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Kate Ogg
Senior Lecturer, ANU College of Law, Australian National University

In the fight against COVID-19, many countries have taken actions that prevent their citizens and residents from leaving. Some states, including Australia, Kazakhstan, Lithuania and Uzbekistan, have banned residents and citizens from travelling internationally (with various exceptions for essential work and dual citizens). Other countries, such as Cameroon, Colombia, the Republic of the Congo, Ghana, Haiti and Sudan have closed their borders, preventing exit and entry (preventing entry may be in breach on non-refoulement obligations). Many nations, including Albania, the Bahamas, Dominica, Djibouti and Kuwait, have suspended international flights indefinitely.

A person cannot be a refugee or claim complementary protection unless they are outside their country of origin or habitual residence. Thus, travel bans and border closures jeopardise a person’s access to international protection. Nevertheless, they have been introduced to prevent or slow the spread of COVID-19, which may be necessary to protect other human rights such as the right to life in article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) and the right to the highest attainable standard of physical health in article 12(1) of the International Covenant on Economic, Social and Cultural Rights. 

Whether states are in breach of their international obligations by prohibiting their citizens and residents from leaving the country in the context of a pandemic is a complex question and one that, to my knowledge, has not been addressed yet from the perspective of asylum-seeking. (UNHCR’s recent comment on COVID-19 focuses on laws and policies that restrict entry and does not directly address policies preventing citizens and residents from leaving their own country.) In this post, I seek to open this conversation by examining the issue with reference to the human right to leave one’s own country. I suggest that bans on international travel, despite being introduced to address COVID-19, are a violation of this right.

Article 12(2) of the ICCPR states that ‘everyone shall be free to leave any country, including his [or her] own’. The right to leave has not been widely discussed in refugee law scholarship. This is despite recognition that many people cannot access international protection because they are unable to leave their homeland due to, for example, cost, carer responsibilities, illness, disability, or the inability to obtain travel documents. The COVID-19 prohibitions on international travel bring this right – and its relationship to refugee protection – into focus. 

According to article 12(3) of the ICCPR, the right to leave cannot be subjected to any restrictions except those which are: (1) provided by law; (2) necessary to protect public security, public health or morals or the rights and freedoms of others; and (3) consistent with the other rights in the ICCPR. Thus, one question is whether COVID-19-related prohibitions on leaving, though they prevent a person from seeking asylum, are nevertheless permissible by virtue of article 12(3) of the ICCPR. 

It is beyond doubt that most travel bans and airport and border closures have been put in place to protect public health. But that alone does not mean they are permissible under the ICCPR. The Human Rights Committee (HRC) has stated that ‘it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary [and] they must be the least intrusive instrument among those which might achieve the desired result’. In short, they must be proportionate to their purposes.

Prohibiting all international travel (apart from the few exceptions, noted above) is not the least intrusive method to achieve the objective of preventing or slowing the spread of COVID-19. One risk posed by allowing people to undertake international travel is that they could catch the virus overseas and then spread it upon return. Yet, this possibility can be addressed by requiring returning citizens and residents to self-isolate or be placed in quarantine for a designated period – a policy many states have already adopted and one recommended by UNHCR in the context of non-citizens’ entry. States may also be concerned that an infected person could travel overseas and spread the infection. A less intrusive measure to address this risk would be to test travellers before they embark. 

Another reason why the COVID-19 prohibitions on international travel do not come within the permissible restrictions in article 12(3) is that the prohibitions are inconsistent with other rights in the ICCPR. From an asylum-seeking perspective, not allowing a person to leave their own country may be inconsistent with the right to life (article 6(1) ICCPR) and the right to be free from torture or cruel, inhuman or degrading treatment or punishment (article 7 ICCPR). A person may need to flee their homeland due to, for example, family violence from which the state authorities cannot protect them. Family violence has been recognised as a violation of these ICCPR rights and a form of persecution within the meaning of the Refugee Convention. The COVID-19 travel bans would prevent the person from doing so. This is no minor concern. It is particularly important in light of evidence that social distancing policies are likely to increase rates of domestic violence

Some states imposing travel bans, such as Lithuania, have declared a state of emergency in respect of COVID-19. Article 4 of the ICCPR provides that if there is a public emergency that threatens the life of the nation, which has been officially proclaimed, then a state can derogate from some of its ICCPR obligations but only to the extent ‘strictly required by the exigencies of the situation’. The measures must not be discriminatory or inconsistent with other international law obligations. While article 12 is an obligation from which states can derogate, the HRC has stated that the permitted exceptions outlined in article 12(3) are ‘generally sufficient during such situations and no derogation from the provisions in question would be justified by the exigencies of the situation’.

The right to leave in the ICCPR provides strong grounds to argue that, even in the midst of a pandemic, a person must be able to leave their own country in order to seek asylum.  

Kate Ogg is a senior lecturer at the ANU College of Law, Australian National University.

 

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