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Excerpted From: Hakeem Yusuf and Philip Oamen, Realising Economic and Social Rights Beyond COVID-19: the Imperative of International Cooperation, 32 Indiana International & Comparative Law Review 43 (2022) (144 Footnotes) (Full Document)


YusufandOamenSince the end of the Second World War, no “human crisis” has had such a pervasive, devastating impact on the global landscape as the current Coronavirus (COVID-19) pandemic. Since the World Health Organization (WHO) declared it a pandemic on March 11, 2020, COVID-19 has not only shaken the global and domestic, public and private health systems, it has also unsettled the economic, social, political, civil, cultural and communal foundations of the world with grave implications for human rights. In addition to its significant impact on civil and political rights (CPR) like freedom of movement and association, the coronavirus pandemic has had a grave impact on economic, social and cultural rights (ESCR).

A remarkable aspect of the pandemic is that it does not respect the development status of any country. Analysts have described it as a “public health crisis without precedent in living memory” that has brought “the third and greatest economic, financial and social shock of the 21 Century.” With a fifth of the global population in a lockdown at some point, the ability of people to secure a means of livelihood, enjoy an adequate standard of living, and maintain the highest attainable standard of physical and mental health have all been significantly impaired. To cushion the effect of the health crisis on these rights, many countries have rolled out emergency legislation and policy measures to contain or minimize its impact within their jurisdiction.

While the various national measures that have been implemented to mitigate the effects of the COVID-19 pandemic are commendable, the globalized nature of the crisis requires global cooperation to achieve sustainable outcomes. The U.N. has declared that there is a need for the comity of nations to address this unprecedented situation with a creative, coordinated, and collaborative response, as “no country will be able to exit this crisis alone.” Therefore, experts in international public policy have noted that “[i]nternational cooperation is indispensable [and] [n]ationalism is not helpful.” National inability may be “the nails in the coffin for already frail global governance,” as a nation's inability to handle the crisis within its territory will have a spiraling global effect. The concerted efforts required to address the COVID-19 pandemic effectively are emblematic of the need to embrace international cooperation for realising ESCR.

This paper adopts Third World Approaches to International Law (TWAIL) to problematize the nationalistic approach to realising ESCR. It makes a case for a paradigm shift from the dominant nationalistic approach to the realisation of ESCR to an international cooperation-based model. The International Covenant on Economic, Social and Cultural Rights (ICESCR) is the foremost, binding international legal instrument on ESCR. This model focuses on operationalizing provisions of the ICESCR on international cooperation in the realisation of economic, social, and cultural rights. The provisions of the ICESCR take forward the agenda of the United Nations with specific reference to ESCR. Thus, there will be complimentary references to relevant provisions of the United Nations Charter.

The COVID-19 pandemic has shown that the current nationalistic approach is deeply problematic and unsustainable. Interestingly too, the paradigm is antithetical to the historical context of the development of international human rights law. In particular, the establishment of the United Nations and its human rights system at the end of the Second World War, for achieving peace through human rights, strongly supports the case for international cooperation as the model path for realising ESCR. Furthermore, there is a salient normative basis for an international cooperation model as the choice approach to realising ESCR, namely that the obligation of international cooperation is a binding one. The Committee on Economic, Social and Cultural Rights (CESCR), the body of experts responsible for monitoring the implementation of the ICESCR by States parties, has explicated this obligation in various general comments.

The remaining part of the article is set out as follows. Section Two examines the current dominant nationalist, unilateralist approach to ESCR and argues that it does not accord with the normative expectations of the ICESCR. The relationship between TWAIL and ESCR is the focus of the analysis in Section Three, while Section Four presents the argument for setting aside the dominant unilateralist approach to realising ESCR. The focus shifts in Section Five to an evaluation of the jurisprudence of the CESCR on international cooperation and assistance in the ICESCR. Section Six is a TWAIL critique of the current regime for realising ESCR. The conclusion in Section Seven is that it is high time the continued violation of international law, inherent in the neglect of international cooperation for realising ESCR, is abated.

[. . .]

Operationalizing the neglected human rights treaty provisions on international cooperation for realising economic, social and cultural rights provides a veritable handle for mitigating and managing a global crisis as brought about by the current COVID-19 pandemic. Developed countries cannot justify applying U.N. Charter provisions to civil and political rights in developing countries while ignoring the ICESCR's provisions on international cooperation in those same countries. There is a need to call time-out on the practice of maintaining two distinct normative orders in the workings of international law. The U.N. Charter, the ICESCR, and the CESCR jurisprudence recognize international cooperation in realising ESCR. Arguably, it has become a part of international law. Noncompliance is tantamount to a violation of the law. The international community should focus on how to best deploy the existing normative and jurisprudential architecture on international cooperation, with an emphasis on helping people in the developing countries meet their ESCR needs. This approach would help the international law or legal system purge itself from being an order that was orchestrated by powerful states as an instrument of their power deployed onto less powerful states. Indeed, there is a need to “distinguish between the international law of 'coexistence,’ governing essentially diplomatic inter-state relations, and the international law of cooperation, expressed in the growing structure of international organisation and the pursuit of common human interests.”

Professor of Law and Global Studies, School of Law and Social Sciences, University of Derby, United Kingdom. 

Doctoral Researcher and Teaching Associate, Birmingham Law School, University of Birmingham, United Kingdom.

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