This is the second article in our two-part series examining whether Belarus is acting in breach of its international obligations in relation to the migrant crisis unfolding at its border with the European Union (EU). In the first part, we argued that Belarus is violating Article 2(4) of the U.N. Charter, the principle of non-intervention and the sovereignty of Latvia, Lithuania, and Poland. In this second part, we turn our attention to the bilateral agreements that Belarus has concluded with these three EU countries, as well as the pertinent human rights agreements to which Belarus is a party.
Breach of Bilateral Agreements with Latvia, Lithuania, and Poland?
Over the last three decades, Belarus has entered into a series of agreements with Latvia, Lithuania, and Poland on good neighborliness, cooperation and various frontier arrangements. The actions of the Belarusian authorities discussed in our first article – which involve facilitating, encouraging, and actively supporting groups of migrants in their attempts to enter EU territory without authorization, including by resort to violent means – are not compatible with the commitments undertaken in these agreements.
In Article 1 of the Agreement between Poland and Belarus on Good Neighbourliness and Friendly Cooperation, signed on June 23, 1992, the two parties commit themselves to shaping their relationship as friendly States in a “spirit of mutual respect, good-neighborliness and partnership,” guided amongst other things by the principles of the non-use of force, inviolability of borders, territorial integrity, and non-interference in internal affairs. To the extent that the actions of Belarus involve the use of force against Poland and intervene in its internal affairs, they contravene not only the U.N. Charter and the principles set out in the Friendly Relations Declaration, as we have shown, but Article 1 of the Polish-Belarusian Agreement of 1992 too.
This leads to the question whether Belarus’ actions also violate its commitment to respect the territorial integrity of Poland and the inviolability of its borders.
There is a close link between the notion of territorial integrity and the inviolability of borders. By definition, the annexation by one State of parts of another State’s territory infringes not only its territorial integrity, but also violates its borders. However, even though the two concepts are interdependent, they are distinct. For example, the temporary occupation of another State’s territory encroaches upon its territorial integrity, but it does not entail a revision of its borders. This raises the question whether the principle of the inviolability of borders protects borders only from forcible change or whether it also prohibits their forcible crossing. The latter is more likely. This is so, first, because the principle of territorial integrity does not merely safeguard sovereign territory from annexation or other seizure, but also prohibits “forcible trespassing” or otherwise depriving the territorial sovereign of control over its territory. If territorial integrity thus in effect means territorial inviolability, it would be strange if the inviolability of borders did not preclude forcible trespassing too. Second, this reading is reinforced by the Helsinki Final Act, invoked in Article 3 of the Polish-Belarusian Agreement of 1992. The Helsinki Final Act addresses the non-use of force, inviolability of borders, and territorial integrity in succession (Articles 2 to 4). This and the language used in the Act was meant to signal that the inviolability of borders was principally a facet of the non-use of force (as confirmed by the Latvian Constitutional Court) and primarily, though not exclusively, aimed at protecting sovereign territory from seizure, usurpation or demands to this effect. Whereas the principle of the inviolability of borders is thus primarily concerned with safeguarding the physical integrity of sovereign territory, the principle must also preclude the forcible crossing of borders if such forcible trespass is contrary to the principle of territorial integrity.
In any event, this reading of the inviolability principle should be preferred in the context of the Polish-Belarusian Agreement. As the International Court of Justice held in the Oil Platforms case (Preliminary Objections, paras 27–28 and 52), generic references made in a treaty to “friendship” and similar concepts do not necessarily give rise to concrete legal obligations, but instead fix an objective against which the other provisions of the treaty should be interpreted. In the present case, the Polish-Belarusian Agreement calls for friendly relations between the two countries in a spirit of good neighborliness. Whatever else these objectives require, they clearly cannot be reconciled with, for example, the Belarusian authorities’ destruction of border infrastructure, facilitation of unauthorized entry, and acts of violence against Polish border guards, whether or not these acts also infringe upon Poland’s territorial integrity.
Moreover, Article 24(2) of the Polish-Belarusian Agreement imposes an obligation on the parties to cooperate in the fight against “illegal immigration.” Though not defined, the notion of “illegal immigration” surely includes situations where persons who are not nationals of the other party or ordinarily resident in its territory are crossing the border in ways that does not comply with the conditions imposed for lawful entry. Thus, by facilitating and supporting an activity it has agreed to repress, that is the unlawful crossing of its border with Poland, Belarus is violating the Polish-Belarusian Agreement.
Similar concerns arise under the Treaty between Lithuania and Belarus on Good-Neighbourliness and Cooperation, signed on Feb. 6, 1995. Like the agreement with Poland, the Lithuanian-Belarusian Treaty calls for respect for the principle of the non-use of force, inviolability of borders, and non-interference in each other’s internal affairs (Article 1). It also commits the two parties to cooperate in order to combat illegal migration (Article 21). For the reasons mentioned earlier, the acts of the Belarusian authorities are not compatible with these obligations either. In addition, unlike the agreement with Poland, the Lithuanian-Belarusian Treaty also requires the parties to “take all the necessary measures to suppress activities in its territory of organizations, groups or individuals directed against the sovereignty, territorial integrity or State security and defence capacity of the other High Contracting Party.” Since facilitating and supporting the unlawful entry of persons into Lithuania is an act directed against its sovereignty, Belarus once more is carrying out activities that it has agreed to suppress.
