Copyright © 2020 - Ex Gratia Law Journal

Law to Combat the Brazen Display of Xenophobic Attacks midst COVID-19

 Prelude:

The term “xenophobia” literally means “the intense dislike or fear of strangers or people from other countries”. Although the terms racism and xenophobia overlap they are different phenomena. Racism is discrimination based on physical characteristics such as skin tone, facial features, and hair type, etc. while xenophobic behaviour and attitudes are based on the fact that the other is a foreigner or the perception that the other originates from outside the community, society or nation.[1] The history of xenophobia traces back even before the World War II where the Japanese-Americans and Japanese-Canadians were segregated from the population especially after the bombing of Pearl Harbour by Japan in 1941 followed by Rwandan ethnic cleansing; hate crimes committed against Chinese in the United States in the late 1800s; the native American treatment by colonists; hate crimes against Indian students in 2009(Australia) etc.[2]  In par with all these, Covid-19 has catalysed the environment for the vigorous spread of xenophobic attacks on Asians, and discrimination is rearing its ugly head in this pandemic.  As the disease spreads xenophobia, discrimination and hate speech is spreading as a constant companion. All regions have seen incidents of discrimination, xenophobia, racism, and attacks against people scapegoated for spreading the microbe. 

 Genesis: Bureaucratic Response

In February, the World Health Organisation (WHO) officially titled the disease caused by the coronavirus “COVID-19”, after the recommendations released in 2015 to avoid naming illness after locations.  Such a recommendation was overtly designed to reduce stigma and hatred against a particular area where the virus was first identified.  Disregarding this fact, leaders of many countries and even senior government officials have directly or indirectly encouraged hate crimes, racism, or xenophobia by using anti-Chinese rhetoric.  US President Mr. Donald Trump referring to the virus as “Chinese virus”, “Kung flu” and the Secretary of State Mr. Mike Pompeo’s use of the word “Wuhan Virus” on various occasions has stimulated the hate speech and xenophobia in the USA.[3]  Mr. Steve Bannon, a Former Chief Strategist of White House, called Wuhan a ‘biological Chernobyl’ claiming that top virus experts from China have decamped to the West.[4]

Although by late March, Mr. Trump stepped back from using the term and issued a tweet in support of “our Asian American community” he has not directed any explicit governmental retort towards protecting Asians and people of Asian descent. The governor of the Venero regions of Italy, an initial epicentre of the virus, told reporters in February that they would be better in handling the virus as the Italians are “culturally strong in hygiene, washing hands, taking showers, whereas we have all seen Chinese eating mice alive”. He later apologized.[5] Brazil’s education minister ridiculed in a tweet saying that the pandemic was a part of the Chinese government’s “plan for world domination”. All these, unfortunately happened to be the genesis for the xenophobic attacks on Asiatic people.

Xenophobic attacks: OVERT DISPLAY

In Italy, the non-profit organisation and the civil society group Lunaria has collected over fifty reports and media accounts of assaults, verbal harassment, bullying, and discrimination against people of Asian descent.  Human rights and other groups in France, Australia, and Russia have also reported on Covid-19 related attacks and harassment of people of Asian descent to Human Rights Watch.[6] In the UK, people from Asia have been punched in their faces and taunted, accused of spreading coronavirus. Two women attacked Chinese students in Australia, punching and kicking one and shouting “Go back to China” and “you xxx (an abusive word) immigrants.” [7]  Two men in Spain attacked a Chinese-American and beat him so badly that he was in a coma for two days and the Chinese community is ill-treated abused on the streets. [8]  In Texas a man with a knife attacked a family of Burmese, thinking they were the ones responsible for spreading the virus.[9] In some cases, governments have imposed strict lockdowns that only affect foreign workers indiscriminately without providing them adequate health care, financial aid, or other services, this has made their survival in question.[10]  In early May, the Malaysian authorities carried out mass raids to detain refugees and migrant workers, without any basis suggesting that migrant community was responsible for the spread of Covid-19 [11] and a series of xenophobic petitions and viral posts have called for Rohingya to “return home” to Myanmar[12]. In the Middle East, pervasive racial rhetoric (stating the Asians don’t even know how to use toilets properly) in public discourse against foreign workers escalated after numerous Covid-19 outbreaks for foreign workers, most of whom are Asian, in heavily populated segregated regions.[13]  South Korea has about one million Chinese population most of them are Korean Chinese who emigrated from China for a higher standard of living, there are a handful of regions that are densely populated by Chinese. They also constitute a larger portion of tourists in South Korea even then the situation is no greater difference compared with other countries.  Restaurants in Seoul (South Korea) briefly placed boards in storefront reading, “No Chinese Allowed”, but it was soon removed.  More than 6.80 lakhs petitions were signed and submitted by South Korean people urging the presidency to ban the entry of Chinese in their country.[14]

