Editorial note: This exchange is part of the ILJ Forum series “International Cooperation and Global Governance in the Era of COVID-19 and Beyond.”
Ms. Kate Gilmore is a Fellow with Harvard Kennedy School Carr Center for Human Rights Policy. Her leadership and advocacy for the advance and application of human rights standards and norms extends over more than three decades. Ms. Gilmore has served the United Nations at a senior level, first as Deputy Executive Director for Programmes with the United Nations Population Fund (UNFPA) and, from 2015 to 2019, as the UN Deputy High Commissioner for Human Rights. Previously she was National Director of Amnesty International Australia and then Executive Deputy Secretary General of Amnesty International.
Professor Kathryn Sikkink is the Ryan Family Professor of Human Rights Policy at the Harvard Kennedy School. Professor Sikkink works on international norms and institutions, transnational advocacy networks, the impact of human rights law and policies, and transitional justice. Her most recent publications include The Hidden Face of Rights: Toward a Politics of Responsibilities; Evidence for Hope: Making Human Rights Work in the 21st Century; and The Justice Cascade: How Human Rights Prosecutions are Changing World Politics.
In your eyes, are there any important human rights mandates or projects that have been ignored or lost priority due to the COVID-19 pandemic? If so, can you provide one example and share your concerns? In your view, what are the necessary steps to put these projects back on the agenda?
Kate Gilmore:
The COVID-19 pandemic infects a world already afflicted by many contagions. Historic levels of failed progression and intentional regression plague the application of global norms and standards in general, and of human rights norms and standards specifically.
The COVID-19 pandemic also comes in the midst of rising catastrophes. Environmentally? We are in an ever-deepening and yet largely unchecked climate crisis. Economically? In the aftermath of this century’s first financial crisis, inequality has been allowed to broaden and deepen to critical levels for millions. Demographically? Wealthier populations are aging at unprecedented levels, bringing with them not the wisdom of experience it seems, but even louder expressions of fear, anxiety, and, from many, of old-fashioned bigotry. The world’s poorest, meanwhile, have never been younger: it is the largest generation of young adults in human history that today populates global poverty.
Technologically? Breathtaking, accelerated meta-change is driven by micro algorithmic innovations whose bytes and pixels call into question even the very idea of the “human.” Socially? The echoes heard around the world of the Black Lives Matter and #metoo movements; the outpouring of public protest against government treachery from Belarus to Iraq to Chile to Hong Kong. It is the brave human rights activists who, often at risk to their own safety, beg us to recognize that for millions, their lives have reached critical levels of discontentment.
So, whatever neglect, lost priority or under-performance may be said to characterize important UN human rights mandates or projects over the course of 2020, that was well in the making long before the pandemic took hold. Don’t give the coronavirus all the credit.
The Venn diagram of rejectionism of a science-based, public health policy response to the pandemic and rejectionism of human rights-based responses to global crises makes for an almost perfect overlay. President Trump walked the United States away from the World Health Organization (“WHO”) in the midst of a pandemic; but he earlier abandoned the Paris Climate Agreement in the midst of climate crisis and deliberately imperiled sexual and reproductive health and rights globally, just as the world’s largest generation ever of adolescents most needed that. And, of course, he ended U.S. membership of the UN Human Rights Council in the midst a rising nativist populism that is driving the toughest contest over global values that our generation has seen.
From a northern lookout at least, Trump often appears as the highest profiled, but the current U.S. President is far from alone among world “leaders.” He has no monopoly on efforts to trump scholarship, evidence, human rights norms, and international law the better to accrue unaccountable political power. Just take a look at Xi Jinping’s policies on Hong Kong; his cruelty to his country’s Uyghur and Tibetan communities. Consider Putin’s intervention in Ukraine; his enabling of the Syria conflict and his cruel targeting of political opposition figures. See how the faltering wheels of Johnson’s Brexit have been so casually oiled by cruel slicks of xenophobia and nativism. And France? Not much comfort from the government of Macron for the “gilets jaunes.”
