IACL/AIDC Research Group on Public Law Responses to Public Health Emergencies – Research Plans, Objectives and Call for New Members

Juliano Zaiden Benvindo, Oran Doyle & Chiara Graziani

University of Brasilia, Trinity College & University of Milan-Bicocca

Introduction

The IACL/AIDC Research Group on Public Law Responses to Public Health Emergencies, that we are honoured to co-chair, is a research hub with two main ambitions. The first and more short-term one is to provide a forum for scholarly research into public law issues arising from legal responses to COVID-19 from a comparative perspective. In this regard, we aim to create a worldwide network of scholars who share interests in particular aspects of public law and their relationship to the protection of public health. Therefore, our Group seeks to facilitate conversations between scholars with a view to making contributions to new and emerging debates in public law. The second ambition is more forward-looking: while this Group was obviously prompted by the COVID-19 pandemic, its remit is not limited to the current public health emergency, it has a broader mission to provide comparative constitutional analysis in anticipation of future public health emergencies.

In both its trajectories, the Group embraces a highly comparative approach, with a view to taking into account COVID-19 reactions adopted all over the globe, from the West to the East and from the North to the South of the world.

In this blogpost, we outline some of the work of the Group, some plans for the near future, and call for new members. We are very conscious of the excellent scholarship being done all around the world in tracking, analysing, and critiquing responses to the pandemic. Our aim is to build on and supplement this work.

Pandemic Responses and Constitutionalism

The COVID-19 crisis has required states swiftly to introduce far-reaching legal measures to control the pandemic. In the Group’s initial webinar, held on 5 November 2020, Prof Cheryl Saunders identified five significant issues for comparative constitutional law:

• the presence or absence of an express constitutional basis for the pandemic response;

• the role of legislatures;

• multi-level governance;

• the role of advice and legal restrictions in public health responses;

• comparative method.

Building on this research agenda and on some further topics of interest, the Group will convene a symposium on this blog in September. While much analysis has focused on how constitutional systems responded to the pandemic, the time is now right – we feel – to focus on ‘what’s ahead’. In other words, how has the operation of constitutional systems shifted due to COVID-19? Are these consequences going to be permanent? What to expect in case of future pandemics and what has the current one taught us in terms of constitutional law and constitutionalism?

Let’s give these general questions a more practical context. The desirability and dangers of executive empowerment have captured much attention. Does the pandemic herald a broader shift in the constitutional balance of power, or will more traditional checks and balances be reasserted as we – hopefully – move past the worst stages of the pandemic? The pandemic has produced a whole range of rights restrictions, unprecedented in scope and trenching on many pivotal constitutional rights – such as religious freedom and the right to protest. It has also exposed the effects of social and economic inequality within each country and among countries. How have doctrines of proportionality responded to these challenges? Federal and supranational entities have had a mixed record in responding to the pandemic. Will we see broader calls for collective action at a higher level or will polities turn to more local and accountable governance?

The dominant concern in the field of comparative constitutional law for several years before the pandemic was democratic backsliding, often linked to populism. Has the pandemic interrupted populist trends – replacing manufactured crises with a real crisis that positively requires expert decision-makers – or will the pandemic and closure of borders feed nativist concerns and populist narratives?

Moreover, the COVID-19 pandemic shed light on the role of technology during public health emergencies, whose study is the object of a specific research stream of the Group. Many governments have resorted to tracking apps to try to prevent the spread of the contagion, and, at the same time, allow people to gradually revert to ‘normal life’. In some jurisdictions, drones and other unmanned monitoring devices have been deployed to check compliance with anti-Covid measures. These are just some examples of new forms of surveillance that, as such, may raise concerns as regards the balance between privacy and data protection, on the one hand, and the need to safeguard health, on the other hand. The use of automated or semi-automated tools is a further complicating factor that deserves consideration, both as regards its regulation and the role that courts will play when faced with patterns of algorithmic decision-making.

These are among the issues that the September blog symposium will address. The findings of the blog posts will be further discussed, in the following months, in a series of webinars.

In all of this, the project looks to the future. We do not just aim to examine how countries have reacted to Covid-19, but we would like to grasp how core concepts of constitutionalism are being transformed by this unprecedented pandemic, with implications for all dimensions of constitutional governance.

Future Plans

The research agenda of the Group is not fixed. The reach of the IACL/AIDC provides an excellent opportunity to establish a truly global network of scholars exploring different aspects of public law responses to the current and future public health emergencies. Scholars of all levels of seniority are welcome to join the group by sending an email to iacl.health.emergency@gmail.com, and help us to set the future research direction. We will convene an online meeting for all members in late August or early September to seek feedback on future directions.

Juliano Zaiden Benvindo is Professor of Constitutional Law at the University of Brasilia.

Oran Doyle is Professor in Law at Trinity College Dublin.

Chiara Graziani is Research Fellow at the University of Milan-Bicocca and Academic Fellow at Bocconi University, Milan.

Suggested Citation: Juliano Zaiden Benvindo, Oran Doyle and Chiara Graziani, ‘Public Law Responses to Public Health Emergencies – Research Plans, Objectives and Call for New Members’ IACL/AIDC Blog (29 July 2021) https://blog-iacl-aidc.org/2021-posts/iacl/aidc-research-group-on-public-law-responses-to-public-health-emergencies.