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

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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 disasters require States to protect individuals from the most devastating consequences of the outbreak.

The International Health Regulations

The obvious companion to the international legal framework on the right to health (as recognized on this blog) are the 2005 International Health Regulations (IHR), a specialised international legal instrument currently binding 196 States. As Gianluca Burci aptly reminded us recently, the IHR contain a number of due diligence obligations in view of the prevention and containment of infectious diseases. Whilst analysing them in detail is beyond the scope of this post, it may be worth recalling at least some of the most relevant ones applying to the COVID-19 outbreak. ‘Classic’ due diligence obligations, in particular, comprise: i) the duty to ‘develop, maintain and strengthen … the capacity to detect, assess, notify and report’ manifestations of diseases or occurrences creating a potential for diseases (Article 5); ii) the duty to ‘develop, strengthen and maintain … the capacity to respond promptly and effectively to public health risks and public health emergencies of international concern’ (Article 13); iii) the duty to take all practicable measures to ensure that entities in charge of international transport and travel ‘comply with the health measures recommended by the WHO and adopted by the State Party, […] inform travellers of the [said] health measures […] and […] permanently keep [means of transport] for which they are responsible free of sources of infection or contamination’ (Article 24); iv) the duty to ‘treat travellers with respect for their dignity, human rights and fundamental freedoms and minimize any discomfort or distress associated with such measures’ (Article 32); and v) the duty to ensure, insofar as practicable, that container and container loading areas for shipping are kept free from sources of infection and contamination (Article 34).

Both the obligations relating to monitoring (Article 5) and response (Article 13) had to be implemented by States parties as soon as possible, and in any case no later than 5 years since the entry into force of the IHR — what for most States, which have been parties since 2007, means the deadline has already passed. Annex 1, Part A to the IHR specifies that those obligations shall be implemented by, inter alia, making sure that: all available essential information is immediately assessed and reported at the appropriate public health levels (§§ 4(b), 5(b) and 6); preliminary control measures are determined and implemented immediately (§§ 6, Public Health Response, sub (a), and 4(c)); a national public health emergency response plan is established, operated and maintained to respond to events that may constitute public emergencies of international concern (§ 6, Public Health Response, sub (g)).

Other due diligence obligations laid down in the IHR include: the duty to assess whether the events described above may potentially constitute a ‘public health emergency of international concern’ and, if so, to notify — efficiently and in any case within 24 hours — the World Health Organization (WHO) of the assessment and of any health measure which the state in question has already adopted in response (Article 6(1)); the duty to continuously share all relevant public health information with the WHO (Article 6(2)), even in case of unusual or unexpected public health events, as may be the case of the COVID-19 outbreak (Article 7); the duty to base the implementation of any health measure on scientific principles, the available scientific evidence and any available guidance, advice or information provided by WHO (Article 43(2)). Significantly, Article 44 establishes a general obligation to collaborate with other States to the extent possible in order to, among other things: detect, assess and respond to public health emergencies; develop, strengthen and maintain public health capacity; and mobilize financial resources.

Protection of Persons in the Event of Disasters

Without going into the details of the international legal framework applying to disasters (see here), it may be helpful to recall at least the rules contained in the ILC’s 2016 Draft Articles on Protection of Persons in the Event of Disasters. The articles may be taken reflect customary international law or (at the very least) its progressive development in the field of risk reduction and disaster response management. The Articles have a relatively broad scope of application. Whilst intuitively we may associate the concept of ‘disaster’ with environmental catastrophes such as a tsunami or a volcanic eruption, nothing in the text of the Articles suggests that an epidemic is beyond their scope, provided that it satisfies the definitional requirements under Article 3(a) of seriously disrupting the functioning of society by resulting in widespread loss of life, great human suffering and distress, mass displacement or large-scale damage, regardless of its natural or man-made source. The International Federation of the Red Cross, for instance, lists epidemics as biological hazards susceptible of being categorized as natural disasters, whether connected to other disasters or independent from them. And so does the Terminology on Disaster Risk Reduction, prepared in 2009 by the UN Office on Disaster Risk Reduction. Disasters are defined as such because of their impact, not their origin. Thus, it seems that the current health crisis generated by the coronavirus disease outbreak falls squarely within the ILC’s definition.

As to the applicable due diligence obligations, Article 9 of the ILC Draft Articles sets forth a duty to ‘reduce the risk of disasters by taking appropriate measures, including through legislation and regulations, to prevent, mitigate, and prepare for disasters’, including ‘the conduct of risk assessments, the collection and dissemination of risk and past loss information, and the installation and operation of early warning systems.’ Action to ensure preparedness, in particular, concerns ‘the capacities needed to efficiently manage all types of emergencies and achieve orderly transitions from response through to sustained recovery […] is based on a sound analysis of disaster risks and good linkages with early warning systems, and includes such activities as contingency planning, stockpiling of equipment and supplies, the development of arrangements for coordination, evacuation and public information’ (UN Terminology definition, partly cited in the ILC Commentary, § 16). The reference to mitigation of disasters in Article 9 signals that the applicability of the provision is not limited to the pre-disaster phase, but continues throughout the situation. Moreover, as the ILC Commentary explains (§ 11), the obligation to take ‘appropriate’ measures implies the need for the effectiveness of such measures.

Each State affected by a disaster has an obligation to ‘ensure the protection of persons and provision of disaster relief assistance in its territory, or in territory under its jurisdiction or control’ (Article 10(1)), and a duty to take all appropriate measures to ensure the protection of external relief personnel, equipment and goods under its jurisdiction (Article 16) — both of which reflect obligations already analysed in the other parts of blog post. In addition, States affected by disasters have a duty to seek assistance when the response necessary to address the disaster manifestly exceeds their capacity (Article 11), and a due diligence obligation to take the necessary measures under national law to facilitate the prompt and effective provision of external assistance (Article 15).

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