By: Harshita Ranka, SVKM’s Pravin Gandhi College of Law

“Health care is vital to all of us some of the time, but public health is vital to all of us all of the time.” 

                                                                                                                     – C. Everett Koop

Abstract

This paper aims to objectively illustrate upon the legal standards and instruments governing entry restrictions in correspondence to public health measures. In the backdrop of the current wave of COVID-19 and the exercise of sovereign powers by States, this paper covers institutional measures under the regime of Public International Law. This paper is limited to regulations and measures directly linked to public health and not entry regulations arising out of any economical or socio-political considerations. Further the legality of international provisions with regards to travel restrictions is laid down.  However, this paper does not dwell into state practice, neither does it evaluate the implementation of such provisions.

A GLANCE AT LEGAL INSTRUMENTS AND STANDARDS

The primary legal instrument concerned here are the 2005 IHR and the ICCPR. Additionally, certain principles of customary International Law are to be applied.

The International Health Regulations (IHR),[1] 2005 constitute as a binding instrument of global health law establishing the framework to limit the international spread of disease, while avoiding unnecessary interference with international traffic and trade.[2] It derives itself from Articles 21[3] and 22[4] of the World Health Organisation (WHO) Constitution, which has 194 State parties.[5]

Further, the freedom of movement protected inter alia other human rights under the International Covenant on Civil and Political Rights (ICCPR),[6] 1966, is the most prominent tenet in the domain of human rights. This is coupled with the right to health enshrined in the International Covenant on Economic and Social Rights (ICESR),[7] 1966.

The customary principles of necessity[8] and proportionality[9] in consonance with due diligence[10] and a precautionary approach[11] underscore the lawful and benevolent implementation of travel restrictions. 

What is Public Health?

The WHO was effectively established on 7 April 1948 as the United Nations (UN) specialized agency for health within the terms of Art. 57 UN Charter.[12] The WHO aims at achieving the highest possible level of health among people as per its objective cited in Article 1[13] of its constitution.

In accordance with the preamble of the WHO Constitution,[14] health is conceptualized as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.[15] ‘Disease’ refers to ‘an illness or medical condition, irrespective of its origin, that could render significant harm to humans’.[16] The definition of ‘public health risk’ mirrors this flexibility.[17]  The IHR defines Public health risk  as “a  likelihood  of  an event that  may  affect adversely  the  health  of human  populations,  with  an  emphasis  on  one  which may  spread  internationally  or  may  present  a serious and direct danger.”[18]

This characterisation of public health accentuates international co-operation. In this regard, International co-operation in the sphere of public health embraces a wide range of factors promoting conditions paving a healthy life extending to the underlying determinants of health, including food and nutrition, adequate sanitation, housing access to safe and potable water, safe working conditions, and a healthy environment.[19]

What constitutes as entry regulations?

In case of prominent public health risk like covid, limitations are obtruded principally on travel and trade. For instance, when such restrictions are in place, transport companies are forbidden from transferring people or lugging trade that crosses international boundaries. States have the sovereign right to adopt measures tackling a legitimate aim.[20]

Such restrictions might be in contravention to the Freedom of Movement inter alia other Human rights.

HUMAN RIGHTS LAW

Right to health is covered in the human rights spectrum under Article 12 of the International Covenant on Economic Social and Cultural Rights, (ICESCR),[21] 1966. The Committee on Economic, Social and Cultural Rights (CESCR),[22] which is the chief interpretative body of the ICESCR, in its General Comment No. 14 states that health is a fundamental human right indispensable for the exercise of other human rights.[23] Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.[24]

On one hand States have an active duty in consonance with parens patriae[25]to ensure this highest sustainable level of health to its citizens. This serves as a legitimate basis to enact entry regulations as a public health emergency measure. However, on the other hand, International Human Rights Law also grants the freedom of movement entailed in Article 12 of the ICCPR. It states the right of individuals to leave any country, including their own and to choose their country of destination. The freedom cannot be made dependent on the State of destination.[26]

When it comes to evaluating entry regulations considering freedom of movement, the applicability of ICCPR comes into question. The uncertainty arises whether freedom of movement may be used as a ground to challenge the legality of entry regulations adopted by States. Prima facie, Article 2 of the ICCPR lays down the scope of its obligations to be applied territorially. However, the International Court of Justice, in its Wall Advisory Opinion[27]of 2004 noted that primary applicability of ICCPR must be territorial and only in extra-ordinary circumstances should it be applied extra-territorially.[28] Further, a derogation from ICCPR, Article 12 can be justified by an emergency threatening the life of a nation as per Article 4 of the Covenant.[29] When these obligations are contextualised as Internationally wrongful conduct, the attribution of State responsibility as mentioned in Articles on Responsibility of States for Internationally Wrongful Acts, 2001 becomes a slippery slope.  

