Tuesday, April 07, 2020

UN Committee on Economic, Social and Cultural Rights Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights

One of the more interesting aspects of the COVID-19 pandemic is the way that it clarifies the way that political, social, cultural, and religious actors tend to understand the world through the lens of their own ordering premises. It also has clarified how those ordering premises substantially shape not just the understanding of the world around one, but also the way in which that world ought to be valued, and the way that actors ought to respond, especially to crisis.

The great organizations of the United Nations, established in the wake of the 1970s fracture of the once unified vision of emerging human rights, which were contained in the Universal Declaration of Human Rights (1948), provide a window on this perspectives based view of the pandemic.But the fracture reflected in the distinct normative turf of economic, social, and cultural rights (on the one hand) and civil and political rights (on the other) also color the way these organizations approach an understanding of the context in which pandemic ought to be framed and the way in which states responses are measured.

On 6 April 2020, the UN's Committee on Economic, Social and Cultural Rights issued a Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights (E/c.12/2020/1 (6 April 2020).   The Statement along with brief reflections follow.

The UN's Committee on Economic, Social and Cultural Rights issued a Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights (E/c.12/2020/1 (6 April 2020) is an important document. Its importance does not derive from its power to order behavior, but rather from its comprehensive development of a coherent vision of a way to approach crisis in form of a pandemic. For that purpose along it is worth reading. Its way of looking at the world shapes the way in which it understands the approach a state must take to meet the crisis--not because that approach is inherent in the character of the crisis (as pandemic) but because it is inherent in the character of the ideology around which such responses must be shaped. That is not to criticize the approach, or even its underlying ideology. Rather it is to remind us that it is ideology and that perspective that can drive both understanding and response. That pattern of crisis response, when followed unconsciously, will invariably tend to constrain rather than liberate analysis in the face of the circumstances around a crisis, its challenge, and the potential range of measures available for response. Thus, the understanding of the way that an embraced ideology narrows and shapes the range of ways of understanding and responding to a crisis, can help to understand the way it shapes (and limits) analysis.

Considered in this light the UNCESCR Statement shed as much light on the way in which it sees its own place in the world as it does on the way in which it can contribute to the challenge of pandemic. Because the organization sees itself as a guardian of ideology (and of the normative principles that shape it), the approach to the crisis tends to be shaped by the duty to protect that set of normative principle which it is their duty to protect.  But it also means that the Statement would take no notice of other normative frameworks, some of which might not be incompatible with their own.  Principal among these would be the normative order represented by the International Covenant for Civil and Political Rights, much less the political-economic or constitutional models of the states in crisis.  But that is to be expected from an organization one of whose principal objectives is to advance the notion that the international law that binds states ought to bleed into the domestic legal orders of states, and shape their own interpretation of their constitutional orders. It's refusal to acknowledge other legitimating principles--for example core principles of the operation of a political-economic model--and its use of the Statement to advance its own quite specific agendas (that is its own views on how economic, social, and cultural rights ought to be realized)  on the other hand, suggests the weakness of ideological lens in times of crisis.

At the same time, the Statement--true to the ideological premises that gives the Committee its life and frames its perspectives--insists on a set of conceptual blinkers that permits a focus almost entirely on or through the state.  Yet the last 20 years or more has now made quite clear tat while the state is powerful, and powerfully engaged in new ways with the pandemic, other institutions also play a key role.  Those non-state actors may be as responsible for respecting the economic, social, and cultural rights of individuals--and may as great a power to affect these--as do states. Both the OCED Guidelines for Multinational Enterprises, and the UN Guiding Principles for Business and Human Rights suggest that a broader framework is already part of the fundamental environment in which economic, social, and cultural rights ought to be read.  The corporate responsibility to respect human rights, including economic, social and cultural rights is now an important element of any transnational conception of regulatory or even normative responses to (and assessments of) responses to the COVID-19 pandemic either by state or non-state actors. Those apply as well to the role of financial institutions--both public (Sovereign Wealth Funds, international financial institutions, state development and Exim banks and the like), and private (lending institutions, pension funds, and the like)--in shaping their institutional roles in the context of the pandemic especially with respect to borrowers and the macro-economic policies of states and other actors. Here I thank Dr Nojeem Amodu for the reminder that, in this context, it is regrettable for an important institution to miss the corporate responsibility to fulfill #ESC rights especially during this challenging period especially when measured against the reality of modern #financialised society, as it tends to underrate the scope of corporate power to fulfill such rights if nudged in the right direction. Stories are circulating about the nature and manifestation of this relationship int he context of economic rights as large brands have moved in to protect the integrity of their global production chains in ways that are sensitive to ESC rights (e.g., Primark announces wage fund for garment workers, "Primark, one of the UK’s most popular retailers, has announced it will create a fund to help pay the wages of the millions of garment workers affected by its decision to cancel tens of millions of pounds worth of clothing orders from factories in developing countries across the world. . . . Collectively brands including Primark, Matalan and Edinburgh Woollen Company have cancelled £1.4bn and suspended an additional £1bn of orders in Bangladesh alone as they scramble to minimise losses in the face of the Covid-19 epidemic").  One can debate the effectiveness of the effort but the expansion of the scope of the responsibility  is clear.

