2.1 Preliminary Comments

In this consensus statement, Article 43 of the ihr is interpreted according to the rules of interpretation laid out in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties.²⁴ Although the rules of the Vienna Convention do not represent an exhaustive compilation of guidance on the interpretation of international agreements, they are widely regarded as having general applicability to the interpretation of international legal instruments as an expression of accepted principles and practices, including instruments like the ihr.²⁵ Support for this latter conclusion can be found under Article 5 of the Vienna Convention, which stipulates that “the Convention applies…to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.”²⁶ While the ihr is not referred to as a “treaty” by the who or its parties, the Vienna Convention was nonetheless applied here because it is the most authoritative framework for interpreting all types of written international law instruments no matter their name or label.

Regulations adopted under Article 21 of the who Constitution become legally binding on all 194 who member states unless a state rejects them (or files a reservation subject to a procedure spelled out in Article 53) within 18 months from the date of notification.²⁷ Since no state party had sought to opt out of the revised ihr before its entry into force, the ihr is binding on all these states, with two additional states, the Holy See and Liechtenstein, acceding subsequently.

The degree to which states understood the ihr to create reciprocal legal obligations subject to the Vienna Convention is further illustrated by the responses that emerged from reservations to the regulations. For example, speaking on behalf of 27 member states, Portugal, as then-President of the Council of the European Union, recalled the principle set out in Article 27 of the Vienna Convention that “a Party may not invoke the provisions of its internal law as justification for its failure to perform its international obligations” and concluded that federal governments would be expected to “exercise every effort to ensure that the provisions of the ihr are fully implemented and given full effect by the pertinent authorities.”²⁸

2.2 Interpretive Approach

The UN International Law Commission (ilc) has previously advised that the interpretation of a treaty should consist of “a single combined operation, which places appropriate emphasis on the various means of interpretation indicated, respectively, in Articles 31 [general rule of interpretation] and 32 [supplementary means of interpretation]” of the Vienna Convention.²⁹

This consensus statement interprets Article 43 of the ihr using the elements of the Vienna Convention’s general rule of interpretation.³⁰ These elements include (a) the ordinary meaning given to the terms of the treaty in their context and in light of its object and purpose, as well as wha resolution 58.3 of 23 May 2005, which qualifies as an agreement relating to – and made by all parties in connection with – the conclusion of the ihr³¹ (Section 3); (b) subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (Section 4); and (c) any relevant rules of international law applicable in the relations between the parties (Section 5).

Where the meanings resulting from this application of the general rule require confirmation or clarification, recourse is also made to the Vienna Convention’s supplementary means of treaty interpretation.

3.1 Purpose and Context of the ihr as a Whole

The purpose of the revised ihr, as stated in Article 2 of this legal instrument, is 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.”⁴⁸

The ihr must be implemented in accordance with the principles delineated in Article 3. Using the force of mandatory language, these principles state that the ihr shall be implemented “with full respect for the dignity, human rights and fundamental freedom of persons,” “guided by the Charter of the United Nations and the Constitution of the World Health Organization”, and “guided by the goal of their universal application for the protection of all people of the world from the international spread of disease.” In recognition of the principle of sovereignty, Article 3 further recognizes that “[s]tates have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to legislate and to implement legislation in pursuance of their health policies. In doing so they should uphold the purpose of these Regulations.”⁴⁹

Since the Vienna Convention’s general rule of interpretation focuses on the text of the treaty itself in defining “context”, it is important to reflect upon the architecture of the ihr, Article 43’s placement within the regulations, as well as related provisions which would help guide an understanding of what additional measures states can legally enact in response to public health risks.

The ihr is divided into 10 parts. Part i (Articles 1–4) articulates the definitions, purpose, scope, principles, and responsible authorities under the regulations. Part ii (Articles 5–14) details the procedures of the public health response, including the system of notification to the who of potential pheics. Part iii (Articles 15–18) delineates the types of recommendations that may be issued by who under the ihr, including the non-binding nature of these recommendations. Part iv (Articles 19–22) establishes ihr requirements at ports of entry. Part v (Articles 23 to 34) outlines the public health measures that may be taken in response to public health risks (as well as limits to such measures). Part vi (Articles 35–39) addresses requirements for health documentation. Part vii (Articles 40–41) considers the appropriateness of levying charges for health measures applied to travelers as well as to baggage, cargo, goods, and other objects. Part viii (Articles 42 to 46) contains “general provisions” with linkage and applicability to other parts of the ihr. The terms of reference, composition, and mode of operation of the ihr’s Review Committee and the Emergency Committee are contained in Part ix (Articles 47 to 53). Part x (Articles 54 to 66) contains final provisions, including measures for self-reports of ihr implementation, procedures for amending the ihr, and the relationship of the ihr with other intergovernmental agreements. Article 43 is situated in Part viii alongside clauses invoking transparency, non-discrimination, collaboration, and data confidentiality.

Departing from the disease-specific model of the ihr (1969), the revised ihr adopts an all-hazards approach to public health protection. As such, a “disease” is defined as “an illness or medical condition, irrespective of origin or source, that presents or could present significant harm to humans.”⁵⁰ A “public health risk” is defined as the “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.”⁵¹ It follows from this definition that any “extraordinary event” may be considered a pheic if it (1) constitutes a public health risk to other states through the international spread of disease and (2) potentially requires a coordinated international response.⁵²

The authority to declare a pheic belongs to who’s director-general,⁵³ who must actively consider information provided by affected states, the views of an Emergency Committee of international experts nominated under the ihr to provide advice,⁵⁴ scientific principles, as well as the available scientific evidence and other relevant information.⁵⁵ The determination of a pheic is thus an exercise in risk management, requiring an analysis of the risk to human health, the international spread of disease, and interference with international traffic and trade.⁵⁶

