of our most esteemed academic works dealing with our Constitutional Law. The reason for this is, in all likelihood, axiomatic – this right is so manifest that academic scholars have found neither the need nor the inclination to expand on it. There are also not (as of yet) any groundbreaking Constitutional Court judgments in our jurisprudence opining on this section, as this has never been seriously challenged in our young democracy. But now the national lockdown is infringing upon this very right; our personal movements are curtailed, which halts our ability to trade and disallows something as significant as attending funeral of a loved one. How is it that this right can be so fundamentally and so drastically impeded?
Njiri, Kenneth, ‘Mental Health and Covid-19: The Right to Mental Health during the COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 3598916, 12 May 2020) Abstract: The covid-19 pandemic has disrupted the lives of people in the world. Kenya has not been left alone. As a result, jobs have been lost. Families are apart. There is panic and worry in the world. As a result, the mental health of persons is at risk. In my paper, I argue that there is need for the government of Kenya to safeguard the mental health of its citizens. Further, a multi-sectoral approach should be adopted in ensuring the mental wellness of the people.
Nkhata, Mwiza Jo and Anganile Willie Mwenifumbo, ‘Livelihoods and Legal Struggles amidst a Pandemic: The Human Rights Implications of the Measures Adopted to Prevent, Contain and Manage COVID-19 in Malawi’ (2020) 20(2) African Human Rights Law Journal 512–539 Abstract: Malawi’s COVID-19 response has evinced a measure of fluidity. This has been manifested by, among other things, the adoption of two sets of subsidiary legislation on COVID-19, the judicial intervention striking down proposed lockdown measures and the constant change in the institutional arrangements meant to spearhead the country’s response. A key challenge that the response has had to contend with is the balance between saving lives and preserving livelihoods. This article analyses Malawi’s response to COVID-19 and establishes that aside from its rather haphazard nature, serious questions of legality have been implicated by the measures adopted. Specifically in relation to lives and livelihoods, the articles focuses on the right to economic activity, to highlight some of the challenges that Malawi’s response generated to the preservation of livelihoods. The human rights implications of some of the measures adopted are also briefly analysed.
Nnawulezi, Uche and Salim Bashir Magashi, ‘Executive Orders and Fundamental Rights Regime in the Wake of COVID-19 Pandemic in Nigeria’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 151–171 Abstract: This paper is an exploratory study that focused on executive orders and fundamental rights regime in the wake of Covid-i9 Pandemic in Nigeria. The Nigerian fundamental rights regime is today bedeviled with series of challenges such as issues of suspension of laws and the introduction of several measures needed to deal with the spread of the virus that undermines human rights and rule of law. Other issues include powers given to the security forces to monitor and enforce the lockdown orders are not always understood or obeyed. The current discourse on this issue is in line with the incessant complaints by Nigerians that the stay at home restriction order have had deleterious consequences on the poor, the low income earners and the millions of Nigerians who rely on informal activities to eke a living for themselves. Thus, the emphasis here is on the emergence of the executive orders in Nigeria and the current challenges it has posed on fundamental rights regime in the wake of COVID-19 Pandemic. This paper adopts analytical and qualitative approach and builds its argument on existing literatures which is achieved by a synthesis of ideas. More importantly, necessary recommendations are made. This paper concludes that the essence of re-examining the executive orders is to ensure that it will be used in a manner that will not undermine the gains made in the last three decades in recognizing, protecting human rights and respect for the rule of law in Nigeria.
Nomani, MZM, Zafar Hussain and Renu Dhawan, ‘Judicial Policy for the Covid-19 Pandemic in Comparative Legal Perspective’ (2021) 13(1) International Journal of Pharmaceutical Research (advance article, published 1 January 2021) Abstract: The right to health and equity is the paramount concern of the State, especially in times of epidemic and pandemic. The nationwide lockdown and COVID-19 has witnessed a series of judicial inte3rvention in health right and equity. Although there is a settled jurisprudence concerning health right and entitlement, the current streak of judicial innovation represents a novel discourse in the understanding of the public health administration and governance in India. An inquiry into the judicial policy of the epidemic-pandemic in the comparative jurisdiction seems fascinating in deepening our understanding of the state expediency and citizens liberty. The precedents in Gibbons v. Ogden, Louisiana State Board of Health Case, Jew Ho v. Williamson and Wong Wai v. Williamson deepens the understanding of the public health administration and governance. The rulings of Indian Supreme Court in Alakh Alok Srivastava v. Union of India, Shashank Deo Sudhi v. Union of India, suo motu cognizance of COVID-19 Testing and Sachin Jain v. Union of India also open a new vista of health right and justice in India.
Nuñez, Fernando, ‘Reentering During a Pandemic’ (2020) 168(Special Issue: Law Meets World) UCLA Law Review Discourse 144–154 Abstract: Criminal record clearing remains an important tool to combat the overrepresentation of Black and Latinx people in unemployment and homelessness statistics that is a consequence of systemic racism. Unfortunately, the COVID-19 pandemic has exacerbated these barriers by making it harder to clear criminal records while increasing the demand for employment and housing. Specifically, the pandemic has made it difficult to access vital criminal records, access the courts, and access reentry service providers. In so doing, the COVID-19 pandemic threatens to increase the existing racial disparities in access to jobs, housing, and other important areas of life. The pandemic, however, presents an opportunity for innovation and adaptation in the provision of reentry services with a race equity lens. It is something that reentry advocates have long called for.
Nwaechefu, Hilary and Adedeji John Oluyinka, ‘Legal Perspective of the COVID 19 Pandemic Viz-a-Viz the Violation of Human Rights in Nigeria in 2020’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 69–81 Abstract: The COVID 19 pandemic regime triggered the violation of human rights by the security agents in Nigeria. Amnesty International, the Human Rights Commission, Action aid, had condemned violation of human rights by security forces in Nigeria. This paper adopted non-doctrinal and qualitative approaches using legislations, international statutes, journals, newspapers, and internet and relevant texts. The article revealed that, despite the 1999 Nigerian Constitution, the United Nations and the African Charter on Human and Peoples Rights guaranteeing the human rights of all persons, citizens were killed extra-judicially with impunity. The article recommends that the African Union and the United Nations direct the Nigeria government to protect the rights to life and dignity of the human person and make reparations to the next of kins to those extra- judicially killed under the COVID 19 pandemic because Nigeria was not at war as envisaged under section 45 of the Nigerian constitution.
Nwafor, Gloria C and Anthony O Nwafor, ‘Covid-19 Implications on Right to Healthcare in Nigeria and China’ (2021) 25(9) International Journal of Human Rights 1489–1502 Abstract: The quest by states to contain the spread of the Covid-19 has led to the adoption of extraordinary measures to deal with the extraordinary situation. Some of those measures have the tendency to impact on the citizens’ right to healthcare as protected by the domestic laws of such states and by the relevant international instruments. The paper examines the impact of the responses by the governments in Nigeria and China to the Covid-19 pandemic to ascertain the extent to which the right to healthcare of citizens are respected, and concludes that the governments in the respective countries failed to fulfil their obligations to their citizens.
Nwokeke, Chidera, ‘A Perusal on COVID-19 and Rights of Patients’ (SSRN Scholarly Paper No ID 3579257, 18 April 2020) Abstract: A perusal on Covid-19 and the rights of patients in Nigeria. This article examines the position of our laws with regards to patients’ rights and its enforceability in our Courts and the remedies available to a patient.
Nyamutata, Conrad, ‘Do Civil Liberties Really Matter During Pandemics?: Approaches to Coronavirus Disease (Covid-19)’ (2020) 9(1) International Human Rights Law Review 62–98 Abstract: The outbreak of the coronavirus disease (covid-19) in December 2019 precipitated public health control measures in many states across the world. The impact of covid-19 was as unprecedented as were the measures introduced by states to control it. The outbreak provides an opportunity to analyse responses of states to pandemics. At the core of this article is the question whether civil liberties matter during pandemics. A rights-based approach is founded on human rights protected in international human rights treaties. In cases of massive disease outbreaks, states adopt and enforce typically radical measures to contain the spread of the infection. After the outbreak of covid-19, a range of restrictions was imposed by the affected states. However, in the haste to contain a rapidly spreading pandemic, human rights are potentially vulnerable to violations. This article assesses the responses to the pandemic by states within the context of human rights. As the article seeks to illustrate, in times of pandemics, the law on management of pandemics does not favour human rights observance. Even states with deep-rooted democratic cultures resort to illiberal responses. The rhetoric of inalienability of rights becomes hollow as even traditional democratic states mimic authoritarian regimes.
Nyawa, Joshua Malidzo, ‘Human Rights and Covid-19 (Corona Virus) in Kenya: Is the Law Silent?’ (SSRN Scholarly Paper No ID 3587768, 28 April 2020) Abstract: During times of pandemics, the law is not silent. Unlike the suggestion by Schmitt et al that there are times where there exists a state of exception, this paper argues that the constitution of Kenya does not permit such a scenario. Even in emergencies, the law applies. This paper looks at the measures and regulations adopted by the executive in a bid to address the Corona problem and tests them against the constitution of Kenya.
Oamen, Philip and Eghosa Ekhator, ‘The Impact of COVID-19 on the Socio-Economic Rights of Older Persons in Africa: The Urgency of Operationalising the Protocol on the Rights of Older Persons’ (2021) 21(2) African Human Rights Law Journal 782–811 Abstract: Since the outbreak of the COVID-19 pandemic across the world, it has been reported that older persons have suffered acute hardship and fatalities more than any other age group. According to the World Health Organisation the fatality rate among older persons is five times the global average, and the United Nations has predicted that the mortality rate could climb even higher. The situation is aggravated on the African continent as a result of a shortage of medical personnel and other resources, as well as inadequate palliative measures to address the issues around the pandemic. Despite the provisions in the African Charter on Human and Peoples’ Rights and the Protocol to the African Charter on the Rights of Older Persons in Africa which seek to provide some safety nets, many of these senior citizens continue to suffer untold socio-economic hardship. Adopting an analytical and doctrinal methodology, this article examines the Protocol, the International Covenant on Economic, Social and Cultural Rights and several United Nations policy documents aimed at realising the socio-economic rights of older persons. The article finds that there is a lack of political commitment to operationalise the provisions of the Protocol, as evinced by the limited number of countries that have ratified it since its adoption in 2016. It comparatively engages with the provisions of the Inter-American Convention on the Rights of Older Persons to argue that, beyond the normative framing of these rights in Africa, there is a need for deliberate and genuine commitment by governments in Africa, if the rights are to be realised. The article advocates international, regional and national cooperation and calls for a more liberal judicial approach, to ensure that the Protocol’s ‘paperisation’ of the rights of older persons does not lead or continue to lead to their pauperisation.
Oboirien, Katumi, ‘The Act of Torture and Inhumane Treatment as Human Rights Violations during COVID-19 in Nigeria’ (SSRN Scholarly Paper No ID 3688363, 7 September 2020) Abstract: In December 2017, Nigeria signed into law the Anti-Torture Act 2017. This was done in acknowledgement of her obligations under the United Nations Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment and its optional Protocol. Bearing in mind that there were existing laws which provided for torture, the Act was enacted to fill the gaps in the existing laws such as defining the term- torture and prescribing adequate punishment for the offenders. This article highlights some key provisions under the Act, laying particular emphasis on the duties of the State to protect its citizens from all forms of violations of their human rights. In this instance, we assert that the right to freedom from torture, cruel, inhuman and degrading treatment is a non-derogable right and law enforcement officers are duty-bound to respect this right in whatever situation, even in the face of the COVID-19 Pandemic. Also portrayed in this article are some situational analysis of torture victims as well as court decisions on the matter. We conclude by restating some of the acts performed by law enforcement officers which constitute torture and proffer some recommendations.
O’Cinneide, Colm, ‘New Directions Needed: Exponential Inequalities and the Limits of Equality Law’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 123 Abstract: Equality law has had a good run. Over the last half century, it has put down deep roots in the legal systems of most liberal democracies. However, recent events have exposed its limitations. For all its doctrinal and conceptual sophistication, equality law has not succeeded in eliminating overt forms of discrimination, let alone its more subtle manifestations—as highlighted by the revelations that triggered the #MeToo and Black Lives Matter campaigns of 2015 to 2021, and the exponential inequalities generated by the systemic shock of Covid-19. Radical new thinking is needed, about how to inject new dynamism into equality law—which may require rethinking old shibboleths, and breaking with some of the established orthodoxies of the last half century.
O’Connor, Niall, ‘The Right to Work and Rights in Work during the Coronavirus Pandemic: The Response of the United Kingdom’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 137–145
O’Grady, Selina, ‘Black Death, HIV/AIDS and Coronavirus: Can We Do Better than Scapegoat or Tolerate?’ [2020] (3) European Human Rights Law Review 211–214 Abstract: Compares the historical responses to the Black Death and the AIDS crisis with contemporary reactions to the coronavirus pandemic, highlighting the differing reactions of Christian and Muslim communities to the Black Death, including the European persecution of Jews. Assesses whether humanity is now moving beyond blame and tolerance towards a fuller recognition of human dignity and individual rights.
Okeke, Happiness Chidiogo and Beatrice N Okpalaobi, ‘Legal Analysis of the Protection of the Right to Life of Health Workers In Nigeria During Pandemics: A Case Study of the Covid-19 Pandemic’ (2024) 8(1) African Journal Of Law And Human Rights 116–121 Abstract: Life is central to human living because once life is lost it cannot not be restored. Life is tantamount to human existence, the foundation of man as an individual and as a member of society. The right to life is not just any one of the fundamental rights in the lists established by the well-known instruments of human rights protection but is the pedestal upon which other rights stand. Pandemic is a term used to describe the rapid spread of transmittable infectious or communicable disease over several continents or worldwide. Once an epidemic becomes global and affects a large percent of the population it becomes known as a pandemic. Many outbreaks have taken unacceptable toll on the right to life of health workers, from MERS to Ebola, Laser fever and the recent COVID-19 pandemic. The aim of this study was to examine if the right to life of health workers in Nigeria are protected during pandemics using the COVID-19 pandemic which is the most recent pandemic as a case study. The research methodology adopted was doctrinal and the approach was analytical and descriptive. The authors relied on primary and secondary sources for this research work. It was found that health workers are the most affected during the outbreak of pandemics because they are always the first to come in contact with victims even when the infection is still at its window period. It was also discovered that there is no legislation in Nigeria specifically protecting the right to life of health workers during pandemic and non was promulgated during the recent pandemic COVID-19 which affected the whole world. The study further revealed that during the pandemic there were insufficient person protective equipment (PPE) for health workers to protect their lives during the COVID-19 pandemic and the federal government took no specific steps to protect the lives of health workers during the pandemic. The authors recommended that the laws should be promulgated to ensure the adequate protection of the lives of health workers during pandemics in Nigeria. It was further recommended that the National Health Act should be amended to include sections on protection of right to life of health workers in Nigeria.
Oladele, Grace Abosede, ‘Legal Implications of Human Rights Violations During COVID-19 Lockdown in Nigeria’ (2020) 100 Journal of Law, Policy and Globalization 86–93 Abstract: This paper examines human rights violations carried out by law enforcement officers during the COVID-19 lockdown in Nigeria. These include torture, inhuman treatment and extra-judicial killings. It examines the rights violated under international, regional and Nigerian laws. It also considers judicial decisions. It examines the laws prohibiting torture, inhuman treatment and extra-judicial killings along with factors responsible for persistent human rights violations in Nigeria by law enforcement officers such as inconsistent prosecution of erring officers and lack of protection of victims from threats and reprisal attacks which has made conviction difficult. It concludes that until these factors amongst others are addressed, law enforcement officers will continue to violate the rights of Nigerians with impunity.
Olsena, Solvita and Laura Kadile, ‘National Legal Framework to Protect the Right to Health and Right to Provide Health Care during the Covid Emergency Situation in Latvia’ (2021) 14(2) Medicine, Law & Society 457–478 Abstract: Global public health emergency due to the spread of Covid-19 required the government of Latvia to implement necessary measures to control the virus. Numerous measures were introduced as novel legal requirements for the general public as well as for users and providers of health care. Numerous legal provisions established restrictions on the rights of patients and health care institutions. Our study aimed to explore how a human rights-based approach might be and is integrated into national responses to the Covid pandemic in health care in Latvia during the first emergency situation lasting from 12 March to 9 June 2020. Our research showed that restrictions on the right of patients to receive and the right of health care institutions to provide health care services were introduced broadly. We established that the legal requirements for restricting human rights in health required by the Constitution of Latvia were not observed.
Omelchuk, Oleh M, Inna V Shevchuk and Anna V Danilova, ‘The Impact of Covid-19 Pandemic on Improving the Legal Regulation Of Protection of Human Right to Health’ (2020) 73(12 cz 2) Wiadomosci Lekarskie 2768–2772 Abstract:
Objective: Theoretical and methodological substantiation of the impact of COVID-19 on the implementation of state policy on the protection of human right to health in terms of improving the legal framework in the field of demographic security.
Objective: Theoretical and methodological substantiation of the impact of COVID-19 on the implementation of state policy on the protection of human right to health in terms of improving the legal framework in the field of demographic security.
Materials and methods: The main research materials are the norms of the International Covenant on Economic, Social and Cultural Rights, the Conventions for the Protection of Human Rights and Fundamental Freedoms and the legal framework of the countries that have adopted temporary quarantine measures. This research is based on empiricaland analytical data from WHO, Bloomberg’s financial information provider. During the research, the following methods have been used: statistical, system-structural analysis, content-analysis, comparison, grouping and forecasting.
Conclusions: Under the conditions of pandemic, attention should be paid to strengthening both administrative and criminal liability for violating quarantine, which will serve as a prerequisite for improving the legal mechanism of combating threats to the country’s demographic security. The protection of the right to health requires the state to create conditions to prevent the risk of occupational diseases among health care workers and others involved in the response to COVID-19.
O’Neil, Meghan M, ‘What Happens When a Pandemic Intersects an Epidemic?’ (SSRN Scholarly Paper No ID 3587094, 23 April 2020) Abstract: Persons experiencing addiction may be at very high risk of infectious disease like COVID-19 due to high rates of smoking, recent imprisonment, conditions like HIV/AIDS, and high-risk behaviors (Ezzati et al. 2002; Farhoudian, et. al. 2020). During the COVID-19 pandemic, most courts have shuttered, and treatment center admissions have halted, yet the opioid crisis rages on. America’s opioid epidemic may have just become more lethal and socially costly.
Oreffice, Sonia and Climent Quintana-Domeque, ‘Gender Inequality in Covid-19 Times: Evidence from UK Prolific Participants’ (IZA Discussion Paper No 13463, 14 July 2020) Abstract: We investigate gender differences across socioeconomic and wellbeing dimensions after three months of lockdown in the UK, using an online sample of approximately 1,500 respondents in Prolific, representative of the UK population with regards to age, sex and ethnicity. We find that women’s mental health is worse than men’s along the four metrics we collected data on, that women are more concerned about getting and spreading the virus, and that women perceive the virus as more prevalent and lethal than men do. Women are also more likely to expect a new lockdown or virus outbreak by the end of 2020, and are more pessimistic about the current and future state of the UK economy, as measured by their forecasted present and future unemployment rates. Consistent with their more pessimistic views about the economy, women choose to donate more to food banks. Women are more likely to have lost their job because of the pandemic, and working women are more likely to hold more coronavirus-risky jobs than men. We also find that between February and June 2020 women have decreased their work hours, but increased housework and childcare much more than men. These gender inequalities are not driven by differences in age, ethnicity, education, family structure, income in 2019, current employment status, place of residence or living in rural/urban areas.
O’Shea, Bill, ‘COVID-19 Law & Regulation: Rights, Freedoms and Obligations in a Pandemic’ (2024) 98(11) Law Institute Journal: Official Organ of The Law Institute of Victoria 45–45
O’Sullivan, Charles, ‘Against Ideology? Examining Social Rights in Ireland during Times of Crisis’ (2020) 20(1S) BioLaw Journal - Rivista di BioDiritto 715–721 Note: this special issue contains many relevant articles, but almost all are in Italian only, and we have only included those in English in this bibliography. Link to the entire journal issue. Introduction: The onset of the CoViD -19 pandemic has raised significant questions from not only a public health dimension in attempting to stem the spread of the virus, but also from a social rights perspective, and attempting to deal with the social and economic realities of the fallout from the same. With this in mind, this brief contribution seeks to examine the specific response by the executive in the Republic of Ireland from March 2020 onwards and tease out how it has sought to ameliorate a crisis such as this through redistributive social policies, and the reinforcement and development of social rights. In particular, it underlines how certain social rights-based policies during this time differ from the ideological policies and institutional attitudes prior to this time. In doing so, it aims to underline the degree to which the Irish executive has, on the one hand, signalled a clear break from previous longstanding policies, and on the other, how it might fail to address other long-standing issues. It will be structured as follows. Following this brief introduction, Section Two will examine the general response to the CoViD -19 pandemic through the creation of one new targeted payment and the opening up of others. A third section will then highlight the specific issues related to asylum seekers, the material reception conditions within which they are house and access to the so-called CoViD -19 emergency payment. It will end with some brief concluding remarks.
Oswald, Marion and Jamie Grace, ‘The COVID-19 Contact Tracing App In England and “Experimental Proportionality”’ (SSRN Scholarly Paper No ID 3632870, 18 June 2020) Abstract: In this analysis, we review the history of the contact tracing app developed by England’s National Health Service and the differences of opinion over so-called ‘centralised’ and ‘decentralised’ technical approaches. The focus on data protection concerns has drawn attention away from more expansive human rights considerations, and we argue that human rights law should guide our assessment of the legal implications of a decision to deploy a contact tracing app. Acknowledging the uncertain situation presented by the coronavirus pandemic, we revisit our ‘experimental proportionality’ model first described in 2018. We demonstrate that, combined with a robust and rolling oversight function, this model of proportionality review could assist in upholding a fair balance between the rights of the individual and the interests of the community in situations of uncertainty and crisis.
Pandey, Jagriti, ‘Impact on Fundamental Right of Children during COVID-19: Right to Education and Right to Life’ (SSRN Scholarly Paper ID 3875327, 28 June 2021) Abstract: COVID-19 began as a health crisis but now as the pandemic is going on is becoming a child right crisis. when COVID-19 began in march 2020 Indian population was unaware of how long this crisis is going on because each one of us is facing this situation for the very first time in our life. The right to life as well as right to education is majorly hampered which is effecting mental and physical health of the children. There are various articles under the Indian Constitution which protect the right of children same as adults and some articles specifically protect the children such as article 21-a, 39(e)(f), 45, 15,14, 21, 23, 29, 46, 47. if these articles who provide protection to children are violated then children can demand their right from the state. The United Nations issued a convention for protection of the children which came into force in the year 1992. The aim of this convention is to provide the children with safe, healthy and happy environment where the children can grow physically, mentally, and emotional. The national commission for protection of the child rights(NCPCR) gave certain guidelines for the protection of the health of of children regarding the condition of the children which can range from mild to severe. NCPCR said that it would share these guidelines with wings all across the states and union territories. These guidelines are categorised into three categories on the basis of infection rate such as mild and asymptomatic, moderate and severe. Asymptomatic or mild symptoms should be treated at home. Monitoring charts should be maintained, respiratory rate counted two three times a day etc. Moderate symptoms oxygen saturation should be above 90 at all times and suffering children should be treated at COVID-19 health centers. In severe symptoms when oxygen saturation drops below 90 then they will be treated in COVID hospitals. Guidelines were only to protect right of health of the children and their was no mention of anything regarding right to education of children which is also hampered at large. In my paper I have researched the situation which hampering the rights of the children which includes the right to life and education. The Supreme Court should take action for protecting right of education of children in opinion because their is economic disparity among the citizen of the country so, government should provide technological assistance to the children who cannot afford it which is having an effect on them. Still these kinds of efforts has not taken place by the courts as well as the governments of the country. When the pandemic started the curriculum was taught on national channel on television but still it is very difficult for the children who have multiple siblings to have proper access to education. If we look at reality then for example there are two siblings in the house then generally they will be in different classes so they cannot attend their classes on television at the same time which will cause difficulty in access of the right to education.
Pandita, Swati, ‘Violation of Human Rights during COVID-19 and the Role of Indian Judiciary’ (SSRN Scholarly Paper No 4123821, 31 May 2022) Abstract: In the past three years, India has been facing its second biggest challenge after COVID. That is of rampant violation of human rights. With the onset of pandemic, the number of cases filed by marginalised groups for the protection of their human rights increased many-folds. Therefore, it becomes imperative to study in detail the issue of violations and the response of judiciary. In the first part, the researcher examines the various types of violations reported. Violation of citizens right to freedom of speech and expression, privacy, education, access to social services, and equal treatment have been considered. In the next part, intervention by courts has been critically analysed. Then in the end, the researcher discusses the concerns that surfaced while investigation and offers some remedial measures to deal with them.
