Blog post by Lavanya Pathak and Rishabh Mishra, fifth-year students pursuing B.A LLB(Hons.) from the National University of Study and Research in Law, Ranchi, India
Introduction
The world in 2020 is facing the worst public health crisis of its time, almost a hundred years after the Spanish flu. Covid-19 has crippled the 21st Century world and has brought governments and corporations to their knees. In mid-March, for the lack of any better measures, the pandemic forced many national governments to enter into partial or complete nationwide lockdowns, to prevent community outbreak. In the words of, IMF Managing Director Kristalina Georgieva, there is a situation of ‘global recession as bad as the global financial crisis or worse’.
Such formidable circumstances have directly impacted millions. There has been a collective realization of the importance of food on the table, a shelter overhead and the ability to have necessary healthcare. The pandemic has further aggravated the global refugee situation. The WHO, OHCHR, IOM and the UNHCR jointly issued a statement expressing concerns regarding the urgent protection for the rights and health of migrants, refugees and stateless persons. While some countries have closed their borders, which denies people the opportunity to seek/claim asylum, many are struggling to ensure healthy living circumstances and availability of essential goods.
While several works have shed light on the difficulties faced by refugees and the law on state responsibility, this blog post will highlight the specific obligations of states in the special circumstances caused by Covid-19 and discuss how both states and UN agencies have dealt with the situation over the past few months.
International obligations and the global response
History has it, at times of distress, be it armed conflicts or epidemics and diseases, that countries seem to resort to a hierarchy of their obligations, to cater to their citizens first as if human rights apply especially to them and only on a second degree to migrants and refugees. This approach is not only amoral and menacing but also, absolutely incompatible with international law. International refugee law provides for a simple obligation, to provide asylum while protecting the human rights of all refugees.
Given the difficult position of asylum seekers and refugees at times such as these, the response of the states and their obligations regarding two important areas must be discussed. Firstly, the right to seek asylum and secondly, the adequacy of living conditions and rights thereof (i.e. the protection and rights of refugees). An important determination that must be made is regarding the extent to which these obligations are modified, vacated or magnified during emergencies such as a pandemic.
The right to seek asylum
The first obligation of the states under international refugee law pertains to the permitting entry to asylum seekers The right to seek asylum is not only a human right enshrined under Article 14 of the UDHR, but it is also protected by the principle of non-refoulement, which prohibits the rejection, non-admission and expulsion at the borders. Non-refoulement is not only enshrined under various treaties but is also a Principle of Customary International Law, Jus cogens and is an absolute obligation that is not vacated by health emergencies like a pandemic.
Unfortunately, since the outbreak of Covid-19 has intensified, several countries have been unabashedly condemning the entry of asylum seekers on grounds of public health and to control the distribution of the virus.
These government actions are based on the pretext that International refugee law obligations of non-refoulement are vacated by the Covid-19 crisis. Fortunately, the only exception to the principle (that of denying refuge to someone who may be a danger to the security of the country), under Article 33 (2) of the 1951 Convention cannot be availed. While national security can also be threatened by a health crisis, it will neither be a proportionate measure nor be feasible in light of the consequent obligation to provide legal admission in a safe third country.
States must realize that denial of entry to asylum seekers, in the words of UNHCR, “can put asylum-seekers at further risk and expose them to additional trauma.” Furthermore, at such times of national crisis, mass influx cannot be managed by a single country. Even though non-refoulement is an independent obligation, international solidarity and burden-sharing are now pertinent. Thus, countries should first grant asylum with the minimum standards and then devise plans to apportion burden and responsibilities. On these lines, especially in the context of Syrian refugees, UNHCR has called for governments to put a moratorium on evictions and return of refugees to neighbouring countries thus sharing the responsibility and burden of the influx.
Furthermore, refugee law provides for various proportionate measures by which the countries can protect their national interests while respecting the right to seek asylum. To protect public health, general screening and interviewing in compliance with International Health Regulations, 2005 and confinement of individual asylum seekers as a preventive measure upon their entry is permissible and has been done previously in situations of epidemics and diseases. In special circumstances, to protect legitimate interests like public health & security the states can restrict the freedom of movement and residence of the asylum seekers to specified locations.
