This article discusses some of the challenges posed by the introduction of COVID-19 certificates as a privileged tool for opening up mobility and access in order to restore a semblance of normality to social life. While at present there is no international consensus either on how – or why – such certificates should be used or on how they should be designed and applied, a growing number of countries have already introduced COVID-19 certificates in one form or another. Yet the scientific community as well as the World Health Organisation (WHO) have expressed caution, noting that such certificates might disproportionately discriminate against people on the basis of race, religion and socioeconomic background, as well as on the basis of age due to the sequencing of the vaccine rollout. Indeed, while the new COVID-19 certificates may appear to promise a magical solution enabling us to free up global mobility and reopen economies, they actually risk creating new borders and new forms of inequality through an exclusionary sorting and profiling mechanism that delimits “safe” from “unsafe” bodies, based on differential access to “immuno-privilege” – but also differential forms of “bio-securitisation”. They also provide an illusion of pandemic safety – assuring citizens that through the “fetish” of the certificate “safe travel” can magically be reinstated. Securing territories and populations has always been, in Foucauldian terms, a matter of “making a division between good and bad circulation and maximizing the good circulation by diminishing the bad”. We can therefore reasonably expect growing contestation, including before courts, around COVID-19 certificates in their different national and international iterations, as their inherently discriminatory nature and other unintended consequences such as those stemming from the use of persuasive – as opposed to the more traditional coercive – governmental power begin to unfold in their performative trajectory.

In this article, we argue that the design and timing of regulatory responses, as well as the adherence of the population to the relevant rules, have a critical impact on the progression and public health consequences of the COVID-19 pandemic. This hypothesis is empirically tested using the example of Poland, a country that experienced, compared to its Western European neighbours, a relatively mild first phase of the pandemic. In this context, we compare Poland with selected countries, including France, Germany, Spain and the UK, and we supplement them with examples from other Visegrad Four (V4) countries – Czechia, Slovakia and Hungary. On that basis, we conclude that while the observed differences between the countries in the progression of the COVID-19 pandemic are the result of a multitude of complex and interrelated reasons (such as demographic structure, population density and connectivity or cultural factors), well-designed public health measures, which are implemented early as a part of the proactive strategy that anticipates and reacts quickly to changing circumstances, can effectively decrease the number of COVID-19 infections and related deaths, provided that the adherence of the relevant population is high.

With the SARS-CoV-2 pandemic entering its second year, public and private actors alike grow eager to achieve some semblance of normality. In this context, the idea of “vaccination passports” or “immunity certificates” as a means of resuming social and economic activity has been gaining momentum all around the world. This article aims to provide a legal analysis of this initiative through the lens of the proportionality principle. A proportionality test is conducted in order to determine whether the degree of infringement of the human rights implicated is balanced by the potential of a certification system to mitigate the risks of the virus. The results from this analysis show that the targeted aims can be achieved through already existing measures with a lesser impact on civil and fundamental human rights. Moreover, in a context of uncertainty around the immunopathology of COVID-19, the introduction of these certificates presents ethical and scientific challenges, which lead us to believe that this measure is unlikely to play a central role in stopping the spread of the disease, and it could set the pace for a dangerous precedent, allowing for extensive discrimination and exacerbating already existing inequalities and disparities.

The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) relies on scientific evidence as a conclusive risk assessment criterion, which ignores the inherent limitations of science. This article highlights certain trade-restrictive effects of scientific evidence and comments on the Agreement’s aversions to precautionary measures and the consumer concern of the harmful effects of biotech products that may be necessary to protect public health and biosecurity in many WTO Member States. These measures and concerns have become pressing issues due to surging consumer awareness and vigilance concerning environmental protection and food safety. The Agreement is yet to overcome the weaknesses of its endorsed international standardising bodies, the problematic definition of scientific evidence and treatment of justification for scientific risk assessment methods and the implementation difficulties faced by most developing states. This article analyses these issues under the provisions of the Agreement and the interpretations of the WTO Dispute Settlement Body in disputes involving SPS matters, which fall short of addressing scientific uncertainty surrounding biotech products and their associated risks.

On 16 December 2020, the European Commission delivered on the plans proposed in the European Digital Strategy by publishing two proposals related to the governance of digital services in the European Union: the Digital Services Act (DSA) and the Digital Markets Act (DMA). The much-awaited regulatory reform is often mentioned in the context of content moderation and freedom of expression, market power and competition. It is, however, important to bear in mind the contractual nature of the relationship between users and platforms and the additional contracts concluded on the platform between the users, in particular traders and consumers. Moreover, the monetisation offered by digital platforms has led to new dynamics and economic interests. This paper explores the reform proposed by the European Commission by means of the DSA by touching upon four main themes that will be addressed from the perspective of consumer protection: (1) the internal coherence of European Union law; (2) intermediary liability; (3) the outsourcing of solutions to private parties; and (4) digital enforcement.

