“Not our problem…”: Building International Resilience for Refugee Protection - How Do We Enforce the Right to Health to the Most Vulnerable?

Anicée Van Engeland

Senior Lecturer in International Security and Law, Cranfield University

Sherine El Taraboulsi-McCarthy

Interim Senior Research Fellow, Overseas Development Institute

03 April 2020    |    #20.9    |    The views expressed in this post are those of the authors and may not reflect those of UNU-CRIS.

As the COVID-19 pandemic sends shockwaves across the world and as countries continue to shut down borders, ban visitors from highly infected countries and suspend flights, refugees caught up in overcrowded camps should be at the heart of the fight against the virus. Already in 2018, aid groups working in migrant camps in Paris had called on authorities to address deteriorating conditions arguing that they could lead to serious security and health risks. While access to basic healthcare is a cornerstone of any asylum-seeking system, in practice, migrants, refugees and those awaiting clarification of their status often fall between the cracks of government policies, service providers and humanitarian organisations. The threat of a pandemic has also resulted in a number of additional challenges – increased pressure on healthcare infrastructure with already limited capacity, problems with coordination between key actors, as well as rising prejudice and fear of the other. 

Ultimately, however, the health of those living in camps, documented or undocumented, will be a key factor in the control of COVID-19 or any epidemic in the future. It could spread from the camps to the host community. The only way forward out of this crisis, we argue, is inclusivity, at the level of government policies, healthcare systems and communities. This would involve addressing a number of new challenges and maximising on existing opportunities.

Khalil Ashawi/Reuters

The Legal Challenge: Right to Health

While there is a wide consensus around adhering to international humanitarian law and international human rights law (and it should be more than lip service), including in times of a pandemic, it remains unclear what laws currently apply to protect the most vulnerable and how they can be applied in practice.  While UN Secretary General Antonio Guterres regards the pandemic as a war situation, some have already stressed that COVID-19 should not be labelled a war. Crises always offer opportunities, and while some are already seeking to place the legal blame on China, others question the need for a universal healthcare system that would include legal rights. Such an experiment was conducted after a series of natural disasters, giving birth to International Disaster Response Law. We suggest that the same could now be done to react to epidemics, either building on the WHO Pandemic Preparedness Program taken to an international level or on the ashes of Obama Global Health Security Agenda; a group of countries, international organisations, NGOs and private sector companies that came together to advance a world safe and secure from infectious disease threats. So far, what seems to be missing is critical political will and genuine global solidarity. The International Health Regulations set out obligations under international law, but more needs to be done at the international level.

Construing pandemics through the lens of security is, however, not enough; the right to health should be at the heart of any initiative to ensure that the most vulnerable aren’t sidelined in the name of a liberal economic logic. This new system would not only provide protection to, for example, refugees in Somalia; it would also engage positively with asylum-seekers and refugees with skills in the health domain, a solution that had already been proposed in the United Kingdom in 2019. Unfortunately, the current international legal system addressing pandemics is incomplete, and actors such as States or NGOs lack the tools to enforce the right to health of the most vulnerable. Donors such as the Ford Foundation, Wellcome Trust, and the Bill & Melinda Gates Foundation have already grasped the importance of building an international resilience, focusing on communities. It remains that building capacity from the bottom isn’t sufficient and the top, the states, need to work on an international architecture that would encompass human rights law.

The Humanitarian Protection Challenge

It is also unclear whether the pandemic counts as a humanitarian crisis (unless it’s considered an addition to an already existing crisis). Libya constitutes a case study in that regard, as the humanitarian engagement towards civilians, and in particular those on the move, has been limited despite an ongoing protection crisis.  Since 2011, the UN estimates that more than 1.6 million people have been directly forced to migrate, including hundreds of thousands who have been forcibly displaced from their homes, either within Libya itself or across the border in Tunisia. Displaced populations continue to be vulnerable to threats from targeted or generalised violence and face challenges in accessing public services and adequate shelter. Even more vulnerable are migrants and refugees in Libya who face sexual violations and serious malnutrition within and outside of detention centres.  Protection and assistance for these vulnerable people continues to be inadequate, and pandemic such as COVID-19 will only but worsen their plight.