Should we move our gaze then, beyond the quality of the human rights “leadership” of the Permanent Five (“P5”) members of the UN Security Council to look elsewhere instead? Perhaps to Bolsonaro’s Brazil? Orbán’s Hungary? Buhari’s Nigeria? Modi’s India? Yes, for sure, Ardern’s New Zealand is truly inspiring, but, come on now, it is no counterbalance.
My point is that there is nothing in the mandate, form, function, or membership of the international human rights mechanisms that is designed to shield them from the contagions of today’s global eco-system. To the contrary, one can argue that what is today most desired of the UN human rights system by a majority of powerful UN member states and many with the UN itself, amounts to poor and inconsequential human rights performance.
After all, it truly is a system run on the cheap. Provided the smallest proportion of the UN’s paltry income, the UN human rights system is absolutely dependent on expert volunteers and overly dependent on the generosity of a shrinking number of largely Northern states. Its influence and courage are impeded internally by senior UN people who should know better, and its external voice is stifled.
Perhaps we should be amazed that any authoritative human rights contribution at all emerges from the UN human rights bodies and mandates, given this milieu. But thankfully, the international human rights system, more often, outright fails to fail outright. And in pandemic times, despite lock downs, it has continued to turn up for human rights defence.
That said, what the 2020 pandemic has revealed, in a harsh light, is just how unwilling and ill-equipped the world’s systems of power, including those housed and hosted by the UN, are to confront and address the ongoing injuries of historical inequalities. COVID-19 poses again interrogations long awaiting conclusive answer. What will we do about the palpably unsustainable environmental and social costs of our greed and selfishness? When will we comprehensively end our tolerance of intimate and public hatefulness and violence? When will we definitively say enough already with the imposts of prejudice and bigotry? How can we end the power-hunger games of leaders willfully playing politics with global norms, universal values, and incontrovertible evidence?
To help us rise to those challenges, human rights will never be enough. Yet, as law, norms, standards, and guiderails to underpin factual, fair, just, and humane public policy and response to any number of contagions, human rights are simply essential. And as universal values for our common humanity? Exactly, what would be the acceptable alternative to the core proposition of the Universal Declaration of Human Rights (“UDHR”), on which the UN Charter also stands, that bears we all are free and equal in dignity and rights?
Kathryn Sikkink:
First let me agree with Kate on the magnitude of the multiple crises facing us, and the observation that many of these were underway well before the pandemic began. I also agree that human rights will not be enough, not in the Sam Moyn way as if human rights were somehow part of the problem, but rather to suggest that this crisis requires activation of a broad range of global governance and foreign policy actions beyond human rights. But our expertise is on rights, so I want to focus on the contours of a human rights and responsibilities approach to the pandemic.
In my recent book published before the pandemic: The Hidden Face of Rights: Toward a Politics of Responsibility, I argued that to more fully implement human rights, we need to place more emphasis on the responsibility of all actors, and not just states, to take action together to make sure rights are enjoyed. This argument has turned out to be particularly relevant to the COVID-19 pandemic. Even if all governments were taking efficient action, but many other actors, including corporations, international organizations, and individuals did not also do their share, the crisis could not be addressed. Pharmaceutical corporations, for example, have responsibilities to make sure the vaccine is produced, priced, and distributed in such a way that it can reach the greatest number of people. But, as we are seeing in the United States, unless individual people believe that they have a responsibility to protect their own health and the health of others by actually agreeing to be vaccinated, the pandemic will continue. And not only that, but the science deniers are using arguments about rights to justify their decisions not to wear masks, not to social distance, and not to vaccinate. In other words, today the language of rights has become so powerful that it is being used to deny any responsibility to protect the rights of others.
