WEBINAR 9: REMEDIES & RENEWAL - Ensuring Resiliency during Crisis by Protecting Fundamental Equality and ESC Rights
Amy RAUB
25 November 2020
The impacts on health, economies, and governance of COVID-19 have been profound. They have also highlighted existing inequalities with the most marginalized population groups facing the highest risks of morbidity and mortality due to chronic health conditions and higher risk of exposure from crowded living conditions or while working on the frontline. Low-wage workers are also the most likely to fall into – or further into – poverty, as economic shutdowns eliminate many jobs, particularly in the informal economy and for those whose work cannot transition to remote. As foundations for our governments and decision making, constitutions have an important role to play in ensuring equality of opportunity including equal access to health care and equal rights at work. These fundamental protections are especially critical during the current pandemic and would strengthen our resiliency for the next pandemic or global crisis.
Approach to Measuring Constitutional Protections
To understand the approaches countries have taken to protecting fundamental rights, our team at the WORLD Policy Analysis Center has developed quantitatively comparative measures of constitutional rights. Constitutional texts are read in full by two analysts independently. Analysts answer questions about which constitutional rights are guaranteed, the strength of those guarantees, and which groups are explicitly guaranteed each right. The resulting data is then analyzed and mapped to visualize constitutional protections for fundamental rights across 193 countries. To assess how constitutional rights have evolved over time, we also examine how guarantees differ by year of constitutional adoption. Interactive maps, data downloads, and full methodology are available at worldpolicycenter.org.
Equality and Non-discrimination
Globally, before the pandemic, nearly every country in the world took some approach to guaranteeing equality and non-discrimination for at least some groups in the constitution. However, these explicit guarantees of equality or non-discrimination varied markedly by characteristic. Whereas 85% of constitutions in force as of 2017 explicitly guaranteed equality or non-discrimination based on sex, and 76% did so based on race/ethnicity, only 27% guaranteed equality based on disability status, 22% for non-citizens, and 5% based on sexual orientation.
The good news is that for many groups, these explicit guarantees seem to be increasing over time. While just over half of constitutions adopted before 1970 guaranteed equality or non-discrimination based on sex, all constitutions adopted since 2000 have done so. Similarly, guarantees of equality or non-discrimination for persons with disabilities have significantly increased, particularly in the wake of the adoption of the 2007 Convention on the Rights of Persons with Disabilities: just 12% of constitutions in force as of 2017 that were adopted prior to 1970 contained these guarantees, compared to 27% of those adopted in the 1990’s, 47% in the 2000’s, and 71% of those adopted from 2010 to 2017.
But for some groups progress is less clear. In many countries, the COVID-19 pandemic has highlighted stark disparities that persist across race/ethnicity. Although the majority of the world’s constitutions guaranteed equality or non-discrimination based on race/ethnicity, these provisions are not universal amongst recently adopted constitutions: 79% of constitutions adopted from 2010 to 2017 contained this guarantee compared to 89% in the 2000s and 88% in the 1990s. Constitutional gaps are even larger for non-citizens. These guarantees peaked in the 1990s when 40% of constitutions explicitly guaranteed equality and non-discrimination compared to 16% of those adopted in the 2000s and 25% adopted in 2010 to 2017. The absence of these protections leaves migrants particularly vulnerable during a time of widespread unemployment, when they may not have access to social supports in the country they reside, and when the ability to travel is restricted.
Similarly, while all constitutional guarantees of equality and non-discrimination across sexual orientation and gender identity have been introduced since the 1990s, these guarantees remain outliers rather than the norm and have occurred alongside explicit constitutional restrictions on the right to marry for same-sex couples.
Right to Health
Unlike civil rights, which are nearly universally guaranteed in national constitutions, only 57% of countries explicitly guaranteed an approach to the right to health. The absence of this fundamental guarantee matters both to health responses during the pandemic and to baseline population health going into the pandemic. Indeed, constitutions are more likely to explicitly address individuals’ right to medical care than public health. Forty-one percent of constitutions explicitly guaranteed a right to medical care, including 10% of constitutions that guaranteed free medical care. Yet, only 19% of constitutions explicitly guaranteed a right to public health with an additional 6% guaranteeing some aspects of the right, such as access to immunizations.
Constitutional commitments to health have increased over time.Whereas only a third of constitutions adopted prior to 1970 addressed the right to health, every constitution adopted from 2000 to 2017 included a constitutional commitment to the right to health.
Right to Education
The COVID-19 pandemic has jeopardized progress towards ensuring that all children receive a quality education. Remote learning has disproportionately harmed children from lower income households and state budget constraints pose a real threat to educational systems. More than three-quarters of the world’s constitutions provided at least some protection for children by explicitly guaranteeing some aspect of the right to education. More than half of countries explicitly guaranteed the right to free primary education, whereas only 30% did so for secondary education.
