Prevent, Respond, Cooperate: States’ Due Diligence Duties vis-à-vis the COVID-19 Pandemic

Abstract

While disease outbreaks remain to a certain extent unforeseeable, international law provides a comprehensive legal framework requiring States to prevent their harmful consequences, effectively respond to ensuing health emergencies, and cooperate in achieving those aims. This contribution shows that, within this framework, many rules take the form of 'due diligence' obligations. Obligations of due diligence, albeit inherently flexible to accommodate different capabilities and circumstances, are binding on States. They impose a duty to act according to a standard of 'good governance': a State must employ its best efforts to realise certain common goals. At least five key sets of rules establishing due diligence duties are relevant to the Covid-19 outbreak: a) the 'no-harm' principle; b) international disaster law; c) the International Health Regulations; d) international human rights law; and e) international humanitarian law. We preliminarily identify some of the actions required from States to prevent new outbreaks and respond to the pandemic, whilst assessing compliance with applicable rules. We conclude that hard lessons learned during the current pandemic should spur more decisive action to prevent and address future public health emergencies. KeywordsDue diligence -public health emergency -epidemics -prevention -mitigation -cooperationinternational human rights law -international humanitarian law -international health regulations -international disaster law 112 cf ICRC Study on CIHL (n 43) rule 55; GC IV art 55, for occupying powers. 113 General Comment No. 14 (n 40) para 45. 114 'Speech by President von der Leyen at the European Parliament Plenary on the EU coordinated action to combat the coronavirus pandemic and its consequences' (European Commission,

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