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 prior to and during the early days of the crisis, according to available media and official reports.

As we have shown in Parts I and II of the post, international law provides for at least five different sets of ‘due diligence’ obligations which require States to take all feasible measures to contain the COVID-19 outbreak and prevent the virus from spreading even further. These are: a) the no-harm principle, which imposes on all States a duty to prevent, halt and redress the outbreak to the extent that it risks causing significant transboundary harm in the territory of other States; b) the obligation to protect and ensure the right to life, which lays down a positive duty on States to prevent and eliminate life-threatening epidemics within their jurisdiction; c) the duty to protect and fulfil the right to health, which requires, as a minimum, the implementation of measures to prepare for and respond to public health emergencies in areas under a State’s jurisdiction; d) the detailed and specific due diligence duties laid down in the World Health Organization (WHO)’s International Health Regulations (IHR), in particular with respect to monitoring and response capacity-building; and e) the various duties to protect persons in the event of disasters, including biological hazards such as a viral disease outbreak, by ensuring the preparedness and effectiveness of a State’s emergency response systems and contingency plans. Yet it is questionable whether, from the start of the COVID-19 outbreak, those obligations have been fully observed by States.

To be clear, the said due diligence rules do not require all States to follow the exact same approach when countering the outbreak. Compliance with such rules depends on States’ capacity to adopt the necessary and appropriate measures in light of their available technical, human and economic resources. In short, due diligence obligations do not require States to do the impossible. They retain a measure of discretion in deciding what measures to adopt and implement among those that are feasible in the circumstances.

Likewise, compliance with any due diligence duty ought to be measured by the knowledge that States have of the relevant risks at the time they arise, based on available scientific evidence. Furthermore, the pressures of the moment and the complexity of the situation often make it hard to identify to a nicety the necessary course of action. In fact, in the context of a public health crisis, health concerns must be balanced against possibly conflicting interests, such as economic stability and development, social welfare and certain fundamental rights and freedoms. To the extent that these are interests protected by international law itself, there is no question that States must carefully consider the impact of emergency health measures on them. Due diligence obligations, with their inherently flexible nature, provide room for such considerations. Nevertheless, as the World Health Organization (WHO) noted, while many countries understandably lack the capacity and resources to respond promptly and effectively to the outbreak, ‘others are struggling with a lack of resolve’.

The first set of due diligence obligations which may have not been complied with are the duties of surveillance, monitoring and notification which are essential to an effective emergency response. For instance, it has been contended that China may have taken too long to notify the WHO about the outbreak after the first cases where identified in its territory, i.e. after it acquired ‘evidence of an unexpected or unusual public health event within its territory which may constitute a public health emergency of international concern’ (cf. Articles 6 and 7, IHR). China notified the local WHO Country Office of the outbreak on 31 December 2019, whilst the relevant information was forwarded to the WHO main headquarters on 3 January 2020. Irrespective of any alleged attempts to cover up the disease or censor the spread of information, there are reports that local doctors had warned public authorities of a surge of unknown ‘viral pneumonia’ cases in mid-December or even late November. If those reports prove to be true, the said IHR provisions may not have been followed. As explained in Part II of this post, they require States to notify and share information about public health emergencies within 24 hours, regardless of their origin or source, precisely to contain the spread of contagious diseases.

Likewise, given the highly contagious nature of COVID-19 and the ease with which individuals travel worldwide, the no-harm principle required any State experiencing cases on its territory, including but not limited to China, to directly notify and cooperate with other States from the moment in which there were signs that the virus was spreading rapidly by human transmission — what could have happened as early as late December. Yet, despite the available information on the disease, soon the virus spread to Thailand, Japan, South Korea and subsequently other parts of the world.

Secondly, the due diligence duties to protect the rights to life and health, along with those outlined by the IHR and by the rules applicable in the event of disasters, require States to develop capacity and preparedness to provide a prompt and effective response to a public health emergency like the one we are facing. The example of China is telling: valuable lessons on preparedness and early responses could have been drawn from the country’s experience with previous epidemics, like SARS and H1N1. As the WHO itself noted in its latest report on COVID-19:

While the scale and impact of China’s COVID-19 operation has been remarkable, it has also highlighted areas for improvement in public health emergency response capacity. These include overcoming any obstacles to act immediately on early alerts, to massively scale-up capacity for isolation and care, to optimize the protection of frontline health care workers in all settings, to enhance collaborative action on priority gaps in knowledge and tools, and to more clearly communicate key data and developments internationally.

