HRC50: Human Rights of migrants and border governance

The 50th Session of the Human Rights Council

30 June – 8 July 2022

Item 3 – Interactive Dialogue with the Special Rapporteur on the Human Rights of Migrants

 24th June 2022

By Farah Caïdi / GICJ

Executive summary 

On 24th June 2022, an Interactive Dialogue was held discussing the last report[1] of the Special Rapporteur (SR) on the Human Rights of Migrants. 

Border governance trends and especially pushback practices were the central focus of the discussion. This refers to measures that summarily forces back a migrant, without assessing correctly their protection needs. Pushback practices involve the violation of the core principles guiding migration’s governance, such as the principle of non-refoulement or the prohibition of collective expulsion. 

The SR’s conclusions were critical: there is a severe increase of migrants’ human rights violations through pushback measures, and an alarming trend of States legalising them. 

Moreover, he emphasised the global rise of emergency measures taken by States that are used to justify mass expulsions and other violations at borders. 

The Special Rapporteur highlighted some unlawful State practices and some positive progress mostly made by national or regional courts. He recommended States to stop any forced removal and urged States to guarantee a safe place for civil society organisations to carry out their monitoring and rescue missions. 

Geneva International Centre for Justice (GICJ) calls all States to abide by the principles laid down in the Global Compact for Safe, Orderly and regular Migration, adopted at the General Assembly in 2018. Border governance necessities should not excuse heartless treatments of individuals crossing international borders and thereby exercising their basic freedom of movement and mobility. 

Background

The Special Rapporteur on human rights of migrants is a mandate initially created in 1999 by the Commission on Human Rights. Each Special Rapporteur is appointed by a Human Rights Council resolution, every three years. The actual mandate holder is Felipe Gonzàlez Morales. He was first appointed in June 2017. Then, his term was renewed in 2020, following the Human Rights Council resolution 43/6.

His two main missions are to study the obstacles preventing the full protection of migrants’ human rights and to provide recommendations to enhance the promotion, protection and implementation of their rights. His mandate applies to all States whether or not they have ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. 

Presentation of the report 

The Special Rapporteur entitled his report “Human rights violations at international borders: trends, prevention and accountability.”

This report is a follow up of a previous report on “means to address the human rights impact of pushbacks of migrants on land and at sea”[2], released in May 2021. The aim is to  bring recent information and recommendations regarding migration and border governance, and specifically on the practice of pushbacks. 

The key issue presented by the Special Rapporteur, Felipe González Morales, in his report and during the Interactive Dialogue was the alarming trend followed by States around the world to legitimise pushback practices. The report described these practices as being widespread and common along most migration routes. He also pointed out state of emergencies measures that are increasingly taken to manage mass migration and justify violations of international law, especially at borders. 

He gave examples from different countries and mechanisms whether regional, national,  or from civil society providing illustrations of what can be done to prevent human rights violations in this context. 

A working definition of pushback practices was given in a previous report by the Special Rapporteur. Pushbacks consist of “various measures taken by States, sometimes involving third countries or non-State actors, which result in migrants, including asylum seekers, being summarily forced back, without an individual assessment of their human rights protection needs, to the country or territory, or to sea, whether it be territorial waters or international waters, from where they attempted to cross or crossed an international border”.

It usually refers to measures that fall within “arbitrary expulsion” or “collective expulsion”, which are concepts officially defined in international law.

Pushbacks also involve removing a non-national to a third country that is not his country of origin or a previous country of transit.  

• International legal framework:

As highlighted in the SR’s 2021 report about pushback, under international law, States are considered responsible for border governance on their territory. But also over any area, place, individuals, or operations over which they exercise effective control or authority.  States also have to guarantee the respect of human rights on their territory,  within their jurisdiction or effective control, regardless of migration status. 

There are core principles of international law guiding migration governance, especially at borders. Among other significant human rights, the prohibition of collective expulsion and the principle of non-refoulement are specially concerned. 

• The prohibition of collective expulsion is a principle of general international law. It concerns more precisely the prohibition for States to expel aliens as a group. Each case of expulsion shall be examined and decided individually.  