Belarus has not entered into an international agreement of good neighborliness and friendship with Latvia, although the two countries have adopted a declaration on the subject on Dec. 16, 1991. However, Latvia and Belarus have entered into an Agreement on Border Control Posts, signed on Aug. 18, 1993. The Agreement makes arrangements for the establishment and operation of border control posts and provides, in Article 6, that passage across State frontiers other than through the regular border control posts “shall be authorized in special cases.” In the absence of seeking and receiving such an authorization from Latvia, the activities of the Belarusian authorities in facilitating and supporting persons attempting to cross its border with Latvia other than at regular control posts is in violation of the Agreement.
Expulsion from Belarusian Territory to EU Member States?
Belarus is a party to several human rights agreements that are relevant in the present context. These include the Convention Relating to the Status of Refugees (1951) and its Protocol (1967). Since it is safe to assume that at least some of the migrants at the heart of this crisis are refugees, it is pertinent to ask whether Belarus is complying with its obligations under these instruments.
Article 1(A)2 of the Refugee Convention, as amended by its 1967 Protocol, sets out the definition of a Convention refugee. The first two requirements –being outside the country of origin and being unable or unwilling to avail oneself of the protection of that country – are typically self-evident (Wood in Costello, Foster and McAdam 2021, p 628). The third and fourth requirements – that the individual has “a well-founded fear of being persecuted” on at least one of five Convention grounds – necessitate an individual assessment to be made in accordance with a domestic procedure. However, just because a person has not yet been through a domestic status determination process to confirm their refugee status does not prevent their categorization as a Convention refugee. Given that the majority of the migrants at the EU-Belarus border are known to have come from Iraq, it is reasonable to assume that at least some of them meet the Convention definition, with prima facie grounds for lodging a successful claim for asylum in accordance with relevant domestic procedures.
This fact does not seem to have escaped the attention of the Belarusian authorities. In an interview aired by CNN on Oct. 2, 2021, Belarusian President Alexander Lukashenko repeatedly described the migrants at the border as “refugees” and suggested that the Belarusian authorities have asked them to remain, at least temporarily, in Belarus for humanitarian reasons: “please come back to Belarus before winter strikes. Stay a while in Belarus,” he said. In the same interview, President Lukashenko denied reports that the Belarusian authorities are forcing migrants across the border into Latvia, Lithuania, and Poland. However, testimonies from migrants and video recordings strongly suggest otherwise.
Pursuant to Article 32(1) of the Refugee Convention, a State party may not expel a “refugee lawfully in their territory save on grounds of national security or public order.” Moreover, under Article 32(2), an expulsion may take place “only in pursuance of a decision reached in accordance with due process of law,” meaning a decision of an administrative or judicial authority and not, for example, a police officer or other service personnel.
Since the migrants at the border are present on Belarusian territory lawfully, having entered mostly on tourist visas, and given that some of them must be presumed to benefit from refugee status, Article 32 of the Refugee Convention is engaged. This means that measures of expulsion adopted and executed by Belarusian service personnel against those currently at the borders are most likely in contravention of this provision.
In addition, it should be recalled that Belarus is a State party to the International Covenant on Civil and Political Rights (ICCPR) (1966), Article 13 of which declares, “An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law.” As confirmed by the Human Rights Committee in its General Comment No. 15 (para. 10), the purpose of Article 13 is to prevent arbitrary expulsions. Since the provision entitles each person to have their case considered individually, “laws or decisions providing for collective or mass expulsions” do not comply with that provision. The collective expulsion of migrants from Belarus therefore most likely falls foul of Article 13 of the ICCPR too.
By contrast, it is worth underlining that the prohibition of non-refoulement in Article 33 of the Refugee Convention is not engaged where the Belarusian authorities are expelling migrants to the EU. This is so because EU member States are generally taken to be “safe” countries for the purpose of asylum.
Finally, Recital 5 of the Preamble to the Refugee Convention should be noted. There, the signatories express their “wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States.” The meaning of this provision extends beyond simply stating the importance of burden-sharing, which forms the subject matter of Recital 4 of the Preamble. Rather, it implies that the instrumentalization of refugees for political purposes, as the government of Belarus has been accused of doing, is diametrically opposed to the object and purpose of the Refugee Convention.
Torture and/or Ill-Treatment at the Border?
In addition to the ICCPR, Belarus is a party to the Convention against Torture (UNCAT) (1985) and the Convention on the Rights of the Child (UNCRC) (1989).
Some reports suggest that migrants have suffered beatings and other abuse at the hands of Belarusian government agents. Other reports and video recordings appear to show Belarusian forces firing shots, most likely blanks, in the vicinity of distressed migrants. Depending on the facts, these acts could amount to torture or to cruel, inhuman or degrading treatment or punishment (“ill-treatment”), as prohibited by UNCAT, Article 7 of the ICCPR, and Article 37(a) of the UNCRC in respect to children. Whether the acts in question amount to torture depends on whether they meet the threshold requirements established in Article 1 of the UNCAT. These are severe pain or suffering, whether physical or mental, that is inflicted intentionally and for a defined purpose, such as intimidation or coercion, “at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Prima facie, it is not unlikely that this threshold is met.
