Should Jacobson v. Massachusetts be reconsidered in light of new government mandates about COVID?
One of the more surprising features of the response to the SARS-CoV-2 pandemic internationally has been the deafening silence of human rights advocates about the restrictions on fundamental freedoms that have been introduced. Across the developed world, governments have taken it upon themselves, frequently by executive fiat, to restrict the movements of their citizens in all manner of draconian ways. Many are now making it more or less mandatory to be vaccinated, whether through an explicit legal requirement or by making it essentially impossible to participate in social life without being “jabbed.” One might have thought that human rights advocates would have something to say about all of this. Remarkably, for the most part, they haven’t.
The Office of the High Commissioner for Human Rights (OHCHR) is the central plank of the United Nations’ human rights apparatus, coordinating the activities of the vast array of bodies under the UN umbrella that are charged with implementing and enforcing states’ human rights obligations. As might be expected, the COVID-19 pandemic features heavily in its Annual Appeal for funding for 2021. “Never have the relevance and practical value of human rights been more obvious,” we are told (accurately) in this document by the High Commissioner, Michelle Bachelet. Yet the fact that states around the world have spent the last 18 months restricting the most basic liberties of their citizens in manners hitherto unimaginable receives nary a mention in the Appeal. Instead, the focus is almost exclusively on how human rights can motivate efforts to “build back better.”
“It is a matter of great urgency,” Bachelet goes on, “that we overcome the pandemic and accompanying recession; recover from the harms they are causing; and rebuild our societies in more resilient and sustainable ways.” This, Tedros Ghebreysus, Director-General of the WHO, later tells us in the same document, will require “transforming existing economic and social paradigms that have created inequality.” In this sense, the pandemic represents in itself “an opportunity to transition to a more inclusive, equal, resilient, just and sustainable system.” This human rights-centred approach to rebuilding will mean “fixing inequalities within and among countries; abolishing systemic gender inequality; strengthening universal health and social protections for all people; strengthening institutions; and tackling structural discrimination and human rights violations.” Only a single one of the Appeal’s 50 pages hints that human rights might have something to do with protecting the civic sphere and fostering civil society—but even this is framed in terms of enhancing the effectiveness of “measures adopted by the authorities” through “helping provide accurate information” and “providing feedback and oversight on measures rolled out.”
The United Nations human rights system represented, at its inception in 1948, a slightly uneasy compromise between two competing imperatives: on the one hand, limiting state power, and on the other, buttressing state intervention in the name of enshrining economic and social rights. Judging by the response to the pandemic, the latter seems to have entirely won out. It is as though the idea that human rights might exist to restrain the power of the state to interfere with its citizens’ freedoms has become a quaint relic of a bygone era. Instead, reading the Annual Appeal, one gets the impression that international human rights law exists solely to justify ever more state intervention in society and the economy. How did this happen?
The answer is that for a long time now, certainly since the late 1980s, the archipelago of UN human rights mechanisms has adopted an almost millenarian interpretation of human rights laws—as nothing less than a blueprint for the coordination of society towards ideal ends. As the foreword to the OHCHR’s Management Plan for 2018-2021 puts it, “Human rights [can] help set us on a course towards inclusion, sustained prosperity, justice, dignity, freedom and sustained peace”; they are nothing less than the means to “build societies in which everyone has a chance to survive and flourish.”
And, of course, all of this is supposed to be achieved through the power of the state, by placing obligations on it to actively improve the welfare of society. This means that the state, in the modern orthodox view, does not just have the duty to “respect” human rights (in other words, not to violate them). It also has the obligations to “protect” and “fulfil” them. This means both ensuring that the rights of all individuals are protected vis-à-vis all other individuals, and that society, the economy, and culture are arranged in such a way that rights are actively “enjoyed.” Since the menu of human rights includes very broad substantive goods such as health, education, housing, food, and so on, the result is a highly interventionist model for the relationship between state and society. The right to housing, to take one example, does not in the orthodox view just require the state to refrain from arbitrarily depriving people of their homes. It requires the state also to “protect” and “fulfil” the right in question through intervening to prevent evictions, providing social housing, and ending homelessness.
Naturally, the immediate consequence is that human rights advocates can relate almost anything to the state’s human rights obligations. My favourite obscure, but revealing, illustration of this was the UN Special Rapporteur on the Right to Food’s 2016 report on the right to nutritious food. Among many other things, this document included in its conclusions the recommendation that states heavily restrict the advertising of “breast-milk substitutes” on the grounds that breast-milk is a healthier alternative. The idea that the original drafters of the relevant treaty (the International Covenant on Economic and Social Rights) had such an interpretation of the right to food in mind, back in the 1960s, is fanciful. But if one thinks that human rights are a mechanism to “build societies in which everyone has a chance to survive and flourish,” it is, of course, entirely natural to envisage the right to food’s fulfilment as requiring the highest standards of nutrition for all—quite literally from the cradle to the grave.