As a previously unknown virus, the spread of the coronavirus challenged not only medical science and public health systems, but also public governance in all countries. In order to tackle the COVID-19 crisis in China, public authorities at various levels have issued a large number of measures that have no legally binding force, but produce practical effects. A closer look at selected COVID-19 measures in China shows that both the advantages and drawbacks of soft law are brought to the fore by the pandemic. This contribution, focusing on Chinese experiences with COVID-19 soft law, argues that the lack of legal bindingness and consequently of legal enforcement does not make soft law measures ineffective. On the contrary, these “defects” ease the adoption of soft law and ensure its availability to both public authorities and citizens, hence increasing its effectiveness in combating the pandemic. Yet problems remain in realising participatory possibilities and ensuring respect for legality.

On 17 March 2021, the European Commission put forward its Proposal for a Regulation on Digital Green Certificates, which would facilitate European Union (EU) cross-border movement during the COVID-19 pandemic. The Regulation on the EU Digital COVID Certificate was adopted on 14 June 2021 and it will start to apply from 1 July 2021. This article examines the main declared goals of the new Regulation – the first being that Digital COVID Certificates facilitate safe cross-border movement, the second being that they preclude more restrictive national measures, the third being that they prevent discrimination and the fourth being that they coordinate Member States’ actions. In so doing, it highlights the main benefits and weaknesses of the Regulation, but it also goes beyond the Regulation by tackling broader questions of EU law that will be of relevance even once the pandemic is over. In this respect, the paper highlights the importance of science in assessing the proportionality of pandemic-related measures and of choosing the least restrictive and the most individualised options when restricting free movement due to public health reasons. It also identifies the effects EU certificates will have on Member States’ regulation of national COVID-19 certificates, notably those designed for other purposes than cross-border travel, and it shows that there is a thin line between the EU’s and national competences in this area.

In the World Trade Organization (WTO), the US approach to science-based risks and trade restrictions prevailed over that of the European Union (EU). The EU, dissatisfied with the margin of action available when “relevant scientific evidence is insufficient”, largely kept intact its internal practice on marketing and importing genetically modified (GM) crops and GM-containing products. The goal of this article is to ascertain whether these regulatory preferences of the US and the EU translate into their post-Biotech external trade efforts. US and EU preferential trade agreements are scanned for rules on trade in biotechnology goods or the use of precautionary elements in regulation. It transpires that neither bloc systematically tries (or manages) to bend trade agreements to accommodate its defensive or offensive trade interests in this field. Among the possible reasons for this apparent inertia are the US confidence in the WTO baseline and the EU preference for a “don’t ask, don’t tell” approach to its trade-restrictive policy in this area.

Contemporary risk regulation requires an interdisciplinary approach that integrates science, law and socio-political discourses. This calls for new tools in the risk regulation process that enable regulators to adapt to a constantly changing technological realm and help overcome the interdisciplinarity dilemma. In the field of nanotechnologies, tools proposed in the literature include “by design” approaches. In this article, I analyse how the safe-by-design and benign-by-design concepts, emerging in materials science and drug development, could enhance interdisciplinarity in risk regulation. I suggest that further development and implementation of “by design” from a scientific concept to an adaptive regulatory tool could support progressive risk governance of innovative technological developments and enhance the interdisciplinary approach in risk regulation.

In the coronavirus pandemic that has swept the world, the Finnish Government, like many of its peers, has issued policy measures to combat the virus. Many of these measures have been implemented in law, including measures taken under the Emergency Powers Act, or by ministries and regional and local authorities exercising their legal powers. However, some governmental policy measures have been implemented using non-binding guidelines and recommendations. Using border travel recommendations as a case study, this article critically evaluates governmental soft law-making. The debacle over the use of soft law to fight the pandemic in Finland revealed fundamental misunderstandings about the processes and circumstances under which instruments conceived as soft law can be issued, as well as a lack of attention to their effects from a fundamental rights perspective.

The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to contribute to governing crisis management. Although differences exist across countries, depending on institutional varieties and political contexts, the analysis shows that, even in times of emergency, courts can provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and across the multiple phases of the health crisis. Differences in the balancing have emerged compared to during ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision-making and new balances between precaution and evidence-based approaches. The role of scientific evidence has been at the core of judicial review to ensure transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants across countries have been used to scrutinise the legality of measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation.

Israel’s vaccination percentage was among the highest recorded worldwide. The Israeli government opted for a model using a proof-of-vaccine document (“Green Pass”). However, the “Green Pass” policy raises practical, legal and ethical concerns. While immunisation passports could be utilised to protect one’s health, significant legal difficulties arise from their usage as a vaccination encouragement scheme. Protecting health is a proper purpose, particularly as minimising the pandemic ameliorates the human rights violations that stem from the COVID-19 response, enables individuals to return to their daily lives and enhances economic activity. However, any privileges or restrictions guided by one’s COVID-19 immunisation status must be designed with the utmost attention to prevent a disproportionate violation of the human rights of the non-vaccinated and the public at large. Furthermore, as “Green Pass” policies might entrench existing discriminatory structures, ensuring equality is vital in moving forward. By exploring two case studies – labour rights and the right to privacy – we demonstrate the legal and public implications of the “Green Pass” regime. Despite the removal of the “Green Pass” in Israel, discussions continue regarding its modified reimplementation. The wider implications of the model might extend beyond its specific legal arrangements and limited temporal phase, requiring us to bring long-term public health into consideration.

