 Can China or any other state be held responsible under international law for a failure to exercise due diligence in managing the COVID-19 virus? This question lays bare both the importance and weakness of due diligence. Probably some states, beginning with China where the virus was first documented, have been violating their due diligence obligations enshrined in the international health regulations. To all appearances, China has informed the World Health Organization a bit late about the virus and some governments have reacted slowly and hesitantly or even counter-productively. But it is highly unlikely that interstate responsibility will be activated. The reasons are not only strategic considerations of governments but also the complexity of assessing the damage caused and the softness and vagueness of the due diligence standard which hardly lends itself to create hard state responsibility. I congratulate the organizers for the choice of the overall topic of this workshop, which could not be more timely. Although the COVID virus forced you to transform the workshop into a webinar, it underscored the pertinence of the theme in a dramatic way. And I am happy to get the opportunity to talk about due diligence as one important aspect of your theme of global risks. And I am all the more pleased to do this because Professor Horfew Minalis is one of the contributors to a book that I co-edited on due diligence across international law. Horfew wrote a chapter sketching out a fine-grained cartography of due diligence in environmental law, starting with the Alabama claims arbitration of 1872 in the law of neutrality. Not to contemporary international environmental law, a topic that few know better than him. The book on due diligence will appear with Oxford University Press later this year, and my talk is based on the introductory and concluding chapters, which I co-offer with my colleagues and co-editors of the book of our Max Planck research fellow group, Heike Krieger and Leo Kreuzer, from Freie Universität Berlin, and I thank them for allowing me to use our material. Technically, I was not capable of producing a show with slides and myself standing in front of the slides, so I don't have them, but I have a handout, which I hope that this was distributed to you. And the handout also contains an outline of the talk and references to the legal material I signed, and also to the key literature on due diligence. Let's start with the meaning of the term diligence, which comes from diligence, which means circumspection. The opposite is negligence. Diligence and due diligence is always a qualifier of some other obligation. One could say it is therefore always ancillary. It's a modality of doing something. What does it require? We could distinguish first procedural obligations, for example, obligations to notify and report, for example, the OECD common tax reporting standards. Or obligations to inform, to consult, to cooperate, to conduct a risk assessment. For example, environmental impact assessment. But also human rights impacts assessment as a newer tool. Obligations to monitor, to warn, to publicly explain, or to take feasible precautions are all procedural due diligence obligations. Second, due diligence obligations arise with the regard to a state's institutional capacity. For example, taking legislative or administrative safeguard measures. For example, sanctioning violations by enacting criminal law provisions. Or establishing judicial procedures for persons in administrative processes. Or to establish monitoring mechanisms. For example, periodic inspection measures with regard to hazardous activities. Due diligence, inevitably has a normative coloring. What is due is at least partly defined by other spheres, such as business practice or morals. But this is not different from good faith or legitimate expectations or overall public to mention some other concepts. So we could say that due diligence is a bridge principle between law and other spheres of normativity. Where does due diligence appear in international law? First, in the law of neutrality, in the law of aliens. And in post-1945, so the actual modern international law, due diligence is most pervasive in environmental law. Numerous environmental conventions, starting in 1972, embody obligations to take appropriate measures. This is implicit due diligence, what could say. I mentioned some of these conventions on the handout on page two. Environmental law is still the main field of application. There are also newer fields of application of due diligence. For example, in human rights with regard to private actors, violent men and bad business actors. There is the Istanbul Convention on Domestic Violence of 2011. And the open-ended working group within the Human Rights Council produced a revised draft on business and human rights. And in this draft treaty, they set out that the state parties should adopt measures necessary to ensure that all persons conducting business activities, including those of transnational character, undertake human rights due diligence. So this is also a dual due diligence scheme. The parties of the treaty must be diligent in imposing due diligence on business. Both texts are also mentioned on the handout. In younger subfields of international law, due diligence is also rampant. For example, the World Bank requires due diligence by its clients and is arguably also itself committed to due diligence in project finance. In cyber law, in anti-terrorism law, in tax law, and in health law, in all these legal fields, we find due diligence. Due diligence is always about managing the risk. It's about risks emanating from private actors, ranging from pirates over terrorists to violent husbands to business, or about risks emanating from nature, ranging from radioactive