A decision instrument in the ihr’s Annex 2 guides states in deciding whether a particular event detected by their national surveillance system may constitute a potential pheic that should be notified to the who.⁵⁷ States must consider whether: (a) the public health impact of the event is serious; (b) the event is unusual or unexpected; (c) there is potential for the event to spread internationally; and/or (d) there is a significant risk that restrictions to travel or trade may result because of the event.⁵⁸ An affirmative answer to any two of these questions requires states to notify the event to the who. Additionally, Annex 2 contains a list of diseases to which the decision instrument must always be applied due to their ability to have serious public health impact and spread rapidly. States must also notify on the occurrence of a second list of diseases whose occurrence is both unusual or unexpected, may have a serious public health impact, and therefore constitute a pheic. This same decision instrument may be used as a further resource by who’s director-general when evaluating whether to declare a pheic.⁵⁹

In contrast to the former ihr (1969), information received by the who under the ihr’s above-mentioned notification scheme is considered confidential and will only be shared with other states if a pheic is confirmed or if the public health risk is too great to justify confidentiality.⁶⁰ The revision was intended to encourage states to report events that may lead to the international spread of disease, without fearing disruptions to travel and trade for doing so.⁶¹

Embracing an “upstream” public health strategy to prevent and contain outbreaks at their source, the ihr requires states to develop minimum core public health capacities at local, regional and national levels (detailed in the ihr’s Annex 1) to detect, assess, and report public health issues to the who.⁶² As a corollary to this obligation, states agree to “collaborate with each other, to the extent possible,” to develop and maintain core capacities.⁶³

Finally, the ihr identifies health measures that states must, may, and cannot legally take when responding to public health risks. According to the ihr, a “health measure” involves any procedure “applied to prevent the spread of disease or contamination,” to the exclusion of law enforcement or security measures.⁶⁴ Unlike the former ihr (1969), the list of health measures explicitly recognized is not intended to be exhaustive.⁶⁵ Enumerated under Part v of the ihr, nearly all of the health measures listed are subject to “applicable international agreements,” “other relevant articles” of the ihr, and/or, more particularly, Article 43. In response to a specific public health risk or to a pheic, Article 43 allows states to implement additional health measures, but only if they achieve the same or greater levels of health protection than recommendations issued by the who⁶⁶ or health measures otherwise prohibited by specific articles of the ihr⁶⁷ and only provided certain conditions are met. Reflecting on recent and ongoing pheics, Article 43 has emerged as one of the most contentious provisions of the ihr, both in terms of differing views among states of its meaning and in terms of states’ compliance with its obligations.⁶⁸ A more thorough textual, purposive and practical interpretation of Article 43’s key obligations is therefore needed. Before beginning this interpretive exercise, however, an explanatory note is warranted on the limits of state responsibility under the ihr.

3.2 The Responsibility of ihr States Parties for Private Acts and Omissions

The ihr is binding on 196 states parties and governs relevant actions that are attributed to them. As a general rule, it does not apply to the decisions of private entities, corporations and non-governmental actors. Decisions made by these private actors, such as airline flight cancellations or trip itinerary changes by cruise ship operators, may nevertheless impact states parties’ ability to comply with the requirements of Article 43.

Where the conduct of a private actor is concerned, the state may nonetheless bear responsibility for that conduct in accordance with the principle of state responsibility under international law, codified by the ilc in the non-binding but authoritative Draft articles on responsibility of states for internationally wrongful acts (draft articles).⁶⁹

The draft articles stipulate that an act or omission that is attributable to a state under international law and which constitutes a breach of an international obligation borne by that state engages state responsibility.⁷⁰ According to Article 5, this includes the conduct of a person or entity that is not an organ of the state but is nevertheless “empowered by the law of that state to exercise elements of the governmental authority” – provided the person or entity was acting in said capacity in the particular instance under issue.⁷¹ Such a situation may arise, for instance, when private or state-owned airlines are delegated authority in relation to immigration control or quarantine.⁷² Where the law of the state empowers the person or entity to exercise some aspect of governmental authority, the state may be held responsible, irrespective of whether it gave specific instructions or directed the specific conduct derived from such authority.⁷³

Relatedly, the conduct of a person or group of persons, acting under the instructions, direction or control of the state may be attributed to the state for the purposes of determining responsibility under Article 8.⁷⁴ While merely owning or establishing a corporation does not lead to a presumption of responsibility, a state may be deemed responsible for the conduct of corporations or private entities that it owns or has established, if that conduct can be attributed to the state within the meaning of Article 5, and if that state has in fact directed, instructed or controlled a particular conduct or activity of the entity in question.⁷⁵

Situations of total or partial state collapse, or the loss of state authority over a locality, are also foreseen by the draft articles. In such circumstances, conduct may be attributed to a state where a person or group of persons carries out elements of governmental authority in the absence or default of the official authority, and where circumstances called for the exercise of such authority.⁷⁶

Finally, Article 11 of the draft articles allows for conduct to be attributable to the state where there is tacit acknowledgment and adoption of the conduct as the state’s own. In these situations, responsibility will accrue upon the state even where the conduct would normally be considered “purely private” under any other circumstances.⁷⁷

For the remainder of this consensus statement, interpretations of Article 43 refer only to those health measures which are decided upon and implemented by the state and/or health measures which can be attributed to the state per the elements of the draft articles articulated above.

3.3 Textual Interpretation of ihr Article 43

3.4 Conclusion on Ordinary Meaning of Article 43

Overall, in response to specific public health risks or pheics, Article 43 permits states to seek an appropriate level of health protection through the implementation of additional health measures subject to several preconditions, including the use of measures that are no more intrusive or invasive to persons, and no more restrictive of international traffic, than reasonably available alternatives, and a scientific assessment of the proposed measure that must be insofar as possible, evidence-based. Once the decision is made to implement an additional health measure, states trigger two distinct obligations: (1) the obligation to review any additional health measure imposed within three months in light of scientific evidence and the advice of who; and (2) the obligation to report to who within 48 hours when an additional health measure is expected to interfere significantly with international traffic and trade. Actions taken by private and nonstate actors, such as airlines, cruise ship operators, and insurgent groups, do not fall under the purview of Article 43 unless they meet the criteria outlined under the draft articles. The ordinary meaning of Article 43 is illustrated across Figure 1, Figure 2, and Figure 3.

