The Gender Question: Global Constitutionalism and the COVID-19 Pandemic

Jenna Sapiano

Monash University

The COVID-19 pandemic has revealed the limitations of the United Nations Security Council’s ability to respond to a truly global crisis – although the writing may have already been on the wall with their response, or lack thereof, to climate change. The failure of the Security Council raises questions as to its legitimacy and authority in an emerging global constitutional order – that is, if such an order does exist, and is worth redeeming.

Global constitutionalism is the process of constitutionalising international law and global governance. The pandemic has offered insight into at least two limitations on the prospects for a global constitutional order. The two weak points I discuss in this post relate to leadership and structural inequality and biases.

INADEQUATE LEADERSHIP

Five million people worldwide are confirmed to have contracted COVID-19, and the confirmed global death toll now stands at over 350,000 people.  The Secretary-General, in his remarks to the Security Council on 9 April 2020, emphasised the threat that the pandemic poses to international peace and security, calling for a global ceasefire. The initial potential has waned as ceasefires adopted in response begin to collapse. A further devastating outcome of the pandemic will be widespread food shortages and famine. The World Food Programme has predicted that a quarter of a billion people will be suffering from acute hunger by the end of the year.

In light of the above, it is undeniable that COVID-19 poses a threat to international peace and security. However, the Security Council, the authoritative legal body of the United Nations tasked with the protection of international peace and security, is in a deadlock due to a political standoff between the permanent five members. The Council met in a closed (virtual) session in early April; however, it failed to adopt a formal statement or resolution on the unfolding global crisis. On 8 May, the US rejected a French and Tunisian drafted Security Council resolution reiterating the call for a global ceasefire. The failure of the Security Council to respond is in marked contrast to its relatively timely adoption of resolutions on the potentially destabilising effects of previous epidemics and pandemics, such as HIV/AIDS and Ebola. It also contrasts the General Assembly’s response to COVID-19, which adopted two resolutions in April (A/RES/74/270 and A/RES/74/274).

Unlike pandemics and epidemics of the past 50 years, COVID-19 has clearly and severely impacted members of the Permanent Five (China, France, Russia, the United Kingdom, and the United States). This may be the reason for the Security Council’s apparent inability to come to any agreement on COVID-19. Another reason for the deadlock may be the particular tension between China and the United States, arguably the two most influential members of the Security Council.

The World Health Organisation (WHO), as the international technical body with responsibility for global health, has come under criticism for supposedly failing to take a more heavy-handed approach to the outbreak in China late last year. The backlash against the WHO reflects the deepening distrust and rivalry between states – not least the permanent members of the Security Council. While other international/multilateral organisations (i.e. the G20) and UN bodies (the General Assembly and Human Rights Committee) have convened sessions and released statements, the negligible response from the Security Council has revealed the flaws in the international system. These failures were already becoming apparent with the rise of nationalism and populism.

The failure of the Security Council to act under the terms of its mandate raises questions about the role and capacity of the Security Council, and, by extension, the United Nations, to provide leadership in an (emerging) global constitutional order.

INEQUALITY AND BIAS

Even if the global constitutional order can survive these unprecedented events, the structural inequalities and biases present have become more apparent. Postcolonial and feminist theorists are understandably profoundly sceptical of a global constitution which, in theory, and practice, largely mirrors the gendered boundaries present in domestic constitutions and international law, and the geographic and racial disparities also present in international law and politics.

The pandemic, like conflict and famine, will have different, and disproportionate, global impacts on women and girls. The response to the pandemic – including self-isolation and the resulting economic and social stress – has resulted in a dramatic rise in intimate partner and gender-based violence. The Secretary-General made a statement soon after the WHO named COVID-19 a pandemic, stressing that violence is threatening women’s lives. Emerging empirical evidence has made clear just how catastrophic the effects have been on women. Women will also bear a higher burden as carers and workers in domestic and informal spaces. Famine, statelessness, and refugee status also have disproportionate and dire outcomes for women and girls.

If a global constitution is capable of delivering an international system protected by the rule of law, separation of powers and human rights, it must make women central to that system and respond to the concerns of feminist theorists. Further, it should prevent replication in a global constitution of the substantial gender inequality and gender-power imbalances apparent in national constitutions.

TIME FOR A DIFFERENT APPROACH?

This year is the 20th anniversary of the adoption of UNSCR 1325, the first of ten resolutions that make up the Women, Peace and Security Agenda. This milestone is being celebrated even as the Security Council is proving unable to usher in a global constitutional order capable of responding to global threats, particularly insofar as they relate to women’s peace and security. Perhaps these events should pique our feminist curiosity to re-evaluate the current international legal order and to imagine the possibility of a feminist global constitution?

Jenna Sapiano is a Postdoctoral Research Fellow at the Monash Gender, Peace & Security Centre at Monash University.

Suggested citation: Jenna Sapiano, “The Gender Question: Global Constitutionalism and the COVID-19 Pandemic” IACL-IADC Blog (11 June 2020) https://blog-iacl-aidc.org/2020-posts/2020/6/11/the-gender-question-global-constitutionalism-and-the-covid-19-pandemic