Parajuli, Karuna, ‘Unprepared and Unlawful: Nepal’s Continued Failure to Realize the Right to Health during the COVID-19 Pandemic’ (International Commission of Jurists, Briefing Paper, September 2021) Extract from Executive Summary: The COVID-19 pandemic has brought immense challenges to public authorities in nearly every country in the world, and Nepal is no exception. The serious strain on scarce public resources in a difficult economic and developmental environment, gross failures of wealthier States to fulfil their obligations of international cooperation, and the incoherence of international responses must be taken into account in any assessment of Nepal’s performance in discharging its human rights obligations. This paper should therefore be understood and read in this broader context, some of which is detailed in ICJ’s September 2020 report Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses. 1 Within this context, Nepal, like other States, has and international legal obligation to respect, protect and fulfill the right to health, obligation that is reflected and reinforced in its Constitution. This briefing paper assesses Nepal’s compliance with these and other applications human rights obligations in its responses to the COVID-19 pandemic from early 2020 through August 2021.
Paris, Evelyn, ‘Applying the Proportionality Principle to COVID-19 Certificates’ (2021) 12(2) European Journal of Risk Regulation 287–297 Abstract: With the SARS-CoV-2 pandemic entering its second year, public and private actors alike grow eager to achieve some semblance of normality. In this context, the idea of ‘vaccination passports’ or ‘immunity certificates’ as a means of resuming social and economic activity has been gaining momentum all around the world. This article aims to provide a legal analysis of this initiative through the lens of the proportionality principle. A proportionality test is conducted in order to determine whether the degree of infringement of the human rights implicated is balanced by the potential of a certification system to mitigate the risks of the virus. The results from this analysis show that the targeted aims can be achieved through already existing measures with a lesser impact on civil and fundamental human rights. Moreover, in a context of uncertainty around the immunopathology of COVID-19, the introduction of these certificates presents ethical and scientific challenges, which lead us to believe that this measure is unlikely to play a central role in stopping the spread of the disease, and it could set the pace for a dangerous precedent, allowing for extensive discrimination and exacerbating already existing inequalities and disparities.
Parmet, Wendy E et al, ‘COVID-19: The Promise and Failure of Law in an Inequitable Nation’ (2021) 111(1) American Journal of Public Health 47–49
Parsons, Jordan A and Harleen Kaur Johal, ‘Best Interests versus Resource Allocation: Could COVID-19 Cloud Decision-Making for the Cognitively Impaired?’ (2020) 46(7) Journal of Medical Ethics 447–450 Abstract: The COVID-19 pandemic is putting the NHS under unprecedented pressure, requiring clinicians to make uncomfortable decisions they would not ordinarily face. These decisions revolve primarily around intensive care and whether a patient should undergo invasive ventilation. Certain vulnerable populations have featured in the media as falling victim to an increasingly utilitarian response to the pandemic—primarily those of advanced years or with serious existing health conditions. Another vulnerable population potentially at risk is those who lack the capacity to make their own care decisions. Owing to the pandemic, there are increased practical and normative challenges to following the requirements of the Mental Capacity Act 2005. Both capacity assessments and best interests decisions may prove more difficult in the current situation. This may create a more paternalistic situation in decisions about the care of the cognitively impaired which is at risk of taking on a utilitarian focus. We look to these issues and consider whether there is a risk of patients who lack capacity to make their own care decisions being short-changed.
Pavlicko, Randy, ‘The Future of the Americans with Disabilities Act: Website Accessibility Litigation After COVID-19’ (2021) 69(4) Cleveland State Law Review 953–979 Abstract: The Americans with Disabilities Act (ADA) was enacted in 1990 to eliminate discrimination against individuals with disabilities. Over time, as society has become more reliant on the internet, the issue of whether the ADA’s scope extends beyond physical places to online technology has emerged. A circuit split developed on this issue, and courts have discussed three interpretations of the ADA’s scope: (1) the ADA applies to physical places only; (2) the ADA applies to a website or mobile app that has a sufficient nexus to a physical place; or (3) the ADA broadly applies beyond physical places to online technology. In 2019, the Supreme Court turned down an opportunity to settle this circuit split through a case presenting the issue of whether the ADA applies to websites and mobile apps. This was before the COVID-19 pandemic forced our society to utilize online technology more than ever before. During the COVID-19 pandemic, schools switched to online learning, employees worked remotely, restaurants depended on takeout services through online ordering and consumers utilized online shopping to avoid crowded stores. These online activities and many others, however, may be inaccessible to millions of individuals with disabilities. If the ADA does not apply to online technology, businesses would not be required to design websites and mobile apps that are effectively accessible to individuals with disabilities. These individuals could therefore experience several disadvantages in an internet-dependent society. In 2021, do arguments for a narrow application of the ADA, which limits its scope to physical places only, seem persuasive? This Note discusses why ADA protections should apply beyond physical places, specifically to websites and mobile apps, and why this approach should be adopted nationwide. Without a uniform interpretation of the ADA’s scope, uncertainty surrounding website accessibility litigation will continue as the utilization of online technology continues to increase. This Note also discusses other important aspects of ADA website accessibility litigation, such as establishing standing to sue and asserting statutory defenses against alleged discrimination.
Pelloso, Alexandre Castilho et al, ‘Facing the COVID-19 Pandemic: From Health to the Law’ (2020) 9(11) Research, Society and Development e81791110446–e81791110446 Abstract: This study analyzed the knowledge of medical and law students about the restrictive measures adopted during the COVID-19 pandemic and the implications in the fundamental rights of the individuals. A google forms questionnaire was prepared and sent by WhatsApp to medical students and law students. The survey included questions about social isolation and if it violates or not the citizens’ and humans’ rights. Descriptive statistics were performed, and comparisons between medical and law students were made with chi-square and independent t-tests. A higher percentage of medical students were taken precautionary measures than law students. Internet and TV are the most used to stay up to date. Most medical and law students believed that the restrictive measure of social isolation violates the rights guaranteed to citizens. However, the majority of them believed that the citizens’ rights to life and health should prevail over the citizens’ right to come and go.
Pendo, Elizabeth, ‘Protecting the Rights of People with Disabilities’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 248–251 Abstract: One in four Americans — a diverse group of 61 million people — experience some form of disability (Okoro, 2018). On average, people with disabilities experience significant disparities in education, employment, poverty, access to health care, food security, housing, transportation, and exposure to crime and domestic violence (Pendo & Iezzoni, 2019). Intersections with demographic characteristics such as race, ethnicity, gender, and LGBT status, may intensify certain inequities. For example, women with disability experience greater disparities in income, education, and employment (Nosek, 2016), and members of underserved racial and ethnic groups with disabilities experience greater disparities in health status and access to health care (Yee, et. al, 2016). These longstanding inequities are compounded by the COVID-19 pandemic and by governmental and private responses that discriminate on the basis of disability. Legal protections of people with disabilities are governed by two key federal laws: the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act (‘Section 504’ or ‘Rehabilitation Act’). Together, these laws ensure that people with disabilities have equal opportunities in employment, in state and local services and programs, and to goods and services. The broad reach of these laws impact a host of issues raised by the COVID-19 pandemic. Enforcing agencies have provided COVID-19-specific guidance on the application of the laws in health care and in employment. However, gaps in protections as well as widespread lack of knowledge of and noncompliance with the ADA and the Rehabilitation Act limit their impact. Recommendations include: continued enforcement of the laws; clear and current agency guidance on how to comply with the laws; education about the requirements of the laws, especially in health care settings; and improved data collection and reporting.
Pendo, Elizabeth, Robert Gatter and Seema Mohapatra, ‘Resolving Tensions Between Disability Rights Law and COVID-19 Mask Policies’ (Saint Louis University Legal Studies Research Paper No 2020–10, 2020) Abstract: As states reopen, an increasing number of state and local officials are requiring people to wear face masks while out of the home. Grocery stores, retail outlets, restaurants and other businesses are also announcing their own mask policies, which may differ from public policies. Public health measures to stop the spread of the coronavirus such as wearing masks have the potential to greatly benefit millions of Americans with disabilities, who are particularly vulnerable to the impact of COVID-19. But certain disabilities may make it difficult or inadvisable to wear a mask. Mask-wearing has become a political flashpoint, putting people with disabilities at risk. There are reports emerging that people with disabilities have been challenged, excluded from retail establishments, and even threatened with arrest for not wearing masks. Some anti-mask activists encourage their followers to falsely represent themselves as disabled to confound mask requirements, which has the potential to amplify skepticism and mistrust of people with non-obvious disabilities. Reports of violent conflict over mask-wearing add to these tensions. The first lawsuit challenging a mask requirement under federal disability rights law was filed in late May, and more are likely to follow. Federal laws like the Americans with Disabilities Act (ADA) prohibit discrimination on the basis of disability and require appropriate modification of public and private mask-wearing policies to accommodate the needs of individuals with disabilities. These laws, like other civil rights statutes, remain in force during the pandemic and should operate as a check against any discrimination that might result from a mask requirement. However, misunderstanding of and noncompliance with these laws limits their effectiveness. This article provides the first expert analysis of the federal disability law framework that applies to mask policies issued by state and local officials, as well as by stores, restaurants and other businesses that serve the public, and the often confusing interaction between public and private policies. It argues that contrary to some popular assumptions, mask policies can be employed in a manner consistent with the ADA and the Rehabilitation Act. Finally, it offers specific recommendations for the design and implementation of mask policies in manner that accommodates both the rights of people with disabilities and developing scientific knowledge of efforts to slow the spread of COVID-19.
Pera, Alessandra, ‘The Right to Education during the Italian Pandemic. E-Learning and Inequality before the Law’ in Antonio Lavieri and Alessandra Pera (eds), Pandemia in Translation: A Comparative Understanding of European Social Values (Stem Mucchi Editore, 2021) 29–50 Abstract: Since the beginning of 2020 Italy have tried to give specific and rapid answers to the pandemic crisis, even if with strong compressions and limitations of constitutional fundamental rights, which has led to a huge debate among scholars about: the legislative instruments applied, the kind of legislation used, and on the merit of the measures enacted, having regard to their content and their compatibility with the constitutional principles and provisions, their legitimacy, their proportionality and the (un)fair balancing with the fundamental rights compressed and limited under their effects. Mostly, the crucial balancing work has involved, on one side, the right to health in its individual (private health) and collective dimension (public health) and, on the other side, many other fundamental rights, such as freedom of movement, freedom of meeting, right to work, right to education, and so on. Among all these fundamental rights’ limitation, this essay focuses on those affecting the bundle of legal situations protected under articles 33 and 34 of the Italian Constitution, which refer to the right to education and teaching in primary and secondary school. In particular, the analysis briefly focuses on: the pre-existing problems arising from the relevant legislation and the issue of financial resources (§ 2); the measures approved by the Government in the field of schools as well as on online teaching, during the first and the second wave of pandemic (§ 3), with reference to the inequalities highlighted by the digital and socio-economic divide in the territory, also highlighting the problem of the safety of those who use e-learning platforms (§ 4).
Persad, Govind, ‘Why Disability Law Permits Evidence-Based Triage in a Pandemic’ (2020) 130 Yale Law Journal Forum 26 Abstract: This paper explains why the two core goals of policies proposed or adopted in response to the COVID-19 pandemic that allocate scarce medical resources by using medical evidence—saving more lives and saving more years of life—are compatible with disability law. Disability law, properly understood, permits considering medical evidence about patients’ probability of surviving treatment and the quantity of scarce treatments they will likely use. It also permits prioritizing health workers, and considering patients’ post-treatment life expectancy. All of these factors, when assessed based on medical evidence and not inaccurate stereotypes, are legal to consider even if they disadvantage some patients with specific disabilities. It then discusses why triage policies that use medical evidence to save more lives and years of life, which I call ‘evidence-based triage,’ are ethically preferable for people with and without disabilities. In doing so, I explain why recent critiques err by treating people with disabilities as a monolith, overlooking the political disadvantages of less-visible victims, and treating the social origins of scarcity as a justification for sacrificing vulnerable lives. Evidence-based triage should be recognized as similar to other responses to COVID-19, like physical distancing and postponing some medical procedures, that may burden people with specific disabilities but are nevertheless justified because they save more patients with and without disabilities.
Peršak, Nina, ‘Hate Speech in Times of the COVID-19 Pandemic: The Social Costs and Legal Implications of a Health Crisis’ (2023) 16(2) Medicine, Law & Society 227–246 Abstract: In crisis times, such as the recent health crisis brought out by the COVID-19 pandemic, society responds in a myriad of pro-social as well as negative, anti-social ways. The article starts by mentioning some broader social and regulatory responses to the pandemic that provided a backdrop to the studied phenomenon. It then looks explicitly at hate speech, unpacks the three-layered dimensions of its harmful consequences, helping to grasp the magnitude of harm caused by such pandemic-fuelled prejudice-based expression, and inspects the impact of the pandemic on such expression that is largely criminalised in Europe. The article concludes with some thoughts on the implications and lessons for the future.
Persaud, Randolph B and Jackson Yoder, ‘Human Right: Which Human; What Rights? Biopolitics and Bare Life in Migration and COVID-19’ (2020) 21(2) Seton Hall Journal of Diplomacy and International Relations 62-76 Abstract: This article argues that human rights are outcomes of relations of power. Invariably, the privilege of enjoying state protected rights are at the expense of vulnerable and marginalized populations. We apply the concepts of homo sacer and bare life to interrogate differential rights in the Europe and the United Sates with specific focus on two issue areas – migrants/refugees/ asylum seekers, and the effects of Covid-19 on African Americans.
Pervou, Ioanna and Panagiotis Mpogiatzidis, ‘Restrictive Human Rights Measures against the Spread of COVID-19: An Interdisciplinary Approach between Law and Health-Care Management’ (2023) International Journal of Human Rights in Healthcare (advance article, published online 7 April 2023) Abstract: The purpose of this paper is to demonstrate the close relationship between the disciplines of law and health-care studies. This interrelation has become particularly evident during the spread of the COVID-19 pandemic, when restrictive human rights provisions have been initiated by many states for the sake of public health. Research focuses on the notional proximity of the principle of proportionality and its health-care correlative: effectiveness. It also goes through the influence of acceptance rates for the application of restrictive measures.
Peters, Najarian, ‘Parallel Pandemics: The American Problem of Anti-Enforcement, Rational Distrust, and COVID-19’ (2021) 52(2) Seton Hall Law Review 371–384 Abstract: This Essay briefly explores a core and complex aspect of our Nation. The COVID-19 pandemic should force us to consider how foundational parallel pandemics of anti-enforcement and white supremacy practices have harmed the country’s ability to provide for its health and safety in these sobering moments. Unsurprisingly so, the confluence of parallel pandemics has created and sustained rational distrust in government (and privately sponsored) responses to COVID-19, including the vaccination process.
Pham, Cong S and Devashish Mitra, ‘The Color of Coronavirus’ (SSRN Scholarly Paper No ID 3757854, 31 December 2020) Abstract: This study first documents robust evidence that the COVID-19 death ratio and infection ratio are positively associated with income inequality, higher non-White/White residential segregation index, and higher percentage of adults aged 65 and below without health insurance. Second, death and infection ratios also increase with the share of ethnic non-White minorities in a county’s population, possibly representing the racial bias of policy, law, governance, and culture that disadvantages ethnic minorities, leading to structural health inequalities. Finally, our results are consistent with a significant spatial-spillover effect of the novel coronavirus and the previously documented characteristics of COVID-19 decedents and patients.
Pollack, Harold A, ‘Disaster Preparedness and Social Justice in a Public Health Emergency’ (2020) 45(6) Journal of Health Politics, Policy and Law 907–920 Abstract: The United States is now experiencing public health catastrophe on a scale not seen for more than a century. COVID-19 puts into stark relief the mutual obligations that reflect interdependence among participants in a common society. Drawing on the work of Amartya Sen concerning famine and related challenges, the author discusses the accompanying implications for social justice. Social justice in catastrophe requires strong social insurance structures and legal protections for the most vulnerable people, who would otherwise lack economic resources and political influence to protect their essential interests. Social justice also requires greater and more sustained attention to disaster preparedness and public health infrastructure—both of which are characteristically neglected, in part because the public health enterprise is identified with politically weak and often stigmatized populations.
Pollard, Matt, Mathilde Laronche and Vivian Grande, ‘The Courts and Coronavirus (Part 1)’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Abstract: Our contribution (in two parts) will consider the specific context of restrictions on access to or operation of courts. Around the world, in response to COVID-19, courts are adopting different modalities for the hearing of matters and limiting the range of matters than can be brought before them to only the most ‘urgent’, while postponing all others. The first post sets out the most relevant provisions on the role of courts in international human rights law, including in situations of emergency. The second look in more detail at specific issues, including the suspension of ‘non-urgent’ cases, changes in the modality of hearings, dealing with the consequences of postponement of cases, and risk-tolerance and the fundamental role of judges.
Pollard, Matt, Mathilde Laronche and Vivian Grande, ‘The Courts and Coronavirus (Part 2)’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Abstract: Our contribution (in two parts) will consider the specific context of restrictions on access to or operation of courts. Around the world, in response to COVID-19, courts are adopting different modalities for the hearing of matters and limiting the range of matters than can be brought before them to only the most ‘urgent’, while postponing all others. The first post sets out the most relevant provisions on the role of courts in international human rights law, including in situations of emergency. The second look in more detail at specific issues, including the suspension of ‘non-urgent’ cases, changes in the modality of hearings, dealing with the consequences of postponement of cases, and risk-tolerance and the fundamental role of judges.
Powell, Catherine, ‘Color of Covid and Gender of Covid: Essential Workers, Not Disposable People’ (2021) 32(2) Yale Journal of Law and Feminism (forthcoming) Abstract: We live in a moment of interconnected pandemics. The COVID-19 crisis provides a window into the underlying pandemics of inequality, economic insecurity, and injustice. The viruses of sexism, racism, and economic instability are the pre-existing conditions of an unjust legal system — baked into our nation at the Founding in the shadow of chattel slavery, female disenfranchisement, property requirements for voting rights, and dispossession of Native Americans. COVID-19 has not recreated these conditions, but instead has amplified the persisting inequalities upon which the nation was built. At the same time, the current viral moment reveals that we all share common vulnerabilities, making a vulnerability analysis particularly timely in gaining support for solutions. As commentators have observed, ‘COVID-19 doesn’t discriminate[, but] America does.’ Even while unmasking deeply embedded structural inequalities, this moment of interlinked pandemics of disease, economic insecurity, and violence affects us all and has torn at the very fabric of the social contract we owe to each other and, in fact, depend on. I propose a new concept, ‘viral convergence,’ to both analyze this moment of interlinked crises and to utilize this moment, in which our share vulnerabilities are so clear, to theorize a way forward. The road ahead calls for legal paradigms that recognize both the need for universal and more targeted solutions. As Arundhati Roy suggests, we must both acknowledge the tragedy while also utilizing this crisis for transformational change by viewing the COVID-19 pandemic as a ‘portal’ to a more just and equal world.
Powell, Catherine, ‘“Viral Convergence”: Interconnected Pandemics as Portal to Racial Justice’ (Fordham Law Legal Studies Research Paper No 4081250, 11 April 2022) Abstract: Black intellectuals and leaders have been working to address the country’s ‘raced’ nature since at least the Civil War, but, thanks in part to a narrow and privileged conception of national security, racism remains a deadly virus in the United States. Professor Powell argues that to live up to America’s founding ideals, national security observers must broaden the lens for analysis beyond military security to encompass economic, physical, and human security. This more expansive understanding of ‘security’ in turn calls for transformative change, beyond incremental reform, with respect to policing, poverty, and racism.
Powell, Robyn M, ‘Applying the Health Justice Framework to Address Health and Health Care Inequities Experienced by People with Disabilities During and After COVID-19’ (2021) 96(1) Washington Law Review 93–137 Abstract: The COVID-19 pandemic has been especially devastating for people with disabilities, as well as other socially marginalized communities. Indeed, an emerging body of scholarship has revealed that people with disabilities are experiencing striking disparities. In particular, scholars have shined a light on state and hospital triage policies that allow hospitals to ration critical health care and resources, such as ventilators, for people with disabilities if resources become limited and they cannot treat all patients during the pandemic. These injustices deserve extensive consideration from policymakers, legal professionals, and scholars. Elucidating how the inequities that people with disabilities experience during the COVID-19 pandemic result from deeply rooted historical injustices is crucial. This Article comprehensively analyzes the inequalities that people with disabilities experience before and during the pandemic, focused on examining how law and policy affect these disparities. It builds on, incorporates, and extends the existing scholarship about COVID-19 and disabled people by positioning it within the health justice framework. It also proposes normative legal and policy solutions to address deeply entrenched inequities that will affect people with disabilities during the COVID-19 pandemic and beyond.
Prakash, Bhaswat, ‘Right to Health and Human Rights during Pandemic’ (SSRN Scholarly Paper ID 3864817, 11 June 2021) Abstract: Human rights scrutiny in the COVID-19 pandemic has largely focused on limitations of individual freedoms to protect public health, yet it is essential to look at the broader relevance of realizing human rights to promote public health in the COVID-19 response.The human right to the enjoyment of the highest attainable standard of physical and mental health provides binding normative guidance for health-care systems, broader social responses, and global solidarity. As recognised in the International Covenant on Economic, Social and Cultural Rights, the right to health requires that states take steps for the ‘prevention, treatment and control of epidemic, endemic, occupational and other diseases’ and to assure ‘medical service and medical attention in the event of sickness’. The right to health requires that health goods, services, and facilities are available in adequate numbers; accessible on a financial, geographical, and non-discriminatory basis; acceptable, including culturally appropriate and respectful of gender and medical ethics; and of good quality.However, many states have faced difficulties in ensuring the availability and accessibility of COVID-19-related health coverage, leading to shortages in essential medical care, including diagnostic tests, ventilators, and oxygen, and in personal protective equipment for health-care workers and other front-line staff. In some countries, austerity measures, structural adjustment programmes, and user fees have rendered essential services inaccessible for some vulnerable populations.Implementation of the right to health through health systems requires that treatment is based on medical evidence. This Paper provides a complete analysis of Health and Human Rights which is framed in an International Level, which is a basic right of every living being on Planet during and after Pandemic. As COVID-19 has spread throughout the world, domestic public health responses have neglected human rights. Human rights are crucial to public health promotion, yet there are significant gaps in how human rights are being monitored during the pandemic response. Existing efforts to track potential human rights violations in domestic responses to COVID-19 are neither comparative nor comprehensive. To fill this gap, i have developed a novel, comparative database to systematically track media coverage of potential human rights violations. Using these data both in nation and international, i examine how public health policies impacted human rights realization across countries during the first few months of the pandemic and how it needs changes by being aware with the system and needs as required by the development in the society.I used a systematic qualitative coding methodology to examine the extent and range of media coverage at the intersection of COVID-19, public health, and human rights. Using a structured key-term search strategy went through the search from the NexisUni news database for English-language media reports. Results were screened based on pre-determined eligibility criteria, such as whether the report discussed a public health action (or inaction) in response to COVID-19 and described the human rights implications of that action (or inaction). Reports were coded by geographic location, type of public health response, human rights implications, and populations impacted. To guide the coding process, i developed a codebook based on WHO frameworks in public health and UN frameworks in human rights.In the first few months of the pandemic, media coverage of domestic public health responses to COVID-19 increased rapidly as the crisis escalated. This coverage included a wide range of public health actions that impacted human rights across six geographic regions. I mainly focused on identification of 17 public health actions that impact 24 distinct human rights, and noted that domestic public health responses were reported to have consequences for the range of civil, political, economic, and social rights that underlie public health. For example, domestic actions to implement lockdown measures were reported to have implications for the human rights to life, liberty and security of person, health, work, and education. These effects were reported to have been experienced differently across national contexts and disproportionately impacted the human rights of particular groups, including women and minority populations.Public health and human rights are inextricably linked in the COVID-19 pandemic. Ongoing data collection and comparative analysis can inform domestic best practices and future pandemic preparedness efforts. My comparative database provides a foundation for future research that examines the public health impacts of human rights violations in the pandemic response.
Prieto Rudolphy, Marcela, ‘Between Predictability and Perplexity’ [2022] International Journal of Constitutional Law (advance article moac057) Abstract: This article focuses on the relationship between academia, the gendered division of labor, and the pandemic. After briefly canvassing preliminary research about the effects of the pandemic on academic women, it discusses the gendered division of caregiving responsibilities, both inside the family and in academic institutions. Through the lens of feminist theory, the article aims to understand what can be perceived as a kind of paradox or contradiction: on the one hand, there is something deeply predictable about the fact that women have shouldered relatively disproportionate caregiving responsibilities during the pandemic. On the other hand, and because these gendered effects are so predictable, there is something somewhat perplexing in the lack of institutional response. This article explains what is predictable about the phenomenon as an instantiation of misogyny and the gendered division of labor—a reproduction of already existing issues. The somewhat perplexing nature of the phenomenon comes from the lack of institutional response to deeply predictable effects, but it is also related to how resilient the gendered nature of caregiving obligations has proven to be, even during the extraordinary circumstances of a pandemic. This resilience, the article suggests, might be explained by the intersection of misogyny and economic exploitation.
Pugh, Jonathan, ‘The United Kingdom’s Coronavirus Act, Deprivations of Liberty, and The Right to Liberty and Security of the Person’ 7(1) Journal of Law and the Biosciences Article lsaa011 Abstract: In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.
