Articles de revues sur le sujet « Human rights – South America – Criminal provisions »

AbstractThe Colombian Parliament's Justice and Peace law of 2005, introduced by the government of President Alvaro Uribe, allows members of armed groups involved in Colombia's 40-year old conflict to re-enter civilian life by paying an alternative penalty of 5-8 years' prison, even where their crimes concern mass-murder. The process is conditional on a full confession and the proper recompense for the victims. The Law however benefits primarily the pro-state paramilitaries, as the left-wing guerrilla groups have yet to make peace, and has thus been described as a transitional justice system without the transition. This article considers the provisions of the 2005 law against the background of the Constitutional Court's 2006 decision on its validity and the requirements of international criminal law and human rights law. It considers whether it satisfies the requirements of the International Criminal Court, which has jurisdiction over Colombia's conflict but with an opt-out till 2009 for war-crimes. Will the process resolve the problem of Colombia's "impunity" – the failure to prosecute paramilitary crimes - which has been condemned by the Inter-American Court of Human Rights? In conclusion it compares the process to other transitional justice systems in South Africa and Northern Ireland.

The Corona Virus Disease (COVID-19) pandemic that has plagued the world has changed the mindset, how to behave and how to act, not only in social interaction but also has influenced the law enforcement system. Development in Information Technology (IT) has found a teleconference system as a means of conducting virtual courts as a reaction to social or physical distancing movements which is one way to prevent the spread of COVID-19. Although in practice the use of a virtual court in a trial is considered capable of preventing the spread of viruses, the use of a virtual court must keep be based on applicable laws and regulations. This paper is a normative legal research with legislation approach, case approach, comparative legal approach, and conceptual approach to legal material collected through literature study and then analyzed using grammatical, systematic, and extensive interpretation methods. Based on the results of the study, several countries such as the United Kingdom, China, Australia (New South Wales) and America (New York) and Indonesia (although limited to the examination of witnesses) have applied virtual courts in the justice system. Implementation of the trial using the virtual court method by teleconference did not violate the provisions of the trial set out in the Criminal Procedure Code (KUHAP). According to the Draft Law KUHAP has accommodated the trial using the virtual court method as an embodiment of legal principles in the judiciary that is carried out quickly, simply, and at a low cost. The use of virtual court is not the first or primary choice in examining criminal cases in Indonesia, in abnormal emergency conditions due to the COVID-19 pandemic as it is today, an examination by the virtual court method is a solution so that the criminal justice system continues to run without reducing the efforts to prevent the spread of the virus. Trials using virtual court facilities continue to accommodate the human rights of victims, witnesses and defendants through their virtual presence so that a fair trial continues in the courtroom.

The aim of the paper is to analyze the bioethical aspects of the institution of human rights in Latin America. The result of the present research is the author's conclusion on the necessity of the practical implementation of legal provisions in this area, and their judicial enforcement in many states of Latin America with the aim of compliance with international standards of human rights. In the face of global uncertainty of COVID-19, it is more necessary than ever to maintain a strong commitment to international law and human rights with responsibility in bioethics, and also to seek to preserve and consolidate what has been advanced in the construction of a world order based on rules and shared values, along with a policy structured on common values and international principles. States must take international responsibility for wrongful acts for the violation of human rights in biolaw. The research methodology was based on general scientific and private scientific methods of cognition (the dialectical method, methods of analysis and synthesis, deduction and induction, comparative legal and historical legal methods). The biolaw basing on the International Law and Human Rights has its special understanding of the issue, which should be supported by further legislative development in Latin America. Latin American courts will not be able to make judgments on bioethical issues for a long time, while it is closely related to biopolitics and other controversial regional political positions. There are structural and historical problems of Latin American legal culture, a high index of criminal impunity and wide discretion of law-enforcement agencies that do not apply specific principles of biolaw and even bypass official bioethical guidelines in their practice. The author's give overview of the practice of Mexico on the matter of the legislative process in biolaw. The paper focuses on different theoretical approaches.

AbstractIn May 2016, an Argentine federal court concluded a momentous trial, convicting 15 defendants of illegal kidnappings and torture committed against over 100 victims of Operation Condor, and ofasociación ilícita(‘illicit association’: conspiracy to commit a criminal offence) to perpetrate these violations. Operation Condor was the codename given to a continent-wide covert operation devised in the 1970s by South American regimes to eliminate hundreds of left-wing activists across the region. The Operation Condor verdict of 2016 broke new ground in human rights and transitional justice, for its innovative focus on transnational crimes and for holding state agents accountable for extraterritorial human rights violations. By analysing this pioneering case, the article brings the question of cross-border crimes into academic debate. As borders become more porous, scholars and practitioners can no longer afford to side-line the topic of accountability for transnational crimes.

