The Immigrants Plight Amidst Coronavirus
Imagine your life as an immigrant stuck at the US border, who fell prey to coronavirus border expulsions, where your destination is not of your choosing but merely where you could get to or where you were put. The rising xenophobia within the global leader of democracy has been shockingly successful in achieving new low’s.
On 20th March, Centre for Disease Control and Prevention (CDC) issued an order encouraging the immediate deportation of migrants and asylum seekers. CDC’s order is based on an Emergency Department of Health and Human Services (HHS) Interim Final Rule issued simultaneously with the Order under the authority of an obscure provision of the 1944 Public Health Service Act.
“An unprecedented US policy authorizing the summary expulsion of migrants and asylum seekers because of the coronavirus pandemic violates international law”, the United Nations has warned.
Additionally, Chris Boian from the UN Refugee Agency said, “While this may warrant extraordinary measures at borders, the expulsion of asylum seekers resulting in refoulement should not be among them.”
On 23rd April, UN Secretary-General Antonio Guterres issued a statement warning the US administration, “Taking advantage of the coronavirus pandemic to erode human rights would be unacceptable”.
Subsequently, according to data provided by U.S. Customs and Border, the authorities expelled around 6,375 migrants at the southern border, by the end of March.
Amidst such uproar, the question concerning the legality of CDC’s order gains prime importance.
A Legal Perspective
The US has disregarded human rights obligations present under international laws and its acts amounts to crimes against humanity.
Violation of Human Rights
Firstly, the Universal Declaration of Human Rights (UDHR) recognises the right to seek and to enjoy in other countries asylum from persecution under Article 14(1). The International Covenant on Civil and Political Rights (ICCPR), which has been signed and ratified by the US includes the right to leave one’s own country under Article 12.
Secondly, the right to life is a fundamental and non-derogable human right. Right to life is enshrined under Article 3 of UDHR, Article 6 of ICCPR and Article 6 of CRC. The right to life also entails that unreasonable use of force should not be directed to prevent the entry of migrants. This amounts to a violation of right to life of people in distress by the US as there is unreasonable use of force to prevent the entry of migrants. The States have an obligation to protect the inherent right to life of people within its jurisdiction.
Violation of the Rome Statute
Thirdly, deportation or forcible transfer, under Article 7(2)(d) of the Rome Statute, implies the forced displacement of individuals by expulsion or other coercive acts from the area which they are lawfully present in, against the grounds permitted under international law. Deportation was already recognised as a crime against humanity in the Nuremberg Charter. The US violated the principles of international law by committing crimes against humanity by authorising deportation and forcible transfer of asylum seekers.
Fourthly, per Article 7(2)(g) of the Rome Statute, “persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity. In the case of Prosecutor v. Vlastimir Dordević, it is clearly stated that the acts of forcible transfer are of sufficient gravity to constitute persecutions. The US is responsible for committing the crime of persecution :
- for depriving asylum seekers of their fundamental human rights
- for the deportation or forcible transfer of the population is a universally recognised crime against humanity.
Though the US has not signed the Rome Statute, the jurisdiction of the International Criminal Court can be triggered by the UNSC referral or by the refugee receiving State (if it is a State party to the Rome Statute).
Violation of the Non-Refoulment Obligation
Refoulement occurs when refugees are turned away and forced to a territory where their lives or freedoms come under threat. The principle of non-refoulment is enshrined under Art. 33 of the Refugee Convention . This principle of non-refoulment notably includes the obligation not to reject a refugee at the frontier, whether such frontier is on land or over territorial waters. The US has signed and ratified Refugee Convention and Convention against Torture, it has non-refoulement obligations under both the conventions. Also, refugees are entitled to complementary protection. The term ‘complementary protection’ provides for relief from removal being granted to asylum seekers who have failed in their claim for refugee status under 1951 Convention. “It is essentially a generic phrase, with the actual terminology used by states to describe such forms of protection in their territory, including any attached immigration status, varying enormously: ‘subsidiary protection’ and ‘humanitarian protection’. UNHCR from time to time has provided assistance to people who do not appear to fall within its mandate for refugees. The 1951 Convention is an evolving and dynamic instrument and definition of a refugee is open to flexible interpretation.
The principle of complementary protection also includes the principle of non-refoulment. Since the US violated the non-refoulment principle by its action of forcefully deporting the migrants, it also fails to comply with the principle of complementary protection.
The US for long has been regarded as a crucial nation of asylum seekers. The US’s transition from the land of immigrants to a gatekeeper nation has left everyone speechless. CDC’s order is emblematic of the politics of exclusion and xenophobia that have characterised the US’s changed stance on immigration. Right to life is a fundamentally non-derogable right. The US’s decision of not respecting its international obligation under the UDHR, ICCPR, Child Rights Convention, Refugee Convention and the Convention Against Torture will have a far-reaching impact on the global world order. While collaborating with the UNHCR to find short term solutions is a necessary first step that America must deliberate upon. In the long term, the Global Compact on Refugees is likely to provide some sustainable answers to the Refugee crisis across the globe.
About the Author: Yuvraj Singh is a third year law student at National Law University, Jodhpur. His areas of interest include Public International Law and International Human Rights Law.