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

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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 rules of general international law and international human rights law. Part II focuses on the International Health Regulations and the international rules applicable to the protection of persons in the event of disasters. Part III assesses some reported government measures to address the crisis in light of the analysed legal framework and suggests a way ahead.

The COVID-19 outbreak continues to evolve rapidly around the world with hundreds of lives claimed every single day. Although the measures imposed to control the spread of the disease have varied across countries, it is evident that they have and will continue to hit us hard, whether it is the psychological toll of social distancing and self-isolation, or the unprecedented economic impact of this health crisis. But while the pandemic is still alive and going, debates have so far focussed on an ex post assessment of the causes of the disease or its consequences. In particular, from all quarters of the world, there has been an urge to name and shame those responsible for the start of the outbreak. Several governments and NGOs have blamed China for failing to control the trade in wild animals that could host the virus, as well as for covering up initial warnings of the disease in Wuhan. The Chinese Foreign Minister, for his part, has claimed that ‘it might be US army who brought the epidemic to Wuhan’, while the Chinese Government is now worried that foreigners and repatriated Chinese nationals may import the virus back to China (see here). Likewise, some groups have been critical of and reluctant to abide by the so-called ‘draconian’ measures adopted by governments in an effort to stop the spread of COVID-19, such as country and city lockdowns, mandatory quarantines, social distancing and mass surveillance. This has rightly prompted some to evaluate the lawfulness of those measures in light of international human rights law (see here, here, here and here) and the law of state responsibility (see here and here).

Yet, as we find ourselves in the midst of a global health crisis whose consequences are still unfolding, we also need to ask ourselves (and answer) other fundamental questions. What must States do right now to stop or mitigate this outbreak, as well as to prevent it from coming back in the future? Conspiracy theories about the origins of the virus apart, have States failed to prevent or halt the spread of the disease once they knew about its risks? Are they failing to do that now? What lessons can we learn from those failures to build resilience and, once and for all, fight this and other outbreaks?

These questions require us to revisit a fundamental principle of international law: due diligence. Specifically, they require us to assess the extent to which States are required to act with due diligence to halt and mitigate the spread of COVID-19, as well as to prevent further losses and new outbreaks. To answer those questions, the first part of this post will lay down the applicable legal framework on due diligence under general international law and international human rights law. In its second part, the post will look at due diligence obligations within the specific World Health Organization framework and the international rules on the prevention of disasters. Finally, Part III will preliminarily assess the extent to which some of the measures adopted by States to respond to the pandemic may be deemed to be consistent with those obligations. At this stage, our aim is not to allocate losses or responsibilities. This should come later, after this emergency period is over and there is time to duly investigate who did what and to name names. Instead, we seek to draw some lessons from the errors which have potentially been committed so far and to urge States to do more now to stop the outbreak and prevent more damage, as they are required to do under international law.

 Due diligence and the legal framework applicable to the COVID-19 outbreak

‘Due diligence’ is the expression usually employed to designate a standard of conduct measuring whether a state has employed its best efforts to address certain risks, threats or harms. In short, it is a standard of good governance, assessing whether a state has done what was reasonably expected of it when responding to a harm or danger. This standard is in-built in a series of rules of conventional and customary international law applying generally to inter-state relations or specifically to fields such as the environment, human rights, international humanitarian law, cyberspace and, most notably, global public health. These rules typically impose obligations of conduct requiring States to prevent, stop and/or redress a range of internal or transboundary harms, or the risk thereof. But some are coupled with procedural obligations of result, such as risk assessments and information-sharing. Importantly, due diligence is a flexible standard, varying according to States’ financial, human and technical capabilities and the severity of the situation. In particular, the higher the risk of a certain harm and the graver the potential impact of the related situation, the greater is the effort required of States to prevent, mitigate or stop it from occurring. But lack of capacity is no excuse, as States must have in place the minimal governmental infrastructure enabling them to prevent, halt and/or redress harms when required. Importantly, any measure that a state adopts to discharge its due diligence obligations must be consistent with international human rights law and other rules of international law, such as the principle of non-intervention and the prohibition on the use of force. Among others, five different due diligence duties are potentially relevant to the COVID-19 outbreak: a) the no-harm principle, b) the duty to protect the right to life; c) the duty to protect the right to health; d) several obligations under the 2005 International Health Regulations (IHR) (see generally here) and e) the duties to protect persons in the event of disasters. We will briefly discuss those in turn.

