COVID-19 and non-refoulement

Juan Pablo Hernández*
*Founder of The Treaty Examiner and Moot coach at Universidad Francisco Marroquín (Guatemala).
Contact

The Treaty Examiner, Issue 2 (May 2020), pp. 39-42.

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During the past months, the COVID-19 crisis has led States to adopt desperate measures to mitigate human suffering. However, as recent news has shown, many of these measures have in fact worsened ongoing ordeals. On 23 April 2020, Bangladesh declared in no uncertain terms that ‘[n]ot a single Rohingya will be allowed to enter’ and refused to allow ships carrying Rohingya refugees into Bangladeshi territory (1). Similar measures have been adopted by Malaysia (2). These are the same Rohingya who have fled Myanmar to escape ongoing crimes against humanity and, allegedly, genocide (3). In the past, Bangladesh provided Rohingya refugees safe haven from persecution, assistance that allowed the Prosecutor of the International Criminal Court to launch an investigation into possible international crimes committed in Rakhine State (4). The precarious position of the Rohingya has been confirmed, with reports of malnourishment, dehydration and vulnerability to the inherent risks of sea travel (5).

International refugee law recognizes that persons are vulnerable to persecution from the same State that was supposed to protect them. As a result, under the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention), persons outside their country of nationality or habitual residence who are unable or unwilling to return due to a well-founded fear of persecution (‘refugees’) and find themselves in the territory of a Contracting State must be granted basic protections, including the right of non-refoulement (6). Non-refoulement, as recognized by the Refugee Convention and customary international law, provides that a State must not force refugees to return (refouler) to a territory where their life or freedom could be threatened (7). Non-refoulment is the cornerstone of international refugee protection and is essential to prevent torture and cruel, inhuman or degrading treatment. As persons fleeing their home country on well-founded fear of genocide, the Rohingya are to be considered refugees under the Convention and therefore not subject to refoulement.

In that light, are Bangladesh and Malaysia acting in violation of international law? To start with, neither Bangladesh nor Malaysia are parties to the Refugee Convention (8). However, a basis for liability could be derived from customary international law or general human rights law. The United Nations High Commissioner for Refugees has warned that States’ sovereign power to regulate entry cannot result in a denial of people’s right to seek asylum from persecution, even when facing a pandemic (9). Similar statements have been issued by the International Organization for Migration (10) and the Council of Europe’s Commissioner for Human Rights (11).

Under international human rights law, the non-refoulement obligation allows no exceptions (12). It is true that Article 33(2) of the Refugee Convention excepts cases where there are reasonable grounds to regard the refugee as a danger to the security of the refouling State. However, even assuming that the Refugee Convention could be invoked by Bangladesh and Malaysia, applying the exception here would border on abus de droit, especially if the motives are pretextual. The object and purpose of the Refugee Convention, including the refoulement prohibition, is to protect persons who are otherwise exceptionally vulnerable due to their being outside ordinary national State protection (13), and a restriction to a right cannot serve to impair the essence of the right (14). Refouling the refugees would force them to venture the perilous sea, malnourished and dehydrated, without the necessary medical equipment to withstand COVID-19 and with refuge only in a country that is persecuting them based on their ethnicity. Reports indicate that at least 60 Rohingya have died on their journey (15). Most importantly, the alleged danger posed by the refugees (COVID-19 infection) comes from a world crisis outside of the refugees’ control that is already affecting Bangladesh and Malaysia (16).

The legal principles at play appear to favor granting asylum to the Rohingya, especially considering the allegations of genocide. In the words of Clare Algar, Senior Director of Research, Advocacy and Policy at Amnesty International (17), ‘[t]he battle against COVID-19 is no excuse for regional governments to let their seas become graveyards for desperate Rohingya people.’

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PIE DE IMPRENTA: Juan Pablo Hernández (editor-in-chief), Guatemala, 6 May 2020.

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Endnotes

1. Pierfilippo Natta, COVID-19 Is No Excuse to Abandon Basic Principles Protecting Refugees and Asylum Seekers, 4 May 2020, available at https://thediplomat.com/2020/05/covid-19-is-no-excuse-to-abandon-basic-principles-protecting-refugees-and-asylum-seekers/.

2. The Straits Times, Malaysia Turns Back Rohingya Boat over Coronavirus Fears, 18 April 2020, available at https://www.straitstimes.com/asia/se-asia/malaysia-turns-back-rohingya-boat-over-virus-fears-0.

3. Human Rights Council, Report of the Independent International Fact-Finding Mission on Myanmar, 12 September 2018, available at https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_64.pdf.

4. International Criminal Court, Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (ICC-01/19), more information available at https://www.icc-cpi.int/bangladesh-myanmar.

5. Amnesty International, COVID-19 No Excuse to Sacrifice Rohingya Lives at Sea, 17 April 2020, available at https://www.amnesty.org/en/latest/news/2020/04/covid-no-excuse-sacrifice-lives-more-rohingya-seek-safety-boat/.

6. See Articles 7 to 34 of the Refugee Convention.

7. See Article 33(1) of the Refugee Convention.

8. Refugee Convention, Ratification Status as of 5 May 2020, available at https://treaties.un.org/Pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&clang=_en.

9. UN High Commissioner for Refugees (UNHCR), Key Legal Considerations on access to territory for persons in need of international protection in the context of the COVID-19 response, 16 March 2020, available at: https://www.refworld.org/docid/5e7132834.html.

10. International Organization for Migration, IOM Calls for European Solidarity and Action on Mediterranean Rescue Amid COVID-19, 9 April 2020, available at https://www.iom.int/news/iom-calls-european-solidarity-and-action-mediterranean-rescue-amid-covid-19.

11. Council of Europe’s Commissioner for Human Rights, During Virus Crisis States Should Ensure Rescue at Sea and Allow Safe Disembarkation, 16 April 2020, available at https://www.coe.int/en/web/portal/-/during-virus-crisis-states-should-ensure-rescue-at-sea-and-allow-safe-disembarkation.

12. United Nations High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, available at https://www.unhcr.org/4d9486929.pdf, para. 11.

13. Erika Feller, Workshop on Refugees and the Refugee Convention 60 Years On: Protection and Identity, The Refugee Convention at 60: Still Fit for its Purpose?, United Nations High Commissioner for Refugees, 2 May 2011, available at https://www.unhcr.org/4ddb679b9.pdf.

14. UN Human Rights Committee, General Comments Adopted by the Human Rights Committee Under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights, General Comment 27 on Freedom of Movement (Article 12), 1 November 1999, at paragraph 13; Article 5(1) of the 1966 International Covenant on Civil and Political Rights.

15. Frontier Myanmar, 60 Rohingya Die, Hundreds Rescued from Boat After Weeks at Sea, 17 April 2020, available at https://frontiermyanmar.net/en/60-rohingya-die-hundreds-rescued-from-boat-after-weeks-at-sea.

16. Data on COVID-19 infection as of 5 May 2020, available at https://www.covidvisualizer.com/.

17. See supra note 5.