The article is devoted to the study of the types of international judicial institutions and their role in ensuring theright to judicial protection. It is noted that the Manila Declaration provides for a judicial settlement of disputes andarbitration. The International Court of Justice is the principal judicial organ of the United Nations. The InternationalCriminal Court is the permanent body with jurisdiction over persons responsible for particularly serious crimes, inaddition to national criminal jurisdictions. The Inter-American Court of Human Rights is an independent, conven-tional body whose function is to protect human rights in the states of North and South America. The Arab Court ofHuman Rights has not yet begun its work, although the Court’s mandate allows States parties to lodge complaints.The African Court of Human and Peoples’ Rights is an independent body whose purpose is to protect human rightsin African countries. The jurisdiction of the European Court of Human Rights extends to all matters of interpretationand application of the Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols.The Court of Justice of the European Union interprets EU law and provides for the settlement of disputes by the EU’snational government-institutions. It is emphasized that regional judicial institutions are designed to protect the rightsand freedoms of man and citizen. They are part of a subsidiary human rights protection mechanism that can be applied once all national remedies have been exhausted. Recourse to the International Court of Justice or arbitration isnot an unfriendly act in relations between states, but on the contrary indicates the use of peaceful means of dispute settlement. Unlike other international courts, only international criminal tribunals can be joined in a single proceeding.

Section 39(2) of the Constitution of the Republic of South Africa, 1996, recognises the existence of rights not protected in the bill of rights. The South African bill of rights protects human conduct and interests extensively. Before the AMCU judgment was delivered, no clear example of a right not protected by the bill of rights had been identified in case law and legal literature. In the AMCU case the constitutional court deviated from previous judgments by holding that the interests of employees not to be dismissed unfairly is not covered by the right to fair labour practices in section 23(1) of the constitution. The court based its finding on textual and contextual interpretive considerations. Its interpretation of section 23(1) was not sound. A narrow, grammatical approach, namely that the text of section 23(1) does not refer expressly to such a right, cannot be followed when the meaning of open-ended constitutional phrases like “fair” labour practices is determined. And an extra-textual reference to the protection of the right in ordinary law is not relevant when the meaning of a constitutional provision is determined. Aspects of human dignity and physical and psychological integrity cannot be removed from the protective ambit of the bill of rights because they are protected by ordinary rules of the law of delict and criminal law. Viewed contextually with the other provisions of the bill of rights, the constitutional right to fair labour practices, like the right to access to housing, food, health and social services, children’s rights and criminal and civil procedural rights, protects other constitutional rights in a particular field, in this case in the field of labour relations. Apart from the fact that it can hardly be contested that every employee has a vital interest not to be dismissed unfairly, many other rights, for example, to human dignity, physical and psychological integrity, economic activity, association and audi alteram partem, may be limited factually by dismissals and dismissal procedures. The scheme and ethos of the South African bill of rights is that these special rights that overlap with the general rights are guaranteed separately. Within this context one of the ironies of the artificial exclusion of a right from the protective ambit of the special right is that its violation may, like in systems without these special rights, be challenged on the basis of the unjustifiable limitation of the general rights. A rule of thumb that the protective ambit of constitutional rights should be interpreted restrictively because the application of the weak rational relationship test as part of the rule of law serves the separation of power principle better than the application of the stricter reasonable test for the limitation of constitutional rights (in the separate concurring judgment of Theron J) is questionable. Whereas legality as part of the rule of law is always complied with when the weak rationality relationship exists, reasonableness in terms of section 36 does not always amount to the application of a stricter test. The existence of a very compelling purpose (to combat a pandemic that threatens life and limb) or a factually slight limitation of a right (to stop at a stop sign) could be the basis of a conclusion that the limitation is justifiable when the weak rational relationship test is complied with. The court’s consideration of proportionality under the umbrella of the application of the weak rational relationship test causes more uncertainty in the present somewhat unruly field of the application of rationality tests.

The legal regulation of bail's institute as a preventive measure in Ukraine and Anglo - American countries, including the aim of its application, bail's size and criteria for its determination, is the subject matter of this article. The authors support a point concerning to the inadvisability of legislative regulation of maximum bail's size as well as a judge's opportunity in certain circumstances to apply bail, size of which is lower than minimum level. The purpose of article is to clarify strengths and weakness of legislative regulation of the bail in Ukraine, England and United States of America, to highlight a separate problems, arising in practice, to express recommendations and proposals regarding to the improvement of valid criminal procedural legislation of Ukraine. Analyzing provisions of criminal – procedural legislation of England and United States of America, the authors provide a few bail's classifications, depending on way of making a deposit. Besides it, the authors detect the drawbacks of legislative technique of Anglo – American countries regarding to not taking by judges into account material and family state of accused and suspected person, that leads to taking into custody a significant number of people, who are not financially secured to make a deposit. The decisions of the European Court on Human Rights as an international judicial institution regarding to determination of the bail's size, which will guarantee an enforcement of duties that a suspected person is obliged to do and will be defined taking into account a material state of a suspected person, are highlighted in this article. The authors also explore an issue of determination of bail's object and emphasizes on the necessity of clarifying of the money origin with the aim to avoid money laundering, which is offence, predicted by art.209 of Criminal Code of Ukraine. Investigating theoretical and practical aspects of the determination of bail's size, the authors make a conclusion regarding to the existence of certain difference in national legislation and legislation of Anglo – American countries, that is a result of belonging Ukraine to continental, and the USA and England – to Anglo – American countries. The authors state that prospective of further explorations of high stated issue are an improvement of legislation, implementation of world's experience, taking into account the legal positions of the European Court on Human Rights, etc.

