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Excerpted From: Shigenori Matsui, Pandemic: Covid-19 and the Public Health Emergency, 38 Arizona Journal of International and Comparative Law 139 (2021) (392 Footnotes) (Full Document)


ShigenoriMatsuiThe new coronavirus, which originated in Wuhan, in the Hubei Province of China, Novel Coronavirus (2019-nCOV), has demonstrated the inherent dangers of living in a modern globalized world with significant international travel. The disease caused by this virus is officially called COVID-19.

On December 31, 2019, China informed the World Health Organization (WHO) that there were patients showing symptoms of pneumonia due to an unknown etiology in the city of Wuhan. From December 31, 2019, to January 3, 2020, a total of 44 patients expressed the symptoms. The Chinese authorities identified these cases as a new type of coronavirus and isolated the virus on January 7, 2020. The Chinese government then implemented various measures to contain the crisis. Despite the implementation of these measures, however, the number of infected patients, as well as the death toll, rapidly increased. As of 3:47 p.m. Central European Time (CET) on November 24, 2020, there were 92,829 confirmed cases of COVID-19 with 4,749 deaths in China, exceeding the world death toll of 774 for the SARS virus. As will be discussed below, the confirmed patients, as well as death toll in the world, eventually skyrocketed and reached 58,712,326 confirmed cases with 1,388,528 deaths as of November 24, 2020.

On January 15, 2020, the Ministry of Health, Labor and Welfare in Japan (MHLW) confirmed the first imported case of the 2019-novel coronavirus from Wuhan. In response--and to prevent further spread of the virus in Japan--the government implemented various measures to prevent entry to patients and potential patients from China. However, the number of domestic infected patients continued to increase and by November 24, 2020, had reached a total of 133,929, with a death toll of 1,989. In addition, there were at least 712 confirmed patients on the cruise ship docked at the Yokohama port with 13 deaths.

What kind of measures has Japan adopted in response to this public health crisis? Are they effective in preventing patients and potential patients from entering Japan and in containing the spread of the virus? This article seeks to examine the Japanese response to this crisis. After outlining the development of COVID-19 in Part I, it critically examines Japan's basic infectious disease response system in Part II, the immigration control and quarantine system in Part III, the vaccination system in Part IV, and the treatment system to respond to acute and highly contagious diseases in Part V. This article will then analyze Japan's response to COVID-19 in Part VI. Despite the various measures adopted by the Chinese government as well as other foreign countries, it appears that the disease has not yet been contained. It is anticipated that the number of confirmed patients, as well as the number of deaths, will continue to increase worldwide. Certainly, the number of confirmed patients, as well as the death toll, will also increase in Japan. It is therefore an urgent necessity to re-examine the whole infectious disease prevention system and the government response to COVID-19. The Japanese experience will likely shed further light on the public health emergency law in other countries as well.

This crisis is not the first case of a contagious disease spreading around the world, and it certainly will not be the last. Upon examination of the Japanese system and the government response to the new coronavirus, this article concludes in Part VII that the unique Japanese approach to COVID-19 might be working, but that Japan needs to revise its systems to adequately respond to future challenges. It further argues that, in the context of public health emergencies, the basic constitutional and administrative law principle that rights and freedoms should be restricted to the minimum necessary may not be adequate. Rather, a principle that calls for maximum precautionary measures may be required. The development of this new principle may require a new jurisprudence of prevention. Such principle, if developed, should also guide the public health emergency law in other countries as well.

[. . .]

COVID-19 and the resulting lockdown left a serious impact on the Japanese economy. It is now estimated that the annual GSP could be more than 27.8% less than last year. Because of the need for subsidies and grants to help the public and corporations, the government is spending a huge amount of money, necessitating a huge debt. This would surely exacerbate the huge amount of government debt the Japanese government already carries. This would have a long-lasting impact on Japanese economy.

We still do not know whether Japan or any other countries will be able to successfully contain the spread of the new coronavirus. Many experts now believe that containment of the virus is impossible and that the new coronavirus infection will become similar to the seasonal flu; it will then be with us in the future. The CDC estimates that the seasonal flu causes 9,300,00 to 45,000,000 illnesses, 140,000 to 810,000 hospitalizations, and 12,000 to 61,000 deaths every year in the United States. Although the death toll resulting from the new coronavirus has surpassed the death toll of SARS, the new coronavirus seems to be less vicious than SARS. At this point, it is very difficult to determine the mortality rate of the new coronavirus with any precision, but it is estimated that it will be close to 3.4%, which is much lower than the 10% mortality rate of SARS, although it is significantly higher than the seasonal flu. In light of this low mortality rate, it is therefore reasonable to ask whether we are worrying too much about the new coronavirus infection. It is then questionable whether the countermeasures adopted by various countries in the world in an attempt to contain the disease are really necessary. Yet, confirmed patients worldwide already reached to 58,712,326 with 1,388,528 deaths as of November 24, and confirmed patients in the United States reached 12,119,654 with 254,798 deaths. It is a serious infectious disease. Moreover, a new infectious disease always carries the risk of mutation and could suddenly become more vicious. Therefore, it is not too much for the governments of the world to prepare for the worst. We can only hope that the new coronavirus infection is contained as soon as possible and never comes back again.

Professor of Law, University of British Columbia, Peter A. Allard School of Law.

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