By dr Katharina O 'Cathaoir, University of Copenhagen

In September 2020, twelve "cluster 5" cases of Covid-19 were identified in humans in North Jutland, Denmark. By November, new coronavirus mutations had passed from minks to around 200 humans, some in contact with minks and others without direct contact, meaning it is circulating in the population of North Jutland. A central concern is that some of the mutations appear to be less susceptible to antibody responses, which raised fears that the much-awaited vaccines would not be effective on this strain. However, it should be noted that this has been disputed and remains unproven.

Denmark has taken several drastic steps to halt the spread of the mutations and some countries, against the advice of WHO, have acted against Denmark. In this blog, I outline the main measures adopted to date and evaluate them from the perspective of human rights and international health law (The International Health Regulations).

Culling 17 million Minks

On 4 November, the government announced that it would cull the many millions of minks that are farmed in Denmark as that previous restrictions have been ineffective. Unbeknownst to many, Denmark is the world’s largest producer of mink skin. Given the size of the industry, the culling will have severe economic consequences for mink breeders.

This process has begun but two issues have arisen (1) the lack of legal basis for the cull (2) breaches of animal cruelty regulations.

Firstly, under the Danish Constitution and the First Optional Protocol to the European Convention on Human Rights (ECHR), property is protected as a right and expropriation thereof must be provided for by law, required by the common good and include “full compensation” under the Danish Constitution. A proportionate balance must be found between the public interest (here the protection of public health) and the individual right (to property).

However, when the Prime Minister, Mette Fredericksen ordered the culling, there was no provision in law to destroy healthy mink, but only those that were sick. Subsequently, Fredericksen announced her intention to introduce “fast tracked” legislation to provide a legal basis for culling all mink but was not met with enthusiasm from the other parties, who cited the lack of evidence and the need for time to reflect. Despite this, the Food Safety Authority continues to advise that all minks should be destroyed and farmers are offered a bonus for completing this between 6-16 November 2020.

The “mink crisis” show that cracks have appeared in the paper-thin political unity that emerged in the Spring when the Parliament rapidly agreed to give the Minister for Health wide reaching powers to impose restrictions on private and business life. It furthermore raises the question of how much evidence is needed to justify far reaching limitations of human rights, such as the right to property. The State Serum Institute considers that without culling the population, they will pose a significant risk to public health. Coupled with this risk, states have obligations to protect the rights to health and life. How much evidence is sufficient, and can the world afford to risk another novel disease outbreak?

Secondly, a graphic video emerged of the inhumane killing of minks by employees of the Danish Food and Veterinary Administration, leading an animal rights organisation to report the conduct to the police. The crisis is a reminder that improving the conditions of caged animals is part of pandemic preparedness and that zoonotic leaps are the cause of the emergence of covid-19, Ebola and others. Yet, although some countries are moving to ban mink farming, the government has stated that it does not intend to ban the industry but will prohibit caging of minks from 2021.

New restrictions on movement

The government has also implemented stricter restrictions in the affected region than the rest of the country in an attempt to reduce community transmission of the new mutations. As with the rest of Denmark, a ban on gatherings of over 10 persons applies, but in North Jutland there are no exceptions, whereas in the rest of Denmark, sports and certain activities for under 21s are exempted. Restaurants, cafes and bars are forced to close but can provide take away. Other cultural institutions, like museums and theatres, are closed. Universities and schools (only classes 5-8 where the infection rate is high) must move to online teaching.

Denmark’s border restrictions are also tightened; non-residents/ citizens must have a “valid purpose” to be permitted to enter Denmark and entering Denmark to work in the affected regions is no longer allowed. However, it is not an absolute ban, several valid purposes remain, such as traveling to visit a partner or critically ill family and to a funeral.

These restrictions impose limitations on right to private life and therefore must be justified. The government appears to be finding a reasonable balance between the public health threat and the incursions on liberty. However, given the exceptions, it remains to be seen whether the new mutations can be contained and eradicated.

Beyond legal restrictions, the government is also relying on recommendations. For example, individuals are asked to have contact with as few persons as possible. Non-essential workers should be sent home. Everyone is asked to remain in their municipality of residence unless there are critical reasons for leaving. None of the recommendations are legal mandates and they cannot be enforced or sanctioned if not followed.