This article investigates and compares the different approaches towards the dress code of learners[1] in South Africa and the United States of America (US), as the US mainly base litigation concerning school dress code on their freedom of speech/expression clause, while similar South African court cases focus more on religious and cultural freedom. In South Africa, school principals and School Governing Bodies are in dire need of clear guidelines on how to respect and honour the constitutionally entrenched right to all of the different religions and cultures. The crisis of values in education arises from the disparity between the value system espoused by the school and the community, and that expressed in the Constitution of the Republic of South Africa, which guarantees learners' fundamental rights, including those of freedom of religion, culture, expression and human dignity. On the one hand, the South African Schools Act requires of School Governing Bodies to develop and implement a Code of Conduct for learners, and on the other, that they strictly adhere to the Constitution of the country when drawing up their dress codes. The right of a religious group to practise its religion or of a cultural group to respect and sustain its culture must be consistent with the provisions of the Bill of Rights (which is entrenched in the Constitution) and this implies that other rights may not infringe on the right to freedom of religion and culture. In the US, although there is no legislation that protects learners' freedom of religion and culture at schools, their First Amendment guides the way. Their Supreme Court respects the religious values of all citizens provided that they are manifested off public school premises. While we acknowledge the existence of religious and cultural diversity at South African schools, this paper focuses on the tension among and on the existence of different approaches towards the human rights of learners from different religious and cultural backgrounds in respect of dress codes.[1] The terms learner/s and student/s are used interchangeably in the article, since South Africa uses the one and the US uses the other to indicate school-going persons.

The policy of lustration is set in the context of responses to abuses of power by previous regimes. Using examples from three recent forms of social reconstruction (in Latin America, the former communist states, and South Africa), the author reviews the “justice in transition” debate. How do societies going through democratization confront the human rights violations committed by the previous regime? Five aspects of this debate are reviewed: (1) truth: establishing and confronting the knowledge of what happened in the past; (2) justice: making offenders accountable for their past violations through three possible methods: punishment through the criminal law, compensation and restitution, and mass disqualification such as lustration; (3) impunity: giving amnesty to previous offenders; (4) expiation; and (5) reconciliation and reconstruction. A concluding discussion raises the implications of the subject for the study of time and social control.

A photograph taken by a monkey is in the centre of a copyright claim in the famous monkey selfie case in the United States of America. Suing as next friend of the monkey, named Naruto, the People for the Ethical Treatment of Animals contended that copyright in the photograph belongs to the monkey as author of the photograph since the monkey created the photograph unaided by any person. On the motion of the defendants, the case was dismissed by the US district court on the ground that the concept of authorship under US Copyright Act cannot be defined to include non-human animals. The dismissal order was confirmed by a three-judge panel of the US Court of Appeal of Ninth Circuit a request for an appeal before a panel of eleven judges of the appellate court was denied. This paper reviews the case in the light of the concept of authorship and ownership, with specific focus on the authorship of photographs, under the Nigerian Copyright Act and South African Copyright Act. In so doing, it examines and relies on Ginsburg's six principles for testing authorship to test the authorship of photographs under the Acts. It also relies on the concepts of subjective rights and legal personality to explain the implication of conferring copyright ownership on non-human animals. It argues that for authorship of and ownership of the copyright in a photograph to be established under the Nigerian Copyright Act and South African Copyright Act, a legal person must have created the photograph. Consequently, for the purposes of argument, the paper proceeds on the assumption that the monkey selfie case originated from Nigeria or South Africa. After analysing relevant statutory provisions and case law, the paper finds that the Nigerian Copyright Act and the South African Copyright Act do not envisage the conferral of authorship in particular, and copyright protection in general, to a non-human animal. It then concludes that the courts in both countries would not reach a different conclusion from the one made by the US courts.

The objects of this research are, First, to highlight the unfair language practice that is still persisting in the South African Judicial System despite the provisions contained in the democratic constitution of equitable use of all official languages. Second, to explore the variables that contribute to this appalling state of affairs where English is predominately used in the South African Judicial System. Third, to suggest possible measures that could be applied to lessen or circumvent the situation. The researcher investigated the following problem, The inadequate use of the official indigenous languages in the South African Judicial System, the reasons behind this practice and its consequences. The main results of the research are, first, English is still the predominately used language in the South African courts of law and minimal use of official indigenous languages in the judicial system is still continuing unabated. Second, language policy regarding the South African Judicial System need to be reviewed with the aim of putting emphasis on the use of official indigenous languages for various activities in the judicial system, secondly, benefits derived from adequate use of official indigenous languages in the judicial system need to be explored more so that maximal participation of people who speak these languages can be achieved. Third, the study has shown that the reason for this inadequate use of the official indigenous languages is as a result of various intertwined variables such as globalisation, economic factors, negative attitudes towards African languages and a lack of existing inclusive language policies regarding the SA judicial system. Fourth, the use English language for various purposes in the judicial system is a linguistic injustice, it portrays the South African judicial system as still not transformed but still colonised. The area of practical use of the research results are, all citizens who seek justice through South African judicial System, Law practitioners in South Africa, human rights organisations, university students and staff members of the criminal justice department. Innovative technological product, Inclusive language policy development measures Scope of the innovative technological product, The practice of multilingualism in the area of law.

