ABSTRACT
Under the most important existing international public health preparedness and response agreement, the International Health Regulations (2005), governments implementing health measures that significantly interfere with international traffic must provide to the WHO the public health rationale and relevant scientific information for such measures. The IHR require States to consider a range of decision-making criteria in applying travel restrictions during a public health emergency of international concern. WHO must communicate this information to other States. Yet during COVID, governments almost universally failed to respect WHO’s non-binding yet authoritative recommendations and have often failed to provide adequate justifications for their restrictions on travel, often with detrimental effects on international response. Legal opinions on the legality of these restrictions remain mixed, as does evidence of their efficacy in controlling the spread of COVID-19. As their usage amplified during COVID-19, the WHO shifted its advice on travel restrictions from opposing their use entirely to advocating instead for a risk-based approach. In this chapter, we consider whether travel restrictions are legally permissible under IHR Article 43, considering scholarly debates over the legality of such restrictions, shifting evidence on their effectiveness during COVID-19, and evolving WHO recommendations. We consider what an international law analysis of Article 43 that brings in risk assessment and proportionality considerations might suggest for the interpretation and implementation of Article 43 and close by considering how this article might be accordingly revised in the ongoing IHR amendments process.
