Taming COVID-19 by Regulation: An Opportunity for Self-Reflection

The COVID-19 outbreak is not the first nor last series of recent real or potential catastrophes - be they natural disasters, terrorist attacks or pandemics - that have taken by surprise governments, globalised firms and the citizenry. 1Yet, due to its near-unprecedented impact on the highly interconnected but vulnerable systems that define the modern world, this pandemic has been testing our ability to govern risk more than any other crisis before. The last time the world responded to a global emerging disease epidemic of the scale of the current novel coronavirus without having access to vaccines was the 1918-1919 H1N1 influenza pandemic. 2Ironically, the measures mobilised today to counter COVID-19 - the so-called “non-pharmaceutical interventions” 3- are essentially the same as those deployed a century ago, and that despite significant social, technological as well as governance differences between 1918 and today. 4

No other emergency led to the paralysis of the world economy 5 by brutally unveiling the gap between global economic interdependence and nation-state governance. No other response to a disaster led to the home confinement of more than half of the world's population. No other risk management response raised so many novel legal, 6 ethical, 7 moral 8 and political issues. No other pandemic has been covered continually and in real time by a 24-hour news cycle, often reporting conflicting information simultaneously, and further amplified by social media users. 9 No other crisis has suddenly reshaped our individual and collective idea of risk. Ultimately, no other occurrence carries the potential to disrupt our economic, legal, democratic, social and cultural systems as well as the relationships among them to the same extent.
All of the above makes COVID-19 qualitatively different from any of the six outbreaks previously identified by the World Health Organization as pandemics ("Public Health Emergency of International Concern", hereinafter PHEIC): influenza, polio, Ebola, 10 Zika, Middle East respiratory syndrome (MERS) 11 and severe acute respiratory syndrome (SARS) 12 .
COVID-19 represents not only one of the greatest natural and economic disasters in human history, but also a rich case study of governments' emergency responses. As such, it is a test bed for virtually all disciplinesbe they natural sciences, social sciences or humanities. 13 This is all the more true for risk research and regulatory theories in a world increasingly shaped by transboundary, uncertain manufactured and natural risks. Ultimately, as Ulrich Beck observed, "risks cannot be understood outside their materialization in particular mediation, be they scientific, political, economic or popular". 14 5 See, eg, IMF, "World Economic Outlook, April 2020: The Great Lockdown". See also, eg, AKL Milne, "A Critical COVID-19 Economic Policy Tool: Retrospective Insurance", 21 March 2020; A Tooze, "The Shock of Coronavirus Could Split Europe -Unless Nations Share the Burden", The Guardian, 25 March 2020. 6 For an initial assessment of the most pressing legal issues the pandemic has raised, from a US perspective, see, eg, K Pistor, "Law in the Time of COVID-19" (2020) <https://scholarship.law.columbia. edu/books/240>. 7  How has a mature, self-aware "world risk society" 15 been caught by surprise by an essentially foreseeable event like a novel coronavirus (nCoV)? 16 If the virus spreads transnationally, why then have nation-states favoured national solutions instead of exploring common multilateral solutions? Why did countriesthat were initially unwilling to cooperate and adopted different, sometimes competing, approaches to the outbreak 17eventually converge on a common yet uncoordinated risk suppression policy translating into generalised, indiscriminate "social distancing"? What are the actual social, economic and distributive costs entailed by such an uncoordinated, but essentially similar approach? What other major, sometimes excruciating "risk versus risk trade-offs" 18 are involved in such a common approach (e.g. home confinement versus higher domestic violence; school closure versus higher risk of exposure of grandparents)? Why has the public not been informed about the excruciating trade-offs faced by decision-makers, nor about the criteria used to reach their conclusions? 19 What liability might countries have incurred due to negligence or omission in their COVID-19 response? 20 Why did data not play a greater role in predicting and countering the spread of the disease? 21 Why were existing digital tools 15 Sociologists have been telling us for some time that we live in a "risk society", in which society is increasingly occupied by the management of risks it has itself created. See A Giddens, The Consequence of Modernity (Cambridge, Cambridge University Press 1990); U Beck, Risk Society: Towards a New Modernity (Thousand Oaks, CA, Sage 1992); A Giddens, "Risk and Responsibility" (1999) 62 Modern Law Review 1. 