HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Sunday, May 22, 2022

Safeguarding Economic, Social and Cultural Rights during Pandemics: The Balancing Dilemma during the COVID-19 Crisis

Stijn Smet (Hasselt University), Safeguarding Economic, Social and Cultural Rights during Pandemics: The Balancing Dilemma during the COVID-19 Crisis in Human Rights in Pandemic Times: Political Exceptionalism, Social Vulnerability and Restricted Freedoms (Céline Romainville et al. eds., 2022):

The unique characteristics and sheer scale of the COVID-19 crisis prompt important questions on how human rights law can ensure accountability for human rights protection during health crises. Given its clear impact not only on civil and political rights (CP rights), but also and perhaps especially on economic, social and cultural rights (ESC rights), the COVID-19 crisis generates both opportunities and challenges for human rights law. A potential opportunity concerns acceleration of the ongoing process of ensuring accountability for safeguarding ESC rights. At the same time, the pandemic has, in the most tragic sense, revealed a series of dilemmas inherent in safeguarding human rights during emergency situations.

This chapter aims to identify key lessons from the current crisis in the hope of softening those human rights dilemma during future pandemics. First, a number of central human rights axioms are identified and applied to the COVID-19 crisis (Section 1). These axioms provide a general lens through which balancing dilemmas during pandemics of the scale of COVID-19 can be analysed. Next, a theoretical framework for the resolution of human rights conflicts is presented and applied to the COVID-19 crisis (Section 2). The framework enables an overall evaluation of the manner in which states have – or should have – tackled the human rights dilemmas involved in the COVID-19 crisis. Afterwards, the discussion zooms in on the management of the COVID-19 crisis in Belgium (Section 3). The Belgian context is scrutinized from the perspective of the lens of Section 1 and the framework of Section 2. Finally, some tentative conclusions and a couple of key lessons are identified, in the hope of making the human rights dilemma less acute during future pandemics (Conclusion). Throughout the chapter, the analysis focuses predominantly on ESC rights.

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