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State Actions Permissible Under Articles 43(1) and 43(2) of the International Health Regulations in Response to a Specific Public Health Risk or a Public Health Emergency of International Concern

Citation: International Organizations Law Review 19, 1 (2022) ; 10.1163/15723747-2020023

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State Obligation to Report Additional Health Measures Interfering Significantly with International Traffic under Articles 43(3) and 43(5) of the International Health Regulations

Citation: International Organizations Law Review 19, 1 (2022) ; 10.1163/15723747-2020023

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State Obligation to Review Additional Health Measures Implemented Under Article 43(6) of the International Health Regulations

Citation: International Organizations Law Review 19, 1 (2022) ; 10.1163/15723747-2020023

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What remains less clear from an ordinary-meaning analysis – and where other general and supplementary means of interpretation will be needed – is further clarity on the level of scientific evidence required to justify additional health measures under Article 43(2)(b). Article 43 also lacks direct guidance on what constitutes a valid “public health rationale and relevant scientific information” under paragraph 3. It is argued that, in order to fulfill the purpose of the ihr to facilitate public health responses “that are commensurate with and restricted to public health risks,”¹³⁴ additional health measures must be supported by a public health rationale that is, at minimum, based on the scientific evidence appraised in paragraph 2. This interpretation is supported by a closer examination of subsequent state practice, which is discussed in the next section.

Based purely on an ordinary-meaning analysis, it also remains unclear how states should operationalize the requirement for additional health measures to be no more restrictive of international traffic and no more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection, nor what such an ‘appropriate’ level of health protection might be. These questions will be addressed in the sections that follow.

4.1 Subsequent Practice of States

Global cooperation and consensus in the application of health measures commensurate with public health risks has historically been difficult to achieve. Feared losses in trade, tourism, and reputation disincentivized national governments from reporting disease surveillance information to who under the ihr (1969). These fears appear to be well-founded. The 1991 cholera outbreak in Peru, for instance, resulted in an estimated loss of usd 700 million due to far-reaching trade restrictions imposed on Peruvian imports.¹⁴³ Similarly, despite advice from who that no travel or trade restrictions were warranted, the international community met the 1994 plague outbreak in a defined region of Surat, India with a range of unilateral health measures, including the cancellation of flights, border closures, and, in some cases, restrictions on Indians living abroad.¹⁴⁴ Economic losses India incurred as a result of reporting the plague outbreak have been estimated at nearly usd 2 billion.¹⁴⁵ China similarly delayed disclosing information about the sars outbreak in 2003 to avoid facing similar economic blows, and is reported to have delayed once again the timely notification of covid-19 outbreaks in the city of Wuhan, Hubei province in late 2019.¹⁴⁶

The impetus for revising the ihr (1969) in 1995 arose in part from experiences such as the 1991 Peruvian cholera outbreak and the 1994 Indian plague outbreak, which underscored the need for significant improvement in state compliance with limitations on additional health measures to mitigate the economic consequences of public health risks.¹⁴⁷ The sars outbreak accelerated the pace and intensity of negotiations during the final two years before agreement on the final text of the revised ihr, with an Intergovernmental Working Group (igwg) holding meetings in November 2004 and February 2005 to draft and address revisions released in January 2004,¹⁴⁸ September 2004,¹⁴⁹ and January 2005.¹⁵⁰ The degree to which states would have the flexibility to implement additional health measures beyond those recommended by the who director-general or prescribed by the ihr was a point of contention throughout the revision process.¹⁵¹

As the first pheic declared under the ihr, H1N1 provided the earliest opportunity for an in-depth review of the ihr’s functioning, including how states applied Article 43. The latter topic was the subject of a who survey, published in the Weekly Epidemiological Record, evaluating the public health measures taken at international borders during the first three months (20 April 2009, to 31 July 2009) of the outbreak.¹⁵² The report surveyed public health authorities, as well as representatives from the airline industry, maritime industry and airports. Of the 144 responses received, 56 were from state public health authorities.

One temporary recommendation, which remained unchanged from the date of its issuance by who’s director-general on 27 April 2009 until the end of the pheic, was “not to close borders and not to restrict international travel.”¹⁵³ Nevertheless, nearly half of states responding to the survey (i.e., 26 of 56 states) reported advising their citizens to avoid travelling to affected states during the early stages of the H1N1 outbreak, while two states reported denying entry to travelers from affected states. Thirty-four of 56 (61%) states reported screening incoming passengers, usually combined with some form of isolation of confirmed cases. Ten states that isolated confirmed cases also quarantined asymptomatic close contacts of cases for 3–10 days.

In terms of trade restrictions, the who survey found that 6 of the 56 responding states reported restricting the entry of animals or goods from affected states.¹⁵⁴ However, media reports indicate that up to 20 countries adopted bans on American, Canadian and Mexican pigs and pork imports.¹⁵⁵ These bans occurred despite a joint statement from who, fao, oie and World Trade Organization (wto) stating that pork products could not transmit the disease.¹⁵⁶

As the official Review Committee on the Role of the International Health Regulations (2005) (‘Ebola Review Committee’) reported, several states repeated the use of additional health measures during the 2014–2016 Ebola outbreak. Despite the who director-general’s ongoing recommendation against any ban on international travel or trade from March 2014 and April 2015, there were reports of 570 additional health measures implemented by 69 countries. More than 470 of these measures were deemed by who’s secretariat to have not interfered with international traffic. Of the remaining 100 measures, 41 were found to have interfered significantly with international traffic. These measures included the compulsory quarantine of travelers, refusal of entry visas, cancellation of flights, and closure of air, land and sea borders.¹⁵⁷ By December 2015, the Emergency Committee noted that 34 countries continued to enact “inappropriate travel and transport measures.”¹⁵⁸

A second study, conducted by a group of independent researchers between March 2015 and April 2015, found that at least 58 states had enacted travel restrictions to or from Ebola-affected countries in West Africa.¹⁵⁹ States like Antigua and Barbuda, Australia, and Jamaica banned all travel from Ebola-affected states, while others like Afghanistan and Indonesia implemented strict visa entry requirements.¹⁶⁰ Ebola was estimated to have cost the three most-affected states economic losses totaling usd 2.8 billion.¹⁶¹

