The Pandemic’s Border Closures: The Paradox of Travel Restrictions and Refugee Rights

The COVID-19 pandemic has altered the meaning of ‘travelling’ for both overseas and domestic populations. However, for asylum seekers and refugees, this new generation of travel restrictions introduces a critical challenge to the fundamental protections of human rights: the principle of non-refoulement.

On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. In response to this public health crisis, governments across the entire globe have implemented protectionist travel policies. These attempts include the tracking of population movement (contact tracing), restriction of domestic travel, and extreme measures of full border closure. More than 20 months have passed, and individuals living abroad, even as citizens of their own nation, are still facing tremendous restrictions and ordeals in returning home. But for asylum seekers and refugees, these ‘difficulties’ are much more than just a few more sheets of required documentation. The pandemic has effectively constrained guarantees of basic rights for asylum seekers, not only denying them access to adequate healthcare and nourishments, but going to the extent of states neglecting their responsibilities of accepting refugee populations -- challenging the principle of non-refoulement. 

The principle of non-refoulement is one of the key cornerstones of international law in the interests of legal protection of refugees. As defined in Article 33 of the 1951 United Nations Refugee Convention, “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened.” In a technical perspective, the “frontier of territories” would not only be restricted to countries of the refugees’ origins, but to any location in which they experience a “threat” to their life or freedom. In terms of adherence to this clause, the UNHCR effectively considers the principle of non-refoulement as an ius cohen (peremptory norm). This is due to the way in which numerous states’ legislations and international treaties have adopted this as a norm for which no form of derogation is permitted regardless of individual status. Subsequently, the UNHCR interprets this principle to place legal obligations on states for the protection of any individual refugee. 

However, the recent pandemic is placing this principle at risk. In attempts to prevent an irrepressible spike in COVID-19 cases, at least 57 states across the globe are restricting the entry of any and all asylum seekers. More than 26 million refugees and 50 million IDPs (internally displaced persons) have their lives at risk; with their denied access through borders, the majority of refugees must return to communities with poor sanitary conditions and weak medical infrastructure, subsequently heightening their vulnerability in contracting COVID-19. 

In the US, the refusal of asylum seekers and unaccompanied children had been codified during the pandemic. In March 2020, the Centers for Disease Control and Prevention issued an order under sections 362 and 365 of the Public Health Service Act (42 U.S.C. §§ 265, 268) to reject the entry of any individual attempting to enter through US land borders. The CDC uses the protection of US public health, the lack of isolation and quarantine housing of refugees, and the viral endangerment of Border Patrol officers as justification in issuing this order. The US government effectively interpreted the declaration of a public health emergency into a conclusion of neglecting the principle of non-refoulement. So how does this neglect translate in legal terms? 

The central principle of non-refoulement may not necessarily be taken as an immutable law to all partaking states. Article 33(2) also denotes that 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 the case of a global pandemic, the admission of a foriegn individual with an unverified health status into a country may be regarded as a “danger to the security of the country” -- a perspective which many countries adopted to avoid risking a cluster infection. However, the legal wording of the clause insinuates a rather individualistic analysis to the asylum seeker in question. The nuance of the clause is expressed as an assessment of the individual, rather than suggesting a basis for collective denial for suspicion. 

The issue which COVID-19 presents to the international community is the acceptance of migratory rights and public health protection as a mutually exclusive concept. This serves as a justification for a ‘blanket denial’ system of migrants at state borders, which nonchalantly disregards an individual’s necessity for protection and asylum. For the future of human rights laws, it only seems logical that governments begin to direct their attention to implementing health protection policies at borders, such as health screening, testing, and quarantine, rather than ignoring the principles of protection that have been established for decades.

Min Namgung is a current sophomore who plans to study International Public Affairs and Behavioral Decision Sciences. She is a Staff Writer of the Law Review's Blog and can be reached at min_namgung@brown.edu.