The realities of containment as a mitigation strategy against he spread of COVID-19 has become the basis for national measures across the Globe. This was emphasized by the American official, Dr Anthony Fauci, the head of the infectious diseases unit at the National Institutes of Health in an explanation for transmission through global news media.
While many focus on macro issues with respect to the consequences of COVID.19 (and thus also of planning for future iterations of epidemics of known capacity), relatively little attention has been paid to the micro effects of the COVID-19 epidemic, and especially of its impacts on individuals who are neither large enterprises, rich states, or wealthy individuals or families. All of those creatures are quite capable of taking care of themselves--though their own folly may be as much a catalyst of triumph or disaster as any outside intervention. As for the factory worker, the school teacher, the office worker or lower level manager, for these individuals and their families, the risk and consequence parameters are of a slightly different order. Indeed, even the student, who must adapt to the policies of a university that is balancing the risks of operating as normal against the need to ensure the continued flow of income, will tend to balance those opposing choices against the valuation of the extent to which they might export the "costs" of the choices onto students (especially) with collateral subsidizes by faculty and staff.
As the outbreak spreads, daily life has been increasingly disrupted, with concerts and conferences canceled and universities telling students to stay home and take classes online. To contain the outbreak in China, the government quarantined millions of people for weeks. Italy has announced similar measures, locking down 16 million people in the north of the country. Fauci said he did not think the US would impose total shutdowns - but said 'anything is possible'. 'We have to be realistic. I don't think it would be as draconian as nobody in or nobody out,' he told Fox News Sunday. 'But if we continue to get cases like this, particularly at the community level, there will be what we call 'mitigation,' where we have to essentially do social distancing, keep people out of crowded places, take a look at seriousness, do you really need to travel, and I think it's particularly important among the most vulnerable.' (Top coronavirus expert Dr Fauci says four million tests should be available by end of the week, as he warns Americans to avoid crowds and brace for quarantines as death toll rises to 21 with two new victims reported at Washington nursing home)This post briefly suggests the relevance of current work on linking human rights to private household indebtedness in the context of national macro-economic regulation to the question of the human rights effects of public and institutional free riding that occurs in the context of national measures to mitigate contagion in ways the costs of which may be disproportionally shifted to the most vulnerable national populations. It questions the need for or fairness of developing policy for the collective good, the costs of which are shifted down to individuals who thus effectively subsidize collective policy twice--first through the taxes they pay and the obedience they give to state and enterprise. Second by having to bear personally the costs of that policy as it affects their livelihood and perhaps their health and well bring.
While many focus on macro issues with respect to the consequences of COVID.19 (and thus also of planning for future iterations of epidemics of known capacity), relatively little attention has been paid to the micro effects of the COVID-19 epidemic, and especially of its impacts on individuals who are neither large enterprises, rich states, or wealthy individuals or families. All of those creatures are quite capable of taking care of themselves--though their own folly may be as much a catalyst of triumph or disaster as any outside intervention. As for the factory worker, the school teacher, the office worker or lower level manager, for these individuals and their families, the risk and consequence parameters are of a slightly different order. Indeed, even the student, who must adapt to the policies of a university that is balancing the risks of operating as normal against the need to ensure the continued flow of income, will tend to balance those opposing choices against the valuation of the extent to which they might export the "costs" of the choices onto students (especially) with collateral subsidizes by faculty and staff.
In a sense, then, the containment policies--of states and enterprises, and of the communities drafted in support of their implementation--represent an instance of free riding but with the polarities reversed. In this case, it is the state, the enterprise, the social organization that achieves a benefit, indeed a substantial benefit on the beneficial action of others. And those "others" bear the burden directly bny having to use their own resources to subsidize the effects of those policies of containment on their own (and their families) welfare. This is not to suggest that the policies are unnecessary or wrong. Indeed, containment has proven to be quite useful--especially when it is undertaken as part of a comprehensive prevention and mitigation strategy, to reduce the severity of the incidence of epidemic. But that success is not obtained for free, and the question of the equities of distributing its costs downward to those who are least able to bear those costs tends to be either ignored or overlooked.
