ARE YOU THERE, HUMANITY? IT’S ME, REFUGEE:SOLIDARITY DURING COVID-19
Mr. Pranav Ganesan
Ms. Nikita Singhi
The COVID-19 pandemic has shaken up the structures and systems responsible for the protection of refugees, stateless and internally displaced persons. The news of several countries tightening their borders and international organisations like the International Organization of Migration and United Nations High Commissioner for Refugees (UNHCR) suspending plans for refugee resettlement has been a source of worry to many vulnerable individuals. But to some, it is almost as if the death knell has been sounded. It is not a surprising conclusion that the global pandemic would disproportionately affect refugees and migrants given that they often find themselves in crowded environments, and usually lack access to hand-wash facilities and hygienic toilets or the ability to follow social distancing protocols.
While some States that are party to the 1966 International Covenant on Civil and Political Rights (ICCPR) have declared a state of emergency and notified to the Secretary General of the United Nations (UN), their intent to derogate from ensuring certain civil rights, others have only done the latter. Nevertheless, irrespective of whether a State has complied with the procedure for derogations as per the ICCPR (Article 4), public health measures undertaken by it that affect the rights of individuals within its jurisdiction ought to be in accordance with the standards of- legality (the measure must be provided for in a law), necessity (the measure was necessary for public health), proportionality (the measures were appropriate to achieve the ends sought, and not excessive) and must be non-discriminatory. The universality of these standards is also evinced by the fact that they are espoused by most, if not all regional human rights treaties and national constitutions. We may classify States’ responses to the pandemic in regards to refugees into two categories, so as to scrutinise them against the aforementioned standards. These are- actions aimed at refugees already in their territory, and actions aimed at refugees wishing to enter their borders.
Considering the latter first, there are several States which have actively prevented refugees from crossing their borders. While border closures enforced by over 200 States are not necessarily intended to curb refugee inflows, some like the United States of America, Canada and Italy, which are known to take in a large number of refugees have indefinitely precluded the opportunity for asylum at their borders. Moreover, there are others like Malaysia and Indonesia, which have turned away several boats carrying asylum seekers or threatened to do so following their purported belief that they may bring COVID-19 into the country. Algeria similarly expelled hundreds of migrants over COVID-19 fears, leaving them stranded in the desert in northern Niger. While it is understood that pushing asylum seekers back away from the border generally constitutes a violation of States’ duty of non refoulment under the 1951 Refugee Convention as well as general international law, one may question whether this applies to pushbacks done in the context of protecting public health during the times of a global pandemic. The Convention spells out that the aforementioned protection is unavailable to a refugee when there are reasonable grounds for regarding that he constitutes a ‘danger to the security’ of the host State (Article 33(2)). Admittedly, States may regard public health to be within the ambit of their ‘security’ interests. However, in evaluating the legality of pushbacks done with the intent to keep out COVID-19, the moot question is whether there existed a ‘danger’ which merited such an action. As per the text of the Convention, the belief that the refugees would pose a danger to security ought to be based on ‘reasonable grounds’ rather than speculation. Unfortunately, most cases of pushbacks purportedly influenced by COVID-19 (assuming there to have been no ulterior political motives) are based on speculation rather than science. Moreover, given that those pushed back or expelled from the States’ boundaries would, legally speaking, be regarded as within their jurisdiction for the purposes of obligations under international human rights law, these actions must be demonstrated as ‘necessary’, ‘proportionate’ and ‘non-discriminatory’. It is not necessary that asylum seekers be pushed back, when testing and/or quarantining them would assuage any fears of them bringing in COVID-19. The risks to the expelled refugees may be in the form undertaking dangerous sea voyage in rickety boats, or gruelingly long walks with limited food and water. When this is compared to the risk of allowing new cases of COVID-19 into the territory, especially when effective testing and quarantining would negate the same, pushbacks and expulsions are clearly disproportionate. Closing borders to refugees who demonstrably pose a risk to public health is different from imposing a blanket prohibition on granting asylum to refugees in light of the pandemic. While the latter is discriminatory prima facie and constitutes a violation of the non-refoulement obligation, in case of the former, at the very least, States which have tightened their borders ought to ensure that they are protected from refoulement given the peremptory character of the obligation.