Both the H1N1 Review Committee and the Ebola Review Committee also expressed concern that states rarely reported additional health measures that significantly interfered with international travel or trade and that they rarely provided the public health rationale and relevant scientific information for these measures. The H1N1 Review Committee noted that no state that implemented additional health measures complied with its obligation to proactively inform who and provide the rationale for additional health measures implemented and few provided rationales even when requested by who to do so.¹⁶² Similarly, the Ebola Review Committee pointed out that only 40% of states responded to who requests for verification of the public health rationale and relevant scientific information supporting the use of excessive additional health measures.¹⁶³ In the early days of the 2020 covid-19 pandemic, more than two thirds of states that had implemented additional health measures were again reported to have neglected their obligation to inform the who of such measures.¹⁶⁴

While much attention is often paid to those states that implement additional health measures grossly exceeding appropriate limits, and even as these states fail to report such additional health measures to who, it appears that most states remain in compliance with the ihr most of the time and follow recommendations issued by who’s director-general.¹⁶⁵ Additional health measures adopted during the 2014–2016 Ebola outbreak were vigorously denounced by other states through resolutions adopted at the UN Security Council,¹⁶⁶ and the Assembly of the African Union,¹⁶⁷ among other international fora. More recently, in May 2018, South Africa reportedly declined to implement of travel restrictions in response to the outbreak of Ebola in the Democratic Republic of Congo (drc), their National Institute for Communicable Diseases citing the fact that “the who does not recommend that any travel or trade restrictions be applied to the drc.”¹⁶⁸

The above analysis of state practice suggests a lack of ‘clear,’ ‘specific’ or consistent practice in the application of additional health measures by states that could assist in the interpretation of Article 43. Most states follow the provisions of Article 43 most of the time.¹⁶⁹ While some states implement additional health measures that may not be commensurate with public health risks, such actions have generally been met with disapproval by other states.

4.2 Subsequent Agreement of States as Expressed through ihr Review Committees and through the wha

According to the ilc, the “pronouncements” – that is, the relevant factual and normative assessments¹⁷⁰ – of an expert treaty body may “give rise to” or “refer to” a subsequent agreement by the Parties which establishes their understanding of a treaty under Articles 31(3)(a) and 31(3)(b) of the Vienna Convention, though this result is not easily achieved in practice.¹⁷¹ More commonly, such pronouncements may give rise to, or refer to, subsequent practice under Article 32 (i.e., serve as a supplementary means of interpretation).¹⁷² An “expert treaty body”, per the ilc’s conclusion above, must be composed of members who serve in their personal capacity, meaning that they “are not subject to instructions when they act” in their capacity as an expert.¹⁷³ The expert treaty body must also have competence which is authorized by a treaty.¹⁷⁴

In the context of the ihr, the expert committees foreseen by this legal instrument would be equivalent or at least analogous to the expert treaty bodies referred to by the ilc. Under Article 50, who’s director-general may establish a Review Committee composed of members from the ihr Expert Roster and, when appropriate, other who expert advisory panels.¹⁷⁵ Such a Review Committee is expressly authorized by the ihr to serve in an advisory role to the director-general, and may be asked to carry out one or more of the following tasks: (a) make technical recommendations regarding amendments to the ihr; (b) provide technical advice to the director-general with respect to standing recommendations; and (c) provide technical advice on any matter referred to it regarding the functioning of the ihr.¹⁷⁶ Article 50(2) further specifies that “the Review Committee shall be considered an expert committee” and subject to the who Regulations for Expert Advisory Panels and Committees (“who Advisory Panel Regulations”).¹⁷⁷ Several provisions within the latter document, such as the prohibition against receiving remuneration from who, and the ban against receiving instructions from any external authority, suggest that experts serving such committees are doing so in their personal capacity.¹⁷⁸

The ihr Emergency Committee is another expert committee explicitly foreseen and mandated by the ihr.¹⁷⁹ Like the Review Committee, it is established by the director-general, but limited in duration and scope.¹⁸⁰ Unlike the Review Committee, however, no provision in the ihr subjects the Emergency Committee to Advisory Panel Regulations.

The ihr clarifies that the views of a Review Committee “shall not commit the Organization and shall be formulated as advice to the director-general” and that the views of an Emergency Committee are to be forwarded to the director-general, who “shall make the final determination” on matters pertaining to its competence.¹⁸¹ This does not preclude the possibility, however, that the pronouncements of either body may give rise to, or refer to, a subsequent agreement by the ihr’s states parties which establishes their understanding regarding the interpretation of the ihr. To be of assistance in treaty interpretation, pronouncements made by expert treaty bodies need not be legally binding.¹⁸²

Rather, the weight accorded to such pronouncements depends on whether it can be said that the pronouncement “gave rise to” or “referred to” subsequent practice or subsequent agreement of the parties. The ilc has explained that one of the ways such pronouncements may be identified is by examining the “resolutions of organs of international organizations”.¹⁸³ Such resolutions and decisions, when adopted by consensus under the auspices of an international organization, may also serve as a supplementary means of interpretation under the Vienna Convention.¹⁸⁴

The who Constitution empowers three organs – the 194-member wha, the 34-member Executive Board, and the secretariat – to carry out the work of the organization.¹⁸⁵ Reports prepared by the ihr review committee are usually submitted for consideration at sessions of the wha and Executive Board. The reports that substantively discuss the application of Article 43 have arisen mainly in the context of two ihr Review Committee analyses of how these regulations functioned during the 2009 H1N1 and 2014–2016 Ebola outbreaks. Some assessments from the above-mentioned reports have formed the subject of resolutions and decisions at the wha. These report findings, and their subsequent uptake in resolutions, are referenced below.

