COVID19 and Refugee Asylum: A Borderless Virus and Inadequate Excuses?

Since March 2020, with the onset of COVID-19, the world has come to a halt. In this crisis, the most affected groups have been the refugees. The power-dynamic cannot go amiss as the pandemic has added to their burden making it difficult for them (now more than ever) to seek asylum. In light of the severe atrocities, the 1951 Refugee Convention helps explain the legal recourse available to refugees across the world. This article attempts to analyse the international legal framework addressing the refugee crisis in the midst of the pandemic, highlighting the nuances of States’ defences in infringing the rights of refugees, given the  global health crisis.

Principle of Non-Refoulement and its Implementation

The principle of non-refoulement in Article 33(1) of the 1951 Convention states that “forcible return or expulsion” of refugees from the country they are trying to seek asylum in is prohibited when they face a real threat in their country of origin. The European Court of Human Rights in Jabari vs. Turkey recognised the integral role played by the principle of non-refoulement in any democratic community to restrict brutal treatment of a refugee in actual risk of persecution in their country of origin (¶39). Further, in Nadege Dorzema et al. v. Dominican Republic the Inter-American Court of Human Rights explained the inhumane nature of the accelerated processes of expulsion of refugees, reiterating the right of refugees to present their case against expulsion (¶¶161-175). Such cases provide an understanding of the principle of non-refoulement, its necessity and correct implementation by courts. 

Response of the Signatory States towards refugees during the Pandemic

Often, to expel refugees, Article 33(2) is the single lawful ground the State can rely on which promulgates that the principle of non-refoulement can be derogated from when the refugee is a “danger to the security of the country.” Consequently, during the pandemic multiple signatory States to the 1951 Convention, have violated the non-refoulement principle citing health emergencies and threats to national interest to invoke Article 33(2) and deny refugees asylum during the pandemic. For instance in Europe, the 26 States enlisted for Schengen visa closed their borders in March 2020 as COVID19 spread. Brazil similarly prohibited refugees from seeking asylum during the pandemic. Further west, refugees entering Canada during March 2020 found themselves being sent back to the United States from where many were deported back to their country of origin. In the US, emergency powers were used to seal the borders from anyone seeking refuge. 

While these showcase concrete cases of such measures erected, while contextualizing Article 33(2) in the pandemic, it is important to understand the extent of the terms ‘danger to the security of the country.’ Notably, the exception to non-refoulement principle must be implemented only where the extent of danger is grave enough to expel a refugee from the host country. The following section dissects this further in the context of analysing how a public health crisis like COVID-19 could not possibly be envisioned to deny protection to refugees.

State’s Defences and their Legal Validity

Public health issues like the pandemic fall short of being interpreted as such grave danger. This interpretation was affirmed in the 1951 Convention’s drafting conference where the UK delegate envisioned refugees being of ‘grave’ danger if they were working for foreign power against the interest of the host country. Grahl-Madsen, the Special Consultant in the Office of the High Commissioner for Refugees in 1962-63, in his commentary suggests that “espionage, sabotage of military installations and terrorist activities are among acts which customarily are labelled as threats to national security” (¶171). Hence, Article 33(2) does not envision refugees who are possibly carrying the virus as a threat to national security.

It is necessary to mention that the 1951 Convention contains a derogation clause – Article 9, which enlists situations where a State may derogate from principles such as the right to non-refoulement. The provision allows contracting States to take necessary measures at their convenience in the interest of national security in situations like a “war or other grave exceptional circumstances.” While a pandemic can fall within the perception of ‘grave exceptional circumstances,’ these terms however refer to circumstances closely related to a war-like imminent threat of aggression from a country. This would include situations such as when a State is “threatened with armed aggression by another State, or the existence or threat of a civil war” (here, ¶3). Such jurisprudence clarifies that the exceptions to the principle of non-refoulement is not applicable to the current pandemic which attests that denying asylum to refugees citing the pandemic is against international refugee law. 

It could be argued that denying asylum to refugees is a ‘wrongful act’ under Responsibility of States for Internationally Wrongful Acts 2001 as Article 2(b) states that internationally wrongful acts of countries are a result of them breaching their international obligations.  Article 48(1)(b) of these rules clarify that the invocation of such responsibility could be exercised by any State apart from the injured, where the responsibility is owed to the entire international community. Hence, the refugee crisis, as an international dilemma in the maintenance of human rights falls within a State’s erga omnes obligation. Thus any state under Article 48(1)(b) can invoke state responsibility against a signatory violating the 1951 Refugee Convention in denying asylum to the refugees. 

On the other hand, Article 25 speaks of a State’s ‘necessity’ including circumstances where the State is forced to violate its international obligation. The four requirements to satisfy this provision are first, the State should only take measures necessary to protect its ‘essential interest.’ Second, a ‘grave and imminent peril’ must exist. Third, the State’s conduct should be the ‘only way’ to solve the crisis; and fourth, the state shouldn’t have caused the crisis themselves. 

However, this defence would most likely not succeed with respect to the pandemic because of the high threshold set by cases like CMS vs. Argentina which rejected Argentina’s argument to invoke State Necessity. The Tribunal agreed that Argentina’s economic crisis provided grounds for  the State’s need to take the necessary measures to control it. However, it concluded that the wide-ranging perspectives on the different measures available other than the violation of the international obligation, made it clear to them that Argentina’s measures were not the sole solution (¶¶322-324). Hence, they denied the state’s right to invoke necessity under Article 25. Similarly, whether the expulsion of refugees was the only alternative to control the pandemic is debatable. Nonetheless, the fact that there is another side to the debate would make it difficult for States to meet the high threshold provided in Article 25.  

Conclusion

The above analysis clarifies the legal validity of the State’s argument, or rather the lack of it  highlighting the several instances of arbitrary denial of refugee rights by signatories. Thus, instead of exploiting COVID19 as a justification of their violation of the refugee rights, the States have an undeniable responsibility to not expel refugees in a grave crisis such as the pandemic. 


Apurbaa Dutta and Pratyusha Dasgupta are third year law students at Jindal Global Law School.


Illustration: New Delhi Wall Mural (Sanchit Khanna / Hindustan Times via Getty).

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