Sakiko Fukuda-Parr
Setting out new norms and arrangements for the provision of global public goods for pandemic preparedness and response should be a centrepiece of a new legal instrument that is capable of challenging market power, and builds on human rights principles in synch with the age of hyper-globalization.
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Gian Luca Burci, Sakiko Fukuda-Parr, Aeyal Gross, Tsung-Ling Lee, Joelle Grogan
Amid contention that global governance was unprepared and incapacitated in its response to the COVID-19 pandemic, this November, a special session of the World Health Assembly will convene to discuss a potential international instrument on pandemic preparedness and response.
Marking the launch of the 'International Pandemic Lawmaking: Conceptual and Practical Issues' Symposium, this webinar will bring together leading scholars to critically discuss cross-cutting themes of the Symposium, and key points of contention and recommendation for the future of global pandemic governance.
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Gian Luca Burci
The COVID-19 pandemic has been characterized by mistrust in science, the manipulation of science for political purposes, the “infodemic” of mis- and disinformation, and a repeated failure to base policy decisions on scientific findings. The crisis of confidence in scientific analysis is paradoxical and disquieting, particularly in light of increasing international regulation to manage acute or systemic risks and its reliance on science.
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Joelle Grogan
The SARS-CoV-2 pandemic has brought global health structures into sharp relief: it exposed the gross inequalities and inequities of health care access, as well as the symbiosis between human rights, health care, politics, economics, and the law. This symposium, “International Pandemic Lawmaking: Conceptual and Practical Issues,” was convened with two primary aims: to shed light on the inequities and imbalances exposed by global pandemic response, and to advocate recommendations on which principles should guide the framing and drafting of a potential international instrument on pandemic preparedness and response.
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Gerald Becker-Neetz
Die Entscheidung des Bundesverfassungsgerichts zum Klimaschutz vom 24. März 2021 hat der Bundestag mit Gesetzesbeschluss vom 24. Juni 2021 mit dem Ziel umgesetzt, den monierten verfassungswidrigen Zustand zu beseitigen. Parallel zur Umsetzung nimmt eine Debatte über die soziale Dimension des Klimaschutzes Fahrt auf: Der soziale Ausgleich müsse beim Klimaschutz mit bedacht werden.
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Christian Calliess
So überzeugend der Klimabeschluss des BVerfG im Hinblick auf die strukturelle Koppelung der planetaren Grenzen in Form des 1,5-2 Grad-Ziels mit Art. 20a GG im Ergebnis ist, so sehr wirft doch der grundrechtliche Weg dahin in rechtsdogmatischer Hinsicht viele Fragen auf. Ich konzentriere mich in diesem Beitrag auf die Frage, ob der Erste Senat die berühmte, aber zugleich auch umstrittene „Elfes“-Konstruktion fruchtbar macht und in diesem Rahmen einen im Hinblick auf die Grundrechtsdogmatik tragfähigen und zukunftsweisenden Weg beschritten hat.
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Armin Steinbach
Klimaneutralität als alternativloses Ziel politischen Handelns hat jetzt das höchstrichterliche Plazet. Zugleich befördert die neue intergenerationale Vorwirkungsdogmatik einen klimapolitischen Unilateralismus, der so manche ökonomische Binsenweisheit in den Wind schlägt: Trittbrettfahren und carbon leakage werden bei unilateralem Vorpreschen noch für klimapolitische Ernüchterung sorgen.
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Marten Breuer
Der Beschluss des Bundesverfassungsgerichts zum Klimaschutz ist ein rechtspolitisch wichtiges Signal, auf das die Politik umgehend reagiert hat. Doch so wünschenswert es aus rechtspolitischer Sicht auch sein mag, so unklar sind die grundrechtsdogmatischen Implikationen. Hierzu einige – eher skizzenhafte – Überlegungen.
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Lukas Märtin, Carl Mühlbach
In seinem Beschluss zum Klimaschutzgesetz hat das BVerfG nicht nur den Klimaschutz gestärkt, sondern auch ein anderes Prinzip aus Art. 20a GG betont: die Generationengerechtigkeit. Bisher gelten in Deutschland oftmals Schuldenbremse und schwarze Null als generationengerechtes Optimum. Diese Ausrichtung ist jedoch das genaue Gegenteil einer Generationengerechtigkeit, wie sie nun auch das BVerfG auslegt.
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Joelle Grogan
The ‘Power and the COVID-19 Pandemic’ Symposium was hosted by the Verfassungsblog, and supported by Democracy Reporting International under the re:constitution program supported by Stiftung Mercator, and the Horizon-2020 RECONNECT project. Over the course of 12 weeks from 22 February to 15 May 2021, the Symposium reported on the impact of the COVID-19 pandemic on law and legal systems in 64 countries, accompanied by 11 commentaries on transversal themes including human rights, democracy and the rule of law.
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Joelle Grogan
Involving over 100 contributors worldwide, the 2021 Power and COVID-19 Pandemic series builds on the 2020 COVID-19 and States of Emergency Symposium to again provide snapshot critical analysis of a world in continued crisis and extended emergency. This final commentary in the 2021 Symposium is divided in two parts: first, an analysis of the impact the pandemic has had on legal systems over the course of the last year; and second, an outlook on how to prepare for future emergencies by building on the lessons of the current one. This is part II.
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Joelle Grogan
Involving over 100 contributors worldwide, the 2021 Power and COVID-19 Pandemic series builds on the 2020 COVID-19 and States of Emergency Symposium to again provide snapshot critical analysis of a world in continued crisis and extended emergency. This final commentary in the 2021 Symposium is divided in two parts: first, an analysis of the impact the pandemic has had on legal systems over the course of the last year; and second, an outlook on how to prepare for future emergencies by building on the lessons of the current one. This is part I.
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Christine Bell, Sean Molloy, Asanga Welikala, Kimana Zulueta-Fülscher, Erin Houlihan, Rasha Al Saba, Samrawit Gougsa, Joelle Grogan, Sheila Jasanoff, Stephen Hilgartner, Joshua Castellino
How has COVID-19 impacted upon legal and political systems; minorities and indigenous peoples; and conflict-affected states in transition? This final panel debates themes of trust, equality, conflict and power, and concludes with a commentary by the convenor of the Symposium who will draw together key findings, emergent threats, and reasons for hope.
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Anna Katharina Mangold, Kriszta Kovács, Wen-Chen Chang, Julinda Beqiraj, Shaheera Syed, Nadia Tariq-Ali, Chun-Yuan Lin, Joelle Grogan
The COVID-19 pandemic has placed extreme strain on legal systems, requiring action in response to fast-changing and complex situation of the pandemic emergency. This panel evaluates state action - and in particular, executive-decision making - in response to the pandemic against the standard of the rule of law, and considers whether this will lead to permanent shifts in legal systems worldwide.
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Mark A. Graber, Ciara Staunton, Iain Cameron, Anna Jonsson-Cornell, Jerome Amir Singh
Bringing together experts representing states who have adopted divergent attitudes to the role of science in law and decision-making, as well as an examination of vaccination policy, equity and individual choice, this panel considers the complex policy choices, rationales and politics which interplay in decision-making during a pandemic.
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Tom Gerald Daly, Hans Petter Graver, Michael Meyer-Resende, Dean R Knight, Sabine El Hayek
How has democracy been impacted by over a year of pandemic response and emergency? How have states ensured the democratic accountability of their actions in response to the global health emergency? What lessons can be learned for now, and for the future? This panel examines democratic practices, and highlights the best – and most concerning – developments.
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Alice Donald, Nerima Were, Tara Imalingat, Manon Julicher, Max Vetzo, Maria Ela L. Atienza, Lucy Moxham
COVID-19 – and state responses to it - present a threat to human rights unparalleled in the contemporary era. At the same time, human rights offer a universal framework which guides decision-makers, ensures accountability for their actions and omissions, and renders visible the structural inequalities which drives the pandemic’s differential impact on certain communities. Looking forward, this panel discusses how human rights can be used to underpin a just and sustainable post-pandemic recovery.
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Joelle Grogan
Marking the conclusion of the "Power and the COVID-19 Pandemic" Symposium, this webinar series brings together contributors from around the world to discuss the impact of the pandemic on law and governance, drawing on five transversal themes: human rights; democracy; the rule of law; science and decision-making; and the impact of an extended emergency.
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Sheila Jasanoff, Stephen Hilgartner
The CompCoRe study, an ongoing qualitative comparison of policy responses to Covid-19 in sixteen core countries and two affiliates, begun in April 2020, sought to identify and explain patterns of perceived success and failure in managing this multifaceted crisis. [...] As national and international authorities look to futures beyond Covid-19, a lesson emerging from our study is that they should revisit their institutional processes for integrating scientific and political consensus-building. If free citizens are unable to see how expertise is serving the collective good, they will sooner rebel against the experts than give up their independence. Just as a sound mind is said to require a sound body, so the coronavirus has shown that the credibility of public health expertise depends on the health of the body politic.
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Christina Eckes
On 29 April 2021, the Bundesverfassungsgericht published its decision that the Federal Climate Change Act of 12 December 2019, establishing national climate targets and annual emission amounts allowed until 2030, violates fundamental rights. Do the judges in such a case undermine separation of powers as a time-honoured achievement of modern constitutional democracies in order to force the political branches to take urgently necessary actions? No. By allocating different functions to the three branches, executive, legislature, and judiciary, separation of powers aims to ensure that the tension between law and majoritarian politics is perpetuated and that neither law nor politics dominates the other.
