The public law challenges of Covid-19 I

The authorisation of the first Covid-19 vaccines at the end of 2020 came together with efforts to roll out mass vaccination campaigns to end the pandemic. More than two years after, only 56,17% of the population in the World is fully vaccinated and vaccination rates remain uneven throughout the World. Although those differences are partially explained by unequal access to vaccines, they are also linked to vaccine hesitancy. Low vaccination rates have sparked debates on how to increase vaccine uptake, with some countries resorting to compulsory vaccination policies. In the EU, several countries have decided to impose a vaccination duty to different age groups (Austria, Greece, Italy) or categories of workers (Germany, Greece, France, Italy, Latvia, Estonia, Hungary), whereas others have linked access to public spaces to vaccination or recovery from Covid-19 (Germany, France, Italy, Latvia). This paper proposes to explore those policies and discuss the legal problems surrounding them.

Japan has a Coronavirus Special Measures Act(CSMA). Article 32 of the Special Measures Act delegates to a Cabinet Order the necessary cases for the Prime Minister to issue a state of emergency. Article 32 of the CSMA stipulates that the government shall issue a declaration of a state of emergency and report to the Diet when the infection situation worsens, in accordance with the requirements specified by the Cabinet Order. When the government issues an emergency declaration, it must publicly announce the duration, area, and content of the emergency. This paper deals with the issue of whether it is an infringement of the legislative power under Article 41 of the Constitution to set forth the requirements for declaring a state of emergency subordinate to the law, which has a great impact on the lives of the people.

On December 1, 2021, the President of the Commission Ursula von der Leyen stated that a debate should be opened on compulsory vaccination at EU level, given that about 1/3 of the population of the European Union, ie about 150,000,000 citizens have not been vaccinated. However, the issue of public health policy, which may include potential mandatory vaccination, falls within the competence of the Member States. The purpose of this paper is to explore the institutional framework on public health at Union level in order to clarify to what extent the Union could intervene in the field of mandatory vaccination and how could this possibly work in line with article 3 of the EU Charter of Fundamental Rights.

The Vaccine Apartheid reveals the unequal access to the SARS-CoV-2 vaccine . Only a limited group of countries managed to vaccinate their population in a timely manner. This in spite of the existence of an international legal legal regime that recognizes health as a fundamental right (ex: Constitutive Treaty of WHO, preamble). This situation could be understood on the basis of the constitutions of the liberal world. This is because they were drafted mainly to guarantee individual rights of the citizens under certain jurisdiction, but are not concerned with global challenges such as public health, climate or peace. Thus, the above crisis is not the result of the ineffectiveness of international law but rather depicts a total disconnection of traditional constitutionalism with the collective challenges facing humanity.

The paper takes a strong stance against paternalistic laws, especially the responses by various governments to the COVID-19 pandemic. It ties together pandemic measures to drug policy, under the general umbrella of paternalistic law. The COVID-19 pandemic crisis illustrates the great potential of coercive public health powers to infringe on civil liberties and the fragility of human rights when faced with danger to health. The paper advances the case for demonstrating greater respect for peoples' autonomy to take health risks before establishing coercive measures, which curtail civil liberties to prevent or reduce the spread of infectious diseases. It likens the war on drugs to the fight against the COVID-19 pandemic, given the public panic that accompanies them and the paternalistic considerations that underlie them, and claims that people should not be deprived of making their own choices in both cases.

The Italian reaction to the Covid-19 pandemic relied on patterns that had never been used since the entry into force of the Italian Constitution. Not only – at least during the first year – very wide powers were concentrated in the hands of the President of the Council of Ministers (which is very unusual in the Italian parliamentary system), but there were also unclear coordination mechanisms among different levels of government, sometimes leading to dangerous fragmentation. Against this background, how tenable is the choice – made by the Italian Constituent Assembly due to historical reasons and that proved wise at that time – not to systematically regulate emergency powers in the Constitution? Should it be reconsidered? And how should a “renewed“ Italian emergency framework liaise with international and supranational bodies, in order to allow efficient cooperation? These are the main topics that this paper addresses.