Puluhulawa, Jufryanto et al, ‘Rejection of the Implementation of the Covid-19 Protocol on Patients Who Died: A Discourse between Human Rights and Health Law in Indonesia’ (2022) 4(2) American Journal of Multidisciplinary Research & Development 53–59 Abstract: The refusal to implement the handling of corpses using the COVID-19 health protocol still occurs in Indonesia in general and in Gorontalo Province in particular, even though there are legal regulations that regulate and even strengthen the fatwa of the Indonesian Ulema Council. The research approach method used is a case approach, a conceptual approach and statute approach. In the author’s conclusion, there is a guarantee of human rights to the bodies of Covid-19 patients. Even though there are special medical procedures that are applied, in essence, there is a legal guarantee that all procedures carried out continue to pay attention to religious law so as not to injure the rights of the corpse. Therefore, the refusal to handle the bodies of Covid-19 patients using the Covid-19 funeral health protocol is certainly something that must be intervened so that their dignity is then returned following existing regulatory provisions. From the perspective of human rights law, the actions of the patient’s family who refuse their relatives who died due to Covid-19 indications being buried using the Covid19 health protocol endanger others and increase the potential for the spread of the Covid-19 virus so that it will cause harm to the wider community. The implication is that human rights violations occur. Meanwhile, if examined from the perspective of health law, there are criminal sanctions that are ready to ensnare parties who are not cooperative and do not want to submit to the applicable rules.
Pūras, Dainius et al, ‘The Right to Health Must Guide Responses to COVID-19’ (2020) 395(10241) The Lancet 1888–1890 Abstract: Human rights scrutiny in the COVID-19 pandemic has largely focused on limitations of individual freedoms to protect public health, yet it is essential to look at the broader relevance of realising human rights to promote public health in the COVID-19 response.
Radanović, Nina Mišić, ‘Violations of the Right to Health Due to Limited Access to Protection of Health during the COVID-19 Pandemic in the Republic of Croatia and Possible Legal Implications’ (2021) 14(2) Medicine, Law & Society 271–300 Abstract: The battle against the COVID-19 pandemic is still the most important problem and a great challenge for the overburdened health system in the Republic of Croatia. This paper examines the research into how violations of humans’ right to health occurred due to the inaccessibility to health protection for uninfected persons during the COVID-19 pandemic. The research implemented showed that a system of anti-epidemic measures which completely suspended or significantly reduced the possibility to access primary and hospital health care, stopped preventive programs of cancer detection. Much medical research has already revealed the possible harmful effects to people’s health in the increase in cases of the contraction of and death from cancer and other serious illnesses, particularly in relation to certain vulnerable groups for example, women and oncology patients. The author concludes that the right to access protection of health during the COVID-19 pandemic in the Republic of Croatia was significantly limited and analyzes possible legal consequences which could occur due to the suspension or limitation to the right to access health care as a violation of the right to health.
Radulescu, Dragos Lucian and Delia Mihaela Marinescu, ‘Measures to Limit the Personal Freedoms of Minors in the Context of the Covid-19 Pandemic’ (2020) 71(2) Jus et Civitas - A Journal of Social and Legal Studies 21–28 Abstract: The legal norms in the matter of the superior interest of the minors impose specific obligations of the parents, established in order to ensure the optimal conditions for the upbringing and education.However, the taking of protective measures against minor children is not a matter for parents only, as exceptional situations require the restriction of individual rights in order to protect collective rights, through administrative acts issued by the competent bodies. In this context, in the context of the COVID-19 pandemic, the functioning mechanisms of the European Union have made it possible to take measures to limit the spread of the relatively common virus in the Member States, both in the main field of public health and in the economic or social field. The article discusses the legal basis of measures to limit the effects of the Covid pandemic, elements of judicial practice, notions related to the best interests of minors, non-discrimination.
Rafid, Raihan Rahman, ‘Human Rights During the Pandemic and the National Human Rights Commission of Bangladesh: A Dispirited Performance in a South Asian Context?’ (2022) 23(3) Asia-Pacific Journal on Human Rights and the Law 315–353 Abstract: Abstract The covid-19 outbreak has brought forth the existing cracks and crevices in the governance of Bangladesh. At such a time, the National Human Rights Commission of Bangladesh (NHRCB), as the only State institution mandated to protect and promote human rights exclusively and impartially, is tasked with a crucial role to ensure respect for human rights. This article assesses the activities undertaken by the NHRCB during the pandemic and finds that the NHRCB evinced only a limited role in monitoring the violation of rights and provided formulaic recommendations to the government. It did not observe the implementation of their recommendations and has performed rather formalistically. While the country has experienced a deteriorating human rights situation, the NHRCB has failed to flex its muscles when compared to other national human rights institutions in South Asia. This article argues that the national human rights institutions (NHRI s) in India, Nepal and Sri Lanka, embedded in a similar context and armed with almost identical mandates, have demonstrated a novel and strenuous effort intending to adapt to and fulfil their functions during the unprecedented crisis. The NHRCB may benefit by learning from these NHRI s as well as taking lessons from its own past activities. Previously, it did not eschew politically sensitive issues and earmarked a strong leadership even with limited institutional capacities. The NHRCB has however responded to the changing dynamics and challenges posed by the covid-19 pandemic with silence. It needs to become more vibrant to enhance, regionally and internationally, the country’s image in upholding human rights norms and standards.
Raganelli, Biancamaria and Pierre de Gioia Carabellese, ‘From the Pandemic to the Recovery: A Legal Analysis’ (2021) 69(2) Estudios de Deusto 185–227 Abstract: The health crisis caused by Covid-19 has brought with it numerous and profound legal issues that have affected all branches of law, fueling an intense scientific debate in relation to the rights and fundamental freedoms guaranteed in the legal system. In addition, the exceptional situation generated by the health crisis has been clearly reflected in the Courts in the different jurisdictions. The constitutional courts of the different Member States of the Union have not been immune to this, either, they have had to address the problems derived from the reinforcement of powers of the Executive Power and the restrictions of not a few fundamental rights. For its part, the Court of Justice of the European Union has not been immune to the public health crisis caused by the pandemic and has already had to adopt first decisions. This paper analyzes the main legal problems that the declaration of the state of exception has raised, focusing on some of the most relevant jurisdictions in the European Union, although, occasionally, references to some non-community systems are incorporated. And it is because the exceptional circumstances have forced the various States of the international community to restrict fundamental rights and freedoms. But, at the same time, the current context has brought several critical issues to the table, the main one being the difficulty of acting with proportionality. The judgment of proportionality on the measures adopted (that the limiting measures are adequate or suitable for the achievement of the aim pursued; that they are the minimum essential for that purpose and that there is proportionality between the sacrifice required of the right limited by that measure and the specific right , good or interest that is intended to protect) cannot be done outside the limits pre-established by the Ordinances. The right of exception arising from the crisis raises, ultimately, relevant questions in relation to the necessary balance to be sought between the guarantee of fundamental rights and the limits to which public powers must be subject. Taking into account the above, The objective of this work is none other than to demonstrate that the legal systems of the Member States of the European Union guarantee both from a formal and a substantial or material point of view the rights and freedoms in accordance with the constitutional traditions shared by all of them. In this sense, the Court of Justice of the European Communities is not alien to this approach but takes the same line. Europe now faces a new challenge. The recovery after the pandemic offers a new opportunity for Europe and its Member States to take a step forward on the bumpy path towards a European Political Union capable of strengthening a structure that is now weakened. A path and a project still full of obstacles that needs to reinforce its unity through a greater identity among the European peoples.
Rahman, Zarin Tasnim, ‘Human Rights and Policy Perplex: COVID-19 in Context’ (2021) 1(1) University of Asia Pacific (UAP) Law Review 83–88 Abstract: The article examines the implementation of human rights in Bangladesh under COVID-19, spurred under the shadow of effective control and management of the pandemic. Although the impact of the pandemic remains pervasive in almost every aspect of our society, the focus of the analysis of the paper pivots around three central human rights issues: the right to life, freedom of movement, and access to works affected people in every sphere. Through a content analysis of circulars from relevant Ministries of Bangladesh during the pandemic, it is argued that the lack of proper coordination among the Ministries in some cases and delayed or inappropriate responses in others have impaired the human rights condition for mass people in Bangladesh. The Constitution of the People’s Republic of Bangladesh declares a suspension of fundamental rights as valid during an emergency. However, as the lockdown under the COVID-19 pandemic was not declared as an emergency, analysis of human rights conditions under this paper was deemed under a normal state of affairs. Relevant editorials from various national dailies, a couple of expert interviews from policy-makers and civil society leaders available through online video streaming were also analysed to triangulate for strengthening the arguments of this paper. Finally, the article concludes with several recommendations on required legal and policy changes that would enhance the long-term preparedness of the government and build its capacity to manage such pandemics with minimal or no harm to human rights in future.
Raj, Thulasi K, ‘A Crisis of Rights and Democracy in India’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 143 Abstract: In the recent global history of constitutional democracies, it is difficult to name a single crisis that has plagued them simultaneously, until the COVID-19 pandemic. It presented an opportunity for crisis management without compromising principles of democratic governance and human rights guarantees. Some countries marginally succeeded in this test while in others, concerns about democratic decline and rights erosion were amplified. India unfortunately belongs to the latter camp. This chapter argues that four features define the Indian response to COVID-19: lack of transparency, executive monopoly, suppression of civil liberties and reckless management. The executive perpetuated a rule of secrecy by announcing lockdowns belatedly, setting up an opaque relief fund and promoting misinformation on crucial aspects of the pandemic response. During the crisis period, India witnessed a concentration of powers at the centre, with very little role for the states and other players in decision making. Legislative and judicial accountability suffered patent setbacks. Further, the government succeeded in curtailing human rights, including the right to political mobilisation and speech, through arrests, vilification and propaganda. The country needs to revive the principles of transparency, accountability and protection of human rights, to resist the sliding away of democracy.
Ramadani, Rizki, Yuli Adha Hamzah and Arianty Anggraeni Mangerengi, ‘Indonesia’s Legal Policy During COVID-19 Pandemic: Between the Right to Education and Public Health’ (2021) 6(1) JILS (Journal of Indonesian Legal Studies) 125–156 Abstract: Basically, every country is obliged to ensure quality education without discrimination against every citizen, including Indonesia. Recognition of the right to education is so important that it becomes one of the goals of the state as stated in the Preamble of the 1945 Constitution, namely to educate the nation’s life. However, since the COVID-19 pandemic hit the world, the education sector has also been affected. People have no choice, but to implement the Covid-19 prevention habits and protocols. In the case of Indonesia, the government has closed the schools and universities since mid-March 2020 and switched to the online learning system. In this article, the author will explain the Indonesia’s legal policy in fulfilling the community’s right to education during pandemic, at the same time analyzing how government responds to the public demands. This normative legal research is conducted using a conceptual and statutory approach, which will then be analyzed descriptive-qualitatively. The result shows that educational policies during COVID-19 pandemic can be divided into two phases: early pandemic and new normal transition. In the first phase, the government focused on protecting the health and safety to all communities in the education institution areas by implementing certain protocols, closing the schools and switching to distance/online learning. Although public health and safety are top priorities, the policies resulted in disparities among students. While in the new normal transition phase, the government tends to respond to public demands on education problems by loosening its policies a little through schools disclosure and providing the internet support in online learning.
Ratemo, Tom Junior, ‘Intensifying Legal Protection against Human Rights Violations in the Covid-19 Era: A Case Study of Kenya, Uganda and Tanzania’ (2020) 7(2) Journal of Comparative Law in Africa_ _Abstract: The coronavirus pandemic has, since its outbreak in late 2019, not only caused a global health care crisis but has also had a negative impact on the exercise of social, economic, cultural and political rights. Vulnerable and marginalised groups in Kenya, Uganda and Tanzania are among the worst affected. To respond to the crisis, the three East African countries imposed several measures aimed at curtailing the spread of the disease, which included a mandatory 14 days of self-quarantine for persons arriving from abroad; the closure of borders, religious and educational institutions; the suspension of international and domestic flights; the suspension of public court proceedings and gatherings; the imposition of a dusk to dawn curfew; and the restriction of people’s movement in certain areas. All these measures in one way or another affect the exercise of fundamental human rights. In the past few months, the number of reported cases of human rights violations has been escalating. This article seeks to highlight the three states’ practice of avoiding the ‘naming, shaming and prosecuting’ of perpetrators of human rights violations during the coronavirus pandemic. It also exposes instances of human rights violations in Kenya, Uganda and Tanzania during the pandemic. In addition, the paper proposes measures to be undertaken to intensify legal protection against human rights violations during the coronavirus pandemic. Finally, the paper explores the elusive option of making the top state officials legally accountable for individual human rights violations.
Rau, Sabrina, ‘With Great Reliance Comes Great Responsibility: The Role of Technology Companies during Covid-19’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 277–286 Abstract: Technology companies have been playing a key role during Covid-19 from assisting state responses to improving quality of life during lockdown. These companies are providing means of communication, work, education, social and cultural life that would otherwise be impossible. As tech companies are now playing an essential facilitating role in enabling human rights in this way, a key question emerges: Should tech companies facilitating essential services bear special responsibilities? This paper argues that tech company obligations are heightened to the extent that the means through which they meet their due diligence obligations are amplified. This will be demonstrated by first illustrating the unique role that tech companies are playing during Covid-19, and second, examining whether special obligations should apply to those companies that are facilitating essential services. Third, this paper will recommend practical steps in the form of three types of human rights impact assessments (HRIAs) that companies should carry out as a starting point to understanding how they can meet their responsibility to respect human rights.
Reid, Blake E, Christian Vogler and Zainab Alkebsi, ‘Telehealth and Telework Accessibility in a Pandemic-Induced Virtual World’ (University of Colorado Legal Studies Research Paper No 20–44, 14 July 2020) Abstract: This short essay explores one dimension of disability law’s COVID-related ‘frailty’: how the pandemic has undermined equal access to employment and healthcare for Americans who are deaf or hard of hearing as healthcare and employment migrate toward telehealth and telework activities. This essay’s authors—a clinical law professor; a computer scientist whose research focuses on accessible technology; and a deaf policy attorney for the nation’s premier civil rights organization of, by, and for deaf and hard of hearing individuals in the United States—have collaborated over the past months on detailed advocacy documents aimed at helping deaf and hard of hearing patients and employers navigate the complex new circumstances of telehealth and telework. The essay presents a brief survey of some of the difficult issues the authors have encountered in trying to navigate the legal and technical dimensions of healthcare and workplace accessibility for deaf and hard of hearing Americans in a pandemic-induced virtual world.
Reid, Charles, ‘Pandemic of Inequality: An Introduction to Inequality of Race, Wealth, and Class, Equality of Opportunity’ (2021) 14(1) University of St. Thomas Journal of Law and Public Policy 1–48 Introduction: This Symposium was proposed and planned months before COVID19 emerged as a public health emergency. Still, it can safely be said that the COVID pandemic that ravaged the United States in the summer and fall of 2020 – a pandemic, furthermore, that poses an even greater threat in the upcoming winter – has revealed in vivid detail the inequalities at the heart of American life. Similarly, this Symposium was conceived long before the police homicides of Breonna Taylor, George Floyd, and other African Americans plunged the American nation into a summer of passion and protest. Again, however, these homicides only made plain what was already there: a chasm of inequality that defines racial relations in the United States. The symposium focuses on different facets of what is a tragic and multi-dimensional reality of inequality. For, surely, America is a land not of equality, but of yawning inequality. It is an inequality that deprives human beings of the opportunity to develop their talents, to thrive, to form families, and to contribute to the welfare and well-being of society. And it is an inequality, furthermore, that damages not only individuals but all of society, by depriving the American community of the benefits derived from the contributions of persons who, but for the accident of birth, would assuredly be doing great things for the general public advantage.
Reny, Tyler T and Matt A Barreto, ‘Xenophobia in the Time of Pandemic: Othering, Anti-Asian Attitudes, and COVID-19’ [2020] Politics, Groups, and Identities (advance article, published 28 May 2020) Abstract: As the number of COVID-19 cases rose in the US and around the world in early 2020, conservative elites in the US racialized the pandemic, referring to the coronavirus as the ‘Chinese flu’ or the ‘Wuhan virus.’ Existing research suggests that this linking of the viral pandemic to a social group will ‘activate’ anti-Asian attitudes in the mass public, helping bring those attitudes to bear on behaviors and attitudes related to COVID-19. Despite anecdotal evidence of a spike in discriminatory behavior targeted at Asians across western countries, little empirical evidence for this ‘othering’ hypothesis exists. Using a large survey (n = 4311) benchmarked to national demographics, we analyze the relationship between attitudes toward Asian Americans, xenophobia, concern about contracting the coronavirus, and a variety of behavioral outcomes and policy attitudes. We find evidence that anti-Asian attitudes are associated with concern about the virus but also with xenophobic behaviors and policy preferences. These relationships are unique to Asian American attitudes, are not related to attitudes toward other outgroups, and do not hold for a variety of placebo outcomes. Together our findings suggest that anti-Asian attitudes were activated and were associated with a variety of COVID-19 attitudes and behaviors in the early stages of the pandemic.
Rethman, Petra, ‘COVID-19: Urgent Reflections’ (Institute on Globalization and the Human Condition, Globalization Working Paper No 20/1, 2020) This edited paper contains the following contributions: • Cal Biruk, ‘Our bodies, our containers: Cultural concepts of the body and health in Covid-19 times’ 4-8 • Kelsey Leonard, ‘Indigenous water (in)justice and the COVID-19 pandemic’ 9-12 • Elene Lam, Vincent Wong, and Macdonald Scott, ‘Covid-19, policing, and the exacerbation of pre-existing inequalities’ 13-16 • Alpha Abebe, ‘COVID-19 and the Black and African diaspora’ 17-20 • Amber Dean, ‘Public mourning in socially distant times: We still need to ask, “Whose Lives Matter?”’ 21-24 • Tina Moffat, ‘COVID-19 and reflections on pandemics in the recent past’ 25-26 • Kee Yong, ‘If the others could speak: Uncharted territory 27-28 • Catherine Frost, ‘Thinking the unthinkable: The riddle of Covid-19’ 29-31
Reyes-Simpe, Jaime, ‘On Freedom in Pandemic’ (SSRN Scholarly Paper No 4320646, 30 December 2022) Abstract: Pandemic times define the value of freedom in society. Not only uncertainty and fear are faced by the people, but also the abusive control measures that governments, especially those with great concentration of power, impose to achieve some shadow targets in the name of saving lives. However, doing so entails costs that constrain unlimited control, such as the negative economic outcomes in the long run, the rising probabilities of protests, and the cost to prevent them. We develop a model to estimate an optimal control level that governments should set based on their beliefs of how much their society values freedom. We test the macro-efficiency of the model using data from the COVID-19 pandemic, and its micro-efficiency with the Chinese case, in particular, Xi Jinping’s ‘ZeroCovid’ policy. We argue that the policy set abusive control measures since the restriction of freedom of speech and research of non-governmental scientists, that can offer more accurate information about the pandemic, disincentivized the civilian population, especially those that depend on micro and mid-size companies, to protest against the measures imposed. Our model suggests that governments with better economic outputs, given a pandemic, set medium control measures due to the recognition of a higher percentage of people subject to protest for their freedom, jointly with a reasonable cost for preventing damage caused.
Ricca, Mario, ‘Don’t Uncover That Face! Covid-19 Masks and the Niqab: Ironic Transfigurations of the ECtHR’s Intercultural Blindness’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1119–1143 Abstract: This essay, between serious and facetious, addresses an apparently secondary implication of the planetary tragedy produced by Covid-19. It coincides with the ‘problem of the veil,’ a bone of contention in Islam/West relationships. More specifically, it will address the question of why the pandemic has changed the proxemics of public spaces and the grammar of ‘living together.’ For some time—and it is not possible to foresee how much—in many countries people cannot go out, or enter any public places, without wearing a sanitary mask. In short, almost all of us, by obligation or by urgent advice from the public authorities of the various countries, will not live the public sphere with our faces uncovered. The alteration of the social context affecting many Western countries will inevitably involve also the ‘local’ perception of the Islamic veil and—as a matter of equality—the consistency of the prohibition of wearing it. What will thus become of the ban on wearing it in public places established by some countries such as France and asseverated by the ECHR? If everyone can and will have to go around with their faces covered, why should only Islamic women be discriminated against? Will not the change in boundary conditions produced by Covid-19 also induce Western people to re-categorize the meaning of the veil? And will this re-categorization not directly affect the ‘fact’ of wearing the veil, that is, its empirical perception? And still, will this psycho-semantic change not show how empirical perceptions are cultural constructs rather than ‘objective facts,’ as such allegedly independent from the observer’s point of view? Consequentially, will the plurality of perceptions and cultural meanings related to the gesture of covering one’s own face not gain renewed relevance in determining the legitimacy of wearing the veil? The socio-semantic earthquake produced by Covid-19 compels us to rethink this and other issues orbiting around the translation of ‘facts’ into legal language; furthermore, it highlights the instrumentality of many ideological/partisan and ethnocentric assumptions passed off as objectivity regarding those alleged ‘facts.’ The essay will attempt to provide an answer to the above questions by proposing a semiotic-legal approach to intercultural conflicts and, indirectly, the pluralism in law.
Richardson, Eric and Colleen Devine, ‘Emergencies End Eventually: How to Better Analyze Human Rights Restrictions Sparked by the COVID-19 Pandemic Under the International Covenant on Civil and Political Rights’ (2020) 42(1) Michigan Journal of International Law 105–176 Abstract: In the wake of the COVID-19 pandemic, states have been quick to adopt emergency measures aimed at curbing the spread of the virus. However, poorly constructed restrictions threaten to undermine hard won human rights protections and may in fact erode important elements of international human rights law as a result of overreaching implementation or lack of rigorous analysis in how the restrictions are put, and kept, in place. This article analyzes the International Convent on Civil and Political Rights (ICCPR) standards which apply to emergency regulation in times of public health crisis and the tangled morass of legal tests which have been used to balance human rights and emergency restrictions. We argue that in the current pandemic, human rights are best protected when states act under the Article 4 derogation mechanism to put emergency measures in place because it provides opportunities for oversight ensuring the end of emergency restrictions after the crisis subsides and provides certainty as to how states are justifying their emergency measures under the treaty regime. Given that so few states have provided notice of derogation under the ICCPR, this Article also considers what a rigorous analysis would look like when restricting freedom of movement, privacy, and freedom of assembly using the limitation language found in each article, suggesting best practices for better balancing COVID-19-related emergency measures with human rights.
Richardson, Robin, ‘Racial Justice and Equalities Law: Progress, Pandemic and Potential’ in Vini Lander, Kavyta Kay and Tiffany R Holloman (eds), COVID-19 and Racism: Counter-Stories of Colliding Pandemics (Policy Press, 2023) 129–145 Abstract: The Equality Act 2010 in Great Britain marked the culmination of 45 years of deliberation, campaigning and legislating, and had the clear potential to protect certain groups, backgrounds and communities from unfair discrimination. In the years following 2010, however, the requirements of the Act were increasingly ignored by public bodies, particularly in England. Partly in consequence, the COVID-19 pandemic had a disproportionately negative impact on people with protected characteristics, as defined by the Act. The essential task of government when the pandemic is over will be not only to ‘build back better’, but also to build back fairer. If the new normal is not significantly fairer in its outcomes than the old, it will not be better. Among other measures, but crucially, this will involve activating the Act’s socioeconomic duty, attending to needs and priorities in left-behind neighbourhoods, and addressing forms of inequality that are systemic and structural.
Riduansyah, Risdalina Sriono, Indra Kumalasari M and Muhammad Yusuf Siregar, ‘Children’s Rights Conflict with the Law in the Time of the COVID-19 Pandemic’ (2021) 10 International Journal of Criminology and Sociology 1154–1162 Abstract: Children are individuals who are less than 18 years old. Children both in the constitution of the Republic of Indonesia and internationally have the right to be protected. This scientific work aims to analyze the rights of children who are in conflict with the law during the covid 19 pandemic, do children who are in conflict with the law during the covid 19 pandemic get special rights? The method used to obtain data in this scientific work is using the empirical juridical method with primary data obtained directly. Based on the results of the analysis conducted, the rights of children who are in conflict with the law during the COVID-19 pandemic in Indonesia get special rights or get special treatment. The rights of children given are the right to survival (survival rights), the right to grow and develop (development rights), the right to obtain protection (protection rights), the right to participate (participation rights). Giving health rights to children in conflict, and resolving legal conflicts by prioritizing the diversion process, namely the transfer of the settlement of children’s cases from the criminal justice process to processes outside criminal justice. There are obstacles or obstacles in handling children who are in conflict with the law, namely in general the detention rooms for children in Indonesia are not adequate, even some areas do not have special detention rooms for children and special investigators for children.