waves to virus. Due diligence concerns notably risk management in the face of lacking knowledge and our evidence, in the face of unclear causalities, and in the face of numerous contributing factors and actors. Due diligence is, legally speaking, a companion of the precautionary principle. This brings us to the legal functions of due diligence. The traditional function of due diligence was to restrict the responsibility or accountability of states in the context of the no harm rule. Traditional international law obliges states to act diligently, so as not to cause transporgery harm. The leading case for this is, as you know, the Trial Smelter Award of 1941. Even if this award did not use the word due diligence, due diligence was its undercurrent. The word due diligence was already employed in other older arbitral awards in the law of neutrality and the law of ailments. The classic no harm rule is breached only when contact is negligence, thus lacking due diligence, and when the unwanted results are present. This is also reflected in the clause of Article 143 of the ILC Article 1 state responsibility. Inversely, harm alone is not sufficient to trigger state responsibility. Even if harm occurs, but when the state was diligent, then the state will hardly have liable. So, the due diligence standard restricts responsibility. The classic function of due diligence to restrict state responsibility is visible in various other fields of international law, also where humans are the risks. States must take appropriate measures to protect premises of a diplomatic mission from protesters. States must take appropriate measures to prevent terrorist actions burning from its territory. International anti-corruption treaties and money laundering law have introduced a cascading system of obligations of supervision which requires state parties to diligently oversee legal entities which in turn have to oversee associated natural and legal persons, same in tax law. Finally, due diligence against risky humans applies an IHL, International Humanitarian Law, and an International Criminal Law. For example, the International Committee of the Red Cross interprets common article 1 of the Geneva Conventions, the obligation to respect and ensure respect, as I quote the ICRC, a general duty of due diligence. But, this is my next point, due diligence does not only serve to limit responsibility, but also, at some places, to create responsibility. Both in the Paltmills case and in Costa Rica versus Nicaragua and the Calder clan, the ICJ seem to keep apart two different rules. On the one hand, the harm prevention duty, on the other hand, a duty to diligently not to cause harm. I realize that you'll hear an expert on this topic, Dr. Leslie Anne Durinch-Powell in, so I'll be short on prevention. Already in Paltmills, the ICJ help at two types of duties, the substantive duties to manage soil and woodland so as not to impair water quality and the like, and procedural duties to notify plants, to warn, and so on, are independent from each other and can be independently breached or complied with. And in Costa Rica versus Nicaragua, the ICJ help the states responsible for violating their procedural obligations but not for violating the substantive duty not to cause harm because in the end, no significant transpondery harm had occurred. A lack of diligence was not sufficient for finding a violation of the traditional in your harm rule. I submit that the detachment of the due diligence obligation from the result, in other words, the complete proceduralization of the obligation is adequate only in specific constellations. Adequacy hinges, I claim, on the possibility to identify and pinpoint the result and whether this result is good or bad. If the result is easy to identify, then the procedural and preventive obligations should not be completely detached from the result. For example, with regard to the obligation to prevent genocide, the ICJ had held that a state can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. Conditioning the breach of the obligation to prevent on the occurrence of the bad event is adequate here given that it is fairly easy to determine factually whether the event, the genocide, did take place or not. If, however, the due diligence obligation consists in reaching or maintaining a complex situation which is difficult to quantify, for example, a certain level of education or a low level of corruption and which moreover extends over time and is not a spot on event, then the success is difficult to measure. Here, the preventive and other procedural obligations, for example, under anti-corruption law or under human rights law, should indeed be detached from the result. This then means, firstly, that a state violates its obligations if it fails to act diligently, even if the level of corruption is low or the level of literacy high despite the laxity of the state. Conversely, and as a flip side, a state is released from international responsibility if it takes reasonable, diligent measures even if the desired outcome is not reached. In our example, even when a state is not entirely clean from corruption or when full literacy is not reached in the population, secondly, the state cannot avoid responsibility simply by showing that, in our example, corruption or children missing in school would persist despite all its efforts to prevent it. Thus, although diligent preventive action would presumably not have eliminated the problems, the lack of diligent still counts. If a breach of international law already died here, the state will be able to avoid responsibility all too easily. It is at this point that the gist of the obligation are the means and processes that the state must employ. The due diligence standard here creates accountability. I now turn to the