The state of human rights in a (post) COVID-19 world

Abstract

As the pandemic spread globally, there was an explosion of scholarship written on the effects the pandemic had in numerous fields. Human rights scholars were no exception to this trend and sought to identify the effects of the pandemic on many related factors, including on gender violence, freedom of movement, protests, health care, and repression. Scholarship of this type, written in real time and responsive to the rapidly changing circumstances of the pandemic, was necessary for making sense of what was taking place, but provided little consideration for the long-term effects of the pandemic on human rights. Although the pandemic is not over, we believe that sufficient time has passed to allow us to think on the impact of the pandemic in a longer-term context. First, we provide a review of the existing literature on the effects of the pandemic on human rights, categorizing the literature as descriptive or prescriptive. Second, we introduce six articles contained in this special issue entitled “Beyond Complacency and Acrimony: Studying Human Rights in a Post-COVID-19 World” that in some ways address the shortcomings of the previous human rights literature. Finally, we provide concluding remarks we hope can act as inspiration for future scholarship.

Introduction

Since early 2020, the world has been gripped by an exceptional crisis: a worldwide pandemic that has killed approximately 4.5 million people as of this writing (Worldometers.info), caused a major global economic downturn, and upended all patterns of normal life. We now practice social distancing and wear face masks; we have endured quarantines, lockdowns, travel restrictions, school closings, and compulsory online work; we will undergo more testing, monitoring, and (we hope) widespread vaccination programs globally, although vaccinations have become an increasingly controversial issue. These elements count as momentous changes in the frame of everyday life for most people, without even considering the political, economic, and societal effects of the pandemic.

At the international level, the crisis has generated more acrimony than cooperation, as countries and international organizations have struggled to respond to the crisis. At the domestic level, the crisis has highlighted the relevance of leadership, state capacity, and information to devise an effective response. Looking at the typical government response, we can find elements of both coercion and tradeoff between the human rights in the Universal Declaration of Human Rights (UDHR). Governments have limited some rights (the right to movement, for example) to protect other types of rights (the right to health, most notably; Forman & Kohler, 2020; Lebret, 2020; Sekalala et al., 2020; Spadaro, 2020; Wong & Wong, 2020). The detrimental effects of the pandemic have also laid bare the vast inequalities within and across states during the pandemic, highlighting the fragility of human rights for large portions of the global population.

It is no wonder that the events of the pandemic and the responses of states to it have generated an extensive debate within the human rights literature. This debate comes in the wake of an acrimonious stand-off in the international human rights community between those who have been cautiously celebrating the worldwide improvement in human rights conditions, on one hand, and those who view the campaigns for the spreading of human rights as a bourgeois (or neoliberal) project that is both detrimental to equality and disrespectful of other cultures, on the other (Moyn, 2018; Sikkink, 2017).

The new debate triggered by the COVID-19 pandemic calls for a renewed effort in the study of human rights, one that seeks to be holistic in its theoretical approaches and comprehensive in its empirical assessments. The pandemic has highlighted the need for a theoretical framework to protect and promote human rights when the goal of preserving public health may clash with the goal of preserving human freedom, dignity, and equality. This article, and the special issue (Chiozza & King, 2022) of which it is part, contributes to this renewed effort for a novel theoretical framework in two ways.

First, our article reviews much of the extensive literature connecting COVID-19 to human rights. We organize this literature in two categories: descriptive, and prescriptive. The first category comprises literature that describes the main findings of COVID-19 on human rights. For example, studies on the impact of COVID-19 on domestic violence can be considered descriptive because these studies illustrate how incidents of domestic violence have increased because of lockdowns. Descriptive literature is important in helping scholars to understand the effects COVID-19 has had on various human rights conditions, but studies in this category often focus on the here and now rather than the long-term ramifications of COVID-19 on human rights.

A second category of literature that sometimes overlaps with the descriptive category is prescriptive literature. This strand of literature comprises studies that extend COVID-19 into existing debates in the human rights literature and seek to explain what states should, or should not, do to address the crisis. An example would be placing COVID-19 into debates regarding the legal rights of migrants (Kysel, 2021) or the impact of state policies on privacy (Eck & Hatz, 2020). This type of literature seeks to place the pandemic within the legal, ethical, and political parameters of the international human rights regime: It explains what kinds of human rights obligations states owe not only to their citizens and residents but also to people residing beyond their borders, it analyzes how specific state responses may harm human rights, and it raises alarm bells about potential abuses that may occur in the exceptional circumstances of a global pandemic.

The strength of this literature is to bring a degree of clarity to the human rights implications of state responses to the pandemic. The limit of this literature is its tendency to follow in the footsteps of each state response: border closures first, then lockdowns, then social distancing and mask wearing, and now vaccine mandates and vaccine passports. The prescriptive gaze is understandable, considering the context within which that literature was written, but nonetheless it remains a gaze that may close off the chance to detect any potential transformative effects of the pandemic on the fabric of the human rights regime.

