The Right to Seek and Enjoy Asylum During COVID-19

GYx7Wd6YzUI

A Syrian boy poses for a picture during an awareness workshop on Coronavirus (COVID-19) held by Doctor Ali Ghazal at a camp for displaced people in Atme town in Syria’s northwestern Idlib province, near the border with Turkey, on March 14, 2020. (Photo by AAREF WATAD / AFP)

In the words of the UN High Commissioner for Refugees, Filippo Grandi, “[i]f ever we needed reminding that we live in an interconnected world, the novel coronavirus has brought that home.” Though it is a problem common to all of us, the suffering is disproportionately more for the world’s most vulnerable groups, including refugees and asylum-seekers. These vulnerabilities are exacerbated by State practices limiting asylum as a response to the pandemic. Though public health emergencies allow States to impose certain limitations, this must be done in compliance with States’ relevant obligations under international law. This post provides a short overview of the most basic but key protections afforded to asylum-seekers and refugees under international law.

Though there is no internationally agreed upon legal definition of asylum, the UNHCR defines it as a process starting with safe admission into a territory and concluding with durable solutions, i.e., voluntary return in safety and dignity, local integration, or resettlement to another location or country. “Asylum-seeker” refers to individuals who are seeking international protection and have not yet been granted asylum by the receiving State. “Refugee” refers to someone who has left their country of origin and is unable or unwilling to return because of a serious threat to their life or freedom on the grounds listed under Article 1A(2) of the 1951 Refugee Convention, i.e., race, religion, nationality, membership of a particular social group, or political opinion. Other regional instruments may provide different definitions to include other grounds for refugee status, such as a “massive violation of human rights” (e.g., the Cartagena Declaration on Refugees). Not every asylum-seeker will ultimately be recognized as a refugee, but every refugee is initially an asylum-seeker. In that regard, at the international level, refugee status entitles those who satisfy that criteria to a specific set of protective regimes laid out in the 1951 Convention and its 1967 Protocol. However, asylum-seekers are still entitled to certain protections in compliance with the receiving State’s obligations under international law, regardless of being recognized as a refugee.

The right to seek and enjoy asylum is enshrined in various international and regional instruments including the Universal Declaration of Human Rights, African Charter on Human and Peoples’ Rights, and Charter of Fundamental Rights of the European Union. The UNHCR interprets the right to asylum to include respect for the principle of non-refoulement, admission to the territories of States, and being treated in compliance with the respective human rights and refugee law standards. Individuals seeking international protection would benefit from the human rights obligations that a State owes to its citizens without any discrimination.

But what are the main parameters of such protection during a pandemic?

The recently issued Human Mobility and Human Rights in the COVID-19 Pandemic: Principles of Protection for Migrants, Refugees, and Other Displaced Persons developed by a committee of established experts and practitioners, and endorsed by a 1,000 international experts, lays out 14 key principles applicable to all persons, irrespective of their immigration status. These principles are developed to elucidate the scope of relevant human rights obligations during emergencies as States and other relevant stakeholders navigate the pandemic response.

In the same vein, the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR (adopted by the UN Economic and Social Council and UN Human Rights Committee general comments on states of emergency and freedom of movement), provide complimentary guidance as they are critical in implementing the scope of limitations to human rights in public health and national emergency situations. The Siracusa Principles highlight that such limitation must be based on one of the grounds recognized by the relevant article; respond to a pressing public or social need; pursue a legitimate aim; and be proportionate to that aim (Principle 10). Any derogation measure must be “strictly necessary to deal with the threat and proportionate to its nature and extent” (Principle 39). Additionally, certain rights are non-derogable even in the events of public emergency, including the right to life and freedom from torture, cruel, inhuman, or degrading treatment, or punishment among others.

In light of the above, key principles pertaining to States’ treatment of asylum-seekers and refugees in a pandemic can be listed as follows:

Non-refoulement

The prohibition of return (to a real risk of persecution, arbitrary deprivation of life, torture, or other cruel, inhuman, or degrading treatment) cannot be derogated from, even during a public health emergency. The cornerstone principle guaranteeing the right to seek and enjoy asylum is the principle of non-refoulement set forth under Article 33 of the 1951 Convention, which prohibits States from expelling or returning refugees “in any manner . . . where his life or freedom would be threatened.” The principle applies not only to removal, but also to refusal of entry. It applies to all refugees – even if their status has not been officially determined. The prohibition has attained the status of customary international law and is considered a jus cogens norm.

