Countering Instrumentalised Migration: The case for Border Closure Through a Derogation under the ECHR

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As examined in Felix Peerbom’s recent post, the phenomenon of instrumentalised migration has made its unwanted return to the European Union’s (EU) external borders. Instrumentalised migration refers to cross-border population movements that have been deliberately created or manipulated in order to induce political, military and/or economic concessions from a target state or states (Greenhill 2010 p. 13). In recent weeks, Finland and Estonia have received an increasing number of asylum seekers from Russia and adopted various border closure measures. This post adopts the point-of-view of a receiving state in a situation of instrumentalised migration. By considering the qualification of the actions of the sending state under international law and the human rights of asylum seekers under the European Convention of Human Rights (ECHR), the post examines the possibility of border closure as a response potentially available to the receiving state under these bodies of law.

Instrumentalised Migration and State Responsibility

The concept of instrumentalised migration recently appeared in Europe with the border crisis orchestrated by the Belarusian regime in 2021. Multiple states and EU officials described the Belarusian operation of inspiring, facilitating and pressuring migrants from the Middle East into the border area with Poland, Lithuania and Latvia as a form of “hybrid warfare” directed at the receiving states (for official reactions see here, here and here). Poland, Lithuania and Latvia all adopted various emergency measures at their respective borders (here, here and here).

The Belarusian acts in 2021 certainly qualified as violations of the receiving state’s sovereignty and prohibited intervention (see also here p. 31). Another question is whether the violence for example in connection with the migrants seeking to forcefully enter Poland (e.g. here p. 32) could qualify the situation as prohibited use of force under article 2(4) of the UN Charter. While the attribution link between the acts of the migrants and the sending state is difficult to establish (Nicaragua para 115), the threshold for use of force was reached on the basis of the actions of the Belarusian state agents alone (as argued here and here). Further, the sending and organizing of migrant groups by Belarus (p. 34) for incursion into Latvia, Lithuania and Poland could be approached similarly to the sending and organising of irregular forces or armed bands to another state, a violation of the prohibition on the use of force (Principle 1, see also Nicaragua para 228). Due to the risk posed to the receiving state’s ability to effectively control its borders and migration, the sheer number of migrants coupled with the apparent malicious acts by Belarus could arguably cross the threshold of intensity under article 2(4) UN Charter and be categorised as use of force.

However, despite the situation between Belarus and its neighbours being capable of reaching the threshold of prohibited use of force, it could not be described as an armed attack, and thus the receiving state’s right of self-defence was not applicable. This is because the gravity of the situation hardly went beyond “mere frontier incidents” reaching the most grave forms of the use of force required for an armed attack to exist (Nicaragua para 191 and 195, see here, here and here).

Border Closure under the ECHR

Many EU external border states have previously attempted to solve migration-related issues by conducting pushbacks at their borders or by preventing the entry of asylum seekers altogether. The European Court of Human Rights (ECtHR) has ruled in its case law that the principle of non-refoulement prohibiting the return of a migrant to a situation of torture or other inhuman treatment together with the prohibition of collective expulsion of aliens provides a comprehensive framework requiring states to offer effective and genuine means for asylum seekers to lawfully lodge their application already at the border (ND and NT v Spain para 186, MK and others v Poland para 129-132). The applications must be properly processed and the individual circumstances of the applicants examined before making a decision returning the person outside national borders (Shahzad v Hungary para 60, Čonka v Belgium para 59). A practice of not examining asylum applications has been condemned by the ECtHR as a violation of the prohibition of collective expulsion (AB and others v Poland para 54-55, MK and others v Poland para 208-209).  

The ECtHR has further held that the state receiving asylum seekers cannot deny access to its territory to persons who can credibly allege that they may be subjected to ill-treatment constituting prohibited refoulement, unless adequate measures are taken to eliminate such a risk (AB and others v Poland para 38-39, MK and others v Poland para 178-179). States located at the external Schengen border have a particular obligation to ensure that asylum seekers have a genuine access to asylum procedures (ND and NT v Spain para 209).  However, this does not entail permitting free entry into the country: if asylum seekers attempt to enter the territory forcefully en masse outside lawful border crossing points, their entry can be prevented (ND and NT v Spain, para 210, AA and others v Northern Macedonia para 123).

What Options does the Receiving State Have?

Multiple authors have concluded that the pushback and border closure measures taken in response to the situation with Belarus were or have since been disproportionate or without any valid legal basis in EU law or the ECHR (see here, here and here). In addition to these arguments, the European Hybrid Center for Excellence has published a study analysing the “hybrid attack” aspect of the Belarus crisis, reaching a similar result in that the human rights provisions in force would not permit a complete closure of the border, dubbed an “extreme denial strategy” in the study (pp. 41-43).