The second purpose of this article is to introduce the six manuscripts, minus our own, contained in this special issue (Chiozza & King, 2022). We have been living with the pandemic for nearly two years. We are now at a point at which we can assess the impact of COVID-19 on human rights in a more long-term and holistic manner than the existing literature has done to date. Within the six articles of our special issue, our contributors are able to address many of the issues we highlight here. But while acknowledging that the pandemic is far from over, they also take a step forward and lay out an agenda for a new phase of scholarship on human rights.

Responses to the pandemic: The descriptive perspective

Tens of millions of words have been written on the topic of COVID-19 and human rights. Much of the literature on COVID-19 and human rights can best be described as descriptive in nature. This literature is extremely diverse but holds in common a focus on describing the deleterious effects COVID-19 has had on a variety of human rights conditions. This type of literature is undoubtedly important for our understanding of the effects that the pandemic has had on human rights conditions. However, much of this literature is limited in its scope, in many cases simply describing the effects of the pandemic on various human rights. In the following section, we provide a review of a selection of this descriptive literature, organized by topic.

COVID-19 and migrants/refugees

As COVID-19 cases emerged globally, governments struggled to stop the disease from spreading in their populations. One common policy response was the closure of international borders. This policy was intended to prevent COVID-19 from entering the country through international travelers. Measures of this type have had mixed success, but these border closure policies have had a consistently negative effect on migrants and refugees both within and without countries employing border closures.

At the beginning of the pandemic, more than 167 countries closed or partially closed their borders. Even in relatively open places such as the European Union, restrictions were put in place to prevent movement between member states (Ramji-Nogales & Goldner Lang, 2020). These types of border closures were intended to stop the spread of COVID-19 but had a devastating impact on migrants and refugees globally. Ramji-Nogales and Goldner Lang (2020), for example, pointed out that when borders were closed to all noncitizen travelers in the European Union in March of 2020, many migrants and asylum seekers from Africa became stuck in nonnative and unsafe states enroute. Even when refugees reached the borders of destination states, they were sometimes refused entry and were forced to return to their unsafe ports of origins (Crawley, 2021). The cumulative effect of border closures has forced refugees and migrants into increasingly precarious positions throughout the pandemic.

In other instances, refugees and migrants living within host states faced worsening conditions from lockdowns. Dempster et al. (2020), for instance, found that refugees were 60 percent more likely to work in industries that were most impacted by COVID-19 measures. As a result, migrants were more likely to lose their jobs, leading to increasing homelessness and food insecurity, all while being denied access to health care (Hill et al., 2021). Coupled with this, migrants have been subject to increasing amounts of vitriol and violence in many host countries, as they have been blamed for bringing COVID-19 into the states (Wang, 2020). To make matters worse, many governments have used migrants to implement policies that limit or suspend legal immigration and asylum procedures, in many cases in direct violation of the rights of migrants and refugees (Crawley, 2021; Garrett, 2020; Roksandić et al., 2021).

COVID-19 and lockdowns

To reduce the transmissibility of COVID-19, governments have commonly used lockdowns that required their populations to shelter-in-place for extended periods. In general, during lockdowns people are only allowed to leave their shelters under limited circumstances, such as for grocery store trips and medical appointments. In limiting the movements of their populations, lockdown orders were designed to prevent COVID-19 from spreading into the general population. However, as the literature shows, lockdowns have had tragic effects for a variety of populations, including for essential workers, detainees, children, the elderly, and the disabled (Openshaw & Travassos, 2020).

In particular, lockdowns have had significant negative consequences for the well-being of women in many countries (Aziz & Moussa, 2021). During the pandemic, reports of domestic violence increased in India by 94 percent (Nigam, 2020), in Brazil by 40 percent (Telles et al., 2021), in Hubei Province China by 90 percent, and in the United States by estimates ranging from 10 percent to 48 percent (Boserup et al., 2020; Agüero 2021). Unfortunately, findings of this sort are to be expected because of a well-known finding within the violence-against-women literature, that most acts of violence against women are perpetrated by family members. During lockdowns, women, many of whom can be described as vulnerable, are required to shelter-in-place with abusers. Coupled with this, during the pandemic victims have had less access to the justice system and police and social worker intervention. This effectively has disempowered women in favor of their potential abusers.

Other populations have also been shown to be highly vulnerable to lockdown measures, although this literature is much less robust in comparison to that on gender. Older adults, for example, are more likely to live alone or in nursing homes, and as a result are marginalized by lockdown measures, making them vulnerable to potential abuse (D’cruz & Banerjee, 2020). In a similar manner, the disabled have also become increasingly vulnerable to abuse during the pandemic (Quinn, 2021), with reports of increasing numbers of “do not resuscitate” orders being imposed on disabled individuals in the event of medical emergencies as an example. Prisoners have also become increasingly vulnerable, as countries have limited prison visits and oversight during lockdown (Metcalf, 2021; Muntingh, 2020).

COVID-19 and inequalities

When the pandemic was in its initial phases, some argued that it represented the “great equalizer”: Everyone—regardless of class, gender, race, ethnicity, education, or sexual orientation—was expected to be equally vulnerable to getting (and dying from) COVID-19. That prediction did not materialize. Many of the inequalities that were present prior to the pandemic led to worse outcomes for vulnerable populations, such as racial minorities, women, and immigrants, who were subject to the effects of COVID-19 to a greater degree than more privileged populations.

