[Editor’s Note: This article is part of a Just Security series, COVID and International Law. All articles in the series can be found here.]
COVID-19 continues to grow at a rapid pace worldwide. Many States have struggled to contain the virus and many have failed to ensure that all individuals under their jurisdiction can live with security and dignity in the face of the threat.
In Israel, the government has been criticized for prematurely allowing businesses and schools to reopen after an initial lockdown. With per capita infection rates among the highest in the world, the government has had to impose a second nationwide, weeks-long lockdown. Many governments have failed to protect particularly vulnerable communities and individuals under their jurisdiction. In Libya, for instance, the pandemic has spread quickly among migrants and refugees. As Amnesty International reports, government authorities have not ensured these individuals have access to testing and treatment, and detention centers where many are held remain dangerously overcrowded. Meanwhile, Libyan officials have specifically blamed “foreign nationals…for the rise in crime and the spread of diseases including COVID-19.”
States’ shortcomings in protecting populations under their care from the threat of COVID-19 may violate a fundamental right in international human rights law: the right to life. This right is considered a core right that governments have a duty to protect and an obligation not to infringe.
This article is the first of three examining international human rights affected by the COVID-19 pandemic and government responses thereto. It first outlines the right to life as it is defined and protected in various human rights conventions. It then considers the scope of State obligations related to the right in the context of the COVID-19 pandemic. In light of claims that countries are culpable for the virus’ impact on other States when they have failed to prevent COVID-19’s spread beyond their borders, this article also evaluates the extraterritorial reach of the right to life and its application to the current pandemic.
The Right to Life
The right to life is a fundamental principle of international human rights law. Article 3 of the Universal Declaration of Human Rights (UDHR) states that “everyone has the right to life, liberty, and security of person.” Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that “every human being has the inherent right to life” which is to be “protected by law,” and “no one shall be arbitrarily deprived of his life.” Further, Article 6(1) of the Convention on the Rights of the Child states that “States Parties recognize that every child has the inherent right to life.”
Regional human rights treaties also entrench the right to life. Article 1 of the American Declaration of the Rights and Duties of Man, like Article 3 of the UDHR, affirms that “every human being has the right to life, liberty and the security of his person.” Article 4(1) of the American Convention on Human Rights articulates similar language. Article 2(1) of the European Convention on Human Rights (ECHR) states that “everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Article 4 of the African Charter on Human and Peoples’ Rights states that “human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”
In the ICCPR, the right to life is a non-derogable right, meaning that it cannot be suspended even in a state of emergency. The African Commission on Human and Peoples’ Rights has similarly held the right to life to be non-derogable. However, the right to life is not an unbounded right, as provisions of human rights conventions provide leeway for authorities to use deadly force in their pursuit of justice or security; Article 2(2) of the ECHR, for example, provides that “[d]eprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary” (see also Article 6(2) of the ICCPR).
The Right to Life During a Pandemic
The United Nations Human Rights Committee has stressed in General Comment No. 36 that the right to life, as expressed in the ICCPR, should not be “narrowly interpreted.” Accordingly, individuals are entitled “to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity.” Critically, the Committee also suggests States Parties “should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity,” conditions that may include “the prevalence of life-threatening diseases.” It also notes that “[t]he duty to protect the life of all detained individuals includes providing them with the necessary medical care and appropriately regular monitoring of their health.” In Toussaint v. Canada, the Committee specifically held that Canada’s exclusion of undocumented immigrants from a federal health care program violated the right to life, among other rights. The Committee found that the duty to respect the right to life “extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life.”
Parties to adjudication in international and regional courts have invoked the right to life across a range of issue areas, including in the health care context. In Powell v. the United Kingdom, the European Court of Human Rights (ECtHR) wrote: “it cannot be excluded that the acts and omissions of… [State] authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2.” And in Cyprus v. Turkey, the ECtHR observed that “an issue may arise under Article 2 of the Convention where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make available to the population generally.” A State authority is obligated, the Court continued, to take “appropriate steps to safeguard the lives of those within its jurisdiction.” Further, in Stoyanovi v. Bulgaria, the ECtHR broadly interpreted the Convention’s right to life provision as sometimes requiring the authorities to take preventive operational measures; the Court suggested that such measures are necessary in “dangerous situations of specific threat to life which arise exceptionally from risks posed by… man-made or natural hazards.”
Application in the Context of COVID-19
The precise scope of the right to life as States respond to COVID-19 is far from clear. States have at least minimal obligations to protect the lives of their inhabitants through taking steps to address clear health threats to the population, such as the deadly COVID-19 virus. For instance, as noted above, the U.N. Human Rights Committee’s General Comment No. 36 states that the right to life obligates ICCPR States Parties to “address…life-threatening diseases.” Further, as scholars such as Alessandra Spadaro point out, the General Comment articulates a “due diligence obligation” for States to “undertake reasonable positive measures… in response to reasonably foreseeable threats to life originating from private persons and entities.” While this due diligence obligation is presented in the context of physical threats by armed groups or criminals, Spadaro suggests the duty could also entail “protecting individuals from threats to life posed by others carrying and infectious and deadly disease, such as COVID-19.”
These readings of the ICCPR’s right to life provision square neatly with other authoritative bodies’ interpretation of the right to life as it appears in other instruments. For instance, as Elizabeth Stubbins Bates has explained, the ECtHR’s Stoyanovi decision and other opinions of that court suggest that States Parties to the ECHR may have a positive duty to plan for pandemic response so that lives can be saved once public health emergencies arise.
