COVID-19 and International Freedom of Movement: a Stranded Human Right?

Abstract

Governments confronted with a pandemic have a ‘knee-jerk’ reaction of imposing travel restrictions, despite the effectiveness of such measures not being supported by scientific evidence. In response to COVID-19, most countries imposed a ban on foreign travelers, with some States even closing borders to their own nationals and residents or prohibiting them from leaving. While border control is a legitimate prerogative that States can use to assess the health condition of travelers, travel restrictions are more complex and raise intricate legal questions. This article focuses on a specific category of travel restrictions: travel bans. These measures are a blanket prohibition applied to all or certain individuals, regardless of their health state, from crossing international borders. The validity of such measures depends on several elements. First, one needs to examine the applicable legal framework – the International Health Regulations and human rights treaties – and the standards they contain. Both sets of rules protect international mobility, but with different goals and scopes of application. Freedom of movement across borders is protected by the International Covenant on Civil and Political Rights, and comprises two interdependent rights: the right to leave and the right to return. Determining whether travel bans are lawful also depends on a second element: the status of the traveler, namely, whether they qualify as nationals, residents, or something else. After reviewing the relevant legal framework and (available) information on how travel bans were applied, this article questions whether the pertinent requirements and principles were respected. Some measures that were adopted in the name of public health seem hard (if not impossible) to justify. Entry bans covering nationals and residents are clearly a breach of the right to return. Exit bans are also problematic because they affect the exercise of the right to return. Both types of measures indirectly prevent family members from exercising their right to family reunification. Foreigners do not have a right to entry a foreign country but may be affected if they are prevented from leaving, thus becoming unable to exercise their return to return to their home country. This article examines a few of the more clear-cut cases were travel bans breached the rules and principles that should govern international mobility.