In situations of a transition to democracy, the legal profession tends to have a strong impact. While this is quite clear in the case when criminal prosecutions are initiated against perpetrators of gross human rights violations, and when amnesty provisions are enacted for some violations, it is far less obvious in cases when a truth commission is set up. The current article looks into the role that the legal profession, i.e. the judiciary, the bar and the non-governmental organisations, has played in the notorious case of the South African Truth and Reconciliation Commission (TRC). It draws on the systems analysis of political life by David Easton, which identifies how demands (input) that rise in society, are processed (conversion) and produce results (output), which provide new inputs to the political system. This ‘flow model’ is applied to two separate processes during the life of the TRC: the Special Legal Hearing of October 1997, and the legal challenges put to the Commission in Court in 1996. Our analysis reveals a number of interesting conclusions. One is that the organised profession approached the Special Legal Hearing from a very legalistic point of view, despite the non-judicial character of the Truth and Reconciliation Commission at large. This stands in contrast with the position of the Constitutional Court, which recognised the limits of the traditional judicial system and came out in support of the TRC. Another conclusion is that, although the participation of the judges and the magistrates in the Special Legal Hearing was limited to written submissions, their influence proved very large, as they threatened the TRC with a constitutional crisis. Finally, throughout the two processes under review, breaches became visible within the legal profession, between the ‘progressive’ non-governmental organisations and the ‘conservative’ organised profession on the one hand, and between the organised profession on the one hand and the judges on the other hand. In sum, it can convincingly be concluded that the impact of the legal profession remains quite important when a truth commission is opted for in a context of transition to democracy.

This edition consists of 15 contributions – 12 articles and three case notes. In the first article, Janke Strydom and Sue-Mari Viljoen discuss the phenomenon where inner-city buildings in South Africa are unlawfully occupied, which has led to a number of legal disputes between occupiers and individual landowners. They propose measures analogous to those in England and the Netherlands to be added to the existing statutory powers of the local authorities to assist in resolving the disputes. Second, Tapiwa Warikandwa and Patrick Osode deal with the challenges the WTOs is faced with in balancing the rights of a sovereign power to freely regulate matters pertaining to health or the environment within its domestic domain with the need to maintain the sanctity of the multilateral trade order. Third, Andra le Roux-Kemp and Elsie Burger give a comparative perspective on some of the issues associated with litigating cases where the Shaken Baby Syndrome is the subject matter. Their focus is on the case law in the United States and United Kingdom. Fourth, Fatima Osman deals with the thorny issue of headscarves in South Africa, France, Turkey and Switzerland. She focuses on the reasons for the ban against their wearing and asks if the ban can be justified in the light of the human rights guaranteed to those individuals wanting to wear them. Fifth, Geo Quinot and SP (Fanus) van Tonder argue in favour of capstone courses to address some of the challenges facing legal education in general and the inadequacies of the LLB curriculum. Rolien Roos, in the sixth article, sets out to determine whether law can be regarded as a science which could be studied. She refers to the scholarly works of philosophers such as Dooyeweerd, Stafleu and Strauss and comes to the conclusion that the answer is all but straight forward. In the seventh article, Caiphas Soyapi considers the highly controversial provisions of the Traditional Courts Bill in a comparative context and recommends that the framers of the Bill should consider the situation in other jurisdictions in order to deal with some of the issues with the Bill. In the eight spot, Gerrit Ferreira and Anél Ferreira-Snyman examine the dichotomy that is created between the monist and dualist approach followed by the incorporation of international law into municipal law in the light of decisions of the South African Constitutional Court and the European Court of Justice. In the ninth article, Magda Slabbert and Darren Boome investigate the prospects of a convicted criminal who wants to become a lawyer, and in the tenth article Raheel Ahmed considers the role of “contributory intent” as a defence limiting delictual liability. In the second-last article Kananelo Mosito sets out to provide the reader with an understanding of the legal situation in Lesotho pertaining to social security and protection. Last but not least, Tamara Cohen and Lehlohonolo Matee give a comparative overview of the public servants’ right to strike in Lesotho, Botswana and South Africa.The first case note is by Tracy-Lynn Humby, who deals with the question of whether or not municipalities have the power to legislate on environmental issues such as biodiversity and conservation, as examined in the case of Le Sueur v Ethekwini Municipality in the KwaZulu-Natal High Court. The second note, by Johan Beukes and Christiaan Swart, discusses the case of Peel v Hamon J&C Engineering (Pty) Ltd, which deals with the remedy provided for in section 163 of the Companies Act (the oppression remedy). The last note is by Helen Kruuse and Julia Sloth-Nielsen, and debates the implications of Mayelane v Ngwenyama

