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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.
VULNERABLE
The Law, Policy and Ethics of COVID-19
- Titel
- VULNERABLE
- Untertitel
- The Law, Policy and Ethics of COVID-19
- Autoren
- Vanessa MacDonnell
- Jane Philpott
- Sophie Thériault
- Sridhar Venkatapuram
- Verlag
- Ottawa Press
- Datum
- 2020
- Sprache
- englisch
- Lizenz
- CC BY-NC-ND 4.0
- ISBN
- 9780776636429
- Abmessungen
- 15.2 x 22.8 cm
- Seiten
- 648
- Kategorien
- Coronavirus
- International