COVID-19 spreading does not stop at the border, so how should states respond?

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COVID-19 spreading does not stop at the border, so how should states respond?

Health Governance by the World Health Organization versus a patchwork of additional measures by states during the COVID-19 pandemic.

Juliet Diekerhof – 13432591

Master’s Thesis in International and European Law Public International Law Track

University of Amsterdam juliet.diekerhof@student.uva.nl

Supervisor: mw. mr. dr. C.M. (Catherine) Brölmann Submitted on the 1st of July 2021

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Abstract

Europe is an area where freely crossing borders without being subject to any controls is common practice for EU citizens. Following the COVID-19 outbreak this changed radically when the Schengen countries reintroduced internal border controls. This thesis provides a legal analysis on whether the reintroduction of the internal border controls in the Schengen area is compatible with the Health Regulations (IHR; regulations) prescriptions during a public health emergency of international concern (PHEIC) and more specifically in the context of the recent COVID-19 pandemic.

The World Health Organization (WHO) is the organization responsible for the global management on the control of the international spread of diseases and the IHR are the leading binding instrument regulating the “international spread of disease.” COVID-19 was declared a PHEIC, under the regulations on 30 January 2020. Once a PHEIC is established the WHO can issue non- binding recommendations.

The internal border controls cannot be seen as compatible with the recommendations as the WHO recommended multiple times against travel restrictions during the current pandemic.

When states decide to disregard the WHO recommendations their measures must nevertheless fulfill the requirements of article 43 IHR. In addition, the regulations require states to provide an adequate response to the PHEIC and to cooperate to the extent possible. Although this thesis does not provide a substantive test because of lacking data, an initial conclusion is that the internal border controls do not meet all the requirements of article 43 IHR. The IHR does allow states a large margin of discretion in how they wish to respond to a PHEIC. The Schengen states responded by taking “nationalistic measures’’ instead of the required

cooperation by the WHO this resulted in states’ responses to COVID-19 that might not be in line with the “spirt” of the IHR.

Keywords: COVID-19; WHO recommendations; additional measures; internal border controls

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Table of contents

List of Abbreviations ... 5

1. Introduction ... 6

2. Implications and obligations of the International Health Regulations ... 11

2.1 The history, purpose, and scope of the International Health Regulations ... 11

2.2 Obligations for the Schengen states stemming from the International Health Regulations of 2005 ... 13

2.3 A public health emergency of international concern ... 13

2.4 Additional health measures under Article 43 of the International Health Regulations . 14 2.5 The World Health Organization’s recommendations pertaining to travel restrictions to contain a pandemic ... 16

2.6 Conclusion ... 18

3. Reintroduction of internal border controls in the Schengen area ... 18

3.1 Principles and rights for EU citizens within the Schengen area ... 19

3.2 Internal border control due to COVID-19 under Articles 25 and 28 of the Schengen Borders Code ... 20

3.2.1 Analyzing the data provided by states concerning the internal border controls implemented due to COVID-19 ... 22

3.3 Implications of the internal border controls on the movement of EU citizens between the internal borders of the EU countries ... 25

3.3.1 The human right to leave any country and enter one’s own country and relevant EU law on the right of free movement for EU citizens during the COVID-19 pandemic ... 25

3.3.2 COVID-19 as a state’s right of derogation from the individual right to freedom of movement ... 27

3.4 Conclusion ... 28

4. The compatibility of the internal border closure with Article 43 IHR ... 30

4.1 Compatibility of the internal border controls with Article 43 IHR ... 30

4.2 Global health (governance of management) during the COVID-19 pandemic ... 34

4.4 Conclusion ... 37

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5. Conclusion ... 38 Bibliography ... 40 Annex 1 most relevant articles of the IHR 2005 for this thesis ... 48 Annex 2 List concerning the reintroduction of the internal border controls in SC .... 51 Annex 3 Map of Europe on the internal border controls within the EU ... 54

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List of Abbreviations

CFR Charter of Fundamental Rights of the European Union COVID-19 Coronavirus SARS-CoV-2

DG Director-General

EC European Commission

ECHR European Convention on Human Rights

EP European Parliament

EU European Union

ICCPR International Covenant on Civil and Political rights IHR International Health Regulations

ISR International Sanitary Regulations

LIBE Committee Committee on Civil Liberties, Justice and Home Affairs PHEIC Public Health Emergency of International Concern SARS Severe Acute Respiratory Syndrome

SBC Schengen Borders Code

TEU Treaty on the European Union

TFEU Treaty on the Functioning of the European Union

UN United Nations

WHA World Health Assembly

WHO World Health Organization

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1. Introduction

Background

The World Health Organization (WHO), established in 1948, is the organization responsible for the management “of the global regime for the control of the international spread of

disease.”1 Already in 1851, several European states concluded that the international spread of diseases could not be dealt with at a national level but should be addressed on a global scale.2 Only after the introduction of the first version of the International Health Regulations (IHR) in 1969 was an international, legally binding instrument on global disease surveillance and control established.3 The current regulation in place is the IHR 2005 (hereinafter the IHR or the regulations)4 and the purpose 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.”5 The regulations are an international law provision and binding on all states party to the IHR.6 The IHR does not comprise an enforcement mechanism to ensure

compliance or a possibility to execute oversight.7

One of the possibilities provided for in the IHR is the establishment of a public health emergency of international concern (PHEIC), which constitutes a risk to other states because it spreads internationally and might require a coordinated international response. Once it has been established that there is in fact a PHEIC, the IHR prescribes that the WHO can issue non-binding temporary recommendations that are applicable to that specific PHEIC.8 States can disregard the recommendations and implement additional measures provided they fulfill the requirements of Article 43 of the IHR. Apart from issuing recommendations and the possibility for states to impose additional measures the IHR prescribes that during a PEHIC

1 International Health Regulations (2005) 3rd ed WA 32.1 (IHR 2005) foreword

2 David P Fidler, ‘From International Sanitary Conventions to Global Health Security: The New International Health Regulations’ (2005), 4 Chinese Journal of International Law 325, 329.

3 Barbara von Tigerstrom, ‘The Revised International Health Regulations and Restraint of National Health Measures’ (2005) 13 Health Law Journal 35, 36.

4 During this thesis (current) IHR/regulations will refer to the IHR 2005 and IHR 1969 to the previous one.

5 Article 2 IHR 2005.

6 The IHR 2005 entered into force on June 15 2007, for the 196 states parties to the IHR in accordance with article 22 of the WHO’s Constitution; article 59 IHR 2005.

