Rodrigo Uprimny Yepes

Human rights are not a luxury meant for peaceful periods or for democratic normalcy, in fact, in those times they tend to be less needed. It is in moments of crisis that rights acquire more relevance, since they allow us to face greater challenges, such as this pandemic while preserving democracy and freedoms.

The adoption of a human rights approach to address COVID-19 is not just a whim from those of us who work on these topics, but rather a vital necessity.

In this context two documents by the UN Committee on Economic, Social and Cultural Rights (CESCR) published on its website on 7 March are particularly helpful for addressing the COVID-19 pandemic from a human rights perspective: i) a short and specific declaration on the subject; and ii) its General Comment No. 25 on “science and economic, social, and cultural rights”, which covers a number of issues, but acquires particular relevance in the context of the pandemic.

These two documents are important not only because of their content and the concrete recommendations they formulate, which are reasonable and relevant, but also for their legal authority. The CESCR is the main interpreter of the International Covenant on Economic, Social, and Cultural Rights, thus the CESCR’s recommendations have special legal authority as they are considered a sort of international jurisprudence or “authoritative doctrine” related to these rights.

In this blog post I will explain the recommendations adopted by the CESCR. For the sake of brevity, I will limit myself to presenting, without following strictly the language or the order of the CESCR’s documents, the 15 recommendations that in my judgement are the most relevant.

(To ensure transparency, I would like to state that I may be biased when I value these documents positively, since I have been a member of this Committee since 2015.  The CESCR  is composed of 18 independent experts from all over the world, who despite being nominated and elected by States Parties, have an independent status, similar to that of a judge, and as such  should act independently and impartially, without receiving instructions from any State.)

General Principles

Five recommendations establish the general principles for addressing the pandemic from a human rights perspective:

1)    The CESCR states that States have the duty to fight COVID-19, to the extent of their capacities and based on the best scientific evidence available. This is because everyone has the human right to enjoy the benefits of scientific advancements and its application (art.27 Universal Declaration) and, as it states in General Comment No. 25, one of the essential benefits of science is that solid scientific knowledge is used in decision-making and policies.

This does not imply that political decisions should be taken by scientists, since in a democracy the elected authorities have the ultimate responsibility to make the hard choices, especially when there are unsolvable ethical dilemmas. However, governments cannot ignore scientific evidence or act contrary to clear scientific evidence.

In that sense, it would be desirable that governments establish an advisory scientific committee, that is interdisciplinary and of high credibility and technical quality, similar to the one created by President Macron. This would allow governments to adopt the best policies available and to present them to the population with transparency, in order to convey confidence and, in turn, to facilitate compliance.

2)    The CESCR points out that although certain severe restrictions on rights and exceptional measures might be necessary and legitimate, States cannot abuse their emergency powers. The restrictions cannot be abusive or arbitrary, but rather must be empirically well-founded, strictly proportionate to the fight against the pandemic, and be maintained only for the necessary time period.  

A restriction would thus be illegitimate if there were less restrictive measures available that could be as effective in combatting the pandemic. Even though the CESCR does not use this example, I believe that total border closures are contrary to human rights, as they prevent many nationals from returning to their country and we all have the human right to return to our own country (see article 13 of the Universal Declaration) and there are alternative measures equally effective to combat the pandemic, but less restrictive to this right, such as allowing nationals to return on the condition of a reasonable obligatory quarantine period.

3)    The CESCR emphasises that this crisis has demonstrated the importance of defending the interdependence and indivisibility of all human rights. For democracies to be able to survive and for human dignity to be adequately protected, the enjoyment of civil and political rights is as important as the realisation of economic, social and cultural rights, without there being any need to establish a hierarchy between these different categories of rights.

This crisis is born from the threat to a social right, such as the right to health, but it has implied an equally strong restriction on civil rights, such as freedom of movement as a result of quarantines, and could also affect political rights, if the abuse of emergency powers are translated into the deterioration of democracies and the rule of law, as might be happening already in Hungary.

The CESCR recommends that the fight against COVID-19 assumes a holistic vision, that ensures the adequate protection of all human rights. It would be catastrophic if, using the argument of protection of health, we end up sacrificing civil and political liberties.

4)    Directly linked to the latter, the CESCR emphasized that in this difficult context, the preservation of judicial independence and the access of all to effective judicial protections given the potential abuses of rights, is in itself a human right (see articles 8 and 10 of the Universal Declaration). It is not an unnecessary luxury, but rather it acquires greater relevance, precisely because there is a higher risk of these rights being violated.

For this reason, classical judicial protections for human rights, such as habeas corpus, need to be preserved, but also, it is of the utmost importance to strengthen other judicial protections. For instance, the quarantine has increased violence against women in many countries, therefore judicial and other mechanisms are necessary to address these cases, as well as the establishment of safe houses for women in danger.

