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Protection from COVID-19: a Right to Health

Date:26 March 2020

By Nikee van der Gouw - former LLM student Public International Law & Master International Human Rights Law at the University of Groningen,

“It takes a community to provide immunity.”

In recent years, research has shown that international non-vaccination rates have contributed to currently increased rates of infection. The spread of the new respiratory disease COVID-19 has led to governments taking precautionary measures in order to ‘flatten the curve’ or, in other words, lift the burden on hospitals by slowing down the virus’s infection rate. These infection rates have to do with “herd immunity”, defined by The Centres for Disease Control and Prevention (CDC) as: “A situation in which a sufficient proportion of a population is immune to an infectious disease (through vaccination and/or prior illness) to make its spread from person to person unlikely. Even individuals not vaccinated (such as newborns and those with chronic illnesses) are offered some protection because the disease has little opportunity to spread within the community.”

States have a positive obligation to ensure the populations’ ‘highest attainable standard of health’ according to the World Health Organization (WHO), and thus have a duty towards taking measures with regards to the spread of COVID-19. This has highlighted the debate on whether individual human rights, such as the freedom of movement, prevail over the rights of public health and thus the community. The freedom of choice of individuals in this case conflict with the promotion of the public and even global health. Vulnerable groups, such as the sick and elderly, are at greater risk during this crisis. Governments have an obligation to protect these vulnerable groups as the right to health not only contains freedoms of rights, but also entitlements. These entitlements include the prevention and control of diseases, in this case leading the government to apply measures restricting companies and shutting down schools, the catering industry and gyms.

Non-discrimination and equality are fundamental human rights and critical components to the right to health. These rights imply that States must recognize and provide for the differences and specific needs of groups that face particular health challenges, such as vulnerability to specific diseases. The Committee on Economic, Social and Cultural Rights has made it clear that a lack of protection of vulnerable members of society from health-related discrimination must be avoided, leading to an obligation for States to develop vaccines and conduct research through international cooperation. The vaccine for COVID-19 might not be developed within a year, leaving the government little choice but to take other additional measures. By subjecting healthy individuals in a consistent and controlled manner, the government’s aim of flattening the curve could have an additional side-effect; individuals could become immune to the COVID-19 virus. If eventually the majority of the population gains immunity, this will protect the most vulnerable groups which in this case are the sick and elderly.

Herd immunity leads to the protection of vulnerable groups, which leads to stronger results of other interventions by the government. There is a difference between a total lockdown and the measure of leading and controlling the intervention, the latter being the most recent choice of the Dutch government. According to Dutch government officials, a total lockdown would not lead to the expected and desired result of exterminating COVID-19 and would have disproportionate side effects. By investing in maximal control, the government aims at achieving herd immunity as a side effect of flattening the curve. However, it is important to realize that the measures taken are an important help in fulfilling States’ obligations, but in no way a goal in itself to protect vulnerable individuals against COVID-19. Rather, herd immunity might be a consequence due to the uncontrollable nature of the virus. This means that not every individual in the Netherlands will develop immunity, but it can contribute to combatting the virus.

Science is constantly developing. As such, this moment has presented itself as an opportunity to reevaluate. The behavior has proven an extremely important component in this situation. Social distancing is a way of contributing to the prevention of spreading and ultimately, the reintroduction of COVID-19. Citizens need to realize the urgency of behaving in a social coherent manner in this crisis situation. With the Netherlands being an individualistic society, we might learn a thing or two in collectivism. The most sufficient method to prevent the spread of COVID-19 is a collective, calm and coherent approach. According to the WHO international cooperation, collaboration and solidarity are needed. As such, the Dutch population has to act accordingly in order to prevent being a source of infection for another person.