People have watched the novel coronavirus and its disease COVID-19 spread across countries and continents, and many governments have taken difficult decisions to impose restrictive emergency measures aimed at saving lives, protecting national health care systems, and halting the spread of the virus. At national and international levels, the law has played a critical part in the effectiveness of countries’ responses to the COVID-19 pandemic.
Roger Magnusson is a professor of health law and governance at Sydney Law School, The University of Sydney. He was the lead author of the report Advancing the Right to Health: The Vital Role of Law, published in 2017 by the World Health Organization (WHO) in collaboration with IDLO, the O’Neill Institute and the University of Sydney.
IDLO spoke to Professor Magnusson about why the law matters, the legal building blocks of a strong response to COVID-19, and the importance of global collaboration.
IDLO: Many people do not associate their health and well-being, or public health in general, with the law. What role does the law play in safeguarding people’s health in a pandemic?
Prof. Magnusson: Law is vital to an effective pandemic response. At the national level, legislation and regulations establish the functions that need to be exercised in order for countries to respond effectively to disease outbreaks with pandemic potential. This includes providing and financing the delivery of health services: diagnostic services and treatment for those who are sick, and population-level services such as contact tracing, implementation of infection control and social distancing measures and outbreak investigation. It includes regulating and funding the health workforce that performs these functions, and establishing surveillance systems – supported by laboratory capabilities – that are rapid and accurate enough to map the spread of infections and to evaluate the impact of public health measures. Law establishes the necessary authority for public health leadership and the exercise of public health functions, such as social distancing requirements and stay-at-home orders. It underlies systems for the provision of essential medicines and technologies, and for the rapid approval of new vaccines and drugs.
At the international level, the law helps to hold countries accountable for the actions that are needed to respond effectively to disease outbreaks. This includes the obligations that countries have, under the 2005 International Health Regulations (IHR), to establish a national coordination center for surveillance and reporting within a country, and for communications with WHO. The IHR also require each country to “develop, strengthen and maintain” their national capacities to detect, assess, report and respond effectively to public health risks and emergencies. Countries must assess all reports of urgent events within 48 hours and notify WHO immediately of all events that may constitute a “public health emergency of international concern” within a country’s territory, via the national coordination center.
Although infectious diseases know no borders, their impact may be felt more acutely in some countries than in others. What are the key legal elements that are needed in all countries for a strong national response to the COVID-19 crisis? Which ones are particularly important in countries where the impact of the virus is more acute?
Unfortunately, COVID-19 is demonstrating the truth of countless WHO and other expert reports that point to the importance of strengthening the resilience of national health systems. Effective public health leadership requires robust legal frameworks that authorize necessary measures, while also taking into account important personal rights and freedoms. This means that public health measures imposed on people should be reasonable and effective to reduce the risk of transmission. Coercive measures, where appropriate, should be proportionate to the public health benefit they are meant to achieve. They should not be imposed in order to discriminate unfairly against particular groups or used as a pretext for suspending constitutional rights or strengthening authoritarian control. By respecting human rights, governments can maintain public trust and this, in turn, ensures higher levels of public cooperation and a more effective response.
Are less developed countries, or countries with weak legal frameworks and institutions, particularly vulnerable to COVID-19?
Establishing legal frameworks for the exercise of public health authority and developing operational plans for emergency responses does not require enormous resources. But it does require leadership, accountability and, in some cases, technical assistance to plan and take necessary steps. Unfortunately, it is likely that less developed countries will be more severely affected due to weak legislative frameworks for public health surveillance and action, non-existent or inadequate operational plans, and lack of capacity to carry them out. The international community must act in solidarity with multilateral and bilateral support to countries in need. No country is immune, and no country is an island: COVID-19 is demonstrating this very clearly.
Around the world, laws have been passed at breakneck speed to control the spread of the virus. To what extent is this accelerated legislative process justified? What elements need to be in place to ensure continued good governance?
The fact that laws have been passed rapidly now, in response to COVID-19, may reflect the failure to invest sufficiently in establishing legal and operational frameworks for public health action prior to the crisis. The middle of a pandemic is hardly the ideal time to be introducing checks and balances to ensure that public health authority is exercised wisely. In order for trust to be maintained at such a crucial time, it is best for the legal authority for action to have been previously established through an open and transparent process, with opportunities for participation by those affected.
In the report Advancing the Right to Health: The Vital Role of Law, published by WHO in collaboration with IDLO, the O’Neill Institute and the University of Sydney, we referred to a number of principles that should guide the law reform process so that the trust – between government and those affected by the exercise of public health powers – is maintained and strengthened. These principles are: stewardship, transparency, participation, fairness, accountability, and the rule of law.
