A lawyer’s perspective: COVID and restrictions on freedom of movement

That the freedom of movement is a universal human right is something acknowledged at various levels of legislation. Yet since the first quarter of last year, it has been witnessed that a strong curtailing of the right to freedom of movement has been inevitably called for. As is to be expected from a fundamental right, the withdrawal of such can have other repercussions.

For example, one could easily appreciate how the lack of freedom of movement may, in turn, lead to a breach of the right to education for a student intent on furthering his/her studies abroad, or a breach of the right to employment for someone intent on carrying out his/her profession in a foreign country.

Thus, the present situation, which has now persisted for a considerable length of time, raises concerns as to what extent can there be proportionality between safeguarding individuals from the devastating effects of a global pandemic and the trespassing of an individual’s right to move freely from one place to another across different jurisdictions.

The Schengen Area is a zone of twenty-six European countries that agreed to do away with internal borders. However, Article 25 of the Schengen Borders Code (Regulation (EU) 2016/399) does permit for the ‘temporary reintroduction of border control at internal borders.’ Since March of 2020, Schengen countries have resorted to the Article 25 provisions to temporarily close their respective borders.

Malta too has sought to suspend the Schengen Agreement although this would not be the first time since having joined in 2007. The first time this happened was in 2010, with the reason being the Apostolic visit to Malta of Pope Emeritus Benedict XVI. Again in 2015, this time as a security measure in light of the Valletta Conference on Migration and Commonwealth Heads of Government Meetings. The last invocation, before COVID-19, of Article 25 was in 2017 when Malta hosted the Malta Informal Summit and Joint Valletta Action Plan meeting.

One can refer to the International Covenant on Civil and Political Rights (‘ICCPR’) from a global perspective. Article 12, paragraph one of the ICCPR says that ‘Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty and freedom to choose his residence.’ However, paragraph three clarifies that such rights may in exceptional cases, such as those of public order, be subject to restrictions.

Therefore, attempts under international law at claiming COVID-19 travel restrictions are in breach of a person’s fundamental rights would run the risk of being rejected by the competent courts. Furthermore, Article 4 of the ICCPR allows for a general derogation from the Covenant in cases of public emergency, in which the pandemic ensuing due to the spread of the coronavirus could be labelled as.

In conclusion, one should remember that pandemics are not a new phenomenon. Experience has shown that travel restrictions are not necessarily the key to lowering the peak of a pandemic but merely a way of delaying the inevitable.  

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