COVID-19 and Police Powers Beyond the State

Pedro A. Villarreal

Max Planck Institute for Comparative Public Law and International Law

The year 2020 was characterized by a myriad of restrictive public health measures (colloquially referred to as “lockdowns”) to protect against the spread of COVID-19. The daily lives of billions of persons, expressed through their routines, changed overnight. Individual liberties and freedoms were restricted to an unprecedented magnitude. The dilemma was dramatic, in so far as governments had to generally choose between the adoption of those restrictive measures, which carry a heavy social and economic toll, or expose their populations to the dire consequences of the disease. As highlighted in the launching post of this symposium, a global jigsaw puzzle of health measures imposed by national authorities comes to the fore.  

By now, public health restrictions have gradually begun to recede in countries with higher vaccination rates. Although such phase-out has been far from uniform, and despite it being possible that measures will become necessary in the future, in several countries the peaks seem to be milder. An initial radiography of national pandemic responses is now possible. Considering the numerous contrasting responses, could pandemic response have looked differently? Would it be possible to imagine any type of governance beyond the state related to the exercise of extraordinary powers to respond to public health emergencies? If so, do international institutions have a say in all of this? 

Public Health Powers in the Absence of a Global Health Police

A previous post by Arianna Vedaschi underscored how the World Health Organization (WHO), the specialized agency of the United Nations in the field of international health, does not have the legal mandate to oblige states to adopt any restrictive public health measures. As highlighted in a past post, the WHO is certainly not the health police. Instead, the WHO was founded with the explicit understanding that it would not be a supranational agency exercising deep competences in health-related areas. While Articles 19 and 21 of the Constitution of the WHO does grant it legal powers to create acts that legally bind states, these have been rarely exercised. The International Health Regulations, while binding, only authorize the WHO to issue recommendations on matters entailing restrictions of liberties, such as mandatory quarantines, isolations, or cordons sanitaires. Thus, there is a relatively constrained capacity to monitor national measures aimed at the protection of public health. This certainly does not mean international law gives states a “blank check” in the exercise of extraordinary powers to face a pandemic, as seen in the following subsection. 

The Two Faces of International Human Rights Law: Limiting and Prompting the Use of Health Powers

Elsewhere, I have argued that the distinction between public health and human rights is a misnomer. Adopting measures to mitigate the devastating effects of the spread of COVID-19 strives towards the protection of life, health and physical integrity. An open question for a human rights analysis is how to strike a balance between what is necessary to protect public health, on the one hand, and the respect of safeguards for individual liberties and freedoms, on the other. To put it in informal terms, the underlying challenge is to procure that the exercise of health powers is neither too much, nor too little. 

There are longstanding academic debates on how to guarantee that the exercise of (national) constitutional competences, usually by the executive, does not lead to authoritarian power-grabbing. This falls in line with the liberal tradition of devising legal constraints to public power, so individual liberties and freedoms may be protected from unjustified intrusion. The term “unjustified” is crucial in so far as it constitutes the yardstick upon which the legality of health measures may be challenged. 

Another, less explored avenue is that of to what extent the protection of individuals actually requires the active exercise of public health powers. Octavio Ferraz has explained how in extreme cases, such as in Brazil, the decision not only to refrain from actively adopting measures to protect the population, but actually to undermine the ones that were necessary, has carried deadly results. In official statements and resolutions, international and regional – European, Inter-American and African – human rights bodies have underscored how the protection of life and health in the face of the COVID-19 pandemic is a human rights obligation. National authorities should fulfil their human rights obligations by actively taking measures to protect against the spread of the disease. None of these institutions, however, has so far fleshed out any catalogue of public health measures that ought to be adopted. The answer to such a question lies beyond the legal remit. 

The Need for Global In-Depth Mappings of the Exercise of Health Powers

The main justification for the adoption of the above-mentioned restrictive health measures rests upon their being necessary to protect against a communicable disease. Such necessity was underscored throughout 2020 in light of the absence of a pharmaceutical remedy (vaccine or otherwise) capable of preventing the onset or development of severe illness due to COVID-19. Empirical epidemiological data has validated, to a large extent, the effectiveness of measures restricting individual liberties in reducing infection and deaths during the pandemic. Of course, multiple caveats are in order. Specific restrictions on movement and mandatory social distancing are usually not taken in isolated fashion, but rather are part of a broader set of measures. Thus, it is not always possible to examine each individual measure’s precise effectiveness. 

The Lex-Atlas: Covid-19 project, spearheaded by Jeff King and Octavio Ferraz jointly with an editorial team of sixteen legal scholars from different backgrounds (myself included), offers in-depth comparative studies in the area by a large group of country rapporteurs. One of the core questions relates to the legal acts through which public health restrictions were adopted throughout the countries selected for study. The initial findings, published online in the Oxford Compendium on National Legal Responses to COVID-19, confirm how those restrictions are not adopted in clinical isolation. Rather, they are embedded in vastly different constitutional law systems, not to mention socioeconomic and institutional settings. Among the main questions, one has focused on to what extent national authorities have cited the WHO’s recommendations and guidelines when imposing public health restrictions. In this sense, the preliminary outcome of this project shows a haphazard picture, as references to international recommendations when exercising health powers is uneven and sporadic. 

Pandemic Response and Health Powers Beyond the State: Can There be a Global Blueprint?

In November 2021, discussions between government representatives will take place in the aegis of the WHO on a potential new legal instrument for pandemic preparedness and response. An overarching question will be whether the exercise of extraordinary powers will remain a strictly-speaking national matter. So far, there is no visible willingness to allocate more health powers to the WHO or any other international institution. This is understandable, since the determination of when and how to exercise health powers is a core feature of national sovereignty, and there is no global blueprint on the exact manner in which they should be exercised, including timing, reach and scope. Human rights considerations already impose limits and, at the same time, call for their use – though in the latter case, the contents remain vague and undetermined. The resulting gaps have left each state to its own devices regarding how to prevent the spread of COVID-19 prior the access to effective vaccination. The possibility of envisaging a paradigm of national legal responses to pandemics different than the current one should not be discarded. 

Pedro A. Villarreal, is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, Germany.

Suggested Citation: Pedro A. Villarreal, ‘COVID-19 and Police Powers beyond the State’, IACL-IADC Blog (30 September 2021) https://blog-iacl-aidc.org/covid19-future-constitutionalism/2021/9/30/covid-19-and-police-powers-beyond-the-state.