The crime of defamation, known as criminal libel in some jurisdictions, has (along with associated “insult laws”) been identified in the 2007 Declaration of Table Mountain of the World Association of Newspapers and News Publishers as the “greatest scourge of press freedom on the continent”. The Declaration proceeds to call for the abolition of such laws as a matter of urgency. This call has similarly been made in the Caribbean context by the International Press Institute and in the Commonwealth by the Commonwealth Human Rights Initiative (CHRI). Writing on behalf of CHRI, Cowell notes the “chilling effect” of defamation laws (along with the procedural laws and regulations governing libel actions), defining this phenomenon as “partially … self-censorship on the part of individuals but in general…a wider culture of fear and uncertainty within society that limits free speech”. On this basis, Cowell argues (for CHRI) that criminal defamation represents the “clearest threat to the exercise of freedom of speech withCommonwealth states” and that the “threat of criminal sanction can act as asignificant and widespread deterrent against all freedom of speech”, and that they should therefore be repealed. Similar calls forthe abolition of criminal defamation laws have issued from the Organization of American States and the Organization for Security and Co-operation in Europe, and in response to a complaint relating to a criminal libel conviction emanating from the Philippines, the United Nations Human Rights Council stated that “States parties should consider the decriminalization of defamation … application of the criminal law [in the context of defamation] should only be countenanced in the most serious of cases and imprisonment is never an appropriate remedy”.Despite these calls for the abolition of the crime, it is noteworthy that the crime is retained in many jurisdictions, including European jurisdictions and Commonwealth countries. For example, every Commonwealth state in the English-speaking Caribbean (except Grenada) has specific criminal libel laws, Asian Commonwealth countries such as India, Singapore and Malaysia have corresponding criminaldefamation provisions, and so do African Commonwealth countries such as Botswana and South Africa. In addition, Commonwealth members such as Australia and Canada retain criminal defamation laws. An approach from the Commonwealth Press Union arguing for the abolition of the crime of defamation on the basis that such a crime threatens freedom of expression and is subject to abuse, being used in cases which do not involve the public interest, did not find favour with the Commonwealth Law ministers in their meeting in Accra in 2005.

Abstract Automated facial recognition (AFR) is perhaps the most controversial policing tool of the twenty-first century. Police forces in England and Wales, and beyond, are using facial recognition in various contexts, from evidence gathering to the identification and monitoring of criminal suspects. Despite uncertainty regarding its accuracy, and widespread concerns about its impact on human rights and broader social consequences, the rise of police facial recognition continues unabated by law. Both the Government and the domestic courts were satisfied that police use of this technology is regulated adequately by existing statutory provisions regulating the processing of data and police surveillance generally. That is, until the recent judgment of the Court of Appeal in R (Bridges) v Chief Constable of South Wales Police and Others [2020] EWCA Civ 1058, where it was held that the respondent's use of AFR was unlawful. This paper provides an analysis of AFR, reflecting on the outcome of that case and evaluates its nuanced findings. We suggest that the judgment leaves considerable room for police AFR to continue with only minor, piecemeal amendment to the legal framework. Drawing on comparative experience and relevant socio-legal scholarship, we argue that the relatively unfettered rise of police facial recognition in England and Wales illuminates deeper flaws in the domestic framework for fundamental human rights protection and adjudication, which create the conditions for authoritarian policing and surveillance to expand.