After the first pheic declared under the ihr, the international community’s response to the H1N1 outbreak was studied in-depth by the ihr H1N1 Review Committee. On the application of Article 43 specifically, the H1N1 Review Committee recommended that parties “reinforce evidence-based decisions on international travel and trade” and urged who to “energetically seek to obtain the public-health rationale and relevant scientific information, share it with other States Parties, and, where appropriate, request reconsideration, as stipulated under Article 43.” It also recommended that who review and assess the effectiveness and impact of border measures taken during the outbreak to support evidence-based guidance for future events.¹⁸⁶

While the H1N1 Review Committee acknowledged inherent problems in securing compliance with travel and trade requirements under the ihr, it ultimately called for more “rigorous implementation of Article 43, by both States Parties and who, rather than amending the ihr.”¹⁸⁷ On 20 May 2011, the wha urged its member states to “support the implementation of the recommendations contained in the final report of the Review Committee on the Functioning of the International Health Regulations (2005) in relation to Pandemic (H1N1) 2009.”¹⁸⁸

The West Africa Ebola outbreak, the severity and duration of which was widely regarded as having challenged the ihr in “unprecedented ways”,¹⁸⁹ provided a second opportunity for an in-depth review of the interpretation of Article 43 in practice. Unlike H1N1, which occurred in the early phases of ihr implementation, the Ebola outbreak emerged at a time when parties had already overseen at least two major public health situations (i.e., H1N1 and mers) and would have been more seasoned in the implementation of Article 43. Shortcomings in ihr operationalization and global solidarity led who’s Executive Board to call for the establishment of a panel of outside experts (the “Ebola Interim Assessment Panel”) to examine “all aspects of who’s response to the Ebola outbreak.”¹⁹⁰ Subsequently, on 26 May 2015, the wha also called on who’s director-general to establish the Ebola Review Committee.¹⁹¹

Although both the Ebola Interim Assessment Panel and the Ebola Review Committee noted that at least 40 states implemented additional health measures that interfered significantly with international traffic without due regard for the procedural and scientific requirements under Article 43, there were key differences between the recommendations issued by the Panel and those suggested by the Committee. For instance, citing the severe economic consequences that were borne by states affected by Ebola, as well as the barriers to receiving necessary personnel and supplies, the Panel called upon the Ebola Review Committee to examine the option of implementing disincentives and imposing sanctions on states that had adopted inappropriate or unjustified additional health measures under the ihr.¹⁹² This recommendation was supported by a separate High-Level Panel on the Global Response to Health Crises convened by the UN Secretary-General in 2015, which observed that “no further action is currently outlined in ihr if a country introduces a measure that is not justified by scientific principles or evidence.” The UN Secretary-General’s High-Level Panel sought to rectify this gap by requesting that the who’s Ebola Review Committee give consideration for “strengthening the review powers of the who and compensation in the event that trade and travel restrictions are determined to have exceeded the temporary recommendations of who without adequate justification.”¹⁹³

The Ebola Review Committee disagreed on this point, noting that the will of the states parties during intergovernmental negotiations in 2004 and 2005 was to avoid the inclusion of sanctions for non-compliance. Specifically, the Review Committee opined that “the ethos that underpins international public health is one of cooperation and collaboration, rather than sanctions.”¹⁹⁴ As with the H1N1 Review Committee, the predominant concern of the Ebola Review Committee was the fact that “[i]n practice, very few countries inform the who about the implementation of additional measures and few justify or reconsider enacted measures, even when asked to do so.”¹⁹⁵ As a result, the Ebola Review Committee merely reminded states of their need to comply with all relevant ihr obligations when implementing international traffic and trade measures. The Review Committee’s recommendations to the who secretariat were more detailed and prescriptive, and called for the active monitoring of measures implemented by parties, as well as actions taken by nonstate actors, and analysis of public health rationales for such measures.¹⁹⁶

Although the Ebola Review Committee did not find it within the spirit of the ihr to suggest including new disincentives or sanctions against states implementing additional health measures, it recommended that the who secretariat publish on its website additional health measures that go beyond temporary recommendations or which may have “an unreasonable adverse impact” on one or more ihr states parties, provided that the implementing state has either: (1) failed to notify who or provide details about such measures when requested; (2) failed to provide an adequate public health rationale; (3) failed to review such measures within three months; or (4) failed to reconsider them when requested to do so by the who secretariat.¹⁹⁷ As an illustration of the ingenuity that these post-Ebola reflections generated, the Review Committee introduced wording (e.g., additional health measures with an “unreasonable adverse impact”) and conditions (e.g., states that fail to reconsider additional measures) that do not appear as such in the text of Article 43.

The report of the Ebola Review Committee was well-received by the wha, which at its meeting in May 2016 requested who’s director-general to develop a global implementation plan for the Review Committee’s recommendations.¹⁹⁸ Later approved by the wha on 26 May 2018, the five-year global implementation plan acknowledges that states’ compliance with additional health measure provisions under the ihr is “a critical element for the optimal functioning of the global alert and response system, ” though it does not explicitly mention the need for states to publish additional health measures implemented where these health measures interfere significantly with international traffic, as per the criteria suggested in the final report of the Ebola Review Committee.¹⁹⁹

On 17 July 2019, on the recommendation of the ihr Emergency Committee, the director-general declared the Ebola outbreak in the drc as the fifth pheic since the entry into force of the ihr. Referring to the exceptionally harsh nature of the lessons learned from the 2014–2016 Ebola outbreak in West Africa, the Emergency Committee cautioned that “the global community should anticipate possible negative consequences and proactively prevent them from occurring”.²⁰⁰ This was followed by a statement from the director-general, who urged the international community not to use the pheic “to stigmatize and penalize the very people who are most in need of our help”.²⁰¹ Calls against stigma and discrimination have been repeated during covid-19, both by the director-general, and the UN Secretary-General.²⁰²

The practice of states as discerned through the recommendations of the ihr Review and Emergency Committees, and the adoption of decisions and resolutions through the wha, confirms several aspects of Article 43’s ordinary-meaning analysis in Section 3. It confirms that additional health measures must be “evidence-based”²⁰³ and that the provision of a public health rationale is not a mere formality but rather a mandatory requirement which must be “adequate.”²⁰⁴

Analysis of subsequent agreements of states moreover suggests that certain additional health measures may be rendered impermissible under Article 43, or at minimum subject to review by the who, on the basis of their “unreasonable adverse impact” on other states.²⁰⁵ While this term is not explicitly used in the text of Article 43, it is consistent with the requirement under Article 3 of the ihr that the implementation of the regulations “be guided by the goal of their universal application for the protection of all people of the world from the international spread of disease,”²⁰⁶ and it is consistent with the principle elaborated under Article 2 to avoid any “unnecessary” interference with international traffic and trade.²⁰⁷

