Professor Xenophon Contiades: Human rights and the pandemic – The world after Covid-19

Xenophon Contiades is Professor of Public Law at Panteion University and Managing Director of the Centre for European Constitutional Law (CECL) – Themistocles & Dimitris Tsatsos Foundation in Athens. He also teaches at the Hellenic Open University. His research areas include constitutional law, fundamental rights, social rights, health rights and policies, and also disability rights and rights of vulnerable groups.

His publications include 23 books in public law, comparative constitutional law and social security law, over 130 articles in Greek, English, German and Italian in the fields of public law, comparative constitutional law, social security law and EU law. He has participated as scientific director, researcher or expert in numerous European or national research programmes and on institution building projects in third countries in the sectors of public law, public policy, social law and health policies.

Our sister publication GreceHebdo* interviewed Xenophon Contiades on the occasion of the recent publication of his book Pandemic, biopolitics and rights. The world after Covid-19 (Kastaniotis editions, May 2020), which also coincided with the Greek Chairmanship of the Council of Europe (May-November 2020), which has placed its focus on human rights, the principles of democracy and the rule of law in the context of the pandemic. In his interview, Contiades talked about the biopolitics of the pandemic, the search for a balance between the protection of public health and of human rights, as well as the future of the welfare state.

The response to the Covid-19 pandemic poses a challenge to human rights. How can the risk of a permanent state of emergency be avoided?

The Covid-19 pandemic has caused the most serious backsliding on human rights in Western democratic societies since WWII. The virus’s high contagiousness and lack of preparedness of the healthcare systems, which were caught off-guard and were unable to suppress its spread, led to the gradual adoption of social distancing measures in most countries worldwide. We also witnessed the introduction of policies aiming at enhancing the healthcare system and supporting the economy, which also infringed on individual and group rights.

The measures and policies formulated at the behest of the World Health Organisation, the relevant advisory bodies, epidemiologists and public health experts, took the form of a state of emergency or martial law with the concomitant suspension of a number of rights, despite the fact that in most countries these rights were restricted by laws or other legal instruments issued by the governments to be used in cases of urgent and unpredictable necessity. Moreover, certain countries effectuated article 15 of the European Convention on Human Rights, suspending the exercise of certain rights under the excuse of a menace to public health, in order to take measures which contravene their obligations under that same Convention.

In a number of countries, governments used the sanitary crisis as a pretext to claim excessive powers. Such is the case of Hungary, where the illiberal regime of Prime Minister Viktor Orban declared an indefinite state of emergency in the country, allowed the premier to rule by decree and introduced prison sentences for spreading false information, in violation of the freedom of expression and of the Press.

The Council of Europe has (on 7 April 2020) issued a “toolkit” for governments across Europe on respecting human rights, democracy and the rule of law during the health crisis. As far as constitutional guarantees are concerned, it is important that the mechanisms put in place to combat the pandemic be lifted once the health crisis no longer poses a threat. The temporary nature of the adopted measures is one of the foremost factors considered by courts in determining their constitutionality.

Regarding the subject of biopolitics of the pandemic -in the foucauldian sense of the term, as you discuss it in your book- how could democracies reach a balance between politics and technical/scientific expertise?

The management of the pandemic poses a serious test for the citizens’ trust in political authorities. The incorporation of the technocratic-sanitary discourse in political decisions as a means to face the pandemic is a sensible choice, but does also reflect a credibility crisis in politics.

The depoliticisation of government decisions and their technocratic legitimation are not the sole result of the health crisis; they have actually been in progress for decades as part of post-democratic transformations. In a state of pandemic, biopolitical regulations are founded on a de-ideologised technocratic discourse.

Thus, in post-democracy, biopolitical regulations to combat the pandemic are developed without allowing for divergence from technocratic discourse. After all, the Heads of State who ignored the guidelines of epidemiologists and public health experts, e.g. Donald Trump, Boris Johnson and Jair Bolsonaro, suffered a massive political blow and, most importantly, negatively affected health conditions with their decisions.

In the face of a health crisis, technocratic legitimation of biopolitical regulations is regarded as the obvious choice. Political conflicts thus focus on the relation between biological life and politics, which sets the context for biopolitical regulations worldwide.

In recent years, surveillance and tracing technology are taking on global dimensions. What are, in your view, the biggest threats in the era of a global “Panopticon”?

The transition from traditional electronic surveillance, aiming to fight crime, to a new era, where biometric surveillance will eventually allow the detection of every citizen’s psychological reactions in the name of public health, would represent a shift of historical proportions. In a world where biometric surveillance would be used in the context of specific events, revealing the psychological reactions of the surveilled, the Cambridge Analytica data breach method would look like an obsolete, unsophisticated device.