7 Trygeve Ottersen, Steven J. Hoffman, Gaëlle Groux, ‘Ebola Again Shows the International Health Regulations Are Broken: What Can Be Done Differently to Prepare for the Next Epidemic?X*’ (2016) 42 American Journal of Law & Medicine, 356.

8 Article 15 IHR 2005.

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states must collaborate to the greatest extent possible and prove and adequately respond to a PHEIC.9

This thesis focuses on a specific part of the purpose of the IHR: to provide a public health response to the international spread of diseases without unnecessary interference in

international traffic.10 This purpose is expressed in recommendations by the WHO concerning the spread of infectious diseases, in which they indicate a preference for keeping borders open. The IHR as an instrument is binding. However, its substantiation is not precisely defined, which leaves a large margin for interpretation by the states. In contrast to most articles, the recommendations are precisely defined, but these are non-binding.

Problem statement

COVID-19 is an infectious disease that has spread all over the world. As the title indicates, spreading does not stop at the border, and almost no country in the world is unaffected. The EU is a large, densely populated, and regulated area in the world with a high mobility of persons. These factors are why I have chosen to focus on this area for my thesis. Freely crossing internal borders without being subjected to any control is normal for EU citizens.11 The COVID-19 pandemic changed the EU from an area without internal borders into an area where the possibility for EU citizens to move freely between the EU states was severely restricted. Measures were taken individually by the EU states and differed by country, leaving individuals with great uncertainty as to what to expect at the border of each state. All EU states are party to the IHR and should therefore implement measures in accordance with the purpose and scope of the regulations.12 In its temporary recommendations for containing the current pandemic, the WHO recommended states not impose travel restrictions and

encouraged states to work together.13 Nevertheless, in reaction to COVID-19, almost every country in Europe has (re-)introduced internal border controls, thereby severely restricting the

9 Article 44 IHR 2005.

10 Foreword IHR 2005.

11 All citizens of an EU country are automatically citizens of the EU and have the right to move freely within the EU as laid down in article 21 of the Treaty on the Functioning of the European Union [2012] OJ C326/27 (TFEU) and in article 3(2) of the Consolidated version of the Treaty on European Union [2012] OJ C326/13 (TEU); Charter of Fundamental Rights of the European Union [2012] OJ C326/391 (CFR).

12 Article 2 IHR 2005.

13 WHO, ‘Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV)’ (30 January 2020 Statement, Geneva, Switzerland) <https://bit.ly/2WCrm4a > accessed 27 April 2021.

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freedom of movement of EU citizens.14 The IHR stipulates that states can disregard the WHO’s non-binding recommendations but are nevertheless bound by the requirements of Article 43 IHR when implementing additional health measures.

Whether the current internal border controls are in line with the binding health regulations has not been the focus of any study thus far, which is why I have chosen to examine this issue.

By systematically analyzing the legal provisions that could be applicable to border controls between the Schengen countries, I concluded that two different regimes in place are relevant for this research: the IHR on an international level and the Schengen Borders Code (SBC;

with EU treaties incorporated) on a European level. As border measures are inherently linked to the restriction of movement from one country to another, the implications for the freedom of movement both regarding human rights treaties and EU treaties are included in this thesis.

The rationale for including an analysis of the correct application of the articles 25 and 28 SBC into this research is because one of the requirements of the IHR is that, for additional health measures to fall within the scope of the IHR (Article 43), they must be in accordance with national law or obligations under international law. This requires an analysis of whether the additional measures taken are in line with the SBC (i.e., in line with applicable legal

obligations). If the conclusion of this first analysis shows non-conformity at the Schengen level, further analysis of the compatibility of internal border controls with IHR regulations would be irrelevant.

Research Design

In light of the above, the main research question is as follows: “Are the internal border controls, as reintroduced by Schengen states, compatible with the IHR prescriptions during a PHEIC and more specifically in the context of the recent COVID-19 pandemic?” A crucial element in this regard is the meaning of “compatible with the IHR prescriptions,” which refers to the compatibility of the border controls with the “letter” of the formal requirements and obligations stemming from the IHR and on the “spirit” of the temporary IHR

recommendations issued by the WHO during a PHEIC. Since there are no prima facie violations by the Schengen states, this thesis is limited to the functional demands of the applicable regimes.

To answer the research question, I have devised a set of sub-questions.

14 See Annex 2 of this thesis.

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1. What are the obligations and requirements for the Schengen states stemming from the IHR during a public health crisis?

2. What measures did the Schengen states take, and did they fulfill the procedural requirements under the SBC (EU treaties incorporated) for the internal border controls?

3. Do the internal border controls meet the requirements of Article 43 IHR?

Structure

Chapter 2 starts with a brief overview of the development of the IHR and its scope and purpose. This overview is followed by an outline of the implications of a PHEIC declaration and the change in the article on additional measures over the years.

The chapter concludes with the establishment of COVID-19 as a PHEIC and outlines the official recommendations and the non-official statements/guidance from the WHO during the COVID-19 pandemic, in particular with regard to travel restrictions.

Chapter 3 first touches upon the rights and principles for EU citizens within the Schengen area. Then, the current internal border controls due COVID-19 are assessed using Articles 25 and 28 of the SBC. Because, as laid down in the IHR, implementation of the regulations by the Schengen states must be done with full respect for human rights and fundamental

freedoms of persons, the chapter also discusses the freedom of movement within the EU and the human right concerning the right to leave any country and enter your own. Due to the limited scope of this chapter, I chose to only include those articles from the relevant legal frameworks that are best suited for analyzing the movement from one country to another within the EU. Concerning the human rights treaties, on an international level, I included the International Covenant on Civil and Political Rights (ICCPR), and on a European level, I included Protocol No. 4 to the European Convention on Human Rights (hereinafter Protocol No. 4 to the ECHR). Concerning the freedom of movement for persons within the EU, I used the Treaty on the European Union (TEU), the Treaty on the functioning of the European Union (TFEU), and the Charter of Fundamental Rights of the European Union (CFR) in this chapter.

The fourth chapter contains an assessment of whether the internal border controls fall within Article 43 IHR. Hereafter, I discuss the current state of the IHR during a PHEIC.

Lastly, Chapter 5 provides a conclusion.