4.3 Conclusion on Subsequent Practice and Subsequent Agreement in the Application of Article 43

Subsequent state practice usually provides helpful interpretive insight into whether parties have agreed upon certain meanings of terms and obligations of an international legal instrument. In the case of the ihr, however, experiences with H1N1, Ebola and covid-19 reveal inconsistencies and a fractured consensus in the types of additional health measures permitted. States that did implement additional health measures also demonstrated an overall lack of compliance with (and sometimes a lack of awareness for) their obligation to report any additional health measures to who and provide a public health rationale where those measures interfere significantly with international traffic. Yet, despite these areas of inconsistent state practice among a minority of states, it appears that most states observe most aspects of Article 43 most of the time.

wha resolutions adopted by states in response to pheics have overwhelmingly expressed disapproval when additional health measures have exceeded temporary recommendations issued by who’s director-general and negatively impacted the populations and economies of affected countries.²⁰⁸ This suggests that, in addition to the Article 43(1) requirement for measures to be no more restrictive to international traffic and no more intrusive and invasive to persons than reasonably available alternatives that would achieve the appropriate level of health protection, states must also factor into their decision making the real and tangible harm that might result from the implementation of any additional health measures that are not rooted in public health evidence.

5.1 International Human Rights Law

Whether it involves quarantine or isolation, the imposition of intrusive or invasive medical procedures, the handling of personal information, the destruction of personal property, or restrictions on the freedom of movement, the implementation of an additional health measure under Article 43 may lead to state limitations to, or derogations from, human rights and freedoms protected by international human rights instruments and enshrined in customary international law. For example, affected rights could include: the right to liberty and security of the person under Article 3 of the Universal Declaration of Human Rights (udhr), and Article 9(1) of the International Covenant on Civil and Political Rights (iccpr); the liberty of movement under Article 13 of the udhr and Article 12 of the iccpr; and the right to privacy under Article 12 of the udhr and Article 17 of the iccpr.²¹³ The iccpr is legally-binding upon 172 parties. The udhr, although not legally binding, is widely regarded as reflecting customary international law.²¹⁴

Rights and freedoms analogous to the above examples from the udhr and iccpr are contained in various additional international and regional human rights treaties and related protocols, including the Convention on the Rights of the Child, the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples’ Rights, and the American Convention on Human Rights. Table 1 provides a non-exhaustive overview of these analogous rights and freedoms across relevant international and regional treaties and protocols.

View Table

Although Article 57 of the ihr explicitly gives precedence to state obligations arising from other international legal instruments, it was decided during the drafting of the ihr that the “formulation of… ‘qualified’ rights [would] allow for a better synergy between the draft Regulations and the [iccpr].”²¹⁵ As a result, the current ihr regulates the implementation of health measures in a manner that renders such implementation consistent with human rights obligations and especially those rights and freedoms contained in the iccpr. Broadly speaking, this means that the implementation of the ihr must be undertaken with full respect for the dignity, human rights and fundamental freedoms of persons²¹⁶ and must adhere to the principle of non-discrimination.²¹⁷ Consideration for civil rights reappears again under Article 23 of the ihr, requiring states to obtain express informed consent prior to carrying out any “medical examination, vaccination, prophylaxis or health measure” on a traveler upon their arrival or departure;²¹⁸ under Article 42 of the General Provisions (Part viii), which requires that health measures be “initiated and completed without delay” and applied in a transparent manner;²¹⁹ and under Article 45, which calls for the confidentiality and appropriate handling of health information collected or received by a state pursuant to the ihr.²²⁰ These provisions must be taken into account when implementing additional health measures under Article 43, since all additional health measures must be “otherwise consistent” with the ihr.²²¹

Except for non-derogable rights such as the right to life, the right to be free from torture, cruel, inhumane and degrading treatment,²²² and the requirement to treat all travelers with courtesy and respect, taking into consideration their gender, sociocultural, ethnic or religious concerns,²²³ certain circumstances may justify limiting the rights explicitly referred to under the ihr. For instance, the requirement to obtain express informed consent prior to carrying out any intrusive or invasive medical examination, prophylaxis or vaccination is waived in cases where there is evidence of an “imminent public health threat” posed by the traveler.²²⁴ Evidence of an imminent public health threat may also justify placing travelers under isolation, quarantine or public health observation, although such measures must withstand the scientific assessment prescribed by Article 43(2).²²⁵

Given that the ihr was written with the intention to be compatible with international human rights law, a closer look at limitations and derogations under this regime is also warranted. Article 29(2) of the udhr explicitly acknowledges the possibility of limitations to the enjoyment of prescribed rights and freedoms where limitations are “determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”.²²⁶ Unlike limitations, a derogation leads to a full suspension of the right in question in a state of emergency. In this regard, Article 4 of the iccpr provides that “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed”, states may derogate from obligations under this instrument.²²⁷ Other international and regional human rights treaties also contain explicit limitation and derogation clauses justifying the curtailment or suspension of analogous rights and freedoms under limited circumstances. Table 2 provides a non-exhaustive overview of limitations and derogations clauses contained in international and regional human rights treaties.

View Table

During public health crises, the appropriateness of state encroachment on human rights hinges upon interlinking criteria widely applied by international courts and tribunals as generally accepted principles of law: (1) the state measure has a legitimate aim (principle of “legitimacy”); (2) the state measure is necessary for the achievement of the legitimate aim (principle of “necessity”); and (3) the state measure is proportional, in temporal, geographic and territorial scope, to the legitimate aim pursued (principle of “proportionality”).²²⁸,²²⁹

Similar reasoning for deviations from rights prescribed by the iccpr are also detailed in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (“Siracusa Principles”).²³² Non-binding but authoritative, the Siracusa Principles explicitly call for “due regard” to the ihr²³³ and foresee limitations to an iccpr obligation on public health grounds where a state must take measures to deal with “a serious threat to the health of a population or individual members of the population”. Such measures, however, must be “specifically aimed at preventing disease or injury or providing care for the sick and injured.”²³⁴ Any derogation from rights, according to the Siracusa Principles, must be restricted in severity, duration and geographic scope to that which is necessary to deal with the threat to the life of the nation and proportionate to its nature and extent,²³⁵ and it must nevertheless refrain from discriminating solely on the basis of race, colour, sex, language, religion or social origin.²³⁶

The text of Article 43 complements the principles of legitimacy, necessity and proportionality. Where Article 43(2) requires the state to undertake an assessment of the scientific evidence underpinning the utility of an additional health measure, it responds to the requirement under human rights law to demonstrate that a measure limiting or derogating from human rights is necessary. Where Article 43(1) seeks to implement measures that are not more intrusive to persons than reasonably available alternatives, the principle of proportionality is activated. Specific public health risks and pheics may well give rise to legitimate aims.

