Article 25 prohibits States Parties from applying sanitary measures to ships and aircraft in transit and requires States Parties to allow ships and aircraft in transit to receive fuel, water, food and supplies. The provision provides three exceptions to the prohibition: 1) where the vessel or aircraft is a transport concerned (Article 27); 2. where the State concerned considers that complementary health measures are scientifically justified (Article 43); and (3) where an applicable international convention allows the State party to implement health measures. This provision would be of immediate importance to extended NQS. States Parties may apply “in accordance with regulations” (Article 23.2) sanitary measures to goods and cargoes that go beyond control. The revised IHR prohibits States Parties from applying sanitary measures without transshipment (for example. (B) detention, quarantine) to goods (except live animals) in transit (Article 33) unless States consider such measures necessary to deal with a public health risk, in which case measures “must not make international traffic more restrictive … as reasonably available alternatives that would achieve an adequate level of health protection” (Article 43.1); (2) WHO recommends that such measures be taken to address a public health risk or public health emergency of international interest (Articles 15 and 16); and (3) applicable international agreements (e.g. B international trade agreements) authorize such measures (Article 33).
Section 43 of the IHR must be taken seriously. States are certainly required to comply with their various conditions, including those set out in paragraph 1 of Article 43, that any additional measures must be carefully considered to ensure that it is not more restrictive and is no more invasive or intrusive to individuals than reasonably available alternatives. However, the adoption of border closures is ultimately a matter of decision-making by individual states, taking due account of the directly affected interests of others. In short, a properly calibrated precautionary approach must be justified in managing emerging global public health emergencies. Important developments are needed on many fronts in the interpretation and implementation of the IHR, such as Lawrence Gostin et al. A better understanding of border closures has a central place here. In the planned review of the operation of the IHR, the issue should be considered with a view to a clearer direction, although experience gained during the 2005 IHR negotiations following the 2003 IHR outbreak has shown that it can be difficult to reach agreement on precautionary notification. It is essential to have sufficient flexibility to enable a rapid response that will help individual states achieve the positive health outcomes of their governments. The death of the classical regime in the 20 years since 1981 included, in addition to international human rights law, international legal orders.
In particular, the creation of the World Trade Organization (WTO) in 1995 and the implementation of the old 93 and new WTO 94 agreements have strengthened the relationship between public health and international trade law.