EJIL Analysis

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Epidemic Sovereignty? Contesting investment treaty claims arising from coronavirus measures

  Though nothing can be immortall, which mortals make; yet, if men had the use of reason they pretend to, their Common-wealths might be secured, at least, from perishing by internall diseases. Hobbes, Leviathan (1651). My morning radio plays a hit parade of measures adopted by various States to combat the pandemic spread of coronavirus disease (COVID-19), from Italian lockdown to British equivocation. Our collective infirmity has exposed the dependence of supply chains and financial forecasts on the predictability of sovereign responses to emergent threats. Policies so far seem disjointed, parochial, ad hoc. Economic loss is escalating in the scramble to save lives. When the dust settles, some foreign investors could call upon their host State to cough up. Indeed, allegedly arbitrary or disproportionate measures, albeit in the public interest, provide regular grist for the mill of investment treaty arbitration. In the debate whether investment treaties create a chilling effect, there is an assumed ‘clash of cultures’ between public health and investment arbitration. By…

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Calibrating Human Rights and Necessity in a Global Public Health Emergency: Revive the UN OHCHR’s ICESCR Compliance Criteria

COVID-19 has reached every continent, every region, and almost all countries in the world. Most of us are either in quarantine, sheltering in place, in hospitals fighting for lives, in the front lines of depleting health care resources in the developed and developing world, or attempting some semblance of life (e.g. transplanting…

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Part III: Due Diligence and COVID-19: States’ Duties to Prevent and Halt the Coronavirus Outbreak

  In Parts I and II of this blog post, we presented some of the most relevant international obligations to prevent and halt the COVID-19 outbreak, and to mitigate its disastrous effects on peoples’ lives and the functioning of our society. Part III, in their light, assesses some of the measures States have adopted…

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Part II: Due Diligence and COVID-19: States’ Duties to Prevent and Halt the Coronavirus Outbreak

In Part I of this post, we discussed the extent to which the no-harm principle and the rights to life and health require States to prevent and stop the COVID-19 outbreak. In this second part, we will assess the extent to which the International Health Regulations, as well as the obligations arising in the event of…

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Part I: Due Diligence and COVID-19: States’ Duties to Prevent and Halt the Coronavirus Outbreak

This is a 3-Part post on the international legal framework relevant to the prevention of, response to and mitigation of the global public health crisis engendered by the outbreak of COVID-19 — the disease caused by the novel coronavirus. Part I introduces the concept of due diligence which characterises the said legal framework and looks at relevant…

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