That travel and trade restrictions must be commensurate with the risk posed to public health is a principle that was also recognized by the UN Security Council during the 2014–2016 Ebola outbreak in West Africa. Shortly after who’s director-general declared this pheic, the UN Security Council issued Resolution 2177 of 18 September 2014, in which it expressed “concern about the detrimental effect of the isolation of the affected countries as a result of trade and travel restrictions” and called on states to “lift general travel and border restrictions…that contribute to the further isolation of affected countries and undermine their efforts to respond to the Ebola outbreak.”²³⁷

All of this means that, where additional health measures contemplated under Article 43 pose a risk to the enjoyment of rights protected by international and regional human rights treaties, states must assess planned measures not only against the general Article 43(1) limitations on their implementation and the Article 43(2) requirement for scientific justification, but also against their human rights obligations, including the principles of legitimacy, necessity, and proportionality.

5.2 International Trade Law

The broad subject matter of the ihr overlaps to some degree with the international law on trade in goods. Currently, 160 states parties to the ihr are also members of the wto.²³⁸ Considerable effort was made during negotiations to ensure that obligations under other international legal agreements would either be harmonized with or remain unaffected by the revised ihr. With respect to the international trade law regime specifically, drafters altered certain provisions of the ihr to render them mutually compatible.²³⁹ These include obligations prescribed by the General Agreement on Tariffs and Trade (gatt) and the wto Sanitary and Phytosanitary (sps) Agreement, which include provisions analogous to Article 43 of the ihr in both scope and objective but specifically addressing measures for attenuating the risk of animal or plant-carried diseases in the context of international trade.²⁴⁰

Like with human rights, the international trade law regime can be a source of interpretation according to Article 31(3)(c) of the Vienna Convention and can lend aid in interpreting terms and expressions that lack definition under the ihr – such as “scientific principles,”²⁴¹ “available scientific evidence, ”²⁴² and “reasonably available alternatives”.²⁴³ While wto instruments do not share the ihr’s primary focus on public health, the resolution of wto disputes involving these same terms in the gatt and the sps Agreement can serve as an interpretive aid. In other words, while decisions of wto’s Dispute Resolution Panels and Appellate Body are not directly applicable to the ihr and may not be the most authoritative interpretation of international law broadly, they are nonetheless authoritative in their own domain and the logic that adjudicators employ in those cases can inform arguments that who, states, and/or the icj could seize upon in similar matters involving similar terms found in the ihr’s Article 43. Specifically, wto disputes have provided guidance on, among other subjects: (1) whether a measure is “necessary” and how to contend with “reasonably available alternatives”; (2) what constitutes “sufficient scientific evidence”; and (3) whether the precautionary principle can be used to justify the use of protective measures in situations of uncertainty. In the subsections that follow, wto Panel and Appellate Body decisions are used to assist in the interpretation of these terms and concepts.

5.3 Conclusion on Relevant Rules of International Law

The public health-focused ihr was expressly crafted to exist in synergy with the broader normative environment and align with states’ obligations under other regimes of international law. As a result, Article 43 sets limitations to additional health measures by referring to language and concepts enshrined in international human rights law and international trade law. Indeed, international human rights law provides a well-developed analytical framework based on the principles of legitimacy, necessity, and proportionality that can instruct states on when it may be appropriate to limit or derogate from their human rights obligations. Rules derived from wto case law can similarly provide interpretive aid during states’ risk assessment exercises that must precede the adoption of additional health measures by clarifying terms (e.g., ‘scientific principles,’ ‘scientific evidence,’ and ‘reasonably available alternatives’) that have been the focus of extensive study in cases before the wto’s Panel and Appellate Body. The extent to which concepts from these other sources of international law are relevant for interpreting the ihr may generate debate and discussion. It is presumed, however, that treaties are not drafted and negotiated by states to be in normative conflict with one another. Even if not an authoritative source of interpretation, case law from the wto may provide invaluable insight or logic, and it certainly qualifies as a supplementary means of interpretation under the Vienna Convention’s Article 32, and, arguably, a general rule of interpretation under Article 31(3)(c) of the Vienna Convention – since wto case law constitutes an authoritative expression of the obligations in force for wto members.

6.1 Travel Restrictions and Health Screening

During the 2014–2016 Ebola outbreak, who’s director-general recommended that countries with Ebola transmission conduct exit screening at international airports, seaports, and major land crossings, and recommended that other countries avoid a general travel or trade ban.²⁷¹

Despite pressures from the United States Congress to implement travel bans,²⁷² the United States Centers for Disease Control and Prevention’s (cdc’s) response to the Ebola outbreak involved communication to travelers (e.g., travel notices), provision of technical assistance to facilitate exit screening in countries affected by Ebola, and an entry risk assessment and management program for travelers to the United States from countries with Ebola outbreaks.²⁷³ The entry risk assessment and management program, which began in October 2014, limited the entry of air travelers from Guinea, Libera, Sierra Leone and Mali to five airports where processes were used to identify travelers, administer an exposure-and-symptom questionnaire, compile details of their contacts, examine travelers’ temperatures with non-contact thermometers, and observe travelers for signs of illness.²⁷⁴ Travelers who were symptomatic or who reported possible exposures received an in-depth public health risk assessment while symptomatic travelers meeting predefined criteria were referred to receive medical attention. The program was discontinued for travelers on 19 February 2016.²⁷⁵