The no-harm principle

The no-harm principle has been articulated in seminal cases such as Alabama, Trail Smelter, Nuclear Weapons and Pulp Mills, as well as in the work of the ILC on the 2001 Draft Articles on the Prevention of Transboundary Harm (‘Daft Articles on Prevention’). It requires States to prevent, stop and redress significant transboundary harm to other States or their populations originating from or crossing their territory or any other area under their jurisdiction or control (see Draft Articles on Prevention, Article 2 and Commentary). As other due diligence duties, the no-harm principle does not require States to actually prevent or stop the harm from happening. Instead, it requires them to attempt to do so, or to minimise the risk thereof, to the best of their abilities (see Draft Articles on Prevention, at 153-154). The obligation arises from the moment States know or should have known about the harm or the risk thereof (see Draft Articles on Prevention, at 155, Commentary to Article 3, para 18).

Some measures that may be appropriate to discharge this duty include continuous monitoring or supervision, risk assessments, legislation, administrative policies and regulation, enforcement action and, most notably, international cooperation (see Draft Articles on Prevention, at 154-155, Commentary to Article 3, paras 10-11; see also Articles 4 and 7). To the extent States can employ these measures, they must do so. The no-harm principle requires States to act regardless of who is responsible for the harm: a State or a non-State entity. It covers both unlawful and lawful activities causing harm, such as an accident or a natural disaster. In this way, it differs from the so-called Corfu Channel principle, requiring States ‘not to allow knowingly its territory to be used for acts contrary to the rights of other States’, which presupposes an internationally wrongful act (see Corfu Channel Merits Judgment, at 22). Crucially, although the no-harm principle has gained most traction in the environmental realm, where there has been a growing emphasis on prevention and precaution, it applies generally in international law (see Draft Articles on Prevention, at 148-149 and ILA Study Group on Due Diligence in International Law, Second Report, at 6). Accordingly, States have the duty to prevent, halt and redress any significant transboundary harm emanating from their territories, regardless of who caused it or the lawfulness of the activity generating it. According to the ILC, the qualifier ‘significant’ implies ‘something more than “detectable” but need not be at the level of “serious” or “substantial”’. It encompasses both ‘a low probability of causing disastrous transboundary harm or a high probability of causing significant transboundary harm.’ (see Draft Articles on Prevention, at 152)

The COVID-19 outbreak ticks all those boxes: it is now scientifically proven and widely known that it causes widespread and disastrous health consequences which may lead to death beyond national borders. Thus, all States, regardless of whether the outbreak originated in their territory, have the obligation to exercise their best efforts, to the extent permitted by their capabilities, to stop the spread of coronavirus to other countries and prevent further outbreaks.

International Human Rights Law

It is no surprise that a crucial legal framework for assessing States’ responses to an epidemic is international human rights law: after all, epidemics show their tangible effect on human beings. States not only have the ontological function to protect their citizens from entities or events that may harm them but also a binding legal duty to do so, codified in international treaties and crystallized in customary international law. In particular, it is self-evident that individuals’ right to life and their right to health are most immediately endangered by the existence of an epidemic like the COVID-19 one.

The Right to Life

In the words of the International Covenant on Civil and Political Rights, ‘[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ Whilst violations of this right are most commonly associated with the arbitrary use of lethal force by the military or law enforcement authorities, these instances do not exhaust the range of possible violations of the right. States’ acts and omissions with respect to health care policy may well constitute violations of the right to life (see e.g. ECtHR, Hristozov et al. v Bulgaria, § 106). States have a positive (‘due diligence’) duty to protect and ensure the right to life, i.e. adopt the measures necessary to safeguard the life of individuals under their jurisdiction, and thus to do all they can to prevent such individuals’ life from being ‘avoidably put at risk’ (ECtHR, L.C.B. v UK, § 36; Brincat et al. v Malta, §§ 79-80; cf. also IACtHR, Ximenes-Lopes v Brazil, §§ 89-90). The Human Rights Committee, more broadly, underlined that States’ duty to protect life requires them to adopt ‘appropriate measures to address the general conditions in society that may give rise to direct threats to life’, including life-threatening diseases (General Comment n° 36, § 26; see also General Comment n° 6, § 5, explicitly referring to the ‘elimination’ of ‘epidemics’). Measures of this kind include not only guaranteeing access to food, water, medicines and other objects indispensable to survival, but also providing for effective emergency health services, engaging in emergency response operations and organizing contingency and emergency management plans (General Comment n° 36, § 26), or the adoption of a regulatory framework for hospitals and other health-related structures which is capable of ensuring the protection of patients’ lives (ECtHR, G.N. et al. v Italy, § 79-80).