Privacy violation through biometric surveillance, justified by fear of the pandemic spreading, is likely to be tolerated by late modern societies, when the primordial is reintroduced and systematically cultivated, legitimising “state terrorism” through a manufactured reality.

Just like after 9/11 serious restrictions of civil liberties, especially with regards to privacy and the rights of the accused, were founded on the prioritisation of public safety, we can say that the date of 11 March 2020 -when the pandemic was declared- may similarly serve as a benchmark for the introduction of a new biopolitical paradigm, one of suffocating surveillance of personal beliefs and social behaviours, next to which the human rights infringements of the post-9/11 period would look insignificant.

The pandemic reinstated the central role of the state in dealing with public health issues. How could the Covid-19 outbreak affect the future of the welfare state in Europe?

The most obvious change in work practices brought about by the pandemic was telecommuting, in its various forms. But at the same time, it resulted in tens of millions of layoffs and involuntary furloughs around the world, increasing insecurity and enlarging the “precariat”, the social class of those who live in a constant state of insecurity regarding their employment and social position, which includes young people in flexible forms of employment. This is the “class” that was most affected by the pandemic, which also exacerbated phenomena of social exclusion.

Working time reduction and flexibilisation, developing flexible forms of employment, funding active labour market policies, especially through the promotion access to training programmes for the unemployed, as well as through social security and tax incentives for job creation, all that represents one side of the welfare state reform. The pandemic has intensified the development of these policies.

The gradual transition from a passive welfare state to an active one is not presented as a reformist choice guarantying reliable, coherent responses to the economic viability issues of social security systems, in a way that would also ensure a satisfying level of social protection. Thus, deregulation trends continue to gain ground, requiring further privatisation and commercialisation of social services as well as a reinforcement of “employment promotion” programmes as compensation for social benefits, while in effect abandoning the demand for social solidarity.

In the face of these developments, where the welfare state is questioned in terms of its capacity to cover new social risks and to raise sufficient funds for its financing in the post-Fordist model, the pandemic raises the insecurity and pushes workers and companies to further flexibilise work relations.

In your book, you argue that the pandemic and resulting biopolitical regulations highlight as well as increase social inequalities. Could you elaborate?

The pandemic and the ensuing biopolitical regulations highlight, reproduce and exacerbate inequalities. For example, public policies on education through the use of distance learning exclude from the educational process those children who do not have access to the necessary digital media or family members with the necessary skills to support them through this process.

The reproduction of social and economic inequalities and their translation into educational inequalities are made worse by the conditions of biopolitical restraints if critically important public policies do not provide for additional measures for areas with low growth rates and for families of lower income.

The biopolitical regulations of the pandemic have also intensified gender discrimination and contributed to a sharp increase in domestic violence, reconfirming the deficiencies of public policies aimed at reconstructing gender identities, dismantling sexism and ensuring the true emancipation of women. During lockdown, sexist stereotypes, prejudices and practices of gender-based violence were intensified and exposed to their full extent.

Balancing work and family life during the pandemic proved to be a difficult task for women. The distribution of roles between the two sexes seemed to regress to past decades, confirming that the transition from superficial to actual equality calls for an inequality elimination approach to be systemically integrated into all public policies. The expansion of low-paid jobs and job precariousness create social classes on the margins of social exclusion.

To paraphrasing Sartre’s aphorism on the plague, the pandemic only exacerbates the sense of social injustice: it crushes the miserable, and spares the rich. Of course, the most striking inequality is manifested in the circumstances of confinement, in terms of living space available per person, with both class and ethnic inequalities being reflected in geography of urban overcrowding.

Greece currently holds the chairmanship of the Committee of Ministers of the Council of Europe and has chosen to focus its priorities on human rights, democracy and the rule of law in the times of pandemic. What should the role of supranational entities be in addressing such social and institutional challenges?

The common origins of the pandemic, the similar health management policies and the globality of its economic and social impacts, reflected in the universal biopolitical paradigm of monitored social distancing, should inspire a new strategy for equitable world governance and enhance regional-transnational solidarity projects, such as the Council of Europe.

The pandemic has raised the pressing issue of international cooperation in the areas of health security and public health. The political demand for a “common universal public health”, especially in terms of coordination of health systems and financing of pandemic prevention measures on a global level, goes hand in hand with vast changes in the management of globalization, which includes choosing which goods should qualify as “global public goods”, based on the absence of competition for their consumption and the non-exclusion of potential consumers.

These goods are found mainly in the fields of environment, access to natural resources, economy, and health, which also cover the policies of prevention and combat against deadly epidemics.

* Interview by Magdalini Varoucha. Translation into English by Nefeli Mosaidi.