Calibrating Human Rights and Necessity in a Global Public Health Emergency: Revive the UN OHCHR’s ICESCR Compliance Criteria

COVID-19 has reached every continent, every region, and almost all countries in the world. Most of us are either in quarantine, sheltering in place, in hospitals fighting for lives, in the front lines of depleting health care resources in the developed and developing world, or attempting some semblance of life (e.g. transplanting to remote work, online education, and even virtual forms of worship and simulating social gatherings) as part of the new normal of a global public health emergency under a vaccine-less and antidote-less (as of this writing) COVID-19.  The global strain on State resources is worse felt by the world’s most vulnerable – refugees, displaced persons, and homeless persons – all often already in the throes of extreme poverty after surviving armed conflicts, humanitarian crises, natural disasters, and the increasingly vivid and existential impacts of climate change.  There is no aspect of the human condition that will be left untouched or unaffected by the unprecedented impacts of COVID-19 on daily human life, anywhere and everywhere.  The New York Times’ chilling visual of how rapidly COVID-19 spread throughout the world emphasizes both the breakdown of domestic measures, as well as the tenuous frailty of international cooperation under the World Health Organization, whether in taking timely preventive measures to stop the viral spread beyond China’s borders, or designing appropriate protective measures to support front line health care workers in every jurisdiction worldwide now plagued by this pandemic.

The debates on human rights in emergencies remain vivid.  On 16 March 2020, the UN Office of the High Commissioner for Human Rights issued its call for all States to “avoid overreach of security measures in their response to the coronavirus outbreak and reminded them that emergency powers should not be used to quash dissent.” Various global human rights organizations have issued guidance and recommendations on possible human rights-based responses, while sounding the alarm against authoritarian leaders further eroding human rights and democracy under the pretext of addressing the pandemic.  Beyond human rights discourses, serious ethical and moral questions have been raised against specific measures in authoritarian regimes, with some positing that authoritarian regimes are potentially better at containing pandemics (see here, and here) and others arguing that “democracies are better at fighting outbreaks” and that “authoritarianism is the greatest public health risk”.  In the famous medical journal The Lancet, an author concluded: 

“Is there an authoritarian advantage in disease response? It seems that authoritarian information politics inhibited a rapid response to the 2019-nCoV outbreak in China, which could have limited the crisis. It is not yet clear if the extraordinary cordons and influx of resources enabled by autocratic rule will prove a successful public health strategy. Yet, in building capacity to prevent, detect, and respond to outbreaks, democratic openness and competitive politics seem more asset than inadequacy.” [Matthew M. Kavanaugh, Authoritarianism, outbreaks, and information politics, 5 The Lancet 3, pp. 135-136 (March 2020).]

Others have pointed to the inapplicability and infeasibility of strict mass surveillance, contact tracing, quarantine, travel bans, and other social control measures that have worked for tinier populations of Singapore, Hong Kong, and Taiwan as a benchmark model for vast continental populations such as the United States and in Europe.

As of this writing, the menu of contemplated emergency measures has also been expanding. Philippine President Duterte is reportedly seeking Congressional approval to takeover unspecified privately owned utilities and businesses, expanding on existing COVID-19 emergency measures such as checkpoints, lockdowns, and strict quarantines at home already in place.  Hungary’s Prime Minister Viktor Orban also seeks to pass a bill on emergency powers of indefinite scope and duration, while Spain has already nationalized all private hospitals, and New York City Governor Andrew Cuomo has demanded that the United States federal government nationalize medical suppliers.  The EU is reportedly also weighing nationalization options.  China is reportedly continuing propaganda to control the narrative of its successful government responses in contrast to other countries, without including coverage on the full scope of leadership decision-making’s impacts on delays in responses, lack of transparency, and the silencing of whistleblower doctors such as Li Wenliang.  Transparency International has also warned against the anticipated proliferation of State corruption in the process of implementing COVID-19 emergency measures.