INTERNATIONAL HEALTH REGULATIONS

The WHO is ‘the directing and co-ordinating authority on international health work’[30] and in conformity with Article 22 of its constitution, administers the IHR, a binding international agreement that is the key global instrument for the protection against the international spread of disease.[31]

Here, the rules of interpretation laid down under Article 31 of the Vienna Convention on Law of Treaties (VCLT),[32] 1969. Article 31(3)(a) includes consideration of any subsequent agreement between the parties regarding the interpretation of a treaty or the application of its provisions. The IHR stand felicitous within the ambit of this subsequent agreement, and thus are to be interpreted in furtherance of the WHO constitution, the principal treaty. The state parties to the WHO constitution are parallelly and ipso facto bound by its subsequent instrument, the IHR, subject to its Article 59.[33] Further, a holistic explication of the pacta sunt servanda principle codified in Article 26[34] of the VCLT dictates that a State is bound by what it consents to in good faith.

As per Article 1, IHR lays a notable basis for the WHO to exercise leadership in public health emergencies purporting to restrain States from responding disproportionately to health threats by imposing unnecessary restraints, hence warranting state solidarity.

However, the role of the WHO is limited to the sphere of public health[35] in view of the speciality principle. The ICJ in its Legality of the Use by a State of Nuclear Weapons in Armed Conflict Advisory Opinion[36] determined that the WHO’s responsibilities are necessarily restricted to the sphere of public health and cannot be encroached on other responsibilities of the UN system. It is questionable whether this distinction can be maintained today. Entry regulations, although enacted as a health measure, exhibit overarching implications on the economic, social and political sphere. Cumulatively, though the role of WHO is pivotal, yet its scope remains limited. This notion is bridged by virtue of Article 57(1) of the IHR stating that IHR and other relevant international agreements should be interpreted in compatibility with other international instruments.[37]

Article 2 of IHR intends to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade,[38] balancing public health needs with other State needs.[39] States are obliged to undertake capacity building measures after monitoring health threats and reporting outbreaks.[40]

Article 42 of the IHR elucidates the effective implementation of health measures without delay in a transparent and non-discriminatory manner. Further, Article 43(1)[41] of the IHR enshrines that States may undertake Additional Health measures (AHM) seeking same or greater level of protection than WHO recommendations[42] which are not more invasive or intrusive to persons than reasonably available alternatives. Article 43(2) alludes that these AHM must be grounded in:
a) Scientific Principles.
b) Available Scientific evidence; “information furnishing a level of proof based on the established and accepted methods of science” as per Article 1(1).
c) Specific guidance or advice from WHO. [43]

Entry regulations constitute as ‘significant interference’ within the meaning of Article 43(4).[44] Thus, it is imperative that the implementation of these entry regulations, when enacted as an AHM, must be complying to the nuances mentioned in Article 43(1) and (2).

CONCLUSION

The IHR coupled with the ICCPR formulates the primary treaty law concerning entry regulations adopted as a health measure. Restrictive measures are nothing but a licit application of the principle of sovereignty, an undisputed norm of customary international law enshrined in the UN Charter.[45] Further, restrictive measures are said to be lawful if they are objective, reasonable and pursue a legitimate goal.[46] However, the effects of these regulations attract several aspects of International Law and its evaluation becomes incredibly subjective, yet a forefront matter. Such measures taken under the banner of national interest, which happen to be evolving as state practice, are called into question even though they are nominally legitimate. A comparative can be drawn to the rampant and evolving state practice of pre-emptive use of force, whose legitimacy is often measured against its arbitrariness. Here, reasonability coupled with the twin requirement of necessity and proportionality is mandated. For instance, in response to India’s second wave of COVID-19 cases, Australia imposed stringent entry regulations,[47] hindering a wide range of Indian national interests. The regulatory extent of these measure is hence called into question in the manifold of state accountability.

In the end, the adoption of border closures is a matter of decision-making by the State authorities, with due regard to the directly affected interests of other States in the contemporary.[48] A State which resorts to countermeasures[49] based on its unilateral assessment of the situation does so at its own risk and may incur responsibility for its own internationally wrongful conduct in the event of an incorrect assessment as per ARSIWA, 2001. In sum, an efficiently calibrated precautionary approach[50] must ideally be justifiable in dealing with manifesting global public health emergencies.

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[1] International Health Regulations (adopted 23 May 2005, entered into force 15 June 2007) 2509 U.N.T.S. 79. [hereinafter ‘IHR’].

[2] IHR., Article 2.

[3] Art. 21 empowers the WHO to adopt regulations, infra fn. 5.

[4] Art 22 stipulates notification window for member states to submit reservations to its regulations, infra fn. 5.

[5] Constitution of the World Health Organization (adopted 22 July 1946, entered into force 7 April 1948) 14 U.N.T.S. 185 [hereinafter ‘WHO Constitution’]. 

[6]  International Covenant on Civil and Political Rights art.12(4), 1966, 999 U.N.T.S. 171 [hereinafter ‘ICCPR’]. 

[7] International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, 993 U.N.T.S. 3 [hereinafter ‘ICESCR’].