Building on the work of Iris Marion Young, in The Hidden Face of Rights, I argue that all actors socially connected to structural injustice and able to act, need to take action to address the injustice. One problem with the word responsibility is that people often use it in the common legal meaning focused on who is to blame or liable. This is what Iris Young has called backward-looking responsibility or the liability model. But instead of talking about legal responsibility, I am focusing instead on ethical and political responsibility that is forward-looking. This kind of responsibility asks not “who is to blame,” but “what should we do?” Forward-looking responsibility is necessary to address the COVID-19 pandemic and to think about what we should do in the world after the pandemic.
This framework is useful in the context of the COVID-19 crisis because it involves both a range of rights and responsibilities of many actors. Our right to health, but also rights to liberty, freedom of movement, to education, to information, to food and shelter are all at stake. States have found themselves trying to exercise their responsibilities to protect the right to health at the same time as they balance it against these other human rights. This balancing of rights is foreseen in the UDHR, which speaks of limiting rights to “respect the rights and freedoms of others.” The UDHR goes further, however, and recognizes that each of us has “duties to the community,” and its preamble calls on all of us to promote rights. The drafters were keen to highlight that realizing the full potential of the UDHR was a collective effort. To protect our collective right to health, we may need to recognize that we have a right to freedom of movement, but also a responsibility not to travel in certain circumstances; a right to education, but a responsibility to accept that it may be suspended temporarily or delivered online.
Some states are doing a far better job at exercising responsibility than others. The U.S. case is especially worrisome, where the national and global dangers of a narcissistic nationalist leader hostile to science and facts could not be more apparent. I was fortunate to spend the first half of this year in Uruguay, where I was able to live under a very different set of policies, where state policy was led with science and built upon decades of efforts to provide health care and education to all. Uruguayans voluntarily complied with government policy and cases and deaths stayed at a low point for the region, compared to very high levels in Uruguay’s close neighbors, Brazil and Argentina.
A forward-looking rights and responsibilities approach suggests we need more well-coordinated national and international responses. More and better global governance is necessary for solving the COVID-19 crisis and the economic recession that has grown out of it. The election of the Biden/Harris administration promises a more responsible and cosmopolitan approach from the United States. The fact that Moderna, the company that has currently developed one of the two most advanced COVID-19 vaccines, has said that it won’t enforce the vaccine patents during the pandemic is another promising sign, as are the WHO COVID-19 technology access pool, and some of the multi-stakeholder initiatives around vaccines, such as Gavi, the Vaccine Alliance. Some diverse actors are stepping forward to take responsibility to implement the right to health.
Kate Gilmore:
The COVID-19 pandemic, being both universal and exceptional in the pace of its impact, is a truly global crisis. But one wonders how might its gravity and urgency have been assessed—were it “merely” rampaging through the Global South and not also through the Global North? Were it not also reaching (albeit with less grave implications) the wealthy and the powerful, but instead only those who, having the fewest resources, can least well withstand its burdens? Those who are without the health insurance to manage the catastrophic costs of sudden illness? Those without the personal financial reserves to manage the catastrophic loss of income? Those without a home to retreat to during lockdown, or whose housing makes the idea of social distancing laughable, or for whom, because of intimate violence, the home is no haven?
It is bad. It is a life-threatening pandemic. Yet the COVID-19 pandemic brings many more into touch, albeit all so lightly, with that which for years, in far, far graver forms, has been the daily experience of the peoples of conflict-ridden Yemen and Syria, of Iraq and Afghanistan: daily fear for the wellbeing of loved ones; daily impediments to freedom of movement; daily deprivations of free exercise of the rights to work, to income, to education, to health. Such is the daily plight too of the Dalit, the Uyghur, and the Rohingya. And, of multiple indigenous peoples, the world over. A gravity too for those adolescent girls who, being pregnant after sexual assault, are not merely abandoned but actively punished by the state—deprived of their right to education, to information, and to choice.