As the UNHCR clarified in its recent guidance on COVID-19 responses, imposing blanket measures to prevent refugees or asylum-seekers from admission or discriminating against certain nationals without demonstrating relevant evidence of a health risk or putting in place measures to protect against refoulement would violate the prohibition. However, in the US, the Department of Health and Human Services has implemented an order to suspend the introduction of persons into the US from certain countries and requiring their immediate repatriation. Belgium and the Netherlands have also suspended the right to asylum for newly arriving asylum-seekers due to COVID-19 despite the guidance from the European Commission stating that even though national authorities may take necessary measures to contain further spread of the pandemic, such measures should be implemented in a non-discriminatory way taking into account the principle of non-refoulement and obligations under international law. Closing borders altogether in these manners violates the principle of non-refoulement affecting the right to seek and enjoy asylum.

Measures on asylum-seekers upon entry

In all cases, non-discrimination, human rights, and dignity of all travelers must be respected. Relevant WHO regulations are given particular weight in the context of a limitation imposed on the ground of public health (Siracusa Principles, Principle 26). As defined by the WHO’s International Health Regulations, countries may impose relevant measures during pandemics as long as they are non-arbitrary, non-discriminatory, and proportionate. Similarly, medical examinations and other measures may be implemented for “travelers” (“a natural person undertaking an international voyage”) at ports of entry, but these measures cannot be “invasive.” Similarly, Article 13 of the EU Reception Conditions Directive lays out that EU Member States may proceed to a medical screening of applicants for international protection on public health grounds while such medical screening must comply with fundamental rights and the principle of proportionality, necessity, and non-discrimination. Furthermore, Article 19 of the Directive requires that applicants receive “the necessary health care, which shall include, at least, emergency care and essential treatment of illnesses and of serious mental disorders.” The European Commission specified that such health care would also include relevant treatment for COVID-19.

Non-discrimination

Lack of effective realization of non-discrimination undermines the right to asylum. Core international human rights treaties prohibit “discrimination of any kind” viz. refugees and asylum-seekers. In practice, however, migrants are less likely to benefit from relevant health and financial services due to lack of legal status and access to services. Moreover, migrants are often stigmatized and blamed for spreading viruses. In other cases, COVID-19 measures are applied in discriminatory manners as seen in Lebanon, where curfews have been applied more stringently towards Syrian refugees.

Equal treatment and non-discrimination with regards to the right to health are especially crucial in the context of COVID-19. As part of the right to health, States must provide access to food, water, sanitation, and shelter to all persons (UDHR Art. 25 and ICESCR Art. 12 in particular). States must refrain from practices reinforcing stigma and xenophobia and implement public health responses inclusive of all marginalized groups (see, in particular, the International Convention on the Elimination of All Forms of Racial Discrimination Arts. 1.1, 2, 4; CERD Committee General Recommendation No. 30; and 1951 Refugee Convention, Art. 3).

Detention

Detention is a practical impediment to the implementation of the right to asylum. The UNHCR guidelines on the issue establish that a period of confinement may be imposed legitimately as a preventive measure in the event of a pandemic but that such confinement should be limited to its purpose and cease as soon as the necessary testing or treatment is complete. Detention must always be an exceptional measure of last resort and conducted in accordance with the principles of legality, necessity, and proportionality. Alternatives to detention should be considered, including regular reporting requirements, particularly when vulnerable groups are concerned. Human Rights Watch recently reported the arbitrary detention of nearly 2,000 migrants and asylum-seekers in Greece – including vulnerable groups like children, persons with disabilities, and pregnant women.

Detention constitutes a significant risk factor for contagious spread during a pandemic. Such detained people are highly vulnerable to the spread of COVID-19 mostly due to the inadequacy of detention conditions, overcrowding, limited supplies for personal cleaning, limited personal protective equipment such as masks and gloves, and poor access to health care. Detention of displaced persons is not permissible when such detentions pose serious threats to their health and life due to COVID-19. In addition to the adverse risks and impacts to the right to life and health, COVID-19 causes risk of indefinite detention as these people are neither admitted nor provided the option to return due to border closures.

Conclusion

Amidst a global pandemic, adhering to basic principles of international law vis-à-vis asylum seekers and refugees is vital. States cannot impose blanket measures banning asylum seekers and refugees from seeking and enjoying international protection and relevant considerations pertaining to immigration detention that are altogether key to the reinforcement of the right to seek and enjoy asylum. These principles impose clear obligations on States that they cannot simply choose to ignore during health emergencies – even global pandemics.

*This article reflects the personal views of the author and should not be attributed to the World Bank.