This small example is a microcosm of the whole. UN human rights bodies regularly behave as though human rights give carte blanche for the state to adopt any and all measures necessary to coordinate society towards benevolent ends, such as achieving a “healthy psychosocial environment”; ensuring that children have “opportunities for culture, leisure and play” in the digital sphere; “training teachers to adopt constructivist teaching strategies that equip girls and women with critical thinking skills and a sense of positive self-worth”; and so on. And, as we have seen with the 2021 Annual Appeal, it is now common for human rights advocates to argue that climate change, sustainable development, and indeed any other grand social challenge of the era, must also be viewed through the lens of the obligations to “respect, protect and fulfil” human rights.
On the face of it, this is really just another example of Robert Conquest’s second law of politics in action: Any organization not explicitly right-wing sooner or later becomes left-wing. And, indeed, it is difficult to avoid the conclusion that sections of the left, defeated ideologically by the 1980s, latched onto human rights as the means of achieving through law what they could not through politics. It is no accident that the “respect, protect, fulfil” framework for interpreting human rights obligations was first mooted in 1987, for instance, as the Cold War was drawing to a close.
It also readily explains why the UN OHCHR has simply not been very interested in defending the rights to freedom of assembly, association, or indeed liberty itself during the pandemic period. Yes, those rights exist, and they are not entirely ignored within the UN system, but they are just not what most modern human rights advocates care about. Instead, the system’s chief concern is the question of how the administrative state can be made more powerful, efficient, and just. The response to the pandemic has merely revealed this to be case.
But it has also revealed a deep malaise. Faced with the coronavirus threat and the suggestion that locking down was the appropriate response, human rights advocates had two options. The first was to reason from classical liberal principles regarding rights, which I take to be those advanced by Ronald Dworkin. In essence, the whole point of human rights is that they permit the individual to act as she sees fit irrespective of whether the authorities think it to be in the general welfare. If you only have a right to do something as long as it is in the general welfare, you do not really have a right to it, because it can be revoked the moment some official decides it no longer accords with the public interest. This means that the only justifications for limiting the rights of an individual are where they would interfere with some other identifiable individual’s rights, or in times of such dire public emergency that the ongoing existence of the society itself is at risk. Reasonable people can of course disagree about whether the SARS-CoV-2 pandemic posed that kind of a threat, but at the level of principle, that was the appropriate debate to have in the context of liberal democracy.
Instead, the UN human rights system appears, largely implicitly, to have adopted the second option. This is to identify human rights themselves with the general welfare. Remember: to the OHCHR, human rights are about “building societies in which everyone has a chance to survive and flourish.” Their raison d’etre is to provide a blueprint for universal well-being. To anyone steeped in this view, the idea that human rights might limit the state’s power to respond expediently to a pandemic is to commit a category error. Human rights are not for limiting state power. They are for guiding it towards benevolent ends. And what more benevolent end could there be than protecting lives? What space for debate could there possibly be?
But there, of course, is the rub. Is a “society in which everyone has a chance to survive and flourish” one in which children are denied an effective education or opportunities for socialising and play for months or even years at a time? In which the government can at any moment prohibit family members from meeting, or citizens from participating in public worship or protest, through mere decree? In which individuals are essentially forced to undergo particular medical procedures or lose any chance of living a normal life? In which the most basic liberty of all, to go where one wishes within reason, is curtailed to one’s front door on the notional grounds that any social contact at all might be dangerous?
There is indeed a debate to be had on those terms. And the fact that it did not take place suggests that there is something badly awry with the way in which the global human rights constituency understands the relationship between the individual and the state. To them, quite simply, a society in which “everybody has the chance to survive and flourish” is one predicated not on freedom but on safety, achieved through a highly interventionist model for state power. Those are the only terms in which the response to the pandemic could be understood. The protection of fundamental freedoms was simply of no consequence when weighed against the protection of a very narrow conception of life and health.
This should be of profound concern to anybody who prizes civil liberties and limited government. Among the people who should care most—human rights enthusiasts—it’s not that classical liberals are even losing the debate about the appropriate relationship between state and society; it’s that the debate is considered so unimportant that it is not being had in the first place. To cite one of the most widely-used university-level textbooks on human rights law: “right[s] cannot exist without State action.” Those of us who consider it important to maintain spheres of life in which the state does not act will therefore find little support in the contemporary human rights movement.