Pandemic, emergency state and exceptional powers
Panel formed with individual proposals.
President Trump‘s sought to deconstruct the administrative state. Trump employed the usual mechanisms available to presidents for reining in a noncooperative or even hostile bureaucracy. However, Trump sought not just to control the bureaucracy, but to make it nonfunctional. To do so, he employed threats of criminal investigation, ignorance of expert opinion, and the use of public media to belittle and undermine those whose job it is to keep the government running, to enforce the law, to keep us healthy and safe. These practices were no more evident as detrimental to the ability of the government to respond to COVID-19. We rely on the foundation we built in our 2020 book, “Directing the Whirlwind: The Trump Presidency and the Deconstruction of the Administrative State,“ (2020 Peter Lang) and update his success or failure through the lens of his approach to the pandemic and in light of the shift to Biden Administration's rebuilding of administrative capacity.
El Presidente de la República, frente a las alarmantes cifras de contagios y defunciones por COVID-19, se vio en la obligación de decretar por varias ocasiones Estados de Excepción en el territorio nacional, principalmente para limitar la movilidad humana. Este recurso, es excepcional y temporal, principalmente por las consecuencias que podría traer su abuso respecto a los derechos de las personas, fue utilizado por varias ocasiones. Frente a esto, la CC, en ejercicio de sus competencias, determinó la inconstitucionalidad de dos de ellos, llamó la atención al Presidente por la ambigüedad de las medidas establecidas, por las delegaciones recurrentes al COE Nacional, y finalmente determinó la necesidad de generar una normativa infra constitucional para atender la emergencia sanitaria, sin que esto devenga en la declaratoria de estados de excepción. A pesar de estos lineamientos, la mentada normativa no se ha expedido hasta la fecha.
The trend of expanding administrative authority was seen in the governments of each country over the response to corona (Covid-19). Japan is no exception. Urgent administrative decisions were often needed to deal with coronavirus infections. It may be necessary for the government to respond flexibly when the legislation is not enacted in time, but this has also led to the expansion of administrative power. In this paper, the change of Prime Minister from Prime Minister Abe to Prime Minister Suga in September 2020, and the expansion of administrative authority and the expansion of Cabinet authority seen in the promotion of the Digital Agency will be disucused.
Some philosopher à la mode has taken the stage immediately after the shocking rampage of COVID-19 and the consequential statal attempts to contrast it, to re-assert his now too-easily sharable theory about the “normalization of the state of exception“. Indeed, facts prove this argument to be fallacious: with no more normality to be ensured by established powers, against what would the exception arise? Yes, public law lost the very perimeter lines of its scope and with them the space where a Constitution can constitute standards. Besides the pandemics, climate change, digitalization, terrorism, and globalization discharged any chance of regularity from the management of the res publica, in fact technocratic governances – not governments – are called to deal with it on a daily based agenda, thus the administration of emergency drifts into the handling of contingency. Liquidity of norms and rights sweeps over steadiness and certainty. Public law must be reset from this state of unnaturalness, proposing a valid post-social contract, provided that someone is willing to approach and sign it.
Incidents such as DDoS attacks carried out against Estonia in 2007, Georgia in 2008, Kyrgyzstan in 2009 raised the question of whether and to what extent a State can be held responsible for a cyber activity in a domain where actors are often afforded anonymity. Hundreds of significant cyber-attacks on government agencies, companies, research institutions, etc. occurred to date. Some of these attacks were claimed to be operated by or linked to a State. In the aftermath of the COVID 19 pandemic, some States have allegedly sponsored cyber-attacks on research centers and medicine agencies such as European Medicine Agency to steal information related to the COVID-19 vaccine. On the assumption that a given cyber-attack is attributable to a State, this paper explores whether and to what extent the wrongfulness could be precluded by distress, necessity, or countermeasure.