Introducing Duygu Çiçek

IMG-20180406-WA0039It is our great pleasure to introduce our new IntLawGrrls contributor Duygu Çiçek. Duygu Çiçek is a Turkish lawyer and currently works as a legal consultant at the Environment & International Law Practice Group in the World Bank Legal Vice-Presidency. As part of her current role, she provides legal advice and operational support to address environmental, social, and international law issues in World Bank projects. Her areas of focus include climate change, displacement, labor and work conditions, gender and non-discrimination, and human rights law in general. Previously, she worked with Advocates Abroad as a volunteer attorney and provided legal advice to persons seeking asylum in Europe. She also worked with the American Bar Association Rule of Law Initiative on rule of law and displacement-related issues, UN High Commissioner for Refugees Istanbul Field Office, and Office of the Commissioner for Human Rights at the Council of Europe primarily focusing on human rights violations occurring in member states and contributed to the recommendation reports issued by the Commissioner’s office.

She has completed a B.A. in Law from Koç University (2015). She also completed an LL.M. in Human Rights from the University of Edinburgh (2016) where she focused on international human rights law and human rights law in Europe, and an LL.M. in International and Comparative Law from the George Washington University Law School (2018) where she focused on refugee law, forced displacement, and climate change.

Heartfelt welcome Duygu!

Write On! Practising Reflexivity in International Law

This installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers to the Law Department of the European University Institute for a two-day Doctoral Forum on International Law as follows:

Screen Shot 2020-08-03 at 1.11.15 PM The Law Department of the European University Institute is hosting Practising Reflexivity in International Law, to be held November 23-24, 2020 at the Department of Law, Villa Salviati, in Florence, Italy with the help of the European Society of International Law. The theme is addressing the challenges international lawyers face today, including the rise of populism, growing economic inequality, climate change, and unraveling global cooperation. In addressing these challenges, the situation of international lawyers–e.g., their race, gender, or position in the field–and its influence on how they think and address these challenges has been seldom considered overtly. Building on this reflexive attitude, long productively discussed in the social sciences, this Forum invites contributors to explore practicing reflexivity in their own work and in the field of international law.

The practice of reflexivity takes the international lawyer as an object of research, examining their situation and how it influences what they do or think, and it can also extend to an examination of the field itself and the scholarly endeavour. In particular, this Forum seeks to investigate how the practice of reflexivity could uncover disciplinary routines and create possibilities for new or alternative interventions in response to the field’s most pressing challenges. Abstracts of around 500 words are due by September 13, 2020 to DFIL@eui.eu. For more information, please click here.

Read On! “The Palgrave Handbook of Critical Menstruation Studies”

Instagram GraphicThis open access handbook is the first of its kind, and provides a comprehensive and carefully curated multidisciplinary view of the state of the field of Critical Menstruation Studies, opening up new directions in research and advocacy. Through empirical research, personal narratives, practice notes, conceptual essays, OpEds, visual art and transnational dialogues, this collection responds to the question “what new lines of inquiry are possible when we center our attention on menstrual health and politics across the life course?”

Written by 134 contributors from more than 30 countries, the chapters collectively establish Critical Menstruation Studies as a potent lens that reveals, complicates, and unpacks inequalities across biological, social, cultural, and historical dimensions. This handbook is an unmatched resource for researchers, policy makers, practitioners, and activists new to and already familiar with the field as it rapidly develops and expands. Access the handbook here.

Paralysis at the WTO: Is the MPIA the Answer?

Paralysis at the WTO

The Multi-Party Interim Appeal Arbitration Arrangement (MPIA) notified to the World Trade Organization (WTO) on April 30th, 2020, was developed by twenty (20) WTO members to overcome the current paralysis of the WTO’s dispute settlement process. Resolving trade disputes that arise between its members is a core WTO function and considered a central component of the multilateral trading system. Its dispute settlement process is the mechanism by which WTO members seek peaceful enforcement of the rules to which they have agreed and the concessions they have negotiated with each other. As provided for in the WTO Dispute Settlement Understanding (DSU), disputants are required to first undergo consultations and attempt to resolve the issues(s) at this phase. About one-third of the cases move on to the adjudicative phase where an ad hoc Panel of experts (usually three) hears and makes a determination on the case. The losing party has the right of appeal to the WTO Appellate Body, constituted as a permanent body of seven members whose role is to review the legal aspects of the Panel Report under appeal. Panel and Appellate Body Reports are adopted by the entire WTO membership and are binding on the parties to the dispute. Since 2017, the United States has blocked the appointment of new members to the Appellate Body to replace those whose terms have expired. Consequently, the Appellate Body no longer has the required minimum of three members needed to hear appeals, resulting in the current state of paralysis.

