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.
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