Scales of justice and gavel on table.

Limiting Human Rights During Pandemics: Recommendations for Closing Reporting Gaps and Increasing International Oversight

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Cassandra Emmons

Sovereign governments have the prerogative to declare states of emergency when sudden, unanticipated events threaten the lives of the nation and its people. In so doing, government decrees sometimes must contradict other international human rights commitments, balancing the individual versus the collective. Established derogation procedures are supposed to ensure such restrictions are proportionate, non-discriminatory, and last only as long as necessary (for an overview, see Emmons 2020). COVID-19 has proven that public health emergencies are not equally recognized in either international law or national constitutions; some international treaties permit “limiting” rights in the name of public health rather than requiring derogation, and nationally some governments authorize emergency measures in practice without ever doing so in name. These parallel processes and conceptual gaps create space for governments to restrict individuals’ rights with little to no international accountability during pandemics.

In this piece, I recommend a new international instrument on pandemic response be explicit about reporting requirements when governments suspend rights during such emergencies. These suggestions incorporate advice from the American Association for the International Commission of Jurists’ Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985), the International Law Association’s Queensland Guidelines for Bodies Monitoring Respect for Human Rights during States of Emergency (1990), case law of the European Court of Human Rights (ECtHR), and learned experience from the COVID-19 pandemic.

Read More

Globe.

Killing Locally or Killing Globally? Inequalities in Framing Cooperation Through Pandemics

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Luciano Bottini Filho

COVID-19 made “pandemic” a buzzword. The world expressed anxiety on the eve of a pandemic declaration from the WHO, a decision monitored as closely as the white smoke for a newly elected pope. Yet, “pandemic” has no legal value in international law by contrast with a declaration of public health emergency of international concern (PHEIC). It is no accident that the 12th Commission of the Institute of International Law issued a report on Epidemics and International Law, which bluntly avoided the term pandemic.

Despite this, for the general public, the role of a PHEIC determination remains unknown. Given the inconsistency in declaring PHEIC (only 6 events between 2007 and 2020), many epidemics of considerable proportion were ignored by the international community. Yet the mismatch in the general public consciousness regarding the legal implications triggered by a WHO declaration of a PHEIC is not as problematic as the way lawyers and public health practitioners reinforce the centrality of a pandemic, a concept that still requires a more solid definition.

As an international instrument potentially moves forward to galvanize “pandemics” as a legally defined term — and part of global health governance — we must understand the implication that this word has in relation to disparities between developing countries‘ problems and the interests of their richer counterparts. After all, any pandemic would have originated from one or more national epidemics, but it would require a globally recognized procedure to trigger stronger international obligations. As opposed to pandemics, though, epidemics have persisted for decades and raged in low- and low-middle income settings from Zika to Ebola, demanding support from international actors.

Read More

Freeway on-ramp

The Government Needs to Construct On, Not Off, Ramps to Combat the Latest Wave of COVID

By Jennifer S. Bard

Over the past two weeks, the news coming in about the spread of COVID-19 has been eerily familiar. Cases are rising all over Europe, not just in under-vaccinated Eastern European countries, but in England, the Netherlands, and Germany — all of whom have much higher rates of vaccination than the U.S. At the same time, cases across the U.S., including in cities like LA, DC, and Chicago have stopped falling, and are rising rapidly in the Mountain West, including the Navajo Nation. Hospitals in Colorado have already reached crisis capacity.

Whether the increase is attributable to the emergence of yet another variant, or perhaps is a natural artifact of waning immunity, it is very real and demands a level of attention from our federal government that, once again, it is failing to provide.

Yet in the face of now too familiar signs of resurgence, already being called a “Fifth Wave,” not only are the usual minimizers advocating reducing existing measures to prevent spread, but cities and states are rolling back what few protections remain intact. It is in the face of this foolish movement to drop our guard that the federal government is, again, failing to use the powers it has beyond vaccine mandates to create much needed on-ramps for mitigation measures as the country heads into winter.

Read More

NEW YORK, NEW YORK - APRIL 05: Emergency medical technician wearing protective gown and facial mask amid the coronavirus pandemic on April 5, 2020 in New York City.

Déjà Vu All Over Again

By Jennifer S. Bard

The COVID-19 pandemic has shown us time and time again that whatever progress we make in curbing transmission of the virus is tenuous, fragile, and easily reversed.

And yet, we continue on a hapless path of declaring premature victory and ending mitigation measures the moment cases begin to fall. We need only look back to recent history to see why relaxing at this present moment of decline is ill-advised.

Read More

New York City, New York/USA June 2, 2020 Black Lives Matter Protest March demanding justice for George Floyd and other victims of police brutality.