At the same time, the Statement also de-centers the importance of the Sustainability Development Goals (SDGs) as the foundation around which emerging conceptions of economic, social, and cultural rights must be both understood and practices within domestic legal orders and in the international sphere.The Statement is valuable in this sense for highlighting what it fails to embed and how it fails to align its own mission with that of other important emerging normative and regulatory developments in the international arena. This is particularly distressing for what it tells one about the challenges of policy and regulatory coherence within the United Nations system.  It also suggests the importance of this point in transition for the discourse of rights.  It appears already as more than a glimmer that the fundamental discourse of rights in the international community is shifing from the old framework built around the Universal Declaration of Human Rights, to a discourse built around the connection of human rights with the ecologies within which human societies (and their individual members) may thrive. In this sense, the Statement actually looks backwards for its conceptual basis; it might  be necessary to point forward in a way that better embeds notions of ESC rights within the broader discursive frameworks of sustainability and its emerging (17 ) categories (as challenging as those might be). The importance of this shift and its relevance in the context of the COVID-19 pandemic  has become clear as developing states find themselves able to respond to the illness but much more immediately challenged by the pandemic's collateral effects.  Those collateral effects have centered on food security for some states.  Cuba is a good example--a state where medical preparation was substantial, but where the population is now suffering from food scarcity. That scarcity is not merely a product of the inability to import food because income form tourism has dwindled.  But it is also affected by the inability to buy feul and fertilizer for lack of funds to pay for the,
Just 40% of normal fuel supplies and even less fertilizer and pesticides were used for the winter crop, according to the government. Planting began before the pandemic in November and harvesting ended in March. The government has not reported on the results of Cuba’s most important growing season. Agriculture ministry official Yojan García Rodas told local radio that farmers were able to plant less than half the planned acreage of beans - a local staple - because they had to use oxen to till the land due to lack of fuel. (Cubans cast aside coronavirus fears to search for scarcer food)

On the other hand, the statement is valuable precisely for its effort to center economic consequences of crisis management, and of the way in which it reminds states that its decisions about who lives and who dies, who bears the costs of response and who is aided, ought to be grounded on the core principles of human dignity and the equality of the individual. In the United States, for example, the COVID-19 crisis effects on African-American and Latino communities may require substantial sensitivity as states consider  what might otherwise appear to be neutral responsive measures (e.g.,  Looming crisis threatening the US: Black and Latino workers to be hit hardest by coronavirus as their hours are cut, while others must risk the virus with no insurance or stay at home with no pay). Once the infection began to spread, the disproportionate effects on communities of color might well require more focused counter measures (Alarming data shows people of color across the US are more likely to become infected and die from COVID-19 as Chicago's mayor reveals that black residents account for 72% of deaths in the city). Racial impact may also serve as the outward sign of larger contributing issues that the Statement  points to. ""I expect the COVID-19 pandemic to impact African Americans to a greater extent than other more socially advantaged groups," says Dr. Lisa Cooper, an internist and social epidemiologist with the Johns Hopkins Bloomberg School of Public Health. "This is because as a group, African Americans in the U.S. have higher rates of poverty, housing and food insecurity, unemployment or underemployment, and chronic medical conditions, and disabilities."" (Rumor, Disparity and Distrust: Why Black Americans Face an Uphill Battle Against COVID-19). The response of the City of Chcago in the face of these disparities provides a useful way to move from the conceptual framework of the Statement to a set of perhaps viable action items (Lightfoot declares ‘public health red alarm’ about racial disparity in COVID-19 deaths).

Similar considerations applies to the disparate impact of COVID19 on the basis of gender (COVID-19 mortality twice as high for men in Italy as women)--though here again ideological lenses might limit the usefulness of analysis, especially where it it used to press essentialized ideological notions within scientific or analytical categories (e.g., Gender, Masculinity, and COVID-19; Coronavirus hits men harder. Here's what scientists know about it).  The tendency toward rascism and xenophobia is not merely a malady specific to one nation. "The U.S. is not alone in looking to blame outsiders. The U.K. has seen a spike in hate crimes against Asians. Ethiopia's government has called on citizens to refrain from reported attacks against white and Asian foreign nationals, who some are calling "Corona." Meanwhile, the prime minister of Hungary has blamed foreigners for the spread of the virus." (Covid-19 Is Becoming the Disease That Divides Us: By Race, Class and Age).

At the same time, the Statement serves as an important reminder that crisis response cannot serve as an excuse for suspending the normative orders on which the legitimacy of state power is based.  It also reminds us that such a normative order is not aspirational or detached but inherent in the way states go about the business of responding to crisis, and the basis on which state actors (and their leaders) may be brought to account for the decisions they make in shaping that response.  In the contemporary context of power--it is only this certainty of accountability, and the development of the measures against which such accounting must be taken--that provides a principled coherence to state response.   One may argue about the value and comprehensiveness--as well as the bias--of these measures.  And, indeed, there is much to argue about.  At the same time, it is a reminder that such measures are necessary ad that states that forego their own principles in the face of crisis have been defeated by the COVID-19 pandemic as surely as it they had done nothing to protect their populations.

All of this is to suggest both the necessity and the power of Statement such as that of the ESCR Committee. Such Statements ought to be welcomed as an important part of the dialogue that is necessary to ensure legitimacy through fidelity to some sort of normative base line.  At the same time, such statement de not descend from a divine source--just a human and institutional one.  As such, it is as important to read these critically--and in context--as it is to welcome their projection into what should be a wide and open debate.

The Statement follows.


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