Amit Birdi
The COVID-19 outbreak continues to evolve frantically around the world with hundreds of lives claimed each day. Though the measures employed to abate the spread have varied across countries, it is obvious 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 catastrophe. While the pandemic is still on a surge, debates have so far focused on an ex-post assessment of the causes or its consequences. Globally, there has been an urge to name and shame those responsible for the outbreak. Governments and NGOs across the world have accused China of negligence in regulating the trade of wild animals which eventually led to the outbreak, as well as for covering up initial warnings of the disease in Wuhan. The Chinese Foreign Minister, in response, 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. Likewise, some groups have been critical of the so-called ‘draconian’ measures adopted by governments to stop the spread of COVID-19, such as country and city lockdowns, mandatory quarantines, social distancing, and mass surveillance. Very recently, the United States witnessed an outburst wherein about 2,500 protestors gathered in Washington to express their anguish over the decision of the administration to further extend lockdown. This has prompted the global community to study and evaluate the effectiveness of international law in determining the obligation and responsibilities of the state actors in pandemic situations.
The legal framework for controlling highly infectious diseases is spread across multiple regimes internationally. The regime for allocating responsibility is located under the Law of Responsibility, which provides that states that violate international law have “an obligation to make full reparation for the injury caused by the internationally wrong act.” Global public health law is the most specific field regulating infectious diseases and it sets out the primary obligations of states in the International Health Regulations (2005). The Law of Responsibility necessitates us to revisit a fundamental principle of international law: Due Diligence. Particularly, it requires us to examine the extent to which States are required to act with due diligence in arresting and mitigating the spread of COVID-19, as well as to prevent further losses and new outbreaks.
‘Due diligence’ is the expression employed to assign a standard of conduct measuring whether a state has mobilized its best efforts to address certain risks, threats, or harms. In short, it is a standard of good governance, assessing whether state action is reasonable and within the contours of internationally accepted norms while responding to harm or danger. This standard constitutes the essence of various International Conventions and Customary International Law applying generally to inter-state dealings or specifically to fields such as the International Humanitarian Law, Environmental Law, Cyberspace, Human Rights Law, and, most notably, Global Public Health.
In particular, the higher the risk of certain harm and the graver the potential impact of the related situation, the greater is the effort and diligence required from States to prevent, mitigate or stop it from occurring. However, lack of competence is no excuse, as States ought to have in place the minimal governmental infrastructure enabling them to prevent, halt and/or redress harms when required. Also, any measure that a state employs to discharge its due diligence obligations must be coherent with Human Rights Law and other rules of International Law, such as the principle of Non-Intervention and the prohibition on the use of force. Technically four different due diligence pre-requisites 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 and d) Several Obligations under the International Health Regulations, 2005 (IHR).
The No-Harm Principle
The no-harm principle has been enunciated in seminal cases such as Alabama, Trail Smelter, Nuclear Weapons, and Pulp Mills, as well as in the work of the International Law Commission on the 2001 Draft Articles on the Prevention of Transboundary Harm. The principle essentially mandates 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. The obligation arises from the moment States know or should have known about the harm or the risk thereof.
(To be continued)