Dr. Mahmoud Moughrabi
Assistant Professor of Civil Law – Kuwait International Law School
Dr. Bilal Al Sundaid
Associate Professor of Public Law – Kuwait International Law School

Abstract:

One of the strongest indications of the vitality of the law and the sincerity of its interpretation of the needs of different segments of society is its pivotal role, not only in responding to crises, but also by recognizing its legal identity along with the consequent impact on the safety and strictness of the measures that accompany it. In this context, we drew close attention to the depth of the arguments related to the Covid-19 crisis, and the extremely serious and sensitive problems resulting from this crisis and affecting the various branches of law with its public and private side, preceded by the difficulties of choosing between the rigidity of postulates and the fundamentals varying in depth and strength – constitutional, international and legal – in addition to the considerations of flexibility imposed by the necessities of facilitating dealing with the repercussions of the crisis or limiting its impact.
Proceeding from this, we do not exaggerate by saying that the Covid-19 crisis has crossed the national boundaries, and in its legal effects touched all constitutional and legal systems around the world, undoubtedly constituted a «legal crisis» and a real and direct test of the adequacy of the texts and the efficacy of the analysis in finding legal adaptations for it through the established concepts and principles that the legal systems have been entrenching to establish and follow as a guideline for decades, to affirm the postulate that the protection and service of the human being are the goal of any legislative text, and the axis of any decision, procedure or executive measure. Therefore, we have found it useful and necessary to try to participate in the race to find sound answers to important questions that reflect in their entirety the most prominent aspects of this human rights crisis that we hope will be immediate and not prolonged, as they touch the interests, rights and freedoms of most individuals and global societies.
At the top of the list of legal questions that may seem simple to ask, but are accurate in their implications, is an attempt to identify the legal adaptation of the Covid-19 pandemic. We ask: to what extent do the terms covered by international constitutions and instruments apply to the crisis? Is it a state of emergency or a public calamity, or is it closer to a general ordeal as referred to in the Kuwaiti constitution and in some other Arab constitutions? Does the Covid-19 crisis and overall health epidemics amount to an emergency or force majeure at the level of traditional and well-known legal principles? And finally, what are the legal jurisprudence implications of its characterization in relation to jurisprudence?
In the same context, the question arises whether the description of unfamiliar events, no matter how many technical names it is given, is still subject to traditional standards and conditions or has become hostage to political permits, or exceptional government measures dealing with the crisis from the grounds that may differ or contradict the legal dimensions of the issue! ? A central question arises from this, regarding whether it is permissible to rely exclusively on the principle of willpower and its contractual output to address the consequences of an unprecedented crisis, taking into consideration the imperative of subjecting the partner in the contractual process to unilateral options that may seem utilitarian and circumstantial?
In order to fully comprehend the aforementioned questions, and by trying to identify the legal adaptation of the Covid-19 crisis, we adopted an analytical and comparative approach in two main sections. In the first section we referred to the Covid-19 pandemic’s link to constitutional provisions and international instruments, and then in the second section we touched on the dilemmas of legal classification and nature of the Covid-19 pandemic in the light of the established legal principles. We concluded with recommendations including the necessity of a legislative initiative to control concepts and terms in defining crises, disasters and general calamities. This is in addition to the importance of working on creating a creative, comprehensive formula between the principles of willpower and the will of the state, in the interest of sustaining the desired partnership between legal and humanitarian ideas.

Keywords: Covid-19, force majeure, emergency conditions, constitution, international instruments.

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