It was in that context that I looked again with fresh eyes at the work of Juan Pablo Bohoslavsky, the UN the Independent Expert on Foreign Debt and Human Rights. His 3 January 2020 Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights (A/HRC/43/45) provides a useful analysis of the national macro-effects of of foreign debt, and his proposed Guiding Principles on Human Rights Impact Assessments of Economic Reforms.
In his 3 January 2020 Report of the Independent Expert on the effects of foreign debt and other related international financial obligations, Bohoslavsky sought to understand the problem of debilitating individual debt as a form of societal free riding. That free riding takes place in a context in which states privatize their obligations to their citizens to ensure economic, social and cultural rights.
His Guiding principles on human rights impact assessments of economic reforms (GPHRIA) suggests a framework for mitigating the free riding that is a necessary consequence of the framework within which global production has been organized and the role of the state transformed. The GPHRI Principles "underline the importance of systematically assessing the impact of economic reforms on the enjoyment of all human rights before decisions are taken to implement such reforms, as well as during and after their implementation." (Summary). The Principles "apply whenever economic reform policies may foreseeably result in impairment of human rights. These principles are likely to be most relevant in the context of acute economic and financial crises (reactive function)" (GPHRIA ¶ 1).
Whatever new thinks of the viability of a set of Principles to impose on states a human rights due diligence obligation similar to that imposed on enterprises under the UN Guiding Principle sof Business and Human Rights, the framework sets out a usewful approach foir states faced with multiple and potentially conflicting risk mitigation obligations in the context of a disease based crisis. That is, it ought to help understand the way that mitigation of harm to the state or the enterprise, might at the same time augment the risk and burdens on vulnerable populations. State ought to have the responsibility of mitigating harm to their vulnerable populations as they consider plausible alternative approaches to the litigation of collective harm caused by disease. It is that balancing that remains elusive under current frameworks.
In his 3 January 2020 Report of the Independent Expert on the effects of foreign debt and other related international financial obligations, Bohoslavsky sought to understand the problem of debilitating individual debt as a form of societal free riding. That free riding takes place in a context in which states privatize their obligations to their citizens to ensure economic, social and cultural rights.
"82. . . . "At the core of this phenomenon lies so-called “financial inclusion”, the colossal failure of States to ensure the realization of economic, social and cultural rights for all. The explosive increase in private debt is what has sustained aggregate demand and economic growth over the past decades, often at the expense of indebted households. Millions of people around the world transfer a significant part of their wealth and well-being to the financial sector, whose links to the real economy continue to erode, compromising shared prosperity and financial stability and security, and reinforcing inequality.
83.Private debt should not be contracted by individuals and households as a way to compensate for the State’s obligations to protect, promote and fulfil human rights. Personal or household financial and other costs associated with the repayment of debt should be at such a level that the attainment and satisfaction of human rights are not threatened or compromised. Contracting and repaying debt or defaulting on repayment should not entail human rights violations." (3 January Report at ¶ 82-83).
His Guiding principles on human rights impact assessments of economic reforms (GPHRIA) suggests a framework for mitigating the free riding that is a necessary consequence of the framework within which global production has been organized and the role of the state transformed. The GPHRI Principles "underline the importance of systematically assessing the impact of economic reforms on the enjoyment of all human rights before decisions are taken to implement such reforms, as well as during and after their implementation." (Summary). The Principles "apply whenever economic reform policies may foreseeably result in impairment of human rights. These principles are likely to be most relevant in the context of acute economic and financial crises (reactive function)" (GPHRIA ¶ 1).
Whatever new thinks of the viability of a set of Principles to impose on states a human rights due diligence obligation similar to that imposed on enterprises under the UN Guiding Principle sof Business and Human Rights, the framework sets out a usewful approach foir states faced with multiple and potentially conflicting risk mitigation obligations in the context of a disease based crisis. That is, it ought to help understand the way that mitigation of harm to the state or the enterprise, might at the same time augment the risk and burdens on vulnerable populations. State ought to have the responsibility of mitigating harm to their vulnerable populations as they consider plausible alternative approaches to the litigation of collective harm caused by disease. It is that balancing that remains elusive under current frameworks.
