The Human Rights Lessons from COVID-19: Equality Requires Economic and Social Rights Protections

Last week, Michigan officials released statistics indicating that black people make up 40 percent of the state’s COVID deaths, despite the fact that only 14 percent of the state’s population is black. Coronavirus has exposed the myriad ways that structural discrimination and exclusion put people living at, or close to, poverty at the greatest health risk. Globally, communities hit the hardest by the pandemic are the same communities that have been discriminated against and denied political power. This is certainly true in the United States. A map of the virus by zip code in New York City illustrates that low median income is a predictor of positive testing for COVID-19. The hardest hit zip code includes Rikers’ Island jail. Data from North Carolina also demonstrates racial disparities in viral infection. The impacts of the virus also uncover deep inequities in wages, work, healthcare access, and a range of social protections. So do the responses. The solutions that many people take for granted — stay home, social distance, wash your hands – are impossible for individuals that must continue to work, those who don’t have shelter, and individuals who lack water and sanitation.

Basic economic and social rights, including water and sanitation, are essential for basic health and to prevent transmission of COVID-19. In countries around the world, we see how failure to ensure access to water and sanitation makes already marginalized populations even more vulnerable to risk of illness. In the U.S., the lack of access to adequate and affordable water and sanitation, which results from neglect and exclusion, disproportionately impacts black, Latinx, and indigenous communities. These communities now must weather the worst of the pandemic.

The disparities so clearly before us today cannot be addressed in the absence of laws and policies calibrated to protect economic and social rights. Despite this reality, which is firmly grounded in international human rights law, the Trump administration continues its efforts to downplay the significance of economic and social rights and evade responsibility to protect them. The public face of this effort is the Unalienable Rights Commission, launched in July of 2019 by Secretary of State Mike Pompeo. As others have detailed, the Commission aims to provide “fresh thinking” on human rights.

When launching the Commission, Pompeo openly indicated an intent to narrow rights and reset U.S. policy priorities. He has pointed to a predetermined agenda that deprioritizes economic and social rights (ESR) protections, which he has referred to as “ad hoc” – in contravention of existing international human rights norms.

This notion that economic and social rights can be downgraded is motivated by the erroneous belief that if the government simply leaves individuals alone, societies will thrive. Under this view, society is at its best when governments take a hands-off approach, and therefore, laws and policies that aim to ensure equality and secure economic and social rights are inappropriate.

This proposed reimagination of human rights deprioritizes ESRs in contravention of bedrock international human rights principles. It also ignores the reality that economic and social protections are essential to the ability to exercise true freedom.

From the earliest documented effort to use the United Nations as a vehicle for accountability for racial injustice (1947), to the March on Washington (1963), to the current Black Lives Matter Movement and the Poor People’s Campaign, struggles for human rights have linked economic and racial justice. Civil and political rights may be necessary, but they are insufficient. Without corollary laws and policies that foster an adequate standard of living for all, true freedom eludes many. As civil rights leader A. Philip Randolph recognized, in 1942: “[A] community is democratic only when the humblest and weakest person can enjoy the highest civil, economic, and social rights that the biggest and most powerful possess” and that engaging in a domestic “fight for economic, political, and social equality, thus becomes part of the global war for freedom.”

Five years later, in 1947, the NAACP submitted one of the very first petitions to the U.N. The Appeal to the World challenged the laws and policies perpetuating inequality and discrimination and emphasized that economic justice and social well-being were fundamental to address racial inequality. The Appeal underscored that “the Emancipation Proclamation and the 13th, 14th, and 15th Amendments were not sufficient to overcome the handicap of 250 years of chattel slavery in the economic struggle which characterizes an industrial civilization.” It also highlighted that “[g]overnmental non-action … is partly determinative of the present legal and social status of the Negro.”

