Pandemic, Emergency Power, and Implications on the Right to Seek Asylum
As the coronavirus Covid-19 pandemic sweeps across the globe, executive branches of governments have been exercising public health emergency powers. While many of the extraordinary measures taken under the emergency power are essential to the containment of the virus, such power is subject to potential misuse. This Insight examines the human rights implications of exercising public health emergency powers in the particular context of asylum seekers waiting at a border.
On March 20, 2020, in response to the spread of Covid-19, the U.S. Centers for Disease Control and Prevention (CDC) issued an order authorizing the government to temporarily override certain regular immigration procedures at its border. Specifically, the CDC Order allowed authorities to temporarily suspend entry of individuals traveling from Mexico or Canada (regardless of country of origin) into the U.S., with a list of exceptions, such as U.S. citizens and lawful permanent residents.
Based on this CDC Order, the U.S. Department of Homeland Security (DHS) moved quickly and started summarily deporting large numbers of individuals arriving at the border. In about eight weeks' time, over 10,000 migrants have been refused entry under expedited process at the U.S.-Mexico and U.S.-Canada border. Previously, unaccompanied children arriving at the border would be transferred to the Department of Health and Human Services for a review of their situations—now they are removed within hours of apprehension. The U.S. Customs and Border Protection's (CBP) own statistics and credible press reporting revealed that the measures taken by DHS effectively blocked the possibility of seeking asylum at U.S. border. Multiple U.S. Senators on the Judiciary Committee requested DHS to explain why DHS was using the CDC Order to expel asylum seekers.
Undeniably, the measures authorized in the CDC Order are important in assisting the government with curbing the spread of Covid-19. Sealing up its border is not a policy only adopted by the U.S., but a widespread practice during this pandemic. The real issue here is not the legitimacy or value of the public health emergency power, but whether or not DHS has properly interpreted the CDC Order and utilized its emergency powers lawfully or whether DHS is using its emergency powers to pre-empt federal laws. Rendering asylum rights de facto impossible to exercise, DHS's implementation of the CDC Order is highly problematic under both U.S. law and international law.
The right to seek asylum is a fundamental human right enshrined in Article 14 of the Universal Declaration of Human Rights. At the core of this right is the principle of non-refoulement, which prohibits states from expelling or returning an asylum seeker in any manner whatsoever to a territory where the individual would be at risk of threats to life or freedom. The U.S. is not a state party to the 1951 Refugee Convention, but is a party to the Convention's 1967 Protocol and has assumed and implemented the majority of the Refugee Convention's obligations. Non-refoulement is also reflected in the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR); the U.S. is a state party to both treaties. Additionally, few would dispute that non-refoulement binds all states by virtue of being a customary international norm.
In multiple "Conclusions on International Protection", the United Nations High Commissioner for Refugees (UNHCR) has affirmed that rejection, non-admission, or expulsion at the borders constitutes refoulement. The actions of the U.S. Border Patrol would clearly contravene international law at a "normal" time—the question is whether or not government agencies like DHS can derogate from non-refoulement on the premise of fighting a pandemic.
The answer is no.
Non-refoulement, as the cornerstone of refugee law regime, is absolute—neither the 1951 Refugee Convention nor its 1967 Protocol contain any derogation clause. Mindful of its significance, the drafters of the Convention have explicitly "considered, but rejected" the notion of derogating from non-refoulement, even in times of state emergency and crisis.
Under human rights law, per Article 3 of the CAT, the U.S. must not send anyone to a state where there are substantial grounds for believing that such a person would be in danger of being tortured. In this context, international law is very clear that the principle of non-refoulement is absolute and applicable at all times, including during war times, internal political instability, and any other major public emergency—including a pandemic. Non-refoulement has a unique importance in safeguarding human rights as it goes beyond the right to seek asylum and inevitably implicates asylum seekers' right to life and right to freedom from torture. The U.N. Human Rights Committee, in addressing public emergency threatening a nation, has emphasized the non-derogable character of the right to life and the prohibition of torture, regardless of the type or severity of the public emergency presented.