16 A variety of sources have predicted over the years a pandemic presenting the features of COVID-19. Most virologists expected as "inevitable at least one pandemic in this century"; see Morse, supra, note 2. Most recently, a 2019 report by the Global Preparedness Monitoring Board, published under the auspices of the WHO, made a compelling case for preparedness: "The world is at acute risk for devastating regional or global disease epidemics or pandemics that not only cause loss of life but upend economies and create social chaos"; see "A World at Risk: Annual Report on Global Preparedness for Health Emergencies", September 2019. The WHO published its first Disease Outbreak News on the new virus on 5 January 2020. It contained a risk assessment and advice, and reported on what China had told the WHO about the status of patients and the public health response on the cluster of pneumonia cases in Wuhan: <https://www.who.int/csr/don/05-january-2020-pneumonia-of-unkown-cause-china/ en>. The European Centre for Disease Prevention and Control (ECDC) reporting on 25 January 2020: "In light of the currently available information, ECDC considers that the potential impact of 2019-nCoV outbreaks is high and further global spread is likely". The US Secretary of Health and Human Services declared the SARS-CoV-2 virus a US public health emergency on 31 January 2020, but in September 2019, the US Council of Economic Advisers cautioned the Trump Administration about the likelihood of a flu pandemic on the scale of the influenza epidemic 100 years ago: <https://www.whitehouse.gov/wp-content/uploads/2019/09/Mitigating-the-Impact-of-Pandemic-Influenza-through-Vaccine-Innovation.pdf>. 17 For an insightful account in this Special Issue, see A Sibony, "The UK COVID-19 Response: A Behavioural Irony?" (2020) European Journal of Risk Regulation doi: 10.1017/err.2020.22. On the Swedish approach and its major sanitary and legal implications, see E Herlin-Karnell, "Corona and the Absence of a Real Constitutional Debate in Sweden", VerfBlog, 10 April 2020 <https://verfassungsblog.de/corona-and-the-absence-of-a-realconstitutional-debate-in-sweden> and "Why Swedes Are Not Yet Locked Down?" The Economist, 4 April 2020. 18 The expression "risk versus risk trade-offs" is used to designate cases where measures implemented to mitigate one risk to human health or the environment knowingly or unintentionally created another new risk equally or more problematic than the original risk. See not quickly turned into epidemic-monitoring instrumentsand without intruding into people's lives? 22 How are we to explain the high degree of public acceptance of unprecedented freedom-restrictive coercive measures, such as lockdowns, which have been essentially imposed onand remained unexplained tothe public? Why have existing global, 23 regional and national emergency preparedness and response mechanisms provedonce moreso useless, letting governments remain in the driving seat? 24 Why have the European Unionone of the major epicentres of the pandemicand its members proven incapable of coordinating their respective actions while curbing the spread of the virus? 25 What ifas the spread of the virus continues to unfold and some knowledge gaps are filledthe social and economic cost of distancing will outweigh the health benefits sought? What if "state emergency governance" crystallises within governments and becomes the preferred way of doing business in the post-COVID-19 world? 26 While it is obviously too early to come to definitive conclusions, the contributions collectedin record timein this special issue of the European Journal of Risk Regulation attempt to provide some initial responses to some of these hard questions. They do so by unpacking the complex combination of a disease pandemic combined with flawed, or at least unprepared, national, regional and international institutions operating in a geopolitically shattered world.  There are several provisional explanations for the global suboptimal response to an essentially foreseeable outbreak 27 such as this pandemic. They include a Knightian 28 unmeasurable uncertainty 29 surrounding SARS-CoV-2 30 and the disease it causes; 31 limited systematic evaluation of the effectiveness of non-pharmaceutical interventions; 32 inadequate diagnostic testing capacity limiting our understanding of the disease's reproduction, which in turn affects the choice of the risk responses; 33 the ensuing difficulty in identifying and gauging major trade-offs behind any risk intervention; the lack of an effective global alarm response capacity in an highly interdependent yet geopolitically volatile world; 34 widespread unpreparedness of our respective health systems, in particular their inability to cater for a surge in capacity 35 ; the inability to mobilise the unprecedented wealth of data collected today to counter the virus due to the absence of a data governance and data-sharing culture as well as public-private infrastructure; 36 and the lack of evidence-based communication 37 toand engagement withthe public at a time of unprecedented disinformation. 38 The COVID-19 scenario contains all of the ingredients of a textbook case of risk regulation, in which regulators attempt to stabilise decision-making by mobilising a variety of bodies of knowledge guiding their action. 39 The ingredients include the effort of turning uncertainties into probabilities through scientific assessment methodologies; 40 the difficult interplay between science and politics, as well as between democracy and evidence-based public policy, when responding to risk through risk management; 41 the deficient and typically conflicting guidance of precautionary thinking and cost-benefit analysis; 42 the need to factor in people's perceptions of risk and responses to it, 43 especially when communicating about it; 44 and, ultimately, the inescapable coexistence of societal risks (ie the health threat posed by the virus) with institutional risks (ie the risk of policy failure in relation to a societal risk).