The treatment of refugees and asylum seekers in general within the borders of the asylum State is an issue that must be viewed not just from a legal but also from a socio-economic perspective. On the one hand, there are States which blatantly cause hardship to refugees and asylum seekers, compounding their risks of contracting COVID-19 or worse, leaving them with inadequate food and shelter. On the other are States which simply lack the infrastructure or the resources to protect refugees and asylum seekers who may be situated within or without refugee camps, transit camps or centres for immigration detention. In either case, it is important that refugees are given the same treatment as ordinary residents in implementing protective measures in response to the COVID-19 pandemic. However, it is seen that in certain cases refugees are often not given the same medical resources, financial and food aid, and are excluded from containment efforts and government assistance. For instance, despite pledging to leave ‘no one behind’ in their declaration on COVID-19, ASEAN States have neglected refugees from the purview of their humanitarian and economic measures in response to the pandemic.
Understandably, the COVID-19 pandemic has pushed States to mobilise resources away from other humanitarian efforts and towards addressing the pandemic. Concomitantly, and quite unfortunately, pandemic response measures have been biased in their reach, being less favourable to the interests of refugees. Given their position, what refugees, stateless persons, migrant workers and other similarly situated vulnerable groups need is for their voice to be heard, and for the harms caused to them to be accounted for by the international community and the global populous at large. It would be too simplistic a response to their predicament, to point to the fact that they are entitled to freely speak, express and organise themselves the same as citizens and they may simply exercise these rights to help themselves. To say that the black letter law in virtually all countries entitles them to representation before legal institutions is both callous and in certain cases, demonstrably incorrect. Malaysia for instance, has outlawed, and even gone as far as sanctioning organisations representing the Rohingya refugees. In certain member States of the European Union, the space for civil society and Non-Governmental Organisation (NGO) activity has been reportedly shrinking, owing to the policing and criminalisation of certain humanitarian activities and refugee assistance. In certain other States, certain refugees are deprived of their protected status and deemed as illegal immigrants. Here in, they are faced with difficulty in finding adequate shelter and employment owing to movement control orders and restrictions on the operation of several industries, and are ineligible from government schemes for the distribution of essential food and social security. Given how the cards are stacked against them in most cases if not all, it is unrealistic to expect that they will be able to express their concerns in an organised manner. In some cases, when they do manage to have their voices heard, their pleas are perceived as demands, the fulfillment of which would be regarded by the masses as a threat to national sovereignty. Consequently, their efforts are rendered counterproductive and only serve to fillip the propagation of atoxic narrative about their situation.
In the current day and age where media holds as much influence on people and politics as it does, toxic narratives concerning refugees not only limits asylum options for them, but also endangers their lives. In light of the fact that more than half the countries of the world have closed their borders without making any exceptions for refugees, narratives associating spread of the COVID-19 with migrants without any evidence has made matters worse for them. Additionally, political leaders have used this situation to advance their anti-migrant agendas and introduce a new sense of dislike for the migrants in the minds of people. A hostile environment where refugees are considered undesirable or dangerous is diametrically opposite to the ideal of solidarity, which is the need of the hour during this pandemic. The risk posed by such narratives is that it emboldens individuals to use bad news about refugees in negating legitimate criticisms of non-inclusive pandemic response measures. An average person on the clapham omnibus who buys into such narratives would fail to notice the red herring fallacy in the above negation. Governments may use the opportunity to ride the wave stirred up by the hostile environment in their country and evade accountability in general, and scrutiny of non-inclusive policies in particular.
