“Illegal and Inhumane”: An Analysis of Title 42’s International Health Law Violations
The recent application of Title 42 to expel Haitian migrants seeking asylum in the United States violates international law obligations regarding the non-refoulement of refugees, as Harold Koh asserted in an internal State Department memo published in early October. However, those violations might go much further than those articulated in the memo, implicating not just human rights law but also international health law.
Harold Koh, pictured above, left his role at the State Department last week, with reports citing the deportation of Haitian migrants as the impetus for his departure. Wikimedia Commons.
BY: Christina Schiciano, STAFFER
Background: The Koh Memo and Title 42
On October 4, 2021, POLITICO reported Harold Koh’s decision to step down from his role in the Biden Administration’s State Department as senior legal advisor, publishing the memo he had written prior to his departure. The reported motivation for his decision: the administration’s invocation of Title 42 to remove Haitian asylum-seekers from the country. This decision was widely criticized as controversial photos surfaced showing Border Agents on horseback chasing migrants as they attempted to cross the Rio Grande River into Del Rio, Texas.
Title 42 is the shorthand name for a Centers for Disease Control and Prevention (CDC) order executed under Section 362 of the Public Health Service Act. It authorizes the Surgeon General, in the interest of public health, to prohibit foreign “persons or property” from entering the country in cases where there is a “serious danger of the introduction” of a communicable disease. The order’s scope and list of exceptions operate together such that it only prohibits entry for those immigrants traveling by land who lack valid paperwork.
Koh argued that invoking Title 42 violates non-refoulement obligations grounded in two specific international treaties to which the United States is a State Party: the Convention Against Torture (CAT) and the 1951 Refugee Convention. Article 3 of the CAT “categorically prohibits State Parties from expelling, returning, or extraditing any person, without exception, to any State where there are ‘substantial grounds for believing he would be in danger of being subjected to torture.’” Article 33 of the Refugee Convention “flatly prohibits State Parties from expelling or returning (‘refouler’) refugees in any manner whatsoever to ‘the frontiers of territories where their life or freedom would be threatened on one of [the designated grounds].”
Koh’s memo does not mention other international law obligations which the application of Title 42 may also violate: specifically, Articles 42 and 43 of the International Health Regulations (IHR), which outline conditions States must meet when enacting emergency measures in response to pandemics.
It is critical not to overlook this distinct category of violations as the international legal community starts to consolidate lessons learned from the global response to COVID-19 and assess how States can better uphold their international legal obligations in the face of future pandemics.
IHR Article 43: Scientific Basis of Emergency Measures
The stated public health rationale for Title 42 is that the “congregate settings” in which migrants are held during processing “increase the already serious danger” of the spread of the virus because border patrol stations and ports of entry (POEs) are not equipped to provide for testing, social distancing, or quarantining. But no rationale is given as to why those congregate settings and conditions render undocumented migrants more dangerous than those with valid documentation (who still must go through processing).
This is exactly the kind of measure that Article 43 of the IHR is designed to prevent. Article 43 requires that state-implemented health measures be based on “available scientific evidence.”
The IHR is an international treaty, binding on all 194 World Health Organization (WHO) Member States (including the United States). First drafted in 1969, the IHR originally had a narrow mandate to monitor the spread of six infectious diseases: cholera, plague, yellow fever, smallpox, relapsing fever and typhus.
But, as the WHO admits, the initial provisions failed to account for the growing need for a more robust mechanism to coordinate state action to contain diseases, as cross-border travel and trade skyrocketed over the latter half of the twentieth century. After the disruptive global response to the SARS pandemic exposed those fundamental weaknesses, the IHR was revised in 2005, in part to mitigate the economic impact of future public health emergency responses by discouraging unnecessary restrictions on international travel and trade. One such change was the addition of a requirement that State-implemented emergency measures be based on “available” scientific evidence.
Title 42 is likely a scientifically baseless restriction. Dozens of public health experts have pushed back on both administrations in open letters to the CDC and HHS, objecting to the “specious public health grounds'' underpinning Title 42. As far back as March of 2020, when the Trump administration first announced the order, it was reported that the move was made over the strenuous protests of several senior scientists at the CDC, who argued that “there was no evidence the action would slow the coronavirus.”
Even if the order did not surgically target undocumented immigrants and imply that they are more dangerous vectors of disease than their documented counterparts, a broader travel ban might still rest on a shaky scientific foundation. At best, the track record of travel restrictions at preventing or delaying the spread of COVID-19 and its variants could only be described as “mixed.” Multiple scientific studies conclude that travel restrictions are not effective at preventing the spread of viruses like COVID-19, at best they merely delay the spread, with waning value after a pandemic’s early stages.
IHR Article 31, 43: Alternative Measures
Article 43 further requires that state-implemented public health measures “not be more restrictive of international traffic . . . than reasonably available alternatives.” Specific alternative measures, including quarantining, isolation, and screening and contact-tracing at ports of entry, are enumerated in Article 31.