Any human being facing racism or xenophobia can never be denied their most fundamental human rights principles.  These rights are enclosed in the Universal Declaration of Human Rights and the other two major human rights treaties viz., the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights. Among the members’ States of United Nations majority have ratified these two instruments and are therefore under a legal obligation to safeguard their effective execution.  Utmost of the core rights specified in the instruments apply to non–citizens.[15]  Besides  many of these ‘core rights’ have been recognised as developing part of customary law, binding all States irrespective of whether or not they are party to relevant treaties, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), also addresses rights against such discriminative practices.

 The International Covenant on Civil and Political Rights (ICCPR)

This instrument governs fundamental rights such as the right to life, [16](This right is also guaranteed in the Constitutions of many Nations. For example, Constitution of the Federal Republic of Nigeria 1999 (Section 33), Indian Constitution (Article 21) and Constitution of the Republic of South Africa, 1996 (Section 11) Right to dignity of the human person,[17] Right to liberty and security,[18] freedom of aliens from arbitrary expulsion[19] and the prohibition of propaganda of war and incitement to national, racial or religious hatred.[20]  Furthermore, every immigrant is entitled to respect for the dignity of his person, and as such, he or she cannot be subjected to inhuman treatment. But this is not the situation in Xenophobia. Victims of xenophobic attacks are deprived of their lives without any reason. Thus, ICCPR ensures that the States protect these rights without any distinction of race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status.[21]

 The International Convention on the Elimination of All Forms of Racial Discrimination

(ICERD) 1969

This human rights instrument compels the States to fight racial discrimination and also makes it mandatory for states to report to the Committee on the Elimination of Racial Discrimination (CERD).  It is the duty of the States to Convict and eradicates racial discrimination by private individuals, public institutions, and officials.[22]  The rights to security and protection by the State against violence or bodily harm are guaranteed to citizens and immigrants without discrimination as to race, national origin, or colour.[23] The very basis of these rights is the principle of equality and non-discrimination.  Under this covenant, state parties are authorized to criminalize racist hatred,[24] guarantee judicial remedies for racial discrimination[25] and to carry out instruction through public education to promote understanding and tolerance.[26]

 Vienna Declaration and Programme of Action (VDPA)

The Vienna World Conference on Human Rights (1993) instructed the member states to ensure every human being all human rights and fundamental freedoms, regardless of their cultural, economic, and political systems. The Declaration urges all States to develop strong policies and strong legislations counting penal measures to prevent all forms of xenophobia.[27]

 Regional Human Rights Instruments

Other regional instruments like the European Convention on Human Rights (ECHR),[28] American Convention on Human Rights (ACHR)[29] and African Charter on Human and Peoples’ Rights (ACHPR)[30] assures rights against any form of discrimination and the right not to be subjectively deprived of life.

 Allegations of Xenophobia on Human Rights

Human rights are rights inherent to all human beings, whatsoever the nationality, race, place of residence, sex, ethnicity, colour, religion, language, or any other status.[31] These rights are all interconnected, co-dependent, and inseparable. They are universal and are guaranteed by law in the procedures established by treaties, customary international law, general principles, and other sources of international law.

 Right to Life[32]

Right to life is the fundamental of all human rights as all other human rights can be applied only when a person is alive, every person whether a national or an immigrant of a state has the right to life and shall not be deliberately deprived of this inherent right, except in the execution of the sentence of a court where he or she is found guilty in respect of a criminal charge. Xenophobic attacks which result in Subjective killings with the use of force violates the right to life.