Two days ago, Libya confirmed its first COVID-19 case. Libyan public health officials are right to fear the pandemic could further devastate the war-torn country, especially with an already incapacitated healthcare system. How will humanitarian operations be swiftly ramped up to address a pandemic with serious humanitarian costs?  How will they ensure the protection of vulnerable groups like migrants and refugees who are already facing heightened discriminatory behaviour by the Libyan population? This is especially difficult in the context of an ongoing war, where warring parties refuse to adhere to a humanitarian pause - attacks by the eastern-based forces led by General Khalifa Haftar on Tripoli have continued despite expressing a commitment to a humanitarian pause in fighting so authorities could focus on preventing the spread of the virus.

The Infrastructure Challenge

There are then challenges related to limited infrastructure in low-income countries that have limited healthcare service, such as Iran under sanctions; in high-income countries, where the health systems often lack resilience due to the lack of experience with a recent epidemic at home; and solidarity in communities can also be limited in conflict zones, as noted by the President of the ICRC. In that regard, Yemen provides an illustration of a country that faces war and starvation. The situation of detained Palestinians is even more problematic.


Regional Organisations as Part of the Solution?

It has been argued that the protection of the most vulnerable during pandemics can be addressed at the regional level. Two examples are of interest. Firstly, as pointed by Alberto Alemanno, “European governments already have a system for working together in a health emergency - it’s called the EU.” He pointed out that the EU could mitigate the economic impact of the crisis. Could the organisation also help in protecting the most vulnerable, including migrants on its soil? The response to the COVID-19 crisis has differed among States: while countries like Poland, Italy and France have reached out to the migrant communities to keep them informed, Portugal has granted permission for temporary residence, thereby enabling migrants to have access to health rights. Yet, migrants have found themselves vulnerable to economic exploitation. Consequences of the COVID-19 pandemic on migrants are deeper than access to health: more European asylum agencies are at a stand-still; organisations struggle reaching those in need, including at sea, due to a lack of volunteers; and the economic crisis will hit those organisations.

The lack of coordination at the EU level is damning as tools that could be of use exist - for example, the EU Returns Directive could be used to encourage release of those at risks of deportation. The pandemic represents an opportunity for this regional organisation, not only to prepare for future pandemics, but also to re-think how to approach the right to health of migrants during pandemics, especially as it is currently preparing a new Pact on Migration and Asylum. In the meantime, the EU could take concrete steps such as supporting States in evacuating camps. This calls for a look at the role the European Convention of Human Rights could play, as Article 2 on the right to life could be used to impose a positive obligations on all 47 Members States to protect the most vulnerable, including migrants.

The African Union and the Arab League have also been stepping up their efforts, but they have so far been patchy and limited in scope. The Arab League had called on an urgent meeting of Arab ministers of health but this was later postponed indefinitely. The African Union has launched a youth initiative that aims to put “young people central to the response to COVID-19 pandemic and reform of service delivery architecture”, but it is not clear how this would materialise in the fight against the pandemic. A donation of medical equipment, including over 1.5 million laboratory diagnostic test kits and over 100 tons of infection prevention and control commodities, were made to the African Union by the Jack Ma Foundation and the Alibaba Foundation. This relief initiative was launched by the Prime Minister of Ethiopia, Dr Abiy Ahmed, together with the Jack Ma Foundation and the Alibaba Foundation, as part of their actions towards the implementation of the Africa joint continental strategy for COVID-19, led by the African Union through the Africa Centres for Disease Control and Prevention (Africa CDC). The scope of those donations, while commendable and needed, is a fraction of what the continent would need with the spread of the pandemic. The distributed kits are a fraction of the population of Egypt alone, which recently reached one hundred million people.

Conclusion: Building international resilience 

While the focus has been on closing borders and imposing the state of emergency in many states, the real answer to ensuring the respect and implementation of the right to health to protect asylum-seekers, refugees or undocumented migrants is to be found in strengthening our domestic healthcare systems; it also lies in building international resilience at the community level and at the universal level. It is urgent to build a coherent health system that would go beyond addressing health as a security risk, putting health forward as a right for all.