But it is not only China that could have done more: other States around the world ought to act diligently when preparing for and responding to this outbreak. In fact, already in February, the WHO urged all States that ‘uncompromising and rigorous’ measures such as ‘extremely proactive surveillance to immediately detect cases, very rapid diagnosis and immediate case isolation, rigorous tracking and quarantine of close contacts, and an exceptionally high degree of population understanding and acceptance’ were the ‘only measures that are currently proven to interrupt or minimize transmission chains in humans’. However, very few States seem to have followed this recommendation, whereas many have the technical, human and economic capacity to do so. In the same vein, when the WHO declared the COVID-19 outbreak a pandemic on 11 March 2020, it expressed serious concerns about its ‘alarming levels of spread and severity, and […] the alarming levels of inaction’. Once again, it called upon States ‘to take urgent and aggressive action’ and asked them ‘to activate and scale up [their] emergency response mechanisms’. Quite explicitly, the organisation’s Director-General warned all States that ‘the alarm bell’ was rung ‘loud and clear’.

Despite those specific warnings and the comprehensive legal framework on due diligence applicable to the outbreak, there are concerning reports from all corners of the world. For instance, it appears that, in the United States (US), thousands of suspected cases of COVID-19 remain untested, even though the WHO has stressed several times the need for effective testing. While the first case in the country was confirmed on 21 January 2020, it was only on 21 March that the US Food and Drug Administration (FDA) gave emergency approval to a test that could diagnose COVID-19 more quickly. Without prejudice to the time normally needed to develop an adequate testing capacity, one may question whether the timing of this response is consistent with the rapid emergency action demanded by the duty to protect the rights to life and health, the IHR and the rules applicable in the event of disasters.

In Italy, where the death toll has already surpassed China’s, it took the government several weeks after the first cases were identified to recommend measures of social distancing, quarantine and travel restrictions (for a comprehensive coverage of the situation in Italy, see here). It was only when the number of cases had spiralled to over fifteen thousand and the death toll to over a thousand that the Italian Prime Minister declared a national emergency and a country-wide lockdown. Considering the potential impact of those measures on the national economy and on social life, some time was needed to evaluate their effectiveness and minimise their impact. However, the example of China and other States that had already been heavily affected by the outbreak — and had more or less successfully countered it — could perhaps have been followed more promptly, as advised by the WHO.

A similar delay to act may be observed in other countries. One may query whether some States have not seriously downplayed the gravity of the outbreak and the disease. For instance, in the UK, the government was initially hesitant to follow the WHO’s advice to adopt more rigorous measures, wary as it was of their significant economic impact. It was only following serious criticism from the opposition, the former health secretary and the scientific community (see here and here), that the UK changed its approach and started to gradually ‘recommend’ more impactful measures, such as working from home, social distancing and social gatherings. The death toll had already surpassed 200 when schools and some London underground stations were closed. Restaurants, cafés, pubs, and ‘leisure centres’ have only been officially required to shut down on Friday 20 March, before the government eventually adopted a full lockdown strategy on 23 March. Meanwhile, until recently, medical staff has reported significant shortages of basic protective equipment, such as masks, gloves, goggles and surgical gowns. Insofar as the protection of medical staff is essential to stopping the spread of the disease, due diligence calls for the provision of sufficient protective equipment. 

Thirdly and lastly, the outlined duties of due diligence warrant more international cooperation, especially as the spread of the disease does not follow territorial boundaries. In particular, acknowledging how the effectiveness of responses is resource-dependent, State authorities must seek international assistance by the time they realise that the containment of the disease manifestly exceeds their national capacity (see, e.g., here and here), in accordance e.g. with Article 11 of the Draft Articles on Protection of Persons in the Event of Disasters. In the words of former UK Prime Minister Gordon Brown:

This is a global problem, it’s not just a national problem. It needs global action and not simply national action. We’ve had too much of America first, India first, China first. We are finding that we depend on each other, whether we like it or not. We’ve had too much of this populist nationalism. […] [P]eople have got to put aside the differences they have and international cooperation is absolutely vital to this.

Conclusion

With origins dating back to the 19^th century, due diligence remains a fundamental principle of international law. It is a standard of conduct that is flexible enough to require from States realistic steps to prevent, halt and redress significant harms, in particular those affecting the international community as a whole. The message of international law is clear: prevention is better than cure, and States must do their best to achieve that, including by cooperating with each other, especially in global crises of the scale we are facing. Thus, to the extent that they can, States must do more to stop this outbreak and prevent it from spreading further and reappearing in recovered areas. In particular, according to the IHR, States should continue to closely monitor the development of the disease with efficient testing and to prepare for the worst-case scenario. This requires substantial efforts to develop a vaccine, to ensure that hospitals are adequately supplied with ventilators and other essential medical equipment, to ensure the population avoids non-essential contacts, and that the most vulnerable are appropriately protected. Although a great deal of irreversible damage to the functioning of our societies has already been done, and only time will tell if and how it will be possible to redress it, we hope that lives and livelihoods were not lost in vain. May we learn from our mistakes and act now, to avert bigger losses tomorrow.