6.1 Social structure: individualism or group-orientedness and the role of government

Among the key elements that can pose challenges in controlling Covid is the nature of the social structure—that is, whether a society is individualistic or communally and collectively oriented. The individualistic society is dominant and resilient in Europe and the US, and there has been strong criticism in some sectors of public regulations, such as restaurant closures and, most notoriously, total lockdown.Footnote ¹⁸ Interestingly, in the US, the Right wing has supported more libertarian arguments related to Covid regulations, while Left-wing groups have paradoxically supported strong public health control through such measures as travel restrictions, quarantine requirements, mask-wearing, and social distancing, despite the risk that support for such measures could become a target of Foucauldian critiques of biopower.Footnote ¹⁹ Comparable levels of criticism are rare in Japan. An exception was the filing by Global-Dining, Inc., a Tokyo restaurant company, of a nominal damages lawsuit in March 2021, arguing that the Tokyo Municipal government’s order to limit business hours by the Special Statute of New Influenza, including COVID-19 (Art. 45, s. 3), violated the constitutional right of business, freedom of expression, and equal protection under the law (Arts 22, 21, and 14)Footnote ²⁰ and similar arguments have recently been put forth by Professor Yasutaka Abe, Japan’s prominent administrative law scholar.Footnote ²¹

Although the communally or collectively oriented society often leads to dictatorships, such as in China and Cambodia, it has nevertheless been praised for its effectiveness in Covid control. In Japan, regulation without punishment had been considered relatively effective due to the strength of group-oriented mentality in Japanese society,Footnote ²² although some punishments for violation of regulations were added in February 2021, through the revisions of the New Influenza Special Statute, that covers COVID-19, and the Infectious Disease Act.

6.2 Related legal policy scheme: market decision or command decision (as developed by Professors Guido Calabresi and Yoshio Hirai Footnote ²³ )

The theoretical framework of legal policy-making propounded by Professor Guido Calabresi, a founding father of “Law and Economics,” and his student, Yoshio Hirai, involves a bifurcated scheme of market and command, overlapping with the previous discussion and offering helpful insights into the context of COVID-19 management.

The pure command system seen under the dictatorships in China and Cambodia is effective, as was shown in the case of the Wuhan lockdown in China in early 2020. Under the dictatorship in Cambodia, once infected people were found, they were traced stringently by the command system.Footnote ²⁴ However, such strict approaches cannot serve as a model for other market-based countries.

This theoretical framework is also helpful in conceptualizing the dissemination of COVID-19 vaccines, which remains an urgent concern. On the European continent, vaccine supply was at times insufficient due to many countries becoming selective about vaccines, especially in the case of sensitivity to AstraZeneca’s rare blood-clot side effects,Footnote ²⁵ even though in the UK, in collaboration with Oxford University, this vaccine has been effective. This has been considered a policy-making “blunder.”Footnote ²⁶ However, Japan then followed suit and became one of the worst countries in terms of vaccine rollout, by becoming similarly selective in its inoculation measures despite their approval by the Ministry of Health, Labour and Welfare in May 2021. In this sense, the Japanese vaccine allocation mechanism is a covert commandification system without the participation of individual citizens.Footnote ²⁷ Applying Calabresi’s analysis to the dissemination of COVID-19 vaccines, which can be seen as one of those important merit goods that he emphasized,Footnote ²⁸ it appears that the individualistic market mechanism should be mix-used so as to increase the supply of vaccines.

Relatedly, it has been reported that the Japanese government decided to donate AstraZeneca surplus vaccines to Taiwan, even though these vaccines had been procured for 60 million Japanese people by contract with AstraZeneca in July 2020. The Japanese Ministry of Health decided to give up inoculation, despite its approval for Japanese citizens, in considering the rare side effect of blood clots.Footnote ²⁹ However, such a policy, by the government command-like decision, can be seen as ethically problematic if scientists truly have apprehensions about the dangers of the AstraZeneca vaccine. There is the additional problematic issue of the covert political process involved in vaccine rollout, which occurred without any individual democratic participation, including the 21% of Japanese citizens who, according to a TV news poll,Footnote ³⁰ desired immediate inoculation regardless of the source company, including AstraZeneca. The Japanese government eventually began the AstraZeneca vaccination in late August 2021.Footnote ³¹ However, in the drastic fifth wave spike that followed, due to the Delta variant, very few members of the media questioned how many people may have been killed or seriously infected by that three-month period of covert governmental inaction.

