JURIST Guest Columnist Dr. Nafees Ahmad, a Ph.D in International Refugee Law and Senior Assistant Professor of Legal Studies at South Asian University, discusses the public health rights of refugees under international law and COVID-19 is affecting them. . . .
At the moment, there are over 70.8 million people forcibly displaced from their homes. The fast mobility of large populations is an inalienable part of humanity that is driven by drought, famine, earthquake, climate change, political opinion, massive violation of human rights, religious persecution, racial discrimination, ideological conflict, war, and pandemic diseases. People fleeing such a catena of crisis are called refugees, asylum-seekers, migrants and stateless persons and they are recognized under international law. I refer to these classes of people with the abbreviation ‘RAMS’ to signify their collective plight of flight or transit. Measures to combat the spread of COVID-19 have been casting a significant impact on RAMS in the form of border closures, travel restrictions, and racial discrimination in refugee camps and against RAMS on move. Currently, around 20 percent of the global populations have been put under lockdown due to coronavirus. While the global COVID-19 pandemic unquestionably necessitates exceptional actions, many national governments have been executing their pre-pandemic policies of restrictionism and securitization driven by growing far-right nationalism and rabid populism across the world including India. The entry into Hungary’s transit zone, which has been suspended, amounts to deprivation of the right to asylum in the name of “risk related to the spread of COVID-19” in Hungary. Thousands of refugees and migrants confront detention in Bosnia in the newly built Lipa refugee camps close to the border of Croatia. The government has legitimized such measures as an act of “urgent measure[s] to prevent the onset of the disease caused by COVID-19,” sparking fears over social distancing and access to water, electricity, and medicine in the refugee camps.
Similarly, South Africa revealed the construction of 40 kilometers of emergency border barriers along the international boundary of Zimbabwe to guarantee that ‘no undocumented or infected person crosses into the country’ which has been among the last countries to be infected by the global pandemic. There are some crucial challenges for both refugees and migrants in the states of reception that include access to healthcare, water, energy, and other basic needs in the wake of coronavirus due to the policies of restriction and securitization. The decision of the government of Portugal to grant provisional citizenship rights to all refugees, asylum-seekers, and migrants with pending applications for residency certificates to facilitate their access to healthcare is one of the most exceptional and pragmatic initiatives for human dignity for all. In the context of these crushingly adverse policy developments, the novel coronavirus will excessively impact and engulf the entire community of refugees and migrants as it spreads like wildfire in their camps and camp-like-facilities due to their jam-packed population. Further, there are apprehensions regarding access to healthcare services, strengthening the healthcare infrastructures, successful dissemination of information about the COVID-19 disease in the refugee camps. Therefore, it is challenging to follow social distancing and lockdown in refugee camps as these camps have become ultra-vulnerable populations, and social distancing has come to be regarded as a privilege of socio-economically influential people, particularly in the developing countries.
Indeed, the volume of the measures carried out as of now, along with future actions and the nature of the COVID-19 pandemic per se, shall have all-embracing and sweeping corollaries for refugee camps and RAMS. So far, there is a visible gap when it comes to unimpeachable evidence about the impact of COVID-19 on refugee camps and refugees and migrants moving outside the refugee camps. Refugees in the camps are not able to have access to relevant information on COVID-19 and answers to questions such as: how does this global pandemic create an extraordinarily hostile environment for them? How does available information to refugees in camps influence their decision-making about their migration, aims and ambitions during their migratory movements? Is Social Distancing the privilege and luxury of the citizens alone that refugees and migrants cannot afford, as evidenced by the COVID-19 lockdown worldwide? Are there lessons to be reflected by the national governments and citizens at large from the current pandemic crisis? Are there affordable alternatives for the refugees in camps and vulnerable migrants in the host states outside economic disparity? Can the global community of nation-states be ready to execute the Global Compact on Refugees framework and stop its recurrences for once and all? Does it change the conditions under which refugees and migrants move, confront border closures, and strive hard to access their protection, healthcare and assistance in the destination countries?
Thus, the ground reality of distressed human mobility of RAMS and other forms of migrants during the coronavirus pandemic testify to the stark reality that only an elite fragment of the global demographic whole has sustainable resources, including in India. But poor and marginalized sections of the population who strive to eke out daily livelihood cannot afford to subscribe to Social Distancing Measures (SDMs). For example, in an open crowded camp in central Greece, 23 migrants tested positive for COVID-19 as reported by the IOM. The refugee camps in the Global North, particularly in Germany and in the Global South, especially in Cox Bazar Refugee Camp in Bangladesh, have added salt to injury as these camps are already confronting many skin and respiratory diseases, which might convert into coronavirus infections. At the same time, the COVID-19 crisis, also an unprecedented wake-up call to the global community from its slumber on the health sector, presents an opportunity for national governance establishments to re-prioritize global targets and reformulate national health policies for human existence. However, SDMs are absolutely crucial to slow down the global coronavirus outbreak, minimizing the number of casualties. But, for millions of refugees living in overcrowded refugee camps worldwide, SDMs are impossible.
