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Ensuring respect for the human rights of migrants at borders: the role of national human rights institutions

Statement by Birgit Van Hout

Regional Representative for Europe

UN Human Rights Office 

2 June 2021

 

Thank you very much for the invitation. Strengthening national human rights protection mechanisms is at the heart of the mandate of the UN Human Rights Office. I am therefore very pleased to support you in your important role to advance respect for the rights and dignity of migrants at borders.  

Today’s meeting is very timely as discussions on migration governance are taking place within EU member States and at the level of the European Union.

For several years, international human rights mechanisms and the UN have been calling on the EU and its member States to strengthen human rights safeguards and accountability in migration governance.[1]

The reality is that we have serious concerns, such as the denial of entry of rescue boats in European ports, violent pushbacks at the borders, immigration detention, even of children, the externalization of borders, the criminalization of solidarity, the lack of systematic access to information, health and justice, and the overall negative narrative on migration.

A holistic approach

While all these challenges are distinct, they are also interlinked. Therefore, the first point I would like to make is that NHRIs should adopt a holistic approach that addresses the various denials of rights – at the borders and beyond – simultaneously. A holistic approach does not only look at rights violations, but also where rights can be improved. I am thinking here about the specific protection needs of migrants in vulnerable situations, on which we have published a set of principles and guidelines[2]. I am also thinking about the need to support host communities, to foster social cohesion, to empower migrants and refugees and remove barriers so that they may become full members of our societies.

A human rights-based approach to migration governance

Secondly, NHRIs should articulate clearly what human rights compliant migration governance looks like. While NHRIs do not adopt laws or adopt policies, they can influence legislative and policy-making processes. As such, you can call on decision-makers to adopt a human rights-based approach to migration governance that is premised on the principles of transparency, participation, non-discrimination and accountability. The human rights-based approach does not only capture principles from the international human rights treaties; experience also shows that, when applied, laws and policies are better quality, more effective and enjoy more legitimacy – this is the case not only in the area of migration, but in all areas. Our office has issued a publication Recommended Principles and Guidelines on Human Rights at International Borders[3], which can support NHRIs in advancing a human rights-based approach in very concrete terms.

The whole-of-society approach

The Global Compact for Safe, Orderly and Regular Migration is grounded in a whole-of-society” approach. It encourages broad, multi-stakeholder partnerships to focus on migration in all its dimensions. Also here, NHRIs can build bridges by convening all stakeholders and create platforms for dialogue that include parliamentarians, the private sector, civil society, academia, trade unions, and last, but not least, the diaspora and migrants themselves.

Last year, we advocated together with ENNHRI for inclusive multistakeholder partnerships at the first European Regional Review of the Global Compact for Migration.

Such platforms should reach beyond the national level and ensure that also local authorities and host communities are heard, which is often not the case. Good coordination between the different levels of government will enhance complementarity and maximize the effectiveness of the various initiatives. It can also mobilize new resources.

NHRIs and EU migration policy

In September last year, the European Commission presented its proposal for an EU Pact on Migration and Asylum, which is currently being discussed by EU member States. We welcome the proposal for independent human rights monitoring in the screening regulation and hope that it will be preserved and broadened, because most human rights violations do not occur during the screening process necessarily.

Earlier this year, together with UNHCR, we sought the advice of international experts on lessons we could draw from existing monitoring mechanisms. We were pleased to count also on ENNHRI to share its experience.

The outcome document of this consultation, which we shared with the European Commission, is available on our website[4], but to summarize the recommendations in a few sentences, the experts underscored the importance of the effective independence of the national monitoring mechanisms to be created and the need for effective cooperation and information-sharing with existing monitoring bodies, like NHRIs, the CPT, the treaty bodies, UN Special Rapporteurs, the SRSG of the Council of Europe for Migration and Refugees, the Fundamental Rights Officer of Frontex, and civil society. It is indeed vital that the new national monitoring mechanisms complement existing capacity rather than cause fragmentation and duplication. We welcome in this regard that, according to the Commission’s proposal, Member States may invite relevant national, international and non-governmental organizations and bodies to participate in the monitoring.

