[Editor’s Note: This article is part of a Just Security series, COVID and International Law. All articles in the series can be found here.]
The threat posed by COVID-19 has been used by governments around the world to roll back key protections guaranteed under international law. Nowhere has this been more apparent than in the context of international refugee law. One of the pillars of international refugee law is the principle of non-refoulement, which prohibits any State conduct “leading to the ‘return in any manner whatsoever’ to an unsafe foreign territory, including rejection at the frontier or non-admission to the territory.” In recent months, governments have violated the principle of non-refoulement by closing their borders entirely and halting asylum-processing. The U.N. High Commissioner for Refugees (UNHCR) has estimated that “167 countries have…fully or partially closed their borders to contain the spread of the virus” and that 57 of those countries are “making no exception for people seeking asylum.”
In the United States, for example, the Centers for Disease Control and Prevention issued an order on March 20 that effectively suspended asylum processing for persons “travelling from Canada or Mexico.” As Lucas Guttentag has noted, the order applied to land travel from Mexico and Canada and covered those noncitizens who arrived without valid travel documents. The CDC has since indefinitely extended the March 20 order, which will apply until the Director has determined that “the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health.” The true aim of the policy seems to be to expeditiously expel asylum-seekers. Experts note that the policy is overbroad and dispute whether there is a credible rationale for categorically barring all asylum-seekers, especially since the policy was initiated over the objections of public health authorities. Even unaccompanied minors who have been tested for COVID-19 by Immigration and Customs Enforcement (ICE) officials and received negative results have been prohibited from presenting their claims.
In March, the Belgian government introduced measures that effectively suspended “the right to asylum for newly arriving asylum-seekers due to the coronavirus.” The Federal Immigration Office shut down various service and reception centers throughout the country. The total ban did not last long, and the Belgian government eventually switched to an online registration system, whereby asylum-seekers register online and then wait for the Aliens Office to arrange an appointment. But in October, the Brussels Court of First Instance held that waiting times were too long and thus obliged the Belgian State to take “necessary measures to ensure that asylum-seekers are received as soon as they register online.”
Greek officials have also made headlines by intercepting and turning back boats filled with asylum-seekers before those boats can land on Greek soil. Although Greek officials have employed such practices for several years, experts have suggested that “Greece’s behavior during the pandemic has been far more systematic and coordinated.” The New York Times has reported that asylum-seekers have been “left to drift in their own boats after Greek officials disabled their engines” and reports throughout the summer and fall have documented Greek Coast Guard officials forcing asylum-seekers who arrive on Greek soil onto unpropelled life rafts, towing them out of Greek waters, and cutting them loose to drift. Human Rights Watch notes that Greek law enforcement officers have also summarily returned asylum-seekers at the land border with Turkey.
While governments can take certain protective measures in response to COVID-19, potentially including restrictions on movement, they are not entitled under international law to completely prevent the entry of asylum-seekers – that is, those who are seeking international protection but whose claim has not yet been decided (not every asylum seeker will be recognized as a refugee, but every refugee is initially an asylum seeker). This article is the first of two describing the aspects of international refugee law that the COVID-19 pandemic and resultant government responses implicate. This article first summarizes how human rights conventions and relevant case law conceptualize the principle of non-refoulement, and then reflects on States’ obligations under this principle in the context of the ongoing pandemic. Further, given that some governments have turned back migrants on the high seas or on foreign territory, this article also considers the extent to which the principle of non-refoulement applies extraterritorially. The next article in this series will discuss the protections and duties that States owe to those migrants under their care in large-scale camps and settlements or in custody in smaller facilities, domestically or at points of entry.
The Principle of Non-Refoulement
Article 14 of the 1948 Universal Declaration of Human Rights (UDHR) states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” Although the UDHR is expressly nonbinding, the right to seek asylum that it articulated has become the core pillar of international refugee law; other aspects of refugee law, ranging from non-refoulement to guarantees of proper treatment, stem from this basic right.
The principle of non-refoulement establishes that those who seek asylum may not be returned to a country in which there are reasonable grounds to believe they will be subjected to persecution. The principle is grounded in the 1951 Convention Relating to the Status of Refugees (1951 Refugee Convention) and its 1967 Protocol. The Protocol extends the Convention’s protections to all refugees irrespective of the location or date of their displacement, and importantly, requires its 146 States Parties (among them the United States) to abide by the Convention regardless of whether they are separately party to it. The principle of non-refoulement is also regarded by the Office of the United Nations High Commissioner for Refugees to be a norm of customary international law.
