International human rights law and the COVID-19 response

Human rights organisations are calling on governments to ensure adequate human rights protections are in place in light of COVID-19 developments and demands. But what are the responsibilities of business to respect human rights in a time of crisis? 

In this article, we outline why it’s important that your business is prepared to ensure that human rights are at the centre of any prevention, preparedness and containment efforts for COVID-19. 

Human rights and COVID-19 

The outbreak of the global COVID-19 pandemic has raised significant concerns regarding the protection of human rights around the world. While the right to health and to the highest attainable level of medical care are front and centre, many other rights such as freedom of association, freedom of movement and the right to education have gradually also been affected as governments respond to the pandemic by locking down citizens, restricting gatherings and closing schools.

International law provides for circumstances in which human rights may be restricted. Governments are able to derogate from certain human rights when there is a ‘public emergency which threatens the life of the nation’[1] and there is little argument that the circumstances presented by COVID19 meet this threshold. However, even within that context, it is not open slather – in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa Principles), there is authoritative guidance as to the appropriate level and circumstance of any restrictions on human rights imposed by a State.

The Siracusa Principles require that restrictions should:

• be provided for by law;
  
  
• not be arbitrary, discriminatory or unreasonable;
  
  
• have clear rules and be accessible to everyone;
  
  
• respond to a pressing public or social need, pursue a legitimate aim and be proportional to that aim;
  
  
• be no more restrictive than what is required for the achievement of the purpose of the restriction; and
  
  
• be of limited duration and subject to review and remedy.

In a recent article, Human Rights Watch (HRW) explore the human rights concerns raised by COVID-19, including freedom of expression, freedom of association, and the right to education. HRW call on States to prevent unlawful discrimination and stigma and to protect patient confidentiality. More recently, over 100 human rights organisations called on Governments to ensure adequate protections are in place to guarantee basic rights as States step up the use of digital surveillance technologies to fight the pandemic.[2]

These human rights concerns are real. In Australia, the Human Rights Commissioner has been exploring the human rights implications of new technologies and artificial intelligence. A draft consultation paper proposes limitations to the use of some technologies in certain circumstances, including recommending a ‘legal moratorium on the use of facial recognition technology in decision making that has a legal, or similarly significant, effect for individuals, until an appropriate framework has been put in place’.[3] It is intended that the framework should include robust protections for human rights.

The role of business 

In this time of emergency, it is important for business to consider their role in the protection of human rights. What impact are business decisions, made under the extraordinary pressure of the COVID-19 environment, having on the rights of employees, the people in their supply chains and the communities in which they operate?

The UN Guiding Principles on Business and Human Rights (UNGPs) provide authoritative guidance on the responsibilities of business to respect human rights. While international law does not create obligations on business to protect human rights, there is an obligation on business to respect human rights and ensure that everything is done to identify, assess, and mitigate any human rights impacts of an organisation’s operations.

The UNGPs suggest there are three ways businesses can be implicated in human rights violations:

1. They can cause them directly, for example by provision of unsafe workplaces or work practices or unlawful discrimination in terms and conditions of work, redundancies or termination of employment.
   
   
2. They can contribute to human rights violations, for example through purchasing practises or contractual demands putting undue pressure on suppliers who then cut corners on worker conditions and pay in order to meet delivery requirements.
   
   
3. Finally, they can be linked to negative impacts through their business relationships, for example by financing a project run by a third party which, regardless of contractual obligations and protections, abuses water rights and limits a community’s access to water. Within the current context this could then impact on the community’s rate of COVID-19 infections with grave consequences.

In times of crisis, when business continuity is threatened, there is an elevated risk that decisions made under significant performance pressure may cut corners to meet targets. This in turn enhances the risk of negative human rights impacts.

While there is provision in international law for States to limit rights under certain circumstances, there is no such leniency for business enterprises. Consequently, this is the very time that values and principles must be reinforced and embedded, ensuring a compliance culture that respects long-term impacts and viability even at a time when short term survival is critical. We previously addressed these issues around sustainability in the time of COVID-19.

The UN Guiding Principles on Business and Human Rights provide a robust framework for guiding decision making under pressure, for ensuring that the rights of all stakeholders are considered and respected in business decisions, and that not only the ‘can we’ but the ‘should we’ question is asked and answered, especially in a time of crisis.

If you would like further information on how your business can ensure it operates with respect for human rights please contact Dr Phoebe Wynn-Pope, Head of Business and Human Rights or Heidi Roberts, Partner. 

<sub>[1] International Covenant on Civil and Political Rights, Article 4

[2] Human Rights Watch, Joint Civil Society Statement: States use of digital surveillance technologies to fight pandemic must respect human rights.</sub>

_{[3] Australian Human Rights Commission, Human Rights and Technology Discussion Paper – Executive Summary December 2019, p 19}