The International Health Regulations (2005) (IHR) govern how 196 countries and WHO collectively address the global spread of disease and avoid unnecessary interference with international traffic and trade. Article 43 of this legally binding instrument restricts the measures countries can implement when addressing public health risks to those measures that are supported by science, commensurate with the risks involved, and anchored in human rights. The intention of the IHR is that countries should not take needless measures that harm people or that disincentivise countries from reporting new risks to international public health authorities.
In imposing travel restrictions against China during the current outbreak of 2019 novel coronavirus disease (COVID-19), many countries are violating the IHR. We—16 global health law scholars—came to this conclusion after applying the interpretive framework of the Vienna Convention on the Law of Treaties and reaching a jurisprudential consensus on the legal meaning of IHR Article 43 (panel).
We explain our conclusion here. First, under Article 43.2, countries cannot implement additional health measures exclusively as a precaution but must rather ground their decision making in “scientific principles”, “scientific evidence”, and “advice from WHO”. Many of the travel restrictions being implemented during the COVID-19 outbreak are not supported by science or WHO. Travel restrictions for these kinds of viruses have been challenged by public health researchers,, , and WHO has advised against travel restrictions, arguing they cause more harm than good.,
Second, under Article 43.1 any additional health measures implemented by countries “shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives”. In this case, even if travel restrictions did work, there are so many other more effective measures that countries can take to protect their citizens. WHO has issued COVID-19 technical guidance on several such measures, including risk communication, surveillance, patient management, and screening at ports of entry and exit.
Third, and most importantly, Article 3.1 strictly requires all additional health measures to be implemented “with full respect for the dignity, human rights and fundamental freedoms of persons”, which in turn must reflect the international law principles of necessity, legitimacy, and proportionality that govern limitations to and derogations from rights and freedoms. Under no circumstances should public health or foreign policy decisions be based on the racism and xenophobia that are now being directed at Chinese people and those of Asian descent.
Many of the travel restrictions implemented by dozens of countries during the COVID-19 outbreak are therefore violations of the IHR. Yet, perhaps even more troubling, is that at least two-thirds of these countries have not reported their additional health measures to WHO, which is a further violation of IHR Articles 43.3 and 43.5. Flagrant disregard for the legal requirement to promptly report any additional health measures frustrates WHO's ability to coordinate the world's response to public health emergencies and prevents countries from holding each other accountable for their obligations under the IHR.
Some countries argue that they would rather be safe than sorry. But evidence belies the claim that illegal travel restrictions make countries safer., , In the short term, travel restrictions prevent supplies from getting into affected areas, slow down the international public health response, stigmatise entire populations, and disproportionately harm the most vulnerable among us. In the longer term, countries selecting which international laws to follow encourages other countries to do the same, which in turn undermines the broader rules-based world order. Effective global governance is not possible when countries cannot depend on each other to comply with international agreements.
Of course, the IHR is far from perfect. For example, the IHR only governs countries, not corporations and other non-governmental actors. Thus, some countries are finding themselves with de-facto travel restrictions when airlines stop flying to places affected by COVID-19. Additionally, the IHR does not have robust accountability mechanisms for compliance, enforcement, oversight, and transparency.
But the IHR is the legally binding system for protecting people worldwide from the global spread of disease. With more than 2·5 billion people travelling between about 4000 airports every year, future outbreaks are inevitable. Responses that are anchored in fear, misinformation, racism, and xenophobia will not save us from outbreaks like COVID-19. Upholding the rule of international law is needed now more than ever. Countries can start by rolling back illegal travel restrictions that have already been implemented and by supporting WHO and each other in implementing the IHR.
This research was supported by the Canadian Institutes of Health Research ( grant #312902 ) and the International Collaboration for Capitalizing on Cost-Effective and Life-Saving Commodities (i4C) that is funded through the Research Council of Norway's Global Health & Vaccination Programme (GLOBVAC Project #234608). GLB was previously WHO's Legal Counsel. SD is a member of the WHO research ethics review committee. ME-T reports consulting fees from WHO unrelated to this Comment. LOG and SJH are directors of WHO Collaborating Centres. SJH is additionally a Scientific Director with the Canadian Institutes of Health Research (the Government of Canada's national health research funding agency). We declare no other competing interests. Views and opinions in this consensus statement Comment represent those of the authors writing in their personal and independent academic roles, without any direction from their governments or institutions.
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Published: February 13, 2020
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