Last week, the UN Human Rights Office published a report on search and rescue and the protection of migrants in the central Mediterranean Sea.[5] The UN High Commissioner for Human Rights Michelle Bachelet urged EU Member States to show solidarity to ensure that frontline countries are not left to shoulder a disproportionate responsibility. In the report, we also recommended that national human rights institutions, and other relevant independent investigative and monitoring bodies be allowed to visit all locations, including search and rescue vessels, disembarkation points and places of detention, to interview migrants.

Under the Optional Protocol to the UN Convention against Torture, some national human rights institutions act as National Preventive Mechanisms. This is unique in many ways: it is the only exclusively preventive international human rights treaty and the first instrument entrusting national bodies – namely national preventive mechanisms – with a role in the implementation of an international human rights treaty.

The role of national human rights institution in monitoring the rights of migrants is crucial; however, we encourage NHRIs to go beyond monitoring.

NHRIs should be able to effectively investigate all allegations of human rights violations, based on complaints or out of their own initiative.

Their expertise should also be leveraged to ensure that that national laws, policies, and practices, as well as bilateral, regional and international cooperation agreements and arrangements do not have a detrimental effect on the human rights of migrants.

NHRIs can also undertake awareness-raising activities, such as campaigns or human rights education to counter harmful narratives on migration, by focusing on what we have in common and the future we share, rather than what makes us different.

Our office has produced a Toolbox on migration narrative change[6] to support workshops and initiatives around positive narratives. We have piloted some social media clips ourselves using this toolbox, in Polish, French and Spanish. The Polish NHRI facilitated our cooperation with a grass roots organization in Poland, which created a wonderful video for the campaign. NHRIs are also well placed to train law enforcement, border guards and other authorities on their human rights obligations towards migrants and refugees.

I understand that all this may sound like a daunting task, and would like to add that, under the Paris Principles, States must provide NHRIs with sufficient resources to carry out their mandate.

Another requirement of the Paris Principles is the cooperation of NHRIs with international human rights bodies. Indeed, reports from NHRIs are precious sources of information for assessments by the Treaty Bodies, the Special Procedures and the Universal Periodic Review of the UN Human Rights Council. It is no coincidence that the UN Human Rights Council and the General Assembly regularly emphasize the importance of NHRIs and we would advocate for a similar privileged relationship of the EU with NHRIs.

The EU Action Plan on Human Rights and Democracy can serve as an example. It commits the EU to supporting NHRIs outside the EU that comply with the UN Paris Principles. I would like to encourage EU to stand up for NHRIs within the EU with no less commitment.

Likewise, all EU agencies working on migration -- FRONTEX, EASO, FRA, EU-Lisa, EUROPOL – should be called upon to foster interaction with NHRIs. To give only one example, information from NHRIs could be very useful in informing Frontex due diligence policy mandated under Article 46 of EU Regulation 2019/1896, commonly referred to as the ‘Frontex regulation’.

Conclusion

Finally, I would like to close by saying that monitoring is not goal in itself, but a means to an end. Both NHRIs, as well as national monitoring mechanisms to be established under the proposed EU Pact, should play a key role in installing a human rights culture in border management entities as well as in national and local authorities more broadly so that human rights are not perceived as an obstacle to border governance, but as living values that serve the common interest. Thank you.

 

[1] Report of the Special Rapporteur on the human rights of migrants, François Crépeau Banking on mobility over a generation: follow-up to the regional study on the management of the external borders of the European Union and its impact on the human rights of migrants A/HRC/29/36; In Search of Dignity: Report on the human rights of migrants at Europe's borders, 2018; Report of mission to Austria focusing on the human rights of migrants, particularly in the context of return, 2018;  Report of mission to Italy on racial discrimination,  with a focus on incitement to racial hatred and discrimination, 2019; OHCHR/GMG, Principles and Guidelines on the human rights protection of migrants in vulnerable situations (2018), Principle 17; OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders (2014).

[2] https://www.ohchr.org/Documents/Issues/Migration/PrinciplesAndGuidelines.pdf

[3] https://www.ohchr.org/Documents/Issues/Migration/OHCHR_Recommended_Principles_Guidelines.pdf

[4] https://europe.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=2596&LangID=E

[5] https://www.ohchr.org/Documents/Issues/Migration/OHCHR-thematic-report-SAR-protection-at-sea.pdf

[6] https://www.standup4humanrights.org/migration/pdf/UN-Introduction.pdf