legal structure and legal qualification. The question is whether due diligence is always an obligation of conduct as opposed to an obligation of result. Pierre-Marie Dupuy famously explained the difference as follows, the obligation of a doctor to care for a patient is the obligation, an obligation of conduct, while the obligation of the seller of a car to deliver a car is an obligation of result. Due to the asymmetrical or limping relationship between procedures and outcomes that I just explained, it is a bit simplistic to qualify due diligence only as an obligation of conduct as opposed to result. Due diligence may sometimes but not always be both an obligation of conduct and an obligation to guarantee a result. The next structural question is whether due diligence is a primary norm or a secondary norm to use the doctrinal terms of the law of state responsibility. Helmut Aust and Priska Feier have argued that due diligence sits in between primary and secondary norms. In the Bosnian Genocide case, the court could not successfully establish Serbia Montenegro's responsibility neither on the basis of attribution nor on the basis of complicitly under the Genocide Convention itself or under Article 16 of the Articles on State Responsibility. Therefore, as a kind of last resort, the court developed and elaborated on the duty to prevent under Article 1 of the Genocide Convention as an autonomous obligation of the state parties which is a due diligence obligation. The ICJ thereby sort of strike a balance between avoiding impunity on the one hand and over-broadening third states in face of atrocities committed outside their effective territorial control on the other hand. On the handout, and that's on page one, I explain how due diligence doctrinal sits as a third option in between attribution and complicit. Another structural question is whether due diligence is a customary norm or even a general principle of law. My claim is that due diligence cannot and should not be qualified as a general principle for various reasons. First, because the function of due diligence differs a lot in the different areas of law. For example, in human rights law, the positive obligations in the dimension of protecting, for example, against domestic violence, follow a more structured balancing process dominated by the principle of proportionality. So the type of due diligence assessment is different here. Although a family equal resemblance remains, of course. The meaning and function of due diligence is again different in international economic law. The meaning is here borrowed from private corporate law in relation to business transactions and corporate finance. In that sphere, we might speak of doing due diligence as opposed to acting with diligence. Doing due diligence is an exercise of risk mitigation by conducting a legal environmental or social audit before a visit projects and before other legal undertakings. In order to avoid a bad outcome. The bad outcomes to be fended off include not only potential breaches of the law, but encompass all kinds of negative results. Therefore, doing due diligence is partly outside the realm of the law. Still, from the perspective of a corporation, the diligence exercise seeks to avoid the firm's legal liability and seeks to avoid other legal problems. For example, an investor is expected to assess the present and possible future legal framework of the state where the investment shall take place. An investor who did not conduct due diligence will lose its protection under a bilateral investment treaty. Thus, in investment law, due diligence actually secures the investor's claims for damages. Here, due diligence is primarily exercised to protect the actor itself and not, as in the constellations described before, other actor's interests. In sum, the work that the audits called due diligence performs starkly differs from the functions of due diligence as a standard of behavior in the context of the no harm role. In the Bosnian genocide case, the ICJ countered against the generalization of due diligence-based prevention duties. I cite the ICJ. The content of the duty to prevent variance from one instrument to another, according to the wording of the relevant provisions and depending on the nature of the acts to be prevented and the quotation. In the same way, anyone who wants to identify and circumscribe the due diligence obligations, both procedural and substantive, must always look at the substantive standards of a specific regime. In consequence, due diligence as a general principle would not add much, but simply state an unspecified duty of good behavior. A second more normative consideration against qualifying due diligence as a general principle is that it would not be normatively appropriate as a fallback role. Turning the due diligence standard into an overarching obligation to behave diligently in international relations would imply that due diligence is normatively more desirable than other standards, standards such as absolute harm prevention on one side or mere avoidance of cross-reglessness on the other side. This would create an additional legal argument to deferred for states when they intend to apply a different liability standard. It would also restrict the state's freedom to work out the most appropriate allocation of accountability. The ongoing negotiations on autonomous weapons are a case in point. States and academics are recommending various mechanisms for creating accountability here. Proposals range from a complete ban to a broad permission and include strict liability or a presumption of liability or prevention and harm mitigation duties based on the due diligence standard. But none of these standards is per se normatively more desirable than any other. To conclude, in view of the widely diverging