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COVID-19 and “New” Human Rights Symposium

Introductory Remarks

22.03.2021

Legal debates on the COVID-19 (SARS-CoV-2) pandemic, the urgently needed containment measures, the distribution of vaccines, and the protection of human rights are flourishing. A year after the WHO declared a global pandemic, countries around the world are still grappling with how to fight COVID-19 while respecting human rights. One key difficulty is that human rights both demand action against the spread of the SARS-CoV-2 virus and set limits to this same state action. While these conflicting injunctions put political leadership as well as parliamentary opposition and the judiciary under pressure, so-called “new” human rights further complexify the picture. Jointly hosted by Völkerrechtsblog and the Global Pandemic Network, the Symposium on COVID-19 and “new” human rights, which will follow this introduction, sheds light on some of the multiple ways in which the handling of the current pandemic interferes with or, instead, enhances the protection of “new” human rights.

New Human Rights – A Question of Perspective

This raises the question: what are “new” human rights? In our Call for Contributions we referred to “the right to water, the right to food, the right to a healthy environment, and the right to energy” and, thereby, named “but a few”. Some of these – and some others – will be discussed in the present Symposium: the right to a healthy environment and the right to energy, the right to science, and the right to defend human rights (defenders).

The question of what counts as a “new” human right is an integral part of the concept itself. In their recently published Cambridge Handbook of New Human Rights, Andreas von Arnauld, Kerstin von der Decken, and Mart Susi approach the issue from a more theoretical perspective. They posit novelty and recognition (or lack thereof) as two main defining features of “new” human rights (p. 2). Both are, of course, inextricably linked: having emerged only recently, “new” human rights have not yet achieved the legal recognition that more “established” human rights benefit from. In addition to the purely temporal factor, the question of contestation plays a central role: the more a “new” human right is contested, the longer the path towards full recognition will take. Having said this, the question whether a given human right is to be considered “new” is itself contested and depends very much on the adopted perspective. Regional differences may also play an important role: while from a European standpoint many of the rights are still to be developed, they may be considered as already established from a Latin-American perspective, a gap that is perhaps best illustrated by the right to a healthy environment.

“New” human rights can be linked to technological, political, or environmental changes. Some of them more than others are related to what has been labelled the “inadequacy of protection thesis”. Von Arnauld, von der Decken and Susi refer to “the incapability of established human rights to provide adequate protection for certain vulnerable or marginalised groups in comparison with others” as well as to “novel contemporary conditions [that] challenge the capability of an established human right to provide sufficient protection for an important social value” (p. 2). Whether this calls for the recognition of “new” human rights or the reinterpretation of existing human rights is, of course, in and of itself a matter for discussion (for the case for reinterpretation, see e.g. here; for a framing of “actualization”, see here). For the purposes of this Symposium, however, we retain that “new” human rights are intrinsically linked to (old and new) challenges to equality around the globe.

The COVID-19 Pandemic and New Human Rights – A Multi-Faceted Relationship

With high infection and mortality rates, the debates on COVID-19 can get lost in the global, therefore losing sense of the individual, making the question whether human rights cater adequately for the needs of marginalised groups more relevant than ever. In this vein, Bérénice Schramm opens our Symposium reimagining the discussion on vulnerability in the context of COVID-19. Alexander Gilder brings in the concept of human security by inviting a shift in perspective from the collective to the individual, asking how individuals can take ownership of their human rights to reshape the international system.

The Symposium gathers perspectives from around the world on a common health crisis. We will get insights from Brazil, Colombia, and India. However global the pandemic, it does not affect all parts of the world and all groups in one country in the same way. The unequal ways in which the pandemic has affected different regions reinforces the duty to cooperate at the international level: Bringing a perspective from the Inter-American system of human rights, Daniel Noroña compares the duty to cooperate at the international and regional levels, reinforcing the urgent need for countries to work together to ensure human rights are respected, especially in the Global South. This duty takes an even more important stance as we consider vaccine distribution. As companies around the world discovered vaccines against COVID-19, the world celebrated as we finally saw an end to the pandemic in the horizon. Yet, vaccine distribution also highlights massive inequality around the globe. Claire-Marie Richter discusses a movement in “vaccine nationalism” as each country rushes to inoculate their own populations. Calmon Dantas adds a Brazilian perspective to the debate on vaccine distribution. As one of the countries with the highest infection rates and spreading a new COVID-19 strain, Brazil has faced numerous challenges in distributing vaccines, facing inequality within the country itself. Adding to this debate, Monika Plozza specifically discusses the right to science as the ultimate normative tool to limit the spread of COVID-19 and overcome the inequalities concerning vulnerable groups.

In addition to contributions focused on specific countries, our Symposium brings perspectives from authors from different countries and parts of the world. With these multiple perspectives comes a different understanding of the concept of rights, human rights, and new human rights. Essential in the perspective of new human rights is the right to a healthy environment. As a zoonotic disease, COVID-19 has deep roots in the underlying causes of environmental degradation, including deforestation, wildlife trade, and biodiversity loss. Adding a perspective from India, S. Sathiabama and S. Vedavalli ask to what extent the right to a healthy environment was respected during the pandemic. Significantly, a parallel must be drawn on the two major crisis the world faces today: the pandemic and climate change. With this perspective in mind, Achinthi Vithanage and Robert Habermann ask whether these call for a new right to energy. Finally, the pandemic has disproportionally affected human rights defenders around the world, who now face even greater challenges to ensure that human rights are protected. With a view from Colombia, one of deadliest countries for human rights defenders, Natalia Urzola asks whether the COVID-19 pandemic can push for the recognition of an autonomous right to defend human rights.

We were delighted about the worldwide responses to our Call and are looking forward to contributing to the discussion on the COVID-19 pandemic and “new” human rights in the following days. In this vein, comments and thoughts are very welcome. We would also be happy to pursue the discussion on related issues with future blog posts, which could for example critically assess the question of “inflation” or “proliferation” of human rights.

Authors
Maria Antonia Tigre

Maria Antonia Tigre (S.JD. Candidate, LL.M., Elisabeth Haub School of Law at Pace University, J.D., Pontifícia Universidade Católica of Rio de Janeiro) is the Director for Latin America for the Global Network for the Study of Human Rights and the Environment (GNHRE), the human rights coordinator at the Global Pandemic Network (GPN) and a member of the IUCN World Commission on Environmental Law.

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Anna-Julia Saiger

Anna-Julia Saiger (LL.M.) is a PhD candidate at Humboldt University (Berlin). She graduated from King’s College, London, Humboldt University, Berlin, and La Sapienza, Rome, and is currently working at the Institute for Media and Information Law at Albert-Ludwigs University Freiburg (GER). Her research focuses on climate change litigation and international law. She is an editor at Völkerrechtsblog.

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Nesa Zimmermann

Nesa Zimmermann is a Senior Research Fellow at the University of Geneva and Co-director of the Law Clinic for the Rights of Vulnerable Persons. She holds a Ph.D. from the University of Geneva, a LL.M. from King’s College, London, and a MLaw from the University of Neuchâtel. Her fields of expertise include human rights law, migration law and constitutional law. Completed in 2020, her Ph.D. analyses particular aspects vulnerability-reasoning in the caselaw of the ECtHR. She is an editor at Völkerrechtsblog.

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