Pandemics and the future of rights mobilisation
As COVID-19 continues its relentless circuit through our lives, international actors, states, civil society advocates, and individuals are being confronted with unhappy choices on derogations from and limitations to rights. Concerns are also being raised about the potential misappropriation of rights discourses to impede legitimate measures aimed at reigning in the human impact of the pandemic. One element largely missing from the conversation is the small, but encouraging, groups of individuals who have been able to secure rights victories that would previously have been considered out of reach. In an Essay on Pandemics as Rights-Generators published as part of an Agora on Covid-19 in the American Journal of International Law, I focus on one such particularly vulnerable category of people: prisoners. I outline three rights-framing strategies that explain the gains made in rights seeking for prisoners in an age of pandemics, and that might hold enduring lessons for human rights advocates, scholars, and institutions.
Science over politics
Fueled in part by a populist punitive turn in criminal justice policies, the past few decades have witnessed an explosion in prison populations around the globe. Governments have been quick to endorse the rhetoric of “tough on crime” as a successful political strategy that has found few detractors, especially given the significant levels of prisoner disenfranchisement in some countries. There has thus been little to no appetite for expending public funds on ameliorating prison conditions or measures aimed at prison depopulation.
The global health emergency has provided a window of opportunity for changing the political discourse on prison reform by creating new alliances between prison rights advocates and medical professionals. Doctors, epidemiologists and public health experts have urged governments to improve health and sanitation in prisons and implement prison depopulation measures to reduce overcrowding. International, regional, and domestic human rights institutions have in turn seized on the greater public trust in scientific expertise to argue for prison reform couched in neutral terms that emphasise the heightened medical vulnerability of the prison population, in particular the elderly, those with pre-existing medical conditions, and minorities. Casting decarceration as a medical, scientific necessity rather than political choice has the potential to positively shape public perceptions of prison reform.
Individual welfare as community welfare
International NGOs, the media, and epidemiologists have used evocative clinic metaphors to describe detention centers as “petri dishes” and “epidemiological pumps”, to drive home the message that the virus does not respect boundaries designed to separate prisoners from their larger communities. To ignore prison health is therefore to compromise public health. Not only will disease outbreaks in prisons also affect prison staff and the families of detainees, but they are likely to have a knock-on effect on overstretched health and medical services, such that “many people from the detention center and the community die unnecessarily for want of a ventilator”.
Governments, scientists, and human rights institutions have increasingly adopted the rhetoric of a collective national effort that presents prison reform as a measure necessitated by and directed towards community well-being. Susceptibility to COVID-19 does not depend on personal character. Thus, a public health framing to protect vulnerable prison populations from the virus may have greater chances of success than previous attempts to reframe criminal justice issues such as the “war on drugs” as public health issues, which have floundered due to public hostility toward substance-abusing offenders. The message of shared vulnerability to disease and common fate may help build a sense of empathy for a population that is unable to protect itself from contagion and generate support for prison reform measures.
Positive duties over negative rights
There is a significant amount of consensus that offenders and detainees should be guaranteed negative rights as protection from arbitrary and unjustified state interference in their liberty interests. In contrast, there are few international, regional, or domestic legal instruments that emphasise the positive duties that the state owes to persons in detention and that provide for state accountability should it fail in this duty.
COVID-19 has helped shift the conversation in criminal justice from the role of the state as a punitive carceral entity to one that is concerned with citizen welfare with positive moral duties towards those under its care and protection. In this capacity, the state is responsible for guaranteeing essential goods and services such as health and safety to the prison population as a matter of moral as well as legal obligation. It is moreover prohibited from simply outsourcing this obligation to nonstate actors––such as corporations that manage various aspects of prison administration in countries that have opted for prison privatisation––in a way that evades accountability.
Non-profit organisations and human rights advocates have begun to creatively interpret and marshal a range of international and domestic hard and soft law instruments to both bring legal claims before courts to––directly or indirectly––enforce these positive duties, and also to persuade and remind states and private actors as to their moral responsibilities towards detainees.
It is difficult to project into a COVID-free future to gauge the potential long-term success of these novel rights-framing strategies. In a world where silver linings are few and far in between, they nonetheless provide a potential blueprint for rights seeking for those who are the most vulnerable and marginalised in our societies.
Neha Jain is Professor of Public International Law and Co-Director of the Academy of European Law at the European University Institute. She is also Associate Professor of Law at the University of Minnesota Law (on special leave). Her scholarship focuses on public international law, criminal law, and comparative law. Jain received her B.A., LL.B. (hons.) from the National Law School of India University and completed her B.C.L. and D.Phil. in law from Oxford University, where she was a Rhodes scholar and Jowett Senior Scholar at Balliol College. Jain is Managing Editor of AJIL Unbound and a Board Member of the European Society of International Law.