Beyond the State: Our Shared Duties to Cooperate to Realize Human Rights during the Evolving Risks of a Global Pandemic

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I was not expecting my University to land in global news reports this week (see here, here, here, and here, among others), because of its decision yesterday to temporarily move to online instruction after seeing a surge in COVID-cases barely two weeks into reopening in-person classes. The University of Notre Dame has marshaled considerable resources to build a health and safety infrastructure with responsibility to all stakeholders of Notre Dame: students, faculty and staff, and our local communities here in the South Bend-Mishawaka region, but as with any policy attempt, the University community faces real challenges from individualist human behavior and different risk preferences. In many ways, the experiment to reopen the University of Notre Dame involved a series of local, community, and University decisions contingent on recorded risk levels over the summer, and data projections on how those levels could change given the unpredictabilities of human behavior. If anything was quite evident in recent days, it is that data science and modeling do have limits in predicting outcomes, especially, as I have argued in the past, when the normative force of human rights is not internalized in technology-driven decision-making. In the collective process of consultations, discussions, and feedback, I and many colleagues shared our views about the human rights outcomes not just for the University, but for our wider local communities with their counterpart health and resource capacities.  It remains a live challenge how to bring human rights to bear in the brass tacks of governance decisions in a university ecosystem, let alone in regions or States. Our University President’s New York Times op-ed explaining the decision to reopen elicited its share of positive and critical reactions, and decisions taken daily are not immune from critical scrutiny.

Notre Dame’s challenges today are but one illustration of the many complexities of reopening decisions within societies everywhere, that the United Nations reported on in its recent 2020 Human Development Perspectives (“COVID-19 and Human Development: Assessing the Crisis, Envisioning the Recovery”). We are all almost into the last quarter of 2020, and what is so starkly clear is that cooperation – whether in our local communities with governmental and other authorities, or among States in the international system – remains elusive.  While more than 150 countries have agreed to sign on to the World Health Organization’s COVID-19 global access facility (COVAX Facility), none of these countries include those leading the race to produce the COVID-19 vaccine: the United States, Europe, Russia, and China. Global geopolitics, national interests for the health and economic survival of domestic populations – especially as seen in the worsening relations between the United States and China heading precipitously into a new ‘Cold War’ – is swiftly reducing international cooperation and assistance into a strategic option, rather than a sense of legal duty under Articles 1(3) and 2(5), and Chapter IX of the Charter of the United Nations and international human rights law. 

In this post, I argue that the duties of international cooperation under international human rights law are not just left up to States, but also to private sectors, groups, individuals who are all supposed to be both subjects and addressees of the right to development under the 1986 UN Declaration on the Right to Development and the Draft Convention on the Right to Development.  As I told my Notre Dame students this week in my Fall 2020 courses (Introduction to Global Affairs and Integral Human Development; International Law and Human Rights), duties of solidarity and cooperation have to be realized through our direct actions not to knowingly endanger ourselves or others.  It is not only States that have a duty not to cause transboundary harm under international law, but international human rights law has also long entrenched a duty to cooperate and not to contribute to (or otherwise cause) breaches of human rights law. I argue this duty to cooperate is not limited to States, but to every subject of international law – and thus including individuals, groups, and private sectors. Cooperation cannot just be performative and ephemeral, but has to be sustained with a consciousness that we are all deliberately involved in realizing human rights for the world. 

International human rights law has steadily evolved towards enshrining the responsibilities of business and human rights. It may have to evolve again in this COVID-19 era to embrace the duties to cooperate for individuals, groups, and peoples, as we put forward in Articles 3 and 4 of the pending Draft Convention on the Right to Development set to be voted on later this 2020.

From State and Organizational Duties to Cooperate to Realize Human Rights, to Individual Duties to Cooperate in the Observance of Human Rights

Unlike Articles 1(3) and 2(5) of the Charter of the United Nations which focus on the obligations of the United Nations to promote and encourage respect for human rights and fundamental freedoms, Article 55(c) of the Charter vests the United Nations with the specific task of “promot[ing] universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”  Each Member of the United Nations pledged, under Article 56 of the Charter, that it would take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.”  International human rights treaties accordingly place duties on States Parties to such treaties to cooperate in various forms, a discussion we featured recently here at EJIL:Talk!.

