The COVID-19 pandemic is one of the most significant global public health crises since the Influenza Pandemic of 1918-20. The spread of the Coronavirus through every continent and major metropolis has led to unprecedented policy responses from governments both large and small. As a result, the human rights community is more closely scrutinizing the impact of these responses, while many company operations are more likely to overlap with the pandemic and evolving government policy in some way. The corollary of this dynamic could be considerable, not just in the near term, but for how rights are to be protected and respected in the future.
Governments Around the World Threaten Rights under Cover of COVID-19
The COVID-19 outbreak has led governments to rapidly impose restrictions on normal activities and movement, something deemed necessary to prevent a potentially exponential surge of infections and fatalities. COVID-19 is creating dangerous openings, however, for states to alter the orthodox design of their social contract with citizens. In many places, the need for an immediate and effective response has provided a rationale for governments of all types to consolidate their power over citizens, restrict speech and assembly, suspend constitutional process, rationalize closer surveillance of private activities, and apply disproportionate physical force.
In China, the government’s mandatory lockdown and surveillance of citizens, along with other public health interventions, have arguably helped prevent the virus from wreaking greater havoc in the world’s most populous country and other regions of the world. At the same time, the state’s response has lacked transparency, and the international community has criticized Chinese officials for undercounting asymptomatic individuals and underreporting on other epidemiological metrics. It has also allowed China to fortify an ideological narrative in which individual freedoms must be curtailed in the interest of national security and the collective good.
Government policies in Europe are also concerning. In France, there are reports of the police using the pandemic as license to harass and forcibly disperse gatherings of African and Arab immigrants, who already live in marginalized and under-resourced neighborhoods with limited access to medical care. Likewise, the legislature in Hungary passed a new law permitting Prime Minister Viktor Orbán to rule by decree for as long as the country’s public health emergency order is in effect — essentially suspending the democratic order there.
In Africa, many countries are ill-equipped to provision supplies and medical equipment when the virus besieges the continent. In Cameroon, the government suspended flights by aid and relief groups as part of its plan to prevent the pandemic’s incursion into the country. Cameroon’s population is particularly vulnerable to the crisis; its public health infrastructure is severely lacking and the country is already engaged in intense conflicts with Boko Haram and separatist groups. In South Africa, which has the most confirmed COVID-19 cases on the African continent, security forces have used excessive force against citizens when enforcing the country’s 21-day COVID-19 lockdown.
Latin American governments have leveraged COVID-19 to restrict the speech of political opponents and human rights activists. In Bolivia, a quarantine order issued by the government includes an overly broad provision that could allow authorities to prosecute individuals who criticize government policies. Elsewhere in the region, the Honduran Government responded to the crisis by promulgating a decree that revokes several articles of the Honduran Constitution, including Article 72, which protects the right to free expression without censorship.
In parts of North Africa and the Middle East, well-organized, mass protests demanding greater accountability and political representation have been disbanded due to the enforcement of lockdowns, and governments have used the pandemic as an impetus to further stifle free speech and media coverage. Although some governments in the region have released non-violent offenders from prisons, many continue to keep political prisoners and human rights defenders locked in overcrowded facilities.
In South Korea, the government has been relatively effective in containing the pandemic, but a new law allows authorities to employ broad surveillance powers, raising questions about epidemiological necessity and proportionality. Under the auspices of these new authorities, officials have pulled information from credit card records, phone location tracking, and security cameras—all without court orders—and combined it with personal interviews for rapid contact tracing and the monitoring of actual and potential infections.
The United States is no exception to this global trend. Federal and state governments have responded tepidly or not at all to activist demands that incarcerated individuals who are imprisoned for technical violations and non-violent offenses be released from prison. The Coronavirus could spread swiftly through U.S. prison facilities, which house the largest incarcerated population in the world. Federal and state governments are frequently failing to provide affordable health coverage for treating vulnerable populations, in particular African Americans, immigrants, and the poor. Meanwhile, public interest groups warn that the U.S. Government could use COVID-19 to further buttress the already immense powers of the U.S. surveillance and intelligence apparatus.
Civil Society Advocacy During COVID-19
Alongside public health professionals, the human rights community has entered into its own triage mode. NGOs and public advocates, accustomed to following government abuses in specific areas, are now forced to adjust their approach to account for such challenges within the context of an omnipresent and overwhelming pandemic.
In the wake of government responses to COVID-19, civil society organizations have given much greater attention to the relationship between public policy and rights. Activists are reporting increases in attacks against their community members, restrictions on expression and assembly, data intrusions and tracking, and hate speech targeting minorities. Organizations representing the rights of journalists are also observing a new round of attacks on reporters and media covering the pandemic.
