Do not violate the International Health Regulations during the COVID-19 outbreak
Authors: Roojin Habibi, Gian Luca Burci, Thana C de Campos, Danwood Chirwa, Margherita Cinà, Stéphanie Dagron, Mark Eccleston-Turner, Lisa Forman, Lawrence O Gostin, Benjamin Mason Meier, Stefania Negri, Gorik Ooms, Sharifah Sekalala, Allyn Taylor, Alicia Ely Yamin, Steven J Hoffman
Journal: The Lancet (2020)

The International Health Regulations (2005) (IHR)1WHO International Health Regulations, WHA 58.3, 2nd edn. World Health Organization, Geneva2005Google Scholar govern how 196 countries and WHO collectively address the global spread of disease and avoid unnecessary interference with international traffic and trade. Article 43 of this legally binding instrument restricts the measures countries can implement when addressing public health risks to those measures that are supported by science, commensurate with the risks involved, and anchored in human rights.1WHO International Health Regulations, WHA 58.3, 2nd edn. World Health Organization, Geneva2005Google Scholar The intention of the IHR is that countries should not take needless measures that harm people or that disincentivise countries from reporting new risks to international public health authorities.2Tejpar A Hoffman SJ Canada's violation of international law during the 2014–2016 Ebola outbreak.Can Yearb Int Law. 2017; 54: 366-383Crossref Scopus (8) Google Scholar In imposing travel restrictions against China during the current outbreak of 2019 novel coronavirus disease (COVID-19), many countries are violating the IHR. We—16 global health law scholars—came to this conclusion after applying the interpretive framework of the Vienna Convention on the Law of Treaties3Vienna Convention on the Law of Treaties, May 23 1969, 1155 UNTS 331 (entered into force January 27, 1980).Google Scholar and reaching a jurisprudential consensus on the legal meaning of IHR Article 43 (panel).PanelInternational Health Regulations (2005) Article 43.1 to 43.5 on Additional Health Measures1These Regulations shall not preclude States Parties from implementing health measures, in accordance with their relevant national law and obligations under international law, in response to specific public health risks or public health emergencies of international concern, which: (a)achieve the same or greater level of health protection than WHO recommendations; or(b)are otherwise prohibited under Article 25, Article 26, paragraphs 1 and 2 of Article 28, Article 30, paragraph 1(c) of Article 31 and Article 33, provided such measures are otherwise consistent with these Regulations.Such measures shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection.2In determining whether to implement the health measures referred to in paragraph 1 of this Article or additional health measures under paragraph 2 of Article 23, paragraph 1 of Article 27, paragraph 2 of Article 28 and paragraph 2(c) of Article 31, States Parties shall base their determinations upon: (a)scientific principles;(b)available scientific evidence of a risk to human health, or where such evidence is insufficient, the available information including from WHO and other relevant intergovernmental organizations and international bodies; and(c)any available specific guidance or advice from WHO.3A State Party implementing additional health measures referred to in paragraph 1 of this Article which significantly interfere with international traffic shall provide to WHO the public health rationale and relevant scientific information for it. WHO shall share this information with other States Parties and shall share information regarding the health measures implemented. For the purpose of this Article, 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.4After assessing information provided pursuant to paragraph 3 and 5 of this Article and other relevant information, WHO may request that the State Party concerned reconsider the application of the measures.5A State Party implementing additional health measures referred to in paragraphs 1 and 2 of this Article that significantly interfere with international traffic shall inform WHO, within 48 hours of implementation, of such measures and their health rationale unless these are covered by a temporary or standing recommendation.Text is taken from International Health Regulations (2005).1WHO International Health Regulations, WHA 58.3, 2nd edn. World Health Organization, Geneva2005Google Scholar 1These Regulations shall not preclude States Parties from implementing health measures, in accordance with their relevant national law and obligations under international law, in response to specific public health risks or public health emergencies of international concern, which: (a)achieve the same or greater level of health protection than WHO recommendations; or(b)are otherwise prohibited under Article 25, Article 26, paragraphs 1 and 2 of Article 28, Article 30, paragraph 1(c) of Article 31 and Article 33, provided such measures are otherwise consistent with these Regulations.Such measures shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection.2In determining whether to implement the health measures