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Regarding the methodology, this thesis starts with a descriptive approach by describing the relevant international and regional law pertaining to pandemics. The primary relevant

frameworks are the IHR and SBC. Because the purpose of this research is to assess the internal border controls against the IHR, earlier drafts and negotiations of the regulations are included. Since the SBC is of a subordinate order in this research, the drafting history of this regime is not included. Other relevant law used in the first part concerns human rights law relating to the freedom of movement of persons on an international and EU level and the rights concerning the freedom of movement as laid down in the TEU and TFEU.

Following the descriptive part, I used a critical and analytical approach to evaluate the current internal border controls of the Schengen countries under the SBC, taking into account the implications of the measures regarding the freedom of movement of persons within the EU. Analyzing the controls is done by assessing states’ declarations of the measures taken in against the relevant legal frameworks. The final part examines the internal border controls in relation to the requirements of the IHR during a PHEIC and critically analyzes the role of the WHO during the COVID-19 pandemic. All parts of this thesis are supported by secondary sources from relevant academic literature on global health law, the Schengen area, and the freedom of movement of persons at global and regional levels. This thesis does not include epidemiological data on the spread of COVID-19 and therefore lacks any conclusions in that regard.

It is necessary to explain that, during this thesis, the terms EU (member) states and Schengen states are in some parts used interchangeably because the relevant EU law and some literature only uses the term ‘EU member states’ However, as stated in the introductory remarks of the SBC, the Schengen acquis is incorporated in the EU framework, and the SBC notes that the enjoyment of free movement provided by Article 20 TFEU is applicable for the Schengen states.15 To delimit this research, the four non-EU countries of Iceland, Switzerland, Norway and Liechtenstein will not be discussed in detail.

15 Introductory remarks of Regulation (EU) 2016/399 of 9 March 2016 establishing a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2012] OJ L77/1 (SBC).

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2. Implications and obligations of the International Health Regulations

To understand how the IHR regulated the COVID-19 pandemic during the 2020–2021 period, an overview of the development of the regulations is needed. This chapter therefore first provides an overview of the development of the regulations and their purpose and scope and focuses on the changing positions of states regarding binding provisions of the

regulations over the years. Thereafter, this chapter establishes the obligations for states parties to the regulations, in particular for the Schengen states and addresses the declaration of a PHEIC, and the requirements and implications of Article 43 are discussed in detail. Lastly, this chapter addresses COVID-19 as a PHEIC and the recommendations issued by the WHO during the COVID-19 pandemic.

2.1 The history, purpose, and scope of the International Health Regulations

The first international sanitation conference was held in 1851. Due to the expansion of international trade and travel, several European states concluded that the spread of infectious diseases could no longer be handled by national governance.16 Several conferences followed, resulting a hundred years later in the adoption of the International Sanitary Regulations (ISR) by the World Health Assembly (WHA) which is the principal policy-making organ of the WHO.17 In 1951, the aim of the ISR was already “maximum security against the international transmission of communicable diseases with minimum interference with world traffic.”18 In 1969, the ISR 1951 was replaced with the IHR 1969.19 The main goal of the latter remains the same as the ISR 1951.20 As argued by Tidler, the principle of maximum security with minimum interference was integrated to “form the overall international legal regime on infectious disease control.”21 An issue with the IHR 1969 was its limited scope since it only applied to the diseases already listed in the ISR 1951: cholera, plague, and yellow fever. With the arrival of new infectious diseases, the necessity of adapting the 1969 IHR was

recognized.22 Only after the emergence of severe acute respiratory syndrome (SARS) in 2002 was a working group established.The literature reveals that, in the aftermath of SARS in

16 Fidler (n 2) 329.

17 Articles 21(a) and 22 of the Constitution of WHO confer upon the WHA the authority to adopt regulations.

18 International Sanitary Regulations, 25 May 1951, 175 UNTS 214.

19 IHR 1969, the WHA can on the basis of article 21 of the constitution adopt conventions or agreements.

20 International Health Regulations (1969) 3rd ann. ed. 1983 (IHR 1969) foreword.

21 David P Fidler, ‘Return of the Fourth Horseman: Emerging Infectious Diseases and International Law’ (1997) 81 Faculty Publications Paper 771, 843.

22 WHO, ‘Revision and updating of the International Health Regulations’ (1995) WHA48.7.

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2003, the way infectious diseases were addressed moved from a “state-centric approach”

towards “global health governance.”23 Eventually, new regulations were adopted by the 58th WHA on 23 May 2005 and entered into force for 196 states in June 2007.24

There are significant changes between current regulations and the IHR 1969. Regulations have been extended in scope to any specific disease or manner of transmission “that presents or could present significant harm to humans.”25 Another important change is the attention to human rights, to which little attention was paid in the IHR 1969. Human rights are now addressed in a separate article.26 Thereby, how the IHR aimed to address PHEIC shifted from controlling borders to focusing on containing diseases at their source.27

In accordance with the CFR and the principles of international law, states have under the current IHR “the sovereign right to legislate and implement legislation in pursuance of their health policies’’ however, in doing so, they should uphold the purpose of the regulations.28

Apart from the changes what remains the same is that the regulations mostly use general wordings and are lacking in normative, binding content, making it difficult to derive clear and binding obligations or violations from them. The current IHR also contain no enforcement measures; this is the most important structural shortcoming of the IHR.29

23 David P Fidler, ‘SARS: Political Pathology of the first Post-Westphalian Pathogen’ (2003) 31 Journal of Law, Medicine & Ethics 485,488.

24 WHO, ‘Revision of the International Health Regulations’ (2005) WHA58.3.

25 Foreword IHR 2005.

26 article 3 IHR 2005.

27 Sara E Davies, Adam Kamradt-Scott and Simon Rushton, Disease diplomacy: International norms and global health security (7th edn, JHU Press 2015) 45.

28 Article 3 (2,3,4) IHR 2005

29 WHO, ‘Report of the Review Committee on the Functioning of the International Health Regulations (2005) in relation to Pandemic (H1N1) 2009’ (2011) A64/10 para 24.

