Can human rights law address structural inequality in the age of COVID-19?

A public housing tower on Brunswick Street and Gertrude Street, Fitzroy, Melbourne..Photo: David Jackmanson/Flickr (CC BY 2.0)
Associate Professor, ANU College of Law
Wednesday 8 July 2020

As the impact of the first restrictive measures designed to stem the spread of COVID-19 started to be felt in Australia, Australian National University Vice-Chancellor, Professor Brian Schmidt AC, FAA, FRS, won praise for taking an early stance against potential bigotry, reminding all staff and students that ‘viruses don’t discriminate and neither do we’.

The phrase became a motto of solidarity and pride at the ANU, featuring on posters across campus and promotional material. Similar sentiments were expressed by governments and other institutions around the globe.

Implicit in these statements, of course, is a recognition that while the virus may not discriminate, we invariably do – and we do in manifold, often complex ways which the virus threatened to expose.

This wasn’t hard to predict, especially for those in the health field. Epidemiologists have long charted the nexus between health outcomes and social marginality. As the WHO notes, education, employment status, income level, gender and ethnicity all have a marked influence on a person’s health.

With particularly vulnerable groups in mind, it was easy to frame the policy debate through the prism of the enjoyment of rights without discrimination. The right to clean water and sanitation, for instance, was implicated in the ubiquitous recommendation to wash our hands – a practice out of reach for millions living in poverty in the global south as well as for many in the north, including many First Nations peoples in Canada, Australia and the US. Similarly, the gap in access to health care in the US has been blamed in part for the high level of deaths amongst the African-American and Latino communities. And although difficult to define as a social group, the devastating impact of exposure to the virus on ‘frontline’ and ‘essential’ workers in Italy, the United States, China and the UK, many of whom are also from Black, Asian and minority ethnic (BAME) communities, has highlighted the cascading effects and complications of intersectional disadvantage.

Unsurprisingly, the human rights community were active early with domestic NGOs and international bodies urging governments to introduce measures to ameliorate the differential impact on vulnerable communities of both the disease and government policies. For this sector, human rights law represents a policy tool that can and should guide governments in their COVID-19 responses, supplying tried and tested principles and methodologies for striking the right balance between competing rights, as well as mechanisms for oversight and accountability, while granting governments a ‘margin of appreciation’ in their respective approaches.

It is also in this context that human rights law has started to tackle the more difficult challenge of addressing the deep structural inequalities and intersectional factors which produce disproportionately unjust outcomes in the first place.

Some of this is evident in the commentary of key actors. Thus the Committee on Economic, Social and Cultural Rights urged States, in their statement in April, to protect and mitigate the impact of the pandemic on vulnerable groups, ‘as well as communities and groups subject to structural discrimination and disadvantage.’ Similarly, in calling for ‘social protection measures’ to support those disproportionately affected by the crisis, a joint statement by 96 United Nations rights experts recognised, almost in passing, that the ‘disadvantaged socio-economic position’ of women heightened the risk of gender-based violence. More optimistically, the Special Rapporteur on Extreme Poverty and Human Rights saw the crisis as presenting a ‘once-in-a-generation’ opportunity to rethink the development model upon which the economy is based by marrying the Sustainable Development Goals with the ‘signposts’ provided by human rights law.

Yet recognising the interplay of socio-economic disadvantage and rights is one thing; implementing and acting upon it in the exercise of legislative, judicial and executive power is another, especially in the midst of a crisis.

To the extent that rights are enjoying an airing, it has been in their negative, reactive manifestations – the obligation of the State not to interfere disproportionately with certain liberties, notably the traditional civic freedoms of expression, protest, privacy and association.

At one level, the challenge falls squarely within the core promise of substantive equality that lies at the heart of the international human rights endeavour. Discrimination law offers some clues to its achievement, including positive duties to take reasonable, objective and proportionate measures ‘to attenuate or suppress conditions that perpetuate discrimination’ in the face of systemic disadvantage. The identification of ‘minimum core obligations’ of socioeconomic rights – including in the ‘equitable distribution’ of health care and the access to water – has clear applicability to government responses. Nor need this only concern economic and social rights. European rights advocates are already drawing upon the right to life jurisprudence of the European Court of Human Rights in calling for inquests into the shortage of personal protective equipment, arguing a breach of the requirement to take ‘preventive operational measures’ where a threat to life arises as a result of systematic or structural dysfunction in provision of basic services.

For the most part, however, such approaches to structural inequality still represent the traditional, ‘non-relational’ method of rights protection, focusing on getting people – usually on a case-by-case basis – through the ‘bottleneck’ of impediments to the enjoyment of their rights.

Australia, meanwhile, is an outlier to most of this global debate. Despite now having three jurisdictions with rights charters and obligations on legislatures to scrutinise legislation for rights compatibility, the public discussion on COVID-19 remains largely rights-free. To the extent that rights are enjoying an airing, it has been in their negative, reactive manifestations – the obligation of the state not to interfere disproportionately with certain liberties, notably the traditional civic freedoms of expression, protest, privacy and association. And while some of the early measures introduced to protect certain (but not all) vulnerable communities at the start of the pandemic might appear to have reflected a non-discriminatory stance, one looks in vain for a reference to rights in the statements of National Cabinet or Ministerial press conferences. Nor would many of the remedies available in other jurisdictions to expose and address structural disadvantage be available in Australian courts.

Despite the much vaunted victory of the discourse of human rights as the moral lingua franca of the age, it would appear that the methods, principles and obligations of non-discrimination law have played little if any role in the development of policy to tackle the spread of the virus. Those measures introduced to ameliorate the impact on vulnerable communities were primarily framed not in the language of rights but in the rhetoric of market stability. And in some instances, such as last week’s sudden lockdown of nine public housing towers in Melbourne, the authorities appear to have manifestly failed to consider the multiple indicators of disadvantage which might exacerbate the impact of the measures introduced.

For the rights community, it’s a familiar feeling. Calls for structural, intersecting disadvantage to be tackled as part of discrimination law reforms have historically fallen on deaf ears. Given the realities being exposed by the pandemic, it is therefore opportune that this objective forms the centrepiece of the submission of a large NGO Coalition to the UN Human Rights Council as part of the upcoming Universal Periodic Review of Australia’s human rights record.

Ultimately, however, human rights law may be ill-equipped to deal with larger underlying structural problems that hinder greater justice and equality; it may even be part of the problem, paradoxically reproducing the same marginal subjectivities it hopes to eradicate. The exploitative and asymmetrical power relationships which underpin the differential enjoyment of rights may be best tackled at the level of political action and economic empowerment, especially in a jurisdiction such as Australia which has largely missed out on the global rights revolution.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team