• Principle of non-refoulement

It is the prohibition of “all forms of removal and transfer of any individual, regardless of their status, when there are substantial grounds for believing that the individual would be at risk of irreparable harm,[...] in the place to which they are to be transferred or removed, or of further transfer to a third State where there would be a real risk of such violations.” 

“Irreparable harm” has been interpreted to apply to a wide range of risks. 

Bilateral or multilateral agreements between States to return migrants to a safe third country were also addressed by the Special Rapporteur. Indeed, the transfer of a migrant to a third State could be subject to risks of human rights violations as mentioned above. These transfers are also at risk of not respecting the need for individualised assessment of the migrant situation and his needs for protection.

• Why are legalisation and normalisation of pushback practices  a problem ? 

Every migrant crossing at the border requires an individualised assessment of their situation and their human rights protection needs. The Special Rapporteur reiterated that States have a huge impact on the loss of life at international borders as they are increasingly relying on militarisation, extraterritorial border control and deterrence trying to restrain migration. 

Accordingly, pushback practices are not in line with the above requirements, which are enshrined in the principles of non-refoulement and prohibition of collective expulsions but also the right to life, the right to seek asylum, freedom of movement and the principle of non discrimination. 

The Special Rapporteur addressed some country-specific situations outlining his concerns.

In the 2021 report, the SR mentions that thousands died trying to cross the Mediterranean Sea and the Atlantic Ocean. Hundreds more people were also reported missing while trying to cross land borders, such as the one between Poland and Belarus, Türkiye and Greece or Mexico and the United States of America. 

Lithuania’s ministry of the Interior gave permission to the border guard to deny entry and push back all migrants arriving from Belarus. 8,000 pushbacks were reportedly executed. 

The United States of America was also denounced for the arbitrary and collective expulsion of more than 1.6 million of migrants on the ground of the pandemic health emergency. 

More than 32,000 migrants were returned to Libya where they are at high risk of human rights violations.

• Recommendations and guidance by the Special Rapporteur:

The report highlighted a clear lack of political will to adopt concrete changes. The progress made to enforce the respect of human rights at borders is mostly led by the regional and national courts.

The Special Rapporteur acknowledged some positive actions. At the regional level, the report mentioned the Shazad v. Hungary case which defended the prohibition of collective expulsion. At the national scale, the report noted a decision of the administrative court of Munich delivered in May 2021 denouncing the agreement between Germany and Greece to return asylum seekers to Greece, failing to assess the risk of refoulement.

He additionally outlined Frontex (the European Border and Coast Guard Agency) first reforms to enhance more transparency in their operations. 

The Special Rapporteur urged all States to put an end to pushback measures, their legalisation and to uphold the core principles guiding migration governance.  He insisted that migrants should not be criminalised, punished or discriminated against simply for migrating. 

He encouraged the States to develop effective independent monitoring mechanisms, life saving and search services for migrants in distress on land and at sea. He qualified the latter as being essential in border governance. Finally, he insisted on not imposing any penalties on search and life saving humanitarian actions undertaken by civil society organisations and other private actors. 

Interactive Dialogue

The Special Rapporteur started with the presentation of his report. He insisted again on the alarming number of migrants’ preventable deaths due to dehumanising practices at international borders. 

He thanked Poland and Belarus for accepting a visit to each country’s border. Then, the President opened the floor to the States concerned as well as to the UN agencies and NGOs.

Mexico on behalf of a group of countries

The representative of Mexico supported the Special Rapporteur's words, and recalled that raising fences, criminalising, and promoting hate speeches is not a solution to prevent migrants from crossing borders. It only contributes to violating the basic human rights of these individuals. She drew attention to the continuing lack of systematic national health and recovery plan guarantees for migrant workers.  

The European Union:

The representative of the EU praised member-states for their response to the wave of Ukrainian refugees after the Russian aggression. He recalled that the EU is a place of asylum for every migrant, without any kind of discrimination. The EU assured that while careful review of the report’s recommendations on border management are underway, ongoing discussion at the European commission on the new pact on migration and asylum is simultaneously taking place. 

Côte d'Ivoire on behalf of the African group:

The delegate shared the concerns of the Special Rapporteur on the new trends in migration policy globally, increasing the  vulnerability of migrants. She further pressed that refoulement remains the general policy for migrants at borders. Covid-19  pandemic exacerbated these trends, so she particularly welcomed the recommendations to tackle non-refoulement practices. 

