The Intercultural Approach to Covid 19 Management

Introduction

No country in the world was prepared for the COVID-19 pandemic which appeared in early 2020. The rapidly spreading virus forced governments on every continent to take swift and efficient action to deal with a public health emergency, which was a challenge for law-making and the Rule of Law in each country. Worldwide, the legal approaches and practical measures used to combat the pandemic have been substantial; society and state institutions were called upon to respond immediately to a health crisis of unknown extent. The COVID-19 pandemic was a surprise, but pandemics are, historically speaking, not new: Since the origins of mankind there have always been pandemics. In recent times, there has been in the early 20th century the plague of the Spanish flu causing millions of deaths, the AIDS epidemic of the 1980s and now we are facing the COVID-19. Globalized and industrialized living conditions, especially human mobility, play a major part in worldwide spread of these pandemics which are transmitted mainly from animals to humans. The reactions of states and societies to the current pandemic have been similar, but they have not been identical.

If you are consulting legal publications on the COVID-19 pandemic measures very often you can read about a ‘state of emergency’ or the use of ‘legal emergency powers’. State of emergency laws or a state of exception declared by the government usually frighten the population, as they generally signal a neglect of democratic decision-making processes in favour of authoritarian measures. When a ‘state of emergency’, a ‘state of exception’ or a ‘state of disaster’ is declared, a government is allowed to suspend laws to restore normal conditions within its territory. In legal terms, this is a significant encroachment on the rights of citizens and the separation of powers. In the context of the COVID-19 pandemic, it should be noted that the use of the terms ‘state of emergency’ or ‘state of exception’ often did not match the legal means by which the health crisis was to be addressed. Thus, extreme caution should be exercised when using emergency terminology.

Concerning the European Union, the tools adopted by the Member States for the COVID-19 legislation were not coordinated. Each member state had its own legal method to combat the pandemic using constitutional or ordinary legal instruments. Despite this, there was also convergence in the legal approach: the crisis was the ‘hour of the executive’², Governments and health ministers made use of extensive powers and parliaments were only gradually involved in the development of legal instruments to tackle the crisis. In the heat of the moment, democratic and constitutional elements often fell by the wayside, at least temporarily. In the 27 Member States, there was a certain consistency in the concrete measures imposed on citizens and the economy: variously designed curfews, like in France with a self-issued ‘attestation de déplacement dérogatoire’³ with a time specification, or in Germany with the restriction of meetings to a certain number of selected people, the prohibition of staying overnight in hotels for private purposes, travel bans within and outside the country, mandatory Covid tests, restricted shopping opportunities, closure of schools, etc.

In France, in response to the health crisis caused by the COVID-19 virus, the emergency law of 23 March 2020⁴ introduced into the public health code the possibility of establishing a ‘state of health emergency’ in the event of a health disaster. It could be qualified as a statutory regime because it refers to a regime provided by statute, rather than by the constitution⁵. The state of health emergency is an exceptional measure that can be decided by the Council of Ministers in the event of a health disaster, in particular a pandemic, that endangers the health of the population. The provisions of the Public Health Code organising the state of health emergency were adopted on a temporary basis. They were to expire on 1 April 2021 and were extended until 31 December 2021. The law of 10 November 2021⁶ on various health protection measures maintained them in force until 31 July 2022 although the government had the power to decide to lift restrictions earlier in case of a favourable evolution of the epidemic.

In Germany, regarding its normative responses to the crisis, the pandemic has been seen as a challenge to state institutions and constitutional requirements: not since the founding of the Federal Republic of Germany have there been such far-reaching restrictions on public and private life⁷. Crisis management and crisis legislation have therefore been subject to strong criticism since March 2020. Respect for the Rule of law⁸ in particular has been a highly discussed topic. In this presentation we will first have a look at the German crisis legislation and the question of whether we may speak of a ‘state of emergency’ or of a ‘state of exception’. Then we will address the so-called ‘federal emergency brake’ and problems caused by it to the vertical distribution of power in Germany which is a federal state where the power is divided between federal authorities and those of the 16 federal states, the Länder. Finally, we will briefly discuss the respect of the distribution of power between the legislative and executive branches during the pandemic crisis.

I. German crisis legislation

The legal basis for German crisis legislation is the Infection Protection Act (Act on the Prevention and Control of Infectious Diseases in Humans, IPA), which has been modified several times since the beginning of the crisis. On 25 March 2020⁹, the German Parliament recognized for the first time an ‘epidemic situation of national scope’ with the entry into force of Section 5 (1) Sentence 1 of the Infection Protection Act due to the spread of the new Coronavirus in Germany. In resolutions of 18 November 2020, 4 March 2021, and 11 June 2021, the Parliament (Bundestag) again stated that the ‘epidemic situation of national scope’ persisted.