With the disruption in business and investments caused by the pandemic, States are keen on consulting industrial stakeholders and hearing their concerns on the regulatory environment. Airline companies in some countries have received hefty bailouts in order to recover from their losses, and in others, they are mobilising in order to challenge executive decisions taken pursuant to the pandemic before courts of law. Unlike what one might think, the Government does not have an unlimited bandwidth to hear and address concerns from affected parties. Refugees, activists and human rights NGOs do not hold the lobbying power that MNCs and large-scale businesses do. Notwithstanding their entitlement to freedom of speech and expression, refugees and the few organisations and individuals who represent their interests cannot exercise them effectively, relative to certain other stakeholders affected by COVID-19. Not only is this on account of lack of privilege of access to the digital space that is faced by several refugees, but also because the platform to speak from and raise concerns is crowded. The competition involved in the use of this platform is fierce. Refugees’ voices must vie against that of those whose pockets are deep and influence over the government and the media is deeper. Some of them are faceless persons created by the fiction of corporate law and are thereby invulnerable to a ‘toxic narrative’ about them, unlike refugees. Amidst all of the loud chatter, refugees and their representatives must state their case for why they ought to be treated no different from the host State’s own citizens when it comes to policies that affect essentials for life such as access to medical facilities, shelter, food and water. While it is quite a simple argument that their country of origin is not a reasonable ground for differential treatment, the difficulty in presenting it convincingly is a result of the popularity of the false idea that providing asylum to a refugee is an act of ‘charity.’ Therefore, especially in the times of a global pandemic, it is virtually impossible for refugees to be heard by their host State and their chance of having their concerns addressed is diminished.
The issue of refugee pushbacks, expulsions and neglect of refugees by States is most certainly one that deserves viewing from a legal lens, and scrutiny against the tenets of international human rights law. But framing these issues only as issues of rights violation would belie the sheer complexity of factors that compound the problems faced by refugees. In societies where many have learnt to associate refugees with bad news, rectifying the popular narrative to better reflect the reality of refugee migration is not simple. This is because unlearning learnt associations is far more difficult than forming new associations. This is especially true when the negative narrative about the subject has crystallised over long periods of time. In light of this, it is certainly necessary to: (a) ensure that media representations of refugees are comprehensive and highlight the circumstances in their country of origin and their persecution, and (b) educate the public against generalising incidents of deviance amongst individual refugees to reflect adversely on entire refugee communities. But these would only amount to half-measures if they are non-inclusive of refugees in their implementation, just like some of the pandemic response measures discussed above. Inclusion of refugees here means that they must be allowed to tell their story in their words, so that others may be able to empathise with them and regard them as victims rather than villains. Since the platform for free speech is not truly free, they must be ensured a reasonable degree of access, and society must come together to demand that others who are not as severely affected by the pandemic exercise just a little restraint in voicing their concerns so that the refugees’ voices may be heard. Generating awareness on the legal regime of refugee protection, emphasising the character of non-refoulement as a peremptory norm found in international custom is necessary, especially in States that are not a party to the 1951 Refugee Convention and 1967 Additional Protocol. The efforts of civil society and NGOs in providing humanitarian assistance to refugees ought to be brought to the limelight, and their capacity to bring about progressive change by pragmatically naming and shaming States which commit violations of refugees’ human rights needs to be recognised. The relative advantages of ‘naming and shaming’ as a method to bring about positive change in the international community also apply to the municipal level. The success of this method is contingent upon the target’s vulnerability to social pressure. On the municipal level, politicians seem to be the most concerned about their social reputation. Influencing politicians and engaging with them in discourse on refugee issues so that they may come to identify refugees as vulnerable individuals in need of special protection will pay huge dividends in combating the toxic narrative surrounding refugees as well. The relationship of influence between politicians and the public is not a one-way stream. Although politicians are influenced by the public, they also greatly influence the public narrative on refugees. Therefore, while educating the public is essential, special regard must also be had to educating politicians on the impact their words can have in constructing a safe environment for refugees.
Respect for international human rights law hinges upon a society that fosters inclusivity and specially cares for the most vulnerable. To that end, in addressing the challenges posed by COVID-19, States must be guided by the concept of respect for ‘human dignity.’
Mr. Pranav Ganesan
(National Law Institute University (NLIU), Bhopal )
Presently pursuing BCL (2020-21) at the University of Oxford
Ms. Nikita Singhi
(National Law Institute University (NLIU).Bhopal)