The 1951 Refugee Convention defines the prohibition on refoulement in Article 33(1), which states that no “Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where [their] life or freedom would be threatened on account of [their] race, religion, nationality, membership of a particular social group, or political opinion.” Article 33(2) articulates an exception: the “benefit of the present provision may not…be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he [or she] is, or who, having been convicted by a final judgment of a particular serious crime, constitutes a danger to the community of that country.” As one of us has observed in a previous Just Security article, the Article 33(2) exception requires an “individualized showing…[and] cannot be applied on a blanket basis to everyone seeking asylum regardless of whether they actually pose a threat.”
Other international human rights treaties reinforce the principle of non-refoulement in cases where the person returned may face torture or inhuman and degrading treatment. For example, Article 3 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) states that “[n]o State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The Human Rights Committee has also interpreted the International Covenant on Civil and Political Rights (ICCPR) to encompass the principle of non-refoulement. Article 7 of the ICCPR affirms that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” As one legal commentator points out, the “prohibition on refoulement is inferred as a component of the absolute prohibition of torture as well as inhuman and degrading treatment.”
Regional human rights treaties have similarly affirmed and in some cases expanded the prohibition on refoulement. Article IX of the African Union’s Kampala Convention obliges States to “[r]espect and ensure the right to seek safety in another part of the State and to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk.” Such language goes beyond that articulated in the ICCPR and CAT and might apply to the COVID-19 context: Under the Kampala Convention, a refugee arguably cannot be returned to a country that has failed to control COVID-19, as return to such a country would place the refugee’s life and health at risk. The Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa also employs expansive language, stating that “[n]o person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened (Article II(3)). Despite the broad language contained in both the Kampala and OAU Unity Conventions, Rodolfo Marques has noted that neither the African Court on Human and Peoples’ Rights nor the African Commission on Human and Peoples’ Rights has “had the opportunity to determine the dimension of [non-refoulement] within their jurisdiction.”
The American context features similar obligations. Article 22(8) of the American Convention on Human Rights affirms that a foreign national cannot “be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.” The European Convention on Human Rights does not contain an explicit non-refoulement clause, but the European Court of Human Rights has effectively read non-refoulement into the Convention’s prohibition on “torture and inhuman or degrading treatment or punishment” (Article 3). That right, however, is limited to cases where the person expelled faces a reasonable fear that they will be subjected to torture or inhuman or degrading treatment or punishment upon return.
The Principle of Non-Refoulement During a Pandemic
Does a public health emergency grant a government the right to derogate from the principle of non-refoulement? Article 33(2), which, as noted above, provides that a refugee cannot claim the benefits of the Refugee Convention if “there are reasonable grounds for regarding [him or her] as a danger to the security of the country in which he [or she] is,” may at first glance seem to grant a government wide discretion.
Yet official legal interpretations have cabined a government’s right to turn away asylum-seekers. Notably, in its Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol, UNHCR stated that the application of Article 33(2) requires an “individualized determination by the country in which the refugee is [located] that he or she comes within one of the two categories provided for” under the Article. Moreover, UNHCR noted that Article 33(2) does not “affect the host State’s non-refoulement obligations under international human rights law, which permit no exceptions.” In other words, a host State must make an individualized determination under Article 33(2) that a refugee poses a danger to the security of the country. If the host State finds the refugee in question to pose a danger, then the host State is entitled to refuse admission to that refugee, so long as the State does not violate the non-refoulement obligations – pehaps most importantly, the obligation not to return a refugee to a place where they will likely face persecution – articulated by other human rights conventions to which it is party.
More broadly, no country can cite a pandemic as an excuse for turning away migrants en masse at the border, without even assessing asylum claims. Androula Pavli and Helena Maltezou note that while countries can introduce screening protocols at the border, the “results of screening must never be used as a reason or justification for deporting a refugee or a migrant [including an asylum seeker whose refugee status has yet to be determined] from a country.” Indeed, as various international law experts have noted, States have an affirmative obligation under international law to provide medical care to asylum-seekers.
Even if a person does pose a threat (that is, has a serious communicable disease), the principle of non-refoulement under the CAT and ICCPR is “non-derogable” for States Parties to those conventions (including the United States). The Committee Against Torture – the body that monitors implementation of CAT – affirmed in its General Comment No. 4 that the principle of non-refoulement is, like the prohibition on torture itself, non-derogable. Similarly, the UN Human Rights Committee – charged with the implementation of the ICCPR – cast the principle of non-refoulement in absolute terms. In its General Comment No. 20, the Committee noted that “States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion, or refoulement.” A person therefore cannot be returned to a State where there are “substantial grounds for believing that” they would be in danger of being subjected to torture (in the case of CAT). The ICCPR has been interpreted to contain a similar prohibition: According to an Advisory Opinion by the UNHCR, a person also may not be returned “where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by Article 6 [right to life] and 7 [right to be free from torture or other cruel, inhuman or degrading treatment or punishment] of the [ICCPR].”