My object in suggesting the utility of the work of the Independent Expert on Foreign Debt and Human Rights is not necessaerily to suggest yet another layer of human rights due diligence tied specifically to human rights as these have been woven together by the international community through the UN's Geneva apparatus. To some extent, the global community has already adsorbed a substantial number of variations of this fundamentally sound (but for the present incoherent set of approaches to the embedding of relevant human rights standards into the everyday activities of states and enterprises.Instead it is to suggest
1. That notions of institutional free-riding (especially by states and economic actors) has become a problem wirth substantial conseqeubces to the intgrity of states and the viability of marklets.
2. That the notions of free riding an dits corrosive effects have, to date, been translated into the language and discourse of human rights, bound up wirthin the legalizations of human rights in the two principle International Human Rights Covenants (and founded on the core non-binding premises of the UNiversal Declaraiton of Human Rights).
3. That contemporary reliance on the discourse of human rights by policy intelligentsia, while certainly providing a powerful vehicle for legitimization of the propositions developed, have also tended to de-center the core harm at the center of the issue presented in favor of the elaboration of the abstraction (human rights) applied to a process (due diligence) that ought to produce certain undertakings (a balancing of policy and consequence along the normative lines of substantive human rights) by states and enterprises.
4. And yet that care harm is worth re-centering, especially in the context of state actions in response to the threats of plague and mass disease with substantial mortality rates. Indeed, human rights as an elaborated abstraction, in this context, ought to be understood as the means through which states understand both the nature of a "harm" and its duty to mitigate or remediate that harm when it occurs as a result of actions it takes. At the same time, the harm principle reminds states that a practice of seeking the least harmful means of effectuating policy most robustly advances the welfare of the society over which it has been vested with responsibility (under whatever political-economic model that state is founded and operates).
5. The harm is exacerbated where it is a consequence of state policy that a seeks to benefit from avoiding the costs of its decisions, or of the undertaking of its collective responsibilities, by effectively forcing individuals to bear the costs of collective decisions. Here the state (through policies of containment in the context of CXOVID-19 and enterprises (in the context of risk mitigation decision making that either increases the risk of contagion to workers, or substantially burdens employees and others with the consequences of changes to business practices in the face of epidemic) adopts policies for the collective good in a way that is indifferent to the costs imposed on individuals.
6. States (and enterprises) would necessarily scoff at the idea that they might be free riding on vulnerable individuals. They might suggest that as the collective they are the embodiment of the individual, or that their primary duty is to the collective and that the basic bargain that caused the creaiton fo the state involved the acceptance by individuals that that they might be harmed by (or have to bear individually the costs imposed collectively) on people by the state.
7. But these notions are in a sense absurd. One can accept, and even laud, the majesty of the state and its ruling apparatus, one can recognize the leadership role of a communist party or of a board of directors, and acknowledge that their duty (as leadership cores) to the collectives they serve. But that acknowledgement says nothing about the duty of these leadership cores to individuals, nor does it speak to the development of a duty by the core to ensure that the collective rather than individuals, bear collectively, the costs of policy decisions undertaken for the collective good. The two issues are quite distinct.
8. Thus the question of the authority of the state to forbid people form leaving their houses, or of enterprises to unilaterally impose new work requirements is quite distinct from the question of who ought to bear the consequences of those decisions. The better argument ought to be that the state (or the enterprise) the entity with thew power to assert authority to compel obedience to those decisions ought to bear the costs. The reality, today, however, is that state and enterprise are free to device whatever policy they feel necessary without the slightest worry that they (or their organizations) will have to pay for the harm causes or bear the costs of implementation.
9. Here at last one can begin to see the problem. It is not that the people trapped on cruise ships, or forced at ther expense to produce value for enterprises in new ways, or prohibited form traveling, or denied access to good and services ought to be free to disregard these policy directives. Rather it is that those with the power to impose them (for the greater good) also ought to bear the costs of attaining that good. To shift the costs to individuals not only produces harm; it may well produce human rights harm.