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Jerome Amir Singh
Financial self-interest, fiscal considerations, geopolitics, sovereignty, governance, protectionism, and nationalism are currently dictating COVID-19 vaccine procurement at the macro level. Such structural factors indirectly vitiate autonomy at the grassroots level and run counter to the ideal that individuals should have access to the highest attainable standard of health.
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Felix Ekardt
With a real bang, the German Federal Constitutional Court has adjudicated what is probably the most far-reaching decision ever made by a supreme court worldwide on climate protection. This does not preclude the fact that the decision also has considerable weaknesses.
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Konrad Lachmayer
While the Austrian government´s reactions during the first wave of Covid-19 in spring 2020 are considered to have been successful, disillusionment followed in the fall 2020 with a second wave, for which the government did not seem to have prepared properly. The third period (January to April 2021), on which I will focus in this blog entry, shows a mixed performance of the government.
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Katja Rath, Martin Benner
Der Klimaschutz-Beschluss des BVerfG hat auch über das Umweltrecht hinaus Bedeutung, etwa für den Rechtschutz der jungen Generation in den Bereichen der sozialen Sicherungssysteme oder der Staatsverschuldung. Sie gibt Anlass, sämtliche Säulen des gesellschaftlichen Lebens, bei denen Entscheidungen der Gegenwart zu Lasten für künftige Generationen führen, auf mögliche Beschränkungen intertemporaler Freiheiten abzuklopfen.
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Joelle Grogan
On 16 December 2020, despite rising rates of infection and the widely predicted ‘second wave’ already impacting neighbouring European countries, Prime Minister Boris Johnson mocked the opposition for wanting to ‘cancel Christmas’ by reintroducing nationwide lockdown restrictions. Three days later, a nationwide lockdown in England was introduced (inadvertently mimicking the March 2020 commitment that London had ‘zero prospect’ of lockdown, four days before it was enforced). The lockdown – closing schools, universities and a majority of businesses which were deemed non-essential and prohibiting gatherings of more than two people outdoors from separate households – continued until 12 April 2021 when restrictions began to be lessened through a phased ‘roadmap out of lockdown’. Such political hyperbole by the executive and lax response, followed by sudden U-turn policy making (‘essay crisis’ governance) and severely restrictive measures, have characterised much of the response to the pandemic in the UK.
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Satang Nabaneh
More than a year after the pandemic was first reported in The Gambia, the state is returning to ordinary processes. Many COVID-related restrictions have been lifted, allowing businesses, markets, schools, restaurants, bars, gyms, cinemas, and nightclubs to resume normal operations, and borders to be open. However, from 8 March 2021, police permits will no longer be issued for music festivals, political events, and other forms of social gatherings. This comes against the backdrop of the country’s limited resources, weak healthcare systems, and ineffective mitigating measures including social distancing, self-isolation, and avoiding public gatherings to prevent further spread of the virus.
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Helmut Philipp Aust
Das Bundesverfassungsgericht fordert in seinem historischen Klima-Beschluss, über 2031 hinaus zu definieren, wie Emissionen zu reduzieren sind. Die Pointe dieser Konstruktion liegt darin, dass der Gesetzgeber hier nicht nur punktuelle Änderungen für den Zeitraum ab 2031 vornehmen kann, ohne mit anderen Vorgaben Karlsruhes in Konflikt zu geraten.
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Arianna Vedaschi
Domestic emergency powers resorted to in the Covid-19 crisis are very different from each other. Is it possible to identify common trends in the comparative scenario? Limiting the scope of the analysis to democratic countries of the Western European area, at least four different tendencies can be identified.
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Bent Stohlmann
Das Bundesverfassungsgericht stellt in seinem Beschluss vom 24.03.2021 die Verpflichtung für den Gesetzgeber auf, auch für nach 2030 Emissionsziele festzuschreiben. Insoweit das Bundes-Klimaschutzgesetz (KSG) dieses nicht schon heute tut, ist es verfassungswidrig. Dass Karlsruhe hierfür nicht die dogmatische Figur der Schutzpflicht heranzieht, hängt auch mit selbstauferlegten Zwängen des Gerichts zusammen. Dabei äußert sich im Klimabeschluss zugleich ein tieferliegendes Problem der Maßstabsbildung durch das Bundesverfassungsgericht.
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Xin He
It is widely agreed that Wuhan, China is the origin of this pandemic. China has also been criticized for its initial mishandling of the outbreak, including local officials’ cover-up, the incompetence of the Chinese Centre for Disease Control (CDC), and the repression of whistle-blowers. In light of what had happened in other countries, however, China’s subsequent responses were nothing short of miraculous. From its lockdown in Wuhan, to the nationwide joint prevention and control system, from border sealing to mass testing and contact tracing, China’s measures were more intense than almost anywhere else in the world.
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Tom Gerald Daly
What’s the future of the free world? What does the ‘free world’ even mean? Recent reports from leading democracy assessment bodies depict a shrinking democratic atlas that is more fragmented than it has been for decades after a steep decline in every world region.
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Maximilian Steinbeis
Über Regelkreise, Klimawandel und das Bundesverfassungsgericht
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Matthias Goldmann
The judgment of 29 April 2021 quashing parts of the Climate Protection Act (CPA) has made history. Not only because the First Senate of the BVerfG put an end to deferring the reduction of greenhouse gasses to the future, or at least to the next government. But because this turn to the future came in the form of a turn to international law and institutions. It is precisely by relying on international law that the court overcomes the counter-majoritarian difficulty commonly tantalizing climate litigation and human rights law generally. The most astonishing fact is, however, that the court entirely avoids the tragic choice between supposedly undemocratic international commitments and the democratic legislature. I argue that it does so by approaching constitutional law in a decidedly postcolonial perspective.
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Andreas Buser
Der Klima-Beschluss des Bundesverfassungsgerichts schlägt hohe Wellen. National wie international wird das Urteil bereits jetzt als Meilenstein für den Klimaschutz gefeiert. Der Beschluss legt den Grundstein für eine weitergehende und dauerhafte verfassungsgerichtliche Kontrolle der staatlichen Klimaschutzbemühungen anhand der Grundrechte und Art. 20a GG
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Anna-Julia Saiger
Who ought to decide on climate issues? Now, the Constitutional Court has decided. It held that the provisions of the Federal Climate Protection Act are “incompatible with fundamental rights insofar as they lack sufficient specifications for further emission reductions from 2031 onwards”. This decision is extraordinary in many ways: in its interpretation of the constitutional obligation to protect the environment (art. 20a of the Basic Law) as much as in its commitment to international cooperation and international law in climate issues. From this decision on, the German constitution will speak in the future tense.
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Nerima Were, Allan Maleche, Tara Imalingat
What began as a health crisis quickly morphed into an economic, human rights and governance upheaval. In March 2021, we came full circle as we saw a return to excessive law enforcement in the country on account of the third wave of the virus, which has led to a surge in the number of people testing positive and thrown the country back into a state of disarray as poorly resourced health facilities grapple with the influx of cases.
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Beatrice Monciunskaite
The government response to COVID-19 in Latvia can be characterised as one of legal caution. Even though successive states of emergency have been used to manage the crisis, adequate parliamentary and judicial oversight has resulted in broadly proportional handling of the pandemic.
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Nika Bačić Selanec
The Croatian government has, much like any other, struggled to find an adequate response to the pandemic of COVID-19. “Dancing with the virus” for the last year entailed introducing, relaxing and re-introducing more or less stringent measures limiting constitutional rights and individual liberties based on epidemiologic developments and political priorities of the day, or season. The measures have ranged from almost a full lockdown in early 2020 when our numbers of infections were amongst the lowest ones in Europe, to a (far too) lenient regime during the tourist season in summer and fall 2020, when the budgetary, economic and political concerns prevailed over the need to address the serious worsening of our epidemiologic parameters. Even today, in the midst of the ‘third wave’, Croatia has quite a moderate set of measures.
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Maria Ela L. Atienza
The Philippines have one of the longest lockdowns in the world in response to COVID-19. This post reviews the past year, focusing on the main legal and political issues as well as prospects in the country with the second highest total number of COVID-19 cases in Southeast Asia.
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Rasha Al Saba, Samrawit Gougsa
The disproportionate impact of Covid-19 on minorities and indigenous peoples across the globe has been well documented. Individuals from these communities have been infected at a greater rate, are more likely to die after contracting the disease and now risk being at the back of the queue in national vaccination programmes. Our work has focussed on a number of elements of this phenomenon, including a study of the disproportionate burden of Covid-19 on the most marginalized communities worldwide, and the ways that members from these communities have been pushed into forced labour as a result of the pandemic.
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Eglè Dagilytė, Aušra Padskočimaitė
The coronavirus pandemic posed an unprecedented challenge for the Lithuanian society and the decision-makers. Lithuania’s response to the disease was overseen by two different governments - a populist centre-left government in spring 2020 and a liberal-centre-right coalition formed after the 2020 October parliamentary elections. Since Lithuania’s approach to the first wave of the COVID-19 pandemic including its legal/constitutional framework has already been addressed, the present analysis will focus on the second quarantine as well as on some overarching issues concerning the rule of law, human rights and good governance.
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Manon Julicher, Max Vetzo
Along with Covid, the Government’s response, and the growing public unrest, came a continuing string of constitutional questions and developments, that is unlikely to diminish anytime soon. Building on the abovementioned Verfassungsblog post, we will discuss the main constitutional Covid-19 highlights, largely chronologically. Throughout we will pay particular attention to three recurring and interrelated themes: the evolving role of Parliament in shaping the political and legal response to Covid-19, the relevance and varying intensity of judicial control in pandemic times, and the omnipresence of fundamental rights concerns.