What is the MPIA?

The signatories to the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) have committed to use the arbitration procedures provided for under Article 25 of the DSU as an interim appeal procedure while the Appellate Body is unable to fulfill its functions because of the current crisis. MPIA signatories envisage that: (i) their appeals will be heard by three (3) arbitrators chosen from a pool of ten (10) standing arbitrators selected by the participating Members; and (ii) the appeal arbitration procedures will be based on the substantive and procedural aspects of Appellate Review laid out in Article 17 of the DSU. These procedures are also laid out in Annex 1 to the MPIA. Furthermore, Article 25 of the DSU on the use of arbitration requires that the parties to the proceeding also abide by specified requirements for all cases, notably: (i) compliance with timeframes; (ii) notification of the decision to the WTO where any Member may raise any relevant point it wishes; (iii) acceptance of and prompt compliance with the arbitral award; and (iv) the use of the remedies of compensation and suspension of concessions. This last requirement underscores the importance of the WTO dispute settlement process in limiting retaliation against a non-compliant member to peaceful methods. Unlike Panel and Appellate Body Reports, however, the arbitral awards will not be adopted by WTO Members. Finally, the MPIA provides that any WTO Member may join or withdraw from the MPIA, with proper notification.

To date, only two additional countries have joined the MPIA since its introduction. At the same time, no other solutions to the paralysis have been adopted by WTO Members. The proposals outlined in October, 2019, by New Zealand’s Ambassador to the WTO, David Walker (dubbed “The Walker Process”) have won broad support. However, the WTO consensus approach to decision-making means that a decision is taken only if no Member formally objects. The United States has voiced its opposition to the proposals, stating that they do not go far enough in addressing its concerns. Instead, the United States has opted to appeal a Panel Report in a dispute with India. With no Appellate Body to review the decision, the Panel Report has not been adopted by the WTO. The case remains in a void and does not have to be implemented. The MPIA provides a workable alternative to avoid this abuse of the system.

Can the MPIA “Save” the WTO?

The MPIA cannot “save” the WTO. Nor is it intended to do so. The MPIA was designed with a very limited goal in mind – to permit its signatories to continue to properly appeal Panel Reports in cases amongst themselves so long as the crisis continues. It presents a pragmatic and interim solution to a problem they hope will be short-lived. It also still has limited reach given that only 22 of the WTO’s 164 members have so far joined. Other countries are being lobbied to join and perhaps may eventually do so as concerns about its operations get addressed.

More fundamentally, the paralysis at the WTO results from core divisions and disagreement among the Members on a range of issues. The United States has consistently expressed concern about the work of the Appellate Body, which it has accused of judicial overreach – of inserting into WTO Agreements provisions that were never envisaged by the negotiators. The current US position appears to be that the Appellate Body is not essential to the work of the WTO. Meanwhile, developing country Members were sold on the WTO precisely because of the power given to the Appellate Body to review the decisions from the Panel phase where power disparities can more readily play out.

This issue is only one of several that have created a deep divide between developing country and developed country members of the WTO. The Doha Development Round, intended to address the development concerns of developing countries in such areas as agriculture, and intellectual property, has essentially been abandoned. Developed countries claim their obligations were met with negotiation of the Trade Facilitation Agreement of 2013 and that it is time to focus energies on negotiating new agreements on the digital economy and services. Under the weight of these divisions, the consensus approach to decision-making has broken down and the WTO has been able to conclude Plurilateral Agreements that apply only to the subset of WTO Members, primarily developed countries, who can agree on a given way forward on an issue.

The MPIA represents yet another Plurilateral Agreement that highlights the broader challenges within the organization. Consequently, it provides a temporary solution for some Members, but not an answer to the paralysis at the WTO.

