Stranded at the Border: An Analysis of the Legality of International Travel Restrictions Adopted by States in the COVID-19 Pandemic in Light of the Right to Return to One’s Country

Abstract

In the time since COVID-19 was declared a pandemic, several states have closed their borders and imposed travel restrictions to contain the proliferation of the disease, which, in turn, has left hundreds of thousands of people unable to return to their countries of nationality or residence. This Article analyzes the compatibility of these measures with the right to return to one's country and the right to family and private life, to the extent that these rights may obligate states to allow a person to reenter a country. Part I analyzes who is entitled to claim said rights under the International Covenant on Civil and Political Rights, the European and American Conventions on Human Rights, and the African Charter on Human and Peoples' Rights. After this delimitation, this Part further assesses how international travel restrictions adopted in response to the pandemic interfere with these rights, as well as what obligations states have to secure them. Part II evaluates whether these interferences might qualify as lawful limitations and derogations under human rights law and concludes that they most likely do not. The satisfaction of the requirement of necessity, indispensable for lawful limitations and derogations, is disputable, since the scientific evidence available does not seem to support the efficiency of travel bans in containing the spread of disease. Moreover, there are several cases of persons stranded for long periods or in dire material conditions, putting into question the proportionality of these measures. There is thus a strong case for invoking state responsibility in these situations.