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Wen-Chen Chang, Chun-Yuan Lin
Except for a minor hospital cluster infection in late January 2021, there has been no sign of community spreading. Compared to what has been going on globally with three million death, Taiwan’s control of Covid-19 pandemic is a miraculous success, particularly given its barred access to the World Health Organization and its geographic proximity and economic close ties with China. Notably, this success has been achieved without issuance of any emergency order for lockdowns, shelter in place, business closure, or school suspension. People’s daily lives have been kept without substantial interruption. Because of this, Taiwan’s legal and regulatory responses with the Covid-19 pandemic was praised as the least restrictive in the world.
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Zemelak Ayele, Yonatan Fessha
Covid-19’s arrival in Ethiopia was especially inopportune, coming as it did when the country was at a political crossroads and the federation under heavy strain as a result of unprecedented intergovernmental disputes. Covid-19 emerged just two years after the three year public protests which began soon after the 2015 elections in which the Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF), the ruling coalition until 2019, claimed 100% victory. The public protests led to a political division within the party resulting in the coming to power of Abiy Ahmed who re-configured the party.
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Dean R Knight
Just over a year since the first outbreak in New Zealand, we cast our eye back and reflect on the government’s response to the Covid-19 pandemic. Without question, the response is a study in the wonders of modern government, given the magnitude of the threat, the different dimensions of community wellbeing at stake and different parts of government involved in the response. Public health guidance, clinical health care, economic support and stimulus, social welfare and support, border security and surveillance. The list goes on....
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Joelle Grogan, Julinda Beqiraj
The COVID-19 pandemic has presented an extreme strain on legal systems worldwide, as they struggled to adapt existing legislative frameworks, administrative functions, and executive decision-making to the fast-changing and complex situation of the pandemic emergency. The measures adopted worldwide, including mandates in the form of lockdowns and restrictions on gatherings, closures of educational and business institutions, have been not only among the most restrictive limitations on the rights of the majority of global population but also long lasting, with uncertain ending.
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Hans Petter Graver
One year into the pandemic it is necessary to take stock of what has been achieved by the measures that have been implemented, and to reflect on their costs. Phrased differently, how successful have the authorities been in their endeavors to contain and control the spread of COVID-19? And from a legal point of view, what are the constitutional and cultural legacies of a year of deploying war-like measures against the virus? In this contribution to the symposium, I revisit the Norwegian COVID-19 response. In particular, I begin to unpack the narrative of success and its impact on deliberative democratic discourse. I do this by way of taking stock of the response through the lens of three rule of law indicators, namely the application of the principle of legality, the degree of parliamentary control, and adherence to open and democratic principles of rule-making.
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Ahmed Ellaboudy
Indeed, from the very outset, Egypt’s attitude concerning the management of the pandemic crisis was the adoption of the minimum possible actions, which does not harm the state economic plan, nor change the way the system functions. From a formalist point of view, Egypt has existed in a permanent state of emergency since 2017, and as a consequence, no specific legal response was adopted by the state which might alter the regular decision-making process or power arrangements between different branches. The desire of presenting an image to the public that the situation is under control was a crucial factor in Egypt's political, legal, and economic response to the COVID-19 crisis.
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Mark A. Graber
COVID revealed the extent to which attacks on evidence-based politics are part and parcel of the right-wing populist challenge to constitutional democracy in the United States and elsewhere. Right-wing populism challenges constitutional commitments to rule of law and basic liberal freedoms, as such strongmen as Erdogan. Orban and Maduro seize control of courts and persecute dissidents. Populist responses to the pandemic in the United States raise equally important questions about the constitutional commitments to science that are as important to constitutional democracy as the rule of law.
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Tamar Hostovsky Brandes
Israel’s response to the pandemic took place in an unstable and highly polarized political climate. This affected the decisions taken in several ways. First, throughout the crisis, it was difficult to achieve agreement within the government on required actions. In addition, decisions often reflected political rather than professional considerations, a problem that was exacerbated by the instability of the coalition. The prospect of additional elections also effected the political will to enforce restrictions, in particular in the Ultra-Orthodox sector, as Ultra-Orthodox parties are perceived by Netanyahu as necessary partners in any government coalition.
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David Lovatón
It has now been a year since the beginning of this prolonged pandemic, the state of emergency (decreed on March 15, 2020 and extended throughout this entire time), the various levels of confinement and restrictions on civil liberties such as freedom of movement and the right of assembly, and a severe economic recession. At this point, our balance sheet is in the red. This is not only because we reached an official death toll of 52,000 and some 1.5 million cases of infection by March of this year, but also because there has been a severe weakening of institutions, which would explain—in part—why Peru is one of the countries in Latin America that has been hardest hit by COVID-19.
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Alice Donald, Philip Leach
We anticipated a year ago that the pandemic, and state responses to it, presented both threats and opportunities in relation to the full panoply of human rights—civil, political, economic, social and cultural. Our proposition was that, as Scheinin ventures, “human rights do not present a barrier to decisive action to contain the virus”. Rather, they offer a universal frame of reference in the context of COVID-19—guiding national authorities as they balance competing interests and priorities; ensuring public accountability for their actions and omissions; and rendering visible the structural injustices that have driven the contagion’s disproportionate impact on certain communities. A year on, these arguments are all the starker.
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Shaheera Syed, Nadia Tariq-Ali
The ‘lives versus livelihood’ conundrum in Pakistan is emblematic of the difficulties that accompany the balancing of conflicting rights in transitioning democracies. From testing the ability of various tiers of the government machinery to work together to keeping the economy afloat as the country faced lockdowns, Pakistan deeply felt the onset of the burden of disease. The country’s journey through the pandemic was shrouded in deep political contestations over power struggle between the provinces and the centre. As the crisis deepened in mid-2020, the social policies for pandemic response became the site for centralising authority; where trade-offs were made between fundamental rights and well-being of citizens to draw political mileage and cementing the narrative of the centre.
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Seokmin Lee, Tae-Ho Kim
South Korea has reduced the significant number of new confirmed COVID-19 cases without ordering stringent restrictions, nor locking down regions and causing severe economic damage. South Korea was able to slow down the spread of COVID-19 along with the government’s quick reaction to the disease. The government has been implementing nationwide free public testing programs. The KCDC in the government tracked all the confirmed cases’ geographic footprints and publicized the information to the people via online websites and mobile texts. Local cities opened up an innovative ‘drive-through’ testing area, which became a model followed by other countries. The civil society has also generally followed the guidelines provided by government, including using medical face masks and adapting to ‘social-distancing.
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Anna Katharina Mangold
In January 2020, information about a highly contagious virus in Wuhan started to get public attention in Germany. Initially, as can be expected in times of crisis, it was mostly the executive that took action. Due to federal competence allocation, first acted the local authorities in their capacity as health authorities, soon joined by the governments of the federal states (Länder) and the federal government. By now, legislative amendments have formed a massive body of Corona legislation, covering various aspects of economic and social life in Germany. The debate has mainly focused on questions of vertical and horizontal separation of powers, the role of expertise in the Covid response, and restrictions of fundamental rights as adjudicated by courts.
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Zuzana Vikarská
This blogpost analyses the Czech situation from the perspective of the rule of law requirements and identifies two main deficiencies: a significant and long-lasting shift of power to the executive, and an ostentatious lack of reasoning of the executive crisis measures. Fortunately, these ‘two tales of executive arrogance’ have been somewhat counterweighed by the legislature and the judiciary.
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Andrés Cervantes
Considering the political scenario, this article will highlight that the government's management of the pandemic has been ill-timed; it has not been holistic but rather aimed at providing temporary solutions without alleviating the underlying problems of the Ecuadorian population and that the control of the President's exceptional powers has been assumed mainly by the Constitutional Court of Ecuador and not by the legislature.
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Stéphanie Dagron
This article first analyses the various dimensions of the public health and human rights crisis, in order to identify, secondly, the breadth of the efforts that need to be made for a short- and long-term human rights-based response to COVID-19.
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Bianca Selejan-Gutan
The year 2020 was a difficult one for Romania, as for the whole world, because of the Covid-19 crisis which overlapped with other local crises of political, legal and social natures. The country’s response to the Covid-19 challenges was rendered even more difficult and incoherent by these crises. In February-March 2020, the government and the President were looking for a solution in order to initiate the procedure for early elections and at the very first moments of the pandemic the country had an interim government after a motion of censure had passed.
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Ridwanul Hoque
Government authorities and political leaders take huge pride in claiming that Bangladesh has been one of the most successful countries to tackle COVID-19, with the least number of deaths compared with the size of its population (165 million). In reality, the COVID-situation and Bangladesh’s responses to the crisis are much different than the rosy picture that is often drawn.
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Jakub Jaraczewski
This post will cover four core areas of legal concern regarding the Polish response to COVID-19 across the last few months. First of them is the continued issue of legality of the measures used. Second is the issue of transparency and clarity of the measures employed with a particular look at the issue of exiting the emergency. Third is the matter of judicial oversight and the role of Polish courts during the pandemic. Fourth issue pertains to the convergence between the challenges brought about by the pandemic and the continued backsliding of the rule of law and erosion of human rights in Poland.
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Luwie Ganeshathasan
In the midst of this public health emergency, Sri Lanka’s legal system has contributed little if anything to Sri Lanka’s response to Covid-19 since March 2020. The legal system has been expected to and in a large part has in fact been “kept out of the way” of the political actors. In this post I will provide an overview of the GoSL’s legal and political response to Covid-19 and will highlight the implications of key actions on the rule of law and democratic governance. I will thereafter briefly capture the outlook for 2021.