Corporate Responses to COVID-19
Companies have also made changes to their operations and policies in response to the pandemic. Many businesses have waived fees and made it easier to obtain a refund, instituted emergency relief and exemptions for borrowers, revised their rules to make them more transparent and flexible, made multi-million dollar donations to support public health efforts, and redirected or repurposed some of their products to help boost the supply of medical equipment.
NGOs and watchdog groups, however, are increasingly concerned about possible situations where companies could be knowingly or inadvertently violating rights as they attempt to sharply attune their operations to COVID-19 and attendant government policies.
Some companies that provide teleconferencing services – a lifeline for families and business during the crisis – have been accused of instituting weak privacy protections and misleading users regarding the quality of their encryption technologies. Concern has also been raised that some social media platforms have been slow in removing hate speech and discriminatory content against groups stereotyped as vectors of the Coronavirus. Under certain conditions, the latter could lead to physical violence against members of populations most vulnerable during the crisis, such as ethnic and religious minorities, healthcare workers in close contact with COVID-19 patients, and individuals under quarantine order.
Corporate Responsibility and How Companies Can Respect Rights During COVID-19
Although companies cannot directly change government policies or be expected to contravene national laws, the current crisis does compel businesses to consider if their operations may be contributing to harmful impacts caused by states and how then they could be meaningfully addressed.
There are well-established international instruments, principles, and best practices that companies can follow when considering how best to respect human rights in the context of COVID-19.
The United Nations Guiding Principles on Business and Human Rights (“UNGPs”) set global human rights expectations for companies in the 21st Century. The UNGPs are designed to encompass the full ecosystem in which business enterprises conduct commercial transactions and maintain supply chains. The UNGPs are premised upon three pillars. The first pillar is that governments have a duty to protect human rights. The second pillar is that companies have a responsibility to respect human rights. The third pillar is that both governments and companies must provide a remedy when human rights are violated.
The corporate responsibility to respect human rights is primarily a responsibility to do no harm. This responsibility can be met in two ways. First, a company should avoid causing or contributing to adverse human rights impacts through its own commercial activities, and should address such impacts when they occur. Second, a company should seek to prevent or mitigate adverse human rights impacts to which it is directly linked. A business is deemed to be directly linked to a human rights impact when it has ties through its value chain to an entity that has caused an adverse human rights impact.
Companies can largely meet their responsibility to do no harm by reviewing their operations and supply chains to identify human rights risks; conducting human rights due diligence to prevent adverse human rights impacts arising from commercial activities; and mitigating, remedying, or otherwise addressing adverse human rights impacts that nonetheless occur.
Social media platforms, internet providers, teleconference service companies, and other ICT-based enterprises should also consider the standards set forth in the Principles on Freedom of Expression and Privacy of the Global Network Initiative (“GNI Principles”). Premised on international human rights norms, the GNI Principles provide member companies with non-binding standards and guidance for implementing them. Importantly, the GNI Principles state that member companies bear an express responsibility to respect and promote the freedom of expression and privacy rights of their users. In addition, GNI member companies should be able to demonstrate their efforts in this regard. ICT companies that are not GNI members would be best served by seeking to emulate these standards.
Companies can further fulfill their human rights responsibilities by publicly disclosing the steps they are taking to address challenges identified in their due diligence.
In addition to being integral aspects of the UNGPs, due diligence and public disclosure are salient precepts in other human rights standards. For example, The Voluntary Principles on Security and Human Rights – the only set of standards providing detailed guidance to natural resource companies regarding how to respect human rights in the provision of security at their operations – call on extractives companies to carry out regular due diligence on the potential human rights risks associated with the protection of natural resource assets. In addition, companies that implement the Voluntary Principles are encouraged, where possible, to publically disclose their efforts to address human rights issues that have been found through the due diligence process. Many governments are now also expecting companies to conduct some form of due diligence and commit to public transparency in order to enter into government contracts and partnerships.
In countries and regions where pandemic prevention policies have contributed to credible reports of human rights abuses, companies should be circumspect to ensure their local operations and supply chains are not contributing to those harms. When operational risks related to COVID-19 are determined to be likely, a company should be prepared to conduct targeted due diligence and a review of relevant policies. This could be complemented by public reporting on specific actions the company has taken to acknowledge and remediate COVID-related human rights challenges.
In addition, companies should consider taking the further step of discussing their due diligence efforts and findings with governments, human rights organizations, representatives of workers and vulnerable groups, and – where beneficial to public health planning – with the medical community.
The Coronavirus pandemic has stretched the resources of every institution across the globe. Governments bear primary responsibility for protecting human rights during the crisis, but their responses have also led to abuses. Although it may seem daunting for companies to factor their potential role in such abuses into their existing operations and policies, doing so will place them at the cutting-edge of best practice. It will also strengthen their capacity to adapt and respect rights in the face of future global crises.