My point is that not only has COVID-19 flourished amidst known (i.e. entirely foreseeable) inequalities and long-unsolved crises, but the massive public push for a vaccine-based “solution” to it, as life-saving as we hope that will prove to be, shows also how narrow the narrative is about the “answer” and why we might be wise to be skeptical of claims that a COVID-19 recovery will see a world “built back better.”
It also reveals nonetheless that extraordinary public-private cooperation can be commandeered, when the powerful wish it to be and invest so that it can be. This also begs the question: why are some problems of global scale and deep human injury deemed worthy of intensive even global cooperation—all-hands-on-deck—solutions while others are not?
In other words, as Kathryn so rightly underscores, the shaping of the world’s COVID-19 response and recovery efforts is a time to be expansive in our human rights expectations, such that both private and public actors are challenged to meet human rights demands more holistically and, as she has argued, such that the many other dimension of human rights claims are engaged for the sake of our future, rather than rely solely on (retrospective) legal accountability as the only or primary way in which human rights are relevant.
With regards to corporate actors, to some extent, the UN human rights system has paved the way already. The UN Working Group on Business and Human Rights, a special procedures mandate, has helped foster the annual UN Forum on Business and Human Rights into the world’s largest gathering on business and human rights, bringing hundreds of companies into oft-times robust conversations with hundreds of human rights experts each year.
Open-ended working groups reporting to the UN Human Rights Council on such as an international regulatory framework for private military and security companies and on transnational corporations and other business enterprises with respect to human rights show there is some appetite among member states for strengthening the application of normative frameworks to business. The UN Global Compact, enjoying its 20th anniversary, calls on businesses to voluntarily align their strategies and operations with human rights. Today it has sign-up from nearly 12,000 companies the world over. The UN Guiding Principles on Business and Human Rights further elaborate the measures that business enterprises, as specialized organs of society, should take and these have been detailed specifically for companies’ commitment to LGBTI equality .
The UN Treaty Bodies, Special Rapporteurs and independent experts on human rights—through their various thematic and country mandates—have also identified a range of ways, topics and settings in which corporate actors have—and should be judged as having—human rights responsibilities. Their recommendations are forward-looking and future-oriented.
From the evolving duties of digital giants (i.e., Committee on the Rights of the Child; Special Rapporteur on Freedom of Expression) to companies’ responsibilities in respect of toxic waste; from the condemnation of commercial actors wrongly rendering housing merely a financial commodity to the call for strong regulation of military arsenal production given leap frog advances in armed drones; from questions of trade and investment to the general comment by the UN Committee on Economic, Social and Cultural Rights on the role of the state parties in regulating business, the UN human rights system has been working to break ground on the roles and responsibilities of business. Even the big pharma has been addressed. As early as 2008, the Special Rapporteur on the Right to Health set out Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines. And, this year alone at the time of writing (November 2020), those many mandates have issued 117 press releases, 13 tools, and 18 reports on COVID-19 alone.
However, for all that effort, attention, and activity, for all that socializing of human rights among the corporate actors as values, principles, and good practices, still we have not been led far enough, quickly enough. As the CEO and Executive Director of the Global Compact, Sanda Ojiambo, explained to the 9th Annual UN Forum on Business and Human Rights, held just this month— November 2020—“relying solely on voluntary measures simply will not get us where we need to be.”
We need urgently more effective legislation, more relevant jurisprudence, and more authoritative efforts by legal experts if we are to bring human rights into fuller application to corporate actors, including to those involved in the production, testing, and dissemination of vaccines.
Kathryn Sikkink:
If we really were having a chat in person, Kate, I would have so many questions for you about your experience at the Office of the High Commissioner in these momentous times. I read your first intervention as a survey of the human rights problems that have been brought urgently to your attention, that predate the pandemic, but are nevertheless exacerbated by it. The editors asked us to provide one example in particular of human rights mandates or projects that have lost priority, but it seems as if it is almost impossible to choose one among so many issues.
