Recognizing Economic and Social rights in the context of COVID-19 Pandemic: An Expensive Wakeup call?

S. M. Morsalin Hider, Muhammad Rezaur Rahman and Arpeeta Shams Mizan

The UN Secretary-General Antonio Guterres has addressed the Covid-19 pandemic as the most challenging crisis since the Second World War. Most States, including those with advanced economies and medical facilities, have drastically failed to tackle the pandemic. Confronting Covid-19 is requiring not only national emergency funds but also private assistance.

This situation prompts a timely question: what caused this existential crisis?  Surely, the virus caused the pandemic, but civilization’s collective failure also points to another thing: a long-continued unwillingness to treat socioeconomic safety programmes as what they are—the basic needs of humans. Let’s probe into how the States’ indifference to building a strong socio-economic safety net may have accelerated the crisis in more ways than one. 

The global expansion of the neo-liberal economic system resulted in semi or unregulated privatizations of sectors including health, education, the job sector, housing sector, etc. Most often, only those who can afford, avail of those services. As the private sector grows, the States’ economic dependence on it increases. This reliance in many cases takes away a state’s attention from the development of public services. In order to avoid possible conflict with the private sector, States slow down their interference and let the private entities operate with minimum or no control. 

Given that industries like health, housing, education, food, etc. affect the basic needs of individuals, and thus are enshrined as basic human rights,  such privatization of these sectors influence not just the economy, but also the overall human rights situation. That is why recent human rights jurisprudence has started treating private actors, especially large corporate bodies and MNCs as responsible for human rights protection.The cumulative effect is, while the private actors need to ensure their operations do not violate human rights, the State needs to do both the positive and negative obligation: i.e., ensure that rights aren’t violated,and take steps to enforce the rights.  

The State is the primary duty bearer to ensure basic human rights to its citizens. The Second World War had brought humanity together under the umbrella of the Universal Declaration of Human Rights in 1948. The Cold War divided us again in 1966 on the question of how those rights should be enforced, classifying human rights under two groups: civil and political rights (CP) including the right to life, civil liberties, equality before the law, etc. and Economic and Social (ES rights) including rights to food, health, shelter, culture, employment, education, etc. We got the two leading Covenants on Human Rights: the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). In the post-cold war neo-liberal worlds, pro-USA i.e. pro-capitalism States chose to prioritize CP rights, while socialist countries opted for ES rights.

Here came the catch: while ICCPR imposed an immediate obligation on the State, ICESCR allowed ‘gradual realization’ on the pretext that ESC rights require a lot of resources, hence it is more cumbersome for developing countries to enforce ES rights. This caveat has since been used by States that did not constitutionally guarantee ES rights. 

However, the Covid-19 showed that without basic economic and social safety (e.g. health, food, and shelter), CP rights may alone never suffice. With our civil liberties suspended or limited to ensure health and safety, we see that every single human right is actually interconnected, and not exist alone. 

Every State is giving their all to fight this virus, but how well or how long they can fight is determined by how prepared the State was on the ES rights front. For example, at the onset of the COVID-19 pandemic, Italy took the hardest hit, it still put up a good fightwith ensuring treatment to so many patients mainly because Italy considers healthcare a fundamental right, with anational health plan (Servizio Sanitario Nazionale) designed to provide free healthcare for all Italian citizens and residents.On the other hand, the USA, despite being one of the biggest economies in the world with many resources at disposal, responded rather poorly to this crisis. The reason is that the American healthcare system is heavily insurance-based with high –out-of-pocket costs. Currently, the USA has the greatest number of causalities. 

Even in normal times, American people avoid going to doctors unless they have good insurance. During a pandemic, it meant risking two million lives. In the case of the developing world, Bangladesh and Nepal pose good examples. With a fantastic GDP growth rate but no constitutional guarantee of the right to health, health crisis looms on Bangladesh, while Nepal with a comparatively weaker economy but the constitutionally guaranteed right to healthhas been successfully fighting the COVID-19. Same with South Africa, which had a strong focus on ensuring ES rights at par, if not more, with CP rights.

For both advanced and advancing economies, few things are common: all these countries suffer from an inadequate per capita medical facility, e,g. the doctor-patient ratio, the hospital bed-patient ration, the number of medical establishments-population ratio etc. all are less than the standard set by WHO. For example, in Bangladesh, there is a lack of medical equipment like ventilator machines or Personal Protection Equipment (PPE); testing labs, training and research centers, etc. Lack of accessible education has deprived people of scientific knowledge, so many fails to appreciate the need for following scientifically tested safety measures such as self-isolation, washing hands, home quarantine, etc. Governments are finding it challenging to ensure people follow these rules.Both a lack of hygiene consciousness and availability of wash facilities contribute towards people’s inability to follow cleanliness and maintain health protocols like wearing masks. 

All this, because for a substantial amount of time, many of these States focused more on ensuring CP rights which cost the due realization of ES rights. There has been more investment in defence than education or the health sector. But, let us acknowledge how ignoring ES rights is now affecting CP rights as well. Because we don’t have well-enforced ES rights, we now have to suffer from a temporary suspension of CP rights like movement, association, access to justice, expression, etc. 

One must acknowledge how diligently the States are responding, but with each passing day, the human loss is rising. Bangladesh is creating funds for the poor now, but if ES rights were part of fundamental rights, the level and quality of preparation might have been different. What will be the final cost when COVID-19 finally stops? 

It is time States revisited their policies to pay attention to ensuring ES rights. Though an expensive one, let the COVID-19 pandemic be a wakeup call for all the States.  

S. M. Morsalin Hider is a lecturer at the Department of Law and Human Rights, University of Development Alternative and he is an LLM candidate at McGill University, Canada. 

Muhammad Rezaur Rahman is an Assistant Professor at the Department of Law and Human Rights, University of Asia Pacific.

Arpeeta S. Mizan is a Sociolegal Analyst. Her research focuses on  law, society,  religion and culture.  She did her LLM from Harvard Law School. She teaches at University of Dhaka