6.3 Differences in public hygiene culture

Stark differences in public hygiene culture also present challenges in Covid control. These include such behaviours as wearing masks, taking shoes off before entering buildings, not shaking hands, hugging, kissing, etc. Social distancing and use of alcohol-based disinfectants became new practices for most people in the COVID-19 era. Generally speaking, Asian people are more obedient to social norms about public hygiene, which makes the so-called “cultural wars” regarding mask-wearing in Anglo-American countriesFootnote ³² seem strange and even inexplicable to many Asian people.

6.4 Discrimination against infected people

Individual human rights concerns present real challenges in the case of communally and collectively oriented societies, especially Asian countries, in contrast to Euro-American countries, as is shown in leprosy-related discrimination cases.Footnote ³³ However, similar discrimination issues have arisen in Euro-American countries, with recent cases of COVID-related hate speech and physical violence against Asian-American people,Footnote ³⁴ and thus it is not possible to generalize discrimination issues in an essentialized or categorical manner.

6.5 Health care and housing welfare protection

The Japanese health-care system is communitarian and might be seen as generally effective with regard to Covid control. However, “PCR [polymerase chain reaction]” testing has been limited due to the restrictive legal regime of the Infectious Disease Act of 1998,Footnote ³⁵ and the control of Covid has thus been systemically insufficient from the beginning.Footnote ³⁶ Although the American health-care system is market-oriented, racial disparities and discrimination have been serious issues in the Covid response. Similarly, the housing welfare problem in Japan (i.e. the general lack of public assistance for housing for vulnerable populations) has presented serious challenges during Covid with ominous consequences.Footnote ³⁷

6.6 Control of private information

South Korea and Israel have both implemented forms of private information control to contain Covid outbreaks. In Taiwan, a digital device invented by Minister Audrey Tang has been used for providing masks. In the face of spikes in numbers of infected people, a registration system was invented that used smartphones to find people who had contacted infected persons within five seconds.Footnote ³⁸ However, as mentioned before, there are tensions between the use of these devices and privacy issues.

6.7 Leadership

Top-down leadership is strong in China and Cambodia, and command decision-making has been cost-effective in the context of COVID-19, although it might infringe upon individual freedom, rights, and privacy. Leadership based on correct scientific data is essential in any case. This is in contrast with the anti-science attitudes of President Trump and President Bolsonaro, which have led to serious Covid disasters that might otherwise have been prevented.Footnote ³⁹

7.1 Establishing a framework for Covid containment

The framework for Covid containment involves (1) increasing “PCR testing,” (2) identifying infected people, and (3) tracing and quarantining them. Using computer networks and big data might be effective, but it also raises issues with regard to the protection of privacy. Similarly, the use of international border checks has been important in blocking entry of people infected by variants of COVID-19. Compared to other countries, Japan has been seen as weak in this form of regulation.Footnote ⁴⁰ Contrary to the Japanese situation, according to my personal experience,Footnote ⁴¹ the restriction of foreign travellers was much more stringent in Cambodia; for example: (1) PCR negative medical certificate, certificate of designated COVID-19 insurance, and $2,000 pre-payment for quarantine was required for entry; (2) PCR testing at the arrival airport; (3) two-week mandatory quarantine at the designated hotel according to the 18 November 2020 ordinance (home quarantine had been formerly admitted); and (4) second PCR testing on the thirteenth day after arrival and negative results on the following day were required for release from the designated hotel.

7.2 Appropriate health care for infected people, especially serious cases

Prior to the availability of any effective medications for treating Covid, immediate vaccine inoculation seemed the only way to address the outbreak. In this sense, the delay of inoculation in Japan was a serious political and public health issue, and the way in which the Japanese administration allocated vaccines through a covert command system was also problematic in terms of legal policy, as mentioned earlier.

7.3 Establishment of public hygiene

Such measures as wearing masks, washing hands, practising social distancing, and installing adequate ventilation (to avoid the 3Cs (1) closed spaces; (2) crowded places; (3) close-contact settings) should be minimally required in addressing the Covid crisis. Moreover, the improvement of sewage systems and disinfecting systems constitutes an important infrastructure priority.