As an effort in incorporating its non-refoulement obligations, U.S. law recognizes grounds of refoulement arising under both the Convention Against Torture and the 1951 Convention. Notably, DHS claimed that the policy has not completely blocked asylum because it kept one humanitarian exception to its expedited expulsion policy, namely the Convention Against Torture claims. As such, this policy left out asylum claims on all those grounds other than the fear of being tortured. Setting aside how well the U.S. Border Patrol safeguarded this "humanitarian exception" in practice, even just on the paper, the newly adopted policy fell short of the U.S.' own national law, as it ignored asylum claims arising outside of CAT claims that still fall within the realm of non-refoulement.
Rights to Seek Asylum under ICCPR
U.S. federal law states that, irrespective of immigration status, "[a]ny alien who is physically present in the United States or who arrives in the United States" shall be afforded the right to seek asylum. This is subject to a "Safe Third Country" exception, which could allow deportation of asylum seekers, pursuant to a bilateral or multilateral agreement, to a third country where his/her life would not be in danger. Therefore, blocking asylum in a blanket manner affects not only those who fall under the protection of non-refoulement, but also asylum seekers whose removals do not necessarily amount to "refouler." This leaves the question: whether the right to seek asylum as in the ICCPR can be derogated from in a time of pandemic.
Article 4(1) of the ICCPR lays out criteria for derogation: (1) an officially proclaimed state emergency; and the restrictive measures must fulfill (2) strict necessity, (3) proportionality, (4) compatibility with other international legal obligations, (5) the principle of non-discrimination, and (6) the requirement of international notification.
Not every catastrophe is a state emergency, and only a crisis that truly "threatens the life of the nation" qualifies.Merely having a public health crisis in itself is insufficient, as the crisis must be officially proclaimed as a state emergency in accordance with the state's constitution and domestic law. The U.S. federal law prescribes that a state emergency can be proclaimed through an executive order that has been signed and issued by the president, lodged with the Federal Registrar, and transmitted to Congress. The CDC Order was issued under Title 42 of the U.S. Code on temporary emergency measures to tackle health crisis, which does not explicitly contain the power to allow derogations from human rights obligations. There is also no clear evidence that the CDC has been or can be delegated executive power to derogate from U.S.' international obligations.
Next, the "duration, geographical coverage and material scope" of any extraordinary measure taken must be "strictly required by the exigencies"—if indeed strictly required, the measures taken must be proportionate in balancing the human rights at stake and the necessity to address the emergency. How DHS implemented the CDC Order seems to suggest an intent to derogate from the right to seek asylum, yet it is unclear whether blocking asylum is absolutely necessary for curbing the spread of the virus. The CDC Order mentioned the limited space and medical resources in detention facilities and the lengthy periods of detention as reasons, but it is unclear whether any other less extreme measures could have been taken to address virus issues in the asylum processing procedures and the immigration facilities. Considering the wide geographical scope and blanket manner of the enforcement, the summary expulsions, even in a pandemic, are not without problems.
Additionally, the manners in which restrictive measures are implemented must comply with non-discrimination and other international legal obligations of the U.S. Finally, assuming all the aforementioned requirements are met, countries must still officially notify the Human Rights Committee regarding a derogation. As of the writing of this Insight, the U.S. has not communicated any such notification to the United Nations.
A derogation from human rights is permitted only in exceptional circumstances, and it must follow rigorous procedures and be given exceptional publicity. Looking at the totality of the situation, it is doubtful whether the U.S. derogation from the right to seek asylum under the ICCPR is justified. Even so, the manner in which such a derogation is carried out remains highly problematic under international law.