In the past, various governments have refused to admit migrants who carry communicable diseases. The United States, for example, provides for exclusion of persons who have a communicable disease of public health significance, but only after individualized medical examination and an opportunity to appeal. (It was only in 2010 that the United States removed HIV from the list of diseases that could exclude aliens from entry—but even when that ban was in effect, it required an individual determination.) It is important to emphasize, however, that this is not a basis for denying asylum or for overcoming non-refoulement protections – either under U.S. or international law.
Regional human rights courts have also addressed the principle of non-refoulement. In Tineo Family v. Bolivia, the Inter-American Court of Human Rights articulated procedural safeguards that States Parties to the American Convention on Human Rights (ACHR) must meet before they can expel or deport an asylum-seeker. The State must allow an asylum-seeker an “adequate and individualized” analysis of their application, must assesses that individual’s “personal circumstances,” and in the case of an unfavorable decision must have the right to “review before a competent authority.” Such safeguards represent a procedural minimum; States that are party to the ACHR are clearly obligated to adhere to them even during a pandemic. The following year, the court held in Rights and Guarantees of Children in the Context of Migration that States Parties cannot return “or expel a person – asylum-seeker or refugee – to a State where her or his life or liberty may be threatened as a result of persecution…or due to generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.” The “other circumstances” provision is broad in scope and theoretically could prevent a State from turning asylum-seekers back to countries that have failed to control a pandemic. An expert roundtable convened by the UNHCR cautioned, however, that the “other circumstances” provision is the “least applied by state practice and hence there seems to be the least common understanding regarding its interpretation.”
The European Court of Human Rights (ECtHR) has found that the principle of non-refoulement applies in situations where a person faces a reasonable fear of being subjected to torture. In Chahal v. United Kingdom, the Court prohibited Mr. Chahal’s expulsion to India, holding that the proposed expulsion engaged Article 3 of the European Convention of Human Rights; thus, Article 3, which prohibits torture and “inhuman or degrading treatment or punishment,” implies a prohibition on non-refoulement when individuals face a reasonable fear of being subjected to torture upon return. Such a prohibition is non-derogable and would bind State action even during a pandemic.
The ECtHR has also suggested that States’ ability to return asylum-seekers to substandard conditions – potentially including conditions of uncontrolled pandemic – is limited by the European Convention. In the recent Case of M.S.S. v. Belgium and Greece, an asylum seeker originally from Afghanistan challenged Belgium’s decision to return him to Greece, where he first arrived in the EU. The Court held that Belgium had violated Article 3 of the Convention by returning the applicant to Greece, because “by sending him back to Greece, the Belgian authorities exposed the applicant to detention and living conditions in that State that were in breach of that Article.” Because it is non-derogable, the “non-refoulement” prohibition applies regardless of the pandemic; moreover, “degrading detention and living conditions” may include conditions in countries where a pandemic is uncontrolled.
Lastly, international health law addresses the principle of non-refoulement. Notably, the World Health Organization’s International Health Regulations (IHR) do not permit States to breach their non-refoulement responsibilities. The IHR, a binding instrument that delineates responsibilities for WHO’s 196 Member States (and the subject of a later article in this series), caution against unnecessarily punitive travel restrictions. This sentiment is driven by fear that such restrictions might facilitate discriminatory practices that have little to do with public health. The IHR also emphasize that screening measures undertaken to protect domestic public safety must be applied in a manner consistent with the principle of non-refoulement.
Application in the Context of COVID-19
COVID-19 does not grant states an excuse to derogate from their non-refoulement obligations. Earlier this year, international human rights experts laid out 14 Principles of Protection for Migrants, Refugees and Other Displaced Persons, in response to the spread of COVID-19. These principles, while not binding in and of themselves, are derived from “international treaties and…customary international law.” Principle 6 cautions that “a State’s pursuit of legitimate health goals must respect the fundamental principle of non-refoulement, including non-return to a real risk of persecution, arbitrary deprivation of life, torture, or other cruel, inhuman, or degrading treatment.”