7.4 Immediate access to vaccines

By mid-2021, immediate access to vaccines was the most urgent agenda item, with Japan far behind the implementation of vaccines in Israel, the US, and the UK. Japan’s approach to this issue, as mentioned above, was problematic. “Vaccine holdouts” was also an urgent issue, especially in the US as the vaccination rate plateaued and the US was surpassed in the rate of inoculations by European countries:Footnote ⁴² As of 21 August 2021, the rate of fully vaccinated people was 62.0% in the UK, 55.0% in France, 58.6% in Germany, 58.2 % in Italy, 66.3% in Spain, but only 51.8% in the US and 40.0% in Japan.

Millions of Americans who rejected vaccination regarded their decision as a personal and private matter. Its mandatory nature appeared to some to be contrary to individual freedom of choice. This argument has been rightly refuted by noting that achieving herd immunity through vaccinations is a social problem to solve through collective action, for one’s vaccination status affects others more directly than choosing to fasten one’s seatbelt or wear a bicycle helmet. The idea was that preventable harm should not be inflicted upon family, friends, neighbours, community, country, and the planet as a whole by unvaccinated people. This community effort, the argument goes,Footnote ⁴³ is based on America’s tradition of republican solidarity and social responsibility—notions that were countered by programmes advanced by the Reagan Revolution.

7.5 Correcting global disparities after the pandemic

The importance of International Health Care projects, most notably the WHO’s plan, cannot be overemphasized. Inclusive health-oriented policies based on global justice are easily contrasted with the isolationist policies adopted by the Trump administration that were based on an “America First” populism.

Working towards this goal, an immediate agenda must involve the global development of new drugs and vaccines in order to bring an end to the Covid pandemic. To advance in this direction, it is critical to pursue the deconstruction of the modern individualistic intellectual property legal regime. Global access schemes need to be pursued, such as the COVAX Facility project established in 2020 by more than 180 countries to guarantee access to vaccines for the 20% constituting the world’s most vulnerable people. The COVAX Facility is organized by the WHO, in collaboration with GAVI (Global Alliance for Vaccine and Immunization, 2000∼) and CEPI (Coalition for Epidemic Preparedness Innovation, 2017∼). This project planned for 0.7 billion available shots to be increased to 2 billion shots by the end of 2021. However, the world situation has been overwhelmed by so-called “vaccine nationalism,” thus affecting the extent of the COVAX Facility’s achievement thus far.

7.6 Theoretical problems: postscripts for future prospects

In dealing with COVID-19 issues, there is a normative tension between individualism and collectivism, and relatedly between market decision-making and collective command decision-making. Yet equal protection, with special attention to the protection of vulnerable people during disaster recovery, is of vital importance. Especially in the case of a global pandemic, global justice rather than nationalistic justice should be pursued. This is a goal that has yet to be achieved.

First of all, vaccination remains an essential factor in controlling Covid. The landscape described at the annual meeting of the Law and Society Association in May 2021 has been transformed due to the widespread availability of COVID-19 vaccination.Footnote ⁴⁴ With regard to the three models for dealing with Covid, most major countries moved to Model 2 or 3, except China, which still operated according to Model 1, i.e. a stringent top-down “zero tolerance” commandification model. This policy increasingly made China an outlier, as the rest of the world began to reopen, including New Zealand and Australia, which had also once embraced zero tolerance. For a time, China became the only country chasing the goal of full eradication of the virus. This containment model is still hailed by many as proof of the superiority of its competent governance model that enables lockdowns and testing to be carried out with astonishing efficiency. However, some experts, such as Zhang Wenhong, worry about economic slowdown related to the costs involved in pursuing a zero-cases policy, and suggest that China should learn to live with the virus, and that the Model 1 approach is unsustainable.Footnote ⁴⁵

