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The Fragmented Nature of Pandemic Decision-making: Comparative and Multilevel Legal Analysis

The unfolding of the COVID-19 pandemic sheds light on the role that multiple legal instruments play during such events, whether at the international, regional-European, or national levels. Countries the world over have been confronted with the pandemic’s impact on all aspects of their societies and they face the corresponding challenge of responding within the aegis of their respective legal systems. While the need for international coordination has only increased, a variety of legal issues have also arisen distinctly depending on the national setting. It is against this background that the current project aims to assume a simultaneously comparative and multilevel perspective to evaluate the different layers of pandemic decision-making.

One such example is provided by the legal underpinnings of the information-sharing system of disease surveillance. The system is defined by an overlap of public international law (managed by the World Health Organization), European law (focused on the European Centre for Disease Prevention and Control), and national comparative constitutional and administrative law (regarding the collection and dissemination of epidemiological data by public authorities).

Furthermore, the adoption of restrictive public health measures, such as individual or community-level quarantines (a.k.a. lockdowns), will also be dependent on the public law framework of any given country. Particularly, the distribution of powers in the field of healthcare (and public health more generally) plays a crucial role in determining which institutions will make specific decisions and under what legal basis. In a similar vein, a closer look at the social law components shaping the provision of healthcare services illustrates how access to them may be guaranteed. Similarly, other areas of the law at stake during the COVID-19 pandemic warrant a multilevel and comparative analysis. How a nation regulates and promotes innovation will impact the emergence of medical technologies that can respond to the spread of the disease. The debate on how law tackles the ethical concerns that are raised by the development of new technologies has been reinvigorated. This includes concerns on the potential for the invasion of individuals’ privacy and the risk of misuse, as well as the tragic choices that are associated with the allocation of scarce resources.

The current project aims to explore all of these dimensions, as well as others which may also be relevant for the assessment of decision-making in times of pandemic within the framework of the rule of law. Ultimately, the challenges posed by the COVID-19 pandemic cannot be overcome by remaining within “silo thinking”, including in the legal field. An integrative legal approach, involving several perspectives is patently necessary.

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