Lithuania on behalf of Latvia and Poland : 

The Lithuanian representative recognised the essential need for a human rights based approach regarding protection for   migrants. She highlighted the high number of Ukrainian people hosted by neighbouring countries, particularly those in vulnerable situations. The Belarussian authorities were then accused of being responsible for violations at the borders of its neighbours, highlighting that Belarus is using migrants as a geopolitical tool against the EU. 

European Countries: 

The Swiss delegation stressed the important role of civil society, journalists, and human rights defenders and asked the Special Rapporteur what could be done to strengthen their role in monitoring borders. 

The French representative recalled that their legislation is aligned with the EU common policy.  France takes part in the 2021-25 EU action plan against migrantsmuggling, aiming to enhance cooperation with countries of origin and transit in preventing trafficking. The delegate reiterated the country’s commitment to implement EU standards regarding migration policy. He emphasised that migrants’ security is an absolute priority for France, highlighting that authorities saved more than 8000 lives in 2021. The country is adamant on guaranteeing the means by which civil society and national institutions play a key role in human rights protection. 

Spain’s delegate also voiced the essential role of EU migration policy. Like France, he stressed the importance of working closely with countries of origin and transit, specifically African and Maghreb countries. The representative then recalled the judgement by the European Court of Human Rights in 2020 which rejected the complaint of two migrants who had been pushed back by Spanish border guards at the Ceuta and Melilla border. The court stated that Spain had not violated the prohibition of collective expulsion. This judgement overturned the previous position of the court on this same case condemning Spain's immediate expulsion of these two migrants. The country’s delegate mentioned this case in a try to legitimise the practice of pushbacks. 

In a response to Lithuanian accusations toward Belarus, the Belarus representative charged Lithuania and Poland of widely carrying out forced pushbacks. She supported this accusation by mentioning the existence of documentation proving harsh treatments at borders and public insults of migrants by some Lithuanian politicians.

The United Kingdom, on its part, “respectfully disagreed” with the sections mentioning the country in the report.

The Special Rapporteur criticised an agreement made in 2020 between the UK, Northern Ireland and France to increase interception of boats and returns at sea. The report also condemned the 2021 Nationality and Borders Bill which, if passed without amendments, would have a negative impact on migrants and asylum seekers arriving in the country. The bill is said to not respect international law standards. The delegate denied these allegations by recalling the good practices they’ve implemented toward migrants. He recalled the visas accorded to Ukrainian migrants as well as to other nationalities, and the country’s commitment to pursue this policy in the future. 

Greece aligned itself with the EU statement. The representative stressed that the international community should not forget the country’s ongoing position at the frontline of migrants' arrival. She drew attention to the extensive cooperation with different stakeholders, including civil society organisations and the work done by Greek authorities toward saving and hosting migrants.

As a neighbouring country, the Hungarian delegate highlighted that the country received Ukrainian refugees with full capacity. She noted with appreciation the positive points exposed in the report concerning this issue. However, Hungary criticised the report for being mostly centred geographically on europe. She finally reiterated Hungary's position regarding migrant’s status at borders : there is a clear difference between the individuals who flee war and the individuals who migrate due to economic reasons. Through this statement the delegate attempted to justify the differential treatment of such migrants at borders. 

The Russian representative shared the concerns expressed in the report about human rights violations in eastern European countries such as Lithuania, Poland and others. However, he regretted that the report did not mention Russia’s efforts to help refugees from Donetsk and Luhansk and Ukrainian regions.

Türkiye’s delegate condemned EU border governance, and especially the actions of one of its neighbours: Greece. She condemned the dire conditions in which migrants are treated in Greece. The representative then recalled that the burden of migration should be shared among the international community, according to international law. 

MENA Region: 

The Libyan representative expressed his appreciation for the report. He assured States that Libya is committed to migrants’ human rights, whether they enter Libya legally or not. However, he emphasised the need for joint efforts and partnership in border management, as well as working toward encouraging sustainable development in the countries of origin.  