Protection of Refugees
Granting asylum solves only half the problem. An equally important aspect especially in times like these, which require increased assistance and positive measures for the protection of human rights including the Right to Life and Health, is humane and hygienic living conditions for refugees.
While the condition of refugee camps and detention centres are appalling in regular times and are often critiqued, during a pandemic, the conditions are likely to be worse. Many countries are witnessing a huge drop in their economy, high public health concerns and cases of Covid-19 are inevitably creeping into detention centres. Reportedly, several detention centres in Greece, Palestine, & Lebanon lack emergency plans, proper facilities for sanitation, supplies and the ability to enforce social distancing norms.
States are required to develop a competent system that ensures protection and up to par living conditions. This shall include firstly, the protection of Right to Life and Right to Health and secondly, observance of due diligence in terms of compliance with the no-harm principle and the various obligations under the International Health Regulations, 2005. Furthermore, special international instruments (both hard and soft laws), delineate the adequate standards of protection for various aspects of refugee care and the treatment of persons requiring special care like older persons, women and girls, children, people with disabilities and minority groups.
Health obligations
Refugees throughout the world, have reported many additional difficulties during the Covid-19 pandemic, including: complete loss of income, inability to buy food, medicines and pay rent and the unavailability of transport to even reach the nearest hospitals.
WASH systems are a significant part of prevention measures, but even such basic requirements are not being fulfilled as has been reported in Libya, Greece, Pakistan and Ethiopia among others. However, a number of initiatives have been taken by National Governments and UNHCR to make these services accessible. Notably, as an adaptive approach, Portugal had granted access to the health care system (as available to its citizens) to all migrants and asylum seekers with pending applications. Japan’s monetary contribution to the UN for humanitarian interventions in Uganda has gone a long way in improving the WASH facilities in the health centres.
To make Covid-19 related health services more accessible to refugees and vulnerable groups UK has announced free testing and treatment of Covid-19 for all overseas visitors irrespective of their immigration status. Furthermore, as an inclusive measure, Peru government has enacted special regulation to provide temporary access to State Insurance Coverage for refugees tested positive for Covid-19. In many countries like Chile, Peru, & Argentina refugee doctors and nurses with medical training have been allowed to join the Covid-19 response forces.
While the setting up of isolation centres and increased testing has stabilized the situation of Syrian Refugee camps in Jordan, many nations are experiencing a shortage of health workers, lack of Covid-19 tests for refugees and the inability to implement social distancing norms. In conflict-hit areas of South Sudan, Yemen, & Palestine the situation is further worsened because of over-burdened health facilities. Experts have warned that the situation will only worsen with the winters approaching. Thus, the countries must increase funding and aid in collaboration with UN agencies, local NGOs and private companies.
Furthermore, the governments must, in furtherance of their duty to preserve and protect the Right of Health of all refugees in a non-discriminatory fashion, construct quarantine facilities and ensure the provision of quality primary and secondary health care facilities and supply masks and sanitizers among other essential medicines and supplies. States should also ensure the provision of quality supplies like PPE kits, N95 Masks and other supplies to the health workers.
There is also a profound need to ensure communicating all ways of ensuring prevention from Covid-19 and an understanding of its symptoms with “timely, relevant and accurate information” inclusive and accessible to all cultures, communities, age-groups and ethnic and religious minorities. Furthermore, while the healthcare aspects primarily need to combat Covid-19, the governments must continue the minimum services for access to primary healthcare, immunization and prevention of STDs, malnutrition and infant mortality. Mental health and psychosocial support must also be provided in line with the guidelines prepared by the Inter-Agency Standing Committee (IASC).
Education
Education has been highly affected with the crisis and while people with access to computers and internet have been able to continue studies with minimal effect, it is important to ensure that access to education is not disrupted for the refugees. This can be done by supporting schools to remain open where health conditions are under control and investing in online distance education or local offline arrangements.