5)    Another recommendation has to do with the importance of transparency in the provision of information in the context of the fight against COVID-19. States should disseminate all relevant information on the evolution of the pandemic and on their decisions and they must do it in accessible formats, particularly for the most vulnerable populations.

Transparency is not only essential for citizens to exercise better control of the decisions of the State, but also, as has been demonstrated by the experience of South Korea,  it is one of the central elements, along with massive testing, of the effectiveness of the fight against COVID-19. This obviously implies, particularly in quarantine contexts, the strengthening of access to the internet, which makes it crucial, for example, for States to facilitate temporary free access to the internet for low-income households.

Principles of equality and non- discrimination

Other recommendations have to do with the importance of the principles of equality and non-discrimination while facing COVID-19. The reason is obvious: even though coronavirus can infect anyone, it is not true that the pandemic will affect everyone equally, since it impacts disproportionately the poor and those already in vulnerable situations. Therefore COVID-19 makes visible, and exacerbates, pre-existing inequalities.

The reasons are clear: i) these people find it harder to prevent contagion since it is more difficult for them to take preventive measures. How can social distancing and hand washing be applicable for those who live in crowded households without running water?; ii) these people, due to their precarious social conditions, can suffer pre-exiting pathologies that place them at greater risk of becoming seriously ill if infected; and iii) the social impact of isolation is proportionally greater for these people in the informal sector who will see their income brutally reduced, thus affecting their right to an adequate standard of living.

Based on these principles of equality and non-discrimination, the CESCR has formulated three recommendations:

6) The CESCR emphasises that States should make greater financial efforts to combat the pandemic, since they must realise the right to health to the maximum of their available resources. Nevertheless, the mobilisation of the required financial resources to address COVID-19 should be equitable and should not fall on the most vulnerable sectors, which are the ones who have suffered the most with the pandemic and the measures undertaken to address it.

New resources should then be collected based on criteria of progressive taxation and distributive justice. Those with higher incomes and wealth should have to contribute a greater proportion to the financing of extraordinary expenses.

7) The CESCR highlights that States have the duty to take special measures in favour of the poor and the vulnerable, who suffer disproportionately due to the pandemic, such as the homeless, informal workers, rural populations, prisoners and persons with disabilities, among others.

The nature of these measures varies, and the CESCR has mentioned the following: the prohibition of evictions, the direct and targeted delivery of essential goods to cope with the pandemic, such as food and cleaning items, or the institution of timely cash transfers, etc.

These measures are necessary not only to guarantee the right to an adequate standard of living in this period, but also to ensure greater effectiveness of the policies enacted to combat the pandemic. If one of the essential measures to prevent infection is social distancing, how can people who will be mired in hunger abide by it, if the government does not provide for an alternative source of income, for at least as long as the lockdown lasts? States should think about establishing temporary basic income schemes for the most vulnerable.

8) The CESCR emphasises the importance of policies combating the COVID-19 which have a differentiated approach and which consider the diverse impact that the pandemic and the measures undertaken to address it, can have on certain populations traditionally subjected to discrimination, such as women, LGBT, persons with disabilities, migrants or ethnic groups. This is because this crisis can accentuate discrimination against these groups. For instance, quarantines mostly impact women who must assume domestic and care work - labour which in these contexts becomes even more important. 

Special attention to certain social rights

The CESCR emphasises also that in this crisis certain social rights require special attention. Therefore, it has formulated specific recommendations for three rights: health, work, and education.

9) Obviously, the protection of the right to health is central. The CESCR insists that the strengthening of public healthcare systems is essential, especially in those countries where these systems have been weakened due to austerity policies adopted as a result of the 2008 financial crisis.

As has been demonstrated by Vicenc Navarro, an element that explains the differences in mortality rates which is significantly higher in countries such as Italy and Spain and lower in Germany, despite sharing a similar population structure, is that the first two countries have in the last few years endured severe austerity policies that have negatively impacted their public health systems.

The CESCR thus recommends not only the mobilisation of resources directed to health, but also that States regulate and coordinate responses to the crisis and that the workers in the health sector be adequately protected, not only at a sanitary level, but also in terms of labour. In addition, the criteria and cautioning about the evolution of the pandemic provided to health workers must be adequately taken into consideration in the formulation and implementation of public policies concerning the pandemic.

10) Linked to the latter, the CESCR emphasises the importance of protecting the right to work. It, therefore, recommends that States adopt the necessary regulations so as to protect employees against the risks of infection in their workplaces and to prohibit the sanctioning of employees for refusing to work without such protections.

In addition, it is essential to establish mechanisms to protect employment, or at least workers’ incomes, through different mechanisms such as subsidized salaries, tax relief to employees, and the strengthening of social protection policies.

11) The CESCR emphasises the special challenges that this pandemic implies for the right to education, as most primary and higher education centres have had to suspend in-person classes and speedily move towards virtual forms of education to prevent contagion.