Rittossa, Dalida, ‘The Institute of Vulnerability in the Time of Covid-19 Pandemic: All Shades of the Human Rights Spectrum’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 820–852 Abstract: The vulnerability thesis is one of the most important legal concepts in contemporary legal theory. Apart from being studied by legal scholars, the notion of vulnerability has been embodied in concrete legal rules and transferred to national case law allowing courts to set its boundaries by the power of judicial interpretation. Even though it would be hard to contest Schroeder and Gefenas’s statement that it is not necessary for an academic to say what vulnerability is because common sense dictates the existence of it, recent scholarly analysis clearly shows that the concept itself has become intolerably vague and slippery. More precisely, it is not quite clear what the essence of vulnerability is and what the effects of its gradation as well as repercussions are on other constitutional institutes across the human rights spectrum. The noted vagueness poses a great concern, particularly in the time of COVID-19, the greatest social stressor that humanity has faced in recent months. The COVID-19 crisis has had untold consequences on our health, mental well-being, educational growth, and economic stability. In order for the state to bear the COVID-19 social burden and adequately protect the vulnerable, it is of the utmost importance to set clear guidance for the interpretation and implementation of the vulnerability concept. Seeking to contribute to literature on these issues, the author brings light to constitutional and criminal legal standards on vulnerability set within the current jurisprudence and doctrine. Bearing in mind the influence of the European Court of Human Rights (hereinafter, the ECtHR or the Court) on developments in human rights law, 196 judgments related to vulnerability have been retrieved from the HUDOC database using a keywords search strategy. The quantitative analysis was supplemented with more in-depth qualitative linguistic research of the Court’s reasoning in cases concerning vulnerable children, persons suffering from mental illness and victims of family violence. Although the vulnerability reasoning has considerably expended their rights within the ambit of the Convention, the analysis has shown that inconsistencies and ambiguities emerge around the formulation of the applicant’s vulnerability and its gradation with respect to positive obligations. The full creative and transformative potential of the institute of vulnerability is yet to be realized.
Roberto, Katherine J, Andrew F Johnson and Beth M Rauhaus, ‘Stigmatization and Prejudice during the COVID-19 Pandemic’ (2020) 42(3) Administrative Theory & Praxis 364–378 Abstract: In the months since the coronavirus (COVID-19) pandemic has overwhelmed the world, numerous popular press articles have recounted cases of mistreatment toward others rooted in traits associated with the illness. These accounts are the latest repercussion of a long running ‘otherness’ that Western society has attributed to Asian peoples. This article draws on existing theory to better understand how social stigmas and subsequently prejudice may present additional challenges as nations grapple with restrictions on individuals’ movement and move to more normal social interaction. A discussion of COVID-19 in the context of stigmatization, social identity, and social cognition theories offer a means to better understand how those impacted and stereotyped by the virus may also experience negative treatment by others.
Robinson, Kimberly Jenkins, ‘Strengthening the Federal Approach to Educational Equity during the Pandemic’ (2022) 59(1) Harvard Journal on Legislation 35–100 Abstract: Strengthening the Federal Approach to Educational Equity During the Pandemic provides a timely analysis of three issues of great national significance for education and the United States. First, it synthesizes preliminary research regarding the pandemic’s educational harms through the 2020–2021 school year, including learning losses and the disparate impact of the pandemic on particular subgroups of children. It concludes by noting that the disproportionate adverse impact of the pandemic on vulnerable subgroups should lead federal intervention to prioritize educational equity. Second, it describes the federal legislative and executive response to the pandemic and critiques how this response may impact educational equity. Finally, after explaining a comprehensive theory for education federalism that prioritizes educational equity, the article proposes how the federal response to the pandemic should be strengthened to advance a coherent and consistent approach to education federalism that focuses on educational equity.
Robinson, Rachel, K Zvarikova and J Sosedova, ‘Restricting Human Rights and Increasing Discrimination through COVID-19 Vaccination Certificates: Necessity, Benefits, Risks, and Costs’ (2021) 20 Linguistic and Philosophical Investigations 115–124 Abstract: We draw on a substantial body of theoretical and empirical research on restricting human rights and increasing discrimination through COVID-19 vaccination certificates, and to explore this, we inspected, used, and replicated survey data from Access Now, Ada Lovelace Institute, Associated Press, Dynata, Morning Consult, and Redpoint Global, performing analyses and making estimates regarding rational and ethical COVID-19 vaccine certification schemes. Descriptive statistics of compiled data from the completed surveys were calculated when appropriate.
Roncati, Luca and Monica Roncati, ‘COVID-19 “Green Pass”: A Lesson on the Proportionality Principle from Galicia’ (2021) 28(5) European Journal of Health Law 525–532 Abstract: Coronavirus Disease 2019 (COVID-19) is the most dramatic pandemic of the new millennium, and extraordinary measures concerning with health, law and policy are required around the world. One of these is without doubts the ‘green pass’, officially known in the European Union (EU) as EU Digital COVID Certificate (EUDCC). Initially conceived as a tool for overcoming the lockdown restrictions, it has unexpectedly turned into a means of discrimination between pass holders and non-holders, thus increasing social tension at the expense of solidarity and brotherhood. Here, we analyze in depth the dark sides of the ‘green pass’ in the light of the European and international legislation and of the ongoing pandemic scenario.
Rudnyeva, Oleksandra and Olena Prykhodko, ‘The State as a Guarantor of the Protection of the Rights of Individuals and Legal Entities in the Conditions of Coronavirus Crisis Of 2020’ (2020) 73(12 cz 2) Wiadomosci Lekarskie 2752–2757 Abstract:
Objective: The aim of the article is to stimulate discussions about the necessity to improve the legal regulations that guarantee a proper public health policy, as well as to determine the balance between the level of restrictions that may be imposed by State in order to protect both, the public interest of health and the economic development.
Objective: The aim of the article is to stimulate discussions about the necessity to improve the legal regulations that guarantee a proper public health policy, as well as to determine the balance between the level of restrictions that may be imposed by State in order to protect both, the public interest of health and the economic development.
Materials and methods: National legislation of Ukraine, United Kingdom and France on public health and health policy, case law of these countries, including high court decisions were used for dialectical, comparative, synthetic and systemic analyses.
Conclusions: As the legality of government officials’ actions principle is a fundamental constitutional principle in most European countries, states must establish such legal provisions to avoid short-term and long-term conflicts when the rights of individuals and legal entities are being restricted. At the legislative level, it is necessary to adopt transparent rules to attract private funding to the health sector. Development of the e-health and telemedicine systems could be boosted through the use of public-private partnership tools.
Saba, Rasha Al and Samrawit Gougsa, ‘Exposing Inequalities: The Experience of Minorities and Indigenous Peoples During COVID-19 Emergencies’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 399 Abstract: Many minorities and indigenous peoples lived in precarious situations prior to the COVID-19 pandemic. This chapter assesses how emergency measures introduced by governments to curb the spread of COVID-19 led to an increased risk of infection, unemployment and forced labour for minorities and indigenous peoples across the world. Discriminatory and extreme policing of these communities as a mode to enforce these measures is also analysed. While governments have introduced support packages to mitigate impacts, this chapter examines the extent to which social protection measures were inclusive and responsive to the specific challenges faced by minorities and indigenous peoples. As states’ focus shifted to COVID-19 vaccine supply and distribution, key issues arose in relation to equitable access to, and uptake of, vaccines by minorities and indigenous peoples. The chapter argues that the experience of minorities and indigenous peoples during COVID-19 was rife with deep inequalities in the enjoyment of economic and social rights in comparison to majority societies. The chapter concludes by offering ways forward, including the need to guarantee universal health coverage for all and emphasising the importance of featuring the experiences of minorities and indigenous peoples in the design and implementation of mitigation measures.
Saez, Macarena, ‘Pandemics and the Disproportionate Impact on Vulnerable Groups’ (2021) 36(5) American University International Law Review 1097-1104 Extract from Introduction: Few matters require more international cooperation than health issues related to pandemics. COVID-19 is the latest pandemic the world has experienced, creating one of the most complex health crises, and we know that, unfortunately, may not be the last one. International law, therefore, will become crucial for the protection individuals and communities worldwide. As Covid-19 showed us, with each health crisis, governments will take different approaches and their impact in individual and communities’ rights will differ.
Safradin, Barbara, Sybe de Vries and Simona de Heer, ‘Fundamental Social Rights Protection and Covid-19 in the EU: Constraints & Possibilities’ (2021) 17(3) Utrecht Law Review 103–117 Abstract: The Covid-19 pandemic has had major socio-economic consequences, particularly for critical workers such as healthcare workers, seasonal workers and platform workers in their social rights enjoyment. This article analyses how EU law could protect social rights in times of Covid-19, with a specific focus on the possibilities and limits of the EU Charter in times of crisis for these certain categories of EU workers. The potential of EU legal instruments to protect vulnerable workers’ social rights is limited both by the limited legislative competences in the social policy field and the limited scope of application of the EU Charter. Furthermore, social rights enshrined in the Charter are often formulated as principles, which means they cannot be invoked directly in court, but need to be elaborated in legislation. Nevertheless, the EU could further strengthen the potential of social rights in the EU legal order through harmonisation of social standards in two ways. First, by harmonisation of social rights using the legal bases in the Treaty. Secondly, by implementing the European Pillar of Social Rights effectively and by improving application of the EU Charter at national level, both by clarifying and broadening horizontal direct effect as by increasing application of the EU Charter by national policymakers and the judiciary and raising awareness.
Sandor, Judit, ‘Rebalancing Human Rights at the Time of COVID-19 Pandemic’ (2020) 11(2) Union University Law School Review (Pravni Zapisi) 385-412 Abstract: The year of 2020 will certainly be in all future books on the history of epidemiology and the Covid-19 pandemic will be discussed in them as perhaps the most significant public health challenge since the Spanish flu. But I also hope that it will feature as a new chapter in the books on health and human rights. The suffering of millions of people around the world, the deaths and medical challenges have already presented many lessons to learn from. One of the lessons should be to recognize the right to health as a full-fledged human and constitutional right that deserves a much closer attention whenever annual budgets are drafted and it should be considered as a fundamental human right without which no other rights can be exercised in epidemiological crises and even after that.
Satyarthi, Archisha, ‘Neo-Colonialism and the Right to Health: The Covid-19 Pandemic and Access to Vaccines by the Global South’ (SSRN Scholarly Paper No 4663114, 11 December 2023) Abstract: A study reveals the stark gap between the vaccine programs in different countries. And while vaccine doses remain relatively scarce globally, concerns around waning immunity have prompted many countries, including United States, to start administering additional doses, whereas many of the countries in the Global South are not expected to have substantial doses of COVID vaccine delivered as late as 2024 and rely on a global vaccine sharing agreement/program called COVAX - initiated by World Health Organization (WHO), which was originally aimed at providing 2 billion doses by the end of 2021, but has repeatedly lowered expectations due to production issues, export bans and vaccine hoarding by wealthy nations while depriving poor countries of any substantial access. They prioritize bilateral deals and go around COVAX to jump in front of the queue in order to secure large doses (as much as one billion) of COVID vaccines. Further, the European Union authorised its member states to put limitations on the exportation of vaccines. Moreover, the failure of COVAX can be mainly attributed to the insufficiency of contributions, funds and donations made by the wealthy countries and faces a funding gap of about 7.2 billion to realize its goal but amidst the pandemic brought world economic crisis, filling this gap can be challenging. Additionally, the hoarding of vaccines by rich countries has only multiplied the problem by driving up the prices and making the sufficient procurement of vaccine hellacious for many of the Global South nations.In late February 2021, Ghana became the first country to receive vaccine doses under the COVAX scheme. Yet, the late ‘timing and the relatively modest supply—enough for just 1% of Ghana’s population—point to major challenges’ moving forward. Indeed, by April 2021, COVAX ‘distributed 43 million doses of vaccine to 119 countries—covering just 0.5 percent of their combined population of more than four billion.’ This delayed access and inequity is further exacerbated by driving monopoly over the prices by giant pharmaceuticals. These vaccine monopolies make cost of vaccinating the world against COVID at least 5 times more expensive than it could be. Where 81% of the population in high and upper-middle income countries have received at least one dose of the vaccine, a mere 18% of the population has been vaccinated in the low-income countries. Africa has the lowest vaccination rate of any continent, with only 22.9 percent of the population receiving at least one vaccination. To boot and highlight the irregularity further, South Africa was only able to procure AstraZeneca vaccine for its population at a brazen cost of $5.25 per dose, which is more than double of $2.16 per dose at which the European Union obtained many millions of the said vaccine. This is compounded by Moderna’s earlier indication that it did not plan to distribute its vaccine in South Africa. One of the most expensive vaccines- a single dose of Moderna costs between $32 to $37 with an efficacy of 95% and while Moderna has pledged to not enforce its patent during the pandemic; however, to put simply, it does not own all the patents in its vaccine and therefore cannot make any credible commitments binding other patent holders. The past seems to be the present-day reality of the lives of Black and other people of colour in the shape and size of their exploitation. From the unethical clinical trial conducted by Pfizer in Nigeria during the meningitis outbreak of 1996, where eleven children died and many others were left suffering from brain damage, paralysis and slurred speech, after two hundred children were given an experimental antibiotic - to the - trials conducted in Uganda to test the efficacy and side effects of vaccine designed for HIV Subtype B – a subtype of HIV that is dominantly prevalent in Europe and Americas as opposed to Subtype D, which is the chief form prevalent in Africa. It underscores elements of medical colonialism and the absurdity of such research where Uganda is viewed as a playground to test the safety of a vaccine made to attack HIV subtype that is not dominant in the very region. It also highlights the preference of vaccine developers to focus on catering healthcare products for dominant variant in high- income countries of the Global North. Much on these racialized lines, when in April 2020, two French doctors publicly discussed about potentially utilizing African subjects in experimental trials conducted to test tuberculosis vaccine for the novel coronavirus i.e., COVID-19, it generated much backlash on social media and opened many wounds for the Black, Indigenous and other people of colour being treated as ‘disposable’. The controversial utterances were widely condemned and the Director-General of World Health Organisation (WHO) dispraised their racist remarks as ‘hangover from “colonial mentality”’ and said that‘Africa won’t be a testing ground for any vaccine’. Note worthy to mention that colonialist patterns that focuses on Euro-Western world superiority have shaped language and the consequent response around the current pandemic affecting Global South nations by using labelling such as the ‘Wuhan Virus’ or the ‘Chinese Virus’, Chinese and other East Asian populations worldwide are being scapegoated and facing discrimination. Therefore, unveiling the layers of racial valuation is crucial to identify its remnants in contemporary practices and laws that discreetly and in covert ways facilitate racial subordination globally, which has widened the pre-existing inequities resulting from histories of slavery, redlining, racism and the predatory nature of capitalism that underpin the design of global and public health systems.
Savage, Audra, ‘COVID-1619: A Brief History of Racism’ (SSRN Scholarly Paper No ID 3671093, 10 August 2020) Abstract: Racism is the use of Black people to achieve the goals of white people without regard to the personhood, humanity, and agency of Blacks. This essay explores this definition of racism by tracing the influence of the twin institutions of law and religion in creating and maintaining the slave system in early colonial America. The essay then demonstrates the pernicious and persistent nature of racism by mapping this definition onto the current COVID-19 pandemic and its disproportionate impact on Black Americans.
Savaresi, Annalisa, ‘Enforcing the Right to a Healthy Environment in the Climate Emergency: A View from Above’ (SSRN Scholarly Paper No ID 3722080, 30 October 2020) Abstract: The COVID-19 pandemic has thrown into the spotlight the links between measures to tackle air pollution, protect human rights and address climate change. This article therefore scrutinises the extent to which the right to a healthy environment has been invoked in the growing body of human rights-based climate litigation in general, and to demand the enforcement of air quality standards in particular. By looking at the limited precedents that have occurred to date, the article offers some reflections on what the future may hold for this specific strand of litigation in the aftermath of the pandemic. It concludes that, where it is recognised, the right to a clean environment provides a precious ammunition to deliver greater climate accountability and better enforcement of air quality standards.
Scheinin, Martin, ‘Assessing Human Rights Compliance during COVID-19’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 117 Abstract: Compliance with human rights generates popular legitimacy and trust, legality and legal certainty and favourable effects for the economy. Crucially, it saves lives when combating a lethal pandemic such as COVID-19. Comprehensive, structured and evidence-based assessment of responses for their conformity with human rights is difficult but possible. This chapter presents a structured assessment model and the outcome from a piloting exercise in respect of 17 countries. The pilot study supports the conclusion that strong human rights performance in respect of any category of human rights entails and requires general compliance across all categories of human rights. This reflects the principle of the interdependence and indivisibility of all human rights. The experiences gained during COVID-19 will provide a basis for producing a generalisable model that can be adapted to future pandemics, as a self-assessment tool in addressing national strategies. Importantly, it would generate interaction between different epistemic communities such as epidemiologists, economists, sociologists and psychologists, lawyers and other experts on regulation, and human rights experts.
Scheinin, Martin, ‘To Derogate or Not to Derogate?’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Extract from Introduction: in addition to permissible restrictions (or limitations) upon human rights, applicable in perfectly normal situations, some human rights treaties also allow for the more far-reaching option of a State to derogate from some of its obligations during a situation of grave crisis. This applies to the subset of other than so-called non-derogable rights under the UN-level International Covenant on Civil and Political Rights (ICCPR, see article 4) and two of the regional human rights treaties, the American Convention on Human Rights (ACHR, see article 27) and the European Convention on Human Rights (ECHR, see article 15).
Scheu, Julian et al, Investment Protection, Human Rights, and International Arbitration in Extraordinary Times (Nomos, 2022)Contents:
- Part 1: Business and Human Rights Arbitration 39–84
- Part 2: Human Rights in International Investment Agreements 87–178
- Part 3: Specific Conflicts between Investment Law and Human Rights 181–288
- Part 4: African Perspectives on International Investment Law and Human Rights 291–368
- Part 5: International Investment Law and Human Rights in the Era of COVID-19 371–430
Abstract: This essay will address three areas in which the pandemic has had a disproportionately negative impact on people with disabilities: health care, education, and employment. Each of these topics represent a set of moving targets, as the evolution of the COVID-19 virus forces constant shifts in the public policies responding to it. Each topic alone could be the subject of many long law journal articles; this essay does not attempt to provide more than a summary overview of the situation at a fixed point in time—as of the writing of this article.
Schweikart, Scott J et al, ‘COVID-19 and Racial Justice in America’ in Glenn I Cohen et al (eds), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, 2023) 105–115 Abstract: The ongoing COVID-19 pandemic has impacted the world to devastating effect, yielding profound societal disruption around the globe. However, its impact throughout the world has not been equal among nations. In the United States, the impact of COVID-19 is influenced and exacerbated by an embedded social issue: structural racism and its attendant systemic inequities. This paper first addresses how structural racism, broadly construed as the deeply rooted discriminatory policies and systems that produce the chronic systemic inequities faced by BIPOC (Black, Indigenous, and People of Color) people in American society, have influenced, with notable detriment, COVID-19’s impact in the United States. This detrimental impact is most keenly demonstrated by the extreme disparate medical impact of COVID-19 itself, collectively in terms of the disease’s rate of infection, morbidity, and mortality on the BIPOC population versus that of the white population. As the United States crossed the threshold of 275,000 total deaths from COVID-19, it continued to see the significant inequities that were revealed in the early weeks of the pandemic. The latest data (as of November 2020) show that age-adjusted mortality rates for Indigenous people are 3.2 times higher than for white people; rates for Black and Latinx are 3.0 times higher than for whites. This translates into an unprecedented level of excess deaths across the country. If the COVID-19 mortality rate experienced in the white population applied universally to BIPOC communities, approximately 21,000 Black, 10,000 Latinx and 1,000 Indigenous people would still be alive today. The disparate impact is also evident regarding problems ancillary to the pandemic, such as the economic recession, which take a greater malignant toll on BIPOC communities, as well. Job and wage losses due to COVID-19 have hit marginalized and minoritized communities hardest; more than half of Hispanic (58 percent) and Black (53 percent) households in the US Census Bureau’s Household Pulse Survey reported a decline in employment income since mid-March. Black workers have experienced the highest rates of unemployment and the weakest recoveries since the March–April unemployment peak.
Sekalala, Sharifah et al and Ma 02115 +1495‑1000, ‘Analyzing the Human Rights Impact of Increased Digital Public Health Surveillance during the COVID-19 Crisis’ (2020) 22(2) Health and Human Rights Journal 7–20 Abstract: The COVID-19 pandemic has led policy makers to expand traditional public health surveillance to take advantage of new technologies, such as tracking apps, to control the spread of SARS-CoV-2. This article explores the human rights dimensions of how these new surveillance technologies are being used and assesses the extent to which they entail legitimate restrictions to a range of human rights, including the rights to health, life, and privacy. We argue that human rights offer a crucial framework for protecting the public from regulatory overreach by ensuring that digital health surveillance does not undermine fundamental features of democratic society. First, we describe the surveillance technologies being used to address COVID-19 and reposition these technologies within the evolution of public health surveillance tools and the emergence of discussions concerning the compatibility of such tools with human rights. We then evaluate the potential human rights implications of the surveillance tools being used today by analyzing the extent to which they pass the tests of necessity and proportionality enshrined in international human rights law. We conclude by recommending ways in which the harmful human rights effects associated with these technologies might be reduced and public trust in their use enhanced.
Séverin, Marianne and Hannah Muzee, ‘COVID-19 Entrepreneurs: Corruption and the Violation of the Rights of Health and Development in South Africa and Uganda’ in Jędrzej Skrzypczak and Oscar Pérez de la Fuente (eds), Lessons for Implementing Human Rights from COVID-19 (Routledge, 2024) Abstract: While the COVID-19 pandemic caught many countries and governments unawares, some suffered more than others. In Africa, with a highly inefficient public service and dysfunctional welfare state, African governments had to act fast to prevent a high death toll. South Africa implemented a 23-day lockdown right after the first infection was reported, 18 days before Italy. The United States, having, had one of the world’s most significant casualties, introduced COVID lockdowns in March 2020. Screening at ports of entry was instituted for those coming into the country, where travellers were required to present a negative PCR test that was not older than 72 hours and subsequently proof of vaccination. In addition, the government intensified the distribution of information to private and public healthcare workers and the public about the pandemic (Villiers et al., 2020). Furthermore, a National State of Disaster was declared on 15 March 2020 to not only enable the government of South Africa to slow down the infection rate but also ease the pressure on the healthcare system. Since the population was not economically active, several strategies were introduced to alleviate the suffering of the people, such as the R350 social relief of Distress Grant, the COVID-19 Temporary Employer/Employee Relief Scheme (TERS). It aimed to provide wage support to workers, and other relief schemes to small businesses, including the extension of validity of vehicle and driving licenses (South African Government, 2022).
Sheikh, Asim A, ‘COVID-19: A Brave New Medico-Legal World?’ (2020) 26(1) Medico-Legal Journal of Ireland 2 Abstract: Reflects on the medico-legal issues raised by the coronavirus pandemic. Notes provisions of the Irish Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 restricting individual freedoms and protecting the especially vulnerable.
Sheldon, Tess and Ravi Malhotra, ‘Not All in This Together: Disability Rights and COVID-19’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 419 Abstract: Persons with disabilities are significantly and disproportionately impacted by COVID-19. In this paper, we address the accessibility of emergency preparedness and the failure of governments to consistently include people with disabilities in their response strategies, even when statutes mandate inclusions and accessibility. In particular, persons with disabilities have not consistently been included in COVID-19 communication strategies, and may encounter barriers to accessing vital information and advice about the pandemic. We also highlight the implications of the economic marginalization of people with disabilities during a pandemic. The economic disruption caused by COVID-19 particularly undermines the income security of persons with disabilities. People with disabilities largely live in poverty and yet their concerns have largely been ignored by pandemic stimulus funding. Finally, we explore how institutionalization in this brave new world has grave consequences for people with disabilities. The institutions, where many people with disabilities live, are quickly becoming epicentres of SARS-Cov-2 transmission. COVID-19 calls into question the utility of their confinement in general terms and magnifies the concerns that pre-existed the pandemic.
Sherman, John, ‘The Contractual Balance Between ‘Can I?’ and “Should I?” Mapping the ABA’s Model Supply Chain Contract Clauses to the UN Guiding Principles on Business and Human Rights’ (Harvard Kennedy School, Corporate Social Responsibility Initiative Working Paper No 73, 2020) Abstract: This paper examines the efforts of the American Bar Association to draft proposed Model Contract Clauses for businesses that prohibit modern slavery and child labor in supply chain contracts. This involves a careful balancing of a buyer’s desire to avoid consuming goods manufactured with human rights abuse and its desire to protect itself legally, in order to ensure that the company is acting in alignment with its responsibility to respect universally recognized human rights under the UN Guiding Principles on Business and Human Rights. This subject is quite timely in light of the current efforts of many companies, in response to the COVID-19 pandemic, to exercise force majeure clauses in their contracts to dump suppliers without regard to the impacts of vulnerable workers in their supply chains.
Shongwe, Musa Njabulo, ‘Eswatini’s Legislative Response to COVID-19: Whither Human Rights?’ (2020) 20(2) African Human Rights Law Journal 412–435 Abstract: Having been confronted with the COVID-19 pandemic, the Kingdom of Eswatini has had to adopt both soft and hard response measures. The constitutional emergency response framework had not envisaged the type of emergency brought about by COVID-19, forcing the state to enact extraordinary regulatory measures. Unprecedented emergency powers have been conferred on state functionaries. Questions have arisen as to the nature of these emergency powers, the manner in which these powers have been exercised and the absence of special oversight mechanisms. The response measures and regulations have had an unparalleled impact on lives and livelihoods of Emaswati. This article explores the nature of emergency powers in the laws of Eswatini, and the particular effects of the COVID-19 regulations on human rights. This article commences with an analysis of constitutional emergency powers in Eswatini and the limitations thereof, and considers the question of why the state did not invoke a constitutional state of emergency. The article proceeds to examine the nature of statutory emergency powers under the Disaster Management Act, and considers whether there are effective legal limitations on the exercise of executive authority and effective safeguards against the abuse of power. The article then deals with the particular impact of the COVID-19 response legal framework on human rights protection. In this regard, the article advances examples of situations where rights have been infringed. Finally, the article proposes that the state’s response measures should continuously endeavour to mitigate the long-term impact on human rights.