Time to break the Silence of Academia in the face of MicroAggression and Harassment

U.S. Representative Alexandra Ocasio-Cortez’s eloquent rebuke of the verbal abuse she was subjected to by fellow Representative Ted Yoho prompted reflection by all women on the institutionalized workplace harassment they face, including within academia. Women in academia have been and continue to be routinely subject to stereotyping, harassment, exclusion, subtle verbal and non-verbal insults, rumors, gossip, and pathologizing of their communication. They are also subject to inter-sectoral discrimination based on their ethnicity, race, religion, and nationality in addition to their gender. Common stereotypes include:

•Bossy •Crass •Emotional, Difficult, Problematic •Scary (50 plus) •Overly Sensitive, Insecure •Overreacts •Nice (under 50) •The Mother •The Workaholic •Divorced

In contrast, male academics are subject to positive stereotypes which lead to promotions, awards, and accolades:

•Direct Leadership style •Straight-forward, decisive •Enthusiastic, Driven •Assertive •Dedicated to research •Successful at managing various projects

A disturbing tendency within universities is a policy of silence when facing such practices. Cases are routinely shoved under the carpet, surprisingly often by men & women administrators, personnel managers, and Deans who seek to uphold the reputation of the university at the expense of the woman academic. The harassment may be labled as a minor, the women academic reminded “to move beyond the incident” thereby leaving the culture of abuse unchanged. It is time to break the culture of silence which fails to condemn language which diminishes the woman academic. Universities should have transparent mechanisms to correct discrimination and harassment of staff and students. While globalization has prompted universities to pursue diversity, such policies may fail if there is a lack of institutional committment to confronting discrimination in an open, effective manner.

As I have received requests for strategies to deal with microaggression, there are several resources which recommend lobbying for universities to adopt a microaggression framework or an Inclusiveness toolkit. It is important for women academics to meet across departments to validate and share their experiences as well as cooperate to design better polices.

Write On! Global Jurist Award

  image This installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers to Universidad Externado de Colombia as follows:

The Universidad Externado de Colombia, along with other universities, is presenting the first edition of the Global Jurist Award. The award calls for legal essays under the title of “2030: A New Horizon for International Economic Law?”. The award wishes to recognize an author (or authors) who accurately assess the development of International Economic Law and propose how its undergoing changes throughout the present decade of the twenties should be implemented. The essays presented must be submitted to this email before November 1, 2020. For more information on the call for papers and the Global Jurist Award, please click here.

Book Launch: Legal Limits to Security Council Veto Power (Jennifer Trahan)

Please join us for this exciting book launch next week!
BOOK LAUNCH EVENT:  Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (Cambridge University Press 2020), co-sponsored by the American Society of International Law International Criminal Law Interest Group and the American Branch of the International Law Association United Nations Committee
Join leading experts in the field discuss Professor Jennifer Trahan’s new book which examines the legality of the use by a permanent member of the UN Security Council of its veto while there is ongoing genocide, crimes against humanity, or war crimes.
Thursday, July 23, 12:00 p.m. – 1:30 p.m. EST (zoom link below)
Panelists:
Jennifer Trahan, Clinical Professor and Director of the Concentration in International Law and Human Rights, NYU, Center for Global Affairs
Richard Goldstone, founding Prosecutor, International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda
Beth Van Schaack, Leah Kaplan Visiting Professor of Human Rights, Stanford Law School
Michael Scharf, Co-Dean and Joseph C. Hostetler – BakerHostetler Professor Of Law, Case Western Reserve School of Law
Moderator:  Milena Sterio, Charles R. Emrick Jr.-Cafee Halter & Griswold Professor of Law; Director, Domestic and International LL.M. Program, Cleveland-Marshall College of Law
Topic: Professor Jennifer Trahan Book Launch
Time: Jul 23, 2020 12:00 PM Eastern Time (US and Canada)
Join Zoom Meeting
Meeting ID: 979 1692 3543
One tap mobile
+19294362866,,97916923543# US (New York)
+13017158592,,97916923543# US (Germantown)
Dial by your location
        +1 929 436 2866 US (New York)
        +1 301 715 8592 US (Germantown)
        +1 312 626 6799 US (Chicago)
        +1 669 900 6833 US (San Jose)
        +1 253 215 8782 US (Tacoma)
        +1 346 248 7799 US (Houston)
Meeting ID: 979 1692 3543
Find your local number: https://csuohio.zoom.us/u/akDW5vEDo

Go On! Justice & Accountability for Sexual Violence in Conflict Webinar

►  The UN Team of Experts on the Rule of Law and Sexual Violence in Conflict announced open registration for Justice & Accountability for Sexual Violence in Conflict: Progress and Challenges in Efforts to Address Impunity in National Jurisdictions, which will be held on July 21, at 11:00am. This webinar is Session One of the Digital Dialogue Series hosted by the UN Team of Experts. In Session One, scholars, practitioners, and policymakers will discuss national accountability efforts in relation to conflict-related sexual violence and set the stage for the webinar series moving forward. To register for the event, please click here.  For more information on the Digital Dialogue Series, click here.