COVID-19 and the Notion of “Emergency”: Towards New Patterns?

Arianna Vedaschi

Bocconi University

Legal scholars traditionally make a sharp differentiation between “political” and “technical” emergencies. The former category identifies crises triggered by political factors (e.g., war, domestic or international terrorism), while the latter encompasses emergencies caused by factual and neutral events (e.g., natural disasters or epidemics).

The outbreak of COVID-19 has blurred this apparently clear-cut dividing line. This very short piece discusses how the current pandemic is challenging the theoretical differentiation between political and technical emergencies, and the practical implications of this challenge.

COVID-19 as “Hybrid” Emergency: Political Effects of a Technical Factor

As a starting point, it is necessary to explain why COVID-19 is a “hybrid” emergency.

At first sight, the pandemic can be classified as a “technical” emergency, because its cause has been the spread of an indisputable, albeit new and unknown, disease, definitely not a political event. Given this “technical” component, political actors around the world take into high consideration, when framing legal reactions to COVID-19, the work of ad hoc committees made up of experts in several disciplines. The Conseil Scientifique in France, the Comitato Tecnico Scientifico in Italy, and the Comité Científico Técnico COVID-19 in Spain are examples of such bodies. These committees gather people with expertise in public health, epidemiology, statistics, among other things, to advise policy-makers on measures to take against COVID-19.

Yet a more in-depth analysis shows that COVID-19 is much more than a mere technical crisis, since it has entailed huge political consequences (the word “political” is used in its lato sensu meaning, to cover also legal issues arising from the pandemic). Among the most evident, one can think of restrictions – if not fully-fledged suspensions – of rights and freedoms as well as of matters deriving from multilevel management of the emergency. 

Rights and Freedoms 

As far as rights and freedoms are concerned, it is almost redundant to recall that, since the beginning of the pandemic, political institutions have constantly struggled to find a balance between public health, on the one side, and other rights and freedoms, on the other side.  Limitations have been placed, among others, on personal freedom, freedom of movement, freedom of worship, not to mention economic freedoms and social rights.

The Spanish case is prototypical: with the declaration of a state of alarm (pursuant to art. 116 of the Spanish Constitution and to Ley Orgánica 4/1981), harsh limitations were put in place, to the extent that some scholars and political parties claimed that they amounted to suspension of rights and, consequently, a state of exception, and not of alarm, should have been declared. In July 2021, the Spanish Constitutional Tribunal upheld this view, despite the fact that state of exception is framed as being a response to political emergency. However, the Tribunal held that the pandemic had such a large economic, social and political impact that it should have prompted a state of exception. 

Furthermore, repercussions for rights remain visible now, as decision-makers are trying to manage the transition “back to normal” or, rather, to frame mechanisms to allow citizens to “live together” with the pandemic. The heated political debate, in several states of the European Union, about the “Green Pass” (recently upheld by the French Conseil Constitutionnel) and vaccines is revealing in this respect. 

Therefore, in spite of its neutral cause, the political consequences of the COVID-19 crisis seem to reshape the kind of emergency it triggers, to the point of challenging its designation as a “technical” emergency. More in general, traditional emergency categories appear to be reshaped.

Levels of Government 

As regards the multilevel management of the emergency, issues arose both within states (so, between the central government and other levels, in regional or federal states) and in the relationships with supranational and international bodies. 

Among regional states, the Italian case is paradigmatic. In Italy, central measures often clashed with regional and local tools to fight the pandemic. Although attempts have been made to solve this problem, this fragmentation has even worsened, especially when the vaccination campaign has come into play. In other words, Italian institutions have not always implemented the principle of loyal cooperation, which, according to arts. 5 and 120 of the Italian Constitution, should apply in their reciprocal relationships. This background has raised not only political, but even institutional, issues.

Another significant example is Spain. There, strong centralization characterized the “first wave” of the pandemic, with the first declaration of the state of alarm. This approach was criticized by some autonomous communities, which wanted more relaxed (or, sometimes, stricter) measures. Therefore, a shift to decentralization was observed during the following “waves” and when emergency measures started to be lifted, but this decentralization has led to legal challenges deriving from lack of uniformity. 

Hence, both Italy and Spain suffered the negative consequences of inhomogeneity and uncertain allocation of competences, which, during a pandemic, can be detrimental, since they may lead to the loss of valuable time.

Further, as regards multilevel coordination in crisis management, it has been unclear what the exact role of international and supranational bodies is supposed to be in pandemic circumstances. This situation arises for two main reasons. 

First, when states take domestic measures derogating/restricting rights in order to counter an emergency, there are no straightforward rules as to whether international/supranational derogation clauses (such as art. 4 of the International Covenant on Civil and Political Rights, art. 15 of the European Convention on Human Rights, and art. 27 of the American Convention on Human Rights) need to be activated. Some states did so, while others did not.

Second, there is no tight regulation on how specialized international agencies, above all the World Health Organization, should act during a pandemic. Consequently, they have not managed to take the lead. This has been seen at different stages: at the outbreak of COVID-19, while vaccines were being studied and produced, and even during the vaccination campaign. 

Therefore, extensive room for improvement in multilevel coordination during emergencies is evident. 

Technical Emergencies Turning Political: What’s Ahead? 

Against this scenario, it is not difficult to understand how a “technical” emergency can be turned into a “political” one. Hence, this new “hybridized” category requires that international and national political actors rethink existing emergency frameworks, once COVID-19 is over. In doing so, they should take into account at least two main practical implications. 

First, many current emergency regimes provide lower guarantees for “technical” crises than for “political” ones: e.g., weaker parliamentary and judicial oversight, easier extension mechanisms, and so on. Yet, if “technical” crises can have such significant political consequences as COVID-19 has had, it is no longer appropriate to base differentiated sets of guarantees strictly on the triggering cause for the emergency. Rather, it is crucial to reconsider emergency frameworks and to design strong safeguards – i.e. meaningful roles for legislative assemblies, courts, and oversight bodies over the whole duration of the emergency – even when crises originate from non-political factors. 

Second, two characteristics of COVID-19 make it different from previous technical emergencies (earthquakes, floods, etc.); its long-lasting nature and its global character. These two features mean domestic responses are not enough. New global and well-structured legal paradigms for emergency are necessary. In other words, the response from “supra-state” institutions cannot be separated from the response of domestic institutions. Strong cooperation mechanisms are essential to ensure that when these new, global crises break out, not only do states cooperate among themselves, but also that supranational and international institutions have well-defined and operative roles. 

Arianna Vedaschi is Full Professor of Comparative Public Law, Bocconi University, Milan, Italy

Suggested citation: Arianna Vedaschi, ‘COVID-19 and the Notion of “Emergency”: Towards New Patterns?’ IACL-AIDC Blog (7 September 2021) https://blog-iacl-aidc.org/covid19-future-constitutionalism/2021/9/7/covid-19-and-the-notion-of-emergency-towards-new-patterns.