Symposium: Constitutional Social Rights Litigation and Adjudication in a Time of COVID-19

Aoife Nolan

University of Nottingham

COVID-19 has led to an explosion of human rights-related litigation. Given the wide-ranging implications of COVID-19 for social rights enjoyment globally and states responses thereto, it is hardly surprising that a significant portion of such litigation thus far has focused on these rights.

At the domestic level, social rights-related (albeit not necessarily social rights-premised) litigation includes actions taken with regard to access to food, quarantine conditions, access to healthcare services, provision of personal protective equipment, housing, education and social security.

Exploring Different Rights Avenues

One example of the potential role of constitutional social rights is provided by an urgent case filed on 6 May 2020 by the Katiba Institute and others. Here it is alleged that the way in which the Kenyan government is implementing mandatory quarantine as a response to COVID-19 is neither lawful nor constitutional, including in terms of the right to the highest attainable standard of health (Article 43). A decision is pending.

April 2020 saw a Malawi High Court judge grant an injunction ordering suspension of the national lockdown – a case that has now been referred to the Supreme Court of Appeal, with the lockdown remaining unimplemented in the interim. The High Court did so on the basis of an application brought by the Malawi Human Rights Defender Coalition. MHRDC argued, inter alia, that imposing lockdown without providing for social security interventions to marginalised groups in Malawian society violated the ‘directory’ principles of national policy set out in Section 14 of the 1994 Malawi Constitution. (These are a set of non-binding principles meant to guide government action toward promoting the welfare and development of citizens, and used primarily by the judiciary as determinants of the validity of executive decisions as well as secondary interpretive tools).  It was also argued that the lockdown would result in a breach of the obligation set out in Section 30(2) of the Constitution that the State ‘shall take all necessary measures for the realization of the right to development [including] equality of opportunity for all in their access to basic resources, education, health services, food, shelter, employment and infrastructure.’

In other cases, civil and political rights and other constitutional principles have served as the basis of litigation and judicial decision-making that affords indirect protection to social rights. In the United States, a Judge for the US District Court for the Central District of California issued a preliminary injunction ordering that individuals experiencing homelessness who live under freeway overpasses and underpasses and near entrance and exit ramps should be relocated away from such areas to shelter. This order specified that such shelter should meet criteria (including with regard to space and facilities) to mitigate COVID-19 transmission. In considering the likelihood of success on the merits, the court referred to a pre-COVID Ninth Circuit Court of Appeal’s decision in Martin v. City of Boise (a decision which the Supreme Court declined to review) that the Eighth Amendment of the US Constitution prohibiting cruel and unusual punishment bars criminalisation of the status of homelessness, arguing that the case ‘gave constitutional significance to the availability of shelter—which, in this context, could plausibly implicate the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments.’  Elsewhere, in making an interim order requiring the government to take a number of steps in relation to migrant workers (including the provision of food, transport to return to their home villages, as well as rapid testing and the provision of medical support in the context of quarantine necessitated by a positive test result), the Nepalese Supreme Court relied on the constitutional right to equality and the constitutional value of dignity.

Applicable Analytical Frameworks for Judicial Decision-making

We are still only in the early months of COVID-19. Thus far, much of the litigation has been focused on the immediate, urgent social rights challenges posed by the pandemic and state reactions to it. And many of the judicial outputs to date have entailed the granting of provisional and interim orders rather than detailed decisions on the merits. However, the impacts of COVID-19 will be with us for a long time. From a constitutional social rights perspective, this will require courts to engage with a range of jurisprudentially tricky issues. Perhaps the most significant of these is the approach or criteria to be employed when considering negative impacts of COVID-19-related decision-making in terms of constitutional social rights enjoyment. Will courts only employ a crisis-oriented limitations (and hence likely a proportionality) analytical framework in assessing state compliance with social rights in this time of COVID-19? Or will courts engage with the longer-term negative implications of COVID-19-related law/policy/budget decision-making using a lens shaped by an understanding of states’ positive social rights obligations (i.e. in terms of progressive realisation, use of maximum available resources and non-retrogression)? Much will of course depend on the legal framework and judicial culture in question. However, the challenges posed to courts in assessing the diverse and wide-ranging impacts of state COVID-19 action should not be underestimated.   

Indeed, this may well become a key point of either convergence or divergence between international and domestic adjudicative approaches to social rights in the COVID-19 context. It is worth noting that the quasi-judicial United Nations treaty bodies with social rights mandates have made clear their awareness of the obligation-related complexities posed by having to address the multiple negative impacts of COVID-19 in rights terms of their mandates. Examples of this include the Committee on the Rights of the Child’s COVID-19 Statement (8 April 2020) and the Committee on Economic, Social and Cultural Rights' Statement on the coronavirus disease (COVID-19) pandemic on economic, Social and cultural rights (17 April 2020). It remains to be seen if domestic courts will adopt a similarly nuanced approach: one that moves beyond proportionality - a familiar adjudicative tool to many constitutional and other courts, but one that has been developed primarily in the context of civil and political rights jurisprudence – to one better suited to engaging with states’ positive obligations in terms of constitutional social rights.  

Looking Forward by Looking Back

But what role will litigation – and courts treatment of such – ultimately play in terms of affording protection to social rights in this time of public health crisis? Part of the answer to this can be guessed at by looking backwards. The financial and economic crises that originated in 2007-8 resulted in a very significant body of social rights constitutional scholarship focused on the role of litigation and the courts in times of crisis. However, there was ultimately no clear-cut answer to the question of whether courts served as a counterhegemonic force in relation to those crises, the economic policies that caused them, and the measures introduced in their wake.  The role and approaches of courts varied from court to court, jurisdiction to jurisdiction, and over time. National experiences from Europe, Latin America and the United States made clear that it was very much not a case of “one size fits all”—whether in terms of forms of review, adjudicative interpretive approaches to social (and other human) rights obligations, implementation and enforcement strategies, or explicit judicial engagement with the crisis context in decision-making.

It is far from clear whether that will be our conclusion about the courts’ role in the context of the COVID-19 public health crisis.  Will judicial concern about the need to accord states a wide margin of discretion to deal with the public health ‘crisis’ or ‘emergency’ lead to a general spirit of judicial deference, especially where the potential impacts of the litigation are wide-ranging, polycentric, resource-intensive and socio-economic in nature? Will courts will be reluctant to make findings against state actors where doing so requires balancing of scientific and public health information that does not generally fall within the areas of expertise of comfort zones for judges? Or will the scale of the challenge unavoidably posed by COVID-19 make a more imaginative and nuanced set of judicial reactions possible? Finally – even where courts are prepared to engage with social rights and issue judgments requiring social rights’ enforcement – will states be prepared to act accordingly?

We can only watch and wait.

Aoife Nolan is Professor of International Human Rights Law and Co-Director of the University of Nottingham Human Rights Law Centre, as well as a Member of the Council of Europe European Committee of Social Rights.

Suggested Citation: Aoife Nolan, “Constitutional Social Rights Litigation and Adjudication in a Time of COVID-19” IACL-AIDC Blog (28 May 2020) https://blog-iacl-aidc.org/social-rights/2020/5/28/constitutional-social-rights-litigation-and-adjudication-in-a-time-of-covid-19