In other words, despite being a qualitatively different pandemic from those witnessed over the last century, there is little new in COVID-19, at least from a risk regulation perspective. These questions and scenarios are part of any government's attempt to routinise decisions on how to respond to risk through the help of agencies, expert committees and dedicated emergency rapid response mechanisms. The challenges raised by COVID-19 can therefore be seen as the "bread and butter" of our discipline.
Against this backdrop, one may therefore reasonably expect that risk regulation may come up with responses that not only save lives, but also livelihoods, and do also in emergency situations.
Yet, when measured against this benchmark, the global, dominant response to COVID-19 may appear suboptimal. While the generalised, indiscriminate social distancing policy may have had net benefits when it was initially implemented 45contributing to slowing down the spread of the virus while saving tens of thousands of lives 46 it has been showing its limitations over time, as the restrictive measures led to major social and distributive costs. 47 Moreover, as states of emergency are declared throughout the world in response to the spread of COVID-19, concerns arise as to the useand potential abuseof power in a time of crisis. 48 As COVID-19 was spreading, many prominent nationalist populistsfrom Duterte to Bolsonaro, Trump to Johnsonstarted off by dismissing fears. They appealed to gut feeling and "common sense" over science and fact, but ultimatelyas the COVID-19 outbreak acceleratedthey were forced to acknowledge the seriousness of the situation and act. 49 Yet their attitude inherently weakened the case for those measures, as they were initially dismissed as overreaction. In particular, it slowed down their social acceptance, and even led to the adoption of unscientific interventions such as travel bans. 50 The resulting global response to COVID-19, based on nation-state-based, uncoordinated and often times politicised solutions, already calls for some self-reflection.
To what extent has risk regulation proved inadequate, incapable and even unfit to govern the challenges raised by COVID-19? Or was this the outcome of decisionmakers' fault insofar as their response failed to follow established conventional risk analysis frameworks and failed to embrace the full potential of data? Or, ultimately, can the magnitude of the emergency surrounding this outbreak justify by itself such a suboptimal outcome? 51 Be that as it may, this pandemic has been testing the ability of risk regulation, both as a discipline and as a practice of government. Risk regulation is not only expected to provide immediate, cost-effective responses, but also to be able to co-create these responsesthrough participatory mechanismswhen addressing a legitimate public health threat with an unknown trajectory, and to be able to do so in a situation of emergency.

CONCLUSIONS
As this Special Issue clearly suggests, we have been thinking about how to govern risks, including disasterssuch pandemic diseases 52for a long time. Over the last decade, this journal has been providing its own contribution by publishing a variety of timely symposiasuch as those dedicated to the volcanic ash eruption in Iceland 53 , the BP Deepwater Horizon oil spill, 54 the L'Aquila earthquake 55 and now the global risk regulatory response to COVID-19and featuring original research articles striving to advance the state of research. 56 Risk regulation is uniquely well situated to play a prominent role in advancing government's ability to tame disasters. By mobilising many bodies of knowledge and blending their insights, it can better inform our understanding of risk scenarios andonce those unveilguide decision-makers when facing inter alia excruciating tradeoffs and communicating them to the public.
However, if we have learned from previous experiences that even foreseeable challenges can be inherently hard to prepare for, 57 COVID-19 is no exception.
Once more, the handling of this pandemic brutally unveiled the gap between the sophistication of risk regulationits epistemic fluency, 58 established principles and analytical frameworksand the improvisation of an inherently undisciplined political process tasked to govern, even in emergencies.
To close this gap, we need to rethink not only how to make risk regulation principles relevant and actionable, but also how to make them stick with decision-makers and bureaucracies both within and across states. Unless decision-makers are made accountable to the public for their reliance of, or departure from, well-established risk regulatory principles and frameworks, risk decision-making will be left to extemporisation and inevitably produce unscientific outcomes. 59 Failing to do so will let COVID-19 go down in history as yet another major disaster occurrence with no learnings attached. It will not be another tweak to the design of emergency preparedness plans, be they global or regional, or the setting up of another emergency body or mechanism that will fully capitalise on what COVID-19 revealed to us.
As new transboundary disastersfrom bioterrorism to climate changeloom on the horizon, neither the world nor our discipline can afford to let another crisis go wasted.