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Kristian Cedervall Lauta
On 11th March 2020 the Danish Prime Minister Mette Frederiksen found herself in a historic moment. The infection numbers in Denmark had dramatically increased within the last 24 hours - from just 157 infected in total on the 10th of March to 514 on March 11th – and a, now well-documented, disagreement between the health authorities and the government on the overall strategy had forced the hand of the Prime Minister to take decisive action. Dressed all in black, the prime minister ceremonially opened the press conference with the, now famous, words: “What I will tell you tonight, will have major implications for all Danes”. Indeed, almost one year from the Prime minister’s public prophecy, we can conclude - it did.
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Ciara Staunton
COVID-19 is our first digital pandemic. An effective response to COVID-19 is reliant on access to data that can be used to identify COVID-19 hotspots, guide national and localised responses, as well as be used in research aimed at developing COVID-19 diagnostics, therapies and vaccines. This digital pandemic has thus seen a shift in our data practices. “Open science” and the rapid data sharing of the results of clinical trials, observational studies, operational research, routine surveillance, information on the virus and its genetic sequences, as well as the monitoring of disease control programmes has been pushed to a new level.
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Samo Bardutzky, Saša Zagorc
Slovenia had a very different experience in the first and the second wave of the 2020 COVID-19 pandemic. In the first wave, the number of infections and deaths per capita has been comparatively low and Slovenia was even identified as a “corona success story”. The second wave, however, has propelled Slovenia into the highest ranks of mortality per capita globally with the total of 162 deaths per 100,000 people from the beginning of the pandemic until 25 January 2021. The Government introduced stringent measures in Autumn 2020, including the complete ban on assembly and sale of non-essential items, the closure of educational institutions, a strict 9 pm - 6 am curfew, and the prohibition of movement across municipal borders.
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Marie-Laure Basilien-Gainche
To cope with the COVID-19 crisis, the French Parliament adopted the Act n° 2020-290 creating a new regime of exception: the state of health emergency. It is concerning as it confers more powers and large leeway to the executive branch than the traditional state of security emergency, and as it offers the opportunity to restrict widely rights and liberties with almost no checks and balances.
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Oran Doyle
In Ireland, it is not constitutionally permissible to declare an emergency in response to COVID-19. The legal response, therefore, has been mounted within the normal constitutional framework. This has consisted of five primary statutes that (a) empower the Minister for Health to make regulations (secondary legislation) imposing restrictions to control the pandemic and (b) establish enforcement powers that the Minister for Health can attach to particular restrictions. By early March 2021, the Minister had made 74 sets of regulations imposing restrictions.
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Başak Çalı, Emre Turkut
Ever since the first officially reported COVID-19 case in the country in March in 2020, Turkey, like most of the world, has taken measures to control the pandemic. The measures taken by Turkey included limitations on freedom of movement, closing schools and moving to online teaching at schools as and universities, restrictions on business opening hours, cessation of prison and detention visits, prohibition of resignation for healthcare staff, and, more stringently, the introduction of curfews.
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Abdurrachman Satrio, Mohammad Ibrahim
It has been a year since the first Covid-19 case was confirmed in Indonesia, in early March 2020. At that time, the Indonesian government underestimated the dangers of Covid-19, which proved fatal since the virus continued to spread gradually to all Indonesian provinces within a month. At the time of writing, Indonesia is the country with the highest number of positive cases in Southeast Asia with 1,419,455, even the Covid-19 death rate in Indonesia is among the highest in the world.
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Sean Molloy, Christine Bell, Asanga Welikala, Erin Houlihan, Kimana Zulueta-Fülscher
This post looks at emergency law responses to the Covid-19 pandemic in conflict-affected states in transition. While some type of emergency response to Covid-19 has been used in most states, we suggest that conflict ‘fault lines’ can mean that emergency law responses have a capacity to undermine transitions.
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Marzieh Tofighi Darian
As of January 26, 2021, Iran has reported a total of 57,481 death and more than 1,300,000 confirmed cases of COVID-19, making it the hardest-hit country in the Middle East. After days of denial, Iranian officials finally confirmed the first COVID-19 related death on February 19, 2020. The government’s response in the early days of the pandemic was a preview of what was to come: refusing to quarantine the city of Qom, the first epicenter of COVID in Iran; rejecting the call to postpone the Parliamentary elections; and continuing to receive flights from China, all resulting in the quick spread of the virus across the country.
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Merilin Kiviorg, Päivi Margna
The first coronavirus infection in Estonia was diagnosed on 27 February 2020. Immediately, some steps were taken by the Government to deal with the rapidly evolving and changing situation, including placing some restrictions on freedom of movement especially on people in quarantine. To further tackle the emerging crisis the Government established a state of emergency on Estonian territory. This was done by Order No. 76 of 12 March 2020. The numbers of infected in spring 2020 were low in comparison with the numbers of infected during the second wave in autumn-winter 2020. On the day when the emergency situation was declared there were only 27 COVID-19 positive people.
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Ciara Staunton, Melodie Labuschaigne
On 15 March 2020 with only 61 cases and 0 deaths recorded, President Ramaphosa quickly decided that swift action was required and declared a state of disaster. Despite this quick action, South Africa has recorded the highest number of cases in Africa. This post will consider whether its response has been legitimate, proportionate and subject to appropriate judicial oversight.
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Kriszta Kovács
A year ago, the first lockdowns were introduced in Europe. Since then, European governments have been busy introducing COVID-19 containment measures, including social distancing rules and mask mandates. For two months, they have been vaccinating the people. Ostensibly, the EU countries have taken similar steps. This piece provides a sketch of how the Hungarian government has handled the pandemic.
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Sabine El Hayek
Lebanon is facing an unprecedented crisis due to the continuous political turmoil and the unfolding economic and financial meltdown, exacerbated by the Covid-19 pandemic. This situation was further aggravated by the devastating 4 August explosion of 2,750 tonnes of Ammonium Nitrate at the port of Beirut that killed over 200 people, injured more than 7,000 and left thousands of residents without a roof. To date, justice has not been served, and no one has been held accountable. The combined impact of these crushing tragedies in addition to the rampant inflation is catastrophic on citizens’ livelihoods.
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Maaike De Ridder
As Covid-19 started to make its way onto Belgian territory, the Belgian federal government found itself in the midst of political disorder and negotiations to form a government after the May 2019 elections. Up until March 2020, the competent authority to decide on Covid measures was a caretaker minority government (Regering Wilmès I). But, after the first big outburst of cases in Belgium, the government formation accelerated. Nine political parties made a deal to give the resigning minority government full authority to combat the virus and its economic and social ramifications by a motion of confidence (Regering Wilmès II).
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Hafsteinn Dan Kristjánsson
At the beginning of this pandemic in Iceland, the sense of urgency, uncertainty, and necessity seemed to be front and centre. New and far-reaching restrictions were seen, at least by some, as ‘a necessary evil’ in order to protect us from a new and, in a sense, invisible threat. The learning curve for the government was also steep. According to our law, the government had a wide discretion to address this novel situation. Less than a year later, this is still true to a certain extent. However, whereas the necessity to act was predominant in the first stages of the pandemic, questions of constitutionality and legality are now moving to the forefront.
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Max Steuer
In spring 2020, Slovakia was praised for minimizing the instances of the COVID-19 pandemic. By early 2021, however, with Slovakia among the top five countries with the highest increase of COVID-19-induced death cases, a very different picture has emerged, highlighting the costs of neglecting democracy considerations (encompassing human rights and the rule of law) by the executive in particular.
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Paul Daly
As of early 2021, the COVID-19 pandemic continues to rage across Canada. These are dark days. Although the arrival of vaccines suggests light will soon appear at the end of the tunnel, Canada is a long way from the end of its COVID-19 crisis.
In this blog, I hope to illuminate readers, through the lens of pandemic-related public law litigation, about how Canada has responded to COVID-19.
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Cristina Fasone
The activity of the coalition Government between the Five Star Movement (5SM), the Democratic Party and other centre-left junior allies to tackle COVID-19 has been praised by some and severely criticized by others. Looking back at this first year of pandemic, a crucial problem of the Italian management of the disease and the related economic and social crises has been the lack of loyal cooperation; a principle entrenched into the Constitution (Art. 120, second para, Const.), with regard to the relationship amongst the different levels of government.
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Esteban Hoyos-Ceballos, Julián Gaviria-Mira
It has been a year now since a discussion began about the profound changes that the arrival of the SARS-Cov-2 pandemic could bring to our constitutional systems. This year has confirmed that the bad omens of the early days of the pandemic were well justified. The system has been put through a severe stress test and, unfortunately, we cannot say that it has been up to the challenge. This blog post seeks to briefly review the main events that have marked the institutional response to the pandemic and the implications that this response has had for the Colombian constitutional system.
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Radosveta Vassileva
In a prior article, I explained how the Bulgarian Prime Minister Boyko Borissov was using the COVID-19 emergency in spring 2020 as an opportunity to implement measures curtailing fundamental rights and solidifying his autocracy. Subsequently, Borissov’s GERB party enacted questionable amendments to the Law on Health permitting the executive to usurp powers traditionally conferred onto Parliament in Bulgaria’s constitutional order.