Introduction The highly contagious COVID-19 virus has presented particularly difficult public policy challenges. The relatively late emergence of an effective treatments and vaccines, the structural stresses on health care systems, the lockdowns and the economic dislocations, the evident structural inequalities in effected societies, as well as the difficulty of prevention have tested social and political cohesion. Moreover, the intrusive nature of many prophylactic measures have led to individual liberty and human rights concerns. As noted by the Victorian (Australia) Ombudsman Report on the COVID-19 lockdown in Melbourne, we may be tempted, during a crisis, to view human rights as expendable in the pursuit of saving human lives. This thinking can lead to dangerous territory. It is not unlawful to curtail fundamental rights and freedoms when there are compelling reasons for doing so; human rights are inherently and inseparably a consideration of human lives. (5) These difficulties have raised issues about the importance of social or community capital in fighting the pandemic. This article discusses the impacts of social and community capital and other factors on the governmental efforts to combat the spread of infectious disease through the maintenance of social distancing and household ‘bubbles’. It argues that the beneficial effects of social and community capital towards fighting the pandemic, such as mutual respect and empathy, which underpins such public health measures as social distancing, the use of personal protective equipment, and lockdowns in the USA, have been undermined as preventive measures because they have been transmogrified to become a salient aspect of the “culture wars” (Peters). In contrast, states that have relatively lower social capital such a China have been able to more effectively arrest transmission of the disease because the government was been able to generate and personify a nationalist response to the virus and thus generate a more robust social consensus regarding the efforts to combat the disease. Social Capital and Culture Wars The response to COVID-19 required individuals, families, communities, and other types of groups to refrain from extensive interaction – to stay in their bubble. In these situations, especially given the asymptomatic nature of many COVID-19 infections and the serious imposition lockdowns and social distancing and isolation, the temptation for individuals to breach public health rules in high. From the perspective of policymakers, the response to fighting COVID-19 is a collective action problem. In studying collective action problems, scholars have paid much attention on the role of social and community capital (Ostrom and Ahn 17-35). Ostrom and Ahn comment that social capital “provides a synthesizing approach to how cultural, social, and institutional aspects of communities of various sizes jointly affect their capacity of dealing with collective-action problems” (24). Social capital is regarded as an evolving social type of cultural trait (Fukuyama; Guiso et al.). Adger argues that social capital “captures the nature of social relations” and “provides an explanation for how individuals use their relationships to other actors in societies for their own and for the collective good” (387). The most frequently used definition of social capital is the one proffered by Putnam who regards it as “features of social organization, such as networks, norms and social trust that facilitate coordination and cooperation for mutual benefit” (Putnam, “Bowling Alone” 65). All these studies suggest that social and community capital has at least two elements: “objective associations” and subjective ties among individuals. Objective associations, or social networks, refer to both formal and informal associations that are formed and engaged in on a voluntary basis by individuals and social groups. Subjective ties or norms, on the other hand, primarily stand for trust and reciprocity (Paxton). High levels of social capital have generally been associated with democratic politics and civil societies whose institutional performance benefits from the coordinated actions and civic culture that has been facilitated by high levels of social capital (Putnam, Democracy 167-9). Alternatively, a “good and fair” state and impartial institutions are important factors in generating and preserving high levels of social capital (Offe 42-87). Yet social capital is not limited to democratic civil societies and research is mixed on whether rising social capital manifests itself in a more vigorous civil society that in turn leads to democratising impulses. Castillo argues that various trust levels for institutions that reinforce submission, hierarchy, and cultural conservatism can be high in authoritarian governments, indicating that high levels of social capital do not necessarily lead to democratic civic societies (Castillo et al.). Roßteutscher concludes after a survey of social capita indicators in authoritarian states that social capital has little effect of democratisation and may in fact reinforce authoritarian rule: in nondemocratic contexts, however, it appears to throw a spanner in the works of democratization. Trust increases the stability of nondemocratic leaderships by generating popular support, by suppressing regime threatening forms of protest activity, and by nourishing undemocratic ideals concerning governance (752). In China, there has been ongoing debate concerning the presence of civil society and the level of social capital found across Chinese society. If one defines civil society as an intermediate associational realm between the state and the family, populated by autonomous organisations which are separate from the state that are formed voluntarily by members of society to protect or extend their interests or values, it is arguable that the PRC had a significant civil society or social capital in the first few decades after its establishment (White). However, most scholars agree that nascent civil society as well as a more salient social and community capital has emerged in China’s reform era. This was evident after the 2008 Sichuan earthquake, where the government welcomed community organising and community-driven donation campaigns for a limited period of time, giving the NGO sector and bottom-up social activism a boost, as evidenced in various policy areas such as disaster relief and rural community development (F. Wu 126; Xu 9). Nevertheless, the CCP and the Chinese state have been effective in maintaining significant control over civil society and autonomous groups without attempting to completely eliminate their autonomy or existence. The dramatic economic and social changes that have occurred since the 1978 Opening have unsurprisingly engendered numerous conflicts across the society. In response, the CCP and State have adjusted political economic policies to meet the changing demands of workers, migrants, the unemployed, minorities, farmers, local artisans, entrepreneurs, and the growing middle class. Often the demands arising from these groups have resulted in policy changes, including compensation. In other circumstances, where these groups remain dissatisfied, the government will tolerate them (ignore them but allow them to continue in the advocacy), or, when the need arises, supress the disaffected groups (F. Wu 2). At the same time, social organisations and other groups in civil society have often “refrained from open and broad contestation against the regime”, thereby gaining the space and autonomy to achieve the objectives (F. Wu 2). Studies of Chinese social or community capital suggest that a form of modern social capital has gradually emerged as Chinese society has become increasingly modernised and liberalised (despite being non-democratic), and that this social capital has begun to play an important role in shaping social and economic lives at the local level. However, this more modern form of social capital, arising from developmental and social changes, competes with traditional social values and social capital, which stresses parochial and particularistic feelings among known individuals while modern social capital emphasises general trust and reciprocal feelings among both known and unknown individuals. The