Several studies have demonstrated that minority and migrant populations were more likely to die from COVID-19 in comparison to white populations in Western countries. According to Wilder (2021), minorities were five times more likely than non-Hispanic white people to be hospitalized during the early period of the pandemic in the United States and were much more likely to die from COVID-19, as well.

The reasons cited for this inequality are complex: Some scholars have blamed the greater presence of comorbidities in minority populations, others have pointed out the socioeconomic determinants of healthcare. Tai et al. (2021) found, for example, that minorities in the United States were in more vulnerable positions at the start of the pandemic, with significantly higher unemployment rates than white people. Minorities were also much more likely to work in sectors of the economy that did not allow them to work from home or to quarantine (Kantamneni, 2020). Although unemployment for African Americans did not rise as high as many had predicted (Couch et al., 2020), the types of jobs African Americans worked increased their risk of catching COVID-19.

Other scholars have argued that the adverse impact of COVID-19 on minorities compared to the white population in the United States has been further compounded by minorities generally having less access to preventive healthcare services. This has meant that minority populations are especially vulnerable to either receiving subpar health care or to receiving no health care if they contract COVID-19 (Okonkwo et al., 2021). In fact, many minorities in the United States actively avoid or distrust health-care systems to such an extent that they have avoided receiving increasingly common vaccines, leading to higher rates of mortality.

Another type of inequity that has gained significant attention is the digital divide: as governments all over the world locked down, the importance of a reliable internet connection became clearer. Regardless of their location in developed or developing countries, more privileged workers were better able to adjust to lockdown orders by simply shifting from working in-person to working remotely (Wang, 2021). In contrast, workers who lack access to a stable internet connection or who work in industries that could not shift online found themselves at a greater risk of contracting the virus or losing their jobs.

The digital divide is also present in the shift toward online education. Prior to the pandemic, hundreds of millions of children attended classes in person every day, with education seen as the best chance of raising millions of children out of poverty. With the emergence of the pandemic, the world has seen an unprecedented shift toward online learning, increasing the inequities between the haves and have-nots throughout the world. In wealthier countries and regions of the world with access to stable internet connections, the shift to online learning has been relatively seamless (Davis 2021).

However, millions of children lack access to internet, preventing them from taking part in remote learning. This has placed less-privileged students at a severe disadvantage once schools shifted online. In some countries, poorer students lost access to education entirely during lockdowns, creating what is termed a “learning loss” (Donnelly & Patrinos, 2020). A particularly troubling example comes from a recent report on India, which found that tens of thousands of children lost the ability to read due to the shuttering of in-person schools (Arya, 2021).

COVID-19 and regime type

The literature on regime type and COVID-19 falls into two broad categories. One focuses on estimating the effectiveness of regime types in responding to the pandemic, often comparing autocracies and democracies. The second category focuses on the threat the pandemic represents to democracy globally, whether by focusing on the erosion of democratic principles in democracies as a result of government responses or by focusing on the use of the pandemic by authoritarian states as a window of opportunity to consolidate their repressive capacities.

When the pandemic first emerged, there was a great deal of variation in government responses. Some countries reacted almost immediately, shutting borders, canceling flights, and placing large proportions of their populations into strict lockdowns. Subsequent studies have shown that this quick response decreased the number of daily deaths attributed to the initial emergence of the pandemic. One factor explaining how quickly states responded to the pandemic was regime type, with scholars arguing that autocracies reacted faster than democracies (Alon et al., 2020).

Cepaluni et al. (2021), for example, looked at political institutions and found that states with more democratic institutions experienced more deaths than states with less democratic institutions. Cheibub et al. (2020) argued that one reason why democracies reacted slower is because some entrenched democratic features hindered government responses initially, although democratic governments were later able to enact typical lockdown measures. Likewise, Yao et al. (2022) argued that democracies had more deaths initially not because of an unwillingness to restrict democratic rights but, instead, because democracies were incapable of doing so in a timely manner. In contrast, Edgell et al. (2021) categorized how states have violated democratic standards during the pandemic and found no connection between democracies violating democratic standards and COVID-19 deaths.

Other studies have looked beyond aggregate regime type when looking for the so-called “autocratic advantage.” Frey et al. (2020), for example, noted that autocracies implemented more stringent lockdowns and were more pervasive with contract tracing. Conversely, democracies implemented less stringent lockdowns but were actually able to reduce geographic mobility more effectively. Given these somewhat contradictory and inconclusive findings on regime type, we do not have an accurate understanding of any autocratic advantage yet.

Another strand of literature has focused on the growing presence of authoritarian tactics in many democratic states. Initial efforts to combat the pandemic leaned toward the typical authoritarian toolbox: lockdowns, border closures, and state surveillance. In many countries, some form of surveillance was used initially for contract tracing (Liu & Zhao, 2021). In fact, 34 states immediately adopted digital surveillance programs after the pandemic began, with 22 of these being democracies (Eck & Hatz, 2020). For many states, including democracies, this type of surveillance has become the normal response, with domestic populations accepting this as the price to pay for response to the pandemic. This acceptance by democratic populations suggests that use of these tools represents a slippery slope toward authoritarianism in some instances.

