IMO it’s unwise - it sets an unhappy precedent - for a state to ban vaccine exports where contracts have been entered into. But I think there are dangers (as in other contexts critics of “judicial activism” are eager to point out) in extending the “rule of law” concept too far.
https://twitter.com/SBarrettBar/status/1374987941882236933
@SBarrettBar seems to regard any state interference with pre-existing contracts as a breach of the rule of law. But if that’s right, then eg legislating to increase tenants’ or employees’ rights, or banning exports of arms or cultural heritage is a breach of the rule of law.
Conceptually it’s better, I think, to regard such interference as an interference with property rights - in ECHR terms, an interference that engages Article 1 of Protocol 1.
Such interference must be based on law and must be justified - and in many cases requires compensation: but the possibility certainly exists, in a democratic society.
Indeed, Steven obliquely refers to A1P1 - and its analogue in the Charter - when he refers to the need for the EU to comply with its own laws. One can see issues there, and they can be tested in court.
But, in general, this sort of issue is best thought of as a human rights, rather than a rule of law question. Which is why there is a good business case (as well as a good moral and political case) for robust human rights protection.
(NB that arbitrary seizure of property or interference with contract - interference on an executive whim - certainly does raise rule of law issues: though A1P1 would also apply there. But interference with existing contracts isn’t necessarily arbitrary.)
Adding this discussion to the thread.
https://twitter.com/SBarrettBar/status/1375015475827122176
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