Unlike its 2013 Report on Austerity Measures and Economic and Social Rights, the UN Office of the High Commissioner for Human Rights has not yet issued definitive criteria in relation to COVID 19 emergency measures.  Paragraph 15 of that Report prescribes specific human rights compliance criteria to assess the lawfulness of austerity measures:

“15. Where austerity measures result in retrogressive steps affecting the realization or implementation of human rights, the burden of proof shifts to the implementing State to provide justification for such retrogressive measures.  In ensuring compliance with their human rights obligations when adopting austerity measures, States should demonstrate:

(1) the existence of a compelling State interest;

(2) the necessity, reasonableness, temporariness and proportionality of the austerity measures;

(3) the exhaustion of alternative and less restrictive measures;

(4) the non-discriminatory nature of the proposed measures;

(5) protection of a minimum core content of the rights; and

(6) genuine participation of affected groups and individuals in decision-making processes.”

As I observed in previously published work, the above human rights compliance criteria were not “expressly or textually provided for within the terms of the ICESCR”, but they are, on balance, helpful analytical frameworks for carefully assessing each asserted emergency measure against prevailing circumstances unique to each State.  With respect to today’s COVID-19 emergency measures, (and noting previous analysis published here at EJIL:Talk! in regard to derogations clauses justifying ICCPR and ECHR restrictions in Italy, as well as the UN High Commissioner for Human Rights’ observations that even necessary and proportionate COVID-19 emergency measures would have “serious repercussions on people’s lives”) I would argue that it is even more urgent now for the UN OHCHR to revive its human rights compliance criteria in regard to ICESCR rights [e.g. such as the Article 12 right to the highest attainable standard of physical and mental health; Article 6 and 7 rights to work and just and favorable conditions of work; Article 13 rights to education; Article 9 rights to social security; and Article 11 rights to an adequate standard of living – including food, water, and housing – all in relation to the Article 2(1) obligation to “take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means”; the non-discrimination and non-retrogression obligations in Article 2(2); and equality obligations in Article 3], which stand to be increasingly affected by States’ expanding universes of COVID-19 emergency measures that are of uncertain contours, impacts, and indefinite duration. 

Analogizing from the operation of the precautionary principle in international environmental law in the face of scientific uncertainty, I submit that States cannot rely on the general limitations clause in ICESCR Article 4 to justify sweeping COVID-19 emergency measures, when core obligations of non-retrogression, non-discrimination, progressive realization, and equality of economic, social, and cultural rights are implicated.  The UN OHCHR’s ICESCR Compliance Criteria are needed once more.

The High Threshold of Limitations Under ICESCR Article 4

The record of the Committee on Economic, Social and Cultural Rights’ (CESCR) Concluding Observations demonstrates that the Committee disfavors any use of states of emergency as blanket justifications or Schmittian-type broad exceptions to ICESCR compliance, including in cases of austerity measures during economic crises.  (See among others, its 2019 Concluding Observations on Ecuador’s 4th Periodic Report; 2018 Concluding Observations on South Africa’s Initial Report; 2018 Concluding Observations on Cabo Verde’s Initial Report; 2018 Concluding Observations on Argentina’s 4th Periodic Report; 2018 Concluding Observations on Spain’s 6th Periodic Report; 2017 Concluding Observations on Sri Lanka’s 5th Periodic Report; 2017 Concluding Observations on Australia’s 5th Periodic Report; 2016 Concluding Observations on Angola’s 4th and 5th Periodic Reports, among  others.) The same record of interpretive practices is what impelled me to conclude in 2016 that “a high threshold must be met before a state could successfully justify austerity measures through Article 4 of the ICESCR”.  Textually, the general limitations clause in ICESCR Article 4 requires the simultaneous concurrence of three elements for any State’s proposed limitation on ICESCR rights to be upheld: 1) it must be “determined by law”; 2) “compatible with the nature of ICESCR rights”; and 3) “solely for the purpose of promoting the general welfare in a democratic society.”  As I discussed then:

“The national law that contains the limitation on ICESCR rights cannot be undisclosed, arbitrary, discriminatory, retrospective, or foreclose any access to effective remedies by affected parties.  Compatibility with the nature of the ICESCR right is determined by examining the right’s essential object, the right’s purpose, and the importance of compliance with the right from the standpoint of the addressees or bearers of the ICESCR right.  Finally, if any pretextual purpose to the limitation can be shown to exist, separate from the declared purpose of promoting the ‘general welfare’ as defined largely by the state party, then the state party’s attempted limitation of ICESCR rights would be excluded from the scope of permissibility under Article 4 of the ICESCR…the entire policy architecture behind the conceptualization and implementation of such measures [should be] nondiscriminatory, entirely compatible with the specific nature and content of the ICESCR right sought to be limited, and motivated exclusively by general welfare considerations.  This multifaceted substantive test under the general limitations clause in Article 4 is purposely not easily surmountable for states parties to the ICESCR.” (Italics in the original.)

Thus, even if States Parties to the ICESCR were to invoke the general limitations clause under Article 4, this is clearly not the situation of a self-judged or unreviewable exception.  ICESCR Article 4 by its terms contemplates elements that invite legal scrutiny into the justifications asserted for any State’s limitation of ICESCR rights. As I have discussed in other work, the unique design of the ICESCR deliberately contemplates a social protection baseline – with cross-cutting obligations of minimum core content [cf. ICESCR Article 2(1), as elaborated in the CESCR’s General Comment No. 3], the principle of non-discrimination [cf. ICESCR Article 2(2), as elaborated in the CESCR’s General Comment No. 20], and the principle of non-retrogression [cf. ICESCR Article 2(1), in relation to State obligations to “take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means”]. 

There is no derogation clause written into the ICESCR, which makes it even doubtful if limitations – much more actual derogations – could be placed on the aforementioned cross-cutting obligations. Certainly, the CESCR has already emphasized that the minimum core obligations pertaining to the ICESCR right to the highest attainable standard of physical and mental health are “non-derogable” [General Comment No. 14, para. 47], again reaching the same finding that the minimum core obligations right to water in relation to the ICESCR Article 11 right to an adequate standard of living are also “non-derogable” [General Comment No. 15, para. 40].  This lends force to the view that the social protection baseline in the ICESCR – minimum core, non-discrimination, and non-retrogression – cannot be subjected to derogations.  This contrasts with the few provisions in the ICESCR that allow for certain restrictions, such as ICESCR Article 8(1)(a) rights to join and form trade unions that contain a clause on restrictions to an individual ICESCR right (e.g. “No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.”) abd ICESCR Article 8(1)(c) rights of trade unions to function freely which has a clause on limitations to this group right (e.g. “subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.”).

Imperiled ICESCR Rights in A Combined Health, Economic, and Security Crisis

The scope, magnitude, and strength of the COVID-19 global pandemic – and the associated measures taken to combat it – also creates conditions ripe for economic crises, and security crises ranging from the proliferation of cybercrimes and hacking to the deepening of existing humanitarian crises.  The combined global crises foreseeably imperils ICESCR rights, in an intersectional and not just a linear manner.  During crises, States will understandably invoke challenges to resource capacities and the availability of resources (including access to international assistance and cooperation), but these are not routine justifications that will in themselves automatically suffice to dispense with more thorough analysis of ICESCR rights implementation in times of crises.  Unlike the ICCPR, the ICESCR does not have a derogation clause.  

Against this backdrop of combined crises, it is urgent to continuously monitor whether States – acting either through local or federal or national agencies – are progressively realizing the ICESCR Article 12 on the right to the highest attainable standard of physical and mental health on a non-retrogressive and non-discriminatory basis, by examining the right’s core elements: 1) availability (e.g. functioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party); 2) accessibility (e.g. health facilities, goods and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party); 3) acceptability (e.g. all health facilities, goods and services must be respectful of medical ethics and culturally appropriate); and 4) quality (e.g. as well as being culturally acceptable, health facilities, goods and services must also be scientifically and medically appropriate and of good quality).

