COVID-19 has had a profound impact on migrants and refugees the world over. Their pre-existing vulnerabilities were immediately exacerbated as national health systems were often overwhelmed and many disease control measures were either inaccessible to them or had disproportionate socio-economic effects. But migrants and refugees have also been framed as prima facie causes for the transboundary spread of the virus, and public health exception and derogation clauses in both national and international refugee and human rights instruments have been used to block their entry, suspend asylum processing, or trigger deportations. Taking the example of Brazil as a point of departure, the present contribution argues that (for at least some states) the appearance of the virus seems to have served as a legal carte blanche for fundamentally reconfiguring or closing down border regimes. More specifically, we argue that the strategic mainstreaming of global health regulations into border regimes points to the emergence of a “pandemic law” that encroaches upon already fragile transnational legal regime complexes, with the potential to upend or hollow out existing frameworks for migrant and refugee protection.

At the moment, alien seamen present problems due to a variety of factors: The inability of Norwegian, Greek, Yugoslav, Dutch, Belgian, and other friendly vessels to return to their home ports under German occupation to replenish their crews with nationals; the dislocation throughout Europe of arrangements for hiring, paying, and attending to the welfare of seamen; the inability of American immigration authorities to force the repatriation of Norwegian, Greek, etc., seamen who overstay their leave in our ports; the wage and other labor difficulties arising from the freedom of seamen to accept or reject any offered job, to quit their jobs and seek better ones; and the operation of our Asiatic exclusion laws upon increasing numbers of Chinese and Lascar seamen.

The aim of this essay is to show how international law relates to the interaction of indigenous peoples and animals across international borders. While colonial borders have affected the lives of herding communities in Africa and while there are cross-border indigenous activities in different parts of Latin America, the situation in Northern Europe is particularly noteworthy. This is because cross-border activities are possible there not simply because effective border controls are difficult to ensure in such remote areas but mainly because several of the relevant states have the long-term political will to allow for cross-border activities. Particular attention will be given to the situation of the indigenous Sámi people. Their homeland, Sápmi, is governed by Norway, Sweden, Finland, and Russia. The borders between Norway, Sweden, and Finland have been open since the Nordic Passport Union of 1952, significantly predating the Schengen Agreement of 1985, which allows for unhindered travel in large parts of Europe, including these countries.1 Finland and Sweden are members of the European Union, while Norway is part of the European Free Trade Area and of the Schengen Agreement; Russia imposes visa requirements on citizens of the three other states. With such limitations, the Russian part of Sápmi is effectively cut off from the Western parts. While the borders between Finland, Norway, and Sweden have long been open for many purposes, this openness does not fully take into account the needs of the indigenous Sámi people, who consider themselves to be one people and consider the Sápmi homeland as a whole.2 Today, only part of their ancestral homeland is recognized as Sámi home areas in the legal sense of the term and the Sámi are a minority in their own regions virtually throughout Sápmi. The transnational characteristic of the Sámi people serves to illustrate some of the challenges faced by indigenous peoples with traditional activities such as animal herding as a result of borders imposed on them by the nation states that govern their homelands, yet in which they usually constitute only a small minority.

In recent debates about the interplay between international humanitarian law (IHL) and human rights law (IHRL), two broad camps have emerged. On the one hand, defenders of what may be called the convergence thesis have emphasized the inclusion of basic rights protections in the so-called “Geneva instruments” of IHL, as well as the role of human rights bodies in interpreting and amplifying rights protections in IHL through juridical or quasi-juridical interpretation and pronouncements. In armed conflicts, it is said, human rights apply concurrently and in ways that strengthen the protective constraints of IHL. Critics of the convergence thesis, on the other hand, have protested that pressing human rights obligations on state forces misunderstands the nature of both IHL and IHRL, and generates misplaced and impossibly onerous demands on belligerents—ultimately and perversely, the effect of emphasizing convergence may be less, not more, human rights protection.