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Roman Petrov, Bohdan Bernatskyi
The pandemic has exposed all the weaknesses and shortcomings of the Ukrainian health protection system, which has been on a periphery of the national reforms agenda for many years. In many regards, the Ukrainian way to protect the population against infectious diseases remains ineffective and fragmented and based of outdated Soviet-time approaches and methods. To date, Ukraine is one of the unfortunate leaders among European countries in confirmed Covid-19 cases and coronavirus death tolls. There is still no clear national strategy on how to prevent the further spread of Covid-19 in Ukraine is in place. The President of Ukraine and the Ministry of Health of Ukraine forecasted the terms of vaccination under the WHO COVAX initiative. However, detailed arrangements are far from being in place.
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Teresa Violante, Rui T. Lanceiro
Following an initial comparatively successful handling of the pandemic, infection numbers began increasing consistently after September in Portugal and reached an alarming rate at the beginning of 2021. A second lockdown started on January 14, 2021, with record infection and mortality rates and the National Health Service near breakdown. On 21 January, the measures were tightened and included the closure of schools and universities. A year later, Portugal is back to square one, and, as the failure to control the growth of the pandemic seems evident, medical and moral despair dominate. The impact of the restrictions on the freedom of movement contributed to a decline in the country’s overall score of The Economist’s Democracy Index 2020, that now qualifies it as a “democracy with flaws”.
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Pui-yin Lo
Hong Kong was one of the front urban regions that recorded COVID-19 cases in early 2020. One year later, there were recorded over 11,000 confirmed cases and 200 deaths. At the time of writing, this Special Administrative Region of the People’s Republic of China is struggling with the fourth wave of infections, which is the most virulent thus far, due to the combination of community spread initiated a cluster of dancing instructors and students, and the infiltration of the coronavirus, finally, into the least hygienic environs of the built-up areas.
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Edoardo Stoppioni
With the end of the first wave of COVID-19, the state of crisis was ended in June 2020 in Luxembourg. But its problematic features seem to have remained in the legislative action tackling the second wave. Two main differences appear between the legal approach adopted in March and the current one.
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Max Planck Institute for Comparative Public Law and International Law
A conversation with Alexandra Phelan, Maike Voss, Mark Eccleston-Turner, Pedro Villarreal, and Leticia Casado, moderated by Alexandra Kemmerer.
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Ratna Rueban Balasubramaniam
The COVID-19 pandemic occasioned a de facto worldwide state of exception. In Malaysia, the beginning of the pandemic would coincide with political turmoil. In 2018, a democratic reformist government surprisingly rose to power after unexpectedly winning the general election. The victory ended six decades of ethnocratic and authoritarian rule under the United Malay National Organization (“UMNO”), a Malay nationalist party committed to a political doctrine of ethnic “Malay Dominance.” However, in March 2020, just as the WHO declared a global pandemic, a series of political machinations brought down the reformist government.
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Constantinos Kombos
The outbreak of COVID-19 caught the Cypriot legal order unprepared as regards the effective response in containing the spread of the virus. Contrary to the approach of other European states that declared a state of emergency, Cyprus opted for the adoption of executive measures based on pre-existing, primary legislation. In the absence of any contemporary legislation and with the conscious decision not to table legislation, the executive employed the provisions of colonial legislation, namely the Quarantine Law (Cap. 260) which was enacted in 1932 by the British. The said law intended to regulate the imposition of quarantine and provided for the prevention in the then colony of dangerous infectious diseases. Following the independence of Cyprus in 1960, colonial legislation – including Cap. 260 – remained in effect, as per article 188 of the Cypriot Constitution, subject to compliance with constitutional provisions.
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Kirill Koroteev
As the end of the year 2020 approached, the Vice-President of the French Conseil d’État Bruno Lasserre commented on one line of the case-law that appeared in the pandemic year: urgent application judges had to decide on the legality of rules found in press-releases and interviews by first deciphering legal rules and their hierarchy from those texts. This reflected exactly my experience as a practitioner in 2020 Russia: advising a client having weighed whether a blog of the Speaker of the Moscow City Duma carried more authority than a televised interview of the Moscow Mayor.
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Felix Uhlmann, Odile Ammann
In our earlier blog contributions, we analysed whether the Swiss federal government (the Federal Council) acted within the bounds of the Swiss Constitution (hereinafter: Cst.) when enacting emergency ordinances in the context of the Covid-19 pandemic. We criticised the self-suspension of Parliament in March 2020, and we had a first glance at the interaction between the Confederation and the cantons. We are now, hopefully, halfway through the pandemic, which justifies a look back and a look into the future, especially into the ongoing vaccination efforts.
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Thulasi K. Raj
In the recent global history of constitutional democracies, it is difficult to name a single crisis that has plagued them simultaneously, until the COVID-19 pandemic. The calamity brought in by the virus was universal. For governments, it presented an opportunity for crisis management without compromising rights guarantees. Some countries have marginally succeeded in this test while in others, concerns of democratic decline were amplified. Three features defined the Indian response to COVID-19: lack of transparency, executive monopoly and suppression of dissent.
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Alicia Cebada Romero, Elvira Dominguez Redondo
The Spanish response to the waves of the COVID-19 pandemic that have affected the territory has so far largely relied on emergency powers. The measures were adopted on the basis of the pre-existing legal framework provided in article 116 of the Constitution and its legislative development, Ley Orgánica 4/1981 on state of alarm, exception and siege, adopted on 1 June 1981 (henceforth LO 4/1981). As explained below, two different approaches have characterised the response to the first and second wave. However, both have their legal basis on the same norms and are based on the same legal category, i.e., the state of alarm ('estado de alarma').
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Max Planck Institute for Comparative Public Law and International Law
A book launch conversation to mark the publication of ""Defending Checks and Balances in EU Member States. Taking Stock of Europe's Actions", with Adam Bodnar, András Jakab, Justyna Łacny, Christoph Möllers, Joseph Weiler et al.
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Eugenio Velasco
Close to a year since its first confirmed case of COVID-19, several indicators place Mexico among the countries that have suffered the worst effects of the pandemic. This post offers a critical overview of the governmental responses to the outbreak. It begins by describing the actions taken by officials of the different branches and levels of government. This is followed by an assessment of the many omissions and deficiencies that have characterized the response of the Federal Executive. Lastly, it closes by offering an outlook for 2021.
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George Karavokyris
In the first wave of the pandemic (March-June 2020) Greece has been widely praised for having taken all necessary actions to contain effectively the spread of the virus. Despite the reasonable concerns, a consensus among scholars about the constitutionality of harsh restrictions on rights was reached, along with a broad social acceptance, due to the priority of health public interest and the exceptional character of the measures. Set by an emergency mechanism, the framework of the “crisis-law” remains alive and binding, while the country is possibly entering, after the second and more lethal spike (November-January), the third wave of Covid-19.
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Fionnuala Ní Aoiláin, Thomas Bustamante, Joelle Grogan, Jakub Jaraczewski, Thulasi K. Raj, Martin Scheinin
Marking the launch of the 2021 "Power and the COVID-19 Pandemic" Symposium, this webinar will bring together five contributors to discuss the impact of the pandemic on legal systems globally, and offer initial assessments for the rule of law, democracy, and human rights.
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Shirin Chua, Jaclyn L. Neo
The Covid-19 pandemic has tested the legal, political, economic and public health systems of countries all over the world, and Singapore – particularly as it found itself having to hold a general election in the middle of the pandemic – is no exception. However, it does seem that the pandemic has created opportunities for consolidation of democracy in Singapore as a result of increased citizen-state interactions during this time.
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Iain Cameron, Anna Jonsson-Cornell
The Swedish political and legal response to the Covid-19 pandemic is best described as soft in terms of the character of the measures applied, and decentralized in terms of the division of powers and responsibilities. Swedish constitutional law does not provide for a state of emergency in a peace time crisis, such as a pandemic. Instead, the principle of statutory anticipation is used, which means that ordinary laws (with, in some cases, special provisions which can be activated) apply also in a time of crisis, e.g. the Public Order Act (POA), which allows the government to restrict the number of participants in public meetings or organized public events. Where these powers are deemed to be insufficient, the legislative procedure should be sufficiently flexible to allow new powers to be added relatively speedily. However, the events in 2020 showed that this approach suffers from several deficiencies.
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Khemthong Tonsakulrungruang, Rawin Leelapatana
COVID-19 posed one of the biggest challenges to the government of Prayuth Chan-ocha, the former junta leader and current prime minister. He successfully controlled the first round of pandemic, which spiked in mid-March by enforcing disproportionately harsh measures for unnecessarily prolonged period. [...] This article discusses the government’s failure to utilize emergency power to manage COVID-19 and assesses adverse effects brought about by the prolonged state of emergency.
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Martin Scheinin
In mid-April 2020 Verfassungsblog published my first take on Finland’s response to COVID-19, under the characterisation 'Best Practice and Problems'. Into February 2021, Finland has remained one of the few European champions in combating the epidemic, with 9,423 cases and 131 deaths (both per one million inhabitants and by 18 February 2021). Notably, Finland’s success has not followed from strict ‘draconian’ measures but from a combination of factors that include at least geographical location; cultural patterns that support physical distancing and even isolation; a well-functioning healthcare system; a good level of compliance; comparatively good levels of vitamin D; and sheer luck which would be related to the first factor, geographical location.
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Emilio Peluso Neder Meyer, Thomas Bustamante
In the first half of January 2021, Brazil had already counted more than 200,000 deaths and 8 million people diagnosed with COVID-19. Throughout 2020, the responses from the federal government, which should have taken on a coordination role considering the federalised National Health Service (SUS, Sistema Único de Saúde), were confusing and inefficient. Doubts and scepticism spread by the federal executive undermined the work of governors and mayors and, mirroring the American example, contributed to increase the number of cases and casualties.