The failure of a State to take at least minimal steps to protect its population from the spread of COVID-19 arguably violates the right to life of those who become infected and die. The precise scope of this obligation is not clear, however. It likely does not mean that States are required to establish lockdown measures or mandatory masking policies. But it likely does mean that States at least have a duty to not knowingly contribute to the spread of the virus – for instance, States should ensure first responders and health care workers have access to necessary personal protective equipment (especially masks) to protect themselves and those they serve.
Moreover, the law suggests that the right to life may be violated in some cases by denying access to health care essential to treating those at risk of losing their lives to the pandemic. The right to life does not guarantee universal access to health care, of course. But General Comment 36 does require States to provide a minimal degree of access to health care in order to fulfill the right to life. How far these obligations extend, however, has yet to be established.
Regardless, any life-saving COVID-19 interventions must be inclusive of all groups of patients in society and must not be discriminatory, as U.N. human rights experts have specified. For instance, when a vaccine becomes available, States will be obligated to ensure that it is available without invidious discrimination.
States also have a heightened responsibility to protect the right to life of those they detain. As noted above, the Human Rights Committee has concluded that the duty to protect the life of detained individuals includes providing necessary medical care and monitoring of their health. In the United States, incarcerated people are infected by COVID-19 at rates five times that of the general population, and the death rate is higher than the national rate. Given this greater level of vulnerability of incarcerated populations, and the difficulty they have protecting themselves from infection (they obviously cannot self-quarantine), States have heightened obligations to protect them. This means that incarcerated or detained persons should be provided essential protective equipment (masks) and social distancing and other measures should be put in place to limit the spread of the virus. Those who are infected should be quarantined away from the rest of the population of those detained and should be provided adequate medical care. When a vaccine is available, it should be provided to those in confined situations, particularly to those who are especially vulnerable to the virus due to comorbidities.
These obligations extend to detention facilities for immigrants, where these obligations have not always been met. There are reports that the United States, for example, has been careless in protecting immigration detainees from COVID. According to Eunice Cho, at the ACLU’s National Prison Project, Immigration and Customs Enforcement has transferred people between facilities, “knowing that they are positive for the coronavirus and that they are spreading COVID-19 across the country.” If these reports are true, those actions arguably violate the detainees’ right to life – and potentially the right to life of others exposed to the virus as a consequence, including ICE employees and their families. (A later article in this series will specifically consider States’ obligations to asylum seekers and other migrants detained by the State.)
States’ Obligations to Individuals Outside their Territories
There have been accusations that some governments’ inadequate responses to COVID-19 have allowed the virus to spread transnationally and harm populations abroad. It is therefore worth considering whether States’ right to life obligations apply outside their own borders—that is, extraterritorially.
There is significant disagreement over the scope of extraterritorial obligations under the primary treaty that establishes the right to life—the ICCPR. Article 2(1) requires a State Party to respect the rights of individuals “within its territory and subject to its jurisdiction.” The Human Rights Committee has interpreted this obligation in General Comment No. 31, stating that a State’s duty to respect and ensure these rights applies to “those within the power or effective control of the forces of the State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained.” General Comment No. 36 also specifies States have an obligation to “ensure that all activities taking place in whole or in part within their territory and in other places subject to their jurisdiction, but having a direct and reasonably foreseeable impact on the right to life of individuals outside their territory,… are consistent with” ICCPR Article 6. The United States, however, has long taken the view that the ICCPR does not apply extraterritorially.
The ICJ recognized in its advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (2004) that State obligations under a number of human rights conventions, including the ICCPR, CRC, and Convention Against Torture, apply in areas beyond States’ territory if they exercise jurisdiction over such areas. Based on this holding, the U.N. Human Rights Commission determined the United States’ ICCPR duties (including protection of the right to life) extend to its military base and detention center in Guantanamo Bay, Cuba.
Regional courts and conventions take varying approaches to the question of extraterritoriality. The European Court of Human Rights clarified in Al-Skeini v. United Kingdom (2011) that Article 1 of the ECHR obliges States Parties exercising physical control and authority in foreign territory to secure the rights and freedoms identified in the Convention for individuals subject to that control. In Coard et al v United States, the Inter-American Commission on Human Rights similarly recognized that “jurisdiction” may “refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one State, but subject to the control of another State.” Meanwhile, the African Charter on Human and People’s Rights does not have a provision explicitly tying duties to State jurisdiction, which some scholars have pointed out suggests that the Charter’s duties may apply extraterritorially.
Extraterritorial Application in the Context of COVID-19
The range of circumstances in which States may have pandemic-related extraterritorial obligations under the right to life is narrow. However, some States would have a duty to protect the lives of foreign nationals abroad from the COVID-19 threat and to refrain from “acts and omissions” that leave other populations susceptible to the virus. Specifically, a State Party to the ICCPR exerting effective control of or asserting authority over foreign territory or persons would, under most readings of the ICCPR, be expected to ensure that State policies do not knowingly contribute to “unnatural or premature” deaths during a pandemic.
Thus, administering powers of non-self-governing territories, such as the Falkland Islands, American Samoa, and French Polynesia, would likely be obliged to protect the right to life of individuals in those territories by containing the spread of COVID-19 and providing minimum adequate care to infected individuals. During armed conflict, States that occupy or exert effective control over foreign territory would also be expected to protect foreign individuals under their authority from “unnatural or premature” death resulting from infectious diseases (in addition to complying with duties arising from international humanitarian law).
Image: NAIROBI, KENYA – JULY 10: A young boy walks in front of a graffitied wall spelling out the symptoms of and ways to avoid Coronavirus in Mathare informal settlement on July 10, 2020 in Nairobi, Kenya. (Photo by Alissa Everett/Getty Images)