In 1947, it was clear that inequality could not be addressed without economic and social rights. The same is true today, as genuine equality remains elusive. Despite significant gains in legal protections against discrimination, racial and ethnic disparities abound across almost all social indicators. The failure to embrace and protect economic and social rights has left many behind and entrenched inequality. Compared to OECD countries, the U.S. ranks poorly along indicators of income inequality and the poverty rate. According to 2016 data from the Bureau of Labor Statistics, black and Hispanic individuals are twice as likely to be among the working poor than white or Asian individuals. This stays constant even for those with a higher education degree. The U.S rates last in healthcare access and quality when compared to similarly wealthy OECD countries. When we take stock of where we are, it is clear that an approach that eschews economic and social protections leads to poor outcomes across the board, but communities of color are the most negatively impacted.

To address these persistent inequities, domestic social justice organizations continue to center economic and social rights in the fight for equality and racial justice. Today, efforts to foster equality by addressing disparities in in heath and maternal mortality are framed in human rights terms. Support for the right to housing proliferates, underscoring that affordable, adequate housing is a fundamental component to a life with dignity. Across the country, from California to Pennsylvania, there is mobilization to secure the rights to water and sanitation, and for laws and policies that implement these rights, which are essential to life and health.

These efforts are grounded in human rights because internationally recognized human rights standards underscore that economic and social protections, including adequate and affordable water and sanitation, are essential to an adequate standard of living. When law and policy fail to guarantee these protections, equality remains elusive and human rights are out of reach.

The Universal Declaration of Human Rights (UDHR), one of the foundational articulations of human rights, aims to promote freedom and justice, premised upon “dignity” and “equal and inalienable rights.” Inherent in the UDHR is the understanding that providing for individual freedoms alone would never achieve a fulsome vision of human rights. The UDHR places economic and social rights on equal footing with civil and political rights. And subsequent human rights treaties spell out the links across the full panoply of rights. Fulfilling civil and political rights, as well as economic and social rights, entails positive and negative obligations.

The U.S. has long resisted the enforceability of economic and social rights. Historically, this led to impacts that include the bifurcation of UDHR principles into two separate treaties and weak mechanisms for human rights monitoring and enforcement. U.S. resistance has also resulted in limited treaty ratification by the U.S.

The Commission’s work so far, indicates that its “fresh thinking” takes aim at core human rights principles. Statements released in support of the Commission too, include significant mischaracterizations of existing global human rights norms. Together, they depict an effort to create a new hierarchy of rights that downplays the equal status of economic and social protections.

Yet, U.S. opposition to economic and social rights does not negate the reality that ensuring equality requires more than prohibiting discrimination and ensuring due process. It is an ongoing and proactive affair. Respecting and protecting human rights cannot be passive, nor can it be done by cherry picking which rights to protect.

The articulation of human rights norms is much more than a philosophical or academic debate. When governments fail to promote and protect the full panoply of human rights, the impact is felt by communities on the frontlines of human rights struggles. COVID-19 illustrates this in life and death terms.

A circumscribed vision of human rights will perpetuate a system where true freedom is enjoyed only by a privileged few – those who can afford it.

The Unalienable Rights Commission may be just another example of backlash against human rights through U.S. policy – a formal manifestation of attacks on the international norms that provide for dignity and an adequate standard of living for all.

While the U.S. cannot unilaterally redefine global human rights laws and protections, U.S. positions on human rights may influence interpretations of human rights law in the U.S., as well as in other countries, and shape the work of multilateral bodies.

There is certainly precedent for establishing sham commissions, like the Voter Fraud Commission, that purports to protect basic rights and institutions while in reality undermining them, and wasting resources. To avoid a similar fate, the Unalienable Rights Commission should ground its findings in globally recognized norms and reaffirm the full panoply of human rights found in the UDHR and subsequent human rights agreements.

More on the connections between economic and social rights and racial justice, and potential impacts of the Unalienable Rights Commission can be found in the April 3rd joint submission to the Commission by the Columbia Law School Human Rights Institute and the Center for Rural Enterprise and Environmental Justice.

Image: Emergency Medical Technicians bring a patient into Wyckoff Hospital in the Borough of Brooklyn on April 6, 2020 in New York. Photo by BRYAN R. SMITH/AFP via Getty Images

 

About the Author(s)

JoAnn Kamuf Ward

Director of the Human Rights in the U.S. Project at the Columbia Law School Human Rights Institute and Supervisor in the Human Rights Clinic. Follow her on Twitter (@JoAnnKWard).