• Kylie Knieriem

How COVID-19 has Impacted States’ Legal Obligation Towards Refugees

Ever since the 1948 Universal Declaration of Human Rights famously stated that “everyone has the right to seek and enjoy in other countries asylum from persecution”, the legal obligation towards refugees has been a quilted patchwork of aspirations, declarations, and country-specific legislation. There has been a fundamental recognition of elemental, basic human rights and pleas for countries to cooperate in assisting stateless persons. Beyond that, there have also been efforts by individual countries to arrange for the orderly processing of asylum and refugee claims.


However, the lack of a comprehensive network of laws and accountability has left refugees and asylum seekers people who have left their rights and civil liberties behind in the search of a better life in an extremely vulnerable condition. At the 1951 Refugee Convention, refugees were recognised as individuals who face threats to their life or freedom on account of “race, religion, nationality, membership of a particular social group, or political opinion”. The most notable difference between the 1948 Declaration of Human Rights and the 1951 Refugee Convention is that the language in the Convention is technically legally binding, while the Declaration is not. And yet, neither has been enforced.


Due to an absence of strict global governance and states maintaining sovereignty over their own processes of legislation, the only laws that can be enforced with any degree of certainty and consistency are those which are passed by the states themselves. As a result, although refugees are technically under the governance of the international system as they have forfeited the protections of their states of citizenship, they are at the mercy of the state they enter while seeking refuge.


The most significant and widely accepted principle is that of “non-refoulement, which holds that no person seeking refugee status can be returned to their state of origin if they face a credible threat of violence upon return. Nevertheless, states have exploited a loophole by foisting refugees into safe third countries. Safe third countries are those that are not the refugee’s final destination nor their state of origin. For example, the United States often requires asylum seekers to stay in Mexico while they apply for asylum. Similarly, the United Kingdom believes that “there is no obligation under the 1951 Refugee Convention to process claims for asylum in the country of application”. Moreover, in 1993, the US Supreme Court held that the principle of non-refoulement only applies to refugees who apply within state territory. If refugees are not allowed on American soil, they therefore might face return to their country of origin. Ironically, that ruling may have forced more people to cross borders irregularly so they can apply for asylum within the US. This demonstrates that even when a declaration is made binding, like that of non-refoulement, there is no guarantee that states will not find a way around their legal obligation towards refugees.


The 1951 Refugee Convention also stated in its preamble that, “the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem . . . cannot therefore be achieved without international co-operation”. Far from a selfless ideal, however, the requirement of international cooperation has been adopted unevenly by various states, which have their own objectives foremost in mind. For example, Turkey hosts around four million refugees and receives aid from other countries in order to do so. This may seem like a glowing example of international cooperation, but realistically it is only because the countries giving aid do not want the refugees on their own soil, and Turkey accepts this to receive more leverage on the global stage.


States are not the only actors, and certainly not the most influential, when it comes to processing and caring for refugees. The international humanitarian community has provided funding in order to support the growth of infrastructure needed to make a difference in states that cannot support the absorption of massive numbers of refugees. The necessity of these humanitarian agencies emphasises how uneven the asylum system is; states are meant to be the primary actors in global affairs, and yet they have shirked their legal obligation towards refugees.


Eighty percent of refugees are hosted in developing regions, meaning that the states least equipped to handle the lion’s share of refugees are those forced to do so. More specifically, Lebanon and Jordan have the highest number of refugees per capita, with 15.6 percent and 7.2 percent respectively. These also happen to be two extremely poor countries and lack the infrastructure necessary to absorb and care for such a large number of refugees. Lebanon, for instance, has seen upwards of a 50 percent increase in their population below the poverty level. The stress on these developing countries has only increased during the COVID-19 pandemic. Lebanon and Jordan, in instance, have both closed their airspace and land borders to travellers and the Prime Minister of Jordan, Omar al-Razzaz, has stated that, “the health of Jordanians is sacred and comes above anything else”.


It is not just the poorest countries that are struggling with the implications of COVID-19, with refugees facing the harsh circumstances in wealthier countries as well. Almost all states closed their borders to non-citizens, with few exceptions made for those seeking asylum. In April, Italy halted their search and rescue missions, leaving those travelling from places, such as Libya, at the mercy of the unforgiving Mediterranean that has already claimed the lives of so many.


Furthermore, in the United States, the State Department suspended refugee admission on 19 March, making 2020 the lowest year for refugee admittance in its history, with only 16,000 admitants. To put this into perspective, Amnesty International estimates that there are at least 25.9 million refugees worldwide. The Department of Homeland Security has also returned over 60,000 asylum seekers to Northern Mexico, leaving them in ill-equipped shelters and informal open-air encampments. In preparation for the pandemic, the World Health Organisation (WHO) released guidelines for prisons and detention centres, yet very few met these guidelines, including those in Australia, Canada, the Gulf states, and the US, where detainees have had to strike to receive basic necessities such as soap.


On 21 March, the US mandated port and border closures, the first time in history this has ever been done, and made no exceptions (not even unaccompanied minors) for those seeking asylum . Authorities have failed to screen individuals for evidence of persecution and/or human trafficking, and have done little to take precautions against spreading COVID-19 in the detainment centres. These actions have been made legal by the 1944 Public Health Service Act that granted the Surgeon General the ability to block foreign nationals who pose a threat to public health from entering the United States. Such measures are extremely layered since, on the international level, they have broken their legal obligation towards refugees, but on the state level, it is accepted.


US Citizenship and Immigration Services also implemented a new rule on 24 February that blocks green card eligibility for immigrants who have used or are deemed likely to use public benefits, such as healthcare. By cutting access to healthcare for those who are already afraid to seek medical help, the process of recovery from this global pandemic is constantly undermined. These measures, compared to those of Italy or Portugal, where migrants with expiring residency permits and pending asylum applications were granted equal access to healthcare, show a stark difference in the varying responses to international obligation. Economic stimulus packages in the US have also excluded around eight million tax-paying immigrant workers from medical benefits and tax relief. This detracts from the success of such packages as they subvert the effectiveness needed to recover from the virus. These instances together could also lead to the conclusion that the US has been slowly using its sovereignty to legitimise its refusal to help refugees and has taken advantage of the COVID-19 crisis to set precedent for future refugee rejections.


The United Nations High Commissioner for Refugees (UNHCR) has clearly stated that COVID-19 does not justify measures taken to supposedly curb the spread of the virus which infringe on human rights. The European Commision has made similar remarks, demanding that the temporary closures of EU external borders should not apply to those in search of humanitarian protection. States face a flimsy patchwork of international law governing their obligation towards refugees, and often legal responsibility on the international level is undermined by the state’s claims to sovereignty and adherence to its own legal framework. States that have closed their borders as a public health precaution without exceptions for those seeking refugee status have broken international law and custom. Protected by their legal systems, they face no consequences other than harsh statements from the humanitarian agencies that do the work states should be doing.