Developments of this type have been particularly concerning for many scholars. Maerz et al. (2020) categorized the democratic principles most commonly violated by democracies during the initial stage of the pandemic and found that, although democracies were derogating on democratic principles in their responses to the pandemic, they did not experience any improvement in effectiveness at combating the pandemic. Thus, democracies were violating their democratic obligations, using more authoritarian methodologies, and receiving no increase in effectiveness.

Given this, some scholars have suggested that one of the chief effects of the pandemic is the rise of authoritarianism in many states. In repressive authoritarian states such as China, governments have used the pandemic to further consolidate their powers through such measures as greater and more pervasive surveillance capabilities (Liu & Zhao, 2021). In many authoritarian states, domestic surveillance systems were dramatically expanded, and they appear to be here to stay. In addition to this, the methods many authoritarian states used to combat the pandemic initially, such as lockdowns, are similar to normal repressive policies like a declaration of martial law and curfews. However, responding to a health crisis has allowed many authoritarian governments to bypass domestic complaints or international scrutiny in the name of public health. Thus, authoritarian states have actually used the pandemic as an opportunity to consolidate and, in certain instances, further repress their populations (Barceló et al., 2020).

COVID-19 and protests

According to Metternich (2020), 2019 was the year of protest. In contrast, 2020 was the year of the pandemic, with many fearing for the future of civil disobedience in the face of lockdowns, social-distancing rules, and other limitations put in place by governments to prevent the spread of COVID-19. Initial studies suggested that scholars were right to be fearful. Metternich (2020) found a severe decline in protest activities globally at the beginning of the pandemic. The effect of the pandemic, however, has been much more complex than simply concluding that protest activities are in decline.

If we look at protest activities from a country perspective, the answer is different than Metternich’s (2020). Ferrero and Natalucci (2020) found that incidents of engagement in protests remained high in Argentina during the beginning of the pandemic. Similarly, many countries experienced large protests in support of the Black Lives Matter movement or in protest of George Floyd’s murder (Van Dijcke & Wright, 2020). In other instances, some countries experienced widespread protests against various government measures, such as lockdowns, mask mandates, and vaccine mandates. Although initially it seemed that the future of protest activity was under threat, we now know that COVID-19 sparked further protest activity, especially among groups of people who previously were disengaged (Avetian et al., 2021). But more scholarship is needed to further explicate the effects of COVID-19 on protest activities (Clay et al., 2022).

Other scholarship has looked at the effects of protests on COVID-19 instead, asking if large-scale protests acted as “superspreader” events. Lange and Monscheuer (2021) provided an analysis of two large-scale COVID-denier protests that took place in Germany in 2020 and found that there was a significant increase in positive cases as a result. However, Dave et al. (2020) found the exact opposite for Black Lives Matter protests in the United States. This result is not surprising, as social justice protests tended to have greater mask wearing and social distancing. Thus, protest activity has been robust during the pandemic, with an increasing array of new protest tactics (Pleyers, 2020). Given this, fears of protests being severely constrained or eliminated in many parts of the world appear somewhat unfounded, but significant questions remain on protest activities in both the pandemic and postpandemic contexts (Chenoweth, 2022).

Responses to the pandemic: The prescriptive perspective

A second strand in the human rights literature also emerged at the beginning of the pandemic that we define as prescriptive. Prescriptive literature comprises studies that place the context of COVID-19 into preexisting debates within the field of human rights on such diverse topics as the right to privacy (Eck & Hatz, 2020), the right of assembly (Chenoweth, 2022), the right of movement (Ramji-Nogales & Goldner Lang, 2020), and the right to health (Forman & Kohler, 2020). Much of this literature highlights how states systematically fell short (or were in danger of doing so) of the norms, standards, and legal obligations of the international human rights regime when implementing policies in response to the pandemic. When looked at in retrospect, it appears that this literature sounded the “alarm bells” regarding state power encroaching into the realms of individual human rights across many global contexts.

The prescriptive literature also highlights several tensions that appear between government provision of different types of rights. In particular, the prescriptive literature has brought into sharp relief the challenges of providing a right to health during a pandemic—a right that is “individually held and collectively shared” (Wong & Wong, 2020)—while continuing to meet obligations for other types of rights that are directly and negatively impacted by government efforts to protect their populations from the pandemic (Toebes, 2015). This type of literature argues that “the authorities should at all times attempt to promote one hundred percent of all rights involved, and not establish a hierarchy of rights” (Du Plessis, 2021, p. 28). However, this literature also focuses on the practical realities of competing imperatives to protect populations from a global health crisis while maintaining individual autonomy, reflecting the fact that many countries have traded off certain rights in favor of a right to health. Given this, much of this literature also includes a normative element, loudly declaring state obligations to protect rights while also providing prescriptions for how to do so. In the following section, we provide a review of a selection of this literature.