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Marco Rizzi, Tamara Tulich
Australia’s legal and political response to the outbreak of COVID-19 has been marked by the formation of a new intergovernmental forum, the National Cabinet, to lead a coordinated national response to the pandemic, and the declaration of successive states of emergency at the federal and state levels activating extraordinary executive powers, including limitations on movement and border closures. Australia’s response has, to date, resulted in the successful curtailment of community transmission of COVID-19 in Australian States and Territories. However, the response to the pandemic has also involved the removal of existing mechanisms of executive accountability, suspensions of Parliament and little parliamentary scrutiny or other oversight of executive action. These democratic deficits present fresh challenges for Australia going forward, particularly as the National Cabinet structure becomes permanent and the states of emergency endure for the foreseeable future.
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Joelle Grogan
One year on how has the COVID-19 pandemic affected the law, and the way states govern? Should we be concerned about the ongoing use of emergency powers? How can we look forward to what lies ahead? Convened by Joelle Grogan, this Symposium is hosted by the Verfassungsblog and supported by Democracy Reporting International and the Horizon-2020 RECONNECT project.
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Hannah Birkenkötter, Nico Krisch
Multiple legalities: a high-profile online conference on conflict and entanglement in the global legal order will be live-streamed on Verfassungsblog next week.
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Hannah Birkenkötter, Nico Krisch
Whether a bureaucrat in an environmental ministry tries to keep track of the various reporting duties she needs to comply with, or an investor seeks to understand the law of international financial transactions; whether a human rights defender faces a multi-level system of domestic and international human rights institutions with which to engage, or a professional athlete competes in a setting where rules from various entities – states, professional associations, the competition conveners – apply, there are today few (if any) situations that are governed by only one single regulatory framework. Multiplicity, it is now widely agreed, is a condition of the law beyond and increasingly also within the state.
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Hannah Birkenkötter, Nico Krisch, Julia Eckert, Miguel Poiares Maduro, Balakrishnan Rajagopal, Surabhi Ranganathan
How do different actors navigate law’s multiplicity? This panel will bring together perspectives from law, critical theory and legal anthropology to discuss how actors’ engagements with legal norms shifts our understanding of law as a unitary order.
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Laura Mai, Jason Rudall, Lars Viellechner, Sarah Nouwen, Tomer Broude
This panel will analyse different ways in which norms from different legalities are being related: how do different forms of ordering in the field of climate change (standards, guidelines and frameworks) interact with one another? How do norms of environmental protection impact other areas of international law? And how can we best conceptualize the ways in which such norm interactions take place and provide guidance to normative conflicts – are they examples of colliding systems or instead of an emerging legal tapestry?
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Poul F. Kjaer, Julia Eckert, Tobias Berger, Julie Wetterslev, Robert Hamilton
This panel investigates how international law, formal state law and Indigenous and/or religious law interact and relate to one another by contrasting the historical example of 18th century maritime provinces in Canada with contemporary legal disputes from Bangladesh and Nicaragua to. The papers use ethnographic and legal historical methods to better understand those relationships.
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Michele Krech, Lucy Lu Reimers, Tomáš Morochovič, Rozemarijn Roland Holst, Larry Catá Backer, Oren Perez
How do norms get transformed and do new norms emerge from legal interactions? This panel looks at this question with three different case studies of actors weaving different legalities together: World Athletics’ engagement with the norm of gender equality; UNCLOS courts’ and tribunals’ consideration of broader norms of ocean governance; and the impact of corporate social responsibility norms on WTO law.
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Hannah Birkenkötter, Gráinne de Búrca, Ralf Michaels, César Rodríguez Garavito
Almost seventy years after Philip Jessup coined the term “transnational law” as “all law which regulates actions or events that transcend national frontiers…both public and private international law”, the public-private law dichotomy is still deeply entrenched in legal thought. This panel brings together scholars who have regularly transcended this dichotomy in their work to discuss how legal multiplicity is impacting on our understanding of transnational law today.
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Christoph Möllers, Thomas Streinz, Ralf Michaels, Nofar Sheffi, Stefania di Stefano
How are online platforms that are used by billions of users around the world regulated? This panel looks at how platform economies such as Facebook or AirBnB are regulated and how they relate with and connect the different legalities they come into contact with. Does this challenge traditional understandings of law?
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Tomer Broude, Laurence Boisson de Chazournes, B.S. Chimni, Miranda Forsyth, Laura Knöpfel
When faced with multiple legalities, how do we know what “the law” is, and how is this notion formed by different actors coming at this question from different vantage points? This panel investigates this question through different case studies, ranging from the post-colonial state of Papua New Guinea to Northern Colombia and China’s Belt and Road Initiative.
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Anne Peters, Poul F. Kjaer, Surabhi Ranganathan, Oren Perez, Fulya Apaydin, Charles Roger
Informal, “soft” law has often been investigated through the lens of network authority. This panel contrasts two such perspectives from transnational law – private transnational legal regimes in the field of corporate social responsibility and the transition from and connections between informal and formal law in the field of global financial governance – with a theoretical approach that emphasizes the importance of connectivity norms for the global legal order.
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Nico Krisch, Jeff Dunoff, Andrea Liese, Hannah Birkenkötter
The Conference on Multiple Legalities is organized as part of the interdisciplinary research group “Overlapping Spheres of Authority and Interface Conflicts in the Global Order”. Three research groups present their main insights from this multi-year collaborative endeavor in conversation with Jeffrey L. Dunoff. Some research results can be found in a Global Constitutionalism Special Issue.
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Sarah Nouwen, Brian Z. Tamanaha, Christoph Möllers
How does multiplicity in law beyond (and within) the state affect our understanding of the nature of law? In this discussion, international law scholar Sarah Nouwen engages in a conversation with legal philosophers Brian Z. Tamanaha and Christoph Möllers to take stock of the debate and its implications for theories of law.
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Gráinne de Búrca, Balakrishnan Rajagopal, Larry Catá Backer, Pascal McDougall, Gabriele Wadlig
Formal legal rules do not appear out of thin air. Rather, their emergence is conditioned by frameworks that are invisible to the formalist perspective. This panel looks at how formal law is driven by an array of less visible factors: data, algorithms, and broader “background rules”.
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Nico Krisch, Antoine Duval, César Rodríguez Garavito, Machiko Kanetake, Caroline de Lima e Silva
How do different legal orders interact vertically? Is this interaction marked by conflict and contestation, or by compromise and collaboration? This panel looks at three different such interactions: between domestic courts and the Inter-American Court of Human Rights; between regional human rights courts and United Nations Treaty Bodies; and between Swiss domestic law and the lex sportiva.
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Hannah Birkenkötter, Dana Burchardt, Brian Z. Tamanaha, Francesco Corradini, Valentin Jeutner
When attempting to analyse multiple legalities, various conceptualizations have been and continue to be offered to capture this phenomenon. These different conceptualizations rest on different images of multiplicity. How do we arrive at such diverging conceptualizations, and what are the reasons behind them? This panel presents and discusses three different images of multiplicity.
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Anne Peters, Laurence Boisson de Chazournes, B.S. Chimni, Jeff Dunoff
This panel assembles four eminent international law scholars to discuss how the multiplicity of law beyond the state observed over the past two days affects the study of international law today. What are the prospects for international law as a discipline?
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Hannah Birkenkötter, Nico Krisch, Mattias Kumm, Sarah Nouwen
In closing, we aim to take stock of the two-day conference and our attempt to bring into conversation scholars from different backgrounds to understand the implications of multiplicity for the theory and practice of law beyond the state.
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Lucia Rubinelli
Let me start by expressing my gratitude to the editors of the Verfassung blog and to the contributors to this debate. When I was writing the book, the very idea of it being read sent me into a panic. It still does today, but I am lucky to have found generous and insightful readers in Peter Niesen, Carlos Pérez Crespo, Markus Patberg and Esther Neuhann. Their comments raise both general methodological points and specific historical questions about the chapters. I will try to answer them in turn: I will first engage with the methodological critiques and I will then move to interpretative questions about the story I tell in the book, its protagonists and their historical contexts.
The main aim of the book is, as I see it, to explain how the idea of constituent power has been used to make sense of the democratic principle according to which power belongs to the people. [...]
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Esther Neuhann
In her book Constituent Power: A History (2020), Lucia Rubinelli aims to provide a history of the “language” or, more precisely, the “words ‘constituent power’” (14). She narrates this impressive history along five historical key moments, from Emmanuel Joseph Sieyès to Hannah Arendt.
In the following, I will, first, comment on the methodology Rubinelli adopts throughout the book and, second, focus on the fifth historical moment “Arendt and the French Revolution” (Chapter 5). In this chapter, Rubinelli reconstructs Arendt’s critique of “sovereignty as a theoretical category and as a principle of political organization” (177) and her suggestion to replace it with ‘constituent power’. It is an original contribution of the book to show that Arendt’s argument is in line with the sense in which Sieyès originally put forward ‘constituent power’ – although Arendt herself framed it as a critique of Sieyès which, according to Rubinelli, is rooted in her inaccurate reading of Sieyès through Carl Schmitt.
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Markus Patberg
In these brief remarks, I reflect on Rubinelli’s interpretation and critique of what is going on in contemporary theoretical debates about constituent power. What I want to argue is that while her reconstruction of classical positions is highly illuminating and takes our understanding of constituent power’s complex history to a new level, we risk underestimating the ideas in play if we regard them, as Rubinelli suggests we should, as “contingent” (p. 29) and therefore equally valid.