Your second intervention begins to take on another question: do we think that the Covid-19 situation could also be an opportunity to push forward reforms or projects that are critical but did not attract enough attention before? You suggest that the pandemic could bring many more people in the Global North in touch with the daily experiences of people in conflict ridden and repressive societies around the world, which in turn could contribute to positive change. This suggestion is supported by a literature on ideas and norms in world politics that argues that change is often more likely in the wake of crisis and failure. The UN itself and its human rights system were born out of the tragedy of WWII and the Holocaust. But crisis alone is not sufficient of course, and we also need leadership and new ideas, qualities currently in short supply from most states.
You also argue that the pandemic reveals that “extraordinary public-private cooperation can be commandeered, when the powerful wish it to be and invest so that it can be.” But you suggest that only issues of concern to the Global North are deemed worthy of intensive global cooperation. The rapid development of vaccines gives this impression at the moment, but I do not think the history of the pandemic to date reveals that powerful actors cooperate only when their interests are at stake. In my Global Governance course this semester, in fact, we used the COVID-19 as an example of failures in governance. In an early class, we asked why global cooperation and governance had been so much more effective in the case of malaria, a leading killer in low income countries, than it had to that point for COVID-19. Approximately 400,000 people in the world die annually from malaria, compared to the 1.7 million who have now died from COVID-19. A very concerted global campaign against malaria involving extraordinary public-private cooperation helped avert 7.6 million malaria related deaths since 2000. Indeed, some of the rapid vaccine development for COVID-19 builds on earlier ongoing vaccine research for other diseases, including SARS and MERS. The Oxford team that has developed one of the key COVID-19 vaccines was in a position to move ahead quickly because they geared up after the Ebola crisis “to tackle the next big one.”
The final paragraphs of your second intervention list a whole series of recent initiatives that are a testament, in fact, to the ongoing dynamism and resilience of human rights movements and human rights institutions, despite all the problems you so correctly identify in your first intervention—lack of adequate funding, lack of leadership and political will from most states, and direct attacks from other states.
In my 2017 book, Evidence for Hope: Making Human Rights Work in the 21st Century, I argued that there was an “epidemic” of pessimism about human rights. This was written well before the COVID-19 pandemic. But I refer to this book to remind us that human rights work, since its inception, has always been about struggle. There is no golden age in the past where human rights work was easy and well accepted. The period between the end of the Cold War and the start of the so-called war on terror has been identified as a high point for consensus on human rights norms, and yet during this period mass atrocities were perpetrated in the Balkans and in Rwanda. But even that momentary period of consensus was the exception, not the rule. Yet, over the longer term, these often weak, underfunded and sometimes vilified human rights movements and institutions have contributed to human rights progress, including a decline in genocide, a shrinking number of people killed in war, decreasing use of the death penalty, and improvements in poverty, infant mortality, and life expectancy, as well as advances in gender equality, the rights of sexual minorities, and the rights of people with disabilities. Even as I write this, I know that many readers will not believe it. I encourage you to read the data and analysis I provide in Evidence for Hope.
I do not argue that people should have hope right now in this moment of the pandemic. COVID-19 has been the deadliest infectious disease since the Spanish Flu pandemic of 1918. It is killing people all over the world, with increasingly severe impact on vulnerable people and people in the developing world, especially in Latin America. But why is it that well before the pandemic so many people believed that human rights violations in the world were getting worse rather than better? The short answer is that we think the world is worse off because we care more and know more about human rights than ever before. The media and human rights organizations have drawn our attention to an increasingly wide range of rights violations around the world. Their success in doing so sometimes inadvertently causes people to think that no human rights progress is occurring.
In Evidence for Hope, I use this history and data to tell not a triumphalist history, but what Albert Hirschman would call a “possibilist” one, focusing not on what was probable, but on what, with commitment and struggle, was eventually possible. It is exactly because of the work of people like you, Kate, and the many many other human rights advocates around the world that such change has been possible, and could continue to be possible in a post-pandemic future. Thank you.