From a human rights perspective, it is positive that the authorities seek to govern through consent not coercion. In many countries, we observe a recourse to criminalisation and draconian restrictions on human rights, such as the right to free movement or liberty. Such restrictions, as discussed above, must meet human rights criteria, such as, necessity and proportionality.  The Human Rights Committee has found that limitations on movement:

must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected (General Comment No. 27, para 14).

However, even mere recommendations when combined with the other measures, can result in de facto restrictions on movement without legal guarantees. For example, on the first day of the restrictions, public transport was only open to school children, meaning that those who must work and are without transport are forced to pay for transport, one doctor who lives 40 km from the hospital where she works reports paying 600 DKK/ 80 euro per trip. The Minister for Transport quickly reversed this decision, stating that essential workers will be allowed to use public transport. However, the movement of other individuals without private means of transport will be de facto restricted. It is vital that individuals receive adequate support, in particular the elderly and those at risk of violence.

Increased testing & Increased sequencing of covid infections

Beyond the restrictions, the government is also adopting positive actions with all residents over 2 years old in the affected municipalities being asked to voluntarily take a covid test. Furthermore, the government has committed to increased sequencing of human and mink covid infections to monitor and better understand the new mutations. As always, testing is free. Even though Denmark has one of the highest covid testing rates in the world, many are making use of this opportunity and there are currently long wait times. The offer of mass testing underscores that restrictions alone are insufficient and must be accompanied by public health measures to protect health. It is important that testing is transparent, however, meaning that individuals are clearly informed that testing is voluntary and of the opportunities to opt out of scientific research on any remaining biological material.

Danes locked out?

Although WHO advises against travel or trade restrictions against Denmark, restrictions have been imposed.  Several countries, like Norway, have implemented stricter quarantine rules for travellers from Denmark. The severest approach to date has been the United Kingdom, which prohibits entry from Denmark, unless one has British citizenship or residence. Freight drivers and airline staff who have entered Denmark in the last 14 days are also banned. This extreme approach is being argued as precautionary but as with all travel bans, it is not absolute and thereby unlikely to halt the spread.

However, borders are a deeply political arena, where states have a wide margin in deciding to limit entry. In a case on residence permit restrictions imposed by Russia on persons with HIV, the ECtHR disavowed the impugned restrictions, but suggested that restrictions to limit infectious diseases could be in compliance with the ECHR:

“travel restrictions are instrumental for the protection of public health against highly contagious diseases with a short incubation period, such as cholera or yellow fever or, to take more recent examples, severe acute respiratory syndrome (SARS) and “avian influenza” (H5N1). Entry restrictions relating to such conditions can help to prevent their spread by excluding travellers who may transmit these diseases by their presence in a country through casual contact or airborne particles. (Kiyutin v. Russia 2011, para 68)

Thus, the measure is probably in compliance with the ECHR. However, it may conflict with WHO’s International Health Regulations, which underscore that public health measures “shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection”. For example, the UK could require entrants to produce a negative covid test and quarantine. The situation is also another example of Member States ignoring WHO recommendations and can undermine the organisation’s legitimacy.

Conclusion

With rising infection rates, the new mutations are of concern. Faced with the risk of becoming the next ground zero, the Danish government is reacting quickly to quell the spread of the new mutations and gather more knowledge on the implications for human health and forthcoming vaccines. The new mutations highlight yet again the need for adequate surveillance and testing and Denmark can be commended for its advanced infrastructure that detected and traced the mutations. It is also positive from the perspective of the right to health that free, voluntary mass testing is being offered.

However, several human rights issues are of concern. Firstly, the government does not have a legal basis for destroying healthy minks and instead of using the democratic process, it is acting based on the perceived risks to human health. During the Covid-19 pandemic, states have adopted wide reaching restrictions on human rights without scientific evidence, and this must have limits. Is the destruction of millions of unaffected animals a necessary and effective means of eliminating the risk? Could better hygiene measures and improved conditions for the animals stop the spread? Secondly, the month-long restrictions and recommendations directed at the people of North Jutland while probably proportionate must be accompanied by positive measures that ensure adequate support for those vulnerable to violence, isolation and loneliness. Finally, the restrictions imposed by the UK underscore that governments continue to impose unilateral measures in contradiction to WHO’s recommendations and the IHR.

Katharina Ó Cathaoir is assistant professor in health law at the University of Copenhagen and PI of Legislating Corona: Proportionality, Non-Discrimination and Transparency (PRONTO) funded by Independent Research Fund Denmark (Grant number: 0213-00025B)