Human Rights Compliance and International Cooperation in Times of Covid-19

The coronavirus outbreak has left society and the global economy staggered, claiming from governments the most varied responses which often impacted rights and freedoms. There is no easy method for balancing conflicting human rights or the collision of those with public interest. The discussion seems to have never manifested so intensively, alongside with state commitment to such rights, recently put to the most draconian test. Multiple pre-existing circumstances that contributed to the vulnerability of society are emerging, accentuating inequalities, elevating disadvantage levels - especially for particularly at-risk groups - and impacting other rights. It is not deprived of sense to assume that if more resources were directed to building a stronger base for human rights concretization in the past, we most likely would be in a more favourable position to tackle a pandemic such as the one we today (still) face.

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To argue how and to which degree human rights have been recently affected, one should have in mind that there are different degrees of national constitutional protection of such rights around the globe, a consequence of not only the multiculturalism but also the pluralism of political systems, level of democracy, commitment to international treaties and its subsequent implementation, and other institutional, cultural, economic and social aspects. It is also relevant that, while international treaties and customary law together comprise the backbone of international human rights law, guidelines, declarations and principles are also valuable instruments that contribute to their full comprehension and implementation. International human rights law implies to states the duty to respect, protect and fulfil human rights, a typology advanced by Asbjorn Eide in the 1980s while analysing rights in the matter of international cooperation for the Norwegian government, with the goal to better define the line between human rights and states obligations, including their responsibility to act upon market relationships.

More closely, as they were conceived, the duty to respect involves that a state should abstain from interfering with the levels of enjoyment of a human right that is already implemented, established. The second goes on to saying states should not remain completely passive while private actors are responsible for human rights violations, meaning they should actively interfere in such situations. Lastly, the third duty, to fulfil, represents the active, positive obligation of the state to contribute to the total and full realisation of human rights and to guarantee the progress, either in terms of the right’s enjoyment by the individual or in the states own gradual progress.

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Between the two main categories of human rights, civil and political rights are endowed with solid and stronger formal and material protection, also because they serve individuals negatively, protecting them against state abuse and are composed by the so-called liberties or freedoms, such as the right to life, self-determination and the freedom of religion. Diversely, economic, social and cultural rights (ESCR), usually presuppose a progressive realisation over time – which does not mean states are not bound to have a structured plan of action, in accordance with its obligations under international law – and require, not unlike the first category but more intensively, a bigger financial investment. Not to dismiss any unifying theory and its merits, but without the proper regard to the differences they entail, no effective concretisation can be foreseen. Precisely while states and people under its jurisdiction are undergoing an unstable economical, sanitary and political occasion such as the COVID-19 outbreak, ESCR face their most vulnerable point in time. It became evident recently with the level of unemployment rising, its subsequent effect on public finances and with the right to health, predicted for example on Article 1.1 of the International Covenant of Economic, Social and Cultural Rights, being compromised at a dimension and speed many states where not equipped to administer, merely as an example.

There is, inescapably, a necessity to strengthen efforts towards the respect, protection and fulfilment of human rights, equally to all, and with special attention to ESCR, as the pandemic does not consequently excuse governments from respecting the minimum core of guaranteed rights, as is does not automatically lead to the possibility to trim human rights due to an imminent crisis. The response, on the contrary, evidences the indispensability of balancing public interest and order with individual liberties, with regard and emphasis to human rights.

A self-centred approach has proved to be of no positive outcome and no country is completely safe to assume is has eliminated the risk of new outbreaks of the virus, even when cases are under control and vaccination plans are already in course. Looking at the Portuguese case, an example among others, at the first and second wave, last March and October respectively, the country was internationally congratulated for its effective response and overall control over the number of cases. However, a slight softening of the measures in force during Christmas time aligned with the spread of the new more transmissible variants of the virus, detected in the UK, Brazil and South Africa, lead to catastrophic effects – hospitals in the most affected areas quickly running out of care beds or at full capacity and a public health system on brink of collapse – which led Portugal to have the highest number of coronavirus cases in Europe per capita for at least seven days straight. The Health Minister, Marta Temido, affirmed the Portuguese government activated all mechanisms, including international aid requests and “European help” to guarantee proper medical care to people under its jurisdiction, and admitted the possibility to “send patients” to other countries, not an uncommon procedure but specially inserted in the present context, it only highlights the importance of pre-defined, well-structured and fully operational cooperation policies, at both regional and international degree.

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Conclusion

We must improve multilateralism, integrating solidarity at all levels, from individual to state authorities, so that an ever-growing collective spirit of transparency and collaboration can proliferate, leading to awareness, education and better exercise of democracy. It is not a straightforward or uncomplicated direction, yet this is a concern that reports to all of us. By reinforcing human rights compliance synchronically with international assistance, cooperation and implementation of national and international policies that aim to fulfil human rights - in an inclusive and integrative network system that brings to the discussion not only decision-makers and world leaders but also governmental and non-governmental organisations, academics, researchers and representatives so that all relevant segments of society partake in the definition of solutions and strategies – we might be further equipped to surmount the recovery years ahead of us and even other future (not completely) unpredicted adversities, such as the COVID-19 pandemic.

Marjorie is an Italian/Brazilian jurist who graduated from the University of Coimbra and is a current LL.M student specialized in Legal and Political Sciences & International Human Rights Law.