Justified Border Closures do not violate the International Health Regulations 2005

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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 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. 

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 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 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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