Article by Oona Hathaway, Mark Stevens and Preston Lim. Just Security.
November 30, 2020.
The threat posed by COVID-19 has been used by governments around the world to roll back key protections guaranteed under international law. Nowhere has this been more apparent than in the context of international refugee law. One of the pillars of international refugee law is the principle of non-refoulement, which prohibits any State conduct “leading to the ‘return in any manner whatsoever’ to an unsafe foreign territory, including rejection at the frontier or non-admission to the territory.” In recent months, governments have violated the principle of non-refoulement by closing their borders entirely and halting asylum-processing.
While governments can take certain protective measures in response to COVID-19, potentially including restrictions on movement, they are not entitled under international law to completely prevent the entry of asylum-seekers. This article is the first of two describing the aspects of international refugee law that the COVID-19 pandemic and resultant government responses implicate. This article first summarizes how human rights conventions and relevant case law conceptualize the principle of non-refoulement, and then reflects on States’ obligations under this principle in the context of the ongoing pandemic. Further, given that some governments have turned back migrants on the high seas or on foreign territory, this article also considers the extent to which the principle of non-refoulement applies extraterritorially.
The next article in this series will discuss the protections and duties that States owe to those migrants under their care in large-scale camps and settlements or in custody in smaller facilities, domestically or at points of entry.
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