Several factors render the health measures implemented by the United States during the Ebola outbreaks likely permissible under Article 43. First, measures sought to prevent the spread of disease in the United States while minimizing intrusiveness or invasiveness to persons, and specifically, by avoiding travellers a delay of more than 24 hours.²⁷⁶ Rather than a direct travel ban, measures implemented by the cdc were specific and limited to that which is necessary to achieve the public health objective. The provision of technical assistance to conduct exit screening in affected countries, for instance, allowed the United States to contribute to disease containment at the source while also reassuring airlines that passengers are clear to travel. Exit screening was also found to be the health measure that interfered least with international traffic during the earlier H1N1 outbreak.²⁷⁷

In contrast, the Canadian government’s response to the Ebola outbreak involved canceling and restricting visa applications for temporary and permanent residence from anyone who was living in or had been to an Ebola-affected state within the previous three months. It also stopped processing visa applications from foreign nationals intending to travel to Ebola-affected states.²⁷⁸ Though Canada did not wholly ban travel from Ebola-affected states, it made obtaining traveler visas virtually impossible – effectively halting all travel by non-Canadian citizens to the area.²⁷⁹ Indeed, since Canadian citizens traveling to or from West Africa were exempt from these visa restrictions, one American news media outlet even labelled Canada’s actions as “dumb, xenophobic and illegal.”²⁸⁰

There is no provision in the ihr which specifically speaks to the legitimacy of cancelling or delaying traveler visas in response to a public health risk. Nevertheless, Canada’s actions objectively qualified as additional health measures exceeding the temporary recommendations issued by the who. Canada’s measures in response to Ebola were impermissible under Article 43 for at least two reasons. First, these measures discriminatorily targeted non-Canadians. In doing so, they contravened Article 42 (i.e., the principle of non-discrimination) and failed to be “otherwise consistent” with the ihr.²⁸¹ Second, when asked by the who to justify adopted measures, the Canadian government responded that its measures did not consist of a “general ban” – that is, Canadians involved in the humanitarian response were still free to travel to Ebola-affected states. Therefore, the government argued, measures did not violate who’s temporary recommendation against general bans.²⁸² Yet the relevant question to ask under Article 43 is not whether a health measure contravenes temporary recommendations, but whether it achieves the same or greater levels of protection than temporary recommendations issued by the who. On this point, it is useful to note that the effectiveness of travel restrictions is unclear from an epidemiological perspective.²⁸³ Moreover, additional health measures must be no more restrictive to international traffic and more intrusive or invasive to persons than reasonably available alternatives that would achieve the same level of health protection. To achieve the public health objective of protecting Canadians from the risk of Ebola infection, the Canadian government might have considered adopting measures similar to those implemented by their southern neighbours, where travelers were not barred from entry, but were rerouted to five major airports for screening – which itself would not have caused a significant interference with travel exceeding 24 hours delay.

6.2 Contract Tracing and Quarantine

During the 2009 H1N1 outbreak that originated in Mexico, Chinese authorities implemented a stringent and comprehensive set of health measures designed to prevent the spread of the disease within local communities as well as at points of entry into the country. At the outset of the outbreak, China quarantined approximately 70 Mexican tourists, as well as some Canadian and American travellers, regardless of their exposure to the virus.²⁸⁴ They also implemented intensive contact tracing, and fengxiao, a tightly monitored measure of movement restriction, which prevents college and university students, faculty and staff members from leaving their campuses.²⁸⁵ School classes were cancelled at the first hint of disease.²⁸⁶ Chinese officials justified these measures as being necessary to prevent “the fast spread of the new flu strain.”²⁸⁷ Such measures were not without backlash: China faced harsh criticism from the international community, and who subsequently requested China’s rationale for adopting such measures under the ihr.²⁸⁸ China apologized for their non-compliance with the ihr and issued a formal apology to Mexico.²⁸⁹

Several states repeated the use of quarantines again during the 2014–2016 Ebola outbreak.²⁹⁰ The ihr allows states to adopt quarantine measures in accordance with their national laws and other international laws “to the extent necessary to control [the imminent public health] risk”.²⁹¹ The ihr does not set out level of “imminent public health risk” required for states to subject asymptomatic travellers to quarantine orders or prescribe limits to the length of such quarantine orders.²⁹² In addition, the ihr does not describe appropriate procedures for quarantine orders, including due process protections and appeal routes.

In practice, given the principles underlying state derogations from human rights obligations, states should only adopt quarantine orders that are legitimate, necessary, and proportionate to control the spread of infectious diseases. They must also be of limited duration. Some may argue that China has not ratified the iccpr.²⁹³ Yet, even in the absence of this instrument, the ihr rendered it incumbent on the government to show that its health measures were no more intrusive to persons than reasonably available alternatives that would achieve appropriate public health protection.

6.3 Restrictions Applied to Goods

Despite a joint statement from who, fao, oie and wto stating that pork products cannot transmit the H1N1 virus,²⁹⁴ at least 20 countries, including China, Russia and the Republic of Korea banned or restricted pork imports from the United States, Canada and Mexico during the outbreak.²⁹⁵ American, Canadian and Mexican officials moved quickly to condemn these various restrictions.²⁹⁶

Countries that restricted trade during the H1N1 outbreak contravened Article 43(2) of the ihr by failing to base their trade measures on the available scientific evidence as well as the available information from relevant/competent international organizations (in this case, the who, fao, oie and wto). Moreover, as per the H1N1 Review Committee’s post-outbreak analysis, no country had voluntarily provided public health rationales for additional health measures implemented, ²⁹⁷ constituting a clear violation of the obligation under Article 43(3) to provide public health rationales for such measures.

Legality is less clear when health measures are applied on a purely national level. Egyptian authorities, for instance, ordered the mass slaughter of between 250,000 and 400,000 pigs, despite no reported H1N1 outbreak in humans or pigs in the country.²⁹⁸ This health measure was applied at significant cost to local farmers who were not paid for their losses.²⁹⁹ The ihr prohibits the imposition of charges for health measures applied to travellers, but it remains silent on whether health measures resulting in losses to local populations would similarly be impermissible.³⁰⁰ Nevertheless, it is highly unlikely that such measures would be classified as being ‘commensurate with public health risks.’