This timely transition to virtual education might seem necessary and justified, but it might increase inequalities between rich and poor in relation to the right to education, due to the unequal access to the internet and to equipment, such as computers and tablets. States and education centres have thus the obligation to monitor these negative impacts on the poor and marginalized and provide for the necessary measures to mitigate adverse effects.

International cooperation in relation to the COVID-19

The CESCR highlights the importance of international cooperation in relation to COVID-19. The reason is obvious: SARS-COV-2 and other similar pathogens do not respect borders and can represent transnational or even global threats. Fragmented national responses are not only insufficient but also, can be counter-productive.

For example, the competition between States, or even between local governments, for certain sanitary resources, such as masks or respirators, has increased the prices of these products, even though they could have been obtained at lower cost, if there were better international cooperation schemes in relation to the pandemic.

The CESCR has thus three recommendations in this regard that are based on the duty, in accordance with articles 55 and 56 of the United Nations Charter, of all States to cooperate internationally for the universal respect of human rights.

12) The CESCR highlights recommendations that are relatively natural, but which are no less important, such as the following: the need to share the results of medical research, and the best practices to combat the pandemic; cooperative efforts to address the economic impacts, especially in low-income States, and to achieve economic recovery as soon as possible, etc.

13) On the other hand, and perhaps more importantly, the CESCR refers to the so-called extra-territorial obligations of the State in relation to COVID-19. The extra-territorial obligations, which in doctrine have been synthesised in the Maastricht Principles, make reference to the actions and omissions which States are obliged to enact due to the negative and positive impacts on the enjoyment of human rights in other States.

The CESCR highlights, in particular, the following extra-territorial obligations: i) Unilateral economic sanctions should be lifted so that affected States can obtain new resources to combat the pandemic; ii) developed States should ensure that certain measures (such as restrictions on exports and border controls) do not impair access to vital sanitary equipment for the most vulnerable in other countries; iii) States should use their voting powers in international institutions to relieve the financial situation of low-income countries with measures such as debt relief or reduction; iv) States should promote more flexibility in intellectual property regimes to allow universal access to scientific advancements related to diagnoses, treatment, and development of COVID-19 vaccines.

14) In both documents the CESCR has placed a particular emphasis on scientific cooperation, which could help prevent local epidemic outbreaks from evolving into devastating pandemics that the world is ill-prepared to address, as happened with COVID-19.

Better scientific international cooperation could enable more solid and transparent early warning mechanisms on epidemic outbreaks that could facilitate the concerted and swift interventions of the international community, based on the best available scientific evidence, to prevent local outbreaks from becoming international threats or even pandemics.

All evidence indicates that in relation to COVID-19, China postponed for several weeks informing the WHO about this outbreak and taking appropriate measures to address the situation. These delays could be the reason why we had a pandemic instead of a locally-managed epidemic.

International cooperation would also ensure that, once the pandemic is under control, there can be concerted, robust, academic research that could allow us to learn how best to prepare in the future for threats like these.

An opportunity for a better future for human rights

15) The last recommendation of the CESCR will serve to conclude this blog post and it offers the possibility of seeing this difficult crisis unleashed by COVID-19, not only as a threat to human rights, which it is, but also as an opportunity for a better future for human rights, which is also a possibility.

The best analysts, such as Harari have emphasized that the world will not be the same after COVID-19, since the impact of this pandemic will be very profound. Equally, they have also highlighted that we do not really know how the new world is going to turn out as we are at a real crossroads.

We do not know whether the world will be a more just one, with increased solidarity among individuals and nations, with greater respect for human rights and science, and with governments keener to open to international cooperation, which is the most desirable option. Or if instead, we will be facing more authoritarian, arbitrary, and chauvinistic governments with selfish and enclosed elites, which is certainly a terrifying but likely alternative too.

The path that we take at this crossroads will depend largely on how we behave during the pandemic. The estimation of the CESCR, which I share, is that if we make an effort to mobilise resources to face the COVID-19 from a perspective based on solidarity, human rights, and international cooperation we would be creating the impetus and the energy to propel a more just world where according to the beautiful ideal proclaimed by the Universal Declaration of Human Rights “human beings shall enjoy freedom of speech and belief and freedom from fear and want”.

Rodrigo Uprimny Yepes is a lawyer, with a Master’s degree (DEA) in sociology of development from the University Paris I (IEDES) and a PhD in Economy from Amiens University. He is a member of the International Commission of Jurists and the UN Committee on Economic, Social and Cultural Rights (2015-2022). He has also served as a Consultant for the United Nations Development Programme on subjects of violence, citizen participation, conflict resolution, and justice. Rodrigo Uprimny was co-founder and Director of the Colombian research and advocacy organization Dejusticia and is currently Member of the Board of Directors of Dejusticia and coordinator of the Drug Policy Line. Twitter: @RodrigoUprimny