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Human Rights Law Must Help Shape Government Responses to COVID-19

Allison Corkery's blog post at Equal Times

June 4, 2020

Amartya Sen famously claimed that famines are not natural disasters, they are man-made. As we are now seeing, the same can be said for pandemics. There are a lot of nasty bugs in the world, as social-change strategist Dave Algoso recently observed, but it has taken a special cluster of institutional failures to get us to where we are today: over 6.2 million cases of COVID-19 and almost 380,000 deaths, so far, with tens of millions of people displaced, unemployed and impoverished. If we take a look at these failures through a human rights lens, we gain a new perspective on the responses we need – both in the midst of the pandemic, and in the future.
Human rights have not featured prominently in the countless discussions about COVID-19 and its impact. When they do, the focus has typically been on civil and political rights. Governments are being urged not to take – or to stop taking – coercive measures that restrict our rights unjustifiably. For example, the United Nations recently sounded the alarm about the “heavy handed” and “highly militarised” enforcement of social distancing in dozens of countries. One of the cases it cites is the Philippines, where 120,000 people have been arrested for violating the curfew.
This puts billions of people’s rights to health, to work, and to social protection at even greater risk. In country after country, we are counting the cost – in lives and livelihoods – of deteriorating public health infrastructures, precarious labour markets, undervalued care work, reduced social protection, and problematic global supply chains. All of these factors contribute to the pandemic’s rapid spread; a deadly virus has become deadlier.
It is easy to say what governments shouldn’t do when it comes to human rights; what they should do is often a lot less clear. This is one reason why – despite the focus on so many aspects of the pandemic by media, policymakers, campaigners and citizens – socioeconomic rights have received far less attention. For all our sakes, but especially for the most vulnerable, this needs to change.
Upholding human rights in a pandemic remains an obligation – and the law
Governments have a range of tools at their disposal to respond to the pandemic and discretion about how to deploy them. But this discretion isn’t absolute. Under international human rights law, governments must take measures targeted as clearly as possible towards protecting rights. In the context of COVID-19, such measures include: coordinating production and distribution to end shortages of supplies for testing and treatment; directing public investment to facilitate the development of safe, effective, and affordable drugs and vaccines; regulating to prevent stockpiling and price hikes; guaranteeing adequate income; prohibiting evictions; and alleviating other harms that may arise or be exacerbated by lockdown measures. Crucially, those whose lives and livelihoods are most at risk must be prioritised.
For hundreds of millions of people around the world, hunger is now a much graver concern than the virus itself. This stark fact shows us just how poorly socioeconomic rights have been addressed in the majority of response measures. The United States has seen an unprecedented demand for food assistance, for example, with aerial photos capturing staggeringly long lines outside food banks all across the world’s richest nation. In India and Nepal, the exodus of migrant workers has exposed failed social protection systems in both countries.
Under international human rights law, governments have obligations to us in three areas: how they raise money, how they allocate it, and how they spend it. Financing questions should also be part of the conversation when we talk about how human rights are being protected in COVID-19 responses. If governments don’t raise enough money or if it’s raised in a way that’s regressive, meaning poorer people are burdened more than richer ones; if government budgets fail to prioritise measures that protect socioeconomic rights, and in particular those of disadvantaged groups; and if money is spent in inefficient and wasteful ways, then people’s rights are being put at risk.
As inequality spirals, global conversations are needed more than ever
Take the case of South Africa. Strict lockdown measures had been in place for almost a month before the government unveiled its economic relief package on 21 April. After tireless campaigning by a broad coalition of civil society groups, the package included a temporary 500 rand (US$28.60) ‘top-up’ to the child support grant, which is a monthly cash transfer programme that reaches 13 million people. But this top-up was provided per carer, and not per child, which is what had been called for. The seemingly minor technical difference is hardly minor to the two million additional South Africans who will be left below the food poverty line. A decision such as this is difficult to justify when the relief package leaves potential domestic financing sources largely untapped. A wealth tax, for example, could raise at least R143 billion (approximately US$8.2 billion), some estimates suggest. That’s more than ten times the additional cost of extending the top-up to all children.
In a highly unequal globalised economy, some countries have more tools than others to respond to COVID-19. The world is in the grip of a race to the bottom over vital supplies. The result is price gouging and stockouts – and of far more than just toilet paper. Public laboratories in Brazil can’t source chemical reagents for testing because months’ worth of supplies have already been bought up by wealthier countries, for example. Worse still, the pandemic has been accompanied by a cascade of fiscal shocks – including economic recession, plummeting commodities prices, currency devaluation, significant capital flight, and increased borrowing costs. Countries in the Global South have been hit especially hard.
Individually, and as members of international institutions, governments are also obliged to cooperate internationally to safeguard the rights of those most at risk. In the COVID-19 context, international financial institutions, in particular, must be made fit for purpose. As Indian economist Jayati Ghosh has argued, this means finally abandoning their “market fundamentalist” conditionalities – such as liberalisation and deregulation – that prioritise the interests of global finance over people’s rights.
If we are to achieve meaningful action to protect socioeconomic rights, the discussion needs to involve more than just lawyers and other experts. We need to translate legal obligations into meaningful tools for framing popular demands. Around the world, when people call for justice, it is common to hear slogans like “healthcare is a human right” or “labour rights are human rights”. It is much less common to hear clear and compelling explanations of what these slogans mean, in terms of who has to do what to realise these rights.
When we say that something is a human right, we are saying that it is so essential, for everyone, that it must be guaranteed. As COVID-19 has shown, markets simply cannot do this. Blind faith in markets amounts to wilful neglect of human rights obligations in the economic arena. If there is a ray of hope amongst the darkness in this unprecedented global event, it is the growing conviction by countless people and communities around the world that we can – that we must – build a better future when we emerge from the pandemic. As we start to see space opening up to shift narratives about the role of government in resilient societies, it is clear that socioeconomic rights can play a central role in shaping this narrative.