COVID-19 and the dilemma of rights

When the government of China imposed draconic measures to lock down the province of Hubei in January 2020, it took steps that, according to Wang (2021), led to “China’s Covid success story” but also to “a human rights tragedy.” Wang (2021) contends that China had been able to tame, albeit not defeat, the virus at a high price—namely, the curtailment of the fundamental rights of millions of people who endured disproportionate, and possibly unnecessary, hardships amid censorship and surveillance.

Wang’s (2021) assessment encapsulated one of the central concerns of the early prescriptive literature: In the name of public health, governments would both curtail certain individual rights and expand their coercive capacity, thus inflicting long-term harm to individual freedom and autonomy. In particular, the prescriptive literature reflects concerns that any curtailment of individual rights would trigger a cascading effect of adverse consequences on the entire array of human rights, including the loss of appetite for freedom among frightened citizens (Nay, 2020). Goodhart (2020) called this dynamic “negative interdependence.”

Various studies have explicated the reasons why states would seek to expand their power during the pandemic. In some cases, government responses might be driven by inadequate or antiquated standard operating procedures endorsed by international organizations (Wong & Wong, 2020); in other cases, the decisions may be driven by the goal to avoid panic or to prevent the entire collapse of the health-care system of a country (Nacoti et al., 2020); but in some cases, the policies to combat COVID-19 may be no more than cynical attempts to consolidate power behind the veil of a national emergency (Guasti, 2020).

Regardless of the motivation, many scholars sought to remind those in positions of power that civil and political rights can be limited, but only in specific, strict, and temporary conditions (Hathaway et al., 2021; Joseph, 2020; Lebret, 2020). Spadaro (2020), for instance, delineated the terms of the debate by highlighting the rights potentially at risk from the measures to combat the pandemic: Lockdowns, masks, and quarantines would endanger the freedom of movement, the freedoms of assembly and association, the right to a private life, the freedom to manifest one’s beliefs and religion, the right to work, and the right to education.

From that, Spadaro (2020) articulated a policy recommendation that is shared across several studies (Lebret, 2020; Ó Cathaoir, 2021; Santoro & Shanklin, 2020): While international human rights law would grant limitations and derogations to states’ legal obligations in case of emergencies, citizens, activists, and scholars would need to exercise heightened scrutiny to ensure that all measures taken would be no more than strictly necessary, nondiscriminatory, and temporary.

COVID-19 and the dilemma of social rights

Other scholars have come to similar conclusions about the necessity of greater government scrutiny regarding social rights—that is, the right to health, the right to work, and the right to education. Much of this literature has highlighted the special challenges that the fulfillment of social rights entails. In particular, scholars pointed out how state responses not only revealed but also magnified several structural inequalities and patterns of discrimination across gender, race, age, and sexual orientation (Davis, 2021; Jimenez, 2021; Šehović & Govender, 2021; Theidon, 2020).

Given this, significant attention has been paid to how to determine whether government policies balance obligations toward social rights while addressing the pandemic. Article 12 of the ICESCR provided some guidance on this, stating that governments have “the burden of justifying such serious measures”¹ when derogating from social rights. To achieve this best outcome, Sekalala et al. (2020, 14), argued that “evidence-based decision-making,” which should entail “rigorous pilot studies and risk assessments,” should be carried out prior to implementing public health measures to combat the COVID-19 pandemic more widely.

Meanwhile, Flood et al. (2021) highlighted the trade-off dilemma from a human rights perspective more explicitly, arguing that government policies should comply with the precautionary principle, but from a civil rights perspective, and government policies should also comply with the proportionality principle—a difficult task for any state, as these two principles may lead to different contradictory conclusions about whether a policy—public health surveillance tools, for example—is respectful of human rights or not.

Using the Rio Declaration to articulate the precautionary principle, it maintained that, “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”² Although these words are for environmental policy, the standard for derogation of civil rights obligations is similar, but with scholars arguing that the standard of proof should be much higher: civil rights should be curtailed only if the policy is in a position to pass a much stricter test, a test that places the burden of proof on the decision maker who seeks to curtail civil and political freedoms. In one case, a policy may be adopted so long as it is not patently detrimental; in the other case, a policy may be adopted if there is positive evidence that it is beneficial (Flood et al., 2021).

For some scholars hailing from the Global South, the emphasis on the harm inflicted on civil and political rights within this debate reflects a specific Western, neoliberal bias, one that privileges the individual over the community (Bennoune, 2020; Gurmendi, 2020). Bennoune (2020, pp. 666, 675), for example, urged human rights scholars to go beyond a discourse that turns human rights into “a litany of prohibitions” and to start devising a language and an analysis that, although mindful of the reality of pervasive human rights abuses, also empowers states “to take positive action to guarantee human rights—to act in accordance with science to protect life and health, to guarantee provision of PPE, and to take effective steps to defeat the virus.” In practical terms from this perspective, that would entail limiting, if not prohibiting, large gatherings, protests, and so on that are perceived as violations of individual rights.

Scholars addressing the dilemma of public health from the utilitarian perspective were even blunter in their recommendations. Savulescu et al. (2020, p. 628), for example, wrote, “Liberty and rights are only important insofar as they secure well-being. Thus, a utilitarian approach to the lockdown question may be prepared to override the right to privacy or liberty to protect well-being.” In their view, it is a value choice: although societies may privilege freedoms over health, they need to reach a clear understanding of what price they are willing to pay for their preferences.

