COVID-19: The legality of travel restrictions under international law

Juan Pablo Hernández*
*Founder of The Treaty Examiner and Moot coach at Universidad Francisco Marroquín (Guatemala).
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The Treaty Examiner, Issue 1 (April 2020), pp. 4-8.

PUBLIC INTERNATIONAL LAW

COVID-19, the respiratory disease discovered in Wuhan, China, in November 2019, has attacked the most fundamental aspects of human interaction. It is highly contagious (1), has infected almost two million victims (2) and has demonstrated its capacity to overwhelm health systems (3). Seeking to reduce the rate of contagion and ‘flatten the curve’, many States have imposed restrictions on freedom of movement across borders (4). Do these restrictions conform with international law?

The two areas where restrictions to movement are most relevant in the current crisis are international human rights law (HRL) and international health law. Under HRL, the 1966 International Covenant on Civil and Political Rights (ICCPR) protects freedom of movement in Article 12. In the case of travels and movement restrictions, paragraphs 2 and 3 state:  

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

Article 12, paragraphs 2, 3 of the ICCPR.

The ICCPR recognizes that travel restrictions may be imposed if necessary to protect public health. To assess necessity, international health law may provide a lex specialis. The most relevant provision in this regard is Article 43(1) of the 2005 International Health Regulations (Regulations), imposed by the World Health Organization (WHO) on all its Member States. This provision states as follows:

1. These Regulations shall not preclude States Parties from implementing health measures, in accordance with their relevant national law and obligations under international law, in response to specific public health risks or public health emergencies of international concern, which:

(a) achieve the same or greater level of health protection than WHO recommendations; or

(b) are otherwise prohibited under Article 25, Article 26, paragraphs 1 and 2 of Article 28, Article 30, paragraph 1(c) of Article 31 and Article 33,

provided such measures are otherwise consistent with these Regulations.

Such measures shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection.

Article 43(1) of the Regulations (emphasis added).

Therefore, under international law, a limitation to movement and travel must be necessary to protect a public objective, including health. Article 43(1) of the Regulations gives us a yardstick to assess necessity: the existence of less invasive or intrusive alternatives. An intrusiveness criterion is also used by the UN Human Rights Committee in the context of freedom of movement (5). In interpreting similar necessity requirements, the World Trade Organization (WTO) Appellate Body has stated that alternative measures must achieve equivalent levels of protection of the legitimate objective pursued (6). A complementary (rather than alternative) measure fails to demonstrate lack of necessity, especially when the challenged measure is part of a larger, more comprehensive scheme (7). In reaching those findings, the Appellate Body dealt with government measures aimed at protecting health and the environment.

The main purpose to impose restrictions is to prevent human contact. Measures other than travel restrictions exist to achieve that purpose, including social distancing, strict quarantines, contact tracing and lockdowns. Despite pursuing the same objective, however, I believe that these measures are complementary, not alternative. One could argue that social distancing, quarantines and lockdowns that impede contact within State borders but do not restrict cross-border movement are incomplete. Unrestricted travel could bring the disease to new territories or bring new cases to already struggling States, without mentioning that it may expose the traveler to the virus. When there is a risk of contagion for the traveler, or for the populations of the concerned States, there is ground to argue that tailored and precise travel restrictions are necessary.

Even if social distancing, lockdowns and comparable measures are more effective, that does not mean that this is an either-or situation. A research article published on 6 March 2020 reveals that travel restrictions contribute little to COVID-19 containment unless paired with measures preventing human contact and incentivizing behavioral change in the population (8). The combination of the measures, therefore, makes COVID-19 prevention more robust. On the other hand, only imposing travel restrictions without additional safeguards is ineffective and violates international law.

It is undeniable that these measures are intrusive to human self-determination. However, so is COVID-19 – except COVID-19 is also invasive to the rights to life and health. Imposing a comprehensive plan of isolation may not fully stop the disease, but it significantly slows down its spread. Most importantly, it gives invaluable time to scientists researching cures and health workers risking their lives to treat infected persons. We owe it to them and infected persons to flatten the curve. These measures may create further territorial division, but in times when a disease makes the most basic forms of social interaction dangerous, I believe it is according to international law to self-isolate to the necessary extent.