Shrestha, Rijen, Kewal Krishan and Tanuj Kanchan, ‘Dignity and Rights of the Dead and Their Families: A Compromise in the Time of Coronavirus Disease 2019’ [2020] Medicine, Science and the Law (advance online article, published 29 July 2020) Abstract: The biological aspects and economic impact of coronavirus disease 2019 have been extensively discussed in the literature. However the social, cultural and legal aspects of the pandemic, especially regarding the dignity and rights of the deceased and their families – have so far received little attention. This communication discusses restrictions and violations of the rights of the deceased and their families and their privileges to carry out funerary practices and rituals during the pandemic caused by the novel severe acute respiratory syndrome coronavirus 2.
Shuaib, Farid Sufian, ‘The Pandemic and the Notion of Duties and Responsibilities Under Human Rights’ (Proceedings of the 1st International Conference on Law and Human Rights 2020 (ICLHR 2020),2021) 5–9 Abstract: During the current COVID-19 pandemic, State authorities prescribe public health measures to reduce the risk or the rate of infection in the community. Such measures impose restrictions on the freedom of movement and how the public conduct their business such as the lock down order, physical distancing, mandate to wear face mask and prohibition of mass gatherings. Such measures invite criticisms and objections from some sections of the society since it transgresses into freedom of individuals. In German and the United States of America for instance, protests were made against the official measures of prescribing wearing of face mask and physical distancing. This paper seeks to examine the question raised under human rights discourse and on the responds of different communities on such restrictive public health measures including the respond of such measures in Malaysia. It is interesting to see the different responds in a society where there is emphasis on communitarian rights as oppose to individual rights.
Siddique, Fahad Bin, ‘Protecting Human Rights in Bangladesh: Difficulties During the Period of the Covid-19 Pandemic’ in Ana Čović and Oliver Nikolić (eds), Pravni i Društveni Aspekti Vakcinacije Tokom Pandemije Kovida 19 / Legal And Social Aspects Of Vaccination During The Covid-19 Pandemic (Institute of Comparative Law, 2022) 145–167 *[OPEN ACCESS BOOK]* Abstract: When the Covid-19 outbreak started, Bangladesh, as a developing nation, did not have adequate resources to fight against it compared to other developed nations. To the government of Bangladesh, the primary challenge was to protect the citizens’ health and ensure their safety from the outbreak with limited resources. Moreover, this public health-related challenge motivated them to announce lockdown in the name of general holiday for several times. However, with these restrictions, the people of Bangladesh are deprived of several fundamental rights according to the constitution of Bangladesh, as well as a number of human rights norms. It is pretty fascinating that, for the first time in history, the people of Bangladesh were deprived of their rights, including freedom of movement, assembly, etc, without the declaration of emergency in accordance with the constitution. Even the Supreme Court was on vacation for several days, which generated a vacuum condition in the justice system for the people who were deprived of their fundamental rights. This paper aims to analyse the conditions of human rights in Bangladesh during the Covid-19 pandemic and how the pandemic-related laws and law enforcement agencies of Bangladesh regulated citizens. On the other hand, in terms of participation, Bangladesh’s Covid-19 vaccination drive has been quite successful in the South Asian region despite the government keeping it optional for everyone. This paper has aimed to scrutinise the social hesitancy regarding the ongoing vaccination drive. Furthermore, this paper will take a hypothetical view and further examine if the government made it compulsory, then how it will deal with the supreme law of Bangladesh.
Simic, Olivera and Kim Rubenstein, ‘The Challenge of “COVID-19 Free” Australia: International Travel Restrictions and Stranded Citizens’ (2023) 27(5) The International Journal of Human Rights 830–843 Abstract: This paper uses Australia as a case study to analyse restrictions on international movement during the COVID-19 pandemic. Restrictions on inbound and outbound travel have been a key tool deployed by governments across the globe to suppress the COVID-19 pandemic. We use ‘COVID zero’ Australia as a case study to assess an extreme response to restricting international movement. We look at the recent complaint launched before the United Nations Human Rights Council in Geneva. The action was raised with the support of a group of Australian citizens stranded abroad with the assistance of the expert in Australian constitutional law who is the second author of this paper. We argue that the measures implemented by Australian governments to effectively eliminate COVID-19 domestically have provided insufficient consideration of, and alternatives to, the current system’s failure to facilitate essential international travel. For this reason, Australia’s framework for restricting international movement lacks proportionality and necessity from the perspective of human rights and freedoms.
Sirleaf, Matiangai, ‘COVID-19 and the Racialization of Diseases (Part I)’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Extract from Introduction: This post connects the racialization of COVID-19 to the historical narratives and interventions premised on the suspicion of diseased and uncontrolled racialized bodies coming to infect those in the West. I explore the significance of this legacy for global heath in more detail in Part II.
Sirleaf, Matiangai, ‘COVID-19 and the Racialization of Diseases (Part II)’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Extract from Introduction: Part I of this post details how European powers enacted treaties that prioritized diseases considered most relevant to protecting Western colonial interests. It helps to elucidate how the racialization of diseases and their valuation informed the emergence of the global health regime and highlights how the development of this regime often depended on the coercive power of the colonial administrative state to implement public health measures. This post analyzes how the racialization of diseases is accomplished more subtly and indirectly under the current global health architecture.
Sirleaf, Matiangai VS, ‘Disposable Lives: COVID-19, Vaccines, and the Uprising’ (2021) 121(5) Columbia Law Review 71–94 Abstract: Two French doctors appeared on television and publicly discussed potentially utilizing African subjects in experimental trials for a tuberculosis vaccine as an antidote to the novel coronavirus (COVID-19). Tedros Adhanom Ghebreyesus, the Director-General of the World Health Organization (WHO), denounced these kinds of racist remarks as a ‘hangover from “colonial mentality”’ and maintained that ‘Africa can’t and won’t be a testing ground for any vaccine.’ The fallout on social media was similarly swift, with Samuel Eto’o, a Cameroonian football legend, referring to the doctors as ‘[d]es assasins’ and several others questioning the motives behind testing a vaccine on the African continent. The dialogue between the doctors and the strong reactions to their statements reopen the wounds of Black, Indigenous, and other people of color’s lives being treated as disposable.This Piece connects how racialized notions regarding which lives are disposable are reflected widely in the areas of health and human rights. The presumed expendability of Black lives is made manifest from systemic police violence, to the devastating racially disproportionate impact of COVID-19, to historic and ongoing medical experimentation, and to inequitable vaccine access. The twin pandemics of systemic racism and COVID-19 have heightened the visibility of the disposability with which society views the lives of people of color. The cumulative effect of this disposability furthers the devaluation of subordinated groups. Through exploring the theme of disposability, this Piece clarifies the roles of international human rights law, global public health, and international intellectual property law in either advancing racial justice efforts or contributing toward racial subordination. This period of racial reckoning and reform creates an opening to challenge the racial status quo in these areas and beyond.
Situmeang, Ampuan and Winsherly Tan, ‘Fulfillment of Human Rights in Public Services During the Covid-19 Pandemic in Indonesia’ (Proceedings of the 1st International Conference on Law and Human Rights 2020 (ICLHR 2020),2021) 70–77 Abstract: Good governance can provide welfare to the community. Therefore, the administration of government in Indonesia should be able to take a serious concern to the principles of good governance as regulated in Article 89 of Act Number 30 of 2014 on Government Administration. One of its principles is to provide good public services where this public service is one of the basic rights of citizens. In the era of the COVID-19 pandemic, many aspects of the lives of citizens need to be served. However, with the existence of government policies such as work from home, Physical Distancing, and Large-Scale Social Restrictions for most of the State Civil servants, this is a big challenge in carrying out good governance in providing public service rights for citizens. The objective of this research is to analyze good governance and its best solutions in providing public service rights in the pandemic era. The research method used in this research is normative juridical, while the type of data used is secondary data. Secondary data consist of primary legal materials such as Law Number 30 of 2014, Law Number 25 of 2009, and Law Number 39 of 1999 and the theory of state welfare by Muchsan which states that the state is required to provide the best and widest possible service to its citizens.The results showed that the number of complaints about public services during the Covid-19 pandemic increased. First, the Ombudsman of the Republic of Indonesia Representative of Central Java received 87 reports of public complaints during the Covid-19 pandemic. The distribution of social assistance is the largest type of report. Second, in Jakarta, from March to June 25th, 2020, there were 23,466 reports. Most of the topics of complaints were about social assistance, economics matter, and physical distancing. The government has made an effort in responding to public service reports. One of the efforts is that the Ministry of Empowerment of State Apparatus and Bureaucratic Reforms has issued Circular Letter Number 53 of 2020 concerning a special mechanism for managing complaints about Covid-19 and developing rule-based features that allow reports to be automatically followed up by the admin. However, several solutions need to be done and improved, such as the need for innovation in all sectors by building a public service innovation ecosystem which includes awareness, improving capacity and empowerment, and also integrating and managing the process.
Skolnik, Terry, ‘The Punitive Impact of Physical Distancing Laws on Homeless People’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 287 Abstract: One of the hallmarks of COVID-19 is that it disproportionately impacts vulnerable individuals and groups. The State’s punitive legal responses to the pandemic are no different. This chapter shows why coercive physical distancing laws disparately impact homeless people. It argues that harsh financial penalties for violating these laws can constitute cruel and unusual punishments that contravene s. 12 of the Canadian Charter of Rights and Freedoms. It challenges prevailing s. 12 Charter jurisprudence and demonstrates why expensive fines amount to cruel and unusual punishments even when judges have discretion to modify their severity. After situating the regulation of homelessness within its historical context, it concludes by setting out why homeless people are uniquely vulnerable to over-policing. Ultimately, this chapter elucidates why a public health approach to both COVID-19 and homelessness are necessary and why neither can be punished out of existence.
Skrzypczak, Jędrzej and Krzysztof Duda, ‘Threats to Freedom of Expression in the Era of the COVID-19 Pandemic’ in Jędrzej Skrzypczak and Oscar Pérez de la Fuente (eds), Lessons for Implementing Human Rights from COVID-19 (Routledge, 2024) Abstract: Freedom of expression and freedom of the media are among the elementary human rights underpinning the functioning of democratic societies and, at the same time, a necessary condition for the development of individuals.
Skrzypczak, Jędrzej and Oscar Pérez de la Fuente (eds), Lessons for Implementing Human Rights from COVID-19: How the Pandemic Has Changed the World (Routledge, 2024) link to book page on publisher website
Book summary: This book explores the effect of the pandemic on human rights; civil and political rights (CPR); economic, social, and cultural rights (ESCR); and freedoms around the world. The COVID-19 pandemic radically changed many aspects of the lives of individuals and entire societies. This crisis and the unprecedented experience required extraordinary solutions, regulations, and rapid responses from decision-makers to limit the spread of the disease and protect societies. To this end, during this period, many countries chose to impose states of emergency, resulting in the granting of extraordinary powers to the executive. This has sometimes been a very convenient pretext for introducing various types of restrictions, oppressive surveillance, and other legal arrangements that can be qualified as human rights violations. The authors make a scholarly summary of this period, identifying possible rights violations — but above all — recommendations for the future. This crisis has shown how important it is to have universal, equitable health and social protection systems that cover all community members equally and without discrimination, and the authors remodel the concept of ‘human rights’ and ‘human needs’. The book covers varied examples from lockdowns to vaccination to information control, across Spain, Poland, South Africa and Uganda, the Czech Republic, Belarus and Ukraine, and Russia.
Skrzypek, Maciej, Jędrzej Skrzypczak and Oscar Pérez de la Fuente, ‘Smart Quarantine vs Strict Lockdown: Restrictions on Political Rights in Anti-Pandemic Strategies in the Czech Republic’ in Jędrzej Skrzypczak and Oscar Pérez de la Fuente (eds), Lessons for Implementing Human Rights from COVID-19 (Routledge, 2024) Abstract: This chapter aims to trace the evolution of the state authorities’ attitude to restrict fundamental political rights in the Czech Republic during the coronavirus pandemic from 11 March 2020 to the end of March 2021. At that time, the Czech authorities changed the anti-pandemic strategy, which impacted certain rights and freedoms. During ‘a second wave’, the ruling elites decided to replace smart quarantine with a strict lockdown through an extra-constitutional state of emergency since February 2021. These changes aimed to extend the government’s scope of power and allowed ignoring parliamentary opposition. The shift in strategy led to an intensification of the implementation of quasi-militant democracy instruments, which decreased the political nation’s independence. Therefore, the author will address the motivations and results of anti-pandemic policy changes that impact the discussed sovereignty. That reflection is crucial for debate on implementing anti-democratic measures as part of the policy to deal with the subsequent widespread epidemics and other crises. In this chapter, the author refers to interdisciplinary studies on the effectiveness of pandemic strategies in the country, which, together with analysing the restriction of political rights, will provide answers to the legitimacy of changing the proposed action in the second half of 2020. The periodisation of the first year of the coronavirus crisis is presented in the diagram below.
Sodipo, Bankole, Titilayo Aderibigbe and Daniel Ozoma, ‘Stigma, COVID and Health Status Related Discrimination under Nigeria Law’ (2022) 29(1) Journal of Law and Medicine 245–253 Abstract: Stigmatisation of a person often leads to a demeaning treatment of the person by the public. There is a growing stigma about COVID-19 resulting in denials by some persons that members of their family died of COVID. This portends danger to public health as data and information-sharing are important ways of curbing challenges to public health. Stigmatisation may result in treating persons with health challenges like COVID in a discriminatory manner. This article reviews the remedies available to persons who have been discriminated against on the grounds of their health condition. It examines the constitutionality of the powers to restrict movement and the like, made to address the COVID-19 pandemic. It suggests how health stigmatisation can be curbed.
Solanes Mullor, Joan, ‘Protecting Political Rights During the COVID-19 Pandemic: The Emergence of Strict Scrutiny in Spain’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 161–174 Abstract: The states of alarm declared in Spain to address the COVID-19 pandemic have restricted multiple fundamental rights. While such restrictive states of alarm are not new in our constitutional history since 1978, the scale of the restrictions and the nature of rights affected is unprecedented, as some of them, especially political rights, have never been the focus of the previous states of alarms declared in the country. This chapter explores how the state of alarm relates to the limitation of the right to political participation and to the Spanish judicial response in light of the challenge posed by the pandemic. It examines the legal basis for the restrictions on political rights under the state of alarm, the decisions taken by Spanish public authorities limiting those rights during the pandemic and the judicial response to the measures. Surprisingly, the customary deference of the courts during emergencies has vanished. The Spanish judiciary has actively protected political rights and deployed a model of judicial review that formally and substantially stresses the protection of political rights even in times of crisis.
Spadaro, Alessandra, ‘COVID-19: Testing the Limits of Human Rights’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 317-325 Extract from Introduction: … this article starts by explaining why the taking of measures to contain the pandemic is warranted under human rights law. The article shows that, at the same time, some measures can have a detrimental effect on the enjoyment of a number of human rights. With a focus on the International Covenant on Civil and Political Rights (ICCPR) and on the European Convention on Human Rights (ECHR), the article then proceeds to analyse the conditions under which States may legitimately interfere with certain human rights through either limitations or derogations and highlights some areas of concern in this respect. It concludes that while the curtailment of certain freedoms might be temporarily necessary to deal with the COVID-19 outbreak, such curtailment should be carefully limited and constantly monitored so as to avoid abuses.
Spivakovsky, Claire and Linda Roslyn Steele, ‘Disability Law in a Pandemic: The Temporal Folds of Medico-Legal Violence’ (2021) Social & Legal Studies (advance article, published 10 June 2021) Abstract: Disabled people are subject to disability laws – such as guardianship, mental health and mental capacity legislation – which only apply to them, and which enable legal violence on the basis of disability (‘disability-specific lawful violence’). While public health laws during the COVID-19 pandemic enabled coercive interventions in the general population, disabled people have additionally been subject to the continued, and at times intensified, operation of disability laws and their lawful violence. In this article we engage with scholarship on law, temporality and disability to explore the amplification of disability-specific lawful violence during the pandemic. We show how this amplification has been made possible through the folding of longstanding assumptions about disabled people – as at risk of police contact; as vulnerable, unhealthy and contaminating – into the immediate crisis of the pandemic; ignoring structural drivers of oppression, and responsibilising disabled people for their circumstances and the violence they experience.
Sroka, Tomasz, ‘Home Quarantine or Home Isolation During the Covid-19 Pandemic as a Deprivation of Liberty under Polish Law’ (2021) 14(2) Medicine, Law & Society 173–188 Abstract: Combating the COVID-19 pandemic requires that States should take many measures, which may also substantially interfere with the rights or freedoms of individuals. One commonly used mechanism to counter the spread of the SARS-CoV-2 virus is home quarantine or home isolation. Bearing in mind the guidelines arising from ECHR case-law, the article assesses whether home quarantine or home isolation applied under Polish law constitutes a deprivation of liberty. Taking into consideration the manner and conditions of these isolation measures and the possibility of using coercive measures, home quarantine or home isolation under Polish law constitutes deprivation of liberty within the meaning of Article 5(1)(e) of the ECHR. Then attention is drawn to selected consequences arising from this classification. In particular, it is emphasized that they cannot be imposed by a decision of the legislator, but only as a result of an act of law enforcement by sanitary authorities or courts.
Stark, Barbara, ‘Inequality, Covid-19, and International Human Rights: Whose Lives Matter?’ (2021) 27(2) ILSA Journal of International and Comparative Law 251–273 Abstract: Part 1 of the article shows that the poor, everywhere, are more likely to get sick and more likely to die when they do. In many countries, they are also more likely to starve. Part II explains why this is a matter of human rights. The ongoing deprivation of basic rights to healthcare and an adequate standard of living are major factors. As this Part demonstrates, however, the extreme vulnerability of the poor is grounded in earlier violations of human rights, including state-sanctioned segregation in the American south in the 1950s and what one author has called ‘the darker side of American hegemony,’ referring to the United States’ role in the overthrow of leftist regimes in Latin America during the Cold War. Part III argues that the current crisis demands a broader, deeper, and more authentic commitment to human rights. We are living in a world of brutal economic inequality, in which some lives matter and others do not. The United States has played a major role in creating this world, in part by violating the human rights of Black Americans, immigrants, and asylum-seekers. This Article argues that the United States should take responsibility for these violations and suggests how it may begin.
Stephenson, Scott, ‘The Relationship between Federalism and Rights during COVID-19’ (2021) 32(3) Public Law Review 222-235 Abstract: During the early stages of the COVID-19 pandemic, a number of difficult issues involving rights arose for consideration, including with respect to freedom of movement, return to one’s country of citizenship, health care and education. Many of those issues had a federal dimension in Australia, with, for instance, different States adopting different responses to the issue or the Commonwealth and States sharing responsibility for taking action on the issue. This article argues that the response to COVID-19 implicated three aspects of the relationship between federalism and rights, with each yielding a different conclusion. First, federalism affected the protection of rights in a decidedly mixed manner. Second, federalism affected deliberations on rights in a broadly positive manner. Third, the federal-based protection of freedom of movement in the Constitution proved not to be a substitute for a rights-based protection of freedom of movement.
Steuer, Max, ‘The Extreme Right as a Defender of Human Rights? Parliamentary Debates on COVID-19 Emergency Legislation in Slovakia’ (2022) 11(2) Laws 17 Abstract: During the COVID-19 pandemic, the protection of public health became a political priority worldwide. Slovakia’s COVID-19 response was initially praised as a global success. However, major rights restrictions were introduced in spring 2020, with some of these endorsed by the parliament. This article uses Rossiter’s and Schmitt’s concepts of the exception and Agamben’s distinction between life and survival to highlight the risks pertaining to the framing of the protection of public health as contradictory to human rights guarantees. It investigates how human rights were discussed by Slovak parliamentarians in relation to key legislation, that introduced a COVID-19 contact tracing app and allowed repeated prolongation of health emergencies by the executive with parliamentary approval. The findings indicate that democratic parliamentarians prioritized public health considerations framed in terms of security and effectiveness rather than rights, dissociating biological survival from political life. In contrast, extreme political actors became outspoken critics of emergencies, referring to human rights. As such, the deliberations represent a missed opportunity by democratic legislators to justify public health protection via a human rights lens and risk undermining democracy in Slovakia.
Steven, David, Maaike S de Langen and Mark Weston, ‘Justice for All and the Public Health Emergency’ (SSRN Scholarly Paper No 4755459, 8 April 2020) Abstract: The COVID-19 pandemic is an unprecedented global emergency. It is not only a health crisis but also a human rights crisis. Justice actors face daunting responsibilities as they design, implement, and enforce new measures to prevent the spread of infection. Measures that heighten the risk of human rights abuses can undermine trust, at a time when the justice system most needs to maintain the public’s confidence. For better or for worse, justice systems and justice workers are on the frontline of this pandemic.
Stevenson-McCabe, Seonaid, ‘Protecting Those Small Places’ (2020) 65(6) Journal of the Law Society of Scotland 18–19 Abstract: A proportionate and informed legislative response to the COVID-19 crisis, and the period beyond, has to be based on human rights principles
Știrbulescu, Ileana Denisa, ‘Obligation to Wear a Mask in Open Spaces. A Violation of a Person’s Rights and Freedoms?’ (2020) 19 Analele Universității Titu Maiorescu 265–276 Abstract: Since ancient times, humanity has faced various threats and risks on the population, respectively on health, economy, but also on the manifestation and social change of citizens in a community, the latter being forced to obey certain rules and restrictions they had to abide by. The coronavirus pandemic has hit the 21st century hard, with the medical and state systems also unprepared for the humanitarian crisis.With the outbreak of this deadly virus, the wearing of a mask in both closed and open spaces was imposed as an obligation, which is why certain rights and freedoms of citizens were violated. These restrictions were imposed both in Romania and in the states of Europe, depending on the scenario in which they were, respectively the severity of the evolution of the virus. Wearing an outdoor protective mask has become an obligation imposed by several European countries, including Romania. The question arises as to whether its conduct restricts in any way the rights and freedoms of the citizen and how it is demonstrated or what this fact is based on from a legal point of view.
Stobbs, Nigel, Belinda Bennett and Ian Freckelton, ‘Compassion, the Vulnerable and COVID-19’ (2020) 27(4) Journal of Law and Medicine 865–876 Abstract: Levels of personal anxiety are inevitably escalating in response to the COVID-19 pandemic, including individual fear of infection, grief at the loss of loved ones and reactive depression related to loss of employment and livelihood. This article considers the importance of compassion in a range of contemporary and emerging contexts during a time of pandemic. These include: exposure of medical and care professionals to the acute demands of overstretched institutions resulting in adverse mental health outcomes and compassion fatigue; attitudes towards the burgeoning cohort of welfare recipients; and particularly vulnerable groups such as the elderly, and those who are homeless. The article considers how we ought to conceive of compassion in these contexts and makes some suggestions for building future compassion interventions and training.
Struensee, Von and Susan, ‘Mapping Artificial Intelligence Applications Deployed Against COVID-19 Alongside Ethics and Human Rights Considerations’ (SSRN Scholarly Paper ID 3889441, 4 July 2021) Abstract: This article presents an extensive and global survey on the use of Artificial Intelligence (AI) to address the COVID-19 epidemic and a comprehensive discussion of the ethical and human rights implications of AI’s deployment during the pandemic. AI applications contributed to the COVID-19 response including through early warnings and alerts; tracking and prediction; diagnosis and prognosis; drug treatments; and social and medical management. There are human rights issues and ethical risks to consider with these uses of AI technology, for example, equality, non-discrimination and accessibility – particularly as they impact on gender, ethnicity, locality, and wealth. To understand risks before relying on such methods, we must assess whether data can be collected any more effectively from people in remote or disadvantaged areas than with the traditional methods. Other questions would include whether information is gathered equally from women and men, and older people; do all ethnicities have equal access to phones and mobile data; and does the cost of internet access and data use discriminate against poorer people?While the ‘coronacrisis’ advanced AI-based responses to global health emergencies, this wide-reaching AI capacity, raises an array of ethical and human rights challenges. The need for governments to act quickly and globally in tackling the coronavirus resulted in unprecedented practices amid a lack of public trust. AI technologies assisted governments to curb the global epidemiological threat. Yet, the application of these tools threatened fundamental rights. AI based interventions such as contact tracing raised valid fears of ‘surveillance creep’. Global human rights are implicated in the measures targeting the spread of COVID-19-related misinformation. Concern over the impact of the internet as a carrier of fake news amplified during COVID-19. Conspiracy theories and alternative narratives mushroomed all over the world. While some fears of misinformation in the current context are valid, the pandemic resulted in an unprecedented global crackdown on freedom of expression. AI applications during the pandemic challenged widely-held commitments to privacy, autonomy, and civil liberties. The ‘coronacrisis’ was viewed by some as a perfect storm to undermine rights to privacy, as effected by surveillance, and freedom of expression. Tech-based responses to COVID-19 included drone surveillance, facial recognition technologies, contact-tracing and quarantine-enforcement apps. With no expiration date or sunset clauses in sight for these technologies’ deployment, there are concerns that these surveillance measures could deteriorate privacy further and long-term.While AI is a powerful tool, humans remain central in evaluating and interpreting its output and its ethical application. Human input, across disciplines, remains needed for the optimal application of AI against COVID-19 and other contexts. Overcoming the lack of data needed to optimize AI as a pandemic tool will require a careful balance between data privacy and public health. Increasing diagnostic data is valuable and essential to save lives, train AI, and harness AI for other public health applications. Due to the technical, ethical, and human rights risks, AI must develop alongside human rights and ethical considerations.