objective element of these traditional values are those government-sanctioned, formal mass organisations such as Communist Youth and the All-China Federation of Women's Associations, where members are obliged to obey the organisation leadership. The predominant subjective values are parochial and particularistic feelings among individuals who know one another, such as guanxi and zongzu (Chen and Lu, 426). The concept of social capital emphasises that the underlying cooperative values found in individuals and groups within a culture are an important factor in solving collective problems. In contrast, the notion of “culture war” focusses on those values and differences that divide social and cultural groups. Barry defines culture wars as increases in volatility, expansion of polarisation, and conflict between those who are passionate about religiously motivated politics, traditional morality, and anti-intellectualism, and…those who embrace progressive politics, cultural openness, and scientific and modernist orientations. (90) The contemporary culture wars across the world manifest opposition by various groups in society who hold divergent worldviews and ideological positions. Proponents of culture war understand various issues as part of a broader set of religious, political, and moral/normative positions invoked in opposition to “elite”, “liberal”, or “left” ideologies. Within this Manichean universe opposition to such issues as climate change, Black Lives Matter, same sex rights, prison reform, gun control, and immigration becomes framed in binary terms, and infused with a moral sensibility (Chapman 8-10). In many disputes, the culture war often devolves into an epistemological dispute about the efficacy of scientific knowledge and authority, or a dispute between “practical” and theoretical knowledge. In this environment, even facts can become partisan narratives. For these “cultural” disputes are often how electoral prospects (generally right-wing) are advanced; “not through policies or promises of a better life, but by fostering a sense of threat, a fantasy that something profoundly pure … is constantly at risk of extinction” (Malik). This “zero-sum” social and policy environment that makes it difficult to compromise and has serious consequences for social stability or government policy, especially in a liberal democratic society. Of course, from the perspective of cultural materialism such a reductionist approach to culture and political and social values is not unexpected. “Culture” is one of the many arenas in which dominant social groups seek to express and reproduce their interests and preferences. “Culture” from this sense is “material” and is ultimately connected to the distribution of power, wealth, and resources in society. As such, the various policy areas that are understood as part of the “culture wars” are another domain where various dominant and subordinate groups and interests engaged in conflict express their values and goals. Yet it is unexpected that despite the pervasiveness of information available to individuals the pool of information consumed by individuals who view the “culture wars” as a touchstone for political behaviour and a narrative to categorise events and facts is relatively closed. This lack of balance has been magnified by social media algorithms, conspiracy-laced talk radio, and a media ecosystem that frames and discusses issues in a manner that elides into an easily understood “culture war” narrative. From this perspective, the groups (generally right-wing or traditionalist) exist within an information bubble that reinforces political, social, and cultural predilections. American and Chinese Reponses to COVID-19 The COVID-19 pandemic first broke out in Wuhan in December 2019. Initially unprepared and unwilling to accept the seriousness of the infection, the Chinese government regrouped from early mistakes and essentially controlled transmission in about three months. This positive outcome has been messaged as an exposition of the superiority of the Chinese governmental system and society both domestically and internationally; a positive, even heroic performance that evidences the populist credentials of the Chinese political leadership and demonstrates national excellence. The recently published White Paper entitled “Fighting COVID-19: China in Action” also summarises China’s “strategic achievement” in the simple language of numbers: in a month, the rising spread was contained; in two months, the daily case increase fell to single digits; and in three months, a “decisive victory” was secured in Wuhan City and Hubei Province (Xinhua). This clear articulation of the positive results has rallied political support. Indeed, a recent survey shows that 89 percent of citizens are satisfied with the government’s information dissemination during the pandemic (C Wu). As part of the effort, the government extensively promoted the provision of “political goods”, such as law and order, national unity and pride, and shared values. For example, severe publishments were introduced for violence against medical professionals and police, producing and selling counterfeit medications, raising commodity prices, spreading ‘rumours’, and being uncooperative with quarantine measures (Xu). Additionally, as an extension the popular anti-corruption campaign, many local political leaders were disciplined or received criminal charges for inappropriate behaviour, abuse of power, and corruption during the pandemic (People.cn, 2 Feb. 2020). Chinese state media also described fighting the virus as a global “competition”. In this competition a nation’s “material power” as well as “mental strength”, that calls for the highest level of nation unity and patriotism, is put to the test. This discourse recalled the global competition in light of the national mythology related to the formation of Chinese nation, the historical “hardship”, and the “heroic Chinese people” (People.cn, 7 Apr. 2020). Moreover, as the threat of infection receded, it was emphasised that China “won this competition” and the Chinese people have demonstrated the “great spirit of China” to the world: a result built upon the “heroism of the whole Party, Army, and Chinese people from all ethnic groups” (People.cn, 7 Apr. 2020). In contrast to the Chinese approach of emphasising national public goods as a justification for fighting the virus, the U.S. Trump Administration used nationalism, deflection, and “culture war” discourse to undermine health responses — an unprecedented response in American public health policy. The seriousness of the disease as well as the statistical evidence of its course through the American population was disputed. The President and various supporters raged against the COVID-19 “hoax”, social distancing, and lockdowns, disparaged public health institutions and advice, and encouraged protesters to “liberate” locked-down states (Russonello). “Our federal overlords say ‘no singing’ and ‘no shouting’ on Thanksgiving”, Representative Paul Gosar, a Republican of Arizona, wrote as he retweeted a Centers for Disease Control list of Thanksgiving safety tips (Weiner). People were encouraged, by way of the White House and Republican leadership, to ignore health regulations and not to comply with social distancing measures and the wearing of masks (Tracy). This encouragement led to threats against proponents of face masks such as Dr Anthony Fauci, one of the nation’s foremost experts on infectious diseases, who required bodyguards because of the many threats on his life. Fauci’s critics — including President Trump — countered Fauci’s promotion of mask wearing by stating accusingly that he once said mask-wearing was not necessary for ordinary people (Kelly). Conspiracy theories as to the safety of vaccinations also grew across the course of the year. As the 2020 election approached, the Administration ramped up efforts to downplay the serious of the virus by identifying it with “the media” and illegitimate “partisan” efforts to undermine the Trump presidency. It also ramped up its criticism of China as the source of the infection. This political self-centeredness undermined state and federal efforts to slow transmission (Shear et al.). At the same time, Trump chided health officials