Justified Border Closures do not violate the

International Health Regulations 2005

ejiltalk.org/justified-border-closures-do-not-violate-the-international-health-regulations-2005/

By Caroline Foster June 11, 2020

Rapidly developing pandemics require governments to use their

best endeavours to protect their populations. International law
permits them to do this provided they observe certain
conditions, but limits on the reach of the World Health
Organization (WHO) International Health Regulations 2005
(IHR) have previously been insufficiently appreciated. In mid-
February 2020 The Lancet published a piece by 16 health professionals taking the view that
countries were breaching the IHR in closing their borders to travellers from locations
including China, the source country of COVID-19, contrary to WHO advice. A similar view
was published in Science in March. That conclusion cannot be correct. Article 43 of the
IHR clearly leaves room for action going beyond that recommended by the WHO,
consistent with respect for States’ sovereign rights (IHR Art 3.4), in appropriate
circumstances. Parallels with the World Trade Organisation Agreement on the Application
of Sanitary and Phytosanitary Measures (SPS Agreement) reinforce this point, as seen
below. Formal clarification of the matter could potentially take place in connection with
the review of the IHR’s functioning as an aspect of the impartial, independent and
comprehensive evaluation of the global response to COVID-19 mandated by para 7(10) of
the World Health Assembly’s Resolution WHA73.1 of 19 May 2020.

The argument that early and selective border closures like those seen in 2020 could be
illegal without WHO endorsement may be motivated by two key concerns. The first point
ties directly into the health rationale of ensuring global protection against major public
health risks. It is vital that disclosure of a situation like that arising in Wuhan is not
disincentivised any more than is essential. A country in the position of China, or a country
like Italy to whom a disease has spread, will be acutely aware of the economic costs of
revealing the presence and extent of the disease among their people. The second point is
that it will be uselessly damaging for countries to take needless measures generating
economic isolation. The IHR themselves reflect the vital need for a balance in between the
dual aims to ‘prevent, protect against, control and provide a public health response to the
international spread of disease’, and to avoid ‘unnecessary interference with international
traffic and trade’ (Art 2). From a political perspective, the concern of the WHO and
responsible officials to ensure they are not the cause of major, harmful and unnecessary
economic damage may militate against recommendation or endorsement of travel bans in
situations like that faced with COVID-19. There is also a health rationale here. Negative

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economic experiences will in the end generate a wide range of poor health outcomes. In
addition there is a concern that border closures can mask discrimination or encourage
xenophobia.

However the fact is that in 2020 many countries denied entry to individuals who had left or
transited through China well before the WHO indicated the acceptability of border closure.
By mid-February the number of countries with such restrictions was believed to have
numbered at least 47, and by 18 February 2020 this had increased to 51. These included
American Samoa (US), Antigua and Barbuda, Australia, Bahamas, Bangladesh, Belize,
Cook Islands., El Salvador, Fiji, Gabon, Grenada, Guatemala, Hong Kong (China), India,
Indonesia, Iraq, Israel, Jamaica, Jordan, Kiribati, Kosovo, Kuwait, Laos, Malaysia,
Maldives, Marshall Islands, Mauritius, Micronesia, Mongolia, Myanmar, New Zealand,
Niue, North Korea, Palau, Papua New Guinea, Paraguay, Philippines, Samoa, Seychelles,
Singapore, Solomon Islands, Taiwan (China), Tonga, Trinidad and Tobago, the United
States of America, Vanuatu,. and Vietnam, with the final four countries being Bahrain,
Madagascar, Northern Mariana Islands, and Saudi Arabia. Many countries imposed
various other forms of travel restriction, including screening, triage and quarantine. The
WHO reported that some form of travel restriction had been adopted by a total of 72 States
Parties at the start of the second week of February. Only a proportion of them had met
their notification and reporting obligations under the IHR. There are similarities in this
pattern of restrictions and non-reporting with responses to the 2013-2016 outbreak of
Ebola haemorrhagic fever, in which many States Parties exceeded or disregarded IHR
travel recommendations.

Meantime, though increasingly aware that human-to-human transmission was indeed

taking place, the WHO had continued to advise against travel bans not only in January but
also during February 2020. Indeed, when he issued the statement declaring the outbreak a
Public Health Emergency of International Concern (PHEIC) on 30 January 2020, the
WHO Director-General explicitly refrained from recommending any travel or trade
restrictions. This put countries in a difficult position as the IHR includes any available
specific guidance or advice from WHO among the considerations on which WHO members
will base their measures (IHR Art 43.2.c).

Three months later, the Director-General’s statement declaring that the outbreak
of COVID-19 continued to constitute a PHEIC finally reflected the reality that the
emphasis so far as travel was concerned was now on strategic guidance and
recommendation of appropriate travel measures in the light of growing new knowledge
about the virus. This was consistent with WHO’s April COVID‑19 Strategy Update, which
proposed appropriate and proportionate restrictions on non‑essential domestic and
international travel as part of a suite of measures towards the overarching goal of
controlling the pandemic. By May 2020, the World Tourism Council reported that all
destinations worldwide now had travel restrictions in place.
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Among the important factors to consider in evaluating the functioning of the IHR in
relation to COVID‑19 border closures is the time taken to establish the scientific facts. For
a zoonosis like COVID-19 involving animal-to-human transmission, reliable evidence of
human-to-human transmission may take weeks to emerge. Healthcare workers are said to
have suspected the outbreak of novel coronavirus in Wuhan, Hubei Province, China in
early December 2019. There are retrospective reports of some evidence of human-to-
human transmission among close contacts from mid-December. The WHO’s technical
lead for the coronavirus response noted the possibility that that there might be limited
human-to-human transmission, mainly through family members, in a press briefing on 14
January 2020. But the facts were still not clear. According to Chinese news sources the
Chinese National Health Commission confirmed human-to-human transmission on 20
January. The WHO report on its delegation’s Field Visit to Wuhan of 20-21 January said
that although its data suggested evidence of human-to-human transmission in Wuhan,
more investigation was needed to understand the full extent of this transmission. The first
reports of human-to-human transmission outside China came through on 28 January.
Even in late February, though, there remained ‘a high degree of scientific uncertainty on
crucial aspects of the disease’ including its route of transmission. See Gian Luca Burci’s
post of 27 February.