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2.2 Obligations for the Schengen states stemming from the International Health Regulations of 2005

All Schengen states are party to the IHR and therefore should implement the regulations and commit to the obligations stemming from the IHR.30 The most important obligations under the IHR for states are to detect and assess possible PHEICs, to notify other states of possible PHEICs, and to provide an adequate response to PHEICs.31 These obligations constitute a collective commitment states agreed upon that requires collaboration between the WHO and the states parties as well as interstate cooperation.32 Should a Schengen country not comply with its obligations, the WHO cannot call upon the Schengen states, as the IHR does not include an enforcement mechanism to ensure compliance.33

2.3 A public health emergency of international concern

A PHEIC refers to an extraordinary event that is determined under the regulations that might require a coordinated international response to a disease spreading internationally and constituting a public health risk to other states.34

It is upon the Director-General (DG) of the WHO to determine, after the establishment of an emergency committee, whether an event constitutes a PHEIC on the basis of information received by member states. An assessment of the risk to human health, the risk of

international spread of a disease, and the risk of interference with international traffic is made on the basis of scientific evidence and relevant information.35 In determining whether an event is a PHEIC, the DG is largely dependent on the information provided by states.36 Villareal argues that disease reporting by member states is crucial. If states or other organizations do not provide data, the regulations are “simply non-functional,” as WHO governance is

impossible without such information.37 Annex 2 of the regulations provides guidance to states on how to determine whether an event might potentially constitute a PHEIC. One of the

30 All Schengen States are part of the 196 states party to the IHR 2005.

31 Hitoshi Oshitani, Li Ailan, Maria Concepcion Roces, Dato' Tee Ah Sian, Chen Ken and Tom Kiedrzynski,

‘Implementing the new International Health Regulations in the Pacific–challenges and opportunities’ (2005) 12.2 Pacific health dialog, 135.

32 Article 44(1) IHR 2005.

33 Ottersen (n 7) 356.

34 Article 1 IHR 2005.

35 Article 12 IHR 2005.

36 Armin von Bogdandy, Pedro Villarreal, ‘International Law on Pandemic Response: A first Stocktaking in Light of the Coronavirus Crisis’ (2020) 7 MPIL Research Paper 1.

37 Pedro A Villarreal, ‘The 2019-2020 novel coronavirus outbreak and the importance of good faith for international law’ (Völkerrechtsblog 28 January 2020) <https://voelkerrechtsblog.org/the-2019-2020-novel- coronavirus-outbreak-and-the-importance-of-good-faith-for-international-law/> accessed 1 May 2021.

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questions is, “Is there a significant risk of international travel or trade restrictions?”38 If this question is answered (among others) in the affirmative, states shall notify the WHO of the event. By creating the gauge of “significant risk of international travel or trade restrictions,”

the WHO in its guidance seems to imply that, if there is a risk of international travel restrictions, a PHEIC likely exists.

Once it has been determined that a PHEIC exists, the DG shall issue temporary

recommendations.39 These recommendations may include health measures regarding persons to be implemented by the states addressing the PHEIC to prevent or reduce the spread of the disease and must “avoid unnecessary interference with international traffic.”40

The recommendations can be issued by the WHO independently and do not need the approval of states, even though they could have implications for the states parties.41 The article on temporary recommendations follows a logic of “comply or explain” and can be seen as an important instrument in the regulation of a PHEIC42 because it gives the WHO the possibility to issue recommendations tailored to a specific disease. However, ultimately little can be done if a state fails to explain or comply because the temporary recommendations are non-binding in nature.43

2.4 Additional health measures under Article 43 of the International Health Regulations Under the IHR 1969, states were not permitted to impose measures other than those

prescribed for in the regulations. The provisions as laid down were the maximum a state could apply.44 During the negotiations to revise the IHR 1969, it became clear that a provision was likely to be included that provided states with the possibility to impose additional health measures beyond what was prescribed in the regulations. The WHO recommended including guidance in the revised IHR describing “inappropriate or unnecessary interventions with clear indications why these actions are not required.”45

38 Annex 2 to the IHR 2005.

39 There is a difference between official recommendations issued by the WHO under article 15 IHR and unofficial recommendations referred to as guidance/statements.

40 Article 15 IHR 2005.

41 Fidler (n 2) 378.

42 Bogdandy (n 38) 18.

43 Article 1 IHR 2005.

44 Article 23 IHR 1969

45 WHO, ‘Report of a WHO Informal Consultation, division of Emerging and other Communicable Diseases Surveillance and Control’ (1995) WHO/EMC/IHR/96.1.

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The WHO added in a later stage that additional measures should be used with caution because the risk of overreaction could harm trade, travel, and tourism and have economic consequences beyond the scope of what is necessary from a public health point of view.46 A draft of new regulations, created to replace the IHR 1969, entailed in Article 34 that states

“should make every effort not to impose measures exceeding those recommended by the WHO under the regulations.” Another provision in the draft contained the possibilities for the WHO to request states that did not implement the recommended measures to do so

immediately and to ask states that implemented measures that exceeded the recommendations or were inappropriate to cease these measures.47 Thereby did this draft not state that the recommendations were non-binding in nature.48

However, concerns were expressed that leaving the WHO with a large marge of discretion would limit the sovereignty of states and their possibility to independently introduce

additional health measures. Concerns were considered, and the final IHR contains the possibility to impose additional measures beyond or without the DG’s recommendations in Article 43.49

With the abolishment of the ability of the WHO to determine what is meant by appropriate additional national health measures, one could say national sovereignty was reasserted.50 In Article 43, the IHR provides states with the possibility to implement additional health measures that achieve the same or a greater level of health protection than the WHO

recommendations, provided they are in response to a PHEIC and that those measures are in accordance with the relevant national law of states and obligations under international law.

The measures cannot be according to article 43 (1) more restrictive of international traffic or more invasive/intrusive to persons than reasonably available alternatives that would achieve a sufficient level of health protection. In addition, states must base their determination “upon scientific principles, available scientific evidence of a risk to human health, and any available specific guidance or advice from the WHO.”51 This last point is specifically included to make

46 WHO, ‘Global Alert and Response Team, Global crises, global solutions: managing public health emergencies of international concern through the revised International Health Regulations’ (2002)

WHO/CDS/CSR/GAR/2002.4.

47 WHO, ‘Working paper for regional consultations’ (2004) IGWG/IHR/Working paper/12.2003.

48 ibid.

49 WHO, ‘Review and approval of proposed amendments to the International Health Regulations: explanatory notes’ (2004) A/IHR/IGWG/4 para 10.

50 Eric Mack, 'The World Health Organization's New International Health Regulations: Incursion on State Sovereignty and Ill-Fated Response to Global Health Issues' (2006) 7 Chinese Journal of International Law 36.

