Significance of a Human Rights-Based Approach to COVID-19 ResponseWed, Jan 20, 2021
Professor, Faculty of Social Sciences
It is often pointed out that inequalities and discrimination within society are exacerbated in the case of emergencies such as epidemics and disasters. Viruses and disasters themselves do not discriminate, but their impact on people and society do.
The COVID-19 pandemic has had a great impact on the lives of many people and economic activities around the world. Such impact is especially serious for vulnerable people and groups in each country or region. Therefore, it is important to take public health measures to protect the lives and health of all the people as well as to take measures to mitigate the impact on the rights of vulnerable people and groups in an emergency situation. These include the economic and social rights, for example, the right to an adequate standard of living, including adequate food, clothing and housing, as well as the right to work and education.
Furthermore, it is also necessary to deal with discrimination against certain groups, hate speech, xenophobia and gender-based violence, which are exacerbated during times of emergency. To protect human rights is a duty of each government as well as to respect human rights is a fundamental key to successfully addressing infectious diseases . Therefore, it is critical to implement and evaluate the measures to respond COVID-19 from a human rights-based approach.
International Human Rights Standards Related to COVID-19 Response
There are various international documents which mention the significance of a human rights-based approach on public health emergencies. The World Health Organization (WHO) declared a Public Health Emergency of International Concern for the novel coronavirus on January 30, 2020. This declaration is based on the International Health Regulations 2005 (IHR 2005) of the WHO, which is legally-binding on 196 countries, including Japan. The IHR balance not only health with trade, but also health with human rights . Article 3 of the IHR provides that member states must have “full respect for the dignity, human rights and fundamental freedoms of persons”, guided by the UN Charter and the WHO Constitution. The IHR also have “universal application for the protection of all people of the world” (Article 3). Furthermore, the IHR also require member states to protect the rights of “travellers” (Article 23, 32 and 45) as well as ensure the informed consent, transparency and non-discrimination in the application of health measures under the Regulations (Article 42).
Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides “the enjoyment of the highest attainable standard of physical and mental health (the right to health)”, and State Parties including Japan are required to implement without discrimination effective measures to prevent, treat and control epidemic diseases.
At the same time, isolation, quarantine and other measures taken by State Parties to realize people’s right to health may limit people’s rights and freedoms, such as the freedom of movement, the right to physical integrity, and the right to privacy. Thus, State Parties may limit certain rights and freedoms under certain conditions, but these limitations are not permitted without any restriction.
The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (ICCPR) is an important interpretive instrument on these limitations of rights and freedoms. The Principles state that; limitations shall be (1) provided for by law, (2) based on and proportionate to a legitimate objective, (3) strictly necessary in a democratic society, (4) the least restrictive measures available, and (5) not arbitrary, unreasonable, or discriminatory .
Human Rights Challenges in Japan
Regarding the human rights situation in Japan, while there are countries that make strict regulations limiting people’s rights and freedoms, the Japanese government makes relatively less strict regulations that request people’s self-restraint. But such less strict regulations also have significant socioeconomic impact on people’s life and livelihood. It is reported that a lot of workers, especially non-regular employed and self-employed or freelancers as well as single-mother workers have been forced to change their employment status or take a leave of absence and a decrease in income .
In addition, discrimination against patients, at-risk populations and their family members is a more serious problem in the Japanese community with strong peer-pressure . For example, in Iwate prefecture where the first coronavirus case was confirmed at the end of July, the company at which the patient worked, received a lot of slandering phone calls and emails and the company’s server went down. In Shimane prefecture, when almost 100 high school students who belonged to the football club were infected, the high school received a lot of phone calls which criticized and slandered the school and students. The students were also criticized and their face photos were distributed on the internet and social media. False information has also been distributed on the internet and social media, and a restaurant in Mie prefecture was forced to be closed due to such false information.
