A/HRC/37/50 monitoring mechanisms, are inherently incapable of providing sufficient protection against such abuse. 4. Direct arrival prevention ("pushbacks" & border closures) 51. Direct arrival prevention measures are carried out directly by the destination State and can be of active ("pushbacks") or passive (border closures) nature. "Pushbacks" are proactive operations aiming to physically prevent migrants from reaching, entering or remaining within the territorial jurisdiction of the destination State through direct or indirect exercise of effective control over their movement.80 At sea, "pushbacks" essentially involve the interception of vessels carrying migrants inside or outside territorial waters, followed by immediate repatriation to their port of origin without, or with only summary, on-board screening for protection needs. On land, "pushbacks" are more likely to take place at or close to an international border, and usually involve the threat or use of force by border officials in order to prevent migrants from approaching or crossing the border, and to intimidate persons having successfully crossed the border before returning them to the country of departure. Here too, screening for protection needs will be summary or non-existent. 52. The same purpose, albeit through passive means, is pursued with border closures preventing unauthorized border crossing through physical obstacles such as fences, walls or trenches without reasonably accessible gates or passages. Border closures should be distinguished from operations or installations aiming to manage or guide arriving migrants to particular pathways, areas or border crossings and to ensure safe, orderly and regular processing without infringing their human rights. In practice, border closures are not an effective means of preventing arrivals, but tend to encourage smuggling, crime and police corruption, and to expose irregular migrants to extortion, violence, sexual abuse and trafficking. 53. International borders81 are not exclusion or exception zones for human rights obligations. In particular, under both refugee law82 and human rights law,83 the principle of non-refoulement applies at all times, even when States operate or hold individuals extraterritorially, including on the high seas. The principle prohibits rejections at the frontier, as well as other measures that would compel a person "to return to or remain in a territory where his life, physical integrity or liberty would be threatened".84 Given that "pushbacks" and border closures aim to exercise effective control over the physical movement of migrants, even if only through the direct prevention of such movement in a certain direction, the Special Rapporteur is of the view that such measures bring affected migrants within the jurisdiction of the operating State for the purposes of the prohibition of refoulement. 54. Both "pushbacks" and border closures amount to collective measures that are designed, or of a nature, to deprive migrants of their right to seek international protection and to have their case assessed in an individualized due process proceeding and, therefore, are incompatible with the prohibition of refoulement. In displaying complete indifference as to the grave risks which some of the affected migrants may be exposed to, "pushbacks" and border closures blatantly negate their human dignity in a manner which, in the view of the Special Rapporteur, is inherently degrading. 80 81 82 83 84 Oxfam, BCHR, MYLA, "A_Dangerous_'Game'", Briefing Paper (2017), p.4. "International borders" include all territorial and extraterritorial areas where States exercise border governance measures. See: OHCHR, Recommended_Principles_and_Guidelines_on_Human_Rights_at_International_Borders, p.4. UNHCR, "Advisory_Opinion_on_the_Extraterritorial_Application_of_NonRefoulement_Obligations"_(26.01.2007), §43; IACiHR, Haitian_Centre_for_Human_Rights_et_al._v._USA_(No.10.675, Report_51/96), OEA/Ser.L/V/II.95 Doc.7 rev. at 550(1997). §156. CCPR/C/21/Rev.1/Add.13(26.05.2004), §§10 and 12; A/70/303), §69. OAU Refugee Convention(1969), Art.II(3). See also: A/70/303, §42; CAT, GC_No.4_(2017)_Art.3, §4; A/RES/2312(XXII), 14.12.1967, Art.3; OAU Refugee Convention(1969), Art.II(3); Cartagena Declaration on Refugees, 22.11.1984, III(5); Mexico_Declaration_on_Refugees,16.11.2004, §7; CoE Resolution(67)14 on_Asylum_to_Persons_in_Danger_of_Persecution (29.06.1967,§2. 15

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents