The Myth and Mayhem of ‘Build Back Better’: Human Rights Decision-Making and Human Dignity Imperatives in COVID-19

Human rights were already under siege everywhere around the world before COVID-19.  But there is also a dawning race now against reaching the ‘twilight of human rights law’, due to: 1) authoritarian regimes’ dismissal of the relevance of human rights while using this pandemic to expand and consolidate their power, such as to silence speech, quash dissent, dismantle media, or execute mass arrests, detentions, or shootings; 2) the growing prevalence of utilitarian reasoning that instrumentalizes human rights as just a set of ‘costs’ that can only be met by a privileged few; and 3) the resurgence of the age-old relativist attacks on ‘universal’ human rights, seeking to recast the latter as mere forms of ‘Western neo-imperialism’ against today’s new hegemonic powers such as China. The latter claims had long been debunked in Steve L.B. Jensen’s excellently researched historical and archival analysis rejecting the putative exclusivity or dominance of ‘Western’ authorship of international human rights instruments, stressing evidence of the crucial role in the 1960s of Asia, Africa, and Latin America in the elaboration, drafting, and interpretation of Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

Crises – natural or man-made – are conducive for normalizing the open, as well as the latent and creeping, lawlessness of ubiquitous human rights violations around the world. They also lay bare a continuum of hard policy choices for most local levels of leadership, parliamentary and presidential systems of government, as well as the array of primarily State-driven international organizations within our multilateral system.  What tends to be neglected in the myth and mayhem of public and private decision-making to “build back better” during and after natural or man-made disasters, however, is that none of us can afford to pause testing and justifying any such decision or response against our mutual commitments to respect, protect, and fulfil each person, group, community, and population’s human rights. Neither can we afford to wait to do this ‘after’ the crisis has supposedly passed, and long after reconstruction and rebuilding plans are well underway. There can be no life of actual human dignity – what Paolo Carozza famously defines as the equal moral worth of all human persons – without building human rights into any vision of a post-COVID future.  I argue four imperatives below to achieve this end.

First: Internalize Human Rights in Decisions at Every Level and Every Sector

The United Nations reports that millions around the world are at risk, under threat of, or experiencing daily human rights violations. Often what gets depicted is a hard trade-off between different constituencies of rights-holders all seeking to protect their basic human rights, whatever measure or response is taken to address this pandemic.  Frontline health workers demand priority provisioning in global supply chains and faster procurement of medical supplies to save both COVID-19 patients and retain capacity to address all other life, death, or health challenges, even as these workers themselves see ongoing erosions in their own human rights to safe working conditions. Businesses seek to reopen as soon as possible notwithstanding the escalating health risks, to stave off spiraling economic consequences and forced layoffs. Colleges and universities are now scrambling to adapt to providing education that fulfills their pedagogical objectives consistent with their institutional rights to academic freedom, while faced with duties to ensure safe working conditions for employees and the due care of students’ welfare, mindful of respondeat superior or vicarious liability doctrines in tort law.  Families increasingly suffering from furloughs, unemployment, food shortages, mounting debts, and looming bankruptcy or poverty will press hard for governments’ humanitarian and health assistance to ensure their basic rights to survival and a life of human dignity.  Prisoners in mass incarceration facilities around the world are among the most vulnerable to this pandemic, facing increased risks of death sentences from dense, overpopulated, and dire prison conditions and overall governmental neglect. Indigenous populations face greater threats to their existence, with poor health and medical services at the outset already exacerbating their vulnerability to COVID-19. More ‘national security’ laws have been passed to authorize government surveillance and harsher law enforcement sanctions, such as that soon to be imposed by Beijing on Hong Kong.

And yet, under this climate, the World Health Organization (WHO) simply exhorts that there should be “a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights.” But the WHO does not say how that balance is to be struck, who does the balancing, and which of us will be heard, much less get to participate in the daily decisions that leaders at all levels are taking to affect our way of life.