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Carlos Perez Crespo
In this comment, I engage with Chapter 3 of Lucia Rubinelli's book, which is an essential contribution to the study of constituent power in the Weimar Republic and the reception of this idea in the work of the controversial jurist Carl Schmitt (1888-1985). My thoughts are organized into two sections. In the first, I summarize Rubinelli's reading of Schmitt’s understanding of constituent power in Weimar. My main criticism concerns Rubinelli’s reading of the arbitrary character of constituent power in Schmitt, which in my view insufficiently reflects Schmitt's distinction between dictatorship and despotism. In the second part, I turn to the historical transition of constituent power that Rubinelli detects between the 19th-century French lawyers and the Weimar Republic. I point out that there is a missing link in Rubinelli's history of Schmitt's constituent power: the dialogue between the languages of German state theory (Staatslehre) and French public law (Droit Public) in the early 20th century.
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Peter Niesen
The research question of 'Constituent Power. A History' is framed in the book‘s introduction as a critical mission in intellectual history, as Rubinelli identifies a major confusion in recent works on the historiography of political thought. A small industry has sprung up in recent years to backdate the advent of constituent power to the middle ages and even to antiquity. Authors claim to have discovered an employment of the concept in texts dating back to before the term became historically available in Emmanuel Sieyès. Rubinelli is surely right to castigate the anachromisms involved, and referring to Aristotle, Marsilius or Machiavelli, Bodin, Spinoza or Hobbes as early adapters to a timeless concept of constituent power seems misguided, but perhaps for other than her stated methodological reason, that we need to attend to the usage of the term because there is no determinate and stable concept of constituent power.
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Peter Niesen
Lucia Rubinelli’s book Constituent Power. A History (Cambridge 2020) is a major contribution to democratic thought, in both method and substance. This Verfassungsblog symposium in the context of the Hamburg DFG-funded project „Reclaiming Constituent Power“ (319145390) arises from a shared interest in the subject matter of the book, the democratic reading of the fundamental lawmaking power of the people, as well as from a shared interest in the authors identified as relevant. The comments are devoted to the successive chapters of the book, on Emmanuel Sieyès (Peter Niesen on chap. 1), on French droit publique and Carl Schmitt (Carlos Perez on chap. 2-3), on the post-WW II lawyers such as Mortati and Böckenförde (Markus Patberg on chap. 4), and on Hannah Arendt (Esther Lea Neuhann on chap. 5).
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Helmut Pollähne
Reiben sich nur Wissenschaftler*innen (und seien es solche des Rechts) verwundert die Augen, wenn Strafverfolgungsbehörden Forschungsunterlagen beschlagnahmen? Es wäre wünschenswert, dass auch inzwischen in der Justiz tätige Akademiker*innen nicht vergäßen, welcher Stellenwert der Forschungsfreiheit gebührt (auch wenn ihr – hier: juristisches – Studium von der Forschung allzu weit entfernt angesiedelt gewesen sein mag).
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Bettina Weißer
Wegen der Untätigkeit des Gesetzgebers ist die empirische Sozialforschung gewissermaßen dem unausgesprochenen Goodwill der Justizpraxis ausgeliefert, die die notwendige Sensibilität walten lassen mag – oder eben auch nicht, wie der berichtete Sachverhalt eindrucksvoll belegt. Das beschädigt nicht nur die Forschungsinteressen der individuell betroffenen Wissenschaftlerinnen, sondern es richtet auch weiteren Schaden an.
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Thomas Weigend
Empirische SozialforscherInnen brauchen Vertrauen – sowohl von den Institutionen, die ihre Tätigkeit finanziell unterstützen, als auch von den ProbandInnen, die ihnen Zugang zu persönlichen Informationen gewähren. Verfassungsrechtlich sind die Bedingungen, die akademisch eingebundene SozialwissenschaftlerInnen für ihre Arbeit benötigen, durch die Wissenschaftsfreiheit in Art 5 Abs. 3 GG abgesichert. Dennoch kann die notwendige Vertrauensbasis gefährdet werden, wenn sie sich beruflich mit Fragen beschäftigen, die für Strafverfolgungsbehörden von Interesse sein können, wie etwa Vorgänge im Justizvollzug oder Dispositionen ihrer Probanden zu terroristischen Straftaten. Solche Insider-Informationen können von großer Bedeutung für die Strafverfolgung sein. Ob entsprechende Unterlagen bei den ForscherInnen für Zwecke eines Strafverfahrens beschlagnahmt werden dürfen, ist zum Gegenstand heftiger Kontroversen geworden.
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Frank Meyer
Die Ausgestaltung der Zeugnisverweigerungsrechte in der StPO erweckt schon bei oberflächlicher Betrachtung einen inkohärenten Eindruck. Sie ist ein unsystematisches Sammelsurium von Partikularrationalitäten und steckt voller Unwuchten. Die Wissenschaftsfreiheit erfährt darin erstaunlicherweise keinen besonderen Schutz. Und noch erstaunlicher mag es scheinen, dass sich darüber bis dato weder größeres Unbehagen in der Wissenschaft geregt hat noch die verfassungsrechtlichen Leitkommentare den unzureichenden Schutz im Strafverfahren weiter problematisieren.
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Sabine Gless
Strafprozessrecht wird gerne als «Seismograph der Staatsverfassung» bezeichnet. Ein Beben lösten jüngst zwei Beschlüsse das OLG München aus (Beschl. v. 31.01.2020, OGs 19/20 und v. 28.07.2020, 8 St ObWs 5/20). Sie erklärten die Beschlagnahme von Videointerviews für rechtmäßig, in denen sich Häftlinge mit islamistischem Hintergrund zu ihrer eigenen Geschichte äußerten. Die Interviews waren von Sozialforschern im Rahmen eines von der DFG geförderten und von der Bayerischen Staatsregierung unterstützten Forschungsprojekts zur «Islamistischen Radikalisierung im Justizvollzug» geführt worden.
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Christian Walter, Philip Nedelcu
Ein Beschluss des Oberlandesgerichts München versetzt die empirische Kriminalitätsforschung derzeit in helle Aufregung. Worum geht es? Das OLG wies in dieser Entscheidung die Beschwerde eines Erlanger Professors für Psychologische Diagnostik zurück, mit der dieser sich gegen die Durchsuchung seiner Diensträume an der Universität und die Beschlagnahme des Transkripts eines Interviews gewandt hatte, das eine Mitarbeiterin seines Lehrstuhls im Rahmen eines Forschungsprojekts zur Radikalisierung im Justizvollzug mit einem Häftling geführt hatte.
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Sabine Damir-Geilsdorf, Julia Eckert, Gritt Klinkhammer, Michi Knecht, Mira Menzfeld, Werner Schiffauer, Martin Zillinger
Beamte des Bayerischen Landeskriminalamts durchsuchten am 31.1.2020 das Büro des Hochschullehrers Mark Stemmler, der im Rahmen eines Forschungsprojekts vertrauliche Gespräche mit inhaftierten Jihadis geführt hatte. Interviewaufzeichnungen und weitere identifizierende Informationen wurden trotz seines Protests beschlagnahmt. Der Fall illustriert beispielhaft, dass Forschende derzeit über keine rechtlichen Möglichkeiten verfügen, wissenschaftliche Daten wirksam vor behördlichen Zugriffen zu schützen. Die Interviewpartner*innen selbst, das ethische Selbstverständnis der Wissenschaftler*innen und die Datenschutzregeln von Forschungsförderungsinstitutionen (er)fordern aber systematische und verbindliche Schutzzusagen, um gesellschaftlich wichtiges Wissen gewinnen zu können. Interdisziplinäre Beiträge aus den Rechts- und Sozialwissenschaften debattieren Gründe und Hürden für ein Zeugnisverweigerungsrecht für Wissenschaftler*innen und formulieren juristische Lösungsansätze.
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Marta Cartabia, Daniel Halberstam, Anna Śledzińska-Simon, Antoine Vauchez, Armin von Bogdandy
We are debating the specter of German Legal Hegemony. It’s a new dimension for most German lawyers. The prevailing view has been that Germany is at the receiving end and losing out. Many consider Germany as making a too small impact on European law because it’s too inflexible for its federalism and too inhibited for many reasons. Quite a few see the 2nd Senate of the BVerfG as the last institution defending law and reason against overbearing European institutions as Berlin politicians have largely given up. The symposium has provided a different picture. How to deepen learning from it? Today we propose a discussion which is both analytical and normative.
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Franziska Oehm
In den letzten Wochen hat sich die politische Debatte um die Vorlage eines Entwurfes für ein Lieferkettengesetz in Deutschland intensiviert. Derzeit wird auf Minister*innen-Ebene zwischen dem Bundesministerium für Zusammenarbeit und Entwicklung, dem Bundesministerium für Arbeit und Soziales und dem Bundesministerium für Wirtschaft über den Gesetzesentwurf verhandelt, der im Nationalen Aktionsplan „Wirtschaft und Menschenrechte“ angelegt ist. Uneinigkeit besteht aktuell neben Fragen des Anwendungsbereichs vor allem noch über den Haftungstatbestand – soll Haftung für Menschenrechtsverletzungen entlang der Lieferkette Teil des Gesetzes werden, und wenn ja, wie sollen Haftungsnorm und korrespondierende Vorschriften ausgestaltet sein? Wissenschaftler*innen, Vertreter*innen der Zivilgesellschaft und Politik sowie weitere Interessierte haben der Debatte im Rahmen einer Fachtagung neue Impulse gegeben.