As an armed attack is excluded, the question of the receiving state’s right of self-defence does not arise despite the often-repeated term hybrid “attack” in this context (pp. 14-15). The unilateral response options available to the receiving state are thus limited to countermeasures. However, countermeasures cannot be directed at “fundamental” human rights obligations, such as the principle of refoulement (Article 50(1)(b) ARSIWA and ILC ARSIWA Commentary p. 85). Even if the prohibition of collective expulsion could theoretically be the target of countermeasures, the use of countermeasures would be ill-placed in such a situation: their function is to enforce state responsibility, which cannot happen by affecting the rights of individuals with no ties to the state.

Balancing the Situation Through Derogation

The lack of response options available to the receiving state is not desirable from any point-of-view. Many states are resorting to increasingly blunt methods trying to keep the incoming migrants out, and the apparent securitization of seeking asylum in Europe has led to an attitude shift (p. 43) also at the ECtHR with the creation of the “own culpable conduct” exception in ND and NT and its seeming expansion in subsequent cases. To safeguard the human rights of asylum seekers in practice, the receiving states need to feel that they have sufficient legal tools in their inventory to safeguard their legitimate security interests. Otherwise they are bound to bypass the ECHR and resort to the vocabulary of a “hybrid attack” to adopt such national measures as they deem fit (see e.g. here).

The use of the derogation option under article 15 ECHR would provide a working alternative. While many human rights under the ECHR can be restricted as a part of the normal balancing act between conflicting rights, derogation is an exceptional measure that completely prevents the operation of the provision in question. Certain provisions have been excluded from the scope of this measure, such as the prohibition of torture under article 3 ECHR, on which the prohibition of refoulement is based.

A derogation under article 15 ECHR is not to be used lightly. The material condition is the existence of a “time of war” or a “public emergency threatening the life of a nation.“ While a situation of instrumentalised migration could arguably cross the threshold of an armed conflict under international humanitarian law, it is submitted here that such a situation per se would not give rise to the notion of a “time of war” under article 15 ECHR. The more appropriate avenue for a derogation would be through a public emergency threatening the life of a nation. Such an emergency denotes an “exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed” (Lawless v Ireland No 3 law part para 28). The threat must be imminent and its effects must involve the whole nation so that the continuance of the organized life of the community is threatened. The crisis or danger should also be exceptional in that normal measures or restrictions must be plainly inadequate to deal with the situation (The Greek case para 113). The ECtHR has further ruled that local or regional events, such as the conflict in Northern Ireland could qualify as a public emergency under article 15 (Ireland v United Kingdom para 205, 212). The derogating state has a wide margin of appreciation when it comes to deciding whether a situation qualifies as a public emergency or not (A and others v United Kingdom para 173) and the requirement of imminence does not require that a State should wait for disaster to strike before taking measures to deal with it (A and others v United Kingdom para 177).

Sacrificing the Human Rights of Asylum Seekers?

Based on these criteria, a situation of instrumentalised migration could be qualified as a public emergency where the situation reaches the level of prohibited use of force. Where a hostile actor is deliberately sending large amounts of migrants and possibly coupling their presence with potential or concrete malicious acts by state agents, as was the case with the Belarusian operation 2021, the wide margin of appreciation afforded by the ECtHR under article 15 ECHR could certainly be used by the receiving state to opt for a derogation, especially as the existence of a threat is to be assessed based on information available at the time of derogation (para 177).

While the prohibition under article 3 ECHR is absolute and non-derogable, the prohibition of collective expulsion could be derogated from together with the right to asylum under article 18 of the EU Fundamental Rights Charter and its associated right of entry (pp. 64-66). Such a derogation would effectively permit the collective expulsion of asylum seekers at the border. However, this would not remove the obligation to allow the asylum seekers to enter to secure effective fulfilment of their rights under article 3 ECHR, where credible claims of ill-treatment could be made. If the receiving state would use such a derogation to effectively bar the ability to request asylum from those involved in instrumentalized migration, such measures would clearly contradict the ECtHR’s current case law on article 3.

However, an argument could be made that the standard set by the ECtHR differs from a derogation situation described above because the applicants in MK, AI, and AB and others v Poland had managed to present themselves inside the host state’s territory. Where the prohibition of collective expulsion has been derogated from, the receiving state would act lawfully in not admitting asylum seekers into its territory in the first place either through physical obstacles or pushback measures, thus making the violation of article 3 in essence indirect. In my opinion, such a solution could rarely be justified when trying to balance the extreme circumstances of instrumentalised migration rising to the level of use of force, as the derogation procedure under article 15 ECHR obliges the state to follow the higher threshold of application and to submit to the attached procedural and judicial safeguards. Attempts to bypass the ECHR altogether in these situations have led to decreasing human rights protection for asylum seekers, as can be seen with the current situation in Poland and Finland. Rather, the receiving states should be able to see the full scope of options available to them under the current legal provisions, as they are already utilising the language of an emergency without committing to the elevated political and legal thresholds associated with a full-blown derogation.  

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