Progress towards realizing a constitutional right to education is greater amongst more recently adopted constitutions. Whereas, 61% of constitutions adopted before 1970 guaranteed some aspect of the right to education, all constitutions adopted between 2000 and 2017 did so and two-thirds of them guaranteed free primary education.
Right to Equal Opportunities at Work and Decent Work
Only a minority of constitutions explicitly addressed non-discrimination at work with just 36% explicitly prohibiting discrimination at work broadly or specifically in pay, hiring, promotions, working conditions or terminations. Slightly more common were constitutional guarantees of decent work. Half of constitutions took at least one approach to decent work by guaranteeing adequate remuneration, safe working conditions, limited working hours, rest, or paid annual leave. Nearly a third (31%) explicitly guaranteed the right to safe working conditions, which may be especially important during the public health crisis of the COVID-19 pandemic.
While constitutional guarantees of decent work are more common amongst recently adopted constitutions, the trend is less clear for prohibitions of discrimination at work. The proportion of constitutions prohibiting discrimination in at least one aspect of work has remained relatively stable since the 1980s: 50% prohibited it among constitutions adopted in the 1980s compared to 45% in the 1990s, 58% in the 2000s, and 42% of those adopted from 2000 to 2017.
Right to Income Security
The pandemic has underscored the need for income support, especially during times of illness and unemployment. When workers lack access to paid sick leave, they are forced to choose between job and income security and public health. Nearly a quarter of constitutions explicitly addressed income security during illness and an additional 19% guaranteed a broad right to social security. Similarly, 23% of constitutions explicitly guaranteed the right to income support during unemployment.
Overall, more than half of constitutions explicitly guarantee income security in at least some circumstances. While these guarantees were more common amongst constitutions adopted in the 1980s and later compared to those adopted earlier, there is no clear trend over the past 40 years towards increasing protections.
Beyond the Current Pandemic
The COVID-19 pandemic has highlighted the critical role that laws play in reducing disparities that matter to health. As foundational documents, constitutions’ fundamental guarantees of equal opportunities, health, education, work, and income security matter to reducing disparities and advancing equality. While COVID-19 has been the most severe pandemic we have faced in our lifetime, it is unlikely to be the last. Understanding where foundational guarantees of equal opportunity can be strengthened is critical to increasing our resiliency for the next crisis.
By comparing constitutional approaches to equality and non-discrimination across 193 countries, we can see areas where constitutional gaps undermine equal opportunities. For example, just a handful of constitutions in force as of 2017 guaranteed equal rights across sexual orientation and gender identity, and discrimination on these ground remains rampant across countries. Some gaps have been particularly consequential in the context of COVID-19: only a minority of countries guaranteed equal rights for migrants or persons with disabilities and the pandemic’s disproportionate impacts on these groups has underscored the urgency of adopting strong protections for equal rights. Less than a quarter of constitutions guaranteed the right to public health and 70% failed to guarantee free secondary education—both crucial to addressing the pandemic and its consequences as well as providing a foundation for the long-term health and wellbeing of individuals and countries. More than two-thirds of constitutions failed to guarantee workers safe working conditions and three-quarters did not explicitly address income security during illness. Without these fundamental guarantees in place, countries are less prepared to face public health and economic crises.
In some areas, the data allow us to see tremendous progress that has been made. All constitutions adopted between 2000 to 2017 guaranteed equality or non-discrimination based on sex, made a constitutional commitment to health, and guaranteed some constitutional right to education. At the same time, progress on other essential areas has stalled. These include equality and non-discrimination for non-citizens, prohibitions of discrimination at work, and a right to income security. Strengthening fundamental guarantees in these areas will be essential to advancing collective security and building resiliency for the next crisis.
Amy Raub is Principal Research Analyst at the WORLD Policy Analysis Center and responsible for the translation of WORLD’s comparative policy research into findings for policymakers, citizens, civil society, and researchers. WORLD analyzes over 2,000 policies and laws in all 193 UN member states in a range of areas, including equity and discrimination, constitutional rights, poverty alleviation, adult labor, child labor, education, disability, and child marriage. As the largest global policy data center of its kind, WORLD brings together policymakers, academics, and civil society to advance evidence-based policy reforms in communities around the world. Raub has been deeply involved with the development of WORLD's databases on constitutional rights, laws, and policies since 2008. She is co-author of Advancing Equality: How Constitutional Rights Can Make a Difference Worldwide and has authored 30 journal articles on constitutional rights, laws, and policies that matter to equal opportunities, health, and economic security.