From the perspective of the human rights literature, therefore, the dilemma of protecting public health while maximizing individual rights remains an outstanding issue. The emerging literature on COVID-19 vaccines provides further illustration of these competing priorities that underlie the analysis of rights and obligations during a pandemic.

Vaccine policies: The new battleground

While people were facing the hardships of lockdowns and quarantines at the height of the first wave in 2020, vaccines were seen as a savior on a distant horizon. The development of safe and effective vaccines were truly the highlight of the pandemic when they were first rolled out in late 2020, as never before had humanity come together to develop an urgent preventative treatment so quickly. In fact, Santoro (2021, p. 327) argued that the pharmaceutical companies behind the development of these vaccines in record time should be praised as the unsung heroes of the pandemic: they “produced miracles and delivered us from our basements and attics” once their vaccines were approved. However, significant debate exists on the use of these vaccines: on the one hand, vaccines are seen as public goods that are humanity’s best chance of ending the pandemic and, on the other, the reality is that these vaccines have fallen victim to the realpolitik of international politics.

When it comes to vaccine policies, the primary concerns in much of the literature are (1) “vaccine nationalism”—that is, the hoarding of a life-saving preventive remedy in the hands of a few wealthy governments for the exclusive benefit of their people; (2) the potential constraints that intellectual property (IP) rights pose for the production and affordability of the COVID-19 vaccines; and (3) the criteria to allocate scarce supplies of vaccines among the eligible populations in many parts of the world (Jecker et al., 2021; Khosla & Gruskin, 2021; Santoro & Shanklin, 2020; Šehović & Govender, 2021; Sekalala et al., 2020).

According to Forman and Kohler (2020), these concerns have been shaped by the experiences of past pandemics. They highlighted that one of the lessons learned from combating smallpox in the 1970s was the necessity to tackle the crisis on a global scale: “[S]mallpox anywhere means smallpox everywhere” (International AIDS Society–Lancet Commission 2021, p. 1525). The case of HIV/AIDS is another example where the callousness of the pharmaceutical industry response provided lessons and expectations that things would be better this time around (Santoro, 2021, p. 328). In that regard, initiatives such as the COVAX program arranged under the aegis of the WHO are seen as a step in the right direction, albeit with serious concerns about effectiveness (Sekalala et al., 2020).

The appeal to an enlightened self-interest whereby no one is safe unless everybody is safe, however, has remained largely unrealized. According to a study by Oxfam (2020), “Wealthy nations representing just 13 percent of the world’s population have already cornered more than half (51 percent) of the promised doses of leading COVID-19 vaccine candidates.” About five months later, in February 2021, things were no better: According to UN Secretary General Antonio Guterres (2021), “Just ten countries have administered 75 percent of all COVID-19 vaccines. Meanwhile, more than 130 countries have not received a single dose.”

But if the current situation points to a failure of cooperation on an equitable distribution of COVID-19 vaccines worldwide, the extent to which such a failure would count as a failure to respect for international legal obligations for the fulfillment of the right to health and the right to enjoy the fruits of scientific discoveries remains a contested matter (Hathaway et al., 2021, p. 35). The extra-territorial application of international legal provisions requires a jurisdictional nexus: To that effect, Joseph and Dore (2021, p. 8) argued, “It is difficult at present to extrapolate a general duty under the ICCPR for a state to equitably share vaccines with other states, though such obligations could be evolving.”

The early analysis of the human rights implications of COVID-19 vaccines highlights a number of salient issues and provides a point of reference for assessing the extent to which those policies were compliant with human rights standards. Surprisingly, however, the early reflections on vaccine policies have remained silent on an issue that has become a contentious battleground in the politics of many countries: the refusal of people who are eligible to receive a free vaccine to get vaccinated. Such refusals may be spurred by genuine anxiety, a sense of uncertainty, and a person’s level of trust of authority and medical expertise, but they may also be fostered by the poison of conspiracy theories and fake news (Kerr et al., 2021; Loomba et al., 2021). Whatever the reasons, the people who decide not to be vaccinated often make a principled argument: my body, my choice. The corollary from that position is that vaccine mandates (i.e., policies that make it compulsory to be vaccinated) would constitute a serious breach of human rights obligations.

In what manner can the extensive literature on human rights help guide policy and help heal a serious cleavage in many societies? For a literature that had developed in a prescriptive manner—that is, by incorporating the current challenges of the pandemic into existing debates—there would be several angles for elaborating clearer positions in a contested field. Prior to the COVID-19 pandemic, the libertarian position on vaccine mandates was that mandates were consistent with the principles of freedom and autonomy as long as they were not implemented in a discriminatory manner. For example, Flanigan (2014) relied on the analogy of random gunfire in a crowded place—a prohibited act that is usually prosecuted as a felony or a misdemeanor—to conclude that “Citizens do not have the right to turn themselves into biological weapons that expose innocent bystanders to undue risks of harm.” (p. 23)

Scholars who subscribe to utilitarian ethics have reached similar conclusions through different reasoning. Giubilini and Savulescu (2019, p. 237), for example, took the risks of vaccine side effects as the starting point of their analysis and concluded that, as has been the case for seatbelt legislation in many countries worldwide, “the risks of vaccines do not constitute strong enough reasons against coercive vaccination policies and that the same reasons that justify compulsory seat belt use—a measure now widely accepted and endorsed—also justify coercive vaccination policies.” If taken into the context of COVID-19 vaccines, this argument would entail a careful assessment of the specific risks of all the different COVID-19 vaccines that have become available.