As noted above, the 1951 Refugee Convention’s non-refoulement obligation does allow exceptions for cases where a refugee poses a threat to the host country, but that exception requires an individualized determination. As the UNHCR Advisory Opinion clarifies, States cannot turn back asylum-seekers en masse at the border. In a recent document addressing legal considerations during COVID-19, UNHCR noted that States are “entitled to take measures to ascertain and manage risks to public health” and in response to COVID-19 can implement disease screening protocols as well as impose quarantines. Thus, States can take measures to ensure that asylum-seekers do not spread COVID-19 to the local host State population. This might include testing and perhaps quarantining for up to two weeks where there is reason to believe that an asylum-seeker has been exposed to COVID-19.
As noted above, international human rights instruments prohibit refoulement of a person to a State where there are “substantial grounds for believing that” they will be in danger of being subjected to torture (in the case of the CAT) or for believing that there is a real risk of irreparable harm to protected rights (in the case of the ICCPR). Such prohibitions complement the Refugee Convention’s non-refoulement obligation and serve as an additional constraint on State behavior. Regional human rights instruments also mirror the obligations articulated in the ICCPR and CAT. Hence even those asylum-seekers found to have COVID-19 cannot be returned if doing so would violate this non-derogable obligation.
States’ Obligations to Individuals Outside their Territories
UNHCR has held that the principle of non-refoulement applies whenever a State exercises effective authority over an asylum-seeker. In Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, UNHCR stated that States are “bound…not to return any person over whom they exercise jurisdiction to a risk of irreparable harm.” The “decisive criterion,” UNHCR continued, “is not whether that person is on the State’s national territory, or within a territory which is de jure under the sovereign control of the State, but rather whether or not he or she is subject to that State’s effective authority and control.” A State can exercise such effective authority and control in a wide variety of contexts, including “at the frontier, on the high seas or on the territory of another State.”
In addition, because the principle of non-refoulement is affirmed in other human rights instruments, ranging from CAT to the ICCPR, the extraterritorial application of those treaties might similarly constrain a State’s ability to return or expel an asylum-seeker. For example, the Human Rights Committee, in interpreting legal obligations imposed by the ICCPR, has affirmed that States are required to “respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party” (General Comment No. 31). Such a prohibition applies, according to the Human Rights Committee, wherever the State in question exercises effective control – contexts like a State-run refugee camp, or occupied territory, or State-flagged ships and aircraft. (It is important to point out, however, that not all States, among them the United States, accept this interpretation of the ICCPR.) The United States, which generally resists the applicability of human rights obligations extraterritorially, has accepted that the CAT – and thus its non-refoulement obligation – applies to U.S.-registered ships and aircraft regardless of where they are located.
Regional human rights courts have also opined on the extraterritorial application of human rights provisions. Inasmuch as those human rights provisions imply a prohibition on refoulement, a State will be prohibited from expelling or returning an asylum-seeker in an extraterritorial context. Indeed, in Coard et al. v. United States, the Inter-American Court of Human Rights noted that under certain circumstances, the American Convention’s “jurisdiction over acts with an extraterritorial locus will not only be consistent with but required by the norms which pertain.”
Application of Extraterritorial Obligations in the Context of COVID-19
Just as the COVID-19 pandemic does not release states from their non-refoulement obligations for those who have reached the border, it also does not release them from their non-refoulement obligations for those who have not reached the border. In particular, the “effective authority and control” standard that UNHCR has articulated may constrain State action in a variety of contexts. For example, the Greek efforts to divert boats full of asylum-seekers away from Greek territory noted at the outset of this article arguably violate the principle on non-refoulement. When Greek officials intercept and interact with the migrant boats, they are arguably exercising “effective authority and control,” even if those boats have not yet reached Greek waters. The European Court of Human Right’s jurisprudence on the extraterritorial application of the European Convention on Human Rights may also bind Greek action. The European Court, for example, held in Cyprus v. Turkey that “High contracting parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad.”
States may also be bound by the extraterritorial application of other human rights instruments to which they are a party. If aliens face the prospect of torture or inhuman or degrading treatment, these non-derogable human rights obligations may impose constraints on their return. COVID-19 does not erase these protections.
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It appears likely that many States have violated the international law prohibition on refoulement during the course of the COVID-19 pandemic. COVID-19 does not grant States carte blanche to trample on well-established principles of international refugee law. States that are party to the 1967 Protocol have an obligation to process asylum claims, even if they are simultaneously allowed to impose COVID-responsive health protocols on entering asylum-seekers. They have an obligation, moreover, not to return or expel asylum-seekers from any area or context where a State exercises “effective authority and control” without first undertaking an individualized assessment of their situation and claims. States that are party to human rights treaties that establish their own non-refoulement obligations may not expel those seeking asylum without first ensuring that returning them to their country of origin will not violate the State’s treaty obligations.