Rights of the Child
One of the most disturbing and egregious aspect of DHS implementation of the CDC Order is the treatment of unaccompanied children. Aware of the particular vulnerability of children, U.S. federal law recognizes the paramountcy of the rights of the child in the asylum context—for example, the law prescribes that the "Third Safe Country" exception and time period limit (that are usually applicable to adults) do not apply to children. Additionally, the U.S. Trafficking Victims Protection Reauthorization Act (TVPRA) explicitly mandates enhanced procedures in protecting the rights of unaccompanied children arriving at the U.S. border.
Yet, DHS summarily expelled unaccompanied children without due process, let alone enhanced process, and its relevant policy at no point made reference to U.S. asylum law or the TVPRA vis-à-vis the rights of unaccompanied children.
Furthermore, Article 22 of the Convention on the Rights of the Child emphasizes that the rights of unaccompanied minors arriving at the border seeking asylum must be respected at all times (emphasis added). The Committee on the Rights of the Child highlights the particularly severe and irreparable harm of failing to afford children asylum seekers with necessary international protection. With the international protection of children asylum seekers almost universally accepted as an international norm, it is worth noting that U.S. immigration policy's falling short of the standard is probably reflective of the fact that it remains the only country in the world that has not ratified the Convention on the Rights of the Child.
This particular CDC Order has important values in assisting the government in dealing with the Covid-19 crisis, yet it should not be relied upon as a basis to contravene human rights norms. The language of the Order must be read in harmony with U.S. national law and international law, and it must be implemented lawfully.
Even in the face of a pandemic, the right to seek asylum cannot be neglected and the states must:
- Guarantee the absolute respect of the principle of non-refoulement;
- Ensure rigorous scrutiny on whether a derogation is lawful and, if so, that derogation measures are in the full compliance with international law; and
- Secure the protection of unaccompanied children asylum seekers in accordance with national and international law.
As analyzed above, in interpreting and enforcing the CDC Order, the policy and conduct of DHS are highly concerning on all these aspects. The U.S. government must act to review and readjust these measures with due diligence.
In protecting public health, countries for sure have the right to take measures to manage their borders and the risk arising from receiving travelers arriving at their borders. The World Health Organization (WHO) did declare Covid-19 a "public health emergency of international concern" and authorize the use of emergency measures, but it is absolutely crucial that any emergency measures taken must be consistent with international law and human rights. Fighting a crisis by infringing the rule of law and human rights only plants seeds for a bigger crisis.
About the Author: Junteng Zheng is the Mark Haas Fellow with Columbia University and a practicing lawyer admitted in New York. He was previously an Arthur C. Helton Fellow at the American Society of International Law. He holds an LL.B. from Renmin University of China, a J.D. from University of California Davis, and a law degree from Columbia Law School. He writes here in a personal capacity.
 See e.g., Autocrats See Opportunity in Disaster (Apr. 23, 2020), The Economist, https://www.economist.com/leaders/2020/04/23/autocrats-see-opportunity-in-disaster; Iain Marlow, Virus Hands World Leaders Sweeping Powers (Mar. 25, 2020), https://www.bloomberg.com/news/articles/2020-03-25/virus-gives-world-leaders-sweeping-powers-they-may-never-give-up.
 CDC, Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists (Mar. 20, 2020),https://www.cdc.gov/quarantine/order-suspending-introduction-certain-persons.html. The Order has subsequently been renewed, seehttps://www.cdc.gov/quarantine/order-suspending-introduction-certain-persons.html.
 "Deportation" includes both removal from within the territory and rejection at the border, see 8 U.S.C. § 1227.
 See U.S. Customs and Border Protection enforcement official statistics, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics.
 U.S. Senate Judiciary Committee, Letter Demanding Answers About DHS' Newly Claimed Authorities To Override Federal Laws At Southern Border (Apr. 7, 2020) [hereinafter U.S. Senate inquiry], https://www.leahy.senate.gov/press/leahy-leads-judiciary-committee-democrats-in-demanding-answers_about-dhs-newly-claimed-authorities-to-override-federal-laws-at-southern-border.
