COVID-19 and Economic, Social and Cultural Rights
COVID-19 and Economic, Social and Cultural Rights
In this contribution I would like to take look at the response to the COVID-19 pandemic from the perspective of a UN human rights treaty body, namely the Committee on Economic, Social and Cultural Rights, which, because of its mandate, has a particular responsibility in this respect.
A pessimistic view tells us that the lessons of history are primarily relevant to the chronicles and, unfortunately, less to the shaping of our lives. It would be interesting to examine to what extent the international community has learned from its responses to successive global crises, whether in the fields of security, economy, climate or health, that human rights standards and methodologies promise not only human-oriented responses, but can also make them more effective and sustainable.
Indeed, one of the main considerations behind the Committee on Economic, Social and Cultural Rights (CESCR)'s response to the COVID-19 pandemic, apart from its scale and severity, seems to have been the observation that the international community, individual states and even, to a certain extent, large sections of civil society are inclined to view the response to a crisis affecting human rights on a large scale mainly in an operational sense and, under its pressure, to accept measures that have a negative impact on human rights not only in a time of emergency but also in the medium and long term. Not to mention the fact that at the same time the potential of human rights-based approaches to meet the related challenges is often deliberately set aside as a factor that hinders the main task, namely to counteract imminent risks through operational steps at the expense of possible continuing consequences for the people's situation. Real dilemmas are at stake here. We saw them after the terrorist attacks in the United States and London in 2001, when security considerations determined the initial response and overshadowed the impact of control measures on personal freedom—an approach that many supported. This was also largely the situation during the economic and financial crisis following the collapse of Lehman Brothers Bank in 2008, when tightening budgets, including austerity measures and fiscal incentives, was at the forefront of the fight against the economic downturn and human rights standards and principles remained in the shadows, at least for some time.
It is essential that voices calling for such an attitude to be corrected, and for a return to the essentials of human rights, including in times of need, be raised in a timely and vocal manner. This was not the first time that the CESCR has responded in this way to emergencies faced by the international community. Let’s recall for example the Statement on duties of states towards refugees and migrants under the Covenant adopted in 2018, the Statement on climate change adopted in 2018, the Letter of 2012 on the admissibility of austerity measures under the Covenant in the context of global economic and financial crisis, and the Statement on the world food crisis adopted in 2008.
The CESCR did not have the opportunity to profoundly examine various human rights aspects of the COVID-19 pandemic during its review of state parties reports on the implementation of the International Covenant on Economic, Social and Cultural Rights at its last session since the dialogues with the governmental delegations concluded in February. Nevertheless, by 6 April 2020 the Committee issued its Statement on the coronavirus pandemic and economic, social and cultural rights.
This Statement should be read in the light of the general doctrine developed by the CESCR in the area of the right to health. Let us recall that Article 12.2 "c" of the Covenant, which establishes this right, contains a clear obligation for states parties to take steps that are necessary for ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’. In its General Comment No 14 on the right to health (2000), the Committee elucidates that such measures should include:
- individual and joint efforts by states to combat such diseases, including, for example, the provision of relevant immunisation programmes and other strategies to control infectious diseases and relevant technologies; the use and improvement of epidemiological surveillance and data collection; adequate response to any threat identified by epidemiological data, including the provision of urgent medical care; the provision of disaster relief and humanitarian assistance
- the establishment of prevention and education programmes for behaviour-related health concerns
- the promotion of social determinants of good health, such as environmental safety, education, economic development and gender equity.
In the case of COVID-19, the general interpretations of the Committee on the core obligations of states parties with regard to the right to health are also applicable. They include:
- adopting a national public health strategy and action plan based on epidemiological evidence, taking into account the health concerns of the whole population and developed in a participatory and transparent process
- ensuring that such a strategy and plan pay particular attention to disadvantaged and marginalised groups
- putting in place mechanisms for monitoring the implementation of such strategies and plans, including the use of right to health indicators and benchmarks.
The impact of certain epidemic diseases has also been addressed in several other general comments of the Committee. HIV/AIDS was referred to particularly frequently, mainly in order to counteract discrimination and stigmatisation of those affected and to provide them with appropriate care.
The CESCR Statement on COVID-19 covers a number of issues and formulates a set of basic recommendations addressed to governments, civil society and the international community, such as:
- the urgent need for adequate investment in public health systems, comprehensive social protection programmes, decent work, appropriate housing, food, water and sanitation. The chronic underinvestment in public health services and other social programmes was further deepened by the 2007-2008 global financial crisis. Without such investment, an effective response to global pandemics and related forms of inequality both within and between countries will be impossible.
- COVID-19 has dramatically demonstrated the importance of measures to protect disadvantaged and marginalised groups, including the elderly, people with past health problems and weakened immune systems. Another category of people who suffer from increased susceptibility to infection are groups living in special environments such as residential or community care facilities, prisoners and detainees, and residents of informal settlements without adequate access to water, sanitation or hygiene products, COVID-19 testing, health services and relevant information. Similar risks are faced by indigenous peoples, refugees and asylum-seekers, and people living in countries or regions affected by conflict. Consequently, the high incidence of chronic diseases and poor general health in all these populations contribute to an increased risk of serious health complications from COVID-19.