The Centrality of Social Movements in Addressing the Impact of the COVID-19 Pandemic

By Malia Maier and Terry McGovern

The COVID-19 pandemic resulted in higher rates of family violence. For advocates and funders, this provided important opportunities to partner with movements, including racial justice, Gender-Based Violence (GBV), Reproductive Justice, and Sexual and Reproductive Health and Rights (SRHR) movements.

We interviewed 24 GBV and SRHR service providers, advocacy organizations, and donors throughout the country to understand how the pandemic and concurrent racial justice movements were impacting critical GBV and SRHR services.

Read More

Photo of doctor's exam room.

Using Health Justice to Identify Inequities Experienced by Employees with Disabilities

By Katherine Macfarlane

Disability discrimination negatively impacts the health of people with disabilities, yet disability law often overlooks discrimination’s health consequences. A health justice framework does not. It recognizes that discrimination impacts health, and then goes a step further, highlighting how legal systems are complicit in perpetuating health injustice. That wider lens better captures the lived experiences of those who experience discrimination, including people with disabilities.

My own work explores disability law’s insistence that disability be confirmed through medical examination. Without confirmation from a health care provider, disability does not exist, and reasonable accommodations need not be provided. A health justice framework has deepened my understanding of the harm those encounters impose. Identifying the full scope of the harm people with disabilities endure is the first step toward dismantling the systems that cause it.

Read More

police cars lined up.

Policing Public Health: Carceral-Logic Lessons from a Mid-Size City

By Zain Lakhani, Alice Miller, Kayla Thomas, with Anna Wherry

When it comes to public health intervention in a contagion, policing remains a primary enforcement tool. And where a health state is intertwined with carceral logics, enforcement becomes coercive; emphasis is placed on the control of movement and behavior, rather than on support and care.

Our experience in New Haven during the first few months of the COVID-19 pandemic well illuminates this, while also revealing a logic of exceptional force lying dormant in municipal health practices.

Attending to the local is all the more important, albeit difficult, for fast moving and intensely quotidian practices, as COVID in the U.S. seems to be settling in as a pandemic of the local.

Our experience as activist-scholars working with a New Haven-based sex worker-led harm-reduction service and advocacy group, SWAN, suggests that by focusing on municipal practices, we can better understand what public health police power actually is. By orienting our scholarship toward the way social movements engage with local politics, we can then address how these police powers complicate the ability of those most at risk of both disease exposure and police abuse to engage with local authorities. Absent this engagement and critique, progressive policies for constructive state public health powers may be more vulnerable to attack from the right.

Read More

Beverly Hills, CA: April 7, 2021: Anti-mask protesters holding signs related to COVID-19. Beverly Hills and the state of California have a mask mandate requirement.

What Makes Social Movements ‘Healthy’?

By Wendy E. Parmet

Social movements can play an important role in promoting population health and reducing health disparities. Yet, their impact need not be salutatory, as is evident by the worrying success that the anti-vaccination movement has had in stoking fears about COVID-19 vaccines.

So, what makes a health-related social movement “healthy?” We need far more research about the complex dynamics and interactions between social movements and health, but the experience of a few health-related social movements offers some clues.

Read More

Blue house in grass field.

Community-Based Response to Intimate Partner Violence During COVID-19 Pandemic

By Leigh Goodmark

Intimate partner violence has been called “a pandemic within the pandemic.”

A study of fourteen American cities found that the number of domestic violence calls to law enforcement rose 9.7% in March and April 2020, compared to the previous year. A hospital-based study spanning the same time period found significant increases in the number of people treated for injuries related to intimate partner violence. And a 2021 review of 18 studies relying on data from police, domestic violence hotlines, and health care providers found that reports of intimate partner violence increased 8% after lockdown orders were imposed.

Although almost half of people subjected to abuse never call the state for assistance, our responses to intimate partner violence are largely embedded within the state and rely heavily on law enforcement. A disproportionate amount of funding under the Violence Against Women Act — by one estimate, 85% — is directed to the criminal legal system. A growing number of activists skeptical of state intervention are arguing that responses beyond the carceral state are essential.

The pandemic showed that community-based supports, like pod mapping, mutual aid, and community accountability, originally developed by activists critical of law enforcement responses to violence, can foster safety and accountability without requiring state intervention. The pandemic could spur advocates seeking to distance themselves from state-based responses to expand their services.

Read More

Police car.

Blurring the Line Between Public Health and Public Safety

By Jocelyn Simonson

Collective movement struggles during the twin crises of COVID-19 and the 2020 uprisings have helped blur the concepts of public safety and public health.

These movements have shown how all of our public health and all of our public safety suffers when we use the police, prosecution, and prisons to solve our collective problems. Their collective resistance to the status quo underscores how these terms — public health and public safety — too often carry with them an exclusionary understanding of which “public” matters.

Read More