Legal principles assert migrants’ rights during pandemic

From detention facilities in Arizona to labor camps in Qatar to settlements in Bangladesh, the coronavirus pandemic has posed new threats to migrants and refugees.

A global committee of legal scholars – including Cornell Law School’s Ian Kysel – has developed a set of principles reminding states of their obligations to those populations amid the public health crisis.

Their document, “Human Mobility and Human Rights in the COVID-19 Pandemic: Principles of Protection for Migrants, Refugees and Other Displaced Persons,” was released April 28 with the endorsement of more than 800 scholars around the world.

“Turbulent times do not justify claims that rights can be dispensed with or set aside because they are considered inconvenient to the pursuit of controlling the virus,” the authors wrote. “It is precisely in such times that international human rights do their most important work, reminding us of the core principles of the humanity we are struggling to preserve.”

Kysel, a visiting assistant clinical professor of law and co-founder of the International Migrants Bill of Rights Initiative, joined Monette Zard, director of the Program on Forced Migration and Health at Columbia University, and Alex Aleinikoff, director of the Zolberg Institute on Migration and Mobility at The New School in New York City, as co-conveners of the effort.

An 11-member drafting committee identified 14 principles, including rights to nondiscrimination, health, information and due process, and the right not to be returned to a risk of serious harm. An explanation of each principle is followed by citations of the international law, treaties or accepted guidelines from which it was derived.

“We wanted to create a global tool that applied general human rights principles to this context of COVID-19,” Kysel said. “We’re reminding states of these core obligations that they’ve already agreed to, and providing guidance about how these commonly accepted principles must be applied in the context of the pandemic.”

That context, he said, includes concerns among human rights advocates about numerous examples of governments disregarding legal norms in the name of COVID-19, including:

  • the United States closing its Mexican and Canadian borders to asylum seekers, and President Donald Trump’s April 22 executive order limiting immigration;
  • the government of Malaysia turning away boats of Rohingya refugees, and police in Qatar locking workers in crowded migrant labor camps with limited access to food or health care; and
  • reports by civil society groups across Latin America of increased rates of sexual and gender-based violence against women, girls and gender non-conforming migrants and refugees.

In the current environment, Kysel said, the United States should continue to accept applications for asylum, and should not return migrants to countries where they might be at risk of persecution or torture. International human rights law requires any restrictions of an individual’s liberty be necessary and proportional, said Kysel, who co-directs the Law School’s Asylum and Convention Against Torture Appellate Clinic. Thus, he said, migrants should be released from Immigration and Customs Enforcement detention centers in danger of becoming COVID-19 hot spots, as some federal courts have ruled.

“The fact of COVID-19 changes the human rights analysis,” Kysel said, “and makes many more situations of migrant detention – if not almost all of them where the virus is prevalent – disproportionate and unlawful.”

Kysel recently joined two other Cornell Law School faculty members in filing an amicus brief with the U.S. District Court for the District of Columbia on behalf of a group of public health experts including Basil Safi, executive director of Cornell’s Office of Engagement Initiatives, and the American Academy of Pediatrics, in support of releasing migrant families from detention.

While the pandemic represents an unprecedented global threat that demands effective action, the authors of the principles said, it does not absolve states from responsibility to protect migrants and refugees according to international human rights law, treaties and accepted guidelines.

“Actions taken to control and prevent the spread of the virus and to ameliorate the massive harms inflicted by the pandemic,” they wrote, “must be consistent with established international human rights norms.”

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