51 Article 43 IHR 2005.

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it impossible for states to implement additional health measures as a precautionary measure.52 States must report their measures to the WHO within 48 hours if their measures significantly interfere with international traffic.53The principles of proportionality, necessity, and

legitimacy are intertwined in Article 43.54

The IHR provides some form of review, as the secretariat of the WHO can engage with states that have implemented measures but cannot hold them accountable. Furthermore, if the secretariat has analyzed the measures, this analysis is not accessible to the public,55 which is unfortunate because this analysis could be used as a guideline for states wishing to implement additional measures.

In the literature, a distinction has been made between measures that do not conform to the WHO recommendations but do fulfill the requirements of Article 43 and those that go beyond and do not fulfill the requirements; the latter are described as “excessive measures” and are prohibited under the IHR.56

2.5 The World Health Organization’s recommendations pertaining to travel restrictions to contain a pandemic

During the Mexican flu pandemic in 2009, as with the Ebola pandemic from 2014 to 2016, the WHO recommended against travel restrictions.57 However, with both pandemics, some states set aside the recommendations and imposed travel restrictions.58 After the Ebola outbreak, experts argued that travel restrictions are an ineffective tool for preventing disease transmission.59 Furthermore, as argued by the WHO and some experts, if border closures are

52 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, ‘Do not violate the International Health Regulations during the COVID-19 outbreak’ (2020) 395 The Lancet 664.

53 Significant interference with international traffic generally means refusal of entry or departure of international travelers or their delay for more than 24 hours article 43(3) IHR 2005.

54 Roojin Habibi, JD MSc, Steven J Hoffman, Gian Luca Burci, Thana Cristina 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, and Alicia Ely Yamin, ‘The Stellenbosch Consensus on Legal National Responses to Public Health Risks’ [2020] International Organizations Law Review 1, 53.

55 Gian Luca Burci, ‘The Outbreak of COVID-19 Coronavirus: are the International Health Regulations fit for purpose?’ (EJIL:Talk! 27 February 2020) <https://www.ejiltalk.org/the-outbreak-of-covid-19-coronavirus-are- the-international-health-regulations-fit-for-purpose/> accessed 14 April 2021.

56 Tigerstrom (n 3) 35-37,53,67.

57 WHO, ‘Annual Report on the Implementation of the International Health Regulations (2005)’ (2019) A72/8

para 13-15; WHO (n 29) para 84,85.

58 WHO (n 29).

59 Ali Tejpar and Steven J Hoffman, ‘Canada’s Violation of International Law during the 2014-16 Ebola Outbreak’ (2016) 54 Candadian yearbook of International Law 1

<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3062696> accessed 20 april 2021.

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implemented, they should only be used in the early phase of a pandemic, as they can help slow down but cannot stop the spread of an infectious disease.60 A 2019 WHO report on non- pharmaceutical public health measures stated that there is no high-quality evidence showing that border closures have an effect on the transmission of infectious diseases.61

Temporary recommendations concerning COVID-19

The first official recommendation issued by the DG came on 30 January 2020, when the DG declared COVID-19 a PHEIC. The DG further noted that each state should be prepared for containment, that states parties are legally required to share information with the WHO under the IHR, and that states parties should contribute to an international response to the COVID-19 pandemic. The WHO did not recommend any travel or trade restrictions, and the DG warned states to avoid taking any “actions that promote stigma or discrimination, in line with the principles of Article 3 IHR.” The WHO furthermore stresses the obligation for states implementing additional health measures that significantly interfere with international traffic to send the WHO their public health rationale.62

In the next statements on international traffic in relation to the COVID-19 outbreak, the WHO repeatedly recommended against any travel restrictions on China (at that time, the only state with reported cases).63 Once other states started to report cases, the WHO continued to advise against travel or trade restrictions against states with COVID-19 outbreaks. The WHO in fact stated that, “in general, evidence shows that restricting the movement of people and goods during public health emergencies is ineffective in most situations.” Travel-related measures that significantly interfere with international traffic can only be justified at the start of an outbreak to give states time to implement adequate measures.64

60 Benjamin Mason Meier, Roojin Habibi and Y Tony Yang ‘Travel restrictions violate international law’ (2020) 367 Science 1436 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3634290> accessed 17 April 20221

61 WHO, ‘Non-pharmaceutical public health measures for mitigating the risk and impact of epidemic and pandemic influenza’ (2019) CC BY-NC-SA 3.0 IGO 69.

62 WHO, ‘Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV)’ (30 January 2020 Statement, Geneva, Switzerland <https://bit.ly/2WCrm4a> accessed 27 April 2021.

63 WHO, ‘Updated WHO advice for international traffic in relation to the outbreak of the novel coronavirus 2019-nCoV’ (24 January 2020 COVID-19 Travel advice) <https://www.who.int/news-room/articles-

detail/updated-who-advice-for-international-traffic-in-relation-to-the-outbreak-of-the-novel-coronavirus-2019- ncov-24-jan> <who-advice-for-international-traffic-in-relation-to-the-outbreak-of- the-novel-coronavirus-2019- ncov> accessed 4 May 2021.

64 WHO, ‘Updated WHO recommendations for international traffic in relation to COVID-19 outbreak (29 February 2020 COVID-19 Travel Advice) <https://www.who.int/news-room/articles-detail/updated-who- recommendations-for-international-traffic-in-relation-to-covid-19-outbreak> accessed 4 May 2021.

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In the second official temporary recommendation, the DG declared that COVID-19

continued to be a PHEIC and asked member states to only implement additional measures that are appropriate and again, the WHO stressed the importance of states continuing to provide the public health rationales of their health measures in accordance with the IHR. Thereby, the organization asks states to collaborate with the WHO and other countries to enable effective global COVID-19 pandemic preparedness and responses.65 What is clear from the above is that the WHO wanted states to cooperate and not individually impose travel restrictions.

2.6 Conclusion

The IHR focuses on global disease surveillance and control. During the drafting of the new IHR, it became clear that some states were reluctant to give up their sovereignty and were equally reluctant to provide the WHO with the ability to issue binding temporary

recommendations during a PHEIC. Ultimately, the WHO was not provided with the power to decide what appropriate additional measures are and recommendations are non-binding in nature. Consequently, states can implement additional measures, provided they are in line with the letter of the requirements of the regulations. However, as the article leaves room and the discretion lies with the states themselves, implemented measures might not be in line with the spirit of the IHR. With previous pandemics as with the COVID-19 pandemic, states disregarded WHO recommendations to not to impose travel restrictions. States can indeed implement additional health measures. However, if these measures do not conform with the recommendations or meet the requirements of Article 43, they are considered “excessive” and are therefore not compatible with the IHR.66 One of the requirements of Article 43 is that additional health measures must be taken in accordance with “relevant national law and obligations under international law.” Whether the Schengen countries fulfill this requirement will be addressed in the next chapter.