Although a comprehensive assessment of the place of COVID-19 vaccines within a human rights framework remains to be fully developed, the question of balancing different rights and navigating competing imperatives yet again emerges as a focal point for future scholarship (Murdie, 2022). Human rights scholars have long noted the issues highlighted above, but as with inequalities being laid bare, the pandemic has shown that this debate is far from over.

Human rights in a (post) COVID-19 world

At the end of an extensive overview of the status of human rights during the COVID-19 pandemic, Kjaerum (2021, p. 295) asked, “[T]o what extent will human rights play a role in the building back of societies after the COVID-19 crisis?” Underpinning that question is the concern that human rights may risk being overwhelmed by the real or imagined exigencies of post-COVID-19 societies unless scholars directly tackle the challenges raised by the pandemic. In this special issue, we take heed of Kjaerum’s exhortation. We build on the rich work we have reviewed in the previous sections and contribute to a new phase in the debate on the status of human rights for a post-COVID-19 world, with a specific focus on how to protect human rights when the imperatives of public health and the imperatives of preserving human freedom, dignity, and equality may be at cross-purposes.

Emergencies and states of exceptions create windows of opportunity to restructure the power of the state vis-à-vis society to the advantage of the state. This is the specific focus of the first section of this special issue, in which Chenoweth (2022) and Badran and Turnbull (2022) analyze how processes of authoritarianism in democracies and autocracies seek to neutralize one of the most effective tools to tame the Leviathan: the right to civil and peaceful resistance. These two contributions operate at different levels of granularity: a macro-perspective in the case of Chenoweth and a micro-perspective of case studies of Egypt and Morocco for Badran and Turnbull.

From different perspectives, both illustrate interactive processes of learning and innovation by the state as well as by civil society movements. Greater restrictions on the ability to organize civil protests do not necessarily entail a reduction in civil protests or a surreptitious power grab, as shown by Chenoweth (2022), highlighting that although some movements may disband, other may become emboldened. However, pandemic restrictions on civil protests may lead to decreased chances of success for these emboldened movements. On the other hand, Badran and Turnbull (2022) show how “overshooting” WHO guidelines, along with a reputation as a moderate reformer in the case of Morocco, may serve as a yardstick to gauge whether the restrictive provisions most governments implemented during the pandemic reflect a genuine attempt at protecting public health or if these efforts reflect rising authoritarianism globally. The conundrum between screening and constraining so aptly analyzed by von Stein (2005) remains critical in addressing the potential consequences of government actions in a post-COVID-19 world.

The second section in this special issue directly tackles the challenges and tradeoffs of maintaining human rights while fighting the pandemic. Clay et al. (2022) rely on new and expanded data that track expert evaluations of the status of human rights to assess whether, and to what extent, the pandemic altered the enjoyment of human rights. The story they show is concerning. Clay et al. (2022) illustrate that human rights conditions worsened across the spectrum during 2020. The dynamic of “negative interdependence” feared by Goodhart (2020) leaves its footprints in the Clay et al. (2022) data. But Clay et al. (2022) also illustrate that dynamics of positive interdependence may also be at play, showing that, although human rights conditions may have been more fragile than expected in many countries, they appear to be more resilient in countries that demonstrated higher commitments to human rights.

If the Clay et al. (2022) analysis points to a sliver of hope in otherwise concerning scenarios, Koo (2022) demonstrates that levels of attention (or lack thereof) devoted to human rights conditions by domestic populations is an important pathway toward maintaining respect for human rights locally and potentially avoiding negative interdependence. In South Korea, people took to social media to comment on their government’s policies; they also shared their reactions to the health crisis brought by the pandemic in other, especially Western, countries. People were less attuned to the human rights implications of the global pandemic at the local level. In the early phases of the pandemic, several scholars had urged that special attention should be given to the extent to which state responses were targeted, limited, and necessary. Koo’s (2022) analysis confirms, with hard data, how important it is to maintain a sharp focus on the status of human rights, if human rights are to be preserved in times of crisis.

The weight of structural inequalities emerges in full force in the analysis of Brysk (2022): Women’s rights found themselves under attack on several levels. The crisis has highlighted the deep reaches of patriarchy and gendered rights regimes amid rising violence against women, disproportional job losses and unequal risks of exposure to the COVID-19 virus for women, and regression in the recognition of reproductive rights. Brysk introduces a novel concept, “pandemic patriarchy,” not only to illustrate the worsening of women’s rights but also to highlight the structural conditions on which that worsening took place. Brysk (2022) makes a strong argument for a feminist ethic of care as the foundation for a novel theoretical approach that places the indivisibility, interdependence, and intersectionality of human rights as its core foundation. In so doing, Brysk (2022) sets the stage for the final section of the special issue, in which Murdie (2022) takes a bird’s eye view of the lessons that could be derived from 20 months of scholarship on, and direct experience of, human rights during COVID-19.