Thus, the positive duty to protect human life involves advance planning and immediate responses to prevent, stop or at the very least mitigate the spread of life-threatening diseases like COVID-19.

The Right to Health

Even more evident is the relevance of human being’s right to health in the case of an epidemic (see e.g. the detailed analysis here) such as the COVID-19 pandemic. According to Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), ‘States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ Article 12(2) makes explicit what was already possible to read into the preceding provision, namely that ‘[t]he steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for […] (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.’ With similar language, the right to health is recognized inter alia in Article 11 of the European Social Charter, in Article 16 of the African Charter of Human and Peoples’ Rights and in Article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights. A number of due diligence obligations can be derived from this legal framework.

Most notably, to comply with these provisions, the Committee on Economic, Social and Cultural Rights (CESCR) explains that States are obliged to establish ‘prevention and education programmes for behaviour-related health concerns’ (General Comment n° 14, § 16), which could reasonably include educational, professional and social activities which carry a greater risk of transmission of COVID-19. In other words, adopting social distancing policies, reducing working hours etc. are measures required not only by wisdom and medical necessity, but by law — in order to protect individuals’ health from the risk posed by the contact with infected (even if asymptomatic) persons. Although the duty to ensure the right to health is one of ‘progressive realization’, it presupposes, at the very least, an obligation to behave proactively and to put in place an effective system of urgent medical care which could cope with life-threatening situations such as an epidemic of the proportions we are experiencing now (ibid., § 16).

In addition, according to the CESCR, States have an obligation to control diseases, both individually and through international cooperation, by acting in order to, among other things, ‘make available relevant technologies, using and improving epidemiological surveillance and data collection on a disaggregated basis, the implementation or enhancement of immunization programmes and other strategies of infectious disease control’ (ibid., § 16). COVID-19 warranted compliance with such obligations from its very early stages, and States which do not promptly share relevant information and technology may be in breach of their international obligations — in the same way as those that do not expeditiously adopted policies aimed at slowing down the outbreak. Delays in adopting adequate containment measures may have also caused unacceptable and unlawful discrimination against those most vulnerable to the disease, like the elderly and persons with disabilities, whose rights may have effectively been sacrificed on the altar of the ‘business-as-usual’ attitude. In addition, ‘censoring, withholding or intentionally misrepresenting health-related information’ may also amount to a violation of the duty to protect the right to health (ibid., § 34).

Whilst the realisation of the right to health is subject to the technical and economic capabilities of each state, this is not an excuse for non-compliance. According to Art 2(1) ICESCR, States must take deliberate, concrete and targeted steps towards the full realization of the right to health (General Comment n° 14, § 30), including for cases like an epidemic. The core content of the right encompasses, inter alia, the duty to ‘adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population’ (ibid., § 43(f)), and the duty to ‘take measures to prevent, treat and control epidemic and endemic diseases’ (ibid., § 44(c)). States which are in a position to assist other States who struggle to meet their core obligations have, in turn, an obligation to render such assistance (ibid., § 45).

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Tony Cabus says

March 25, 2020

I think due diligence will hardly achieve results. First, due diligence always use a standard of reference in order to assess the efforts of the State. It will be hard to evidence a failure of these standards since ALL States are struggling right now. Second, which State will argue a lack of due diligence against who? Since the virus is spreading from everywhere it will be hard to make a link between an "injury" and the due diligence of X States...So in that case it leaves China as the source of the epidemy but again, China arguably dealt with the virus efficiently and took draconian measures. All in all, I think the best legal answer to the contagion is domestic. Citizens can take actions against their government for their lack of diligence (slow response, non-transparency).