3. Reintroduction of internal border controls in the Schengen area

The previous chapter established the legal framework of the IHR. One of the important messages issued by the WHO during the COVID-19 pandemic was to not impose travel

65 WHO, ‘Statement on the third meeting of the International health regulations (2005) Emergency Committee regarding the outbreak of coronavirus disease (COVID-19)’ (1 May 2020 Statement Geneva, Switzerland)

<https://www.who.int/news/item/01-05-2020-statement-on-the-third-meeting-of-the-international-health- regulations-(2005)-emergency-committee-regarding-the-outbreak-of-coronavirus-disease-(covid-19)> accessed 17 April 2021.

66 Tigerstorm (n 3) 36.

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restrictions. The regulations establish that states are allowed implement additional measures according to their relevant national law and obligations under international law provided that the measures are consistent with the regulations.67 All Schengen countries imposed internal border controls using the SBC as their legal basis.68

Understanding the SBC is needed because, in order for the controls to meet the requirements of Article 43 IHR, they must be in accordance with the procedural requirements of the SBC articles on internal border control.69 The IHR stresses that states, in the implementation of the regulations respect the human rights and fundamental freedom of persons.70 Therefore this chapter also touches upon the human right that everyone shall be free to leave any country and enter their own country71 and one of the most important fundamental freedoms for citizens, the freedom of movement, meaning the ability to freely move within the EU without being subject to border controls.72

3.1 Principles and rights for EU citizens within the Schengen area

On 15 March 2006, a Union code was established on the rules governing the movement of persons across borders. The current code in place is Regulation (EU) 2016/399 (the SBC) and applies to the internal borders of the Schengen area. As stated in the SBC and the TFEU, the Schengen acquis is integrated into the framework of the EU.73 Article 77 (1) TFEU

furthermore states that the EU shall “develop a policy with a view to ensure the absence of any controls on persons, whatever their nationality, when crossing internal borders.” Today, the Schengen area consists of 22 EU countries (Bulgaria, Croatia, Cyprus, Ireland, and Romania are excluded) and four non-EU countries (Iceland, Norway, Switzerland, and

67 Article 43 IHR 2005.

68 See annex 3 of this thesis for a map of the Schengen states and the internal border controls.

69 The data used in this chapter stems largely from the study by Sergio Carrera and Ngo Chun Luk ‘In the Name of COVID-19: An Assessment of the Schengen Internal Border Controls and Travel Restrictions In the EU’

(Policy Department for Citizens’ Rights and Constitutional Affairs, Directorate-General for Internal Policies, PE September 2020) (Assessment in the Name of COVID-19).

70 Article 3 and 42 IHR 2005.

71 International Covenant on Civil and Political Rights (adopted on 16 December 1966, entered into force on 23 March 1976) 999 UNTS 171 (ICCPR) Article 12 and Protocol no. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain Rights and Freedoms other than those already included in the Convention and in the First Protocol thereto (adopted on 16 September 1963, entered into force 2 May 1968) ETS 46, (Protocol no. 4 to article 2 (2) ECHR).

72 Article 3(2) TEU, article 21 TFEU, article 45 CFR.

73 Foreword SBC; protocol 19 TFEU.

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Liechtenstein).74 The SBC is binding in its entirety and directly applicable in the member states.75

3.2 Internal border control due to COVID-19 under Articles 25 and 28 of the Schengen Borders Code

The Schengen provisions in principle provide an area without borders and guarantees free movement to all EU citizens.76 However, in the event of a serious threat to public policy or internal security, the SBC provides member states with the possibility of temporarily

reintroducing border control at the internal borders.77 Border control is defined in the SBC as a control carried out at a border, in response to an intention from a person wishing to cross that border, consisting of border checks and border surveillance.78 Border checks consist of checks to ensure persons are authorized to enter or leave the territory.79 The border controls only concern the internal borders, meaning the common borders between the Schengen countries.80

Almost all Schengen states have reintroduced internal border controls in reaction to the outbreak of COVID-19.81 Articles 25 and 28 provide states with the possibility to do so.

Article 25 sets out the general framework, and Article 28 concerns the procedure for cases requiring immediate action. Under Article 25, states may reintroduce border controls for a limited period up to 30 days, this may be prolonged if the serious threat exceeds the 30 days, but the total period shall not exceed six months. Under Article 28 the duration is limited for a period up to 10 days. This can also be prolonged for a renewable period of up to 20 days.

Under both articles, the border control must be proportionate to the objective pursued, and the scope and duration of reintroduced border controls should be restricted to the bare minimum needed to respond to the threat in question and should only be used as a measure of last resort.82

74<https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen_en> accessed 28 March 2021.

75 Article 45 SBC.

76 Foreword principles 22, 24,25 of the preamble SBC.

77 Article 25 and 28 SBC.

78 Article 2 (10) SBC.

79 Article 2(11) SBC.

80 Article 2(1) SBC.

81 Schengen countries concerned: Austria, Belgium, Czech Republic, Estonia, Finland (even without specifying the legal basis), Germany, Hungary, Iceland, Lithuania, Norway, Poland, Portugal, Slovakia, Spain, Switzerland.

