Knowing all of the law, all of the time – responding to COVID-19

As Paul White has written on these pages, success in our COVID-19 response in humanitarian settings should not be measured in the ‘number of webinars, seminars, guidance and strategies’. Part of achieving success, though, is ensuring that humanitarian actors in the field are aware of key laws, so as to ensure that governments fulfil their obligations and displaced persons do not fail to obtain their rights. While this pandemic raises new challenges, there are well-established bodies of law to keep at the front and centre of responses, including international human rights law, international refugee law and international humanitarian law.

If governments and humanitarian actors are to safeguard displaced persons during this pandemic, they need to be aware of all of the law, all of the time. Only by constantly reasserting these legal commitments will governments be forced to leave no-one behind.

Protection is often thwarted by lack of access – access to safety, access by humanitarian actors, and access to services. According to UNHCR, as at 24 April 2020, there had been no serious outbreaks of COVID-19 in any refugee or IDP camp or settlement. However, governments had restricted access to protection, curtailed the rights of displaced people in their territories, and had limited humanitarian agencies’ access to them in some cases. Let’s look at each challenge in turn, and the pertinent law that can help our response.

Access to safety

Much has been published on the right of refugees to seek and enjoy asylum and protection from refoulement, despite states’ power to control their own borders in the light of the pandemic. Yet, article 14 of the Universal Declaration of Human Rights and article 33(1) of the Refugee Convention mean that states cannot use their power to control borders to override the rights of refugees and people seeking asylum. In addition, article 12 of the International Covenant on Civil and Political Rights provides the right to freedom of movement, including the right of individuals to leave their country of nationality. Article 12 also protects IDPs seeking safety within their own country.

Individuals caught up in conflict must be allowed to move within the country in order to obtain protection. According to Additional Protocol I to the Geneva Conventions, parties to an international conflict cannot constrain the movements of non-fighters ‘in order to attempt to shield military objectives from attacks or to shield military operations’ (art 51(7)). In an internal armed conflict, Additional Protocol II provides that ‘displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand’ (art 17(1), emphasis added). Principles 5–9 of the Guiding Principles on Internal Displacement are about trying to prevent displacement, but Principle 15 recognises that when people are displaced, they have the right to leave their country and seek asylum.

Access by humanitarian agencies

Under its 1950 Statute, UNHCR has a unique mandate to provide international protection to refugees; its extended mandate includes conflict-driven IDPs and other persons of concern. To fulfil that role, UNHCR needs access to these populations, and governments have a duty to cooperate with UNHCR in the exercise of its functions (Refugee Convention, art 35). 

During the pandemic, however, access by humanitarian actors has been restricted, particularly in conflict zones – even though they face the same COVID-19 threat. To resolve this, regard needs to be had not just to human rights law, but also to the international law of armed conflict and the international rule of law which strangely have been missing from much of the current analysis.

Under the 1949 Geneva Conventions, the International Committee of the Red Cross and ‘any other impartial humanitarian organization’ (Geneva Convention IV, art 9; Additional Protocol I, art 5; Additional Protocol II, art 18(1)) may undertake care for the sick, while parties to the conflict should permit ‘relief actions which are humanitarian and impartial in character and conducted without any adverse distinction’ (common art 3). The UN General Assembly has also affirmed that international and national rule of law applies to states and international organizations. Read with the 2018 Global Compact on Refugees, which ‘emanates from fundamental principles of humanity and international solidarity, and seeks to operationalize the principles of burden- and responsibility-sharing to better protect and assist refugees and support host countries and communities’ (para 5) and the humanitarian principles that include humanity, neutrality and impartiality, it is clear that states have obligations to ensure access so that people’s essential and medical needs can be met.

Access to services

Displaced people need to be able to obtain a variety of services, whether they are refugees or IDPs. During the pandemic, the most obvious is access to health care. However, when it comes to accessing health care, legal status matters. IDPs, by definition, are within their own country so should have access to all services as normal (unless, of course, their displacement resulted from an event that disrupted services for everyone). As for refugees, it will depend on the laws of each country, but if a country has recognised someone as a refugee then he or she will ordinarily be treated the same way as a national. However, asylum seekers may not have full access to health care. That said, they should always have access to emergency care – there should be no discrimination based on the fact that they are seeking asylum.

Refugees, asylum seekers and IDPs must be able to access the highest attainable standard of health (International Covenant on Economic, Social and Cultural Rights, art 12). If people are scared that seeking medical advice might lead to their detention and removal, then they will be more likely to conceal their presence. And if they are contagious, then this has huge risks for the virus spreading. It therefore makes sense – for everyone – to ensure that displaced people have as much access as possible to testing and health care. 

Equally, they need access to information, which includes access to the internet. Access to the internet for information has been recognised as a right by the Human Rights Council, and governments must ensure there is no digital divide. As UNHCR’s guidance has made clear, that information must be understandable by refugees, asylum seekers and IDPs, possibly requiring governments and UNHCR to combine their resources. 

Likewise, everyone has the right to an adequate standard of living (ICESCR, art 11). What is adequate in the time of a global pandemic that requires social distancing is clearly different from what would be acceptable at other times. It should also be noted that over 60 per cent of refugees live in urban settings, not camps, so the ability of international organisations to regulate accommodation in such circumstances is limited.

The flipside of in-state services is detention by the state. Quarantining those who may have the virus is undoubtedly permitted, but it must be provided for by law, be proportionate and last for no longer than is necessary. When it comes to those held in immigration detention, governments must ensure that people are not placed at greater risk of infection from COVID-19 – social distancing and proper sanitation must be part of any detention regime.

Conclusion

The lives of displaced people are already complicated and challenging: COVID-19 has added a further layer of complexity, if not outright threat. Within the already complex context of displacement, the pandemic presents new and pressing issues for all the various actors – but existing law can address these challenges provided that we have the knowledge and will to use it. Refugees and IDPs have to be resilient to survive displacement, but, as Jane McAdam has made clear on these pages, they are in situations of vulnerability, and when states are threatened, the ‘outsider’ is frequently left unprotected.