Last Wednesday’s RightOn webinar consisted of an expert analysis of democracy and the rule of law amidst the COVID-19 pandemic. Towards the very end of a highly engaging discussion, the audience were invited to participate in a poll. Introduced as a ‘devil’s advocate’ question, they were asked: are authoritarian or democratic regimes best placed to respond to the pandemic? Given that the question was asked of what one can reasonably assume to be a human rights-friendly global audience, one could be forgiven for assuming that the answer would be as one-sided and obvious as asking a restaurant full of vegetarians if they would like roast beef or Tofu burgers for lunch?
The eye-catching and blog-inspiring response from the 120 (or so) sample was a dead heat: 50/50. To the obvious surprise of a number of the contributors and the co-host who introduced the poll, half of the audience appeared to be expressing a level of support for, or at least confidence in, the very ‘demon’ that much of the global human rights community has been condemning in recent weeks: the increasingly authoritarian approaches being adopted by a growing number of democratic States in their response to the pandemic.
Does this suggest that human rights and democracy is a relationship in trouble?
One might immediately respond to my question by pointing to a number of important factors, which seek to restore faith in the oft-proclaimed interdependency and mutual compatibility of human rights and democracy. Let us be clear, the audience were not asked if they generally preferred authoritarian rule to democratic governance. Nor was the answer half of them gave (depending on how one understands ‘authoritarian’ rule) manifestly at odds with a human rights-based approach to a global public health crisis. I suspect that the vast majority of people who support human rights would accept the principle that difficult balances have to be struck between ostensibly competing rights in times of acute crisis and emergency. As many readers will know, public health emergencies are precisely one of the select grounds upon which States may legitimately enact emergency legislation and temporarily suspend or limit their legally derogable human rights commitments and obligations, even if the current practices of many States’ implementation of emergency measures are not procedurally or substantively compliant with international law. Despite these important considerations, I personally think that the discernible disquiet caused by the poll cannot be so easily assuaged or dismissed.
Within human rights circles generally, the belief in the interdependency and mutual compatibility of human rights and democracy has been largely unquestioned and rests upon a number of familiar claims and phenomena. These include the essential interdependency of many civil and political rights, in particular, and any recognisably democratic system. It is also a commonplace to claim that liberal democracies are characterised, as such, by their avowed support for human rights. Others will cite the example of many human rights campaigns which have been successfully waged in support of oppressed peoples’ struggles to secure the benefits of democracy. Finally, there exists an extensive body of legally-binding and non-binding proclamations, UN declarations and Treaty Body general comments, which boldly and confidently affirm the interdependency of human rights and democracy. Given all of this, it is easy to understand why so few have questioned the health of the relationship between human rights and democracy in recent years. However, and I make no apologies for doing so now, I think there is a great need for the human rights community to do just that, and that some part of that need was revealed by the result of the webinar’s poll and the reaction it elicited.
Lest I be accused of seeking to build a mountain of intellectual and moral anxiety from the molehill of one brief moment from a mere webinar, I shall briefly refer the sceptical reader to a select sample of issues and challenges the human rights community currently faces and some which pre-date the pandemic.
As was demonstrated by the first RightOn webinar, broadcast in early April, human rights experts, including myself, take different views on where the limits of legitimate free speech may be located in the face of the pandemic. It is far from clear what a mutually supportive commitment to human rights and democracy requires of us in such instances. Consider also the growing number of US and European protests against States’ lockdown measures. Are these democratically legitimate expressions of some peoples’ opposition to what they perceive to be excessive State power, or dangerously selfish and irresponsible actions by groups of people who refuse to acknowledge the duties entailed by public health emergencies? Can one answer this question without taking sides in favour of human rights or democracy? Looking back before the onset of the pandemic, how should the human rights community most effectively respond to the so-called ‘populist’ challenge, in which growing numbers of voters in established democracies have turned against liberal democratic norms and commitments? Should we simply dismiss such manifestations of political and ideological preferences as manifestly illegitimate, as some prominent human rights defenders have argued? If we do, how can we do so without succumbing to the charge that we are (undemocratically?) seeking to impose our own, increasingly unpopular and partial ideals upon a growing number of voters who oppose us? When does a people’s human right to self-determination come into irreconcilable conflict with prevailing human rights understandings of democracy?
COVID-19 raises a vast range of questions for the human rights community. There is an urgent need to provide answers to these questions. However, before we rush to do so, we must first consider whether the answers we offer to the many challenges we face are themselves sound and secure. I hope that this brief intervention encourages some of you to revisit what many human rights defenders assumed was a relatively settled and unproblematic aspect of the theory and practice of human rights. What should the relationship between human rights and democracy genuinely be based upon and consist of? Discuss.
Dr. Andrew Fagan, Director, University of Essex, Human Rights Centre