Human rights and structural inequality in the shadow of Covid-19—A new chapter in the culture wars?

One aspect of human rights law’s much vaunted (and critiqued) hegemony is that there are few areas of public endeavour that cannot be viewed through the lens of their rights-related ramifications. It is therefore unsurprising to find that from the first murmurings of measures designed to stem the spread and impact of COVID-19, human rights lawyers had something substantive to say, casting dire predictions should governments not act in concert with basic rights obligations, and providing guidance for how to tackle the pandemic consistent with the principles of humanity and equality ostensibly underpinning the discipline.To the extent that pandemic measures restricted basic civil and political rights, such interventions adopted tried and tested methodologies for assessing the necessity, reasonableness and proportionality of the limitations, there being little dispute that the protection of public health during a pandemic represents a legitimate objective. Much of the litigation challenging governmental decisions, the pre-enactment scrutiny of legislative amendments¹ or the critique of the expansion and aggrandisement of executive powers has focused on these parameters of the debate.A related thread, of course, has been to ensure that such measures are non-discriminatory in their intent and impact, protecting the more vulnerable in the community from both unintended harm and unthinking oversight. Again, international human rights law is presented as providing useful guidance for this exercise in policy-making, from the positive duty to take reasonable, objective and proportionate measures ‘to attenuate or suppress conditions that perpetuate discrimination’²to the identification of ‘minimum core obligations’³of key socioeconomic rights, including in the equitable distribution of health care and the access to water, so crucial to government responses to the pandemic.Indeed, the metaphor of the ‘tool kit’ of rights is ubiquitous in the commentary, alongside the notion that they provide a ‘lens’ for looking at the crisis with clarity and humanity.⁴Both characterisations reflect an instrumentalist approach that betrays a certain bravado, a certain faith, or at least trust, in the relevance and efficacy of the human rights method. The question rarely asked, perhaps surprisingly given rights scholars’ propensity to be hard on our discipline, is whether it is, in fact, up to the task. Is human rights practice and theory, in other words, equipped to address the challenges posed by the pandemic? The question becomes all the more pertinent when it comes to a core challenge presented by the very scale of a pandemic—tackling the structural inequalities which shape and determine the (un)equal enjoyment of basic rights, especially the right to health.From an epidemiological perspective, it was not hard to predict that the pandemic would have a disparate impact on different communities. Epidemiologists have long charted the nexus between health outcomes and social marginality.⁵ Factors such as education, employment status, income level, gender and ethnicity all have a marked influence on a person’s health. This was evident early in the pandemic, and could at first blush be readily analysed through a rights lens. 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,⁶ including First Nations peoples in Canada, Australia and the United States (‘US’).⁷ Similarly, the racially-constructed gap in access to health care in the US was identified as responsible in part for the high level of deaths amongst the African American and Latinx communities.⁸ Precarity, moreover, took on many unexpected guises, such as the devastating impact of exposure to the virus on ‘frontline’ and ‘essential’ workers—new, ill-defined categories for the purposes of discrimination law, where the most poorly paid members of the workforce overnight became the most valued.⁹ The fact that so many such workers came from minority and lower socio-economic communities further highlighted the cascading effects and complications of intersectional disadvantage.¹⁰Given this context, and surveying the many comments, documents and instruments promulgated by academics, non-governmental organisations (‘NGO s’), treaty bodies and special procedures over recent months, there is a sense that for many in the epistemic community of rights advocates this is a moment—an opportunity—to leverage the confluence of public health and human rights,¹¹and to employ the language, principles, institutions and influence of the human rights movement to tackle the structural and intersectional impediments to the enjoyment of equal rights ‘exposed’ by the pandemic.¹²This article considers whether international human rights law and its institutions are in fact equipped with the ‘tools’ to meet these core structural challenges. It does this by taking as its principal case study the movement to recognize and address racism as a public health crisis, a largely grassroots initiative that has drawn more upon on the interdisciplinary work of public health advocates than the language and principles of human rights, despite the clear applicability of the latter to its critique and agenda. Although predating 2020, this movement received unprecedented impetus from the confluence of two related phenomenon with global import: the pandemic’s manifestly discriminatory impact, and the new visibility, voice and political viability of the Black Lives Matter (‘BLM’) movement. The article considers the relevance of this moment to international human rights law, the adequacy of the response from its key institutions, and the conservative backlash to these developments challenging the very idea of structural racism. In doing so, it argues that we seem to be witnessing a new stage of the culture wars around the language, method and assumptions of human rights law with which the discipline must engage pragmatically and strategically.