LF Talks. COVID-19 – Test for the World’s Legal Systems. The United States, China, Sweden
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Yuxue Fang
DPhil student, University of Oxford
Katarina Matilda Fast Lappalainen
Assistant Professor in Jurisprudence and Law & Technology, Stockholm University
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Elizabeth Anne Platt
Director, Policy Research Technology Program, Center for Public Health Law Research, Temple University Beasley School of Law
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Victoria Manko
Development Director, the International and Comparative Law Research Center
On August 31, 2020, as part of the LF Talks online events series, the International and Comparative Law Research Center organized the second roundtable discussion on the ongoing research “COVID-19 — Test for the World's Legal Systems”. Experts from the United States, China, and Sweden shared the results of their research.
Victoria Manko — General Director of the International and Comparative Law Research Center, the moderator of the event — in her foreword told about purpose of the research, which is a comprehensive study of the readiness of legal systems for a pandemic, assessing the sufficiency of current legislation to create a legal framework for combating coronavirus infection, as well as identifying and analyzing the measures taken. “We will see if the pre-COVID legislation has been sufficient to respond to the crisis or new legislation has been adopted; we will find out whether the powers of the responsible authorities have been centralized or decentralized; and, eventually, we will identify the measures taken to fight the COVID-19 and reveal the most affected sectors”, — Victoria Manko elucidated.
Elizabeth Platt — ICLRC’s external expert on the USA experience, Director of the Policy Research Technology Program at the Center for Public Health Law Research Program at the Temple University Beasley School of Law — presented the research results. According to Ms. Platt, the US Constitution does not explicitly include emergency powers or provide any guidance on declaring an emergency. Through the 10th amendment to the Constitution, which reserves “police powers” to the states, the states have the power to enact public health interventions, e.g. quarantine, to mitigate the spread of an infectious disease during the pandemic. This allows the states to institute their own emergency orders to protect the people, and also declare their own states of emergency: procedures largely vary from state to state. The federal government gets its respective powers from three acts of Congress surrounding emergency declaration. Thus, there is a decentralization of state power in the field of emergency situations in the country. In addition, the expert noted that the US still lacks a national strategy for testing and contact tracing.
Yuxue Fang — ICLRC’s external expert on Chinese experience, DPhil student at the University of Oxford — mentioned that the current Constitution does not contain an arrangement on state of emergency. According to Ms. Fang, China’s current public health emergency response regime is based in different acts which have been developed after adopting Prevention and Treatment of Infectious Diseases Law in 1989. Only after the SARS outbreak in 2003, significant changes in this area both on national, and subnational levels occurred: a number of legislative acts have been adopted in the field of health emergencies. At the same time, no special legislative acts were developed in connection with the new coronavirus infection, all actions of the authorities were carried out in accordance with previously adopted normative legal acts, the expert noted. As a result, government powers have not been fully regulated to a comprehensive legal framework yet, she explained.
Katarina Fast Lappalainen — ICLRC’s external expert on Swedish experience, Assistant Professor at Department of Law of Stockholm University — told about the Swedish response to the new coronavirus infection, which is unique, from the international perspective. The expert noted that the Swedish Constitutional laws do not allow a declaration of a state of emergency for a civilian (i.e. non-wartime) crisis. Thus, the actions of the authorities were based on legislation that is elaborated in such a way that it can be applicable in ordinary as well as extraordinary times. Sweden was in general legally prepared to deal with the pandemic, despite the fact that additional legislation has been deemed necessary: it mainly concerns changes to existing legislation, rather than the development of a new one.
Victoria Manko — General Director of the International and Comparative Law Research Center, the moderator of the event — in her foreword told about purpose of the research, which is a comprehensive study of the readiness of legal systems for a pandemic, assessing the sufficiency of current legislation to create a legal framework for combating coronavirus infection, as well as identifying and analyzing the measures taken. “We will see if the pre-COVID legislation has been sufficient to respond to the crisis or new legislation has been adopted; we will find out whether the powers of the responsible authorities have been centralized or decentralized; and, eventually, we will identify the measures taken to fight the COVID-19 and reveal the most affected sectors”, — Victoria Manko elucidated.
Elizabeth Platt — ICLRC’s external expert on the USA experience, Director of the Policy Research Technology Program at the Center for Public Health Law Research Program at the Temple University Beasley School of Law — presented the research results. According to Ms. Platt, the US Constitution does not explicitly include emergency powers or provide any guidance on declaring an emergency. Through the 10th amendment to the Constitution, which reserves “police powers” to the states, the states have the power to enact public health interventions, e.g. quarantine, to mitigate the spread of an infectious disease during the pandemic. This allows the states to institute their own emergency orders to protect the people, and also declare their own states of emergency: procedures largely vary from state to state. The federal government gets its respective powers from three acts of Congress surrounding emergency declaration. Thus, there is a decentralization of state power in the field of emergency situations in the country. In addition, the expert noted that the US still lacks a national strategy for testing and contact tracing.
Yuxue Fang — ICLRC’s external expert on Chinese experience, DPhil student at the University of Oxford — mentioned that the current Constitution does not contain an arrangement on state of emergency. According to Ms. Fang, China’s current public health emergency response regime is based in different acts which have been developed after adopting Prevention and Treatment of Infectious Diseases Law in 1989. Only after the SARS outbreak in 2003, significant changes in this area both on national, and subnational levels occurred: a number of legislative acts have been adopted in the field of health emergencies. At the same time, no special legislative acts were developed in connection with the new coronavirus infection, all actions of the authorities were carried out in accordance with previously adopted normative legal acts, the expert noted. As a result, government powers have not been fully regulated to a comprehensive legal framework yet, she explained.
Katarina Fast Lappalainen — ICLRC’s external expert on Swedish experience, Assistant Professor at Department of Law of Stockholm University — told about the Swedish response to the new coronavirus infection, which is unique, from the international perspective. The expert noted that the Swedish Constitutional laws do not allow a declaration of a state of emergency for a civilian (i.e. non-wartime) crisis. Thus, the actions of the authorities were based on legislation that is elaborated in such a way that it can be applicable in ordinary as well as extraordinary times. Sweden was in general legally prepared to deal with the pandemic, despite the fact that additional legislation has been deemed necessary: it mainly concerns changes to existing legislation, rather than the development of a new one.
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