However, should the actions of Belarusian personnel fall short of the threshold of torture, those actions may still constitute ill-treatment under Article 16(1) of UNCAT. Injuries do not need to meet the requirement of “severe pain and suffering” to constitute ill-treatment (Keremedchiev, para. 9.3), and such ill-treatment “does not require proof of impermissible purposes” (CAT General Comment No. 2, para. 10). Moreover, acts of omission may count. A failure of State authorities to intervene to prevent abuse may constitute consent or acquiescence to such acts within the meaning of Article 16 of the UNCAT (Osmani, para. 10.5), depending on the underlying facts.
As of Nov. 18, at least 13 people have reportedly died at the Belarus-Poland border. Some of these deaths are the result of exposure to the elements, including that of a 14-year-old child; in other cases, such as the death on Nov. 18 of a one-year-old child, the cause of death is not yet known. The joint statement on the migrant crisis issued on Nov. 11, 2021, by Estonia, France, and Ireland jointly with Norway, the United Kingdom, the United States, and Albania, points to “the dire situation of the migrants” and the need “to provide and facilitate adequate protection and care.”
The grim circumstances at the border most likely engage the positive obligations of Belarus under the applicable human rights agreements. Thus, Article 6(1) of the ICCPR recognizes the inherent right to life, while Article 6(1) of the UNCRC does so specifically for children. As spelt out by Human Rights Committee General Comment No. 36, State parties to the ICCPR must not only respect the right to life and refrain from the arbitrary deprivation of life, but also ensure the right to life and take appropriate measures to address conditions posing a direct threat to it, including by ensuring access to essential goods and services, such as water, food, shelter, and healthcare.
The Belarusian authorities now appear to be moving at least some of the migrants away from the border, giving them shelter elsewhere. This is welcome news, but whether their actions are timely and sufficient in the light of Belarus’ obligations under international human rights law remains an open question.
Suppressing Human Trafficking and Smuggling of Migrants
Belarus is also a party to the United Nations Convention against Transnational Organized Crime (2000), including its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and its Protocol against the Smuggling of Migrants by Land, Sea and Air. Both of these Protocols require Belarus to take a series of steps to criminalize and suppress the trafficking in persons and smuggling of migrants, including by cooperating with other State parties.
While the government in Minsk has been accused of State-sponsored trafficking, the legal definition of human trafficking under the first Protocol is relatively narrow, as it requires trafficking to be undertaken for the purposes of exploitation. It is not inconceivable that some migrants at the EU-Belarus border may find themselves in this situation, but this is likely to be the exception, rather than the norm.
By contrast, it is far more likely that large numbers of migrants find themselves subject to “smuggling” within the meaning of the second Protocol. Belarus not only has a duty under this instrument to criminalize the smuggling of migrants, but also to take a range of other related measures, such as steps to prevent means of transport operated by commercial carriers from being used in the commission of this offence (Article 11(2)). There are strong reasons to believe that Belarus has not only failed to comply with these obligations, but that the Belarusian authorities have been involved directly in the prohibited activities.
Belarus is not a member of the Council of Europe nor a party to the European Convention on Human Rights (1950). However, it has acceded to several other Council of Europe agreements as a non-member State, including the Convention on Action against Trafficking in Human Beings (2005). Similar considerations apply in relation to this Convention as to the U.N. Human Trafficking Protocol.
In this two-part series, our aim was to assess whether Belarus’ conduct in connection with the migrant crisis is in breach of its international obligations. We found that this is indeed the case. Despite denials and some uncertainty surrounding the exact facts, sufficient information is available in the public domain to conclude that the Belarusian authorities are almost certainly acting in contravention of a weighty set of international rules and instruments, including the U.N. Charter, particular bilateral agreements with Latvia, Lithuania, and Poland, as well as several human rights agreements.
These conclusions are important. As we have noted in our first article, and as others have also pointed out, the crisis at the EU-Belarusian border may be part of a broader geopolitical confrontation, but it is at the same time also a profound humanitarian crisis. Reviewing the involvement of the Belarusian authorities in this crisis from the perspective of the relevant rules and instruments of international law underlines, first, that Belarus is bound by its legal obligations to alleviate the human suffering and must not add to it further. Indeed, given that the Belarusian authorities have actively contributed to the present situation, primary responsibility for resolving it lies with them. This is not to suggest, of course, that Latvia, Lithuania and Poland are not bound by legal obligations of their own in responding to the crisis. In fact, these obligations provide Belarus with substantial strategic leverage. Second, this set of conclusions also underscores that the government in Minsk is legally bound not to exploit human desperation and stoke international tensions as a means to pursue its foreign policy goals and exert pressure on the EU and its member States. The actions of the Minsk government may be unconventional, but nonetheless of a type that the law anticipates and clearly proscribes.