functions of due diligence and its dependence on the primary role which its accompanies, due diligence should not be conceived as a general principle of international law. Rather, due diligence is an emanation or sibling of other structural principles, such as good neighborliness or good faith. And turn to the policy benefits of the rise of due diligence. Despite the shrinking space for the application of the lotus principle that restrictions on the independence of states cannot be consumed, states still need a certain leeway for pursuing legitimate interests. Due diligence has become one of the legal tools granting such a leeway. Thereby, state freedom of action has been transformed from a pre-legal concept into a legally-summed, circumscribed and curtain form of discretion. The apartheid notion of sovereignty is here only a placeholder for legitimate or legally-recognized interests the states may pursue. For example, article four, section one of the Paris Agreement on Climate Change lays down the objectives and goals of the regime. It refers, amongst others, to efforts to eradicate poverty. One in other provision permits the states to consider different national circumstances. This gives developing states more leeway for setting national policy priorities by weighing interests in poverty eradication and development against concerns of climate protection. The balancing process informs the parameters which will then define the due diligence standard in the concrete case. In conclusion, due diligence exemplifies the paradigmatic shift from the state of nature among states to a legally-regulated sphere. At the same time, due diligence reintroduces a regular move which patiently operates as a compensation for losses of natural sovereign freedom. This might be the price to pay for legalization and risks to undermine the benefits of that legalization. A second policy benefit of due diligence is that due diligence facilitates dealing with uncertainty in face of the high connectivity and the diversity of international actors where several actors are in a position to avoid the harm. What matters for the legal response is here not direct causality between action and damage but the proximity of an actor to a risk. I will give examples from three legal fields. In international climate law, risk proximity is contingent both on state resources for action and on their passport revolutions to climate harm. As it is well known in the Bosnia genocide case which I mentioned several times already, the ICJ concentrated on the capacity to influence as the relevant criterion that triggers the due diligence obligation to present genocide. In international environmental law, one relevant factor for defining the risk management capacity of the state is the state's economic level. To conclude, the due diligence standard is flexible enough to allow ongoing adaptation. Due diligence also takes into account the diversity of state actors. It finally permits to grade the responsibility based on distinct degrees of risk proximity. Overall, due diligence works against a too-sumerial and formalist allocation of accountability among international actors which are increasingly connected. Seen from the perspective of the international rule of law, this adds an element of material justice which can be seen as a core component of the rule of law. A third, one might say, policy function of due diligence is in lawmaking. The normative openness of the due diligence standard facilitates treaty negotiations because at least some of the antagonist interests do not need to be enshrined in explicitly the rules. Due diligence here works as a tool for managing contestation. In the design of a treaty, contravening interests may be made explicit. For example, in the preamble or in programmatic articles, but their accommodation is transferred to a later point in the process of implementing and applying a treaty. In other words, the use of a term such as due diligence facilitates lawmaking through the use of constructive ambiguity. The fourth benefit of due diligence is the stabilization of the international order through proceduralization. The creation of procedures associated with or stemming from the due diligence standard has considerably contributed to a proceduralization of international law. And by proceduralization, we mean the extension and refinement of rules on procedures. And that is about steps and ways to proceed as opposed to substantive rights, obligations, command, prohibitions, or guarantees. In international law, we observe a proliferation of procedural rules on hearings, on participation, obligations to explain and reasons, voting modes, monitoring, and verification, which constitute and shape the processes of lawmaking and law enforcement. Procedures generally protect the weaker participants in any given relationship because they prevent powerful players to change the rules of the game at their whim. Importantly, procedures thus outbalance the power disparities. For example, by giving equally long speech flaws to all sides, asking for written justifications by all sides and the like. The antidote to sheer power play is especially important in international relations where the disparities of strength and influence are huge. Second, procedures also tend to increase accountability because they create, compile, and publicize knowledge and thus allow outsiders to hold address to account. And thirdly, over time, processes and procedures within long-term treaty regimes build consensus about how to assess and deal with the risks addressed in the treaties. Thus, broadly trained due diligence obligations and related procedural obligations may work as a starting point for creating more specific substantive obligations under a particular treaty regime over time. An important