Second, the problem of discrepancy between vaccination rates in rich and poor countries, with most of the latter located in the South, persists.Footnote ⁴⁶ The COVAX Facility project based on global equity concerns remains short of its goal. In 2021, in South and Southeast Asia, the fully vaccinated rate was still low in many countries (e.g. India (25.8%), Indonesia (29.9%), Vietnam (32.0%), Thailand (49.8%), Bangladesh (19.6%), Philippines (33.4%), Myanmar (15.2%)), with a few exceptionally successful countries (Malaysia (76.4%), Singapore (82.7%), Cambodia (78.8%)).Footnote ⁴⁷

Third, after the fifth wave, COVID-19 was almost gone in Japan for a time, while remaining rampant in Russia, the UK, and other regions, even though the number of deaths had relatively decreased. However, the fourth wave, which corresponds with the sixth wave in Asia, surged in EU countries overall, despite some variance across countries, and the resulting health restrictions, most stringently applied in Austria, dampened economic activities more seriously than expected.Footnote ⁴⁸

Some of the mysterious differences between the situations in Japan and Korea, or between France and Germany, with the number of infected people much higher in the latter cases, cannot be explained so far (the more frequent night gatherings in Korea and the efficacy of President Macron’s regulation of public space through the use of vaccine passports are some hypothetical explanationsFootnote ⁴⁹ ). Booster shots, and vaccines for youngsters and infants, are domestic challenges for rich countries that have been overwhelmed by “vaccine nationalism,” while many discrepancies across the world remain unresolved.Footnote ⁵⁰ As economic reopening restarted unevenly in 2021, hundreds of millions in the Global South have been driven into extreme poverty. More co-operation and co-ordination will be desperately needed to achieve a transformative era of progress.

Fourth, the so-called “Omicron variants” first detected in South Africa began to attract world attention in December 2021, causing flight bans and global isolation of the sub-Saharan African area. The Omicron variants based on sets of mutations allegedly spread twice as quickly as Delta variants. It is important to consider why Covid mutations arose in South Africa—a country of 8 million people, in which 13% of its population live with HIV, and 5.2 million people receive treatment, but only two-thirds of them are successfully suppressing the virus with medication. For the rest, HIV weakens their immune systems and if they catch COVID-19, it lasts longer than in the standard case, and reiterates mutations in their bodies (e.g. 216 days of Covid and 32 virus mutations in one HIV patient). The same phenomenon can be observed in the cases of transplant patients and those undergoing cancer treatment. In these cases, vaccinations are especially important.Footnote ⁵¹ Thus, the prioritization of people with HIV to receive vaccine boosters to increase the effectiveness of their immune responses should be one element of a global justice approach to the COVID-19 pandemic, and “vaccination nationalism” should be strongly criticized as a global health policy.

However, as the Omicron virus began to spread dramatically, it was as if the COVID-19 situation had started anew: each country starting with the first scenario, then moving to the third scenario, as this article explicates. According to the WHO meeting in mid-December 2021, lab studies strongly suggested that the Omicron variant would cause many more breakthrough cases by evading antibodies generated by vaccines and prior infections. Yet it was also suggested that such breakthrough infections could be mild, with vaccines still continuing to provide substantial protection against severe disease, and T cells in vaccinated people remaining effective against the variant. In this case, the rich countries starting with the US moved to booster shots,Footnote ⁵² thus strengthening the vaccination nationalism mentioned before, while in South Africa and many other poor countries, scepticism or outright hostility toward Covid vaccines ran deep, due to the negative legacy of colonialism, and the rollout of vaccines staggered.Footnote ⁵³ It remains a Herculean task to remove this persistent discrepancy across the globe, which leads to the up-and-down vicious cycle of COVID-19 variants continuing in rotation at least for the time being.

It is clear that the pandemic landscape has been transformed since vaccines, tests, and oral treatments became available. As Omicron infections, despite breakthrough transmissibility, remain relatively mild for vaccinated people, rising cases do not reliably predict hospitalization surges. It seems that we need to live with some forms of COVID-19 in the long term, in ways similar to outbreaks of influenza (“the flu”), and changes in mindsets and public health policies might be required. Traditionally, Covid case-counts have been the focus, even with the emergence of variants such as Omicron, especially in Japan, which has the most stringent quarantine policies among developed nations based on “precautionary principles,” but, as has been suggested, focusing attention on hospitalizations rather than case-counts might lead to effective and reasonable health-care policies in relation to the allocation of resources.Footnote ⁵⁴