Recently, the New Zealand government has introduced a range of measures which are designed to eliminate Covid19 from New Zealand. The measures have been drastic with most people being instructed to stay at home and most businesses being forced to close their doors. The measures appear to have successfully curbed the spread of the virus with the number of daily reported probable and confirmed cases dropping from almost 90 in early April to less than 20 in mid-April.
These measures could be seen as being the first example of express recognition by the New Zealand government of the right to health as a fundamental human right. It may also be the first time that the New Zealand government has fully implemented the United Nations’ Guiding Principles (UNGPs) on Business and Human Rights.
Although the right to health is codified in Article 12 of the International Covenant on Economic, Social and Cultural Rights and realising that right requires countries to take all necessary steps to ensure “the prevention, treatment and control of epidemic, endemic, occupational and other diseases”, the right to health is not recognised alongside other human rights in either the New Zealand Bill of Rights Act 1990 or other human rights legislation. Nevertheless, the government has relied on other sources of power to ensure due recognition of the right to health in its Covid19 response.
The UNGPs require government agencies to protect human rights, private corporations to respect human rights and for providing affected people with access to remedies. This is coined as the ‘Protect, Respect and Remedy Framework’. One of the requirements of this framework is that all businesses must carry out human rights due diligence. Currently, the New Zealand government has no plan for implementing the framework. Nevertheless, the Covid19 response may be seen as New Zealand’s first genuine attempt to introduce measures which are consistent with protecting the right to health as a fundamental human right. In the context of a global pandemic, the right to health trumps other competing human rights such as the right to education and the right to work.
Generally, the government should be applauded for the measures it has taken. However, there has been an arbitrary and ad hoc appearance to some of the measures. For example, under alert level 4, supermarkets have been classified as essential businesses and allowed to sell cigarettes and alcohol to the general public while bakeries and butchers have not been allowed to open their doors. If the right to health had been expressly recognised and the government developed a detailed plan for implementing the UNGPs, it is likely that this country would have been better prepared to meet the challenges posed by Covid-19.
A critical area which needs urgent attention is dispute resolution. Businesses and households are suffering significant financial losses. Although a degree of government assistance has been made available, it is inevitable that the Covid19 measures will give rise to a plethora of employment, property, insurance and family law disputes. It is unclear at this stage which institutions will be tasked with managing such disputes and how affected people will have access to remedy.
If people and businesses are denied effective remedies, it can be expected that recovery, if it occurs at all, will be limited in scope and will take longer. The economic and public policy factors in favour of effective dispute resolution are compelling. Providing for effective dispute resolution must be a key part of the government’s response to Covid19. And the earlier that dispute mechanisms are established and operational, the better. If we are going to go hard and go early in a united front against Covid19, then effective, accessible and affordable dispute resolution must be part and parcel of our collective response.