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Daniel Halberstam
Long before the fighting ceased, Jean Monnet was already planning to integrate a defeated Germany into “a Europe united on terms of equality.” The idea had been brewing in the French and Italian resistance during World War II, even since Germany had been defeated last time around, and before then, in other forms, too. The key to bringing the warring nations together in solidarity was, as the Schuman Declaration would explain, taming the age-old animosity between Germany and France in a supranational project “open to all countries willing to take part.” The aim, in the words of the Treaty of Rome would be an “ever closer union among the peoples of Europe.”
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Anna Śledzińska-Simon
In this post, I argue that: (I) the influence of German jurisprudence on the legal systems in Central and Eastern Europe results from transfers of legal knowledge and “cooperative adaptation” of elites in the new democracies; (II) the German legal hegemony is in fact a hegemony of reason and a culture of justification; (III) the decision of Bundesverfassungsgericht in PSPP is an attempt to maintain the culture of justification in view of its inevitable end.
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Pál Sonnevend
I have to start with a confession: if it was not for the Bundesverfassungsgericht and German legal scholarship, I would have not become the lawyer I am today. Writing a PhD in the Max-Planck-Institute in Heidelberg, attending classes by giants of German public law taught me to appreciate the famous German “Rechtsdogmatik”, a term that can only be poorly translated by “legal doctrine”. The conceptual sophistication and clarity of thoughts, the persuasive power of reasoning, the attention for details and the elegance with which the lack of answers to certain questions is concealed created for me an aura of infallibility and self-evident truth. I also remember my condescending attitude when I met foreign guests in the Max-Planck Institute who were not familiar enough with this constitutional language, or even dared to challenge some of its conclusions. Being inside this world felt reassuring, safe and also elevating. After wandering through the legal education of post-communist Hungary I finally saw the light.
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Russell A. Miller
The novel’s two ugly Americans provide useful models for two facets of hegemony as Gramsci theorized it. Hegemony, he insisted, is more than a state of cultural domination. It is better understood as a process of socio-historical change that takes place before power is institutionalized. The two drivers of the hegemonic process Gramsci theorized are consensus and coercion.
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Mirosław Wyrzykowski
The question about the legal hegemony of Germany was raised by comments from lawyers, but also politicians, in connection with the - undoubtedly - controversial decision of the German Constitutional Tribunal in the PSPP case. Armin von Bogdandy’s introduction refers primarily to the problem of the Europeanization of Germany vs. the Germanization of Europe in the context of European integration and Sabino Cassese’s description of “some specific decisions of these more recent EU-specific decisions of the Second Senate of the German Federal Constitutional Court as an attempt to put a German dog leash on European institutions". But it also refers to the past of the countries of Central and Eastern Europe and the "imposition" of "an enlightened, soft neo-liberalism" on the countries of this region (Bogdan Iancu). In the case of Poland, because Kaczyński’s government seems to be a persecutor against the proceedings which the German jurisprudence provides, "the secret crypt in which the seeds of its spirit will be protected...". (Carl Schmitt).
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Pedro Cruz Villalón
As I see it, the central question is whether Germany, just as it is an economic and a political power in the EU, is also a legal power. This would, of course, beg the question whether this notion makes sense by itself. Is it permitted to speak of legal power in the way it is preached for other forms of power? And supposing the notion applies to Germany as a Member State of the EU, may this national condition be aptly described as hegemonic? The ultimate question behind the questions just mentioned would be ‘How can this problem be tackled?’, assuming that it indeed turns out to be a problem.
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Argelia Queralt Jiménez
Before starting my reflections on the arguments presented in Professor von Bogdandy’s text, a number of caveats need to be made. First of all, as I will explain below, the Spanish Constitution of 1978 and Spanish democratic constitutional law have been deeply influenced by German constitutional law. This is a fact that is both well-known and unquestioned. It may also explain why, at present, there is no debate about the matter. For this reason, before I began to write this article, I felt it necessary to discuss with some legal colleagues how they saw the questions put forward, as I did not consider myself to be entitled to reply on behalf of the Spanish academia as a whole. Secondly, the article that we have been asked to reflect on mixes different questions. Some of them may be significant from a German standpoint, but, in contrast, are not salient topics from a Spanish one. Finally, and in relation to the point that has just been mentioned, I will attempt to provide a response in the case of those aspects that are susceptible of being considered from outside, in this case from Spain.
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Joseph H.H. Weiler
I have been politically aware for around, sigh, five decades. And with unerring regularity once every ten years or so, we have been treated to a kind of decennial Oktoberfest of German public hand-wringing. Very public – group therapy writ large. Sometimes it comes with the label of ‘Legitimacy Crisis’. Oftentimes it is a variation on the theme of ‘Are We Back to Weimer Times – and You Know What Followed That!’ It has all the hall marks of a ritual.
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Oreste Pollicino
It was already clear to Seneca, almost 2000 years ago, that “[i]f a man knows not to which port he sails, no wind is favourable”. Now, almost 2000 years later, as mentioned by Armin von Bogdandy in his inspiring introduction to this symposium, we are faced with a crucial question of existential significance: Are we moving towards a Europeanised Germany or a Germanised Europe? In order to answer to the question, we have to draw a distinction between intention and practical effect.
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András Jakab
German constitutional thinking has been central in EU law, in ECHR law, and even in some domestic constitutional systems outside of Germany. It is, however, gradually and unstoppably losing influence in Europe. This is largely due to the fact that Karlsruhe has lost its status as the most influential court in constitutional issues in Europe, with this title now belonging to the Strasbourg Court and likely to do so for the foreseeable future. This trend (i.e. the fading international influence of German constitutional thinking) cannot be reversed by German constitutional lawyers, as it is the result of major institutional and structural (“tectonic”) changes that have taken place over the last 20-25 years. German lawyers can, however, somewhat mitigate this trend by constructively participating in the formation of a common European Constitutional Language (in English).
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Koen Lenaerts
In my view, three direct implications flow from the principle of ‘equality of the Member States before the Treaties’. First, the uniform interpretation and application of EU law are key for guaranteeing that equality. Second, the uniform interpretation of EU law needs to be ensured by one court and one court only, i.e. the Court of Justice. Third and last, the principle of primacy underpins the uniform interpretation and application of EU law. That law – as interpreted by the Court of Justice – is ‘the supreme law of the land’ as primacy (Anwendungsvorrang) guarantees that normative conflicts between EU law and national law are resolved in the same fashion. Primacy thus guarantees that both the Member States and their peoples are equal before the law.
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Helen Keller, Sebastian Bates
Our focus is a postwar development, namely the European Convention on Human Rights and its interpretation in the case-law of the Court. That case-law evinces the adoption of certain ‘imports’ from the doctrine developed and applied by German domestic courts that, as Judge Wildhaber implied, the concept of German legal thinking must encompass if it has any meaning at all. Without them, the ‘legal world’ inhabited by specialists in the Convention would be entirely different. They accordingly demonstrate the salience of such thinking to the Convention system. But for reasons that we will briefly explore, they do not demonstrate that this thinking is uniquely dominant in the deliberation rooms of the Human Rights Building.
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Daniel Sarmiento
The influence of the German legal tradition in the European legal community is unquestionable. No other European country has displayed, like Germany has, such an articulate and institutionalized effort of promotion of its own legal system and thinking. The project paid off. EU Law displays an obvious German imprint that is now enforced in twenty-seven Member States. Lawyers throughout the European continent learn German to read the high-quality legal literature produced in German universities and research centers, courts and public institutions. The ultimate sign of intellectual distinction of a European lawyer is to “read the Germans”. No other feature can surpass in pedigree a lawyer’s fluency and ability to dominate German concepts in their very own words.
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Başak Çalı
I write this blog post just as I complete my fourth year as a professor of international law in Berlin. I am, as von Bogdandy calls, a Bildungsausländerin. My university education was first in Turkey and then in the United Kingdom. My academic career has been, for the most part, in the UK and then in Turkey. When I moved to Berlin from Istanbul four years ago to take up the professorship of international law at the Hertie School, I imagined Berlin to be somewhere between Istanbul and London. I hoped that it would be the best of both worlds, I would find a home in a city with a handsome Turkish speaking community at a university that conducts education and research in English. I also hoped that speaking Berlin’s two oft-spoken languages, Turkish and English, I would survive with my basic German, and learn more of it along the way and become a late Berliner.
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Antoine Vauchez
The specter of national hegemony has haunted the field of European law ever since in its emergence in the 1950s in the wake of creation of the European Communities. As the circulation and competition between national and professional models of law have always been central to its dynamics, this transnational field has developed as a reflexive field questioning its own “European-ness” -that is its capacity to produce authentically “European” norms that are not just a mask for new forms of domination, influence or hegemony.
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Bogdan Iancu
For over a decade now, the mainstream liberal discourse, also on the Verfassungsblog, has consisted in the incantation of one mantra: ‘populists’ are destroying ‘the rule of law’. What started as an attempt to describe the post-2011 situation in Hungary has gradually become a conceptual master key or, better yet, a jack-of-all-trades.
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Sabino Cassese
Armin von Bogdandy’s article entitled “German Legal Hegemony?” is an invitation to reflect on the paths of European legal scholarship: what are the conditions of the different national legal cultures today, and what are the conditions under which a national legal culture can become hegemonic (or, on the contrary, is it possible for a common tradition to prevail)?
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Armin von Bogdandy
The German legal discourse on Europe solemnly professes the idea of a Europeanized Germany: Kooperatio