RAMS Right to Health under International Law
The rights of all RAMS have been adequately provided for under international law. The right to health has developed rapidly under international law, and its normative amplification has substantial conceptual and functional repercussions for healthcare policies. The international human rights framework provides equality in treatment and justice with accountability. In 1946, the Constitution of the World Health Organization (WHO) was adopted by the comity of nations and it has recognized the “enjoyment of the highest attainable standard of health” as a fundamental human right. Article 25 of the Universal Declaration of Human Rights protects the right to health under all hostile circumstances including pandemics. Article 3, 23, 24 and 33 of the 1951 UN Convention relating to the Status of Refugees is of vital importance and protects the rights of RAMS. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and General Comment of the ICESCR guarantee state obligations to respect, protect and fulfill the right to health with its core elements like availability, accessibility, acceptability and quality. The right to health is also specifically enunciated in many other international human rights instruments, such as Article 5[e][iv] of the International Convention on the Elimination of All Forms of Racial Discrimination, Articles 11[f] of the Convention on the Elimination of All Forms of Discrimination against Women, Article 24 of the Convention on the Rights of the Child, and Articles 28, 43[e], 45[c] and 70 of the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. At a regional level, there are many provisions for protecting the right to health such as Article 33 of the American Declaration on the Rights and Duties of Man, Article 11 of the European Social Charter, and Article 16 of the African Charter on Human and Peoples’ Rights.
In the present context of unprecedented echelons of human migration, it has been argued that doctors and medical personnel must be redrafted as border security officials manning the borders of a welfare state instead of assuming the mantle of small potentates defining the degree of deprivation in their daily confrontations with RAMS. It poses ethical and moral questions for medical personnel and, therefore, healthcare and immigration policies are combined and both are regarded as a field of public policy. Therefore, rights of RAMS are perceived in a collective trajectory rather than in individual context. In other words, there is a conflict between individual human rights of RAMS and their migration status, which makes a case for a more human rights-based approach (HRBA) to the right to health. Therefore, it must be critically appreciated that the human rights of RAMS guarantee them an inalienable right to health at all stages of their displacement and migration. It is axiomatic from the above deliberation that there is a link between the right to access healthcare and the right to asylum with an HRBA-driven asylum procedure. Yet, nation-states abuse the connection between individual human rights to healthcare services and the right to social security. Moreover, RAMS are often discriminated against in migration and upon arrival due to their migration status, deprivation of access to healthcare services is resorted to by the border check-posts to exclude RAMS from their right to seek asylum.
Recommendations for RAMS under COVID-19
- That the rights of RAMS under international law and constitutional law have attained extraordinary attention. In the wake of exceptional times of the COVID-19 emergency, the same must be protected by the countries of reception;
- That all RAMS in destination countries, detention centers, and repatriation facilities must be treated as permanent citizens during COVID-19 pandemic;
- That all RAMS must have access to public services like seeking refugee status, socio-economic welfare benefits, healthcare, including mental healthcare, water and energy needs in the host countries.
- That these measures require unprecedented medical preparedness of the countries of asylum to defeat and to minimize the risk of contagion between border security personnel and RAMS applicants;
The reasons for displacement and migration include severe weather conditions, climate change disasters, socio-political crises, conflict, war and struggle for basic necessities for human survival. There are more than 70.8 million people who have been forced to flee their country of origin. Receiving countries are not necessarily ready or in a position to provide protection to those who have been displaced. In order to improve the conditions for forcibly displaced people all over the world, there is an urgency to assess the reasons behind their displacement and migration as the same defines the migration status of RAMS under international law. In turn, migration status impacts the requirements of countries to grant asylum and provide for the rights to protection and assistance enjoyed by RAMS. Thus, the right to health is conceived in multiple terms in different human rights instruments for its protection with a relative degree of commitment. Therefore, the state obligations that arise from the ratification of these instruments must include the unfettered canopy of protection of RAMS during the COVID-19 pandemic.
Dr. Nafees Ahmad is a Ph.D. in International Refugee Law, an LLM in International law and Senior Assistant Professor in the Faculty of Legal Studies at South Asian University in New Delhi.
Suggested citation: Nafees Ahmad, Refugee Rights and Health: The Impact of COVID-19 on Refugee Camps, JURIST – Academic Commentary, April 5, 2020, https://www.jurist.org/commentary/2020/04/nafees-ahmad-refugee-rights-covid19/
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