States have certain legal obligations under international law. Some of these have been disregarded due to the current COVID-19 emergency. This article will look at how some states’ responses to the pandemic might breach international law, in addition to some issues you can raise in an exam or coursework question in public international law.
Human rights law is particularly relevant to states’ responses to the COVID-19 pandemic. Many have introduced limitations to human rights protections based on public health grounds. Meanwhile, others have questioned the legitimacy of these grounds, as well as their proportionality and necessity.
The relevant legal instruments are the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the European Convention on Human Rights (ECHR). The majority of countries have adopted travel restrictions that affect freedom of movement. This includes the freedom to leave any country, the freedom to enter one’s own country, and the right to move freely in the whole territory of the country (ICCPR Art 12).
Amid the current emergency, there has been increasing attention on whether the restrictions of these fundamental freedoms comply with international law. Yet protecting the right to health is also a legal obligation on states. States must realise the right to health not only individually, but also through international cooperation and assistance (ICESCR Article 2(1)). States are therefore generally obliged to grant any person who requires it access to COVID-19 prevention, screening and treatment measures. It is because of this legal obligation that many States have been criticised for not responding seriously enough to the pandemic, for example, the US.
What happens when the rights such as freedom of movement and the right to health conflict? States are permitted, subject to necessity and proportionality, to restrict freedom of movement under Article 12 of the ICCPR on public health grounds. Where necessary and proportionate, and implemented in compliance with international human rights law, public health measures such as quarantines and lockdowns may therefore be permissible.
In an exam or coursework, you can make critical analysis points about how COVID-19 exposes tension between the human rights protections of freedom of movement and the right to health. The UN has warned that states should take measures that are strictly necessary and should not use the pandemic to suppress human rights and fundamental freedoms.
As such, states must engage in a careful balancing act. They have to take sufficient measures to protect citizens’ right to health, but they can’t be so disproportionate as to completely undermine other human rights.
Refugees, asylum-seekers, migrants and stateless persons are recognised and have rights under international law. For instance, they have a right to health under all hostile circumstances, including pandemics, under Article 25 of the Universal Declaration of Human Rights. In addition, they have a right to freedom of movement and liberty.
The WHO, the OHCHR, International Organisation for Migration and the office of the UN High Commissioner for Refugees issued a joint statement at the end of March which expressed concern and urged greater protection for the rights and health of this group amid the COVID-19 pandemic.
One example of a country that could be in breach of international refugee law is the US. The Trump administration has implemented unprecedented measures on deporting migrants and asylum seekers. For instance, according to the Washington Post, they are now expelling all border-crossers to Mexico in an average of 96 minutes.
This breaches non-refoulment obligations under Article 33 of the Refugee Convention of 1951, which is binding on the US through its accession to the 1967 Protocol and customary international law. These obligations mean that individuals cannot be returned to their country of nationality if they have a well-founded fear that their life, bodily integrity or fundamental rights would be threatened there.
While the US government is bound to avoid further spread of COVID-19, the measures adopted must still be proportionate and non-discriminatory. Their measures may not satisfy these conditions due to the lack of proof that migrants constitute a focal point of contagion.
In an exam question, you can point out that the efforts to contain COVID-19 clearly place a significant strain on solidarity mechanisms established by international law. Restrictions to freedom of movement and liberty can only be justified if proportionate, necessary, time-restricted, and applied in a non-discriminatory way.
In particular, States must keep in mind that their measures should not unduly affect human rights or the right to seek asylum. However, as evidenced by the US, some countries are not complying with these conditions and may therefore be in breach of international law.
Words: Kristin Klungtveit
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