referred to in paragraph 1 of this Article or additional health measures under paragraph 2 of Article 23, paragraph 1 of Article 27, paragraph 2 of Article 28 and paragraph 2(c) of Article 31, States Parties shall base their determinations upon: (a)scientific principles;(b)available scientific evidence of a risk to human health, or where such evidence is insufficient, the available information including from WHO and other relevant intergovernmental organizations and international bodies; and(c)any available specific guidance or advice from WHO.3A State Party implementing additional health measures referred to in paragraph 1 of this Article which significantly interfere with international traffic shall provide to WHO the public health rationale and relevant scientific information for it. WHO shall share this information with other States Parties and shall share information regarding the health measures implemented. For the purpose of this Article, 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.4After assessing information provided pursuant to paragraph 3 and 5 of this Article and other relevant information, WHO may request that the State Party concerned reconsider the application of the measures.5A State Party implementing additional health measures referred to in paragraphs 1 and 2 of this Article that significantly interfere with international traffic shall inform WHO, within 48 hours of implementation, of such measures and their health rationale unless these are covered by a temporary or standing recommendation. Text is taken from International Health Regulations (2005).1WHO International Health Regulations, WHA 58.3, 2nd edn. World Health Organization, Geneva2005Google Scholar We explain our conclusion here. First, under Article 43.2, countries cannot implement additional health measures exclusively as a precaution but must rather ground their decision making in "scientific principles", "scientific evidence", and "advice from WHO".1WHO International Health Regulations, WHA 58.3, 2nd edn. World Health Organization, Geneva2005Google Scholar Many of the travel restrictions being implemented during the COVID-19 outbreak are not supported by science or WHO. Travel restrictions for these kinds of viruses have been challenged by public health researchers,4Brownstein JS Wolfe CJ Mandl KD Empirical evidence for the effect of airline travel on inter-regional influenza spread in the United States.PLoS Med. 2006; 3: e401Crossref PubMed Scopus (206) Google Scholar, 5Mateus ALP Otete HE Beck CR Dolan GP Nguyen-Van-Tam JS Effectiveness of travel restrictions in the rapid containment of human influenza: a systematic review.Bull World Health Organ. 2014; 92 (80D): 868Crossref PubMed Scopus (82) Google Scholar, 6Poletto C Gomes MF Pastore y Piontti A et al.Assessing the impact of travel restrictions on international spread of the 2014 West African Ebola epidemic.Euro Surveill. 2014; 19: 20936Crossref PubMed Scopus (123) Google Scholar and WHO has advised against travel restrictions, arguing they cause more harm than good.7WHO Updated WHO advice for international traffic in relation to the outbreak of the novel coronavirus 2019-nCoV.http://www.who.int/ith/2019-nCoV_advice_for_international_traffic/en/Date: Jan 27, 2020Date accessed: February 11, 2020Google Scholar, 8WHO WHO Director-General's statement on IHR Emergency Committee on Novel Coronavirus (2019-nCoV).https://www.who.int/dg/speeches/detail/who-director-general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-nCoV)Date: Jan 30, 2020Date accessed: February 11, 2020Google Scholar Second, under Article 43.1 any additional health measures implemented by countries "shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives".1WHO International Health Regulations, WHA 58.3, 2nd edn. World Health Organization, Geneva2005Google Scholar In this case, even if travel restrictions did work, there are so many other more effective measures that countries can take to protect their citizens. WHO has issued COVID-19 technical guidance on several such measures, including risk communication, surveillance, patient management, and screening at ports of entry and exit.9WHO Novel coronavirus (2019-nCoV) technical guidance.https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidanceDate: 2020Date accessed: February 11, 2020Google Scholar Third, and most importantly, Article 3.1 strictly requires all additional health measures to be implemented "with full respect for the dignity, human rights and fundamental freedoms of persons",1WHO International Health Regulations, WHA 58.3, 2nd edn. World Health Organization, Geneva2005Google Scholar which in turn must reflect the international law principles of necessity, legitimacy, and proportionality that govern limitations to and derogations from rights and freedoms.10Takahashi Y Proportionality.in: Shelton D Oxford Handbook of International Human Rights Law. Oxford University Press, Oxford2013: 449Crossref Google Scholar Under no circumstances should public health or foreign policy decisions be based on the racism and xenophobia that are now being directed at Chinese people and those of Asian descent.11Yeung J As the coronavirus