Guest Editor’s Introduction: Social Rights and Covid-19 (IACL Research Group on Social Rights)

Gaurav Mukherjee

Central European University, Budapest

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium, Social Rights During and After COVID-19. The full set of posts can be found here.

The COVID-19 pandemic has brought into sharp focus the indivisibility and interdependence of all human rights. It has also highlighted the woeful inadequacy of ways in which social safety nets around the world have been devised and are delivered. The public health crisis has exposed not only the dangers of underinvestment in areas like healthcare and welfare provision, but also the disparate impacts this has had across sections of the world’s population.  

2020 saw us set out to reinvigorate the Social Rights Research Group (RGSR) as a forum for enabling conversation between researchers and practitioners. The pandemic has provided further evidence that access to effective social rights is a key vector in determining health and economic outcomes. It is clear that in the months to come, political and legal contestations over social rights will intensify. The RGSR hopes to be able to facilitate a wide-ranging dialogue and help connect researchers and practitioners from across jurisdictions. We want to enable the asking of difficult questions about social rights theory and practice - and the formulation of responses to them. This online symposium, co-hosted by the RGSR and IACL, is meant to accompany the relaunch of the Research Group, and brings together leading social rights scholars, many of whom also have experience in advocacy and judicial roles. 

Substantively, the RGSR will ask new questions about the relationship between social rights and the broader political and social setting in which they operate. In an age of deepening inequality, what role should government obligations play in creating a safety net to provide the conditions necessary for human flourishing? How should these obligations be judicially managed and adjudicated? In the wake of the pandemic, should courts or the elected branches be the focus of engagement for civil society coalitions aiming to demand better and more equitable access to social services? These are some of the queries which the RGSR will be pursuing, and engagement with these questions are set out in the four strands I outline below. The contributions in this online symposium engage with specific aspects of each of these strands.  

The Political Economy of Social Rights Claim-making 

The RGSR will first theorize the variance in social rights formulation and practice depending on the social and political conditions under which they operate. We also wish to focus on the constraints under which claim-making on their basis operates. The COVID-19 pandemic has shown how health crises and their attendant social and economic repercussions reinforce and harden existing patterns of vulnerabilities and inequalities. This brings into focus not only the recent debates about the role of social rights in combating inequality, but also their compatibility with some developments seen in parts of the Global South. It may be true that SR have historically been conceptualised with a vision of sufficiency and minimal standards which sit uncomfortably with the growing divide between the rich and the poor. However, it is also true that institutional actors like courts, as well as social movements, have been able to subsume their halting interventions (with varying degrees of success) within the powerful idiom of rights.  

As members of the legal profession and academy, some of us are intuitively drawn to court essentialism. Yet, it is unclear where the focus of reconstructing social rights should, or will, lie in a post-pandemic world. The RGSR will therefore situate its discussions of social rights within the broader political economy in which these rights are claimed. It will also pay careful attention to how political actors and civil society articulate their demands that are based in social rights. Take for example the response of the EU to the global financial crisis, where institutions have in the past been associated with attaching conditions like the scaling back of social services to accompany financial assistance in some countries. There appears to be some pushback against a repeat of this. The growing support for lack of conditionality attached to the ESM Pandemic Crisis Support (insofar as it relates to healthcare measures) is an encouraging first step. Yet, it remains to be seen whether future financial measures will respect the 2016 recommendations of the UN Committee on Economic, Social and Cultural Rights (CESCR), especially in relation to the conduct of human rights impact assessments of financial assistance conditionality requirements.  

In this vein, Silvana Sciarra (Constitutional Court of Italy; University of Florence) will examine the political discursive spaces which have opened up following the pandemic. She considers specifically the provision of temporary financial assistance to states to mitigate unemployment risks in emergencies. She remains hopeful that the President of the European Commission will deliver on her promising plan to reconcile ‘the social and the market,’ and implement the European Pillar of Social Rights. Her post highlights the enduring power and relevance of legal social rights in shaping political discourse.  

The Digital Welfare State 

Second, the RGSR will consider how the adoption of new technologies is ushering in the ‘digital welfare state’. This usually has adverse impacts on the formulation, realisation, and dispute resolution mechanisms for social rights delivery. Some jurisdictions are confronted with the false binary of privacy and efficient welfare delivery. Others have been forced to confront increasing algorithmization and the use of artificial intelligence tools to automate decision-making processes. The proliferating use of private actors in the detection of welfare fraud poses serious risks due to opaque standards of accountability, a lack of sufficient privacy measures, and the likelihood of discrimination and stigmatization. It is imperative that these technologies incorporate crucial human rights principles like transparency, non-discrimination, accountability and respect for human dignity, as recommended in the CESCR General Comment No. 25 (2020). 

