Practices and policies, often referred as “push back” applied to stop refugees and asylum seekers before arriving at the country’s borders or after crossing the borders, violate international human rights law and constitute a violation of international humanitarian law. Push back actions may take place in the territorial borders, territorial waters as well as the high seas of the countries. Refugees and asylum seekers are tried to be forcibly returned without distinction through such practices and policies ignoring human rights. Moreover, refugees and asylum seekers may even face life-threatening treatments such as the sinking of their boats and intervention with firearms. Although states have discretion on ensuring border security, they should use this discretion by not violating human rights, not resorting to violence and disproportionate use of force, and not violating the procedural guarantees of the non-refoulement principle. As stated by the United Nations Special Rapporteur on the Human Rights of Migrants, “Every year thousands of migrants tragically die 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.”
States have an obligation to respect, protect and fulfill the human rights of everyone, including refugees and asylum seekers, in their own countries or anywhere under their jurisdiction or effective control. Human rights law requires human rights to be at the center of all phases of migration management. In this regard, it should be emphasized that regardless of the form and the scale of migration movement, treatment of the states towards migrants in territorial or international waters as well as the territorial borders, should also comply with human rights law. As stated by the UN Special Rapporteur on the Human Rights of Migrants, “states must ensure that border governance measures respect, inter alia, the prohibition of collective expulsions, the principle of equality and non-discrimination, the principle of non-refoulement, the right to seek asylum, the right to life, the prohibition of torture, the promotion of gender equality, and the rights and best interests of the child.”
During the border control operations at the sea, concerning the refugees and asylum seekers trying to enter the country, both human rights and the provisions of the UN Convention Relating to the Status of Refugees and the principles of international law of the sea should be respected. Activities on the high seas are regulated by the UN Convention on the Law of the Sea as well as the Safety of Life at Sea (SOLAS) and Search and Rescue (SAR) Conventions. These documents impose a duty to assist and rescue people in distress at sea. A ship’s master is under an obligation to deliver those rescued at sea to a "safe place".
It is pledged in the UN Convention Relating to the Status of Refugees dated 1951, known as the Geneva Convention that “Considering the exercise of the right of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international cooperation, it is desirable that the states, by recognizing the social and humanitarian aspects of the refugee problem, do their best to prevent this problem from becoming a cause of tension between states”
Created under the UN High Commissioner for Refugees (UNHCR) Dialogue on Protection at Sea in 2014, “Global Initiative on Protection at Sea” lays out the key elements of the intervention of states with the goal of reducing the exploitation, abuse and violence, as well as the loss of lives suffered by people travelling irregularly by sea and supporting protection-sensitive responses to irregular mixed influx from the sea. According to UNHCR, these objectives extends beyond search and rescue systems, to early identification of those needing international protection, humane treatment and prevention of refoulement, as well as access to fair and efficient asylum procedures.
Dunja Mijatović, Council of Europe Commissioner for Human Rights expresses that human rights violations against refugees, asylum seekers and migrants within the borders of member states have increased. She emphasizes that practices called as push back constitute a breach of the Convention Relating to the Status of Refugees and the European Convention on Human Rights (ECHR). Mijatović pointed out that push backs are generally carried out in order to ’protect the European borders’; she states that Europe’s lack of solidarity needs to be overcome when hosting refugees, asylum seekers and migrants, and that while the lack of solidarity is not a valid excuse for human rights violations, it is a strong incentive for push back. For this reason, it is stated that European states should undertake joint responsibility in order to overcome this serious human rights crisis.
The European Parliament, in a briefing published in March 2021, pointed out that the European Union (EU) countries have focused on strict border control in recent years and that migration management has been externalized through cooperation with third countries, and that push back actions erode the values set out in the EU Conventions and that these actions may violate the principles of international and European human rights law and humanitarian law. Parliament has called on member States and EU agencies to respect fundamental rights in their actions to protect the EU’s external borders.
Push back actions against migrants at sea, may lead to violation of especially the right to life, which is guaranteed in the 6th article of the UN Convention on Civil and Political Rights (ICCPR) and the 2nd article of the ECHR; the prohibition of torture and ill-treatment stipulated in Article 7 of the ICCPR and Article 3 of the ECHR, the prohibition of collective deportation guaranteed in Article 4 of Protocol No. 4 to the ECHR, and also the prohibition of discrimination. Both Conventions apply to anyone who is "within the jurisdiction" of a state party. The ECtHR has accepted in several cases (Xhavara and Others v. Italy and Albania; Medvedyev and Others v. France) that persons controlled by a state on the high seas may fall within the jurisdiction of that state.
In the A.S., D.I., O.I. and G.D v. Italy decision dated 27 January 2021 UN Human Rights Committee found that Italy was responsible for not responding in time to the emergency calls made after the sinking of the ship carrying two hundred migrants, sixty of whom were children, and for the failure to send a ship. In the relevant decision, the Committee decided that Article 6 of the ICCPR, which guarantees the right to life, had been violated together with Article 2/3 of the ICCPR.
Push back actions can also be evaluated within the scope of the prohibition of torture and ill-treatment, which is guaranteed in the ICCPR and Article 3 of the ECHR and has the nature of jus cogens. In his report dated 12 May 2021, UN Special Rapporteur on the Human Rights of Migrants reiterated his concerns that some push backs violating the international norms and standards, involve the use of force as well. He also pointed out that some treatments were designed to subject migrants to torture and other cruel or degrading treatment. Undoubtedly, interventions for sinking of the ships carrying the migrants are an attack on human dignity it leads to actions that can be considered within the scope of the prohibition of torture and ill-treatment as well as right to life.
The prohibition of torture and ill-treatment includes the obligation of states not to commit acts of torture and ill-treatment against refugees, asylum seekers and migrants, as well as the obligation for states to provide the guarantees required by the principle of non-refoulement. Also, in the case of M.S.S v. Belgium and Greece dated 2011, ECHR underlined the obligation to comply with procedural guarantees under the principle of non-refoulement. The Court held that the Belgian authorities knew or should have known that the applicant would be subjected to inhuman and degrading treatment if he was sent to Greece and therefore concluded that Belgium had violated Article 3 of the Convention.
In the report on their visit to Greece in 2020, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment and Punishment (CPT) reiterated Its recommendation that the authorities take action to prevent any push back by law enforcement and military personnel at the border of the Meriç River. CPT stated that all foreign nationals who have arrived at or are in the country and are seeking international protection should be effectively protected against the risk of refoulement, including chain refoulement. CPT also emphasized the need to ensure that these persons had access to an especially effective asylum procedure. To this end, the CPT noted that clear instructions should be given to the police and border guards to individually identify and register irregular migrants entering the territory of the country and to be placed in a position where they can effectively enjoy legal remedies against their forced return.
In this context, Human Rights and Equality Institution of Turkey, whose main mission is to protect and promote human rights, prevent discrimination and guarantee individual’s right to equal treatment and effectively fight against torture and ill-treatment, closely monitors the news in the media regarding push-back practices that violate human rights of asylum seekers.
Respectfully announced to the public.