The Biden Administration itself acknowledged these alternatives when it announced that unaccompanied minors would be exempted from the policy, stating that “the use of mitigation measures such as avoiding congregate settings, social distancing, testing, quarantine, and isolation can effectively limit transmission of COVID-19 among unaccompanied minors arriving at U.S. ports of entry.” As public health experts pointed out, Title 42 neglected to articulate any “public health rationale preventing these same measures from being safely applied to adults and family units, including during CBP processing.”
Koh, too, argues in his memo that “lawful, more humane alternatives plainly exist” to the administration’s current course of flatly turning away asylum-seekers. He drives home the point by contrasting U.S. action taken against Haitian migrants with U.S. efforts to assist the tens of thousands of Afghan refugees fleeing from the resurgent Taliban government. Instead of being turned away (and, according to some reports, flown back to their country of origin without notice), Afghans have been airlifted to airports, expo centers, and military bases across the country, where they are tested for COVID-19 and provided food, shelter, and medical services while they undergo processing. The Dulles Expo Center alone is expected to process approximately 60,000 Afghan refugees. The number of Haitian migrants deported by Immigration and Customs and Enforcement in the last two weeks, by comparison, is reportedly somewhere between 2,000 and 4,000.
IHR Article 42: Non-Discriminatory Application
This stark comparison in treatment not only strengthens the case for an Article 43 violation (by demonstrating the actual, not theoretical, availability of alternatives to flatly turning away refugees, even those from countries where vaccination rates are less than three percent); it illuminates a second potential IHR violation: Article 42’s requirement that health measures be applied in a “non-discriminatory manner.”
The IHR is not the only international legal instrument requiring States Parties to ensure that obligations are applied in a non-discriminatory manner. One of the treaties Koh cites in his memo, the 1951 Refugee Convention, also contains an explicit provision requiring that States “apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.”
Discrimination in the application of Title 42 could hardly be more conspicuous: asylum-seekers are treated differently based on their country of origin or nationality. While Afghans are flown to processing centers stood up for that very purpose, Haitians are flown back to the country where they face what Koh describes in his memo as a “humanitarian nightmare.”
Potential Explanations for the Omissions
Why, if such international obligations exist, might Koh have opted to omit them from the memo?
Possibly because, from a domestic legal perspective, the United States is not bound to the IHR under a theory that is “non-self-executing.” In essence, a self-executing treaty, once ratified, automatically becomes enforceable in U.S. courts. For non-self-executing treaties, on the other hand, ratification is just “Step 1.” “Step 2” requires that Congress then enact new statutes to render those obligations domestically enforceable.
Per its understandings submitted to the WHO, the United States considers the IHR to be non-self-executing, and Congress has thus far neglected to enact any implementing legislation. In comparison, Congress has passed legislation to render both the CAT and Refugee Convention domestically enforceable (despite the Trump Administration’s inaccurate claims to the contrary), with Chapter 113C of the U.S. Criminal Code and the Refugee Act of 1980, respectively.
Of course, as other legal experts have pointed out, this by no means implies that the United States has no international obligations under the IHR; its non-self-executing status only renders the obligations unenforceable in domestic courts. Countries may still attempt to bring claims against the United States in international forums.
Another potential explanation for the omission is that it is comparatively much easier to articulate precise violations of the CAT or Refugee Convention because they have been articulated before. Alleged violations of the International Health Regulations have never been litigated, whereas cases alleging non-refoulment breaches stemming from both the Refugee Convention and the Convention Against Torture have been argued before both national and international tribunals numerous times.
This dearth of judicial opinion leaves nebulous the outer bounds of IHR obligations, particularly as it relates to defining the terms within Article 43. Many interpretive questions remain, such as:
What constitutes a measure that provides an “appropriate” level of protection? Is a determination of “appropriateness” an objective or subjective measure?
What is considered “scientific evidence?” Would any study, no matter how negligibly peer-reviewed, qualify as “available” scientific evidence?
(Perhaps most critically) Has intervening state practice rendered all travel restrictions lawful, given the more than 70 countries which implemented restrictions of varying degrees of severity throughout the pandemic?
Perhaps the greatest obstacle to qualifying Title 42 as an IHR violation is the risk that such a position could call into question the legality of all travel restrictions implemented during the pandemic. As some legal experts argued in the early days of the pandemic while countries were swiftly closing their borders to China, any travel restrictions related to COVID-19 may not meet the standards articulated in Article 43 (particularly when responding to a disease with a relatively high incidence of asymptomatic carrier states).
This points to perhaps the most straightforward explanation yet: state action violating the IHR likely occurred during this pandemic on a massive, global scale. But Title 42’s explicit reneging on non-refoulement obligations to protect the most vulnerable from persecution, violence, and even death in their home countries was—and remains—a uniquely American sin.
Regardless of how one chooses to analyze the administration’s actions towards the Haitian immigrants—whether through the lens of refugee law or international health law—the failure of the U.S. government to uphold its international obligations is clear.
Heads, Harold Koh is right. Tails, the Biden Administration is wrong.
Christina Schiciano is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Stanford University in 2017. As a first-year law student, she represented CLS in the Jessup International Law Moot Court Competition, where she presented arguments on violations of international health law and non-refoulement obligations in the context of a global pandemic.