Many governments are curtailing other rights and freedoms to protect public health. What is the legal basis for governments to decide what is proportionate? What are the risks? How can people obtain redress if the measures taken overreach or are disproportionate, especially during a time of crisis when access to the courts is more difficult?
Freedom of movement and economic freedoms, in particular, can suffer when governments close borders, close businesses, and impose social distancing and stay-at-home orders to prevent disease transmission. In circumstances when the epidemiology of a new infectious agent remains uncertain, the risks of over- or underestimating the threat are real. The risks of over-reach (or under-reach) can be mitigated, although probably not eliminated, which is why transparency, trust, and ultimately democratic accountability are so important.
In most situations the protection of human rights will be aligned with public health and will assist governments to achieve their aims. In some circumstances, however, mandatory restrictions on civil liberties may be required. The United Nations’ Siracusa Principles provide a helpful template for governments when considering restrictions on liberty. Emergency laws that directly restrict individual freedoms must pursue a legitimate aim, be proportionate to that aim, and be no more restrictive than necessary to achieve the intended purpose. Liberty-restricting laws must never be used as an opportunity to engage in victimization or discrimination, but should be framed in light of the best available evidence, and implemented according to the principles of good governance discussed above.
Disadvantaged and vulnerable groups as well as women and girls will be particularly affected. What legal tools do institutions have at their disposal to protect the marginalized?
Women, girls, low income earners and other disadvantaged groups may be at particular risk of becoming infected with COVID-19 because they are more likely to work in environments that involve close contact with the public, or because they are more likely to live in cramped and crowded conditions. Those who are most disadvantaged may lack the financial resources to own a mobile phone or obtain reliable internet access: this may prevent access to reliable information about infection control and precautionary measures, not to mention online education for children when schools are closed. Disadvantaged groups who live from day to day in the informal economy may become sick with COVID-19 but be unable to risk their livelihood by self-isolating or seeking medical care – which may be unaffordable in any event. Times of stress also exacerbate intimate partner violence.
Governments share a special responsibility at times like these, to waive bureaucratic barriers and formal, legal requirements to ensure that health services and support can be accessed by those in need. Justice institutions also have special responsibilities: to find innovative ways to ensure access and representation despite public health restrictions, and to deliver justice, including through urgent orders and the extension of existing protection orders. These challenges, including the responsibility of justice institutions to help bridge the justice gap, are discussed in an important new report co-published by IDLO on Justice for Women amidst COVID-19.
How can the law help to prevent a rise in poverty and inequality? How will this crisis affect global progress toward achieving the 2030 Agenda for Sustainable Development?
There is a genuine risk that the economic harm caused by coronavirus will make countries look inwards to their own economic survival, jeopardizing the spirit of collectivism that needs to be maintained in order to achieve the 2030 Agenda. Global institutions and global projects could be big losers in a post-COVID-19 era.
However, the first potent message from coronavirus is that countries on planet Earth are linked not only by their common humanity, but – for as long as we have international travel – countries are also literally reliant on each other for survival. COVID-19 illustrates that good health can only be assured collectively, through global collaboration, mutual support and accountability for implementing the building blocks for global health security, including the obligations contained in the IHR and other international frameworks. The 2030 Agenda can serve as a roadmap to overcome this crisis, remembering, in particular, the nexus between Sustainable Development Goal 3 on health and well-being and Goal 16 on strong institutions and the rule of law. The challenge will be to keep that sense of collective responsibility alive in areas beyond pandemic control.
IDLO has collaborated with the University of Sydney for over a decade to build global public health law capacity, including on obesity and diabetes and HIV-related legal services.
To accompany the 2017 landmark report Advancing the Right to Health: The Vital Role of Law, IDLO and the University of Sydney together with WHO and the O’Neill Institute for National and Global Health Law at Georgetown University in 2018 published a Summary Guide and Update that was disseminated widely to public health law experts, mostly in developing countries.
In 2020, IDLO published Key Lessons from Advancing the Right to Health, as well as its Policy Brief: Rule of Law and COVID-19.
Policy Brief: Rule of Law and COVID-19 (2020)
The Vital Role of Law in the COVID-19 Response: Key Lessons from Advancing the Right to Health (2020)
Advancing the Right to Health: The Vital Role of Law (2017) & Summary Guide and Update (2018)
WHO, IDLO, the O’Neill Institute for National and Global Health Law at Georgetown University and Sydney Law School, University of Sydney