A comparison between the IHR and the terms of the WTO SPS Agreement underlines the
appropriateness of reading the IHR to respect States’ regulatory authority, recognising the
scientific uncertainty that may accompany the emergence of an outbreak such as COVID-
19. Together the IHR and the SPS Agreement form the leading international instruments
on health-based border closures, whether to persons or to goods. Helpful insights into how
the IHR may function in relation to border closures can be gained by reading the IHR in
the light of the SPS Agreement. The SPS Agreement governs trade-inhibiting measures
protecting human, animal or plant life or health from risks relating to entry, establishment
or spread of pests and diseases. Day-to-day operation of the Agreement relies on
international standards including those promulgated through the Codex Alimentarius and
the World Organisation for Animal Health, formerly the International Office of Epizootics.
But there is recognition that Members may depart from these standards in certain
circumstances. In essence, arbitrary decision-making is checked while sovereign decision-
making is accommodated.

Article 43 of the IHR governs “additional health measures” aimed at achieving the same or
greater levels of health protection than WHO recommendations. Consistent with the SPS
Agreement, the IHR recognise that State parties are not precluded from implementing
health measures stricter than those proposed by the relevant international agencies in
response to specific public health risks or public health emergencies of international
concern (IHR Art 43.1, SPS Agreement Art 3.3). Both instruments require that measures
not be more restrictive than required to achieve the appropriate level of health protection
(IHR Art 43.1, SPS Agreement Art 5.6.). Both instruments also require that parties base
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their determinations to adopt such measures on scientific principles and scientific evidence
(IHR Art 43.1 (a) (b), SPS Agreement Art 2.2). However, the SPS Agreement is the more
developed instrument in terms of its accommodation for scientific uncertainty, in part
because disputes arising under the SPS Agreement have helped push thinking forward on
how to ascertain States’ room for regulatory action when faced with limitations on
scientific knowledge.

As a starting point, the SPS Agreement requires that all sanitary measures affecting trade
must, specifically, be based on an assessment as appropriate to the circumstances of the
risks to human life or health (Art 5.1; Japan-Apples). WTO caselaw explains that rational
or objective relationships are required between an SPS measure and the supporting risk
assessment (Australia-Apples). Further, a risk assessment must be supported by coherent
reasoning and respectable scientific evidence and will be in this sense objectively
justifiable (Australia-Apples; United States – Continued Suspension; see also the decision
of the International Court of Justice in Whaling in the Antarctic). The SPS Agreement
goes on to provide explicitly that where relevant scientific evidence is insufficient for a risk
assessment a country may provisionally adopt sanitary or phytosanitary measures on the
available pertinent information including that from the relevant international
organizations as well as from sanitary or phytosanitary measures applied by other WTO
Members (Art 5.7; EC- Biotech Products). Countries must seek to obtain any additional
information necessary for a more objective assessment of risk and review the sanitary
measure within a reasonable period of time (Art 5.7). Importantly, we can expect that if
ever tested in the context of a dispute, the legally required relationship between the
available pertinent information and measures taken will be subject also to requirements of
rationality.

The problem with the IHR is that the IHR govern less precisely to the requirements of
States in situations where relevant scientific evidence is insufficient. Article 43 of the IHR
provides that in this situation States must still base their decisions on scientific principles
together with any available specific guidance or advice from the WHO. Article 43 does say
that States may, instead of relying on available scientific evidence, turn to any available
information including from the WHO and from other relevant intergovernmental
organisations and international bodies (Art 43.2 (b), (c)). However this still leaves an
incomplete picture. It is when we read the IHR in the light of the SPS Agreement and its
caselaw that a more comprehensive understanding of the potential functioning of the IHR
in relation to border closures emerges. This reinforces the conclusion that Article 43 leaves
room for action going beyond that recommended by the WHO, subject potentially to the
sorts of regulatory disciplines that have naturally begun to emerge in the trade context
including rationality requirements. Indeed, global instruments on public health are
expected to operate harmoniously with international economic law instruments including

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the SPS Agreement (IHR Arts 2, 57). Government representatives drafting the IHR clearly
intended they be capable of interpretation consistently with the SPS Agreement, as David
Fidler has discussed.

Article 43 of the IHR needs to be taken seriously. States are certainly obliged to comply
with its various conditions, including Article 43.1’s requirements that any additional
measure needs to be carefully considered to ensure it is no more restrictive of international
traffic and no more invasive or intrusive to persons than reasonably available alternatives.
However, the adoption of border closures is in the end a matter for decision-making by
individual States, with due regard to the directly affected interests of others. In sum, a
properly calibrated precautionary approach must be justifiable in dealing with emerging
global public health emergencies. Comprehensive developments are needed on many
fronts in relation to the interpretation and implementation of the IHR, as identified by
Lawrence Gostin et al. Achieving better understandings on border closures has a central
place here. The intended review of the IHR’s functioning should consider the matter with a
view to providing clearer guidance, even taking into account that experience during the
negotiation of the IHR 2005 following the 2003 SARs epidemic demonstrated that it can
be difficult to reach agreement on provision for precaution. Sufficient flexibility is critical
for enabling the speed of response that will help individual States attain the positive health
outcomes sought by their governents.

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