COVID-19 already has caused a global health crisis and massive economic disruption. But another ominous geopolitical threat is looming. COVID-19 has seeded new doubts about the efficacy of democratic, human rights-based governance and provided authoritarians with an opportunity to challenge this model in the global arena. Erosion of democratic confidence during the pandemic has stemmed from a combination of self-inflicted wounds and external rhetorical assaults. The best way to combat this threat is through effective values-based leadership and action on COVID-19. But what does that look like in practice?
A basic promise of democracy is that governments are obligated to protect both the security and the liberty of citizens. Yes, there are always inherent tensions between security and liberty, and finding the optimal balance in practice is difficult, especially in an emergency. Governments face genuinely hard choices about how to respond to security threats without overreach. And civil libertarians are right to remind us of how frequently governments use security concerns as a guise to justify violations of civil and political rights.
But in the COVID-19 context, neither the seriousness of the public health threat nor governments’ responsibility to combat the virus is in doubt. Protecting the public from a pandemic is a valid reason for new security measures. The hard question is which ones are legitimate, even if they infringe on liberty, and which are not. The task for democracies is to combat the public health threat vigorously without unnecessarily undermining such core civil and political rights as privacy, freedom of movement, freedom of assembly and association, freedom of expression, and democratic participation.
So far, governments worldwide—many of them democracies—are buckling under pressure from the crisis. New forms of unchecked mass surveillance and data collection via digital tools have been deployed throughout the world. Emergency decrees have been passed in places as varied as Armenia, South Africa, Bosnia Herzegovina, and Vietnam, suspending freedom of movement, freedom of assembly, and freedom of association. The virus has inspired rampant disinformation about the disease and treatments, as well as propaganda about government responses to the crisis, sometimes from political leaders. In response, multiple laws constraining free expression and access to information have sprung up, many of which criminalize the spread of misinformation about the virus or government responses to it. Botswana has criminalized the spread of any information about the virus that does not come from the Director of Health Services or the World Health Organization. In Argentina, the Ministry of Security is carrying out “cyber patrols” of social media to track down individuals accused of “public intimidation” about the virus, which is now a crime punishable by up to six years in prison. Last but not least, elections have been postponed in more than 50 countries, often to legitimately protect against health risks, but sometimes without promise of being reinstated.
All this points to a serious geopolitical risk: The democratic, human rights-based governance model, which has served as the normative pillar of the international order for the past 70 years, could be the next casualty of the virus. Democratic governments must demonstrate how to simultaneously protect public health and human rights, or they will lose the mantle of global leadership in 21st century.
The international human rights law framework can provide a practical way forward.
Built into each of the core civil and political liberties enshrined in the International Covenant on Civil and Political Rights (the primary international treaty on these rights) are principles about when derogation of these liberties may be permitted. Restrictions are only allowed if they are necessary to achieve a legitimate government purpose, such as protecting national security and public safety—or public health. They must also be proportionate to the threat and legal, which essentially means there is public notice and sufficient clarity to enforce the restrictions.
In the COVID-19 context, measures such as digital contact tracing, collection of personal health data, mandatory quarantines for travelers, and restrictions on public gatherings may be legitimate, even though they impinge on the full exercise of several civil liberties. But each proposed restriction must be rigorously analyzed. Democratic governments have a responsibility to conduct human rights-impact assessments of the digital tools they deploy and the emergency regulations they enact, and then to articulate to the public why those new measures are necessary to combat the virus and proportionate to the threat.
But most democratic governments are failing on two fronts: first, in combatting the virus effectively, and second, in applying human rights analysis to the emergency measures taken. On the first front, a few democracies, most notably South Korea and Taiwan, were relatively decisive in responding to the virus. Both had learned lessons from previous outbreaks (2003 SARS and 2015 MERS), and developed more effective public health infrastructure and data sharing protocols. In South Korea, millions of citizens voluntarily downloaded mobile contact tracing apps developed by the private sector. In Taiwan, incoming travelers were required to download an app to help enforce a mandatory 14-day quarantine. The efficacy of these responses was due, at least in part, to public trust and citizen willingness to follow recommended steps within their control to dampen the spread of the virus.
Sadly, the responses of many other democratic governments were deficient. Many were woefully ill-prepared, even after getting notice that this type of pandemic was a realistic possibility. Even worse, some exacerbated the threat with confusing public messaging and misinformation about the disease or treatments. The inept response by the U.S. Federal government is a tragic case in point. Such failures erode public confidence in the competence and credibility of government—and in the democratic governance model itself.
But beyond demonstrating competence in protecting public health, democratic governments also must articulate how their tactics meet the test of necessity, proportionality, and legality. Generally speaking, this has not happened. Many democracies have enacted emergency measures normally associated with authoritarians, such as sweeping police powers, bans on public assembly, suspension of elections, closure of courts, intrusive surveillance, and closed borders.
What’s missing is that democratic governments should have differentiated their measures from typical authoritarian tactics by incorporating a variety of features to check their new powers, such as sunset clauses to terminate emergency measures; guarantees that data collected is only used for public health purposes; minimization of data collected to what is necessary; firewalling data collected for health from data for law enforcement, immigration, or commercial purposes; and by providing vehicles for independent oversight of these commitments. These features have not been embedded into most new COVID-19-related emergency rules and practices.
As a consequence, the legitimacy of many effective measures, including social distancing mandates, contract tracing apps, and emergency regulations to prohibit public gatherings, are now suspect in several communities. Many of these measures might have been assessed to be reasonable, legitimate restrictions on civil liberties given the context. But democratic governments bear the burden, even in a crisis, of transparently communicating the rationale for restrictions on liberty to citizens. This is how democratic governments build citizens’ trust. And this is also how democratic governments are supposed to differentiate themselves from authoritarians.
But if democratic governments fail to engage in human rights assessments of their own tools and regulations, or to include reasonable checks on their own emergency powers, it is hard to criticize authoritarian governments for the same failure. This is how the battle to sustain the global rights-based government could be lost.
Finally, adding to the crisis of competence and confidence within democracies is a threat on the geopolitical front. China has launched an international propaganda campaign to highlight the ineffective democratic response to COVID-19, casting itself as the new and superior model of competent global leadership. China’s argument is hard to buy and probably won’t work, especially in light of growing awareness that basic information coming out of China about the number of COVID-19 cases or deaths is not trustworthy. But claims about the superior performance of authoritarian governance models in the crisis are gaining traction in some regions and may tempt some governments to step away from their human rights commitments.
We are in a narrative battle over what type of governance model should prevail in the 21st century. While digital tools have brought many benefits, they have also created previously unimaginable capacities for mass surveillance and censorship. We were already at risk of an unconscious drift toward digital authoritarianism before COVID-19 hit. Failure of democracies to even consider the impact of new digital tools and emergency regulations on human rights during this pandemic will only exacerbate this trend.
Moments of crisis are exactly when human rights analysis matters most. Now is the time when democratic governments must show their mettle and demonstrate the feasibility of adhering to their own normative commitments. Unless they assert more effective, values-driven leadership, COVID-19 could hasten the demise of the post-WWII liberal international order. The consequence of that loss will be with us long after the virus is gone.