25 Nov 2021

Walling off Responsibility?

The Pushbacks at the EU’s External Borders with Belarus

Sergio Carrera

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This paper examines the EU and international responses to the situation on the EU’s external borders between Poland, Lithuania and Latvia with Belarus. It studies the scope and human rights impacts of current EU and national discourses framing the controversy as a ‘hybrid war’ and the set of restrictive national measures implemented on the EU-Belarusian frontier since July 2021. The Paper argues that border fencing and containment policies do not ‘wall off’ or exempt EU Member States from their own responsibility and liability for illegal pushbacks – summary expulsions without individual circumstances assessments, access to asylum procedures and due process or effective remedies -– of third country nationals.

Pushbacks run contrary to the universal value of human dignity and the rule of law, and national policies putting them into effect must be read as examples of rule of law backsliding. They violate non-derogable or absolute human rights, including the non-refoulement principle and the prohibition against collective expulsions, and are incompatible with EU Schengen, asylum and returns law, as well as recent judgements by the European Court of Human Rights and the Court of Justice of the EU. Border fences are disproportionate by design and act as magnifying glasses of rule of law and human rights violations inherent to these malpractices.

The paper calls on EU Member States and the European institutions not to play by the same illiberal rulebook and pursue the same inhumane tactics as those practiced by the Belarusian regime. It recommends that the existing EU Schengen acquis is not amended to reflect the wrongdoings documented at the EU border with Belarus. European institutions and agencies, and all EU Member States involved should faithfully and effectively implement existing international and EU legal standards. They must unequivocally live up to their rule of law and human rights commitments as these are preconditions to the overall legitimacy of their own policies and the fundamental foundations and working principles of European integration.

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