Page - 561 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

561Border Closures: A Pandemic of Symbolic Acts in the Time of COVID-19 Article 43 of the International Health Regulations. Specifically, coun- tries could argue that there is no scientific evidence either way on the effectiveness of total border closures. Previous studies have evaluated targeted border closures, not total border closures. And this COVID- 19 outbreak is additionally unique in how much of the world’s inter- national travel stopped in such a short period of time. Indeed, even if there were studies showing that total border closures did not work, there is still a possibility that they would work in these extraordinary times. A country could potentially argue that the constrained travel environment during the COVID-19 outbreak may make total border closures effective by reducing the viability of incoming travel via third countries and unofficial channels. Besides, while it makes good sense for an instrument like the International Health Regulations to prevent countries from punishing others with unjustifiable targeted border closures, the international legal principle of sovereignty protects the ability of countries to close their borders.12 The Article 43 limitation on additional health measures in the International Health Regulations must then be read more nar- rowly to only prevent countries from enacting border closures when they have discriminatory effects on other countries. This means that non-discriminatory total border closures could be legal under interna- tional law, even when the less restrictive but discriminatory targeted border closures are clearly illegal. All of that being said, if total border closures are enacted for pub- lic health reasons, then, according to Article 43.1 of the International Health Regulations, countries must still ensure that “such measures shall not be more restrictive of international traffic and not more inva- sive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection.”13 This pro- vision means that countries are obliged to deploy less restrictive bor- der measures if they are available and if they would attain comparable health protection in a non-discriminatory way. Those countries that do not deploy less restrictive measures when they are able to effec- tively do so would be violating international law. 12. Samantha Besson, “Sovereignty” (last updated April 2011), online: Oxford  Public  International Law <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/ law-9780199231690-e1472>; Steven J Hoffman, “The Evolution, Etiology and Eventualities of the Global Health Security Regime” (2010) 25:6 Health Policy Plan 510. 13. World Health Organization, supra note 8.