spreads, fear is fueling racism and xenophobia. CNN,.https://edition.cnn.com/2020/01/31/asia/wuhan-coronavirus-racism-fear-intl-hnk/index.htmlDate: Jan 31, 2020Date accessed: February 11, 2020Google Scholar Many of the travel restrictions implemented by dozens of countries during the COVID-19 outbreak are therefore violations of the IHR.12WHO Novel coronavirus (2019-nCoV) situation report—18.https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200207-sitrep-18-ncov.pdf?sfvrsn=fa644293_2Date: Feb 7, 2020Date accessed: February 11, 2020Google Scholar Yet, perhaps even more troubling, is that at least two-thirds of these countries have not reported their additional health measures to WHO,12WHO Novel coronavirus (2019-nCoV) situation report—18.https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200207-sitrep-18-ncov.pdf?sfvrsn=fa644293_2Date: Feb 7, 2020Date accessed: February 11, 2020Google Scholar which is a further violation of IHR Articles 43.3 and 43.5. Flagrant disregard for the legal requirement to promptly report any additional health measures frustrates WHO's ability to coordinate the world's response to public health emergencies and prevents countries from holding each other accountable for their obligations under the IHR. Some countries argue that they would rather be safe than sorry. But evidence belies the claim that illegal travel restrictions make countries safer.4Brownstein JS Wolfe CJ Mandl KD Empirical evidence for the effect of airline travel on inter-regional influenza spread in the United States.PLoS Med. 2006; 3: e401Crossref PubMed Scopus (206) Google Scholar, 5Mateus ALP Otete HE Beck CR Dolan GP Nguyen-Van-Tam JS Effectiveness of travel restrictions in the rapid containment of human influenza: a systematic review.Bull World Health Organ. 2014; 92 (80D): 868Crossref PubMed Scopus (82) Google Scholar, 6Poletto C Gomes MF Pastore y Piontti A et al.Assessing the impact of travel restrictions on international spread of the 2014 West African Ebola epidemic.Euro Surveill. 2014; 19: 20936Crossref PubMed Scopus (123) Google Scholar In the short term, travel restrictions prevent supplies from getting into affected areas, slow down the international public health response, stigmatise entire populations, and disproportionately harm the most vulnerable among us. In the longer term, countries selecting which international laws to follow encourages other countries to do the same, which in turn undermines the broader rules-based world order. Effective global governance is not possible when countries cannot depend on each other to comply with international agreements.13Hoffman SJ The evolution, etiology and eventualities of the global health security regime.Health Policy Plan. 2010; 25: 510-522Crossref PubMed Scopus (53) Google Scholar Of course, the IHR is far from perfect. For example, the IHR only governs countries, not corporations and other non-governmental actors. Thus, some countries are finding themselves with de-facto travel restrictions when airlines stop flying to places affected by COVID-19. Additionally, the IHR does not have robust accountability mechanisms for compliance, enforcement, oversight, and transparency.14Ottersen T Hoffman SJ Groux G Ebola again shows the International Health Regulations are broken: what can be done differently to prepare for the next pandemic?.Am J Law Med. 2016; 42: 356-392Crossref PubMed Scopus (19) Google Scholar But the IHR is the legally binding system for protecting people worldwide from the global spread of disease. With more than 2·5 billion people travelling between about 4000 airports every year,15Khan K Eckhardt R Brownstein JS et al.Entry and exit screening of airline travellers during the A(H1N1) 2009 pandemic: a retrospective evaluation.Bull World Health Organ. 2013; 91: 368-376Crossref PubMed Scopus (38) Google Scholar future outbreaks are inevitable. Responses that are anchored in fear, misinformation, racism, and xenophobia will not save us from outbreaks like COVID-19. Upholding the rule of international law is needed now more than ever. Countries can start by rolling back illegal travel restrictions that have already been implemented and by supporting WHO and each other in implementing the IHR. This research was supported by the Canadian Institutes of Health Research (grant #312902) and the International Collaboration for Capitalizing on Cost-Effective and Life-Saving Commodities (i4C) that is funded through the Research Council of Norway's Global Health & Vaccination Programme (GLOBVAC Project #234608). GLB was previously WHO's Legal Counsel. SD is a member of the WHO research ethics review committee. ME-T reports consulting fees from WHO unrelated to this Comment. LOG and SJH are directors of WHO Collaborating Centres. SJH is additionally a Scientific Director with the Canadian Institutes of Health Research (the Government of Canada's national health research funding agency). We declare no other competing interests. Views and opinions in this consensus statement Comment represent those of the authors writing in their personal and independent academic roles, without any direction from their governments or institutions.