Preface: OHCHR’s Recommended Principles and Guidelines on Human Rights at International Borders contains three recommended principles, all of which are derived from international human rights law and establish the obligation of States to protect, respect and fulfil human rights of all migrants at international borders;
A. The primacy of human rights: Human rights should be at the centre of all border governance measures.
B. Non-discrimination: Migrants should be protected against any form of discrimination at borders.
C. Assistance and protection from harm: States should consider the individual circumstances of all migrants at borders, and ensure effective protection and access to justice.
The Principles assert in particular that the best interests of the child shall be a primary consideration applicable to all children at international borders, regardless of their migration status or that of their parents.
The ten recommended guidelines aim to assist States in practical ways to address such issues as building human rights capacity at borders, ensuring human rights in rescue and interception, screening, avoiding detention, and enabling human rights-based return or removal. Each Guideline addresses the important issue of accountability, recommending that independent monitoring mechanisms are set up at borders and that all migrants be able to access effective remedies.
The guidelines provide a wealth of detail on the many, often complex, human rights issues implicated at international borders. For example, in relation to the promotion and protection of human rights, Guideline One calls on States and other actors as relevant to utilise information campaigns and the media to protect migrants and challenge xenophobia at borders. It notes that the term “illegal” should not be used to refer to migrants in an irregular situation. Guideline Two on the legal and policy framework asks States to ensure that the irregular entry of migrants is not considered a criminal offence and iv that acts of private individuals who rescue migrants in distress are not criminalised. It calls for appropriate sanctions for the excessive use of force, criminality and corruption at borders. In terms of building human rights capacity, Guideline Three calls for border authorities to be adequately trained, equipped and remunerated. States are asked to develop and adopt binding codes of conduct for border authorities.
Guideline Four calls for the inclusion of human rights standards and safeguards in rescue and interception measures, and recommends such practical measures as providing rescue beacons along dangerous migration routes, and compensating shipmasters who incur financial losses for rescuing migrants. The Guideline establishes the accountability of private transport companies that are involved in implementing entry restriction measures such as pre-departure screening. Guideline Five considers human rights requirements in the context of immediate assistance such as medical care, adequate food and water, blankets, clothing, sanitary items and opportunity to rest. It calls on States to ensure that all migrants receive necessary medical attention including mental health referrals where appropriate.
In the context of screening and interviewing, Guideline Six asserts that screening processes should uphold the right to privacy including in relation to searches and appropriate handling of property, and calls for rigorous safeguards in the collection of data at borders (particularly biometric data). All entry restrictions should be human-rights compliant, and there should be no compulsory testing for conditions such as HIV, tuberculosis and pregnancy as part of migration policy. The Guideline calls on States to pay particular attention to the situation of women (while also ensuring that border authorities do not presume women to be vulnerable or to lack agency), migrants with disabilities, LGBTI migrants and children in screening and interviewing processes.
Guideline Seven refers to identification and referral and encourages States to develop practical guidelines and standardized procedures in this regard, calling also for relevant service providers to be present at borders. The Guideline asserts v RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AT INTERNATIONAL BORDERS that children should be promptly identified and that anyone claiming to be a child should be treated as such and given access to proper age determination processes. Also, survivors of torture, violence and trauma should be referred to medical and psycho-social services, and any measures taken at borders should avoid re-traumatisation.
States are asked in Guideline Eight to amend legislation to establish a presumption against detention in law, and to legally prescribe human rightscompliant alternatives to detention. Where detention is found to be necessary, conditions in detention facilities where migrants are detained should be in line with international standards, and there should be independent monitoring and evaluation at such places, including by national preventive mechanisms. Where appropriate, migrants in detention should be enabled to make contact with their consular authorities as well as relevant human rights actors.
Guideline Nine states that returns or removals should not violate the principle of non-refoulement and/ or the prohibition of collective expulsion. It notes in particular that any consent given to voluntary return processes should be free of any coercion, such as the threats or the prospect of indefinite detention. Migrants should not be returned to situations of destitution or inhospitable conditions where their safety or human rights are threatened, such as through deportation to so-called “no-man’s land” between borders. In the case of forced returns, the Guideline calls on States to ensure that return procedures are not carried out at all costs, but are interrupted where the human rights of the migrant are compromised, and that migrants whose rights are violated during return processes can file complaints.
Finally, Guideline Ten on cooperation and coordination asks States to include explicit human rights guarantees in operational agreements and arrangements and to immediately suspend any cooperation arrangements, such as ship-rider agreements, joint patrols or datasharing agreements that are not in accordance with international human rights law and standards. It notes that States should cooperate across borders to promote human rightsbased, equitable, dignified, lawful and evidence-based migration and border governance measures.