driver of this trend toward proceduralization is the disagreement among the members of a pluralist and even deeply divided international society about corporate outcomes. The impossibility to reach consensus about substantive outcomes is exacerbated by the complexity of problems and lack of knowledge about their nature and scope, let alone about ways to solve them. In this constellation, negotiators may find it easier to agree on procedures because these are less burdened with ideology and, to some extent, open-ended. The underlying idea is that fair procedures will also lead to normatively acceptable and, in fact, accepted outcomes. Thus, the elements of deliberation inherited a procedural approach complement more traditional forms of justified international law. Seen as a new key procedure, due diligence might bolster the legitimacy of international law. However, this presupposes that due diligence is indeed fleshed out as a procedure and is not only used as a buzzword. Where mere references to due diligence in treaty texts and soft law do not encompass due diligence procedures, then powerful states might simply define what is due. There is the danger that states and other international process simply proclaim due diligence and then do what they want. So the growing reliance on due diligence comes with risks for the international rule of law and global governance, to which I now turn. On the handout, this is on page two, the dark side of due diligence. Broad, indeterminate normative standards such as due diligence may undermine the capacity of the law to govern behavior because the vague and blurry terms of those norms give plenty of leeway to those interpreting and applying the norms. This undermines the international rule of law. When due diligence obligations are introduced through secondary law or interpretation into treaty regimes which had previously provided for substantive standards, then due diligence may delude with trickness of those regimes by reopening states discretion. This may give room for more subjective, self-selected and self-justifying processes and for self-serving narratives and thereby contribute to a detachment of states on international legal commitments. An example is the application of due diligence to cyber space here. Russia and China have focused on the risk of cyberterrorism in order to forge an international consensus to restrict freedom of expression on the internet. The international code of conduct for information security of September, 2011 may be seen as such an attempt to legitimize restrictions of free speech that actually disregard international human rights obligations. The duty to monitor and prevent cyber harms may also serve as a narrative to bolster further disproportionate surveillance measures. Another at least ambivalent consequence of due diligence relates to private actors. We have seen that the traditional and probably still major field of application of due diligence relates to the activities of private actors, which have thereby been at least indirectly brought under the purview of international law. Thereby, due diligence contributes to the rise of informal international law, notably professional and industrial standards, which are often issued by transnational non-state actors such as professional associations, business interest groups, frequently in collaboration with NGOs or with government agencies. Such standards are often crucial for determining which conduct is actually due in a given issue area and they heavily influence the interpretation of the relevant hard law. However, informal lawmaking processes are often associated with negatively-converted concepts such as managerialism and technocracy. These processes must answer calls for new forms of legitimizing local governance since these are not covered by state consent. I'm now reaching my conclusions and we'd like to return to COVID-19. I venture to say that it will be impossible to pin down and assign responsibility to one or several states for harm caused by the new virus. So in the end, due diligence here in global health law does not provide any clear solution to a concrete problem. However, on a more general level, as my talk tried to show, the rise of due diligence across all areas of international law can be seen as a response and also as a manifestation and at the same time as a driver of structural change in the international legal order as a whole. The most notable structural change is proceduralization as I described. This change is overlapping with new types of risk management in the face of complexity and diversification of factors. Seen through the lens of global constitutionalism, which I could not give it up, the rise of due diligence as a tort law-like and criminal law-based institution at first sight might suggest an undue privatization or due constitutionalization of the international legal order. However, in the era of global capitalism, constitutionalism can and should not be confined to states. The rise of due diligence both in interstate constellations and in so-to-speak diagonal state non-state constellations such as human rights, investment protection, international criminal law and anti-terrorism law can be interpreted as one feature of a global societal constitutionalism. Overall, due diligence is responding to the current technical and ecological insecurity, to the global political and economic power shift, to the rise of economic private actors and to probably growing ideational and ideological strife. But in doing so, it not only meets these developments but might even push them further by offering cheap talk and empty rituals. Due diligence is as young as faced as current international law as a whole, oscillating between a hollow hope and a guarantor of peace and justice. Thank you.