Sudiono, Linda, ‘The Vulnerability of Women in Dealing with Covid-19 Pandemic: Feminist Legal Theory Approach’ (2021) 7(3) Hasanuddin Law Review 241–259 Abstract: Women are one of the community groups most affected by Covid-19 because most are workers with lower incomes and unprotected financial security. Moreover, most women occupy the informal sector, which is more vulnerable in accessing social security guarantees. In addition, domestic violence against women increases in several countries during the pandemic. This article aims to analyze the causes of the negative impacts of the Covid-19 pandemic on Women and formulate the legal solution using the Feminist Legal Theory approach. The results show that there are broadly two causes of negative impacts for women dealing with Pandemic Covid-19. Firstly, due to the inequality in economic structure. Secondly is the gender stigmatized social structure. In this case, the feminist legal theory approach can be used to reconstruct and reform the negative impacts, as well as reanalysis the solutions in realizing women’s legal justice due to the outbreak of the covid-19 pandemic. This study offers three solution methods. Firstly, analyzing the legal methods in giving gender implications and perpetuating women’s subordination. Secondly, making gender the main category in conducting legal analysis. Thirdly, considering gender specificity in achieving legal equality for women.
Suherman et al, ‘Ethical and Legal Aspects: Violations of Public Rights in Handling Covid-19 in Indonesia’ (2021) 24(6) Journal of Legal, Ethical and Regulatory Issues 1–15 Abstract: This research was very important to do so that the government did not violate public rights in handling and preventing Covid-19 both from an ethical and legal perspective. This research used normative law and prioritizes library research; with the research approach used was the statutory, case and conceptual approaches. The results of this research were in fact related to this ethical aspect, not only concerning the government but also concerning medical personnel in the context of handling and preventing Covid-19. The government and medical personnel in this case can refer to the ethics commission of the World Health Organization (WHO) which has published ‘Ethics and Covid-19: resource and priority-setting’. Meanwhile, related to the legal aspect, the authority that the government has in handling Covid-19 was in the form of rights not authority in the form of power, because if the authority was in the form of power they usually act arbitrarily to others. Meanwhile, if they used that authority as a right then they would use their authority fairly and morally or ethically.
Supardi et al, ‘The Increasing Role of Children Protection Institutions to Assist in Dealing with The Law During the Covid-19 Period’ (2021) 11(3) Review of International Geographical Education Online 1198–1205 Abstract: Children protection in Indonesia is performed by families, the state, society, and the related institutions. The main instrument is regulated in Law No. 35 of 2014 concerning Children Protection and is realized by the establishment of the Children Protection Institution. However, there are obstacles in its implementation that require institutional optimization efforts to run effectively. The institution in Indonesia faces several obstacles in performing its duties, such as the uneven distribution in all regions, the lack of understanding and public participation, and others which will be explained further. The institution’s optimization can be performed by making comparisons with countries that have the best children’s protection in the world in terms of the methods used. Therefore, this research used a normative juridical method, including a statutory and a comparative approach.
Susi, Mart, ‘Digital Human Rights Proportionality During Global Crisis’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 283-296 [OPEN ACCESS BOOK] Extract from Introduction: The impact of the COVID-19 crisis on human rights reveals the triumph of practice over theory. This means departure from the established pattern of human rights normative development as we know since the aftermath of World War II, that is, as long as human rights have been cards in the international arena. Little can be added to the understanding that the development of human rights law and practice is gradual and incremental, passing through the stages of rhetoric, epistemic and ontological conceptualisation, and finally regional or global recognition.[1] This pattern was abandoned in 2020 in connection with COVID-19 and human rights. Within less than one year the absence of foreseeability and transparency as inherent characteristics of private online content governance were tacitly accepted by the civil societies and governments around the world.[2] Social media platforms are now expected to conduct factual control of information related to the disease, and governments and public authorities are no longer reluctant to rely on social media communication for conveying ‘official’ messages. At first glance this seems to strengthen citizen democracy, at least diversify the ‘ownership’ of democracy.
Szeibert, Orsolya, ‘Human Rights during the COVID-19 Pandemic in Hungary with Special Regard to the Right to Have Contact’ (2021) 14(2) Medicine, Law & Society 395–418 Abstract: In Hungary, the government declared a state of danger in March 2020 as a consequence of the COVID-19 pandemic. The state of danger was lifted in June, but epidemological preparedness and state of medical crisis were declared by a government decree. In November 2020, the state of danger was declared for the second time, while epidemological preparedness was maintained. In February 2021, the state of danger was declared again. The list of the legal rules which changed and have been continuously changing because of the COVID-19 pandemic since March 2020 is extremely long and the new provision or the modifications have been heavily influencing the population’s everyday life. The aim of this paper is to overview primarily the restrictions affecting human rights with special regard to the right to have contact as one of the patients’ rights. Important issues of the parent-child contact affected by the COVID-19 pandemic is discussed, as well.
Tatikyan, Sossi, ‘The Impact of the Covid-19 Related Emergency Measures on the Democracy and Human Rights in Armenia’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 66–78 Abstract: This paper analyses the adoption, enforcement and parliamentary oversight of the emergency measures in response to COVID-19, and their impact on the democracy, human rights and good governance in Armenia.
Tessler, Hannah, Meera Choi and Grace Kao, ‘The Anxiety of Being Asian American: Hate Crimes and Negative Biases During the COVID-19 Pandemic’ (2020) 45 American Journal of Criminal Justice 636–646 Abstract: In this essay, we review how the COVID-19 (coronavirus) pandemic that began in the United States in early 2020 has elevated the risks of Asian Americans to hate crimes and Asian American businesses to vandalism. During the COVID-19 pandemic, the incidents of negative bias and microaggressions against Asian Americans have also increased. COVID-19 is directly linked to China, not just in terms of the origins of the disease, but also in the coverage of it. Because Asian Americans have historically been viewed as perpetually foreign no matter how long they have lived in the United States, we posit that it has been relatively easy for people to treat Chinese or Asian Americans as the physical embodiment of foreignness and disease. We examine the historical antecedents that link Asian Americans to infectious diseases. Finally, we contemplate the possibility that these experiences will lead to a reinvigoration of a panethnic Asian American identity and social movement.
Thomas, George and Erica Pulford, ‘Civil Liberties in the Age of COVID-19’ (2020) 72(3) Rutgers Law Review (forthcoming) (forthcoming) Abstract: Can a state close its borders to, or impose mandatory quarantine on, travelers from states or cities that have a high community spread of COVID-19? On March 26, Rhode Island Governor Gina Raimondo imposed various restrictions on travelers from New York. Governor Andrew Cuomo threatened to sue. On June 24, Governor Cuomo, along with New Jersey and Connecticut governors, imposed mandatory quarantine on travelers from eight states that had developed into ‘hot spots’ for the virus. What kind of restrictions would be most effective in dampening the spread of the virus? Does the Constitution permit these restrictions on out of state citizens?
Thome, Johannes et al, ‘The Impact of the COVID-19 Outbreak on the Medico-Legal and Human Rights of Psychiatric Patients’ (2020) 63(1) European Psychiatry e50 Abstract: The COVID-19 pandemic has raised significant concerns for population mental health and the effective provision of mental health services in the light of increased demands and barriers to service delivery [1]. Particular attention is being directed toward the possible neuropsychiatric sequelae of both COVID-19 and of the stringent societal mitigation steps deployed by national governments, concerns that are informed by historical increases in the incidence of psychotic disorders following influenza pandemics [2]. However, so far there has been scant attention paid to other important areas of psychiatry during COVID-19, including medico-legal aspects and human rights. In this paper, we discuss the legal implications for psychiatry of the COVID-19 pandemic and report a novel situation in which psychiatric patients may experience diminution of their statutory protections. We believe that this represents a paradigm shift in psychiatric care and that the consideration of the fundamental rights of psychiatric patients as ‘less important’ than infection control measures compel mental health professionals to ‘advocate for … patients and their caregivers’ in this time of crisis [1].
Thomson, Michael, ‘Law as a Determinant of Health: COVID-19 and Gender’ in The Routledge Companion to Gender and COVID-19 (Routledge, 2024) Abstract: COVID-19 has impacted disproportionately along familiar fault lines of systemic inequality and disadvantage. It has highlighted once more how health inequalities are driven by social inequalities, and the pressing need to address these if health equity and social justice are to be improved. This chapter explores the role of law in this context. It assesses moves to explicitly articulate law within the social determinants of health framework and questions the place of addressing inequalities in these accounts. It is argued that in demonstrating the connection between social and health inequalities so profoundly and urgently, the pandemic is a provocation to look again at how law and legal systems might help in delivering greater health justice. Focusing on the gendered impacts of COVID-19, the pandemic illustrates the necessity of a public health law that foregrounds law’s role in improving fairness in social arrangements and the distribution of resources.
Thorneycroft, Ryan and Nicole L Asquith, ‘Unexceptional Violence in Exceptional Times: Disablist and Ableist Violence During the COVID-19 Pandemic’ (2021) 10(2) International Journal for Crime, Justice and Social Democracy 140–155 Abstract: It is well established that violence and oppression towards vulnerable and marginalised communities are intensified and compounded during times of social upheaval, and the COVID-19 pandemic has exacerbated disablist and ableist violence against disabled people. During the first year of the pandemic, we have been confronted with instances of violence meted out to disabled subjects. In this article, we provide a theorisation of such violence. Based on an assemblage of our collective readings of Butler, Campbell and Young, as well as our own observations and experiences, we suggest that added anxieties currently confronting people’s fragile corporeal embodiment are licensing abled subjects to violate disabled subjects to put them back in their place. Through an excavation of ‘Norms, Binaries, and Anxieties’, ‘Abjection, Substitutability, and Disavowal’, and ‘Ableism and (Un)grievability’, we trace the social contours of disablist and ableist violence, both within and beyond the context of the COVID-19 pandemic, and provide a way of imagining otherwise to resist this violence.
Thusi, India, ‘The Biopolitics of Maskless Police’ (2021) 18(2) Ohio State Journal of Criminal Law 555–574 Abstract: Despite the recent movement against police violence, police officers have been endangering their communities by engaging in a new form of violence—policing while refusing to wear facial coverings to prevent the spread of COVID-19. Many states advise people to wear masks and to socially distance when in public spaces. However, police officers have frequently failed to comply with these guidelines as they interact with the public to enforce these COVID-19 laws. Police enforcement of COVID-19 laws is problematic for two reasons: (1) it provides a method for pathologizing marginalized communities as biological threats; (2) it creates a racialized pathway for the spread of the virus.
Tidball, Marie et al, ‘An Affront to Dignity, Inclusion and Equality: Coronavirus and the Impact of Law, Policy, Practice and Access to Services on People with Disabilities in the United Kingdom’ (University of Oxford, Faculty of Law, Bonavero Institute of Human Rights, Bonavero Report No 4/2020, 2 July 2020) Extract: The Oxford University Disability Law & Policy Project and the Bonavero Institute of Human Rights, with the support of a group of leading academics working on disability law, have produced a policy report which describes the impact of coronavirus related law, policy and practice on people with disabilities in the United Kingdom. This Report is based on material the authors submitted to the House of Commons Women and Equality Committee inquiries on the unequal impact of Covid-19 and the Coronavirus Act 2020 on People with protected characteristics and papers given at a University webinar on Disability in the Context of the Coronavirus Crisis. The unequal impact of the coronavirus crisis, charted in the essays, in this report is startling. In June, the Office for National Statistics Data revealed that almost 60% of deaths from coronavirus in the UK have been people with disabilities. Disabled women are 2.4 times more likely to die from Covid-19 and men with disabilities 1.9 times more likely to die. These risk levels rise to 11.3 times for disabled women aged under 65 and 6.5 times for men. The Report makes twenty-two recommendations, including on the need for a national inquiry to understand the scale of Covid-19 related deaths and to examine why this groups have carried such a heavy burden for the pandemic.
Tigre, Maria Antonia et al, ‘Environmental Protection and Human Rights in the Pandemic’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 317–374 Abstract: The Covid-19 outbreak in 2020 took the world by surprise. The virus spread quickly around the globe and death tolls were constantly on the rise at early stages of the pandemic. Although vaccine rollouts have helped halt the number of deaths, inequality in accessing vaccines and effective treatments is still a major issue. From the onset, Covid-19 negatively impacted global well-being and myriad human rights. The present report examines how environmental protection and related human rights have been affected by the Covid-19 pandemic. Based on link between environmental and human health, this report focuses on ecological human rights. The report aims to assess the negative effects of Covid-19 on the enjoyment and realization of particular rights, including the right to a healthy environment, the right to food, the right to water, the right to life and the right to health. It discusses how the pandemic interplays with the Sustainable Development Goals and Agenda 2030. The report also highlights how the pandemic in and of itself, as well as governmental response measures to it, have played a role in exacerbating pre-existing social and economic inequalities. The report places a special focus on the impact of response measures on marginalized groups, namely Indigenous communities, Afro-descendant communities and environmental defenders. The world is now facing the challenge of building back better. With this in mind, the report provides specific recommendations on how to move forward in a way that ensures human and environmental health are protected. These recommendations are mainly directed at international organizations and States in their decision-making processes. As they continue to face the devastating effects of the pandemic, States and international organizations need to guarantee that inequalities are not furthered and that the rights of marginalized groups are particularly protected.
Timotijevic, Jelena, ‘Society’s “New Normal”? The Role of Discourse in Surveillance and Silencing of Dissent During and Post Covid-19’ (SSRN Scholarly Paper No ID 3608576, 27 May 2020) Abstract: Within the historical materialist tradition, communication is principally understood to occur in concrete social contexts which are continually shifting in real socio-historical environments. Such a view of language and communication enables for an examination of media narratives in fast changing political landscapes surrounding the Covid-19 pandemic, in particular the manner in which normalisation of the discourses of surveillance takes place in the time of the health crisis. In examining surveillance practices and silencing of dissent in capitalism, we point to the dangers of a newly emergent narrative of the ‘new normal’ which threatens a violation of human rights and civil liberties.
Tisdall, EKM and F Morrison, ‘Children’s Human Rights under COVID-19: Learning from Children’s Rights Impact Assessments’ (2023) 27(9–10) The International Journal of Human Rights 1475–1491 Abstract: Policy responses to COVID-19 have had dramatic impacts on children’s human rights, as much as the COVID-19 pandemic itself. In the rush to protect the human right of survival and development, new policies and their implementation magnified the challenges of taking a children’s rights approach in adult-oriented systems and institutions. This article explores these challenges, drawing on learning from the independent Children’s Rights Impact Assessment (CRIA) on policies affecting children in Scotland during ‘lockdown’ in spring 2020. The article uses concepts from childhood studies and legal philosophy to highlight issues for children’s human rights, in such areas as children in conflict with the law, domestic abuse, poverty and digital exclusion. The analysis uncovers how persistent constructions of children as vulnerable and best protected in their families led to systematic disadvantages for certain groups of children and failed to address all of children’s human rights to protection, provision and participation. The independent CRIA illuminates gaps in rights’ accountability, such as the lack of children’s rights indicators and disaggregated data, children’s inadequate access to complaints and justice, and the need for improved information to and participation of children.
Tiwari, Manwendra K and Swati Singh Parmar, ‘Of Semiotics, the Marginalised and Laws During the Lockdown in India’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 977–1000 Abstract: On 24th March 2020, the first nationwide complete lockdown was announced by the Prime Minister of India for 21 days which was later extended to 31st May 2020. Consequently, thousands of migrant workers placed in big cities had no other option but to go back to their native villages. Their journeys back to villages- thousands of kilometres on bicycles or foot due to the non-availability of public transport amidst the travel ban- were driven by the compulsions of food and shelter. In one of many heart-wrenching incidents, sixteen laborers were run over by a freight train (all passenger trains in the wake of lockdown had been halted) while they were resting on the railway tracks. The images of the Roti (Indian bread) on the railway track strewn across were beamed on the national news channels, as a telling commentary of the unimaginable hardships of these workers. Ironically, in the eyes of law, they were trespassers under the Indian Railways Act, 1989. The Indian Railway did not pay any compensation to the victims. Their act also violated the Indian Disaster Management Act, 2005 and Indian Penal Code, 1860- the law for the breach of lockdown guidelines and the law for disobedience of order by public servants respectively- for having decided to travel amidst a travel ban. The semiotics of law-making acts ‘criminal’ bereft of ‘moral culpability’ are seldom questioned on their supposed amoral foundations. Pandemic exhibited that social fissures not only condition the individual or community actions but also the actions of the State. Minorities especially Muslims were at the receiving end of State’s selective enforcement of lockdown laws in India. The various instances in the wake of the COVID-19 pandemic expose the hollow claims of equality before the law and the equal protection of laws as a constitutional promise to every citizen. This article aims to unravel the ostensible and the actual moral exhibition of such Indian laws through the lens of several incidents during the nationwide lockdown in India. This paper would argue that this constructed positivist amorality needs to be deconstructed to unearth the power imbalance that it seeks to hide.
Tonsakulrungruang, Khemthong and Rawin Leelapatana, ‘Thailand’s Response to COVID-19: Human Rights in Decline and More Social Turbulence’ in in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 168 Abstract: Thailand has adopted a highly centralised, authoritarian approach to respond to COVID-19 through the use of emergency law. The approach showed early success but that was not sustained. Into the second year of the pandemic, the government of Prayuth Chan-ocha made a series of mistakes about how to achieve economic recovery, the vaccination plan and protection for vulnerable groups. Cases rose exponentially. The state was influenced by its militarised mentality, ineffective bureaucracy and state-business conflict of interest in making public policies. Human rights were considered irrelevant to decision-making. By ignoring the constitutional guarantee of human rights, such as human dignity, equality and the rights to information and free expression, Thailand failed to calculate the true extent of the damage caused by COVID-19 to the economy and society. This led to an unnecessarily high death toll and growing economic inequality, despite Thailand’s world class health services. This failure in turn added fuel to simmering public dissatisfaction with Prayuth and threatened further social turbulence.
Toussaint, Etienne, ‘Of American Fragility: Public Rituals, Human Rights, and the End of Invisible Man’ [2021] Columbia Human Rights Law Review (forthcoming) Abstract: The COVID-19 pandemic has exposed the fragility of American democracy in at least two important ways. First, the coronavirus has ravaged Black communities across the United States, unmasking decades of inequitable laws and public policies that have rendered Black lives socially and economically isolated from adequate health care services, educational resources, housing stability, environmental security, stable and living wage jobs, generational wealth, and other institutional structures necessary for resilience. Second, government-mandated social distancing in response to the coronavirus has failed to dampen America’s racially biased, violent, and supervisory policing culture, reigniting demands from the Movement for Black Lives for police abolition and, more generally, the dismantling of white supremacy in sociopolitical life. In response, scholars have called for a radical (re)imagination of American democracy. This Article argues that resolving the fragility of American democracy amidst the terrors of COVID-19 warrants a renewed commitment to the emancipatory language of human rights.In recent years, scholars have sharply critiqued human rights law as a tool for social transformation. Accordingly, this Article grounds its assertion on three claims, using the issue of housing insecurity as a guiding explanatory thread. First, the geography of health inequity in Black communities across America embodies not merely discrete instantiations of historical governmental neglect, but more poignantly, the collective rituals of white supremacy that create and reconstitute the racial social order. As a result, beyond coordinated public health measures and short-term economic stimulus plans, the future of American democracy demands new tools to confront the embeddedness of racial ritualization in everyday life. Second, human rights discourse challenges the normative underpinnings of contemporary public policy, too often tinged with liberal assumptions about the human condition that enshrine structural inequality and contain economic power. Third, human rights discourse expands the social imaginary, fostering innovation in lawmaking by deconstructing antiquated valuations of equality and reconstructing contextual notions of liberty. Taken together, these insights reveal human rights discourse as a project of reimagining legal subjectivity and state responsibility.To further elucidate the benefits of human rights discourse in view of compelling arguments to move beyond rights-based framings of equality and discrimination, this Article places Martha Fineman’s theory of vulnerability in conversation with Ralph Ellison’s articulation of the Black American experience during Jim Crow segregation in his novel, Invisible Man. This dialogue reveals the erasure of ‘sacrifice’ from ongoing discussions of social and economic inequality, a critical dimension of democratic citizenship that has been rendered invisible in contemporary rights-based discourse and emergent strategies for poverty alleviation. Even more, drawing insights from the Movement for Black Lives and contemporary theorists of political philosophy, this dialogue clarifies the central role of ‘dignity’ in establishing the preconditions for an engaged citizenry in the context of American racial capitalism.
Townsend, Dina Lupin, ‘COVID-19 and the Human Right to Water and Sanitation’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Extract: Information and advice on COVID-19 has been changing at an alarming rate, but one message has remained consistent for weeks: wash your hands. The World Health Organization (WHO) has stated that ‘frequent and proper hand hygiene is one of the most important measures that can be used to prevent infection with the COVID-19 virus’. States and international bodies have tried to keep the messaging on this point extremely clear and concise, producing illustrated guides and even songs to get the message across. But as the number of infections in Africa and Asia grows, the messaging on handwashing becomes more complex. There is nothing simple about washing your hands when you have extremely limited access to clean water. In 2019, the WHO reported that 785 million people lack even a basic drinking-water service.
Travis, Michelle A, ‘A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility’ (2021) 64 Washington University Journal of Law and Policy_ _Abstract: The dramatic workplace changes in the wake of the global pandemic offer courts both an opportunity and an obligation to reexamine prior antidiscrimination case law on workplace flexibility. Before COVID-19, courts embraced an essentialized view of workplaces built upon a ‘full-time face-time norm,’ which refers to the judicial presumption that work is defined by long hours, rigid schedules, and uninterrupted, in-person performance at a centralized workspace. By applying this presumption to both accommodation requests under the Americans with Disabilities Act of 1990 and to disparate impact claims under Title VII of the Civil Rights Act of 1964, pre-pandemic courts systematically undermined antidiscrimination law’s potential for workplace restructuring to expand equal opportunities for individuals with disabilities and for women with disproportionate caregiving responsibilities. This Article demonstrates how employers’ widespread adoption of flexible work arrangements in the wake of COVID-19—including telecommuting, modified schedules, temporary leaves, and other flextime options—undermine these prior decisions and demand a new analysis of antidiscrimination law’s potential to advance workplace flexibility.
Trstenjak, Verica, ‘Law and Medicine: The Influence of Fundamental Rights on the Corona-Crisis and the Influence of the Corona-Crisis on Fundamental Rights in the EU’ (2021) 14(2) Medicine, Law & Society 351–370 Abstract: The article deals with the intersection of law and medicine, especially in the time of the Corona-crisis. It analyses restrictions of human/fundamental rights in the time of the Corona-crisis at the EU level. Conditions for restrictions of fundamental rights are provided by Article 52(1) of the EU Charter of Fundamental Rights. The case-law of the Court of Justice of the EU concerning the restrictions of fundamental rights in connection with health protection is also analysed. The last part provides an overview of some decisions of constitutional courts of EU Member States concerning the justifications of restrictions of fundamental rights during the Corona-crisis.
Tsaousis, Georgios, ‘Moulding the Right to Health in the Time of the Pandemic’ (2021) 33(1) Cyprus Review 67–97 Abstract: The coronavirus pandemic has overturned the traditional terms of ‘normality’ in the daily lives of citizens around the world. After an inexplicable period of provocative inaction against repeated calls by the World Health Organisation (WHO), States were called to take drastic and unprecedented measures that resulted in suspending the most important fundamental rights, especially of individual and social nature. Cyprus could not, of course, be an exception to the imposition of protective and precautionary measures, having transformed from a purely social State into a social State of preven- tion. In the overall response to the pandemic, the report is positive. In the emerging le- gal environment, the anxious effort of the State mechanism to protect human life at all costs makes the principle of practical harmonisation of conflicting fundamental rights virtually inapplicable. In this environment, the citizen seems powerless and possibly vulnerable to the will of the executive power. The advent of the pandemic and the con- stant endangerment of human existence urge the national legislator to abandon the logic of harmonisation of fundamental rights and focus on their prioritisation.
