Page - 560 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE560 rights obligations when they unfairly discriminate against those who appear to be from the most affected countries. As described by Jamie Liew in Chapter D-7 of this book, these travel restrictions may be more about pacifying fears of racialized persons, reinforcing racism and xenophobia, than anything else. Total Border Closures Are Possibly Legal But Probably Illegal While it is clear that targeted border closures are illegal under the International Health Regulations, more uncertain is the international legal status of total border closures that have been enacted by at least 113 countries, including Brazil, Canada, France, Germany, Russia, and South Africa.11 Whereas targeted border closures limit travel from particular countries perceived as high-risk, total border closures ban inbound travellers from all countries. At first glance, many people might understand total border clo- sures to be even more restrictive than targeted border closures and as such assume that they would be just as illegal under Article 43 of the International Health Regulations. Yet the purpose of the Article 43 limitations on travel restrictions was to avoid unnecessarily amplify- ing the economic and social consequences of public health risks in affected countries, and to avoid disincentivizing all countries from reporting risks when they appear. Indeed, countries are naturally less likely to report a new infectious disease outbreak in their jurisdic- tion if they are worried about facing targeted border closures that do not typically work anyway. But total border closures do not primar- ily or only punish specific affected countries; rather, most costs from total border closures are endured by the citizens and economies of the country that enacts them. Because of that dynamic, total border closures were neither anticipated nor specified by the International Health Regulations. Indeed, the 196 countries that are parties to the instrument may not have intended to prevent total border closures if a time came when such closures were desired. Even if this purposive interpretive argument does not pass muster, countries enacting total border closures could still point to the absence of opposing scientific evidence as a rationale in defence. Thereby, they can skirt the first condition on additional health measures imposed by 11. Our World in Data, “International Travel Controls During the COVID-19 Pandemic” (last visited 25 May 2020), online: Our  World  in  Data <https://our- worldindata.org/grapher/international-travel-covid>.