COVID-19 Symposium: COVID-19 and Migrants–Gaps in the International Legal Architecture?

[Priya Pillai is a lawyer and international law consultant.] 

The past few weeks have seen the COVID-19 virus spread across the globe like wildfire. While for many, normal life has been disrupted, the virus has not slowed down the pace of events for those caught up in conflict or forced to flee their homes for reasons such as climate change or lack of opportunities. The COVID-19 pandemic is set to make the already dire circumstances for many migrants all the more challenging.

On 31 March, the World Health Organization (WHO), the Office of the High Commissioner for Human Rights (OHCHR), International Organization for Migration (IOM) and the office of the UN High Commissioner for Refugees (UNHCR), issued a joint statement expressing concern and urging greater protection for the rights and health of migrants, refugees and stateless persons.

This post raises a few basic questions concerning the legal protection of migrants during a pandemic, for further analysis. What is the impact of this global pandemic on legal obligations of states, and how does this relate specifically to migrants? There are multiple overlapping legal regimes, including international human rights law, refugee law, and international health law. It is hoped that these legal regimes will be able to reinforce rights of the most vulnerable, but are there gaps in protection? 

(For clarity, the term ‘migrants’ is to be construed broadly in this post, without reference to legal status, and includes refugees within its ambit. The post does not cover migrants within their own countries who have also been affected by the ‘lockdown’ of cities, such as in India. This needs to be the subject of another post altogether).

Seeking Refuge: Access to Protection and Living Conditions

A particularly troubling hallmark of the response to this pandemic is that it has been posited as the protection of the right to life and health of individuals within the state – an obligation of the state to those of its own – which is used to minimize and disregard the rights of migrants, inherent in human rights treaties as well as the refugee law protection regime.

Specifically, two important issues relating to the movement of individuals at times such as these are, firstly, their ability to access protection (including via asylum); and secondly, living conditions in the custody of the receiving state or in transit, such as detention centres or camps such as Moria, and Cox’s Bazaar. Compounding this is a lack of access to information – many camps have little to no access to the Internet, such as in Cox’s Bazaar.

On access to protection, the first hurdle is of course the closure of borders. The WHO indicated that this was up to individual states and their circumstances, and thereafter virtually every state put some form of closure in place (e.g. Europe, Americas). In addition, reports indicate plans to place more armed guards at some borders, and greater ‘push back’ of those seeking refuge. There are also alarming reports of conditions of detention and in refugee camps – which at the best of times are dire and are now set to become worse. A case of COVID-19 infection was recently reported in a detention centre in the United States. Refugee camps are unprepared for such an eventuality and it is now only a matter of time before many of these facilities are ravaged by the disease, given constraints regarding sanitation, supplies and the impossibility of social distancing. 

While space constraints preclude detailing all aspects of applicable international law, a few are highlighted. Due diligence obligations of states are a good starting point (for a comprehensive overview, see here). Some of the obvious rights to assess include the right to life (Article 6, International Covenant on Civil and Political Rights (ICCPR) and General Comment No. 36) and the right to health (Article 12(1), International Covenant on Economic, Social and Cultural Rights (ICESCR) and General Comment No. 14), which provide the legal basis for an effective response to pandemics and the realization of the ‘highest attainable standard of health’.

In terms of protection under the refugee law regime, specifically with respect to those fleeing persecution, states must abide by the principle of non-refoulement, which mandates that no one is returned to situations of peril – a right defined in customary international law as well as treaty law. The ‘push backs’ are an attempt to side-step any form of legal responsibility and evade these binding obligations.

The obligations of states towards those in its care continues regardless of status. Individuals seeking refuge are entitled to humane conditions, and states need to comply with their international legal obligations. These emanate not just from the foundational human rights treaties such as the ICCPR, the Convention on the Elimination of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and others, but also the Refugee Convention.

In the case of a pandemic, the applicable nascent international law treaty – the International Health Regulations (IHR) of 2005 – entered into force in 2007 and has never been tested in a  global pandemic. The obligation owed to populations within states needs to be calibrated in conjunction with and not against those seeking refuge. How do the aforementioned rights as applicable to migrants balance against the IHR?

On the links between these areas, the Office of the UN High Commissioner for Human Rights’ (OHCHR) Recommended Principles and Guidelines on Human Rights at International Borders, presented to the General Assembly in 2014, Guideline 6 (on ‘Screening and Interviewing’) states:

‘Ensuring that public health is only invoked as a ground to limit rights of entry where there are serious threats to the health of the population or to individuals, due regard being paid to the International Health Regulations of the World Health Organization.’

The IHR references treatment of ‘travellers’ and it is assumed that the definition would include all categories, regardless of legal status and purpose of travel. (‘Traveller’ is defined in the IHR as ‘a natural person undertaking an international voyage’. In the entire text of the IHR, there is but one reference to ‘refugee’ in Annex 1-B). Articles 31 and 32 of the IHR stipulate that travellers who are entering for temporary or permanent resident status need to permit procedures such as medical examinations, and administering prophylaxis, without which they may be barred. However, this seems to indicate that they still need to be permitted entry and cannot be shut out entirely. Overall, there are two references to ‘human rights’, in Article 3 (‘Principles’) and Article 32 (‘Treatment of travellers’).

While the IHR enables greater cooperation between states in the case of health risks and pandemics and are seen by some as undermining sovereignty (due to reporting requirements etc.), they do, however, cater to a more ‘statist’ approach. This may be at odds with protection requirements under international human rights and refugee law, to the detriment of migrants.   

Global Pandemics and Borders: Uncharted Legal Territory

There seem to be gaps in the international legal architecture – comprising the IHR, refugee protection obligations, and human rights obligations – in the event of a global pandemic such as this, and a need for greater cohesion between these legal regimes. The tension between a state-centric approach and sovereignty on the one hand, and that of protection of all vulnerable populations on the other, has never been greater in light of COVID-19.

At this time, when sovereignty and a narrower construction of public health obligations is being used by states to shut out the most vulnerable, it is time to re-emphasize the fundamentals of humanity and the inter-connectedness of us all. The inter-relationship between global health emergencies, refugee protection, and human rights obligations must be addressed in more detail, to ensure the ‘humanization of international law’, with a greater focus on individuals rather than states as the main actors.   

We are only as strong as the most vulnerable among us, and more so in the case of a disease such as this, which knows no boundaries.