Tsetoura, Anna, ‘From Covid Crisis to Fundamental Rights Crisis: Social Rights Between the Symplegades and Social Law Guarantees’ in Yves Jorens (ed), The Lighthouse Function of Social Law (Springer, 2023) 105–122 Abstract: While the world is still experiencing the consequences of the coronavirus, the interest is drawn to the fundamental rights and the restrictions imposed by various countries aiming to contain its spread. Taking into account that different social risks are encompassed under a social protection system, different social rights are on the scales. To begin with, the risk of sickness seems to weigh much more than the risks of old-age, invalidity, maternity or paternity. However, the inefficient coverage of the latter because of the restrictive measures in view of the protection of public health puts eventually an additional burden to health systems once again. The weighting is extremely challenging as the mankind faces unprecedented difficulties and everyone’s health is potentially endangered. On the one hand the health crisis and on the other hand the policies affecting the social rights under the threat of health crisis could be seen as the Symplegades and social law as a guide. Therefore, the direct and the indirect restrictions on social rights as a part of the policies dealing with the pandemic will be analysed under the spectrum of the European and International Law. Firstly, the restricted personal autonomy and mobility will be displayed versus circulation of data due to the increasing use of ICT by the public administration during the pandemic. Particularly, the freedom of movement of persons under European Social Security Law and the European protection of personal data will be illustrated. Further, the socially sensitive groups of disabled and older people will be presented in times of covid restrictions. In this context, we will refer to the rights of people with disabilities, as well as the right of (disabled) children to education and the rights of the elderly. In the same vein, the discrimination against the abovementioned groups of persons will be examined in light of the extensive technocracy and specific measures such as those concerning the religious freedom which seems to operate against social exclusion of older people. Thereinafter, the access to healthcare will be considered in light of the various prohibitions influencing the citizens’ recourse to medical treatment, the use of healthcare services by different groups of patients and ultimately the health of the total population. Thus, the right to healthcare has been affected by the coronavirus-adjusted health policy including also implications on the social risks of maternity-paternity. Additionally, the access to healthcare services can be interrelated with combined consequences on economic freedom, the right to work and the free movement of services under EU law in view of the mandatory vaccination on health professionals. Finally, we can make a parallelization to the restrictions on social rights due to the recent financial crisis recalling the relevant jurisprudence and seeing the right to health in a broader sense. We can conclude to a thorough weighting of social needs and an in-depth utilization of the social law guarantees. The government policies ought to put the latter in the table especially in extraordinary cases which expose the most vulnerable to the most difficult situations.
Tsuji, Yuichiro, ‘Political Power and the Limits of Academic Freedom in Japan in the Era of Covid-19’ (2022) 22(2) Australian Journal of Asian Law 117–130 Abstract: This article examines the Japanese government’s response to Covid-19 from the perspective of academic freedom in constitutional jurisprudence. Academic freedom, which aims to maintain a certain tension between scientific research and politics, is constitutionally guaranteed in Japan. However, the Covid-19 pandemic has provided an opportunity for the Japanese government to exclude critics of its policy responses from expert advisory bodies, both its own recently established Covid-19 expert subcommittee and the long-standing Science Council of Japan. This article argues that the government’s actions violate the constitutional protection of academic freedom and are part of a wider trend whereby the government exploits its ‘personnel’ or ‘appointive’ power to ensure support for its policies, and that this has serious implications for the rule of law.
Tucak, Ivana and Anita Blagojević, ‘COVID- 19 Pandemic and the Protection of the Right to Abortion’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 853–877 Abstract: The COVID - 19 pandemic that swept the world in 2020 and the reactions of state authorities to it are unparalleled events in modern history. In order to protect public health, states have limited a number of fundamental human rights that individuals have in accordance with national constitutions and international conventions. The focus of this paper is the right of access to abortion in the Member States of the European Union. In Europe, the situation with regard to the recognition of women’s right to abortion is quite clear. All member states of the European Union, with the exception of Poland and Malta, recognize the rather liberal right of a woman to have an abortion in a certain period of time after conception. However, Malta and Poland, as members of the European Union, since abortion is seen as a service, must not hinder the travel of women abroad to have an abortion, nor restrict information on the provision of abortion services in other countries. In 2020, a pandemic highlighted all the weaknesses of this regime by preventing women from traveling to more liberal countries to perform abortions, thus calling into question their right to choose and protect their sexual and reproductive rights. This is not only the case in Poland and Malta, but also in countries that recognize the right to abortion but make it conditional on certain non-medical conditions, such as compulsory counselling; and the mandatory time period between applying for and performing an abortion; in situations present in certain countries where the problem of a woman exercising the right to abortion is a large number of doctors who do not provide this service based on their right to conscience. The paper is divided into three parts. The aim of the first part of the paper is to consider all the legal difficulties that women face in accessing abortion during the COVID -19 pandemic, restrictions that affect the protection of their dignity, right to life, privacy and right to equality. In the second part of the paper particular attention will be paid to the illiberal tendencies present in this period in some countries of Central and Eastern Europe, especially Poland. In the third part of the paper, emphasis will be put on the situation in Malta where there is a complete ban on abortion even in the case when the life of a pregnant woman is in danger.
Turkie, Rosalind, ‘Upholding Human Rights in the Wake of COVID-19: Time to Strengthen Pharmaceutical Accountability’ (2022) 24(2) Health and Human Rights Journal 205–209 Abstract: Pharmaceutical companies have the power and the responsibility to help governments realize the human right to health for all, yet there are egregious examples—such as the recent COVID-19 pandemic—where companies have violated these responsibilities. The Pharmaceutical Accountability Foundation, a nonprofit organization based in the Netherlands, argues that it is time to hold drug companies accountable for their excessive pricing policies and abuse of the intellectual property framework.[1] As a first step toward accountability, the foundation developed a monitoring and evaluation scorecard to measure pharmaceutical companies’ compliance with human rights during the COVID-19 pandemic. The results of this scorecard, published in June 2022, demonstrate that stronger regulation is needed to obtain better adherence to human rights in the pharmaceutical field (see Figure 1). We propose a legal standard in Dutch law—a requirement for a duty of care—as a promising avenue for enforcing the pharmaceutical industry’s human rights responsibilities, which has been difficult until now.
Tzevelekos, Vassilis P and Kanstantsin Dzehtsiarou, ‘Normal as Usual? Human Rights in Times of Covid-19’ (2020) 1(2) European Convention on Human Rights Law Review 141–149 Extract: Emergencies call for extraordinary measures. Inevitably, such measures interfere with human rights. Some of these interferences are direct, thus also easier to recognise. For instance, lockdown policies clash with and restrict a number of fundamental liberties. Other types of intersections between the pandemic and human rights are rather indirect. This makes it more difficult to assess the damage they (will) cause. For instance, it is certain that the impact of the pandemic on the economy will inevitably limit the ability of states to engage with human rights protection policies having a (significant) economic cost. To give an example, to run a well-equipped public hospital, national authorities rely on public revenues coming from taxes. Decline in the economy also amounts to reduction of resources that can be spent on positive human rights obligations such as provision of medical care. Obviously, this is also a matter of priorities (which is a question we discuss further below), meaning that a state may decide to use its limited resources to run a hospital to satisfactory standards. But the money spent on this policy will not be available for another human rights relevant policy, such as the protection of asylum seekers and refugees or running a well-funded prison system. On a number of occasions, the European Court of Human Rights (ECtHR) declared that limited resources cannot excuse the violation of rights such as the ones enshrined in Articles 3 or 6 ECHR. However, states are making difficult choices and the Court cannot ignore the new reality affected by a very plausible economic downfall caused by the covid-19 pandemic.
Umesalma, Gururaj B Soddi and Sudheendra Rao L N, ‘Blatant Disregard of Human Rights during the Time of the Global Pandemic: A Study’ (2021) 10(2) International Journal of Humanities and Social Sciences 191–198 Abstract: Literates and illiterates are classified in the whole world when education is to be considered. At least if a person knows how to put his signature on paper in any form and any language, he is called literate. Mother is the first teacher to the child in the house later teachers of the class will start. It is the responsibility of the parents to give compulsory education to his/her child/children. The Government of India established an Act in the year 1993 as the Human Rights Act, 1993 India wherein we have to come across several fundamental rights. The author is an emphasis on the Right to Education in India. During the COVID-19 pandemic the nation India declares emergency lockdown to save the lives of the citizens whether child or adolescent or an adult Article 26 says Right to Education, Article 3 clarifies the Prohibition of torture and inhuman or degrading treatment, Article 4 says Prohibition of slavery and forced labour the government hired the services of Doctors, Nurses who are commonly employed in Government Sectors, Article 5 relates to the Right to liberty and security of person, Article 11 focuses on the Right to freedom of peaceful assembly and to form united decisions for any work also if you want to start a new family life with marriage our constitution given provision in Article 12.
Underhill, Kristen and Olatunde CA Johnson, ‘Vaccination Equity by Design’ (2021) 131 Yale Law Journal Forum 53–88 Abstract: This Essay examines how states’ initial COVID-19 vaccine-distribution strategies tended to disadvantage populations of color, including Black, Latinx, and Native American communities. These dynamics resonate with “inverse equity” effects of other public-health innovations. We argue for a federal regulatory framework to reduce inequity-forcing effects during initial vaccine rollout.
Urquijo, Laura Gómez, ‘The Implementation of the European Pillar of Social Rights (EPSR) in the Post-Pandemic Era’ (2021) 21(2) Romanian Journal of European Affairs 85–94 Abstract: The European Pillar of Social Rights (EPSR) was to be implemented in a growth and stability period, once the financial crisis was overcome. However, an unexpected and bigger social and economic crisis has developed with the COVID-19 pandemic. The lack of employment opportunities, the precarious working conditions and the intensification of vulnerabilities predict that this crisis will be more harmful to European cohesion than its predecessor. In response to these challenges, the EU institutions have proposed extraordinary funding instruments and have transformed the former economic governance rules aiming at improving employment and growth, environment, but also of the resilience of a more inclusive and fairer society. Our research question refers to how this context can affect the implementation of the European Pillar and Social Rights. To answer this question, first, we will review the instruments provided in the EPSR for its implementation. Second, we will consider how this implementation is conditioned by the transformation of the economic governance rules from the 2008 crisis to the current crisis. Third, we will examine the Action Plan for the implementation of the European Pillar of Social Rights launched during the European Council Porto Summit.
Van Ho, Tara, ‘A Time to Kill “Business as Usual”–Centering Human Rights in a Frustrated Economy (Part I)’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Introduction: Part 1 considers how dominant approaches to business activities impact on our preparedness to fight pandemics, shifting the burden of pandemics onto society’s most vulnerable. Part 2 examines how existing expectations in the field of ‘business and human rights,’ alongside other structural reforms to international law, can offer a different path forward.
Van Ho, Tara, ‘A Time to Kill “Business as Usual”–Centering Human Rights in a Frustrated Economy (Part II)’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Introduction: In the first part, I set out how ‘business as usual’ with regard to shareholder primacy has exacerbated human rights concerns associated with COVID-19. In this post, I want to set out a path forward for a more sustainable and appropriate approach. Before I do, I want to briefly address the title of these posts.
Vasiliauskienė, Violeta et al, ‘The Legality of Human Rights Limitations Imposed by Covid-19 Green Passes in Lithuania and the Czech Republic’ (2023) 9(1) International Comparative Jurisprudence 64–79 Abstract: The aim of this article is to provide a comparative analysis of the regulation of the Opportunity Passport (hereinafter OP – a COVID-19 health status certificate) in Lithuania and an analogous document in the Czech Republic, and the legality of the limitations on human rights that were imposed by such rules. It describes the regulations imposed by the Lithuanian and Czech institutions and their development. Further, the requirement of the legality of limitations on human rights is discussed in the context of its application to the OP regulation, taking into consideration the jurisprudence of the Constitutional Court of Lithuania. The article also analyses the Tečka application, which was used for analogous purposes in the Czech Republic, in terms of its legal basis and problems related to the legality of human rights violations. The critical analytical method allows for an analysis of Lithuanian and Czech legislation on the management of the pandemic, the establishment of so-called green passports, and the relevant jurisprudence of the courts, leading to well-grounded conclusions. This method is also employed in the analysis of scientific literature, which allows concerns to be revealed regarding data protection in the process of the execution of the above-mentioned provisions. The comparative method allows the authors to compare the practice of the selected two states in the management of the pandemic and in the adoption of green passports. The article concludes that both documents regarding health status during the COVID-19 pandemic had similar aims and were introduced at similar times. However, the legal regulation of the Lithuanian OP has not yet been analysed by the courts. In Lithuania, the legality of the OP was questioned based on the fact that the relevant law on the protection of public health contains only succinct provisions on the limitation of human rights in such situations, and the question remains as to whether these provisions were sufficient for such limitations. In the Czech Republic, the concern was raised about the authority of the Ministry of Health to issue such documents as it had no legal basis. Furthermore, questions of privacy in the context of the Czech health passport were also pertinent.
Vedaschi, Arianna (ed), Governmental Policies to Fight Pandemic: The Boundaries of Legitimate Limitations on Fundamental Freedoms (Brill, 2024) link to book page on publisher website
Book summary: This book offers a wide comparative overview of the legal measures enacted by countries throughout the world to react to the unprecedented public health emergency caused by the COVID-19 pandemic. The volume gathers the General Reports and selected National Reports presented at the 2022 General Congress of the International Academy of Comparative Law. While the National Reports focus on single countries, the General Report provides a comparative analysis of observed trends and main legal issues. In doing so, it draws some guidelines on how to improve responses to potential forthcoming emergencies characterized by a global reach, as COVID-19 was.
Venizelos, Evangelos, ‘Pandemic, Fundamental Rights and Democracy: The Greek Example’ (SSRN Scholarly Paper No ID 3626248, 28 April 2020) Abstract: The Coronavirus pandemic is not only a health, economic and social challenge but a major challenge for national constitutions, international law and the EU legal order as well. More precisely, the pandemic is evolving into a comprehensive challenge to the acquis of modernity, i.e. liberal democracy, human rights and the guarantees of the rule of law, the nation state and its sovereignty, the organization of international society and the role of the United Nations and international organizations, regional cooperation, European integration and solidarity, and the degree of economic development and the ‘western way of life’. Our analysis will be focused on fundamental rights, while also making some necessary references to the function of liberal democracy institutions.
Veraldi, Jacquelyn D and Dimitry Kochenov, ‘EU COVID Certificate: A Vehicle of Arbitrary Restrictions’ [2021] (October) EU Law Live (forthcoming) Abstract: Boasting numerous positive pretexts underpinning its introduction, the EU COVID Certificate is not such a positive development, we demonstrate. Doubt can be cast on the suitability of the COCVID Certificate in facilitating freedom of movement; an extreme fragmentation remains when it comes to cross-border travel rules in the EU. This fragmentation, caused by the violations of the Treaties by numerous Member States, is not acted upon by the Commission. Instead of safeguarding EU citizens’ rights, it seems to rejoice in the ability of the new Regulation introducing the EU Digital COVID Certificate to harm these rights: seemingly a legislative carte blanche for arbitrariness and abuse of power. Doubt can also be shed on the public-health asserted grounds for excluding non-EMA vaccines from the mutual recognition obligation in the Regulation. Member State restrictions on cross-border movement raising doubt on their compatibility with EU law have so far gone unchallenged, yet the DCC Regulation left broad scope for the implementation of arbitrary, discriminatory or disproportionate restrictions on cross-border movement.
Veriava, Faranaaz and Nurina Ally, ‘Legal Mobilisation for Education in the Time of Covid-19’ (2021) South African Journal on Human Rights (Advance article, published online 9 December 2021) Abstract: Schools were the first public institutions in South Africa to be closed when the country recorded its initial cases of Covid-19. As a public health crisis quickly extended into an education crisis, government action and decision-making had an inevitable effect on the rights of learners, the impact of which was most severely felt by the poorest and most vulnerable children. While there were several varied responses to government actions, this article discusses three specific case studies that demonstrate the successful role that legal mobilisation by ‘repeat players’ within progressive civil society played in mitigating the impact of the pandemic on the rights of learners. The purpose of this is to catalogue the tactical repertoire employed and the lessons learnt in these legal mobilisation case-studies for further struggles for education reform or, indeed, for broader social reform.
Villarreal, Pedro, ‘Infectious Diseases’ in Christina Binder et al (ed), Elgar Encyclopedia of Human Rights (Edward Elgar, forthcoming, 2022) Abstract: The current entry discusses several linkages between infectious or communicable diseases and human rights issues. First, the entry puts forward a brief historical note on how international law in the field of the cross-border spread of disease emerged in parallel to international human rights law. Far from being a recent phenomenon, infectious disease outbreaks have long raised questions of which legal measures by national authorities are adequate to respond to these threats. Although the global burden of disease posed by infectious diseases receded in the course of the 20th Century, events such as the HIV/AIDS pandemic and, currently, the COVID-19 pandemic, gave way to questions on the extent of states’ health-related human rights obligations. Second, the entry examines the interpretation of states’ concrete obligations by international and regional quasi-judicial and judicial human rights bodies. Striking the right balance between protecting persons from the spread of diseases, while at the same time safeguarding individual rights and freedoms, has been a staple of debates in legal doctrine and practice. The entry shows how infectious disease-related events lie beyond the divide between civil and political rights, on the one hand, and economic, social and cultural rights, on the other hand. The analysis concludes by pondering whether the COVID-19 pandemic will be a human rights crucible, posing a series of open questions for further research.
Wagner, Adam, Emergency State: How We Lost Our Freedoms in the Pandemic and Why It Matters (Penguin, 2022) Book summary: This book tells the startling story of the state of emergency that brought about an Emergency State. A wake-up call from one of the UK’s leading human rights barristers, Emergency State shows us why we must never take our rights for granted.
Wardiono, Kelik et al, ‘Philosophy, Law, and Ethics of Handling COVID-19 Pandemic in Indonesia’ (2021) 9(E) Open Access Macedonian Journal of Medical Sciences 1104–1108 Abstract: During the pandemic, COVID-19 spread very quickly between people. Thus, the patients’ rights to obtain treatment do not have to decrease the protection of the public. The perspectives of ethics, law, and justice prioritize the rights of the public as stated in the principle ‘Salus Populi Suprema Lex Esto’ (Public safety is the highest law as regulated in the law). In Indonesia, the regulatory handling of the COVID-19 pandemic is based on the Law on Infectious Disease Outbreak. During the COVID-19 pandemic, the quick spread of this disease causes many fatalities. Thus, individual rights of patients must be ruled out to prioritize public rights. The legal perspective upholds the ‘Salus Populi Suprema Lex Esto’ principle, namely, public safety is the highest law was the core of philosophy, law and ethics handling covid 19 pandemic.
Warren, Christie S, ‘Individual Rights, Personal Responsibilities’ (SSRN Scholarly Paper No ID 3722849, 27 August 2020) Abstract: COVID-19 raises important questions about rights and responsibilities - both individual and collective - in the face of global emergencies, concluding that what we have the right to do is not necessarily what we should do.
Weaver, Jessica Dixon, ‘The Perfect Storm: Coronavirus and The Elder Catch’ [2021] Tulane Law Review (forthcoming) Abstract: The global COVID-19 pandemic has exacerbated an already growing phenomenon: the Elder Catch. This term defines the caregiving dilemma faced by adults who are simultaneously working, caring for elder parents or relatives, and in some cases, raising children at the same time. Few scholars have explored how the state uses the traditional family framework to resist providing comprehensive government support for elder care. Women typically bear the brunt of caregiving costs within the family and become physically and mentally vulnerable in the process. COVID-19 has pushed women caught in the Elder Catch to the brink while sheltering at home, and has illuminated the disparities between genders regarding the high level of expectation society places on the availability of unpaid family caregiving. Coronavirus has also highlighted racial inequities for African American and Latino families, where female caregivers are more likely to be essential workers forced to work outside the home, and therefore more likely to contract and spread the virus within their family and surrounding communities. This article uses vulnerability theory to address the caregiving void that American women are facing. By introducing a new term, resistant assets, within the taxonomy of vulnerability theory, this article introduces a diagnostic tool for scholars and policy makers to analyze why it is so difficult to change state and market dependence on unpaid family caregiving and challenge government opposition to expanding social support of the family. Resistant assets are frameworks used by the state to reinforce the status quo and maintain a posture of legal and social non-intervention. The normative and extended family are resistant assets that prevent a revision of the American Social Contract. This article fills a gap in family law scholarship by exploring how analysis of resistant assets within vulnerability theory can contribute to the development of a theoretical foundation for legal change to support family caregivers.
Wenger, Kaimipono David, ‘1200 Dollars And A Mule: COVID-19, The CARES Act, And Reparations For Slavery’ (2020) 168(Special Issue: Law Meets World) UCLA Law Review Discourse 204–216 Abstract: The COVID-19 pandemic casts into sharp relief a number of questions relating to reparations. In particular, the COVID-19 crisis highlights the medical vulnerability of the Black community, illustrating the very real physical harm caused by slavery and racism in the United States. At the same time, government responses to the crisis demonstrate the ability to distribute money to large swaths of Americans. This juxtaposition makes clearer than ever the moral necessity to provide reparations today.
Wiley, Lindsay F and Samuel R Bagenstos, ‘The Personal Responsibility Pandemic: Centering Solidarity in Public Health and Employment Law’ [2020] Arizona State Law Journal (forthcoming) Abstract: The personal responsibility ethos that has driven the US response to the coronavirus pandemic has been ineffective, atomizing, and unjust. Restrictions on public services and private activities have disproportionately burdened people living in low-income households, people with disabilities, people of color, and women. At the same time, the severe illnesses and deaths that have continued to occur in spite of public health responses have been disproportionately concentrated among people of color, disabled people, and low-wage workers. This paper argues that fundamentally individualistic employment and antidiscrimination laws have undermined—rather than supported—disempowered workers’ ability to protect themselves and others. The law has failed to protect people who live and work in congregate institutions (including nursing homes, prisons, jails, detention facilities, factories, and warehouses . . . and, perhaps soon, schools) and thus has failed to protect the broader communities with which these institutions are interconnected. Together, public health and employment laws have put the onus on individuals to adopt protective behaviors without providing them with the supports, accommodations, and protections they need to do so. We identify three key areas for reform to ensure more effective and just pandemic response—for this pandemic and the next one—built on a core commitment to social solidarity in public health law and employment and antidiscrimination law. First, public health law should prioritize supports that create the conditions required mitigate the spread of infection over punitive measures targeting individuals. Second, employment law should protect workers from infection, including through workplace safety, privacy, and antidiscrimination protections that enable them to adopt protective health behaviors. Third, for individuals for whom returning to work would be especially unsafe—whether because their employers maintain particularly dangerous conditions or because of their own, or their family members’, underlying health conditions—employment law should remove any obligation to return to work while the special dangers associated with the pandemic persist. In addition to making concrete proposals for reform, our argument contributes to the academic literature in both public health and employment law. First, we show that a broad vision of public health law that encompasses action on the social determinants of health in ‘non-health’ sectors such as employment and antidiscrimination law is not only tenable, but essential. The US experience with the coronavirus pandemic puts the final nail in the coffin of the ‘old’ public health, which its cramped focus on microbial and behavioral interventions. Second, we bring to the foreground an additional justification for employment and antidiscrimination law—to promote solidarity by ensuring that the burdens and benefits of measures that serve the public as a whole are shared equitably. Social solidarity may offer a useful way of understanding the application of these bodies of law in other health-related contexts as well, such as genetic discrimination and workplace injuries. Third, we show that the attribution of fault and responsibility is a persistent obsession of employment and antidiscrimination law. These points should be of broad interest to employment and public health law scholars alike.
Williams, Christina M, ‘Policy and Law Changes to Address Healthcare Inequities for Minority Populations during COVID-19’ (2020) 1(3) Journal of Allergy and Infectious Diseases 49–52 Introduction: While other countries have begun to see a flattening of the Severe Acute Respiratory Syndrome – Coronavirus-2 (SARS-CoV-2) curve, the United States continues to see a rise in cases, with approximately 7.4 million confirmed cases to date. Even more worrisome, various news articles have begun to shed light on the healthcare inequities that have become increasingly more transparent during this crisis. The current literature shows that during this coronavirus disease-2019 (COVID-19) pandemic, viral transmission has disproportionately affected Black, American Indian/ Alaska Native, Latinx, Asian-American, and the Pacific Islander communities. More specifically, in states such as Chicago and Louisiana, African Americans experience at least a 50% higher total death count as compared to their White counterparts. In states such as New York, the deaths per 100,000 for African Americans has been around double that of Whites since the beginning of the crisis. A recent study from the New England Journal of Medicine has shown that 76.9% of patients hospitalized with COVID-19 and 70.6% of those who died were Black, despite the fact that only 31% of the Ochsner Health Population in the state is African American. Healthcare in Alabama has highlighted similar glaring issues. An increasing number of White Americans are being infected with COVID-19, but African Americans continue to represent a higher percentage of total COVID-19-associated deaths. Interestingly, fewer African Americans have been infected with COVID-19 in Alabama, but a higher mortality rate exists even for African Americans who were found to have no other underlying medical conditions. Based on the COVID Racial Data Tracker, which measures data from the District of Columbia and 41 states, the Latinx community has been disproportionately testing positive as well. In 30 states, the rates have been around double that of non-minority populations, and over four times the rate in eight alternate states. The American Indian community, specifically the Navajo Nation, has accounted for 60% of cases in New Mexico, while only comprising 9% of the total population. The pandemic has brought healthcare inequities that have existed for decades to the forefront of policy conversations—there are steps that can be taken in both the short and long-term to address the needs of these vulnerable populations.