With respect to the shift to alternative work arrangements and International Labour Organization estimates of around 25 million globally unemployed from this pandemic, parallel inquiries should be undertaken as to how States implement the right to work in ICESCR Article 6, whose core elements are: 1) availability (e.g. States parties must have specialized services to assist and support individuals in order to enable them to identify and find available employment); 2) accessibility (e.g. the labour market must be open to everyone under the jurisdiction of States parties); 3) acceptability and quality (e.g. protection of the right to work has several components, notably the right of the worker to just and favourable conditions of work, in particular to safe working conditions, the right to form trade unions and the right freely to choose and accept work).  Such just and favourable conditions of work as articulated in ICESCR Article 7 were elaborated further by the Committee in 2016 through General Comment No. 23.  Social protection through the ICESCR Article 9 right to social security also has core elements that should inform our ongoing examination of State implementation of the ICESCR even in a time of crisis or emergency: 1) availability (e.g. a system, whether composed of a single scheme or variety of schemes, is available and in place to ensure that benefits are provided for the relevant social risks and contingencies); 2) coverage for social risks and contingencies (e.g. health care, sickness, old age, unemployment, employment injury, family and child support, maternity, disability, survivors and orphans); 3) adequacy (e.g. benefits, whether in cash or in kind, must be adequate in amount and duration in order that everyone may realize his or her rights to family protection and assistance, an adequate standard of living and adequate access to health care, as contained in articles 10, 11 and 12 of the Covenant); and 4) accessibility (e.g. as to coverage, eligibility, affordability, participation and information, physical access, in relation to all other human rights).  Similar analyses of core elements should be conducted for the penumbra of rights covered under ICESCR Article 11 right to an adequate standard of living, such as the right to water, the right to adequate food, and the right to adequate housing and against forced evictions.

With respect to the ICESCR Article 13 right to education, it is particularly crucial – especially given the gross disparities and inequalities in financial, technical, and human resources between educational institutions within countries and across countries – that States implement the right through core elements of: 1) availability (e.g. functioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the State party); 2) accessibility (e.g. educational institutions and programmes have to be accessible to everyone, without discrimination, within the jurisdiction of the State party – a matter of particular urgency given the fairness, equality, and nondiscrimination concerns that the shift to online teaching and distance learning provokes considering the digital divide in schools, communities, and individual student circumstances; 3) acceptability (e.g. the form and substance of education, including curricula and teaching methods, have to be acceptable, relevant, culturally appropriate and of good quality to students and, in appropriate cases, parents); and 4) adaptability (e.g. education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings).

Reviving the UN OHCHR’s ICESCR Compliance Criteria 

It cannot be emphasized enough that, whether in times of emergencies or normal circumstances, States have the paramount obligation in ICESCR Article 1(2) to ensure that “in no case may a people be deprived of its own means of subsistence.”  It is crucial, especially in a time of combined health, economic, and security emergency precipitated by the COVID-19 pandemic, that populations be enabled to scrutinize their respective States’ daily changing COVID-19 emergency measures in a manner that shifts the burden to States parties to the ICESCR to justify such emergency measures.  The UN OHCHR’s ICESCR Compliance Criteria in 2013 – which they applied to austerity measures around the world then at the height of the global economic crisis – should also apply with respect to the phalanx of emergency measures and policies that States everywhere around the world are devising and implementing as short-term, medium-term, and long-term health, economic, and security measures responding to circumstances created under the COVID-19 pandemic. 

Forcing States to assume the burden of establishing elements [cf. (1) the existence of a compelling State interest; (2) the necessity, reasonableness, temporariness and proportionality of the austerity measures; (3) the exhaustion of alternative and less restrictive measures; (4) the non-discriminatory nature of the proposed measures; (5) protection of a minimum core content of the rights; and (6) genuine participation of affected groups and individuals in decision-making processes] does not only give meaning to the fundamental and non-derogable ICESCR obligations on minimum core and progressive realization in Article 2(1), the non-discrimination and non-retrogression obligations in Article 2(2); and equality obligations in Article 3, but most importantly these inquiries invite needed transparency, individual participation, and community contribution that ensures human rights – in its full dialogic, interpretive, polemical, and normative senses – remain the center of State’s decision-making even in a time of global public health emergencies and continuing scientific uncertainty.  As I argued years ago, the cross-cutting obligations of non-discrimination, non-retrogression, and minimum core obligations remain the critical “normative lattice” for States parties to the ICESCR even in times of emergency.

Whether this global emergency ends with the arrival of warmer weather, the supposed rollout of vaccines in 18 months, or persists for much longer, States cannot cloak themselves from reporting on how their emergency measures meet the just demands to respect, protect, and fulfill their own populations’ economic, social, and cultural rights, and to avoid causing transboundary harms to the same economic, social, and cultural rights of other populations in other countries.  The UN OHCHR’s ICESCR Compliance Criteria can again help to frame how States can, and should be, accountable in the days and months ahead of battling the global pandemic, as well as in taming the worst impulses of morally hazardous State behavior in times of emergencies and crises.  We all have urgent voices to raise in State dialogues over our human rights.