UNICEF-UNHCR have collaborated to jointly address this problem and have worked in various countries. They have pressed for the need for a “revolution in learning education and skill training”, to counter the effects of the pandemic. In Chad, Mali and Niger, the UNHCR is working alongside the national governments to ensure the inclusion of refugees in education policies, the reopening of schools and implementing contingency plan to continue education during the closure period by self-learning programs and booklets.
Programs that had been initiated earlier like the supply of “School-in-a-bag” and “Instant Network Schools program” are being highly supported. In other countries like Uganda, Egypt, South Sudan, Ghana and Indonesia, the agency has to work in collaboration with the Education cluster or private companies to supply self-study packages, study materials, initiate TV and radio broadcasting and provide cash assistance for greater data connectivity. The United Kingdom and Canada have also expressed their intent to increase access to technology to promote refugee education.
Vulnerable groups
While ensuring protection, states must also keep in mind the vulnerability of the demographic. The refugees living in camps with pitiable health facilities are often highly stigmatized and neglected. This is especially true for countries facing a huge humanitarian crisis battling with an “Emergency on top of an emergency”.
Some categories of people are more affected than others. Older persons, children and pregnant women are at a heightened risk of death due to the virus and need more medical assistance. Furthermore, women and girls have more unpaid household responsibilities, are at risk of sexual exploitation and abuse and have fewer savings while being highly exposed to the dangers. Keeping in mind the increased gender-based violence Amnesty International has issued Guidelines for protecting the rights of women, girl, trans women and intersex during the pandemic.
Children are suffering due to the closure of school-feeding programs, risk of violence and inability to access lifesaving child protection service during the pandemic. UNICEF has released Quick Tips on COVID-19 and Migrant, Refugee, and Internally Displaced Children (Children on the Move), laying down policy consideration to protect children from stigma, discrimination and violence. Most importantly, people with disabilities need increased support with the basic protection measures and they, along with minority groups suffer from the risk of discrimination and abuse. In Jordan, WASH facilities are made available in quarantine centres keeping in mind the convenience and accessibility by people with disabilities. Thus, it is important to ensure that their special circumstances are taken care of by specialized measures.
Global Best Practices
While there is a long way to go, there is a silver lining after all. Many commendable steps have been taken by countries around the world. Rwanda has extended the national Community-Based Health Insurance (CBHI) to urban refugees. Syrian refugees have been employed at Turkey’s migrant health centres. Uganda has included health services for refugees as a vertical under the Ministry and refugees have been included in National Health services in Peru. Recently, the EU contributed Euro 12.6 million to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), for securing financial assistance to Palestinian refugees in Jordan affected by Covid-19. In India, the Rohingya refugee families living in the city were provided rations and health facilities during the nationwide lockdown.
Various non-governmental organizations have been providing a lot of help on the ground. To name a few, Kızılaykart has an innovative Bash-based assistance scheme, Water4 has done exemplary work in Congo and the UN System with Development partners like World Bank Group among others has taken groundbreaking steps for Inclusion, Social Cohesion and streamlined funding.
The way forward
“We can only defeat this virus when each and every one of us is protected.”
The way forward is the path of empathy and compassion. While many efforts have been taken by UN agencies and national governments, the need for a specialized and dedicated response for providing adequate protection to refugees cannot be overstated. The governments must fulfil their responsibility to provide asylum and proper living conditions that these formidable times require. The key principles to be observed are responsibility sharing, protection, inclusion in national systems and durable solutions.
In this fight, the states cannot be expected to work alone. States can follow global best practice but the burden and responsibility sharing is the way to go. They can make use of the information database of best practices, field problems and humanitarian response plans provided by UNHCR. Working closely with such organizations and NGOs having expertise and manpower and making the best use of the skills and resources of the refugees, migrants and stateless people can prove to be a huge success. These organizations, while working closely to help refugees in the field, are constrained by their financial requirements. Thus, states must provide them with funding apart from the economic care packages specially tailored for refugees. Lastly and most importantly, as citizens, we can donate to respected organizations working closely with refugees and where permissible, volunteer and do “our bit”.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.
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