Crisis Without Borders: What Does International Law Say About Border Closure in the Context of Covid-19?

Vincent Chetail

doi:10.3389/fpos.2020.606307

Abstract

This paper is assessing the legality of border closures decided by a vast number of countries with the view of limiting the spread of Covid-19. Although this issue has raised diverging interpretations in relation to International Health Regulations and regional free movement agreements, international human rights law provides a clear-cut answer: the rule of law stops neither at the border nor in times of emergency. Against this normative framework, border control can and must be carried out with the twofold purpose of protecting public health and individual rights, whereas border closure is unable to do so because it is by essence a collective and automatic denial of admission without any other form of process. This paper argues that blanket entry bans on the ground of public health are illegal under international human rights law. They cannot be reconciled with the most basic rights of migrants and refugees, including the principle of non-refoulement and access to asylum procedures, the prohibition of collective expulsion, the best interests of the child and the principle of non-discrimination. The paper concludes on the ways to better integrate at the borders public health and human rights imperatives in due respect with the rule of law. In both law and practice, public health and migrant's rights are not mutually exclusive. They can reinforce each other within a comprehensive human rights based approach to health and migration policies.

Highlights

Borders have always played a symbolic and political function in times of crisis
Whether it applies to all foreigners or targets those of a particular nationality, border closure is by essence an automatic and collective entry ban and cannot be reconciled with these core individual rights of migrants
As mentioned above in section Border Closure and Human Rights of Migrants, any asylum seekers invoking a risk of torture, inhuman or degrading treatment are protected by the absolute principle of non-refoulement under international human rights law

Summary

INTRODUCTION

Borders have always played a symbolic and political function in times of crisis. As a powerful expression of state’s sovereignty, immigration control provides a typical avenue for governments to reassure their citizens and bolster a national sense of belonging, while providing an ideal scapegoat for their own failure or negligence. No public health consideration can justify a denial of access to a territory without proper safeguards to guarantee the best interests of the child and to protect against refoulement, collective expulsion and discrimination Whether it applies to all foreigners or targets those of a particular nationality, border closure is by essence an automatic and collective entry ban and cannot be reconciled with these core individual rights of migrants. As mentioned above in section Border Closure and Human Rights of Migrants, any asylum seekers invoking a risk of torture, inhuman or degrading treatment are protected by the absolute principle of non-refoulement under international human rights law In such cases, the exceptions of the Refugee Convention are literally neutralized. If such a risk exists, the State is precluded from

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Findings

CONCLUSION