That is not to say, of course, that any travel restriction conforms with international law. The apparent necessity of travel restrictions when there is a risk of contagion must be balanced against the whole corpus of HRL. The laws establishing the restriction must use precise criteria and must not confer unfettered discretion to the executing authority (9). The application of the restriction by authorities must also be proportional to the aims pursued (10) and not result in discrimination (11). Conversely, when carefully tailored, correctly applied and combined with internal measures preventing human contact, travel restrictions appear to be consistent with international law.

For further reading

PIE DE IMPRENTA: Juan Pablo Hernández (editor-in-chief), Guatemala, 15 April 2020.

Endnotes

1. WHO-issued Q&A on COVID-19, available at https://www.who.int/news-room/q-a-detail/q-a-coronaviruses.

2. Data obtained from https://www.covidvisualizer.com/, as of 14 April 2020.

3. For examples, see: Undark, COVID-19 Threatens to Overwhelm India’s Health System, 14 April 2020, available at https://undark.org/2020/04/14/covid-19-india/; Euronews, Italy Suffocated by Coronavirus: The Story of Patients and Doctors in the Grip of COVID-19, 24 March 2020, available at: https://www.euronews.com/2020/03/20/italy-suffocated-by-coronavirus-the-story-of-patients-and-doctors-in-the-grip-of-covid-19; Euractiv, Spain Tops 100,000 COVID-19 Infections, with Record Death Toll, 1 April 2020, available at https://www.euractiv.com/section/coronavirus/news/spain-tops-100000-covid-19-infections-with-record-death-toll/, etc.

4. New York Times, North Korea Bans Foreign Tourists Over Coronavirus, Tour Operator Says, 21 January 2020, available at: www.nytimes.com/2020/01/21/world/asia/coronavirus-china-north-korea-tourism-ban.html; Channel News Asia, Scoot cancels flights to China’s Wuhan over virus outbreak, 23 January 2020, available at: www.channelnewsasia.com/news/singapore/wuhan-virus-scoot-cancels-flights-mtr-train-12309076; Toui tre News, Vietnam aviation authority ceases all flights to and from coronavirus-stricken Wuhan, 24 January 2020, available at: https://tuoitrenews.vn/news/business/20200124/vietnam-aviation-authority-ceases-all-flights-to-and-from-coronavirusstricken-wuhan/52707.html; Reuters, Russia ramps up controls, shuts China border crossings over virus fears, 28 January 2020, available at: www.reuters.com/article/us-china-health-russia-border/russian-regions-in-far-east-close-border-with-china-amid-coronavirus-fears-tass-idUSKBN1ZR0TU; The Australian, Travelers from China to be denied entry to Australia, 2 February 2020, available at: www.theaustralian.com.au/nation/travellers-from-china-to-be-denied-entry-into-australia/news-story/7b7619d44af78dd7395a934e22b52997, etc.

5. UN Human Rights Committee, General Comments Adopted by the Human Rights Committee Under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights, General Comment 27 on Freedom of Movement (Article 12), 1 November 1999, at paragraph 14.

6. See, for example, the WTO Appellate Body Report in Brazil—Measures Affecting Imports of Retreaded Tyres at paragraph 156.

7. See, supra note 6, at paragraph 172.

8. Matteo Chinazzi, Jessica T. Davis, Marco Ajelli, Corrado Gioannini, Maria Litvinova, Stefano Merler, Ana Pastore y Piontti, Kunpeng Mu, Luca Rossi, Kaiyuan Sun, Cécile Viboud, Xinyue Xiong, Hongjie Yu, M. Elizabeth Halloran, Ira M. Longini Jr., Alessandro Vespignani, The effect of travel restrictions on the spread of the 2019 novel coronavirus (COVID-19) outbreak, 6 March 2020, available at https://science.sciencemag.org/content/early/2020/03/05/science.aba9757.

9. See supra note 5, at paragraph 13.

10. See supra note 5, at paragraphs 14, 15.

11. See supra note 5, at paragraph 18.

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