10. At the same time, a state and an enterprise might have an obligation to mitigate the harm that is caused by a policy choice. That can be undertaken by thew now well worn least restrictive means principle. That is a state or enterprise might be obligated to mitigate risk of harm to individuals by choosing from among alternatives to positive collective objectives, the one that causes the least individual harm. That is the one in which the state (or enterprise) minimizing its free riding to implement its policy goals). This is especially important in crisis events around infectious diseases like COVID.-19. And uet that discourse is nowhere now to be found either within that of liberal democracies or those of Marxist Leninist States. A pity.
The last report of the Independent Expert follows.
1. That notions of institutional free-riding (especially by states and economic actors) has become a problem wirth substantial conseqeubces to the intgrity of states and the viability of marklets.
2. That the notions of free riding an dits corrosive effects have, to date, been translated into the language and discourse of human rights, bound up wirthin the legalizations of human rights in the two principle International Human Rights Covenants (and founded on the core non-binding premises of the UNiversal Declaraiton of Human Rights).
3. That contemporary reliance on the discourse of human rights by policy intelligentsia, while certainly providing a powerful vehicle for legitimization of the propositions developed, have also tended to de-center the core harm at the center of the issue presented in favor of the elaboration of the abstraction (human rights) applied to a process (due diligence) that ought to produce certain undertakings (a balancing of policy and consequence along the normative lines of substantive human rights) by states and enterprises.
4. And yet that care harm is worth re-centering, especially in the context of state actions in response to the threats of plague and mass disease with substantial mortality rates. Indeed, human rights as an elaborated abstraction, in this context, ought to be understood as the means through which states understand both the nature of a "harm" and its duty to mitigate or remediate that harm when it occurs as a result of actions it takes. At the same time, the harm principle reminds states that a practice of seeking the least harmful means of effectuating policy most robustly advances the welfare of the society over which it has been vested with responsibility (under whatever political-economic model that state is founded and operates).
5. The harm is exacerbated where it is a consequence of state policy that a seeks to benefit from avoiding the costs of its decisions, or of the undertaking of its collective responsibilities, by effectively forcing individuals to bear the costs of collective decisions. Here the state (through policies of containment in the context of CXOVID-19 and enterprises (in the context of risk mitigation decision making that either increases the risk of contagion to workers, or substantially burdens employees and others with the consequences of changes to business practices in the face of epidemic) adopts policies for the collective good in a way that is indifferent to the costs imposed on individuals.
6. States (and enterprises) would necessarily scoff at the idea that they might be free riding on vulnerable individuals. They might suggest that as the collective they are the embodiment of the individual, or that their primary duty is to the collective and that the basic bargain that caused the creaiton fo the state involved the acceptance by individuals that that they might be harmed by (or have to bear individually the costs imposed collectively) on people by the state.
7. But these notions are in a sense absurd. One can accept, and even laud, the majesty of the state and its ruling apparatus, one can recognize the leadership role of a communist party or of a board of directors, and acknowledge that their duty (as leadership cores) to the collectives they serve. But that acknowledgement says nothing about the duty of these leadership cores to individuals, nor does it speak to the development of a duty by the core to ensure that the collective rather than individuals, bear collectively, the costs of policy decisions undertaken for the collective good. The two issues are quite distinct.
8. Thus the question of the authority of the state to forbid people form leaving their houses, or of enterprises to unilaterally impose new work requirements is quite distinct from the question of who ought to bear the consequences of those decisions. The better argument ought to be that the state (or the enterprise) the entity with thew power to assert authority to compel obedience to those decisions ought to bear the costs. The reality, today, however, is that state and enterprise are free to device whatever policy they feel necessary without the slightest worry that they (or their organizations) will have to pay for the harm causes or bear the costs of implementation.