Morocco’s delegate reiterated the need for a multidimensional approach, through security and humanitarian management, especially in combating human trafficking. The representative recalled that the country organised a ministerial meeting of the “Global Compact for Migration Champions” in March 2022. This was an opportunity to strengthen the countries’ coordination to implement concrete measures following the compact’s principles.

The Americas:

The Venezuelan representative condemned the criminalisation of migrants, hate speech and xenophobia. He further denounced the politicised agenda of some countries benefiting from the unilateral measures imposed on Venezuela, worsening the economic crises the country is facing which is an integral part of the migration crisis. 

Colombia’s representative acknowledged the report’s recognition of his country’s efforts to regularise Venezualan migrants as a positive step. He recalled that the country hosts more than 1.3 million Venezualan migrants. 

The USA’s delegate reiterated the country’s commitment to safe, orderly and regular migration. She insisted on the importance of countries cooperating and sharing responsibilities, as well as addressing the root causes of mass migration such as conflict, economic hardship and human rights violations.

Asia:

The Indian delegate also joined the call for prioritising the solving of mass migration’s root causes. The country aligns its vision with the global compact multidimensional approach.

China’s representative expressed his concerns about migrants’ conditions in the USA and in EU countries like the Netherlands and Germany. 

UN Agencies: 

UN Women and UNICEF each voiced their concerns concerning their respective interest group, women and children. They both emphasised that a special attention should be given to fighting gender-based violence at borders as well as prioritising children's best interest in every circumstance.  

NGOs: 

Every NGO speaker recalled the negative impact of measures denounced by the report on migrants, especially pushbacks. They asked the States and international organisations for more political will to commit to international law standards regarding migration and border governance. Some also highlighted the need to simplify access to procedures regulating migrants’ status. NGOs confirmed the harsh conditions faced on the ground by migrants due to increasingly violent measures, notably forced removal and collective expulsion. These prevent migrants from having  an effective assessment of their need for protection. Finally, a speaker regretted that the report didn’t focus enough on racial discrimination at borders. 

Concluding remarks by the Special Rapporteur : 

The Special Rapporteur insisted that migration is a global problem and so it requires a multilateral response. Yet, the opposite phenomenon has been noticed by the Special Rapporteur. He pointed out that countries receiving migrants that are not ‘traditional’ destinations for migration, have also started to adopt these pushback policies. 

He further regretted that many states believe they act in accordance with international law in their management, while they are not in fact compliant. In this regard, pushbacks should be a priority in the Human Rights Council’s discussions, as well as the implementation of the Global Compact for a Safe, Orderly and regular Migration. 

Finally, he reminded the Council that: “the role civil society plays is irreplaceable”, from monitoring practices at borders, to saving lives at land and at sea. Therefore, he is calling for the States to enhance the protection of civil society, increase borders’ monitoring and accountability. The Special Rapporteur urged States to investigate in-depth direct and indirect complicity by state agents or paramilitary organisations in border governance violations.

GICJ Position

Geneva International Centre for Justice (GICJ) calls on all States to abide by the principles laid down in the Global Compact for Safe, Orderly and regular Migration, adopted by the vote of 152 member-states at the General Assembly in 2018. Border governance necessities should not excuse heartless treatments of individuals crossing international borders and thereby exercising their basic freedom of movement and mobility.

GICJ shares the Special Rapporteur’s conclusions that the ongoing normalisation of pushback measures around the globe is an alarming trend. Therefore, we support the SR’s request to prioritise pushback issues in the HRC.

GICJ wants to remind the international community that every person crossing a border has the right to have an effective assessment of their needs, whether they have fled conflicts, dire economic conditions, climate related disaster or any other reason. The principles protecting migrants’ human rights are meant to apply to everyone, without distinction related to the country of origin, status, gender or religion. GICJ urges all States to abide by  international legal standards, and respect the principle of non-refoulement and prohibition of collective expulsion. Human beings are humans everywhere. 

 HRC50, Migrants, Human Rights violations, pushbacks, collective expulsion, principle of non-refoulement, Justice, Geneva,  geneva4justice, GICJ, Geneva International Centre For Justice.

[1] HRC50's report of the SR's on Human Rights of Migrants: "Human rights violations at international borders: trends, prevention and accountability."

[2] Report on "Means to address the human rights impact of pushbacks of migrants on land and at sea.”