In her post on the SyRI case from the Hague District Court, Ingrid Leijten (Leiden University) will bring to the fore the systemic risks posed by the development of a surveillance network in certain low-income identified neighbourhoods in the Netherland. Not only did this practice interfere with the privacy rights of potential welfare beneficiaries, but it also contributed to stigmatization and had an adverse effect on welfare delivery outcomes. The social, legal and political deliberations over the future of social welfare will undoubtedly need to account for the growing use of technology. The outcome in the SyRI case provides a preliminary template on how human rights principles can undergird these deliberations. 

Connecting Domestic and Supra-national Adjudication 

Third, the RGSR will consider questions relating to the relationship between domestic constitutional and supranational adjudicatory responses to changes in social entitlements. After the global financial crisis, some domestic courts in Europe were able to draw, with divergent degrees of effectiveness, on principles like non-retrogression to push back against some of the conditionality requirements attached to financial assistance. The RGSR will, therefore, engage with questions about the legality and legitimacy of the social and economic effects of supranational body responses to the pandemic. In particular, we will examine how to develop technical and analytical tools for budget analysis, as well as how to best develop manageable standards for indeterminate terms like ‘progressive realisation’ and ‘maximum available resources’. 

Aoife Nolan (University of Nottingham) will reflect on the role of constitutional social rights litigation (and adjudication) in the coronavirus era. She focuses on how different legal frameworks have been - and might be - deployed to respond to the short- and longer-term social rights challenges posed in the context of COVID-19. In addition to looking at national judicial responses so far, she considers potential points of convergence and divergence between international and domestic adjudicative approaches to social rights during the time of COVID-19. 

In a two-part post, Colm O’ Cinneide (University College, London) will first discuss the political and legal marginalization of social and economic rights. Then, Colm will reflect on their reactivation in both the legal and political spheres. He will also enumerate the challenges involved in interpreting social rights and determining when states are in breach of their obligations. In doing so, he will discuss wider issues relating to the question of how to put flesh on the bones of abstract social rights provisions.  

Meaningful Cross-jurisdictional Comparisons  

Fourth, the RGSR will draw lessons from the judicial treatment of SR across a variety of jurisdictions, assessing the implications for comparative constitutional theory. By way of illustration, consider the example of the effects of decentralization on social policy. While it would be unwise to make general claims about the impact of decentralization across social and political contexts, we do know that in many places it has led to difficulties. Some of the challenges faced in these contexts include problems with identifying responsibility for cutbacks, generating competitive social policy deregulation, as well as a fragmentation of pro-welfare state interest groups.  

The non-uniformity of this experience is attested to by Anindita Mukherjee (NALSAR University of Law, India). In her post, she will examine the role played and challenges posed by institutional structures, particularly those of centripetal Indian federalism, in safeguarding socio-economic rights in the face of the emergency action implemented to protect residents against COVID-19. She analyses the relationship that has emerged between the Union and State governments, and between the Supreme Court of India and State High Courts. She then argues that India needs to first work towards meaningful decentralization before it can attempt to operationalise a real social safety net. Her post addresses the need for investing in institutional structures other than courts to enable the successful realization of social rights. 

Marcelo Figueredo (Pontifical Catholic University, São Paulo; IACL-AIDC) will consider the constitutional and political dimensions of state responses to the COVID-19 pandemic in Brazil. He outlines the challenges to meaningful engagement over the pandemic, against the backdrop of widespread denialism at the highest levels of government. He also sketches out how inter-branch conflict has intensified as a result of the crisis. Marcelo’s post highlights how the branches of government need to work in unison, and not be in perpetual tension, in order to deliver on social guarantees. 

These four strands and the posts that engage with them represent only a part of the wide variety of discussions within academic and practitioner circles which will likely occur in the wake of the COVID-19 pandemic. The aim of this symposium is to spur conversation and public debate, while also encouraging scholarly engagement with the issues presented. I hope you enjoy the discussion – please reach out to me if you wish to be part of the Research Group on Social Rights. 

Gaurav Mukherjee is an SJD Candidate in Comparative Constitutional Law at the Central European University, Budapest. He is a co-convenor of the IACL Research Group on Social Rights and was an Indian Equality Law Visiting Fellow at the University of Melbourne, 2019.  

Suggested Citation: Gaurav Mukherjee , “Guest Editor’s Introduction: Social Rights and Covid-19” IACL-IADC Blog (12 May 2020) https://blog-iacl-aidc.org/social-rights/2020/5/12/guest-editors-introduction-iacls-research-group-on-social-rights