But clearly, international human rights law is also premised on ensuring that individuals cooperate to ensure observance of human rights.  The Universal Declaration of Human Rights (UDHR) was a declaration by the UN General Assembly of a common standard of achievement for all peoples, ultimately describing the realization of human rights as a shared project of individuals, peoples, groups and associations, States and international organizations.  This is precisely why the UDHR emphasizes our shared duties to cooperate in the observance of human rights:

“Article 28.  Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29.

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order, and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.” (Emphasis added.)

This initial articulation of an individual’s community duties resonates through many of the core international human rights treaties.  Both the Preamble to the International Covenant on Civil and Political Rights (ICCPR) and the Preamble to the International Covenant on Economic, Social and Cultural Rights (ICESCR) identically acknowledge that “the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant“.  This is also why it is also identically provided for in Article 5(1) of both the ICCPR and the ICESCR that nothing in these Covenants may be interpreted as implying for “any State, group, or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein”.  Individuals may indeed have civil, political, economic, social, and cultural rights, but they are also vested with the duty to cooperate to ensure observance of these rights for all, and especially NOT to engage in any activity or perform any act that would destroy those rights or freedoms for others. Article 3 of the Draft Convention on the Right to Development thus emphasizes the shared responsibility and ecosystem of rights protection where all State and non-State actors are involved:

(g) International solidarity: the realization of the right to development requires an enabling national and international environment created through a spirit of unity among individuals, peoples, States and international organizations, encompassing the union of interests, purposes and actions and the recognition of different needs and rights to achieve common goals; this principle includes the duty to cooperate;

(h) Universal duty to respect human rights: everyone has the duty to respect human rights, including the right to development;

(i) Right and responsibility of individuals, groups and organs of society to promote and protect human rights: everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of the right to development at the national and international levels; individuals, groups, institutions and non-governmental organizations also have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the right to development can be fully realized.

The case of certain specific students of Notre Dame that regrettably acted from their own sense of individual risk, and less consideration for community risks to their respective enjoyment of the rights to health, education, an adequate standard of living, among others, is unfortunately not a unique one.  Many other examples abound of individuals – especially in a time of emergency or the lived realities of food crises, mass unemployment, forced evictions, discontinued education, and incessantly mounting casualties from COVID-19 – that place a misguided sense of freedom and rights first, out of a sense of self-interest, survival, or even sheer arbitrary preference (as might have been the case with Notre Dame students that elected to take on the risks of contagion but without absorbing the responsibility of the health consequences for others).  To my mind, these developments are not the first to highlight the continuing fissures between our understanding of human rights, and our corollary duties to realize human rights.  When we witness in silence how human rights defenders gunned down allegedly by forces that have free rein during strict lockdowns in this pandemic; stand by while hunger ravages communities en masse from this pandemic; shake our heads and lament that this is a world where slavery, racial injustice, violence, suppression through national security laws, the resurgence and deepening of authoritarian rule, and discrimination persist and worsen under starker terms during this pandemic – but still without us thinking actively of what we can concretely do as individuals, groups, private sectors, associations, or populations to fulfill our counterpart duty to cooperate in the promotion and observance of human rights under siege everywhere today, how are we not just as responsible then, in one degree or another, for the growing normalization of the violations of human rights proliferating everywhere at home and around the world?

International Human Rights Law Education: Reinforcing Individuals as Subjects of International Law and Human Rights

2020 in all its uniqueness has certainly provoked me to think about what we, as international law and human rights professors, academics, and practitioners, teach in international human rights law education.  Perhaps, we have given an overemphasis to constraining State power because for many of us in this generation and others, it is the abuses of State power that are vivid and which human rights – at least in Hersch Lauterpacht’s vision of international law and human rights – stands against.  But we have also reached a considerable density in the recognition of individuals not just as addressees of international law and human rights, but also as subjects of international law.  When should we begin to conceptualize of human rights and the counterpart duties of individuals to cooperate in the promotion, observance, and the realization of human rights?  It might be worth remembering that Article 1 of the Universal Declaration of Human Rights emphasizes how we should act towards each other: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” As we continue to try and respond to the changing shape of international human rights law education, we might, as the ‘invisible college’, be more intentional in how we teach and educate our students, our communities, and ourselves, about what it means to act towards one another in a spirit of brotherhood, especially with the status of the individual as a recognized subject of international law and human rights.  I, for one, feel the responsibility to keep trying to do better to educate from my human rights law work with our students, from this corner of the world here at the University of Notre Dame.  There is so much that needs to be done.

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