9. Here at last one can begin to see the problem. It is not that the people trapped on cruise ships, or forced at ther expense to produce value for enterprises in new ways, or prohibited form traveling, or denied access to good and services ought to be free to disregard these policy directives. Rather it is that those with the power to impose them (for the greater good) also ought to bear the costs of attaining that good. To shift the costs to individuals not only produces harm; it may well produce human rights harm.
10. At the same time, a state and an enterprise might have an obligation to mitigate the harm that is caused by a policy choice. That can be undertaken by thew now well worn least restrictive means principle. That is a state or enterprise might be obligated to mitigate risk of harm to individuals by choosing from among alternatives to positive collective objectives, the one that causes the least individual harm. That is the one in which the state (or enterprise) minimizing its free riding to implement its policy goals). This is especially important in crisis events around infectious diseases like COVID.-19. And uet that discourse is nowhere now to be found either within that of liberal democracies or those of Marxist Leninist States. A pity.
The last report of the Independent Expert follows.
Mandate of the Independent Expert on Foreign Debt and Human RightsJuan Pablo BohoslavskyNewsletter No. 1 / 2020Follow us on Twitter: @IEfinanceHRs43rd Session of the Human Rights Council (24 February to 20 March)1. Interactive Dialogue: Presentation of thematic report and country visit reports (Bolivia and Mongolia) to the Human Rights CouncilOn 2 March, I will be presenting my thematic report (available in all UN languages) on private debt and human rights (A/HRC/43/45) and the reports of my country visits to Bolivia and Mongolia to the Human Rights Council. This presentation will be held from 10:00-13:00 in Room XX of Palais des Nations. The Interactive Dialogue will be livestreamed on webcast and is available here.· Consultations held to inform the thematic report:On 3 December 2019, I held an expert consultation in Geneva, a meeting organised in collaboration with the University of Geneva and Friedrich Ebert Stiftung, with the view of informing the thematic report on private debt and human rights. Close to 20 participants from various backgrounds and regions participated in the discussion. This meeting was the last of a series of consultations and discussions which took place in October-November 2019 in Princeton, Nairobi and Buenos Aires.2. Side Events
· Debt spiral: private debt as a cause and consequence of human rights violationOn Tuesday, 3 March, I will be presenting and discussing the report on private debt and human rights (A/HRC/43/45). This side event is co-organized by Friedrich Ebert Stiftung and will be held from 14:00-15:30 in Room XXV of the Palais des Nations.·The Explosion of Private Debt: Blessing or Curse for Human Rights
On Tuesday, 3 March, I will also be discussing the issues contained in the same thematic report (A/HRC/43/45) in a panel co-organized by the University of Geneva and will be held from 18:30-20:00 in R-070 in Uni-Mail.· Side Event on the Guiding Principles on Human Rights Impact Assessments of Economic ReformsOn Thursday, 5 March, I will be launching a user friendly version of the Guiding Principles on Human Rights Impact Assessments of Economic Reforms. I will also be discussing the opportunities of using the Guiding Principles at various levels by multiple stakeholders. This side event is co-organized by Open Society Initiative for Southern Africa (OSISA) and University of Pretoria’s Centre for Human Rights. This event will be held from 17:00-18:30 in Room XXV of Palais des Nations.Participation in past events:· Presentation of reports in Sydney:On 20 February 2020, I participated in a seminar organised by Sydney University of Technology to present the Guiding Principles on human rights impact assessment on economic reforms. In addition, I also took part in the 9th Annual Conference entitled “International Law 2019 – The Year in Review”, organised by the Sydney Centre for International Law –University of Sydney, where I delivered a key note speech on the topic of private debt and human rights, on 21 February.· Special event on human Rights, Gender and Corruption - Linkages, good practices, potential and limitationsOn 18 December 2019, I participated in an event entitled “Human Rights, Gender and Corruption - Linkages, good practices, potential and limitations” in the context of the 8th conference of State parties to the United Nations Convention Against Corruption, in Abu Dhabi. My intervention focused on the links between illicit financial flows, human rights and gender equality and is availablehere.To unsubscribe from this list, please email us indicating “UNSUBSCRIBE” in the subject line.
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