The Dynamic of Travel Restriction Amidst Pandemic Under International Law

No one knows how 2020 will turn out. Many countries didn’t expect that there will be pandemic occurs in 2020. where it turns out that the world will facing new kind of virus which name of Coronavirus Disease 2019 (COVID-19). The symptoms of the virus itself are variable, but often include fever, cough, fatigue, breathing difficulties and loss of smell and taste. COVID-19 spreads from person to person mainly through the respiratory route after an infected person coughs, sneezes, sings, talks or breathes. A new infection occurs when virus-containing particles exhaled by an infected person, either respiratory droplets or aerosols, get into the mouth, nose, or eyes of other people who are in close contact with the infected person. During human-to-human transmission, an average 1000 infectious SARS-CoV-2 virions are thought to initiate a new infection.

Because of the ease which the virus is transmitted. Based on January 29th 2021, the Covid-19 Virus has transmitted as many 102,138,770 confirmed cases with total deaths of 2,203,127 and had recovered total of 73,988,074. Because of the imminent threat of the virus, many countries had already implemented the travel restriction in their countries such as United States of America where on 31 January 2020 implement prohibition from entering the U.S. within 14 days of being in China, soon many countries also follow this restriction. But how about the member of the ASEAN countries? To be specific how their policy regarding to handling this pandemic?

The Member States of the Association of Southeast Asian Nations (ASEAN) were affected early in the 2020 outbreak of the novel coronavirus SARS-CoV-2 (COVID-19). Thailand identified the first case on 13 January 2020. ASEAN Member States (AMS) and institutions responded rapidly, putting numerous measures and restrictions in place well before the World Health Organization (WHO) declared the outbreak a global pandemic on 11 March 2020. when the World Health Organization (WHO) defined the new coronavirus (COVID-19) as a global pandemic, the virus has infected 23.3 million people and killed 741,000 across 210 countries. In Southeast Asia, in October 17 2020 ASEAN member countries have confirmed at least 869,515 cases and 21,076 deaths, although this figure is undoubtedly considerably higher due to the large number of unreported or undiagnosed cases, especially in developing countries with fragile medical systems. As of August 2020, Indonesia has the highest fatality ratio as a percentage of its population (4.56), while Singapore has the lowest death rate in the region (0.05) (ABVC 2020).

COVID-19 responses undertaken by individual member countries of ASEAN have been tremendously diverse and have ranged from strict lockdown conditions in the highly regulated city-state of Singapore to ‘business as usual’, especially in rural areas of developing countries with large informal economies such as Laos and Myanmar. Yet ASEAN member countries also have a long history of cross-border cooperation, forged through trade regionalization and economic integration. In the health sector, ASEAN cooperation has been infused into region-wide frameworks including the ASEAN Political-Security Community (APC), ASEAN Economic Community (AEC) and ASEAN Socio-Cultural Community (ASCC). Through these social-cultural pillars, ASEAN has developed a basic platform for health security cooperation since 1980, as shown, for instance, through ASEAN-level responses to prior pandemics including SARS, H1N1 and MERS-CoV3.

Many members of ASEAN countries had implemented travel restriction and it turns out to be positive for handling the spread of viruses, for example in Brunei Darussalam, Brunei has successfully contained the spread of Covid-19 and has begun opening travel corridors with other countries in Southeast Asia. Schools and places of worship have been open since July, while businesses and restaurants have reopened gradually. Brunei’s success can be attributed to its quick and drastic restrictions on travel, extensive testing, and strict quarantine rules. The small country may also have benefitted from only sharing borders with Malaysia, which until recently, contained the virus reasonably well.

Based upon that we can sees that there are some ASEAN countries that already implemented travel restriction, but how the international law sees it? Or is it contrary to the international law?

International Law Perspective

To be noted that, when the WHO declares the covid-19 as Public Health Emergency of International Concern (PHEIC) pursuant to article 12 of IHR and it will automatically invoke the International Health Regulation 2005 to be guidelines under international law regarding to handling pandemic. This IHR regulation are legally binding to all member of states which parties to the WHO.Moreover, the purpose of the IHR itself is to provide guidelines for handling pandemic and avoid unnecessary interference with international traffic and trade. Clearly when a country imposing travel restriction against China during the outbreak of covid-19, many countries are violating the IHR, many countries will tend to stigmatise or discrimination to Chinese nationals or even Asian descent for indicating to having the viruses and that kind of action is also contravene to the article 3 of IHR.

The IHR article 3(4) gives state a wide discretion regarding how they implement their health policy to handling the pandemic but this right is not unlimited, their policy must in accordance with the charter of the united nations and the principles of international law and uphold the principle of IHR. The state has reacted in various way regarding to their policy, some comply with the IHR and some were not. Moreover, article 43 IHR also provides states to implemented additional measures for handling pandemic but this additional measure shall base on scientific evidence and shall not apply travel and trade restriction. Many travel restrictions of countries would likely fall under category of additional measures, also many of the travel restrictions being implemented during the COVID-19 outbreak are not supported by science or WHO. Even more troubling, is that at least two-thirds of these countries have not reported their additional health measures to WHO,which is a further violation of IHR Articles 43(3) and 43(5) and WHO states that they cause more harm than good.

Here is where the dilemma comes in. States when imposing the travel and trade restrictions during the pandemic are indeed violated the IHR but also to consider is that state also have right to implement their regulation as they see fit to them. State sovereignty play major part in it, sometimes travel and trade restriction are not that bad. As I mention for example in Brunei Darussalam. It turns out that imposing travel and trade restriction can confer good outcome regarding to flatten the curve of Covid-19 spreading. Moreover, Article 1 of the IHR states that the Recommendations constitute “non-binding advice”. So even if IHR is legally binding but the recommendations itself have no enforcement right to state to comply with it.

In the end there will eventually come the dilemma where the state insists on their state sovereignty for handling this pandemic, the diversity of policy of many states is sometimes contravene to the international law. But the point to be made here is that no matter how the diversity of many countries implementing their policies in order to handling this pandemic. What matters is what the outcome from that policies we can take benefit from. Because travel and trade restrictions that was made by many countries during the pandemic are also prove to be positive for manage this pandemic. The IHR 2005 have history of being amendment in the past so there is possibility in the future that IHR can consider to allow states imposing travel and trade restriction because in the end as cicero once said “salus populi suprema lex esto” which mean the welfare of the people shall be the supreme law.

M. Yusuf Akbar
M. Yusuf Akbar
University of Bengkulu delegates of Phillip C. Jessup moot court competition at global round 2021