82 Article 26 SBC.

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From both articles, it follows that member states shall notify the other member states and the European Commission (EC). They must also supply their reasons for the proposed

reintroduction and the scope, date, and duration of the planned reintroduction. They should also mention the names of authorized crossing points and where appropriate, the measures to be taken by other member states.83

The SBC does not permit member states to use the articles interchangeably and thereby extend the border controls unlawfully beyond the time permitted.84 The reintroduction of border controls practically means that EU citizens are only allowed to cross borders at authorized official crossings where thorough checks can be conducted.85

Importantly, articles 25 and 28 refer to threats to public policy and internal security. Public health is not referred to in the articles as a ground to legitimately reintroduce internal border controls. The Court of Justice of the European Union, however, has defined the notion of public policy and stated that, ‘in addition to the disturbance of the social order, which any infringement of the law involves, a genuine present and sufficiently serious threat affecting the fundamental interests of society also falls within the scope of ‘public policy.’’86 The SBC, in its introductory remarks, states that border controls should prevent any threat to member states’ public health, and several Schengen states have reintroduced internal border controls as a response to serious health scares in the past on the basis of Articles 25 and 28.87

The EC issued a guideline specifically regarding COVID-19 on border management during the COVID-19 pandemic. This guideline states that Schengen states in an extremely critical situation may reintroduce temporary border controls at internal borders to counteract the risk posed by COVID-19. Reinstating that the border controls must be notified in accordance with article 27 SBC and should be applied in a proportionate manner. The EC ends by stating that, EU states should “closely cooperate and coordinate at the EU level to ensure the effectiveness and proportionality of the measures taken.”88

83 Article 37 SBC.

84 Assessment in the Name of COVID-19 (n 69) 48.

85 Article 27(1) SBC List of authorized crossing points notified to the EC of the COVID-19 -related temporary reintroductions of border controls can be consulted at ec.europa.eu.

86 Case C-304/14 Secretary of State for the Home Department v CS 2016 [2016] ECR II-1, para 38.

87 Elspeth Giuld, Evelien Brouwer, Kees Groenendijk and Sergio Carrera, ‘What is happening to the Schengen borders?’ (2015) 86 CEPS Paper in Liberty and Security in Europe 5.

88 EC, ‘Guidelines for border management measures to protect health and ensure the availability of goods and essential services’ C(2020) 1753 final para 18,19,25.

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3.2.1 Analyzing the data provided by states concerning the internal border controls implemented due to COVID-19

The first noteworthy aspect encountered while analyzing the current border controls in place is the lack of information provided for in the official list on the reintroduction of the internal border controls published on the website of the EC.89 The list only provides the duration that border controls will be in effect and the reason for their introduction, regarding which all states provided the reason of simply ‘COVID-19.’ The countries that did not impose border controls for all countries provided the names of the countries where the controls were applicable. The publication does not list whether the countries used either Article 25 or 28.90 Some Schengen states did not provide the names of the authorized crossing points to the EC, which is a procedural shortcoming under the SBC.91 In contrast to the official list published by the EC, an assessment made in the name of COVID-19 on the Schengen internal border controls requested by the LIBE committee (hereinafter assessment in the name of COVID- 19), does state which article has been used by the Schengen states. The assessment shows that most Schengen countries reintroduced their internal border controls around mid-March 2020 for the first time using Article 28 SBC as their legal basis.92 Using this article means states can reintroduce border controls for a limited period of a maximum of 30 days (this is including the 20 days prolongation).

Article 28 SBC thus could only serve as a legal basis until mid-May 2020. Apart from Iceland, all other Schengen states concerned have exceeded this maximum limit. After initiating the controls under Article 28, most Schengen states prolonged the measures using Article 25 SBC as their legal basis,93 which is remarkable, as the SBC does not allow for member states to use the articles interchangeably because it results in an unlawful extension of the border controls’ time limit.94 The assessment in the name of COVID-19 shows that all Schengen countries concerned have provided some information regarding the rationale for their actions taken.95 However, the assessment also shows that most of the Schengen

89 See annex 2 of this thesis.

90 See annex 2 of this thesis.

91 Article 27(1 C) SBC requires from member states, to name the authorised crossing points, a list of authorised crossing points during COVID-19 can be consulted at <https://ec.europa.eu/home-affairs/sites/default/files/what- we-do/policies/borders-and-visas/schengen/reintroduction-border-control/docs/ms_notifications-authorised- bcps.pdf> accessed 20 May 2021.

92 Assessment in the name of COVID-19 (n 69) annex 1 Member states’ notifications under the SBC due to COVID-19 (annex 1).

93 ibid.

94 Assessment in the name of COVID-19 (n 69) 48.

95 ibid annex 1.

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countries’ notifications under the SBC only refer to COVID-19 in broad terms but do not explicitly state why COVID-19 is a serious threat to their country and thus justifies the

internal border controls. For instance, as one of its justificatory grounds, Spain stated that they imposed the controls because neighboring countries France and Portugal were doing the same.96 Even more worrying is that only Lithuania, Norway, and Portugal have explicitly stated that taking these measures was their last resort. 97 Some Schengen states at times only imposed border controls at specific borders, while others did not at any time make a

distinction between different Schengen states.98

The European Parliament (EP) has expressed that many of the formal notifications provided by the Schengen states lack sufficient detail and thereby give little justification as to how border controls are an appropriate means to limit the spread of the current pandemic.99

According to Montaldo, the justifications do not show the necessity and proportionality of the border controls.100

The notion of “last resort” expected from the Schengen states that they first indicated whether they had other measures at hand that might have been equally or even better suited to achieve the objective of limiting the spread of the virus. In the case of COVID-19, other measures could have been minimum health checks rather than introducing internal border controls or proportionate police checks.101

The EP supports measures such as physical distancing and believes that targeted restrictions at a regional level would be more appropriate and less intrusive than border controls.102 The recommended cooperation and coordination guideline of the EC on border management is exactly what was not done.103 Schengen states took individual and nationalist approaches to try to protect their citizens from the virus.104 It seemed the Schengen states

96 ibid annex 1.

97 ibid box 1.

98 Annex 2 of this thesis.

99 EP, ‘resolution on the situation in the Schengen area following the COVID-19 outbreak’ (2020/2640(RSP)) para 3,5.

100 Stefano Montaldo, ‘The COVID-19 Emergency and the Reintroduction of Internal Border Controls in the Schengen Area: Never Let a Serious Crisis Go to Waste’ (2020) 5 European Forum 523, 528.

101 EC, ‘Recommendation on proportionate police checks and police cooperation in the Schengen area’ C (2017) 3349 final; EP (n 99).