Williams, George and Sophie Rigney, ‘Human Rights in a Pandemic’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)
Williams, J Corey et al, ‘Reopening the United States: Black and Hispanic Workers Are Essential and Expendable Again’ (2020) 110(10) American Journal of Public Health 1506–1508 Introduction: By May 15, 2020, all 50 states had announced plans to reopen their economies. These plans emerged on the heels of an increasing awareness that COVID-19 had hit minority communities particularly hard, especially Black communities. Despite constituting only 13% of the US population, Blacks have made up 24% of the deaths from COVID-19 nationally, rendering them at least twice as likely to die from COVID-19 than are other groups. A recent survey from Johns Hopkins University and the American Community Survey indicated that the death rate for predominantly Black counties is sixfold higher than the rate in predominantly White counties. The disproportionate impact of COVID-19 on minority communities has been partly attributed to the racial composition of the workers in economic sectors deemed essential, including home health care, nursing homes, and community food and housing services. In these sectors, where employees are likely to come into contact with COVID-19 (i.e., high-contact jobs), Blacks and Hispanics are more likely to be employed than are Whites. Data from a recent McKinsey Report2 show examples from critical economic sectors where the laborers are predominantly people of color. For example, in jobs such as psychiatric aid, nursing assistant, and orderly, Blacks make up more than twice their relative proportion of the broader US population (i.e., 13%). Because it is difficult for these jobs to be performed remotely, racial minorities have shouldered more than their share of essential labor during the COVID-19 pandemic, and their communities have been disparately endangered as a result.
Wilson, Kay, ‘The COVID-19 Pandemic and the Human Rights of Persons with Mental and Cognitive Impairments Subject to Coercive Powers in Australia’ (2020) 73(November-December) International Journal of Law and Psychiatry: Special Issue on Mental health, Mental Capacity, Ethics and the Law in the Context of Covid-19 (Coronavirus) Articlw 101605 Abstract: The purpose of this paper is to explore the effect of the COVID-19 pandemic on the human rights of persons with mental and cognitive impairments subject to coercive powers in Australia. It sets out the relevant human rights in the Convention on the Rights of Persons with Disabilities which have been engaged by the COVID-19 pandemic and the government’s response to it. It examines the effect of emergency legislation on the relaxation of human rights safeguards in mental health laws, with a focus on mental health tribunals (although it is limited by a lack of published decisions and gaps in publicly available information). However, some of the issues created for persons with disabilities during the COVID-19 pandemic are evident in some decisions published by the New South Wales Guardianship Tribunal. The paper critically analyses two guardianship decisions UZX [2020] NSWCATGD 3 (3 April, 2020) and GZK [2020] NSWCATGD 5 (23 April, 2020) and some emergency South Australian legislation COVID-19 Emergency Response Act, 2020 (SA) Schedule 1 to demonstrate the ways in which the human rights of persons with mental and cognitive impairments can be more at risk than those of the general population, even when the general population is itself in ‘lockdown.’
Wilson, Robin Fretwell, Moira Zellner and Ahoura Zandiatashbar, ‘Visualizing Vulnerability and Capturing the Pandemic’s Human Toll’ (University of Illinois College of Law Legal Studies Research Paper No 21–19) Abstract: COVID-19 has created a crisis with little precedent. Illinoisans have lost family members. People have died in hospitals alone. But the human toll of the pandemic can be measured in more than lives lost. There have been other health effects, such as delayed surgery and lack of access to primary and behavioral healthcare. Many have lost jobs, which means lost health insurance, lost wages, and food insecurity. In Illinois, a half million people filed for unemployment in five weeks. For most people, the ability to shelter, clothe, feed, and care for ourselves and our families comes through productive work. Staying at home has created the potential for increased incidents of partner and child abuse. Sheltering in place has led to feelings of hopelessness and isolation. It has frayed emotions and relationships. The existential threat posed by COVID-19 is unlike anything most Americans have experienced—except, perhaps, those who lived through the Great Depression. The Institute of Government and Public Affairs (IGPA) launched a series of Pandemic Stress Indicators to measure and document the social and economic toll of the pandemic. For the first Pandemic Stress Indicator, IGPA collaborated with the University of Illinois Chicago’s Urban Data Visualization Lab to develop maps that visualize and identify compounding vulnerabilities, both to COVID-19 and to the socio-economic impact of the pandemic. Many Illinoisans face compounding vulnerabilities: to the virus itself and to the economic repercussions. Some came into the pandemic with hypertension, cardiovascular, and other health conditions that increase the risk for being a severe patient. Others struggled financially long before the pandemic. Persons of color and those living in poverty number among those hardest hit by the pandemic. Developing a wholistic understanding of the pandemic’s human toll and visualizing vulnerabilities of persons and communities is crucial to minimizing the pandemic’s total harm, while helping fragile persons and populations to emerge as unscathed as possible.
Winkler, Sandra, ‘The Impact of Covid-19 on Children’s Rights’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 580–600 Abstract: In emergency situations, the people most affected are often those who are already vulnerable, and this certainly includes children. The ‘new normal’ we are living in to defend ourselves against this tiny yet dangerous enemy has serious repercussions on children’s lives. This becomes even more evident if we think of those children who are doubly vulnerable – they are even more fragile because they live in conditions of particular hardship when they live outside their family, have a disability, or live in poverty. Since the beginning of the Covid-19 pandemic, we have witnessed the proliferation of numerous initiatives by various national and international children’s rights institutions, which have called for urgent measures to protect children’s rights. At this precise moment, the concept of the child’s best interests is also reinterpreted as a result of a reasonable compression of certain children’s rights and the prevalence of others. The present paper will attempt an analytical reconstruction of children’s fundamental rights by analyzing how these rights have changed during the pandemic. In fact, it is necessary to know if and/or how much have the rights of minors changed as a result of the emergency. The second part of the paper is dedicated to the question of which children’s rights will be most compromised or changed in the post-Covid-19 era. In reflecting on the inevitable consequences that the pandemic will leave on the delicate balance of the development of children’s rights, the author will offer some proposals on how to contain the encountered difficulties.
Wiratraman, Herlambang Perdana, ‘Does Indonesian COVID-19 Emergency Law Secure Rule of Law and Human Rights?’ (2020) 4(1) Journal of Southeast Asian Human Rights 306–334 Abstract: President Joko Widodo announced a public health emergency at the end of March 2020. This policy demonstrates denial, too late and limited in responding to the spread of Covid-19. On the other hand, the state security approach during the pandemic has pressured civil liberties, especially criticisms against government policies. This phenomenon is not a new development in Indonesia whereby attacks on freedom of expression and academic freedom are common. This article analyses how the COVID-19 health emergency situation is handled by the government from the perspective of human rights law standards and the rule of law. This article argues the Indonesian COVID-19 emergency law violates many guarantees of legal protection under the rule of law standard. It is apparent how the issue of human rights has not yet become an effective strategy or approach in this non-natural disaster emergency situation.
Wright, James E and Cullen C Merritt, ‘Social Equity and COVID-19: The Case of African Americans’ 80(5) Public Administration Review 820–826 Abstract: Emerging statistics demonstrate that COVID-19 disproportionately affects African Americans. The effects of COVID-19 for this population are inextricably linked to areas of systemic oppression and disenfranchisement, which are further exacerbated by COVID-19: (1) healthcare inequality; (2) segregation, overall health, and food insecurity; (3) underrepresentation in government and the medical profession; and (4) inequalities in participatory democracy and public engagement. Following a discussion of these issues, this article shares early and preliminary lessons and strategies on how public administration scholars and practitioners can lead in crafting equitable responses to this global pandemic to uplift the African American community.
Wu, Cary et al, ‘Anti-Asian Racism during COVID-19: How Have Native-Born Asians and Foreign-Born Asians Fared Differently?’ (SSRN Scholarly Paper ID 3935761, 4 October 2021) Abstract: Not everyone experiences discrimination to the same degree. In this article, we consider differences in how native-born Asians and foreign-born Asians may have experienced rising anti-Asian attacks during the COVID-19 pandemic. We analyze Canadian data from a nationally representative survey (two waves conducted in April and December 2020) that includes a subsample of 464 Asians (native-born=178; foreign-born=286). Results from negative binomial regressions suggest that perception of anti-Asian racism is highly conditioned by nativity. Specifically, native-born Asians are significantly more likely than foreign-born Asians to report having encountered instances of acute discrimination during the pandemic. To explain the perceived discrimination gap, we test whether a stronger sense of cultural belonging and ethnic pride among native-born Asians contributes to their greater sensitivity to discrimination and thereby higher perceptions of discrimination. We measure sense of cultural belonging and ethnic pride using in-group trust (ethnic trust in Asian people). Although we do find native-born Asians show greater in-group trust, it does not seem to explain the higher levels of discrimination perceived by native-born Asians.
Wyllie, Aaron, ‘The Human Rights of Older People during Covid-19: Social Wellbeing and Access to Care and Support for Older People in the United Kingdom’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 197–203 Abstract: To date, the vast majority of Covid-19 deaths have been those over the age of 65. The vulnerability of older people to the impacts of Covid-19 were recognised early and have featured prominently in policy discussions and decision-making of governments around the world. While the risks posed by Covid-19 to the health and wellbeing of older people are significant, the impact of policies introduced in response to the public health crisis raise several critical human rights issues. This article addresses two broad areas of concern regarding the rights of older people which have emerged in the United Kingdom as a consequence of Covid-19. Firstly, this article discusses the risks posed by the suspension of several Local Authority duties under the Care Act, and proposes amendments aimed at ensuring the rights of people in need of care and support are maintained during this period. Secondly, the social wellbeing of older people is discussed with reference to Article 8 of the European Convention on Human Rights, which establishes the right to respect for private and family life. For older adults living the in the community, it is argued that Article 8 imposes a positive obligation on Local Authorities to identify and support those older adults experiencing significant isolation or loneliness as a consequence of measures introduced in response Covid-19. In care home environments, Article 8 is considered with reference to the suspension of care home visitation rights, which is argued to be a disproportional and overly restrictive measure which imperils the rights and social wellbeing of older people.
Wynne, Keona Jeane, Mila Petrova and Rachel Coghlan, ‘Dying Individuals and Suffering Populations: Applying a Population-Level Bioethics Lens to Palliative Care in Humanitarian Contexts: Before, during and after the COVID-19 Pandemic’ (2020) 46(8) Journal of Medical Ethics 514–525 Background: Humanitarian crises and emergencies, events often marked by high mortality, have until recently excluded palliative care—a specialty focusing on supporting people with serious or terminal illness or those nearing death. In the COVID-19 pandemic, palliative care has received unprecedented levels of societal attention. Unfortunately, this has not been enough to prevent patients dying alone, relatives not being able to say goodbye and palliative care being used instead of intensive care due to resource limitations. Yet global guidance was available. In 2018, the WHO released a guide on ‘Integrating palliative care and symptom relief into the response to humanitarian emergencies and crises’—the first guidance on the topic by an international body. Aims This paper argues that while a landmark document, the WHO guide took a narrowly clinical bioethics perspective and missed crucial moral dilemmas. We argue for adding a population-level bioethics lens, which draws forth complex moral dilemmas arising from the fact that groups having differential innate and acquired resources in the context of social and historical determinants of health. We discuss dilemmas concerning: limitations of material and human resources; patient prioritisation; euthanasia; and legacy inequalities, discrimination and power imbalances. Implications In parts of the world where opportunity for preparation still exists, and as countries emerge from COVID-19, planners must consider care for the dying. Immediate steps to support better resolutions to ethical dilemmas of the provision of palliative care in humanitarian and emergency contexts will require honest debate; concerted research effort; and international, national and local ethical guidance.
Yahya, Azhari, ‘State Responsibility Towards the Right to Health in the Age of Covid-19 Pandemic in Indonesia’ (Proceedings of the 1st International Conference on Law and Human Rights 2020 (ICLHR 2020),2021) 10–17 Abstract: The right to health is universally recognized through Article 25 paragraph (1) of Universal Declaration of Human Rights saying that everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Every country in the world including Indonesia that becomes a party to human rights treaty has addressed health-related rights including the right to health and a number of rights related to conditions necessary for health. Right to health encompasses all socio-economic, environmental and legal issues that have any direct implication on health. Therefore, the steps to be taken by the states parties shall include prevention, treatment and control of epidemic, endemic, occupational and other diseases. Under this framework, the state has duties to ensure the rights of its citizens to enjoy healthy life. In this matter, the state is duty-bound legally to provide basic minimum rights for securing health, including easily accessible and affordable good quality health care for all. Since Indonesian government had declared corona virus disease 2019 (Covid-19) as a national disaster on 2nd March 2020, every facet of society has changed dramatically. Consequently, Indonesian citizens feel threatened by the virus. Then, late response from the government has made them vulnerable to the pandemic. It was not until 13th March 2020 the Indonesian government reacted to the crisis by setting up the Task Force for Rapid Response to Covid-19 under Presidential Decree Number 9 year 2020. By then, the spread of corona virus becomes a core concern for Indonesian Government. Indonesian Task Force for Rapid Response to Covid-19 announced that as of 25th October 2020 there were 389,712 people were infected by Corona virus. Among them 313,764 people were recovered (80.51%) and 13,299 people died (3.41%) and 62,649 people were hospitalized (16.07%). These data have made Indonesia as one of the most vulnerable countries in the world. The increase in death cases in Indonesia should be a worrying sign for Indonesian Government and now the government is entering a situation of being alert to the spread of this corona virus. In anticipating this situation Indonesian Government has implemented several recommendations for the prevention of this virus outbreak centrally through the health protocol. Society is obliged to apply social distance, self-isolation, clean living behaviors, and healthy living with nutritious food consumption. In short, the government must take a full role in providing alternatives as the way out to ensure the right to health for all citizens. Drawing on the above description, this paper scrutinizes the state responsibility in terms of providing health care for all citizens as human rights during Covid-19 pandemic in Indonesia.
Yakobovich, Oren, ‘The Art of Protection: Old Wisdom, New Strategies’ (2020) 17(30) SUR: International Journal on Human Rights 75–83 Abstract: The protection and resilience of human rights defenders is essential for the preservation and advancement of social justice. When facing significantly better-resourced adversaries, our key to success lies in our strategies. Our post-COVID reality is an opportunity for us to reassess our approach, harnessing ancient knowledge to navigate us safely through new terrain.
Yearby, Ruqaiijah and Seema Mohapatra, ‘Law, Structural Racism, and the COVID-19 Pandemic’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa036 Abstract: Racial and ethnic minorities have always been the most impacted by pandemics because of: disparities in exposure to the virus; disparities in susceptibility to contracting the virus; and disparities in treatment. This article explains how structural racism, the ways in which laws are used to advantage the majority and disadvantage racial and ethnic minorities, has caused these disparities. Specifically, this article focuses on how employment, housing, health care, and COVID-19 relief laws have been manipulated to disadvantage racial and ethnic minorities, making minorities more susceptible to COVID-19 infection and death. This article uses Blumenshine’s 2008 framework to outline how structural racism causes racial and ethnic minorities’ disparities in exposure to viruses, in susceptibility to contracting viruses, in treatment of viruses, and in infection and death rates. This article discusses how historical and current practices of structural racism in existing employment, housing, and health care laws and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) cause disparities in COVID-19 infections and deaths. This article suggests legal solutions to address structural racism as well as public health solutions to help mitigate the racialized effects of the disease.
Yearby, Ruqaiijah and Seema Mohapatra, ‘Systemic Racism, the Government’s Pandemic Response, and Racial Inequities in COVID-19’ (2021) 70(7) Emory Law Journal 1419–1473Jurisdiction: USA
Abstract: During the COVID-19 pandemic, the federal and state governments have ignored racial and ethnic minorities’ unequal access to employment and health care that results in racial inequities in COVID-19 infections and deaths. In addition, they have enacted laws that further exacerbate these inequities. Consequently, many racial and ethnic minorities are employed in low-wage essential jobs that lack paid sick leave and health insurance. This lack of benefits causes them to go to work even when they are sick and prevents them from receiving appropriate medical treatment. As a result, racial and ethnic minorities have disproportionately been infected and died from COVID-19. Although these actions seem race “neutral,” they exemplify systemic racism. Racial and ethnic minorities are deemed inferior to white people, and thus they do not receive the same access to resources, such as employment and health care. This essay illustrates how systemic racism has resulted in racial inequities in COVID-19 infections and deaths through case studies in employment and health care. Using the health justice framework, it concludes with suggestions to eradicate systemic racism, redress harm, and engage community in implementing an equitable pandemic response.
Yearby, Ruqaiijah and Seema Mohapatra, ‘Structural Discrimination In COVID-19 Workplace Protections’ (Saint Louis University Legal Studies Research Paper No 2020–09, 29 May 2020) Abstract: Workers, who are being asked to risk their health by working outside their homes during the COVID-19 pandemic, need adequate hazard compensation, safe workplace conditions, and personal protective equipment (PPE). Sadly, this is not happening for many essential workers, such as those working in home health care and in the meat processing industry. These workers are not only being unnecessarily exposed to the virus, but they are also not receiving paid sick leave, unemployment benefits, and affordable health care and childcare. The lack of these protections is due to structural discrimination and has disproportionately disadvantaged women of color and low-wage workers. This leaves them and their families more vulnerable to COVID-19 infection and death. In this context, structural discrimination refers to the ways in which laws are used to advantage those in power, while disadvantaging powerless workers. In the COVID-19 pandemic, the lack of legal protections for many workers is a reflection of structural discrimination.
Young, Katharine, ‘The Idea of a Human Rights-Based Economic Recovery after Covid-19’ (Boston College Law School Legal Studies Research Paper No 538, 24 August 2020) Abstract: The COVID-19 pandemic has produced a health and economic crisis of unprecedented scope. As economists and policymakers turn to the task of recovery, protecting human rights remains intrinsically important, both morally and legally. It is also instrumental to the ends of public health and economic resilience. This Article argues that the human rights to life, health, education, social security, housing, food, water and sanitation – the so-called economic and social rights – are as essential as civil and political protections. Moreover, rather than simply ameliorate the inevitable indignities and material deprivations caused by the COVID-19 pandemic, the implementation of duties to respect economic and social rights can help ensure their protection in the post-COVID-19 economy. For this to occur, however, the Article suggests that the application of human rights to the economic recovery should be informed by a longer history of economic crises, assisted by both international and comparative economic and social rights frameworks, and open to the institutional reimagination that the idea of human rights helps to generate.
Yu, Peter K, ‘Can the Right to Science Reduce the Tensions Between Intellectual Property and Human Rights?’ (Texas A&M University School of Law Legal Studies Research Paper No 22–56, 10 November 2022) Abstract: The right to science—or, more formally, the right to enjoy the benefits of scientific progress and its applications—is one of the most underexplored rights in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Referred to as being ‘[t]ucked away at the tail end’ of the UDHR and the ‘most obscure of all the international human rights treaty provisions,’ this right did not become the subject of an authoritative interpretation by the U.N. Committee on Economic, Social and Cultural Rights (CESCR) until April 2020, amid the COVID-19 pandemic.Taking note of the release of General Comment No. 25 and the considerable frustrations over the tensions and conflicts between intellectual property and human rights during the COVID-19 pandemic, this chapter closely examines the right to science as incorporated in Article 27(1) of the UDHR and Article 15(1)(b) of the ICESCR. The new interpretive comment is of notable importance because it ‘open[s] … a door to a more complex, nuanced debate and, perhaps, a renewed importance for the right to science, and an evolving role in the protection of other human rights.’ This chapter further explores whether, and how, the right to science can help reduce the tensions and conflicts between intellectual property and human rights.This chapter begins by briefly recounting the drafting history of both Article 27(1) of the UDHR and Article 15(1)(b) of the ICESCR. The chapter then discusses three major problems brought about by strong protection and enforcement of intellectual property rights, as identified by the CESCR. It further outlines ten different areas in which the textual language in General Comment No. 25 can provide a much-needed boost to promote a human-centered approach to health innovations. The chapter concludes by cautioning that some of this language could nonetheless be used to reinforce the tensions and conflicts between intellectual property and human rights, or even support proposals for strengthening intellectual property protection.
Yusuf, Abubakar, ‘COVID-19 Pandemic Lockdown Discourse: A Review of Some Contending Human Rights Issues’ (SSRN Scholarly Paper ID 3794654, 28 February 2021) Abstract: The paper examined the human rights issues associated with COVID-19 pandemic lockdown restriction in Nigeria. With the aid of secondary data obtained from official documents, reports and other literature on the subject matter, the paper found that there were reports of human rights violations at different levels which were encapsulated in three concentric circles namely right to life and duty to protect, right to health and access to healthcare and freedom to movement. The paper discussed the issues associated with these rights during the COVID-19 pandemic lockdown. It was found that there was little or no considerations for the necessary parameters of necessity and proportionality when national lockdown restrictions were made. This subsequently raised the call for review of the national emergency laws and setting up of monitoring committee during national emergencies. Other recommendations included taking necessary actions to guarantee freedom of expression during national emergencies and provision of stimulus packages and other palliatives to the most vulnerable in the society.
Zarifi, Sam and Kate Powers, ‘Human Rights in the Time of COVID-19: Front and Centre’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Introduction: the aim of this blog is to highlight the necessity of ensuring the consistency of public health policies taken as part of the global responses to the COVID-19 pandemic with human rights law and standards.
Zarra, Antonella, Silvia Favalli and Matilde Ceron, ‘Pandemic-Sanctioned AI Surveillance: Human Rights under the Threat of Algorithmic Injustice in the EU’ (SSRN Scholarly Paper ID 3939747, 10 October 2021) Abstract: Attention to algorithmic injustice has long characterised the perspective of European Union (EU) institutions toward artificial intelligence (AI), given the potential threats to citizens and democracies. From a global perspective, the EU has likewise championed in the pandemic context thanks to higher attention to concerns such as privacy in the deployment of technological solutions to help control the outbreak. Nevertheless, as digital tools became more and more pervasive, their proliferation far exceeded official contact tracing apps to include a multitude of public and private surveillance solutions. Our work considers the current European regulatory framework and it highlights how problematic pandemic surveillance digital tools in terms of privacy and data protection, digital accessibility, non-discrimination and social exclusion may fall through the cracks, especially within the private sector. The legal analysis complemented by empirical examples of COVID-19 related apps assesses how the pandemic offers a breeding ground for algorithmic injustice. Similarly, we evaluate the extent to which, in its current form, the European Commission Proposal for an AI Regulation (the AI Act) may fail to fully mitigate in practice such threats to human rights. Specifically, the contribution of the paper is to highlight how - even in a context such as the EU where notable attention is given to citizens’ rights and their balancing against the need of protecting public health - COVID-19 and its algorithmic response poses a substantial risk to human rights. More broadly, the analysis offers a cautionary tale for post-pandemic societies in which AI surveillance is bound to remain a ubiquitous feature, for which current regulatory efforts may not prove sufficient guarantees.
Zimmermann, Augusto and Joshua Forrester (eds) Fundamental Rights in the Age of COVID-19 (Connorcourt Publishing, 2020) Note: this book is not open access. Link to book webpage on publisher website
Contents:
1. Introduction – Fundamental Rights in the Age of Covid-19 -- Augusto Zimmermann & Joshua Forrester
2. Reflecting upon the Costs of Lockdown -- Rex Ahdar
3. Politicians, the Press and “Skin in the Game” -- James Allan
2. Reflecting upon the Costs of Lockdown -- Rex Ahdar
3. Politicians, the Press and “Skin in the Game” -- James Allan
4. An Analysis of Victoria’s Public Health Emergency Laws -- Morgan Begg
5. Only the Australian People Can Clean up the Mess: A Call for People’s Constitutional Review -- David Flint
6. Covid-19, Border Restrictions and Section 92 of the Australian Constitution -- Anthony Gray
7. Blurred Lines Between Freedom of Religion and Protection of Public Health in Covid-19 Era – Italy and Poland in Comparative Perspective -- Weronika Kudla & Grzegorz Jan Blicharz
8. The Dictatorship of the Health Bureaucracy: Governments Must Stop Telling Us What Is for Our Own Good -- Rocco Loiacono
9. The Role of the State in the Protection of Public Health: The Covid-19 Pandemic -- Gabriël A. Moens
10. Corona, Culture, Caesar and Christ -- Bill Muehlenberg
11. The Age of Covid-19: Protecting Rights Matter -- Monika Nagel
12. Molinism, Covid-19 and Human Responsibility -- Johnny M. Sakr
13. Interposition: Magistrates as Shields against Tyranny -- Steven Alan Samson
14. Destroying Liberty: Government by Decree -- William Wagner
15. The Virus of Governmental Oppression: How the Australian Ruling Elites are Jeopardising both Democracy and our Health -- Augusto Zimmermann
5. Only the Australian People Can Clean up the Mess: A Call for People’s Constitutional Review -- David Flint
6. Covid-19, Border Restrictions and Section 92 of the Australian Constitution -- Anthony Gray
7. Blurred Lines Between Freedom of Religion and Protection of Public Health in Covid-19 Era – Italy and Poland in Comparative Perspective -- Weronika Kudla & Grzegorz Jan Blicharz
8. The Dictatorship of the Health Bureaucracy: Governments Must Stop Telling Us What Is for Our Own Good -- Rocco Loiacono
9. The Role of the State in the Protection of Public Health: The Covid-19 Pandemic -- Gabriël A. Moens
10. Corona, Culture, Caesar and Christ -- Bill Muehlenberg
11. The Age of Covid-19: Protecting Rights Matter -- Monika Nagel
12. Molinism, Covid-19 and Human Responsibility -- Johnny M. Sakr
13. Interposition: Magistrates as Shields against Tyranny -- Steven Alan Samson
14. Destroying Liberty: Government by Decree -- William Wagner
15. The Virus of Governmental Oppression: How the Australian Ruling Elites are Jeopardising both Democracy and our Health -- Augusto Zimmermann
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