When the full spectrum of our economic, social and cultural rights to health and environmental safety, just and favorable conditions of work, education, an adequate standard of living (including food security, housing and protection against forcible evictions), social security, equality and non-discrimination are besieged daily right alongside our civil and political rights to freedom of movement, expression, assembly, religious worship, privacy, freedom from torture, and rights to fair trial and due process, policymakers bear the duty to ensure that their short and long term decisions will meet the demands for continued respect, protection, and fulfilment of all of these rights, according to States’ resources, abilities, and legal obligations.  To this end, the UN Office of the High Commissioner for Human Rights (UN OHCHR) issued its 13 May 2020 COVID-19 Guidance, briefly examining all dimensions of the pandemic’s impacts on civil, political, economic, social, and cultural rights.  While this text appears largely framed from the standpoint of State or governmental decision-making, it is equally landmark and important in that it seeks all non-State actors (communities as well as the private sector) to purposely internalize human rights in their decision-making processes and responses during this pandemic.  This is a key step, going far beyond the predominantly State-centric focus of the UN OHCHR’s recommendations during the 2008 global financial crisis. 

Second: Keep Human Rights Fact-Finding Channels Open

Human rights fact-finding in these times has never been more challenging, if not outright dangerous especially for human rights defenders around the world. States’ decision-makers around the world have invoked necessity and national emergency powers to justify suspensions, limitations, or derogations from human rights obligations owed to their populations, often leaving it to lawyers and courts to determine in the future if a government’s emergency measure is legally justified as an appropriate calibration of human rights and necessity.  In the COVID-19 pandemic, around 100 countries from all continents of the world have declared states of emergency to expand governmental powers on all fronts, presumably to deal with all the uncertainties of this pandemic.  Independent reporting and open verification of State conduct is difficult, notwithstanding creative new technological tools such as the Human Rights Measurement Initiative Rights Tracker, the COVID 19 Disability Rights Monitor, or even Thailand’s own UNAIDS-funded Crisis Response Monitor. Many tracking and reporting tools depend on the ability of local populations to report human rights violations as they occur, which can be impaired by resource problems such as poor internet access in developing countries under lockdowns (known as the pandemic ‘digital divide’), or governmental restrictions against media (if not the outright closure of independent media as recently occurred in the Philippines, for example) during states of emergency.

The human rights fact-finding attempts are not directed towards State conduct alone.  The World Health Organization (WHO) is now the subject of a resolution drafted by more than 100 countries around the world, seeking, among others, an:

“impartial, independent and comprehensive evaluation, including using existing mechanisms, as appropriate, to review experience gained and lessons learned from the WHO-coordinated international health response to COVID-19, including (i) the effectiveness of the mechanisms at WHO’s disposal; (ii) the functioning of the IHR and the status of implementation of the relevant recommendations of the previous IHR Review Committees; (iii) WHO’s contribution to United Nations-wide efforts; and (iv) the actions of WHO and their timelines pertaining to the COVID-19 pandemic.” (at OP9.10 of the draft resolution)

The violations of civil, political, economic, social, and cultural rights are as viral, unrelenting, mutating, and unabated around the world as COVID-19.  Less than a few months into 2020, reports are surfacing on mass arrests (by China against Hong Kong activists, the Americas, El Salvador, Bangladesh, among others), and law enforcement and security forces’ brutality supposedly clothed with the law and emergency wherewithal to shoot, maim, or otherwise kill persons charged with breaking quarantine regulations (in the Philippines, Nigeria, South Africa, Uganda, and Kenya, among others).  Individual privacy rights are eroding from digital surveillance and the mass harvesting and mining of personal information and other data, through a myriad of contact tracing applications that may appear initially benign but could ultimately fail data transparency and accountability tests.  It is very telling that no less than the UN Office for the Coordination of Humanitarian Affairs (UN OCHA) – usually more focused on immediate delivery of humanitarian relief and institutionally reticent on routine monitoring human rights violations – is now calling for proactive “monitoring [of] anti-democratic trends and human rights abuses in the age of COVID-19”.  Precisely because documentary and forensic evidence of human rights violations could be readily destroyed or manipulated, or key witnesses could be threatened or disappeared by human rights violators in these times of vast emergency powers, we cannot wait for the pandemic to pass before we begin human rights fact-finding locally, nationally, regionally, and internationally.