This paper proposes an approach to the debate on how to reconcile international trade and human rights, explaining the minimum content of the ordre public and morality clauses (OPMCs) as the recognition of international human rights law (IHRL) standards in trade law and intellectual property law. Within the context of a multicultural and globalised society, in which trade and economic interests are protected worldwide and morality seems to be a culture-based concept, the primary considerations of IHRL embedded in these pivot clauses serve as a universal defence for human beings and a safeguard to the coherence of the human-centred international system. In particular, this study argues that the OPMCs allow for the enforcement of three standards derived from human dignity in the wider spectrum of biotechnology and scientific research, even constituting legitimate limits to the economic exploitation of biotechnological inventions.

In combating the coronavirus pandemic in Germany, soft law has played an important, albeit not a central, role. Its use basically corresponds with that of “normal circumstances”. In accordance with the German constitutional order, almost all substantial decisions are made in a legally binding form. However, these are often prepared through or supplemented by soft law. This article shows that soft law has played an important role in fighting the pandemic and its effects in Germany, although there cannot be any doubt that legally binding forms of regulation have prevailed. At the same time, the current pandemic has shed light on the advantages and effects of soft law in the context of the German legal order.

The international trade in biotech products boosts national economies and advances scientific as well as technology innovation. However, while trading these products increases the spread of benefits on a global scale, it also increases risks to human health and the environment (ie biosafety). This is because the effects of this technology on biosafety are still highly uncertain. Against this background, the judicial bodies under the World Trade Organization (WTO) find themselves in the middle of an intricate and polarised debate in which a proper judicial balance between free trade and biosafety becomes fundamental in order to determine whether requests for ensuring human and environmental health justify trade restrictions. This paper aims to highlight that the WTO is institutionally unready for balancing economic and non-economic values. In suggesting how to rationalise the judicial balance between the competing interests in the context of biotechnology, this paper demonstrates that the judicial adoption of a well-structured proportionality analysis can turn the current balance by chance into a balance by structure.

Amidst a growing interest from European Union (EU) Member States, the European Commission recently announced that it would put forward a legislative proposal for the adoption of a harmonised and mandatory front-of-pack nutrition labelling scheme at the EU level. The present contribution discusses the implications of such an adoption, taking a behavioural, legal and policy angle. It introduces first the concept of front-of-pack nutrition labelling and the existing evidence regarding its effects on consumer behaviour and dietary habits. It then presents the legal framework currently applicable to (front-of-pack) nutrition labelling in the EU and discusses some of the main political and practical aspects involved with the development of a common EU front-of-pack label.

Greece emerged as the EU’s poster child in the fight against COVID-19 during the first few months of the pandemic. In this contribution, we assess Greece’s use of soft regulation in its regulatory response to COVID-19. Using “acts of legislative content”, which can be broadly conceptualised as softly adopted hard law, the Greek government largely achieved flexibility and simplified adoption procedures without having to resort to soft law per se. The role of soft law was limited - it complemented hard law rather than constituting the primary basis of COVID-19 restrictions - but not completely negligible. Soft law instruments regulated the processing of personal data, and was also pivotal in clarifying the criminal sanctioning of COVID-related rule violations. Greece’s success in handling the first wave of the pandemic, while effective, was arguably unfair to asylum seekers who saw their right to apply for asylum curtailed, and their right to freedom of movement restricted when limitations on the rest of the population were lifted. With a second wave of infections currently in full swing, it is imperative to keep scrutinising regulatory responses to ensure that they place the health and dignity of every individual (whoever they might be) at their core and fully respect their fundamental rights.

At the international level, proof of vaccination against SARS-CoV-2 offers an enticing promise to the return of normality, particularly for the much-desired reopening of national borders. At the same time, vaccination passports could be a false hope: the requirement of vaccine passports could adversely embed social and economic inequalities that reflect the power dynamics in international relations. Specifically, the ability to secure vaccines relates to the varying market and economic power across countries. This paper focuses on Taiwan as a case study to explore ways in which the use of COVID-19 certifications, if used as a precondition for international travel, would further exacerbate a binary of exclusion and inclusion as a function of geopolitics. With its relative success in containing the COVID-19 pandemic within its borders, Taiwan represents a low priority for vaccine distribution in the COVAX initiative. Furthermore, due to Taiwan’s contentious political status and its exclusion from the World Health Organization regime, if vaccination passports are required as a precondition for international travel, then outbound passengers from Taiwan potentially could be subjected to restriction of movement absent wide availability of vaccines domestically. This paper argues that insofar as sustainable pandemic control requires a global concerted effort, vaccination passports could further polarise a global response. This paper suggests that equitable access to effective vaccines worldwide and governance reform of global health would help to rebuild global solidarity and mitigate the unimaginable human, social and economic suffering arising from the pandemic.