 See e.g., reporting by NY Times, https://www.nytimes.com/2020/04/18/us/deportations-coronavirus-guatemala.html and Washington Post at https://www.washingtonpost.com/national/trump-administration-has-expelled-10000-migrants-at-the-border-during-coronavirus-outbreak/2020/04/09/b177c534-7a7b-11ea-8cec-530b4044a458_story.html.
 U.S. Senate inquiry, supra note 7.
 NY Times, Coronavirus Travel Restrictions, Across the Globe (May 8, 2020), https://www.nytimes.com/article/coronavirus-travel-restrictions.html.
 U.N.T.S. Depositary, Status of Treaties – Protocol Relating to the Status of Refugees, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-5&chapter=5.
 U.N. General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dec. 10,1984) U.N.T.S., vol. 1465, p. 85, art. 3; U.N. General Assembly, International Covenant on Civil and Political Rights, December 16, 1966, U.N.T.S., vol. 999, p. 171, art. 7.
 Elihu Lauterpacht and Daniel Bethlehem, The Scope and Content of the Principle of Non-refoulement: Opinion, in Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (E. Feller, V. Türk and F. Nicholson eds., 2003), ¶¶ 193-219.
 UNHCR, Conclusion on International Protection – No. 85 (XLIX), U.N. Doc. A/53/12/Add.1; No. 82 (XLVIII), U.N. Doc. A/52/12/Add.1; No. 81 (XLVIII), U.N. Doc. A/52/12/Add.1; No. 22 (XXXII), U.N. Doc. A/36/12/Add.1; and No. 6 (XXVIII), U.N. Doc. A/32/12/Add.1.
 James C. Hathaway, The Rights of Refugees Under International Law 261 (2005).
 U.N. Committee Against Torture, General Comment No. 4 on the implementation of article 3 of the Convention in the context of article 22 (Sept. 4, 2018) U.N. Doc. CAT/C/GC/4, ¶ 9.
 See U.N. Human Rights Committee, General Comment No. 20: Article 7 on the prohibition of torture, or other cruel, inhuman or degrading treatment or punishment (Mar. 10, 1992) U.N. Doc. HRI/GEN/1/Rev.9 (Vol. I); also General Comment No. 36: Article 6 on the right to life (Oct. 30, 2018) U.N. Doc. CCPR/C/GC/36.
 U.N. Human Rights Committee, General Comment No. 29: Article 4: Derogations during a State of Emergency (Aug. 31, 2001) U.N. Doc. CCPR/C/21/Rev.1/Add.11, ¶ 7.
 8 U.S.C. § 1101; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999); INS v. Stevic, 467 U.S. 407, 429-30 (1984).
 USCBP, Notification of Temporary Travel Restrictions of March 24, 2020, read in conjunction with US Border Patrol operation guidance "CAPIO", https://assets.documentcloud.org/documents/6824221/COVID-19-CAPIO.pdf.
 8 U.S.C. § 1158.
 8 U.S.C. § 1158(2)(A).
 GC No. 29, ¶¶ 2-3.
 50 U.S.C. §§ 1631, 1641.
 42 U.S.C. §§ 265, 268.
 GC No. 29, ¶ 4.
 GC No. 29, ¶¶ 8-10.
 GC No. 29, ¶ 17.
 See U.N. Treaties Database, https://treaties.un.org/Pages/CNs.aspx?cnTab=tab2&clang=_en.
 8 U.S.C. § 1158(2)(E).
 8 U.S.C. § 1232.
 Letter from the US Senate Judiciary Committee to the DHS dated March 30, 2020, https://judiciary.house.gov/uploadedfiles/3.30.2020_letter_to_dhs_re_tvpra.pdf.
 See UN Committee on the Rights of the Child, General comment No. 6: Treatment of Unaccompanied and Separated Children Outside their Country of Origin, September 1, 2005, U.N. Doc. CRC/GC/2005/6.
 U.N.T.S. Depositary, Status of Treaties – Convention on the Rights of the Child, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&clang=_en.
 WHO, International Health Regulations (2005), arts. 3(1). 3(4), 32, and 43.