 Right to work and loss of means of livelihood

The right to work and earn a living is a universally recognized right, which necessarily must not be violated.[33]  Xenophobes attack the places of business of foreigners, upsetting their businesses while pilfering and looting from them. Xenophobia has unceasingly caused the loss of livelihood to foreigners. As a consequence of disrupted business environment, they are unable to attend to their means of livelihood.

 Right to the dignity of a person

In most cases the xenophobic attacks are accompanied by acts of torture, such despicable acts are gross violations of the UDHR [34], International Covenant on Civil and Political Rights (ICCPR)[35] and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Moreover, the Rome Statute of the International Criminal Court (ICC) criminalizes torture as a war crime.[36]  This right is parallel and identical with the right to life as illustrated by the Indian Supreme Court in Maneka Gandhi v. Union of India,[37] where it was specified that ‘the right to life goes beyond the fundamental right to life’ and consequently held that ‘the right to life includes the right to live with human dignity and all that goes along with it, namely, the basic necessities of life such as adequate food, nutrition, clothing, and shelter’.

 Xenophobia as a crime against humanity:

According to Article 5 of ICC Statute[38], the International Criminal Court has jurisdiction with regards to matters of genocide, a crime against humanity, the crimes of aggression, and war crimes.

If the Xenophobes through their inhumane attacks and behaviour cause any death of others this amounts to murder under Article 7 (1) (a) of the ICC statute. Article (7) (1) (k) of the ICC statute criminalizes other inhumane acts. Such inhumane acts include intended actions that cause excessive suffering or severe injury to body or mental or physical health or human dignity and incitement to commit hate crimes.

 Conclusion:

History says that Asians are the victims of xenophobia and statistics say that Asians constitute about sixty percent of the world’s population. These two indispensable facts postulate that the Xenophobia and anti-Asian discrimination is a sine qua non that needs to be addressed while combating with the pandemic. The targets need to be protected from all forms of discrimination, human rights violations, and racial bias violence such as Xenophobia. Repeatedly and publicly condemning racism is an important part of any government’s response to the coronavirus, and the government has to act decisively to address the menace. Inclusive responses to a global threat to ensure no one is left behind are important.  The pledge that “We are all in this together and no one must be left behind in this battle against the virus” is what the world expects from the leaders across the country and its countrymen.


[1] Glossary of migration related terms, https://en.unesco.org/themes/fostering-rights-inclusion/migration#:~:text=Whereas%20racism%20usually%20entails%20distinction,outside%20the%20community%20or%20nation.

[2]  Tanya Thomas, Xenophobia – Examples in World History, (Jan 16, 2020), https://www.medindia.net/patients/patientinfo/xenophobia-examples.htm.

[3] BBC, Trump angers Beijing with ‘Chinese virus’ tweet, (Mar 17, 2020), https://www.bbc.com/news/world-asia-india-51928011.

[4] Times now digital, Wuhan is a ‘biological Chernobyl’; Chinese virus experts have defected to the West: Ex-Trump aide Steve Bannon,( Jul 12, 2020, 09:13 IST), https://www.timesnownews.com/international/article/wuhan-is-a-biological-chernobyl-chinese-virus-experts-have-defected-to-the-west-ex-trump-aide-steve-bannon/620139.

[5] Crispian Balmer  and Mike Harrison. Italian regional chief sorry for saying Chinese eat ‘live mice’ (Feb 29, 2020, 3:56pm), https://www.reuters.com/article/china-health-italy/italian-regional-chief-sorry-for-saying-chinese-eat-live-mice-idUSL8N2AT0G3.

[6]Beyza Binnur Donmez, Report says virus fuels anti-Asian racism, xenophobia, (13.05.2020) https://www.aa.com.tr/en/latest-on-coronavirus-outbreak/report-says-virus-fuels-anti-asian-racism-xenophobia/1839509.

[7]Summer Woolley, Coronavirus: University of Melbourne international students assaulted in unprovoked racist attack, (Friday, 17 April 2020 2:06 pm), https://7news.com.au/lifestyle/health-wellbeing/coronavirus-university-of-melbourne-international-students-assaulted-in-unprovoked-racist-attack-c-983675.

[8] Aana Salva, South China Morning Post, Spain’s Chinese community’s fight against coronavirus and xenophobia started early (Mar 21, 2020, 6:00pm), https://www.scmp.com/news/china/society/article/3076253/spains-chinese-communitys-fight-against-coronavirus-and.