Furthermore, discrimination against health professionals has been extremely serious. It has been reported that there have been a lot of discriminatory cases against health professionals and their family members. For example, there have been cases of refusal of entry into taxis, to be allowed to enter restaurants and to see doctors. There are some cases that health professionals’ children have been refused to be allowed to attend nursery school, and children were bullied and isolated at school as well as family members suspended from work .
As the number and extent of the human rights violations cases which have been identified has been very limited as of yet, it is necessary to monitor human rights violations and human rights negative impact on all vulnerable groups nationwide. It is important to collect the disaggregated data to guard against discrimination based on sex, age, income, ethnicity, disability, and other status. In this regard, the Japanese government has set out a new Working Group on Prejudice, Discrimination and Privacy under the Novel Coronavirus Expert Meeting of the Cabinet Secretariat in September 2020. The aim of the Working Group is to investigate the actual situation of prejudice and discrimination and violations of the right to privacy. In addition, a Study Group on the Impact and Issues of COVID-19 on Women was also established at the Gender Equality Bureau of the Cabinet Office.
Another challenge to human rights is to amend related legislations. As previously mentioned, discrimination against patients and so forth is a serious problem in Japan and it is necessary to develop the legal system to prohibit discriminatory treatment and protect and support victims. Recently, there are some municipalities, such as Tokyo, Nagasaki, Gifu, Tottori and Okinawa that have amended their ordinances on Measures against COVID-19 in order to prohibit discriminatory treatments and slander against patients and so on. This movement in some municipalities would contribute to develop the legal system of central and other local governments, and it is necessary to continue to pay attention to the movement and its applications.
Additionally, Japanese universities, including Waseda University, should also develop their research and education in the area of health and human rights like American and European universities. There has been a lot of discrimination based on health status in Japan; for example, discrimination against persons affected by Hansen’s disease (Leprosy) and their family members, persons with mental and physical disabilities, Minamata and other pollution’s victims, persons affected by nuclear disaster in Fukushima and so forth. Furthermore, it has been pointed out that health inequalities have widened with the expansion of social disparities in Japan. To establish an international, interdisciplinary and practical research institute that deals with these issues from a human rights-based approach is required.
 OHCHR, COVID-19 Guidance. May 2020. https://www.ohchr.org/EN/NewsEvents/Pages/COVID19Guidance.aspx
 Lawrence O. Gostin, “Global Health Law”. Harvard University Press, 2014. 183.
 UN Doc. E/C.4/1984/4; ibid. Gostin, 256.
 The Japanese Trade Union Confederation (RENGO), Report related to COVID-19. April 2020; The Japan Institute for Labour Policy and Training, Survey on Impact of COVID-19 on Employment. July and August 2020; The Japan Institute for Labour Policy & Training, Employment Trends and Employment/Labor Measures of Japan Affected by Spread of COVID-19. June, July, August 2020; Single Mothers Forum Single Mothers Survey Project Team, Rapid Survey of COVID-19 and Worsening Life of Single-Mother Households. August 2020.
 The Working Group on Prejudice, Discrimination and Privacy, Summary of discussions. November 2020; and newspaper articles by Asahi, Nikkei, Yomiuri, Mainichi, Kyoto, Saga, Kahoku etc.
 The Japan federation of Medical Worker’s Unions, Report of Fact-Finding Survey on COVID-19. April and November 2020.
This piece is based on an article in Social Security (Shukan Shakai Hosho), “Human Rights Protection in a Public Health Emergency–Considerations for COVID-19 Measures”; and a presentation given to the U.S.-Japan Institute seminar “The COVID-19 Pandemic: Human Rights and Public Health in Japan and the United States,” September 11, 2020.
Tokuko Munesue, PhD is a professor at the Faculty of Social Sciences of Waseda University. Her specialization is social security law and international human rights law, particularly health and human rights. Her research focuses on the normative contents and obligations of the right to health; ‘Policy Approach’ of human rights and human rights impact assessment mainly in relation to economic and social rights; cancer control and patients’ rights; nuclear disaster management and human rights; and support systems for victims of gender-based violence.