Covid-19 has seen the global enactment of border closures and restrictions on the entry and settlement of non-nationals. While these measures have been described as necessary in the face of a new global threat, they may further jeopardise an already dangerous situation for some of the world’s most vulnerable and could potentially violate the fundamental legal norm of non-refoulement. Though such measures are theoretically temporary, concerned voices have warned that governments may use the pandemic to restrict migration and fuel anti-immigration rhetoric.
TRAVEL RESTRICTIONS AND BORDER CLOSURES IMPACT ON THE RIGHT TO SEEK INTERNATIONAL PROTECTION
To combat the virus, states have implemented border closures that prevent the entry of non-citizens to their territories. The US has halted its asylum processing, Italy closed its ports to migrant vessels in early April and Canada has temporarily suspended its refugee resettlement programme. International border closures and travel bans are severe obstacles to people in need of international protection. They may further worsenthe precarious conditions facing the millions of individuals who choose to flee from conflict-ridden countries. The situation is especially dire in light of the fact that asylum seekers cannot claim refugee protection if they remain within their country of origin. As leaders hurried to close their borders, those fleeing from conflict, war, and persecution were consequently left in a form of limbo - unable to gain protection from their home country while also denied the right to seek asylum.
Whether these measures can be considered legitimate is a vital question and one that must be tackled by examining the current legal framework regulating the right to seek asylum and the potential limitations to that right during a state of emergency.
THE FOUNDATION OF THE NON-REFOULEMENT PRINCIPLE AND EMERGENCY POWERS
The principle of non-refoulement is at the centre of the international framework regulating refugee protection. The main statutory framework concerned with non-refoulment is Article 33 of the 1951 Convention Relating to the Status of Refugees. Described by the UNHCR as the “cornerstone of asylum and of international refugee law”, Article 33 stipulates that no contracting state may return (‘refouler’) or expel refugees to a state where they may face persecution or other threats to their lives and fundamental freedoms. States also have a positive obligation to ensure that individuals who present themselves at a border claiming to be at risk of persecution are provided with adequate protection and not denied entry at the border. This duty includes making independent inquiries and allowing for a fair and transparent asylum process.
Section 2 of Article 33 provides that an exception may be made if the refugee has committed a serious crime or is deemed to be a danger to the security of the host state. Given the global threat posed by the virus, states may argue that to allow the entry of non-nationals during a pandemic may pose a significant security concern. However, the clause itself is narrow in scope and makes no explicit mention of any possible public health concerns that may constitute a legitimate exception to the non-refoulement principle.
Nonetheless, international and regional human rights instruments do recognise that states in certain limited circumstances can derogate from some of their international obligations. Under Article 4 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the European Convention of Human Rights (ECHR) if there is a state of emergency threatening the life of a nation, a state may derogate from some of their international obligations, provided the measures are consistent with other obligations under international law and non-discriminatory. Commenting on the potential derogation from international obligations during an emergency, the UN Human Rights Committee further sets out that they must be of an “exceptional and temporary nature”, consistent with the principle of proportionality and limited to “the extent strictly required by the exigencies of the situation”.
THE ABSOLUTE NATURE OF THE OBLIGATION
While the 1951 Convention suggests that the principle of non-refoulment is not absolute in all circumstances, the provision is linked to other non-derogable rights including the absolute prohibition on torture and inhuman or degrading treatment or punishment, respectively enshrined in Article 3 of the Convention Against Torture (CAT) and the ECHR. According to the case law of the European Court of Human Rights (ECtHR) ,the principle of non-refoulment is considered a component of the absolute prohibition on torture or other forms of inhuman treatment, meaning that it can never be limited even in public health emergencies similar to the current pandemic.
The ECtHR has reaffirmed the absolute nature of the principle on numerous occasions. In Chahal v UK, it considered the legality of the decision to deport an alleged terrorist to India, where the likelihood was high that he would be subjected to torture or inhuman treatment. The Court held that the prohibition remained absolute “irregardless of the victim’s conduct”, stating that states had an obligation to uphold the non-refoulment principle in all circumstances, including within the context of rising national security concerns or in a potential state of emergency. The Court reached similar conclusions in other prominent cases including Soering v UK and M. SS v Belgium and Greece, confirming the absolute nature of non-refoulment under human rights law.
Blanket bans prohibiting the admission of refugees are also a clear violation of the principle of non-refoulment. Non-refoulment forms part of customary international law and some suggest that it amounts to a peremptory norm of jus cogens from which no derogation is permitted under any circumstances, placing it alongside other prominent norms such as the right to self-determination, the prohibition on genocide, and the prohibition on torture. Consequently, states have a legal obligation to assist and not deny entry to any individual who seeks asylum on the basis of persecution, torture, or other irreparable harm.
THE EROSION OF THE ABSOLUTE NATURE OF THE NON-REFOULEMENT PRINCIPLE: A DANGEROUS PRECEDENT
Labelling vulnerable individuals as dangers to the public health, spreaders of disease, or ‘security threats’ to justify creating an unlawful exception to the non-refoulment principle may set a detrimental precedent for the post-pandemic legal regime. Such a development could potentially allow governments to use the protection of public health as an excuse to limit migration and permanently opt-out of their non-refoulment obligations even if the pandemic were to subside or lessen in severity. Scholar Steven Vertovec expressed concern for the future ramifications of the current restrictions, stating that “current treatments of migrants and refugees threaten to create a stigma of disease-carrying that may endure long after the Covid-19 crisis subsides”.
Emelie is a recent graduate in International Politics and Law from Middlesex University. She is currently active as a Community Campaigner for Action Aid UK while also working as a volunteer for the non-profit, The Circle NGO. Her research interests include women in international law, humanitarian law, and gender and security.