[9] Ju Yeon Kim, Report: Sam’s club stabbing suspect thought family was ‘Chinese infecting people with coronavirus’, MIDLAND, Texas(Big 2, /Fox 24/Border Report),(Apr 8,2020,07:46PM), https://www.kxan.com/news/crime/report-sams-club-stabbing-suspect-thought-family-was-chinese-infecting-people-with-coronavirus/

[10] Alexander Cornwell, Gulf’s migrant workers left stranded and struggling by coronavirus outbreak, (Apr 20, 6:20 pm), https://www.reuters.com/article/us-health-coronavirus-gulf-workers/gulfs-migrant-workers-left-stranded-and-struggling-by-coronavirus-outbreak-idUSKCN21W1O8.

[11]Zsombor Peter, Malaysia Rounds up Hundreds of Undocumented Migrants amid Coronavirus Fears, (May03, 2020, 11:15pm), https://www.voanews.com/east-asia-pacific/malaysia-rounds-hundreds-undocumented-migrants-amid-coronavirus-fears

[12]Max Walden, Coronavirus crisis sees Rohingya face growing hostility in Malaysia,( 27 Apr 2020, 12:12am), https://www.abc.net.au/news/2020-04-27/coronavirus-sees-rohingya-face-growing-hostility-in-malaysia/12185296

[13] The COVID-19 crisis is fuelling more racist discourse towards migrant workers in the Gulf, (Apr 5, 2020), https://www.migrant-rights.org/2020/04/the-covid-19-crisis-is-fueling-more-racist-discourse-towards-migrant-workers-in-the-gulf/

[14] Sotaro Suzuki, ‘Hate China virus’ puts South Korea’s Moon under pressure, (Feb 10, 2020, 15:16 JST), https://asia.nikkei.com/Spotlight/Coronavirus/Hate-China-virus-puts-South-Korea-s-Moon-under-pressure

[15] Wiessbrodt, David: ”The Rights of Non-Citizens “Preliminary Study submitted to the 53rd session of the sub-commission on Promotion and Protection of Human Rights in accordance with Sub-Commission decision 2000/103(july,2001), http://hrlibrary.umn.edu/demo/noncitizenrts-2003.html.

[16] Article 6 of the International Covenant on Civil and Political Rights (ICCPR) 1966 (Entry into force in 1976).

[17] Article 7, the International Covenant on Civil and Political Rights (1966).

[18] Article 9, the International Covenant on Civil and Political Rights (1966).

[19] Article 13, the International Covenant on Civil and Political Rights (1966).

[20] Article 20, the International Covenant on Civil and Political Rights (1966).

[21] Article 2, the International Covenant on Civil and Political Rights (1966).

[22] Article 2, International Convention on the Elimination of All Forms of Racial Discrimination (1969).

[23] Article 5, International Convention on the Elimination of All Forms of Racial Discrimination (1969).

[24]Article 4, International Convention on the Elimination of All Forms of Racial Discrimination (1969).

[25] Article 6, International Convention on the Elimination of All Forms of Racial Discrimination (1969).

[26]Article 7, International Convention on the Elimination of All Forms of Racial Discrimination (1969).

[27] Part II, Para 25 of the Vienna Declaration and Programme of Action, VDPA (1993).

[28] Protocol No. 12 of the European Convention on Human Rights, ECHR 1950 (Entry into force in 1950).

[29]Article 4, American Convention on Human Rights (ACHR) 1969 (Entry into force in 1978).

[30]Article 4, African Charter on Human and Peoples’ Rights (ACHPR) 1981 (Entry into force in 1986).

[31] Office of the High Commissioner for Human Rights, (OHCHR) ‘What are Human Rights?’, https://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx.

[32] Article 3, Universal Declaration of Human Rights (1948).

[33] Article 23(1), Universal Declaration of Human Rights, (1948).

[34] Article 5, Universal Declaration of Human Rights, (1948).

[35] Article 7,the International Covenant on Civil and Political Rights (1966).

[36] Article 8 (2) (c) (i)- (iv) (n.48)

[37]Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621.

[38] UN General Assembly, Rome statute of the International Criminal Court (last amended 2010), 17 July, 1998.

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Author

Santhiya P
Student - SASTRA Deemed to be University