Third: ‘Resilience’ needs Remedial and Reparative Human Rights Accountability 

UN Secretary-General Antonio Guteres places human rights at the center of the global COVID-19 response, emphasizing the following six interconnected human rights messages:

“1. Protecting people’s lives is the priority, protecting livelihoods helps us do it: dealing with the economic and social impact alongside the public health response

2. The virus does not discriminate, but its impacts do: inclusive responses to a global threat to ensure no one is left behind

3. Involve everyone in your response: participation in open, transparent and accountable response

4. The threat is the virus, not the people: emergency and security measures, if needed, must be temporary, proportional and aimed at protecting people

5. No country can beat this alone: global threats require global response

6. When we recover, we must be better than we were before: The crisis has revealed weaknesses that human rights can help to fix.”

While laudable, one has to note that the Secretary-General’s emphasis appears more on human rights promotion and protection, and not on institutionalizing human rights accountability and human rights reparations.  This, in my view, is deeply problematic, because setting aside human rights accountability and human rights reparations in designing COVID-19 responses simply aggravates and marginalizes the inequalities and injustices that existed long before this pandemic. Structural and institutional solutions and prescriptions to merely “build back better” under disaster risk reduction terms – which is what the Secretary-General’s emphasis resonates – will only deepen the cleavages under which human rights violations flourish, grant impunity to perpetrators of human rights violations and shield them from the reach of genuine rule of law, and thus further entrench the abuses against human rights victims for years to come.  ‘Resilience’ cannot be truly achieved if we simply keep turning human rights remedies and reparations into policy afterthought, leaving today’s human rights victims by the wayside of flawed thinking on ’emergency first, justice later (or never)’.

Fourth: Rekindle Human Empathy to Reanimate Human Rights

Most importantly, forgetting the human in human rights is what enables human rights violations to normalize.  My own experiences hailing from the developing world tend to provoke skepticism about the usually well-meaning – but at times unrealistic or unsustainable – programmatic, institutional, organizational, top-down, State or non-State ‘solutions’ in disaster risk reduction rehabilitation and recovery that focus on achieving ‘resilience’ as a matter of development assistance, rather than constantly and intentionally testing these programs against the systemically impacted civil, political, economic, social, cultural, environmental, and labor rights of the affected local communities involved.  When donor fatigue sets in, or international strategies find domestic governance capacities inadequate or corrupt, or when development assistance simply moves on to the next crisis or disaster, it is ultimately local communities themselves that have every stake to stay on and rebuild (often on the backs of remittances from family networks or trusted informal community initiatives with overseas NGO contacts).

If there is one thing humility did teach me from working with colleagues in times of upheavals from natural disasters (frequent hurricanes, tsunamis, volcanic eruptions, earthquakes, food shortages) or man-made catastrophes such as dictatorships and extrajudicial killings in the Philippines and Southeast Asia, it is that it is ultimately our ability to empathize with fellow human beings inside and outside our communities that spurs concrete action. Those kinds of lasting committed actions appear to stem from the consciousness that human rights do pertain to all, regardless of birth or circumstance in life, because people saw their connectedness with others first.  It is not always easy to conjure that empathy unless it keenly touches our sense of home. Even as I write, thousands of my compatriots serving around the world as Overseas Filipino Workers are frontline health care workers as nurses, doctors, nursing home caregivers, emergency medics, among others – a reality that makes COVID-19 and its human rights impacts more vivid to me on a daily basis.  But how others live through their pandemic may be radically different, and thus impel other actions, plans, or policies.  Solidarity only goes as far as one imagines common interests.

In this sense, we might have to start rethinking of global affairs, at its core, as ultimately local, depending on the dimensions and reach of our human empathy. The historian Lynn Hunt argued that it was the pervasiveness of Enlightenment values throughout popular literature and cultural contexts, that decisively ripened the seeds for our collective human imagination to conceptualize and transform ‘rights of man’ into universal ‘human rights’ that glacially, incrementally, and painstakingly extended across races, sexes, groups, and peoples.  In this pandemic, how do we rekindle our sense of human empathy to seek human rights for all, beyond the constructed boundaries of Statehood, as well as the literal and figurative walls and political stalemates, within policy-making in the international system that today determine who lives, who dies, who thrives, who is heard, and whose human rights matter?  The task ahead for envisioning a ‘new’ international law system beyond its present gridlocks might well be to help us all envision a ‘home’ that authentically includes all – core and periphery, hegemons and the smallest island-States – because of our shared universality through human dignity and human rights. Most, if not all, of us will always fight for home.