102 EP (n 99).

103 EC (n 88).

104 Elżbieta Opiłowska, ‘The Covid-19 crisis: the end of a borderless Europe?’ (2021) 23 European Societies 589.

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thought it best to close their borders as soon as possible using Article 28 SBC, as if closing their borders could provide a certain immunity.105

Thus, the COVID-19 pandemic reintroduced the nation state within the Schengen area instead of leading to a unified international response, and the nation state ultimately

functioned as the central political institution during this public health crisis.106 The rules as laid down in the SBC should have constrained this state discretion to some extent.107

However, during the COVID-19 pandemic, states have treated the internal border controls as their “quasi-sovereign domain” and disregarded the requirements laid down in Articles 25 and 28 of the SBC.108 The EC president Ursula von der Leyen criticized the internal border

controls, stating that a “crisis without borders cannot be resolved by putting barriers between us.” And yet, this is exactly the first reaction that many European countries had.109 In addition the Chair of the Committee on Civil Liberties, Justice and Home Affairs (LIBE), expressed that he strongly regrets the disproportionate and unilateral measures taken by the Schengen states to impose border restrictions without any communication or clear and limited

timeframe.110

105 Frederic Mégret, ‘COVID-19 Symposium: Returning “home” – Nationalist International Law in the Time of the Coronavirus’ (OpinioJuris, 30 March 2020) < http://opiniojuris.org/2020/03/30/covid-19-symposium- returning-home-nationalist-international-law-in-the-time-of-the-coronavirus/> 20 May 2021.

106 Maria Grasso, Martina Klicperová-Baker, Sebastian Koos, Yuliya Kosyakova, Antonello Petrillo and Ionela Vlase, ‘The impact of the coronavirus crisis on European societies. What have we learnt and where do we go from here?- Introduction to the COVID volume’ (2021) 23 European Societies 2.

107 Daniel Thym and Jonas Bornemann, ‘During the first phase of the Covid-19 Pandemic: of Symbolism, Law and Politics’ (2020) 5 European Papers 1143, 1146-1153,1169.

108ibid.

109 President of the EC von der Leyen, ‘speech at the European Parliament Plenary on the European coordinated response to the COVID-19 outbreak’ (28 March 2020)

<https://ec.europa.eu/commission/presscorner/detail/en/speech_20_532> accessed 3 April 2021.

110 The LIBE Committee, ‘Returning to free movement across borders is of utmost importance’ ( 4 June 2020) <

https://www.europarl.europa.eu/news/nl/press-room/20200604IPR80501/returning-to-free-movement-across- borders-is-of-utmost-importance> accessed 18 April 2021.

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3.3 Implications of the internal border controls on the movement of EU citizens between the internal borders of the EU countries

On 23 April 2020, the UN Secretary-General stated, “People—and their rights must be front and center” during the COVID-19 pandemic and that apart from being a public health emergency, COVID-19 is a human rights crisis. He argued that an adequate response must be guided by respecting human rights principles.111 As the pandemic might end the world as we know it today, but the new “normal” should not be a world where human rights have lost their relevance.112

The IHR stresses that the implementation of the regulations shall respect human rights and the fundamental freedoms of persons.113 Thereby additional measures taken by states that violate human rights are never permitted as additional health measures under Article 43.114 The weak justificatory grounds provided by Schengen states already provide room for thought, but the internal border controls would be even more worrying if they are discriminatory, or disproportionality limited the human right to leave and enter one’s country115 and or the freedom of movement for persons within the EU.116

3.3.1 The human right to leave any country and enter one’s own country and relevant EU law on the right of free movement for EU citizens during the COVID-19 pandemic

When addressing a public health crisis, the appropriateness of any human rights

restrictions is assessed by the generally accepted principles in international law, which state that the restrictions must be non-discriminatory, proportionate, necessary, and have a legitimate aim.117 The internal border controls clearly restrict the right to freely move from one country to another. This, however, is not a right included in human rights treaties. What is laid down in human rights treaties on an international level and the European level is the right to enter one’s own country and leave any country; however, these rights can be restricted to

111 Secretary-General António Guterres, ‘We are all-in this Together: human Rights and COVID-19 Response and Recovery’ (un.org, 23 April 2020)< https://www.un.org/en/un-coronavirus-communications-team/we-are- all-together-human-rights-and-covid-19-response-and > accessed 4 May 2021.

112 Alessandra Spadaro, ‘COVID-19: Testing the Limits of Human Rights’ (2020) 11 European Journal of Risk Regulation 317.

113 Article 3 IHR 2005.

114 Tigerstrom (n 3) 67.

115 The right to leave any country is laid down in article 12(2) ICCPR and article 2 (2) Protocol no. 4 ECHR; The right to enter your own country is dealt with in article 12(2) ICCPR and article 3(2) Protocol no. 4 ECHR.

116 Article 3(2) TEU; Article 21 TFEU; Article 45 CFR.

117; Yutaka Arai-Takahashi, ‘Proportionality’ in Dinah Shelton (ed) The Oxford Handbook of International Human Rights Law (oup, 2013) 449; Statute of the International Court of Justice, art 38(1).

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protect the public health.118 On an international level article 4 ICCPR only states that a

derogation must not involve discrimination solely on the ground of social origin. The Siracusa Principles include the limitation and derogation provisions of the ICCPR and go further stating that public health can be invoked as a ground for limiting human rights, but measures taken must be specifically aimed at preventing disease and call for “due regard” to the IHR.119 On a European level Protocol No. 4 to article 2 ECHR in sub 3 contains that restrictions can be placed on the freedom of movement if it is for the protection of health. The IHR itself does not say what human rights responsibilities states have during a PHEIC. No guidance is given concerning when states can resort to measures that restrict human rights and when such restrictions are inappropriate and thus not permitted under the IHR.

The freedom of movement of persons allows all EU citizens “to move and reside freely within the EU.”120 Thereby, the EU ensures “an area of freedom, security, and justice with respect for fundamental rights” and ensures the absence of internal border controls on persons, whatever their nationality, when crossing internal borders.121 To consolidate different legislation on the topic of freedom of movement within the EU Directive 2004/38/EC (hereinafter directive) was created. 122

Relevant articles of the directive for this research are Article 27(1), which stipulates that EU states may restrict the freedom of movement and residence of citizens of the EU on grounds of public health, and Article 29, which says that “the only diseases justifying measures restricting the freedom of movement shall be the diseases with epidemic potential as defined by the relevant instruments of the WHO.”

118 Article 12(3); article 4 (1) ICCPR; article 2(3) Protocol no. 4 ECHR; Article 27(1); 29 directive 2004/38/EC

119 United Nations Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/cn.4/1985/4 (Siracusa Principles).

120 Article 3(2) TEU; Article 21(1) TFEU; Article 45 CFR.

121 Article 67(1,2) TFEU.

122 https://www.europarl.europa.eu/factsheets/en/sheet/147/free-movement-of-persons.

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References

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