23 June 2021: The UN was presented with a report to address the human rights impact of push backs of migrants on land and at sea.
The report, which was compiled by Special Rapporteur on the human rights of migrants, Felipe González Morales, was first published 12 May 2021 and provides an account of the activities of the Special Rapporteur during the reporting period, as well as presenting options on how to address the human rights implications of pushbacks.
Lack of definition
The Special Rapporteur’s report notes the lack of an internationally agreed definition on “pushbacks” in the context of migration, so for the purposes of his report defines “pushbacks as:
“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.”
Pushbacks, “deny migrants their fundamental rights by depriving them of access to protection defined in international and national law, as well as procedural safeguards,” yet the practice is widespread. On the same day the Rapporteur’s report was presented, Amnesty released a separate report which found pushbacks and violence against refugees had become the de facto border policy in Greece.
Throughout the coronavirus we have also seen Rohingya refugees pushed back from Malaysia, Bosnian refugees denied passage into Italy, and countless other examples of the practice being manifested.
Under international law, States are responsible for border governance on their territory; pushbacks fly in clear contravention of their responsibilities to asylum seekers.
While the report falls short of calling for a set definition of pushbacks, it does recommend that states:
- Implement and fully respect international and regional human rights obligations and uphold the rule of law in the implementation of migration policies;
- Ratify the core international human rights instruments and continue efforts to ensure a human rights-based, age- and child-sensitive and gender-responsive implementation of the Global Compact for Safe, Orderly and Regular Migration and the global compact on refugees;
Safeguarding human rights at international borders
The report emphasises that “regardless of how they have travelled”, migrants should have access to their human rights and that under international law “everyone has the right to seek and enjoy in other countries asylum free from persecution.”
However, the Rapporteur concludes that:
Pushbacks are also sometimes carried out as a form of punishment and supposed deterrence, denying migrants the protections due in law to retaliate for crossing irregularly, or for attempting to cross an international border. Such practices exacerbate the vulnerabilities of migrants and are deeply traumatizing. Crossing an international border in an unauthorized manner should not constitute a crime, and it does not deprive migrants of their human rights entitlements, including due process guarantees.
Pushback policies and practices
To highlight the extent of the issue, the report details specific cases of pushbacks, obtained through a public consultation and observed throughout the reporting period.
Numerous submissions raised concern over Greece’s border governance at both its land and sea borders with Turkey. The report noted that increased militarisation at the border “effectively resulted in preventing entry and in the summary and collective expulsion of tens of thousands of migrants and asylum seekers.”
In 2020, thousands of migrants were expelled collectively from Libya. These pushbacks often involved “dangerous transport through the desert in unsafe vehicles, and has included nationals of third countries in conditions that create risks of chain refoulement.”
The report also highlights situations in Poland, Mexico, Guatemala, Cyprus, Algeria and Croatia. This led to the conclusion that:
“the practice of pushbacks is widespread, and in many contexts it has become a routine element of border governance, with a serious negative impact on the human rights of migrants.”
As well as this: “Thousands of migrants tragically die every year while trying to cross international land and sea borders; the use of force by border authorities during interception and summary returns has a major impact on migrants’ health and safety in transit.”
The corresponding recommendation states:
Ensure that the use of force and firearms by border authorities is strictly regulated in accordance with international standards, and that any allegation of misuse is promptly investigated and appropriately sanctioned;
On 23 June 2021 the 6th Meeting of the 47th Regular Session of the Human Rights Council saw a number of delegations, including the EU and Malta, denying any claims of pushbacks in their statements on the report:
“The European Union is fully committed to respecting its obligation under international law and the human rights of all migrants. Allegations of mistreatment are taken very seriously and are properly investigated by the relevant authorities.
The EU delegation went on to criticise the findings:
“We regret that notwithstanding its focus in Europe, the report fails to acknowledge the extraordinary efforts made by our governments…We also take issue with some imprecise and or incorrect statements contained in the report”
“Our ultimate aim, remains to ensure protection of the human rights of migrants, addressing root causes, avoiding loss of life, and providing international protection to all those who need it.”
Malta delegation:
“We regret that the latest SR report fails to take into account the difficulties faced by water, and does not acknowledge our efforts to continue to save lives of those at sea. Malta continues to uphold its obligations under international human rights law, and our operations remain consistent with these obligations.”
“The Maltese authorities did not ignore any cases of vessels in distress…and we have given detailed accounts on specific cases on other occasions. We therefore object to allegations of pushback practices as contained in the report.”
Promising practices and measures
Despite the widespread use of pushbacks and their adverse impacts on the rights of migrants, the report does highlight the fact that “Many States have domestic legislation codifying the principle of non-refoulement” and that “some have given it constitutional protection”
Promising practices include access to asylum at border checkpoints, use of electronic registration and referral to process applications without delay, unlimited access to UNHCR and NGOs to monitor border areas, training police and migration authorities and investing in communicating messages to counter stigma.
This led to the following recommendations:
- Ensure that private actors who carry out search and rescue operations to aid migrants in distress are not criminalized or penalized for doing so; and ensure that administrative or criminal measures are not applied to deter or immobilize search and rescue capacities and humanitarian assistance at borders;
- Protect and assist all migrants at international borders without discrimination; to this end, address bias in law enforcement and adopt and implement standard operating procedures that provide operational guidance on human rights compliant border governance;
- Acknowledge the role of civil society organizations and human rights defenders in addressing and monitoring instances of pushback and provide support to them, including to women’s organizations and women human rights defenders working with migrants, and ensure they do not face legal and practical obstacles in carrying out their work;
- Ensure due process guarantees for all migrants under the State’s jurisdiction or effective control regardless of their status, by ensuring access to an individual examination, and to effective remedy and appeal before a judicial authority; provide access to gender-responsive legal and interpretation services; and suspend removal while an appeal is pending;