Table 5: TB and Freedom of Movement
Examples of Human Rights Violations
- TB patients under quarantine or isolation or in detention are unable to freely move or reside in a country, or to leave and return.
- People exercising freedom of movement for work are denied TB services because they lack identity documents.
|Human Rights Standards||Treaty Body Interpretation|
|ICCPR 12(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. (2) Everyone shall be free to leave any country, including his own. (4) No one shall be arbitrarily deprived of the right to enter his own country.||None.|
WHO Guidelines for the programmatic management of drug-resistant tuberculosis (WHO, 2011):
Recommendation 6. Patients with MDR-TB should be treated using mainly ambulatory care rather than models of care based principally on hospitalization …
WHO Guidance on ethics of tuberculosis prevention, care and control (WHO, 2010):
Involuntary isolation and detention as last-resort measures. Isolation or detention should be limited to exceptional circumstances… Isolation or detention should never be implemented as a form of punishment. Patients who decline treatment and who pose a risk to others should be made aware in advance that their continued refusal may result in compulsory isolation or detention….
If, in a rare individual case, a judgement is made that involuntary isolation or detention is the only reasonable means of safeguarding the public, it is essential to ensure that the manner in which isolation or detention is implemented complies with applicable ethical and human rights principles. As set forth in the Siracusa Principles, this means that such measures must be:
- in accordance with the law;
- based on a legitimate objective;
- strictly necessary in a democratic society;
- the least restrictive and intrusive means available; and
- not arbitrary, unreasonable, or discriminatory….
In order to make sure that these principles are followed, countries should review their public health laws to ensure that they carefully limit the scope of government authority and provide due process protections for individuals whose liberty may be restricted. In addition, in order to minimize the danger of arbitrary enforcement, countries and TB programmes should develop clear criteria and procedures for the use of non-voluntary measures, with involvement from TB patients and civil society.
Recommendations to ensure the diagnosis and treatment of tuberculosis in undocumented migrants (Int’l Union Against Tuberculosis and Lung Disease, 2008):
Recommendation 1. Health authorities and/or health staff should: a) ensure easy access to low-threshold facilities where undocumented migrants who are tuberculosis suspects can be diagnosed and treated without giving their names and without fear of being reported to the police or migration officials, b) remind health staff that they have an obligation to respect confidentiality,
Recommendation 2. Each country should ensure that undocumented migrants with tuberculosis are not deported until completion of treatment, and
Recommendation 3. Authorities and the non-governmental sectors should raise awareness among undocumented migrants about tuberculosis, emphasising that diagnosis and treatment should be free of charge and wholly independent of migratory status.
WHO Guidance on human rights and involuntary detention for XDR-TB control (WHO, 2007):
In this regard, if a patient wilfully refuses treatment and, as a result, is a danger to the public, the serious threat posed by XDR-TB means that limiting that individual’s human rights may be necessary to protect the wider public. Therefore, interference with freedom of movement when instituting quarantine or isolation for a communicable disease such as MDR-TB and XDR-TB may be necessary for the public good, and could be considered legitimate under international human rights law. This must be viewed as a last resort, and justified only after all voluntary measures to isolate such a patient have failed. A key factor in determining if the necessary protections exist when rights are restricted is that each one of the five criteria of the Siracusa Principles must be met, but should be of a limited duration and subject to review and appeal.
General Comment No. 27: Freedom of movement (Art.12) (UN Human Rights Committee, 1999):
Para. 16. States have often failed to show that the application of their laws restricting the rights enshrined in [ICCPR article 12] are in conformity with all requirements referred to… The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality.
Para. 18. The application of the restrictions permissible under article 12, paragraph 3, needs to be consistent with the other rights guaranteed in the Covenant and with the fundamental principles of equality and non-discrimination. Thus, it would be a clear violation of the Covenant if [these rights] were restricted by making distinctions of any kind, such as on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. CCPR/C/21/Rev.1/Add.9 (1999).
Siracusa Principles (UN Economic and Social Rights Council, 1985):
Article 25. Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.
Article 26. Due regard shall be had to the international health regulations of the World Health Organization.
Article 39. A state party may take measures derogating from its obligations under [ICCPR Art. 4] only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation.
Article 70. Although protections against arbitrary arrest and detention (Art. 9) and the right to a fair and public hearing in the determination of a criminal charge (Art. 14) may be subject to legitimate limitations if strictly required by the exigencies of an emergency situation, the denial of certain rights fundamental to human dignity can never be strictly necessary in any conceivable emergency. E/CN.4/1985/4 (1985).