Murdie (2022) identifies four specific lessons for future scholarship: the need to have a better grasp of public opinion on human rights; the need to embrace a more holistic analysis of human rights beyond the near exclusive focus on physical integrity rights by quantitative scholarship; the need to address the imperative of preserving transparency and information access while combatting the poison of conspiracy theory and fake news; and the need to assess whether, and under what conditions, human rights rhetoric is strategically used to mask surreptitious power grabs or to undermine some rights at the expense of others. The research agenda laid out by Murdie (2022) shows that ingrained assumptions in the study of human rights need to be revisited. From Murdie’s (2022) analysis, we can conclude that this is not the time for either acrimony or complacency. It is a time for a new engagement for the human rights of a post-COVID-19 twenty-first century.

Conclusion

In this article, we have reviewed the extensive literature on COVID-19 and human rights and argued that much of it has been limited in scope, either by simply describing (descriptive) the effects of COVID-19 on human rights or by placing COVID-19 into existing and familiar debates about the obligation of states in times of crisis (prescriptive). We have numerous examples of studies that focus on a single human right or subset of rights, for instance. We also have numerous examples in which COVID-19 is placed within existing debates, as well. Much of this literature also lacks consideration for the long-term effects of COVID-19 in a post-COVID-19 context. As a result, we argue that not enough consideration is given to studying the effects of COVID-19 on human rights in a holistic and long-term manner. We describe the state of this literature as acrimonious and complacent as a result: acrimonious in the presence of COVID-19 in familiar and contentious debates; complacent in the lack of consideration for the long-term effects of COVID-19 on human rights in a late-pandemic and post-COVID-19 context.

However, given the all-encompassing effect COVID-19 has had on human rights, we believe that it is necessary to speculate on the effects of COVID-19 in a more holistic and long-term manner. The result of this belief is this special issue of Journal of Human Rights. Within this issue, six articles (excluding our own) cover a variety of topics, including on protests, regime type and authoritarian consolidation, public opinion and government responses, new human rights data on COVID-19, and considerations for the future.

In these articles, the authors address many of the weaknesses we have highlighted, providing some consideration for the long-term ramifications for human rights in a post-COVID context. Our special issue, unfortunately, cannot possibly address all areas of the literature on COVID-19 and human rights, however. Given this, a further objective of this special issue is to continue a conversation begun here. We hope this special issue will generate more research on the long-term and holistic effects of COVID-19 on human rights in a post-COVID context.

From our review of the literature, it is clear that significant work remains, including on topics that are largely unexplored in an academic sense. The literature on public opinion and COVID-19 is one example of this. We encountered significant numbers of articles (nonacademic) on public opinion. However, the academic literature is much sparser in comparison. One avenue we believe to be ripe for future exploration is the topic of changing attitudes toward the authoritarian toolset within many democracies and what implications this increased acceptance has for the long-term health of democracies globally.

We also encountered a significant imbalance within the academic literature on developed states and the Global South. Using the literature on domestic violence incidents as an example, hundreds of studies have gone under review on the topic from a Western perspective. However, far fewer studies have been carried out within the Global South context. Likewise, hundreds of studies have covered the derogation of certain rights in favor of public health measures from the Western perspective. However, in many cases this literature assumes there is a functioning health system present in the domestic environment that can be “traded off.” However, a functioning health system in developing countries is not a given in many instances, making this debate largely moot. Given this, we believe much more needs to be done to explicate the experiences of the Global South during the pandemic.

Acknowledgments

We would like to thank Sammy Badran, Alison Brysk, José Antonio Cheibub, Erica Chenoweth, K. Chad Clay, Jeong-Woo Koo, Amanda Murdie, and Brian Turnbull for comments and suggestions throughout the course of this project. We extend special thanks to the Sir Easa Saleh Al-Gurg Professorship for providing the support to host two (online) roundtables at the American University of Sharjah where this article, as well as all the articles in this special issue, were presented. The work in this article was supported in part by the Open Access Program from the American University of Sharjah. The article represents the opinion of the authors and does not mean to represent the opinions or positions of the American University of Sharjah or the Sir Easa Saleh Al-Gurg Group. Mistakes, omissions, and other assorted infelicities are our own responsibility.

Additional information

Notes on contributors

Giacomo Chiozza

Giacomo Chiozza is the Sir Easa Saleh Al-Gurg Professor of International Studies at the American University of Sharjah. His research primarily focuses on US foreign policy, anti-Americanism, and international security.

Jeffrey King

Jeffrey King is an Assistant Professor of Political Science in the Department of International Studies at American University of Sharjah. His research mainly focuses on the intersection between political economy and human rights.

Notes

1 These words are from General Comment No. 14 to the International Covenant on Economic, Social, and Cultural Rights (Committee on Economic, Social & Cultural Rights, 2000).

2 These words are from Principle 15 of the Rio Declaration on Environment and Development (United Nations, General Assembly, 1992).