A remarkable international law aspect of COVID-19 has been how States have responded to the plight of their overseas citizens. This has arisen in multiple contexts from chartering flights out of Wuhan, China in January, to repatriating citizens from the cruise ship Diamond Princess docked in Yokohama, Japan, and coordinating repatriation flights for citizens stranded in countries where borders have been closed. Much of this work has been undertaken by Foreign Ministries, and in the case of Australia by the Department of Foreign Affairs and Trade. In doing so, it highlights the capacity of governments to provide consular assistance to nationals abroad and the rights of nationals to return to their home state even in the midst of a global pandemic.
The governing international legal instrument dealing with consular assistance is the 1963 Vienna Convention on Consular Relations. Article 3 provides that:
Consular functions consist in:
(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;
The 1961 Vienna Convention on Diplomatic Relations also entitles diplomatic missions to provide equivalent support to protect the interests of nationals within the receiving State (Article 3 (1)). These provisions are broad enough to provide a legal basis for diplomatic and consular officials to assist with citizen repatriation during a pandemic, and have previously been utilised in evacuations following natural disasters such as earthquake, cyclones, or tsunami.
Much of the work of consular officials and diplomats in providing assistance to citizens abroad during COVID-19 has been facilitated by the rise in online and e-communications, and ongoing campaigns for travellers to register with Foreign Ministries prior to leaving for their overseas destination, or to register with the local missions upon arrival. Nevertheless, these systems are only as effective as communications allow, and in some remote regions of the world this can be exceptionally challenging. At least in the case of those citizens on cruise ships who required repatriation in the early weeks of the pandemic there were passenger lists that could be utilised.
The pandemic has also highlighted the varying capacity of States to provide assistance to citizens stranded abroad. Some States have no tradition of assisting citizens abroad, while others have no capacity. Physically repatriating citizens during the pandemic has also proven impossible due to closed borders and airline shutdowns. Nevertheless, the Philippines Embassy in Washington was reported to have coordinated the repatriation of over 10,000 seafarers, with some South Pacific states also undertaking similar repatriations on a smaller scale.
Australia has a long standing history of providing consular assistance to citizens abroad. This has partly arisen from the vast distances between Australia and its citizens when they are overseas, and the propensity of Australians to travel internationally. Because of the efforts made by successive Australian governments to provide consular support to citizens in matters that range from the replacement of a passport to high level diplomatic representations in criminal matters, there has also developed a high level of expectation on the part of citizens as to the level of assistance and support the Australian government can provide. To give clarity to the precise extent of the assistance the Australian government can provide to citizens abroad, a Consular Services Charter has been developed. Canada likewise has a similar Charter. The Australian Consular Services Charter makes clear what the government can and cannot do for citizens abroad, and indicates that citizens are to take “personal responsibility” for their travel choices and safety. In the context of natural and other disasters, Australia also indicates that it cannot guarantee the personal safety of Australians or make travel arrangements for them. However, there is a specific exception for cases “in which large numbers of Australians have been killed or injured or face significant threat, for example terrorist attacks, major accidents, pandemics and natural disasters”. Clearly COVID-19 has meet this crisis exception and the Australian government has responded accordingly with reports of over 22,000 citizens having their return to Australia facilitated by these processes.
However, one category of Australians have not received repatriation assistance. There remain approximately 19 Australian women and 47 children in the al-Hawl (also al-Hol) refugee camp in northern Syria where they have been stranded following the collapse of the ISIS caliphate. Repatriation of these Australians was an ongoing issue throughout 2019, however the Australian government refused to provide assistance. In April 2020 Save the Children Australia highlighted the plight of the Australian children in the camp and called for their repatriation. The International Crisis Group has also placed a spotlight on the al-Hawl camp calling for greater humanitarian assistance for its inhabitants. Notwithstanding the risk of the pandemic spreading within the camp, Australia has not given priority to repatriating these Australians in 2020. This is notwithstanding certain obligations under the 1989 Convention on the Rights of the Child, which the Office of the United Nations High Commissioner for Human Rights recognised in May 2020 when it called upon Canada to immediately repatriate an orphan citizen from al-Hawl. Research by students at the ANU College of Law International Law Clinic have assessed the circumstances of these Australians in the al-Hawl camp and highlighted a failure to respect their human rights.
COVID-19 has tested many aspects of international law. In some instances, such as the repatriation of citizens by diplomatic and consular officials, governments have actively utilised international law to achieve good citizen outcomes. However, in some instances not all citizens have been treated equally.
Research undertaken by ANU College of Law International Law Clinic students Lauren Abrahams and Casley Rowan on the situation of Australian women and children in the Al-Hawl camp, Syria, is acknowledged.