- The Committee calls for urgent measures to address the needs of certain categories of workers who are at increased risk of infection because their occupation does not allow them to work from home or because the nature of their work requires exposure, such as delivery workers, waste collectors, workers and farmers. Last but not least, a separate risk group, which must be helped accordingly, are healthcare workers. Not only are they doing the ‘heroic work’ that is central to combating the pandemic, but they are also often overburdened, inadequately equipped and unnecessarily exposed.
- States should fully recognise and address the immediate danger that the inadequate availability of public goods and social programmes will ultimately exacerbate global income and wealth disparities. It goes without saying that people living in poverty cannot afford to buy the goods and services needed in a pandemic on the private market.
- In countries where schools, colleges and universities are closed, efforts are being made to continue teaching and learning online. These are important measures to mitigate the impact of these closures on the right to education. However, they also risk exacerbating educational inequalities between rich and poor students due to inequality of access to affordable online services and devices such as computers, smartphones and tablets. This requires not only attention but also action by public authorities.
The Committee also stresses that COVID-19 threatens to exacerbate gender inequality, as the burden of caring for children and sick or elderly family members at home is disproportionately heavy on women, given the stereotypes and gender roles still deeply rooted in many societies. In this context, let us also point out the certainly unintended consequences of epidemiologically-correct measures aimed at preventing the spread of the virus by isolating people in their homes for long periods of time. Numerous reports point to serious psychological consequences of such measures, including the increase in domestic violence. All this makes it necessary to prepare systematic measures that can be used in emergency situations to support those affected, such as assistance in the case of post-traumatic shocks, which occur to an exceptional degree during and after COVID-19.
The COVID-19 crisis, like other major crises, poses a structural challenge to human rights that goes beyond the increased risk to certain rights, in this case above all the right to life and health. They are linked to the abuse of power in the name of the fight against the pandemic and to the limited access to justice.
The CESCR Statement stresses that any regulatory interference in the exercise of human rights during the pandemic must be in line with the requirements set out in the Covenant. In view of Article 4 of the Covenant, measures to combat a pandemic are only permissible if they are prescribed by law, are compatible with the nature of the Covenant rights and are taken solely to promote general well-being in a democratic society. According to the Committee, this means that such measures under COVID-19 must be, firstly, necessary to combat the public health crisis caused by the pandemic, secondly, appropriate and, thirdly, proportionate. ‘Emergency measures and powers taken by states parties to combat the pandemic must not be misused and should be revoked as soon as they are no longer necessary to protect public health.’
The Committee also emphasises that the response to the pandemic must be based on respect for the inherent dignity of all human beings and must give priority to compliance with the minimum core obligations of states set out in the Covenant. The emergency situation cannot justify denying access to justice and effective remedies, which are not a luxury but an essential element in the protection of economic, social and cultural rights. They play a particularly important role in protecting the weaker and most marginalised groups in society. The Committee illustrates this recommendation by referring to the obligation for law enforcement officers to respond adequately to domestic violence, to ensure the functioning of domestic violence hotlines and to provide access to justice and legal remedies for women and children who are exposed to domestic violence.
The recommendations contained in the Statement concerning access to justice during COVID-19 should be read in the context of the Committee's general interpretations concerning institutional and procedural guarantees of economic, social and cultural rights. The Covenant does not provide literally for an obligation on states parties to provide such guarantees. This is due to the fact that in some circles the subjectivity and justiciability of economic, social and cultural rights (ESCR) was questioned at the time the Covenant was drafted, which fortunately has since been overcome.
This is the Committee’s firm position that ‘there cannot be a right without a remedy to protect it’ (General Comment 9). Adequate procedures and due process are essential aspects of all human rights (General Comment 7). The rights in the Covenant should be directly applicable at the domestic level to enable individuals to seek their enforcement in national courts and to ensure that the conduct of the state is consistent with its obligations under the Covenant (General Comment 9). All victims of violations should be guaranteed adequate compensation, which may take the form of restitution, compensation, satisfaction or a guarantee that no similar violation will occur in the future (General Comment 14). The Committee also fully recognises that extrajudicial measures and procedures have a significant impact on compliance with the ESCR (in particular national human rights institutions, public forums, civil society organisations and human rights defenders in general). The case law under the Optional Protocol to the Covenant fully confirms the above-mentioned approach of the Committee (see, for example, the case of I.D.G. v Spain).
It is to be hoped that the Committee's statement will help governments, civil society and other stakeholders in their efforts to combat the COVID-19 pandemic in accordance with the letter and spirit of economic, social and cultural rights. In fulfilling its intention to monitor the impact of the COVID-19 pandemic on these rights and building on the expertise gathered, the Committee will be able to contribute to the protection of human rights in current and future emergencies—in the spirit of international cooperation the central value of which the Statement highlights with full force.
Cite as: Kędzia, Zdzisław. "COVID-19 and Economic, Social and Cultural Rights", GC Human Rights Preparedness, 30 June 2020, https://gchumanrights.org/preparedness/article-on/covid-19-and-economic-social-and-cultural-rights.html
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