[8] Art. 25, Articles on Responsibility of States for Internationally Wrongful Acts, A/56/10 (2001) [hereinafter ‘ARSIWA’]. 

[9] HRC, General Comment No. 29, ¶5, U.N. Doc CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001); Economic and Social Council, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/5 (1985).

[10] Corfu Channel (United Kingdom v. Albania) (Merits) [1949] ICJ Rep 1949, 4 (‘Corfu (Merits)’), 22; Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 1997, 7 (‘Gabčikovo’) [140]; Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgment) [2010] ICJ Rep 2010, 14 (‘Pulp Mills’) [197]; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) (Merits) [2015] ICJ Rep 2015, 665 (‘San Juan River’) [104], [153], [168].

[11] Roojin Habibi et al., Do not violate the International Health Regulations during the COVID-19 outbreak, 395 Lancet 664, 664-665 (2020) ; Commission (EC), ‘Communication from the Commission on the Precautionary Principle’ [2000] COM(2000)1 final, 3.

[12] Charter of the United Nations, 1945, 1 U.N.T.S. XVI.[hereinafter ‘UN Charter’].

[13] WHO Constitution, Art 1

[14] Ibid, Preamble.

[15] IHR, Art. 1(1).

[16] Ibid.

[17] Makane Moïse Mbengue, Public Health, International Cooperation, Max Planck Encyclopaedia of Public International Law [MPEPIL] MPEPIL 527.

[18] Ibid; IHR, Art. 1(1).

[19] Ibid.

[20] Dispute regarding Navigational Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, 87.

[21] International Covenant on Economic, Social and Cultural Rights (ICESCR),1966, 993 UNTS 3.

[22] CESCR, General Comment No.14, 2000, ¶ 16.

[23] Ibid, ¶ 1.

[24] ICESCR, Art. 12.

[25]  Rusell L. Caplan, “Parens Patriae Antitrust Suits by Foreign Nations”, 6 Denv. J. Int’l L. & Pol’y 705(1977);

Thomas, Margaret S., “Parens Patriae and the States’ Historic Police Power”, 69 SMU Law Review 759 (2016).

[26] CCPR, General Comment No. 27, ‘Article 12 (Freedom of Movement), 2 November 1999, UN Doc. CCPR/C/21/Rev. 1

[27] ICCPR, Art. 2(1); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 2004, 136 (‘Wall Opinion’) [111]; UNHRC, ‘General Comment No. 31 [80]’ (29 March 2004) CCPR/C/21/Rev.1/Add. 13 [10].

[28] Ibid; UN ECOSOC, Commission on Human Rights, Summary Record of the 138th Meeting, 6th Session (6 April 1950), UN Doc E/CN.4/SR.138 [11]; UN ECOSOC, Commission on Human Rights, Summary Record of the 194th Meeting (25 May 1950), UN Doc E/CN.4/SR.194 [5], [9], [11].

[29] ICCPR, Art. 4(1).

[30] Supra fn. 5, Art. 2(a).

[31] World Health Assembly, ‘Revision of the International Health Regulations’ (23 May 2005) WHA58.3, preamble.

[32] Art. 31, Vienna Convention on the Law of Treaties, 1969, 1155 U.N.T.S. 331 [hereinafter ‘VCLT’].

[33] IHR, Art. 59 stipulates for States to submit reservations and amendments to IHR.

[34] VCLT, Art. 26.

[35] WHO Constitution, Art 69.

[36] Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66 [26].

[37] IHR, Art. 57.

[38] IHR, Art. 2.

[39] Adam Ferhani & Simon Rushton, The International Health Regulations, COVID-19, and bordering practices: Who gets in, what gets out, and who gets rescued?, 41 CONTEMP. SECURITY POL’Y. 458, 460 (2020).

[40] Ch.32 Pandemics and Other Health Emergencies, The Oxford Handbook of the International Law of Global Security edited by Geiß, Robin; Melzer, Nils (16th February 2021), Main Text, Part II Predominant Security Challenges and International Law, Environmental Security, OUP, Oxford Scholarly Authorities on International Law [OSAIL].

[41] IHR, Art. 43(1)

[42] IHR, Art. 15 lays down Temporary Recommendations, Art. 16 Standing Recommendations and Art. 18 enlists some recommendations.

[43] IHR, Article 43(2).

[44] IHR, Art. 43(3) lays down “significant interference generally means refusal of entry or departure of  international travellers, baggage, cargo, containers, conveyances, goods, and the like, or their delay, for more than 24 hours.”

[45] UN Charter, Art. 2(1).

[46] Caroline Foster, “Justified Border Closures do not violate the International Health Regulations 2005”, EJIL: Talk! (11 June 2020).

[47] Reuters Asia Pacific, Renju Jose, “ustralia says chance of jail remote for India travel ban offenders” (4 May 2021).

[48] Ibid.

[49] Countermeasures within the meaning of Art. 51, ARSIWA.

[50] Principle 15 of the Rio Declaration on environment and development, UN Doc. A/CONF.151/26 (vol. I), 31 ILM 874 (1992).