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  • Ranu Tiwari

The Weakening of The Principle of Non-Refoulement during Covid-19: A Humanitarian Emergency

One of the most important principles of international refugee law is non-refoulement. This principle protects refugees from being evicted or returned from the host countries to countries where there is a threat to their life and liberty. It is firmly entrenched in Article 33(1) of the 1951 Convention relating to the Status of Refugees (“Refugee Convention”) and finds a place in various national and international instruments.


It has been noted that since the onset of the COVID-19 pandemic, various states have closed borders and are following increasingly stringent restrictive measures to prevent the entry of outsiders. For instance, in the United States, in March last year, asylum processing for people coming from Mexico and Canada was halted. In Greece, boats on board with asylum seekers were returned.


The refugees and asylum-seekers have become one of the worst affected groups as a consequence of the pandemic. They are not only facing the threat of the pandemic itself but are also living in the fear of being deprived of their rights as a consequence of statelessness. The present piece aims to inquire into the legal dimension of border closures because of the pandemic. An example from the United States (“U.S”) has been provided to substantiate the present discussion. The author will try to answer the following in this article: 1) How is the principle of non-refoulement understood in international law? 2) What are a state’s obligations towards refugees in this scenario? and lastly 3) What should be the way forward in order to secure the rights of these groups in vulnerable times?


The principle of non-refoulement and International Law

As stated above, the principle of non-refoulement finds a place in Article 33 of the Refugee Convention and is a ‘cornerstone of refugee law’. Along with this, it is embodied in human rights law and international humanitarian law and the scope of the term varies with its usage under these three laws. It is also considered to be a part of customary international law.


It is to be noted that in addition to direct cases of transfer by the state, the principle extends to indirect measures which would include the creation of circumstances that leaves transfer to another state as the only option for an individual. This may also be understood as ‘secondary refoulement’.

The persons affected because of violations of this principle can always seek redressal through redressal mechanisms provided in the Refugee Convention and other humanitarian law and human rights instruments. The Refugee Convention, for instance, provides for dispute settlement (to be referred to the International Court of Justice) under Article 38 of the Convention. However, the convention does require better monitoring mechanisms that can help ensure more effective compliance and implementation.


The landmark Chorzów Factory case had noted that a breach of a principle of international law invites the obligation to make reparations. And therefore, in cases of violation of the principle of non-refoulement, a state would be obliged to make suitable reparations. Plus, it is required to perform certain ongoing responsibilities for the transferred person.


The Principle of Non-Refoulement During the Pandemic

Upon reading Article 33 of the Refugee Convention, it becomes evident that the principle is not absolute. Article 33(2) of the said convention provides exceptions in the form of reasonable grounds that involve situations wherein a refugee can pose a threat to the security of the country of refuge. Now, these reasonable grounds and the threshold required herein are not specified in the convention, leading to certain doubts in the interpretation of Article 33(2). The United Nations High Commissioner for Refugees’ (“UNHCR” ) Note on the Principle of Non-Refoulement advises that this exception be “applied with the greatest caution” and individualized assessment of the case is to be taken into account. The latter part was also stressed upon by the UNHCR in one of its Advisory Opinions. Another important point to be made here is the non-derogable character of the principle under discussion under international human rights law, such as Convention Against Torture (“CAT”) and International Covenant on Civil and Political Rights (“ICCPR”). Also, the ambiguity with respect to the point of exception to non-refoulement principle is not limited to the Refugee Convention but is found in other international instruments too.

Coming to the current scenario, it has been noted that due to the COVID-19 pandemic, several states have refused to grant asylum to refugees, closed borders and disrupted the asylum-processing, thereby violating the fundamental principle of non-refoulement. The U.N. High Commissioner for Refugees estimated that “167 countries have fully or partially closed their borders to contain the spread of the virus” and 57 out of these have made no exception to asylum seekers.


The pandemic cannot be used by states as a reason for the abrogation of various rights. While border screening protocols are justified, the contraction of disease should not be a reason for the deportation of a refugee. On the contrary, international law obligations and humanitarian considerations should be considered and appropriate medical care must be provided to the refugees. The Human Rights Watch has noted that “if safe and legal deportations are suspended due to the virus, the legal justification for detaining people pending deportation may no longer exist”. In these cases, authorities should release detainees and institute alternatives to detention. It recommended that governments should include health facilities and prevention measures in response to the pandemic with respect to asylum seekers and refugees. World Health Organisation’s International Health Regulations (“IHR”), too, purports the non-refoulement principles. The Principles of Protection for Migrants, Refugees, and Displaced People During COVID-19 calls for non-derogation of this principle under Principle 6.


Also, the international legal standards demand the obligations and duties extend to asylum seekers. So, even the persons who are yet to become authorised refugees under international law, a state should not deport the asylum seeker on this narrow consideration.


US’s Title 42

In March 2020, the US government under Trump invoked section 265 of Title 42 of the United States Code. This public health order move seeks to turn away asylum seekers at the US borders without any due process, who can apparently bring in COVID-19 into the country. The order, along with an accompanying rule, has sought to specifically bar certain categories of people which include the ones coming from Mexico or Canada, “a category the order says will be primarily migrants who arrive without visas”. Safeguards, such as screenings, that were earlier followed, have come to be completely ignored. This measure was widely criticized as “cruel, inhumane and xenophobic”. The newly elected Biden administration has, surprisingly, chosen to continue with this pandemic policy, raising humanitarian and legal concerns. As many as 980,000 people who are facing threats to their lives and security in their home countries have been denied entry into the country based on policy. In addition to this, it has come to be noted that the Black and LGBTQ migrants are bearing even more discrimination as a consequence.


In agreement with other legal critiques of this subject matter and on the basis of the above discussion, the author contends that this particular policy is violative of the principle of non-refoulement. It has also been noted that it violates the national law of the country as well. A number of lawsuits are being filed against this discriminatory and unfair policy in the U.S. For example, Oxfam has brought in such suits against the government. It is now hoped that these litigation tactics will help revoke the said order and redress the injustices meted out to a number of migrants.


Conclusion

It can be safely concluded that keeping in mind the non-derogation from non-refoulement principle, States should not enact measures that violate this norm, even during a health emergency, such as the COVID-19 pandemic. The states providing refuge should ensure temporary admission at least. Article 32(3) of the Refugee Convention also provides this. International human rights law, given its wider ambit than refugee law here, plays a more active and important role in this whole discussion and states should be reminded of partaking in the active promotion of these international law instruments. Lastly, the UN has been constantly bringing out important policy documents with respect to the international response to COVID-19. The ones concerning refugee protection and border closures such as UNHCR’s Key Legal Considerations on access to territory for persons in need of international protection in the context of the COVID-19 response and Practical Recommendations and Good Practice to Address Protection Concerns in the Context of the COVID-19 Pandemic could serve as good guiding documents for states.


Ranu Tiwari is a 5th year law student at Maharashtra National Law University, Nagpur. Her areas of interest include Human Rights Law, International Law and Constitutional Law.


Image: Credits to Cathy Wilcox