for moving too slowly on vaccine approvals, repeated charges that high infection rates were due to increased testing, and argued that COVID-19 deaths were exaggerated by medical providers for political and financial reasons. These claims were amplified by various conservative media personalities such as Rush Limbaugh, and Sean Hannity and Laura Ingraham of Fox News. The result of this “COVID-19 Denialism” and the alternative narrative of COVID-19 policy told through the lens of culture war has resulted in the United States having the highest number of COVID-19 cases, and the highest number of COVID-19 deaths. At the same time, the underlying social consensus and social capital that have historically assisted in generating positive public health outcomes has been significantly eroded. According to the Pew Research Center, the share of U.S. adults who say public health officials such as those at the Centers for Disease Control and Prevention are doing an excellent or good job responding to the outbreak decreased from 79% in March to 63% in August, with an especially sharp decrease among Republicans (Pew Research Center 2020). Social Capital and COVID-19 From the perspective of social or community capital, it could be expected that the American response to the Pandemic would be more effective than the Chinese response. Historically, the United States has had high levels of social capital, a highly developed public health system, and strong governmental capacity. In contrast, China has a relatively high level of governmental and public health capacity, but the level of social capital has been lower and there is a significant presence of traditional values which emphasise parochial and particularistic values. Moreover, the antecedent institutions of social capital, such as weak and inefficient formal institutions (Batjargal et al.), environmental turbulence and resource scarcity along with the transactional nature of guanxi (gift-giving and information exchange and relationship dependence) militate against finding a more effective social and community response to the public health emergency. Yet China’s response has been significantly more successful than the Unites States’. Paradoxically, the American response under the Trump Administration and the Chinese response both relied on an externalisation of the both the threat and the justifications for their particular response. In the American case, President Trump, while downplaying the seriousness of the virus, consistently called it the “China virus” in an effort to deflect responsibly as well as a means to avert attention away from the public health impacts. As recently as 3 January 2021, Trump tweeted that the number of “China Virus” cases and deaths in the U.S. were “far exaggerated”, while critically citing the Centers for Disease Control and Prevention's methodology: “When in doubt, call it COVID-19. Fake News!” (Bacon). The Chinese Government, meanwhile, has pursued a more aggressive foreign policy across the South China Sea, on the frontier in the Indian sub-continent, and against states such as Australia who have criticised the initial Chinese response to COVID-19. To this international criticism, the government reiterated its sovereign rights and emphasised its “victimhood” in the face of “anti-China” foreign forces. Chinese state media also highlighted China as “victim” of the coronavirus, but also as a target of Western “political manoeuvres” when investigating the beginning stages of the pandemic. The major difference, however, is that public health policy in the United States was superimposed on other more fundamental political and cultural cleavages, and part of this externalisation process included the assignation of “otherness” and demonisation of internal political opponents or characterising political opponents as bent on destroying the United States. This assignation of “otherness” to various internal groups is a crucial element in the culture wars. While this may have been inevitable given the increasingly frayed nature of American society post-2008, such a characterisation has been activity pushed by local, state, and national leadership in the Republican Party and the Trump Administration (Vogel et al.). In such circumstances, minimising health risks and highlighting civil rights concerns due to public health measures, along with assigning blame to the democratic opposition and foreign states such as China, can have a major impact of public health responses. The result has been that social trust beyond the bubble of one’s immediate circle or those who share similar beliefs is seriously compromised — and the collective action problem presented by COVID-19 remains unsolved. Daniel Aldrich’s study of disasters in Japan, India, and US demonstrates that pre-existing high levels of social capital would lead to stronger resilience and better recovery (Aldrich). Social capital helps coordinate resources and facilitate the reconstruction collectively and therefore would lead to better recovery (Alesch et al.). Yet there has not been much research on how the pool of social capital first came about and how a disaster may affect the creation and store of social capital. Rebecca Solnit has examined five major disasters and describes that after these events, survivors would reach out and work together to confront the challenges they face, therefore increasing the social capital in the community (Solnit). However, there are studies that have concluded that major disasters can damage the social fabric in local communities (Peacock et al.). The COVID-19 epidemic does not have the intensity and suddenness of other disasters but has had significant knock-on effects in increasing or decreasing social capital, depending on the institutional and social responses to the pandemic. In China, it appears that the positive social capital effects have been partially subsumed into a more generalised patriotic or nationalist affirmation of the government’s policy response. Unlike civil society responses to earlier crises, such as the 2008 Sichuan earthquake, there is less evidence of widespread community organisation and response to combat the epidemic at its initial stages. This suggests better institutional responses to the crisis by the government, but also a high degree of porosity between civil society and a national “imagined community” represented by the national state. The result has been an increased legitimacy for the Chinese government. Alternatively, in the United States the transformation of COVID-19 public health policy into a culture war issue has seriously impeded efforts to combat the epidemic in the short term by undermining the social consensus and social capital necessary to fight such a pandemic. Trust in American institutions is historically low, and President Trump’s untrue contention that President Biden’s election was due to “fraud” has further undermined the legitimacy of the American government, as evidenced by the attacks directed at Congress in the U.S. capital on 6 January 2021. As such, the lingering effects the pandemic will have on social, economic, and political institutions will likely reinforce the deep cultural and political cleavages and weaken interpersonal networks in American society. Conclusion The COVID-19 pandemic has devastated global public health and impacted deeply on the world economy. Unsurprisingly, given the serious economic, social, and political consequences, different government responses have been highly politicised. Various quarantine and infection case tracking methods have caused concern over state power intruding into private spheres. The usage of face masks, social distancing rules, and intra-state travel restrictions have aroused passionate debate over public health restrictions, individual liberty, and human rights. Yet underlying public health responses grounded in higher levels of social capital enhance the effectiveness of public health measures. In China, a country that has generally been associated with lower social capital, it is likely that the relatively strong policy response to COVID-19 will both enhance feelings of nationalism and Chinese exceptionalism and help create and increase the store of social capital. 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