Public Health Emergencies and Constitutionalism Before COVID-19: Between the National and the International

Abstract

The current chapter deals with public health emergencies and their linkages to constitutional law and theory. The ongoing COVID-19 pandemic poses myriad challenges to constitutional regimes around the world. However, it is by no means the first time that public health emergencies have led to questions of constitutionalism. Past instances of disease outbreaks had already highlighted how emergency legal frameworks unfold when facing the challenge of containing their spread. Against this backdrop, the chapter focuses on pre-COVID-19 instances of cross-border epidemics and pandemics, such as A(H1N1) Influenza, Ebola and Zika, and some of their implications for constitutionalism. These examples of infectious disease outbreaks are assessed by resorting to three models-archetypes of constitutional emergencies as a theoretical background. As they show a coupling between the international and national levels, a brief glimpse at applicable international law regimes is put forward. Ultimately, public health emergencies are not taken as a new genus within already existing classifications. Nevertheless, this contribution shows how they do warrant more detailed analysis, given how their technical features put theories related to constitutionalism under extreme conditions to the test. The contribution was initially drafted before the onset of the COVID-19 pandemic in 2020. Thus, it is a mostly retrospective analysis. Nevertheless, insights taken from outbreaks preceding COVID-19 can help build a broader outlook of the puzzle related to how the intertwinement between constitutionalism and public health emergencies can be addressed through a broader perspective not limited to one disease.