Stronger human rights monitoring at Europe’s borders – why NHRIs are part of the solution

27 May 2020 | Download as PDF

The creation of “new” systems to monitor human rights at Europe’s borders is currently the subject of much discussion. However, while Europe needs more transparent, accountable and human rights-compliant governance at its borders, the answer is not to create new mechanisms, but to strengthen existing ones. National Human Rights Institutions (NHRIs), alongside other human rights defenders, are already playing a crucial role in independently monitoring Europe’s borders, and their work should be reinforced.

Human rights violations continue to be reported at Europe’s borders. Ahead of the EU’s new Pact on Asylum and Migration, some states have called for mandatory border procedures to be included, raising human rights concerns among NHRIs and other actors. Also, while the European Border and Coast Guard (Frontex) will likely reinforce its human rights supervision staff and internal mechanism for addressing serious violations, many have pointed out the lack of transparency and accountability of these procedures.

This makes the need for independent monitoring at borders ever more pressing. However, the solution is not to establish new monitoring mechanisms, but to strengthen existing ones.

NHRIs, along with other human rights defenders, already provide independent oversight of what is happening at the borders, either through a permanent presence on the ground or ad-hoc visits. They provide credible and comprehensive reporting on human rights violations and systemic problems, helping authorities make informed decisions about their border governance. Their findings also shed light on violations or systemic problems that need to be further investigated, addressed or prevented.

As state-mandated bodies acting independently from government with expertise in human rights monitoring, NHRIs are well-placed to conduct this work. Their prominent role in preventing pushbacks at borders has been acknowledged by the Council of Europe Committee of Ministers, while the European Court of Human Rights often relies on their findings when assessing specific situations. They must be a part of the solution for stronger human rights monitoring at Europe’s border.

Why are NHRIs part of the answer?

They have a strong legal basis and are independent

NHRIs are established under a state’s constitution or domestic law to promote and protect human rights, giving them solid legal ground to monitor and report on human rights at borders. They are also periodically accredited in line with international standards (under the UN Paris Principles), providing evidence of their independence, plurality and effectiveness.

They cooperate with other human rights defenders

When working at borders, NHRIs cooperate closely with civil society and grassroot organisations, as well as with other independent bodies, such as National Preventive Mechanisms (under the Optional Protocol to the UN Convention Against Torture) and Ombuds institutions (where they are not the same body). They also support other human rights defenders and assist in bringing their concerns to the government and parliament.

They are part of a broader human rights accountability system

NHRIs use their findings from border monitoring to bring about positive change. For example, NHRIs provide recommendations to government and parliament, including on relevant draft laws. In some cases, they can submit complaints to constitutional courts or receive and handle complaints from individuals. Some conduct human rights training, including for border authorities. Also, NHRIs that fully comply with the UN Paris Principles can report to UN treaty bodies on states’ human rights compliance. They act as human rights experts and are ideally placed to assist government and national authorities in respecting international human rights law and standards.

Some have other mandates under national and international law

All NHRIs have a broad mandate to promote and protect human rights. Sometimes, they are also designated as the National Preventive Mechanism, which allows them to make unannounced visits to any place where people are deprived of their liberty, including at borders. Others act as Ombuds institutions, meaning that they receive, investigate and handle individual complaints from the public. They can also initiative investigations on their own initiative.

They have strong networks at national and regional levels

In fulfilling their mandate, NHRIs work closely with many partners at the national level, including NGOs and other human rights defenders. At the European level, NHRIs work together through ENNHRI, bringing a strong, unified voice to regional actors, such as the EU and Council of Europe. Alongside ENNHRI, other networks, such as sub-regional and mandate-specific networks, help strengthening independent institutions like NHRIs and build solidarity at the European level.

Looking ahead: No need to reinvent the wheel

The possibility of an increased focus of EU asylum policy on border procedures makes the need for independent monitoring at borders ever more pressing. Discussions on “new monitoring mechanisms”, which came about for instance in the evaluation of Croatia’s accession to the Schengen area, should focus on strengthening and reinforcing the work of existing monitoring actors, including NHRIs. When proposing and discussing policy and legislative changes on migration, European countries and the EU must follow these three principles.

1. Strengthen existing bodies, including NHRIs

Governments must work constructively with NHRIs and respect their mandates, and the EU should speak up if governments act in reprisal against or do not cooperate with them. This is in line with the national and international standards that governments must respect. Governments and the EU should also ensure that human rights defenders are enabled and sufficiently resourced to do their work, in contrast to the restrictions and cases of criminalisation seen in many European countries. Closer cooperation between NHRIs and EU actors, like Frontex, can also enhance transparency and allow for stronger external oversight of EU missions at borders.

2. Follow up on NHRI recommendations

The reluctance of many governments to rely on the evidence put forward by human rights defenders, including NHRIs, must be tackled. The recommendations made by NHRIs, based on findings from their border monitoring, can help to ensure that border governance follows human rights law and prevent future human rights violations. Consistent and credible information about human rights violations, reported by NHRIs and other actors, must be addressed.

3. Listen to the voice of NHRIs at the EU

The EU should further recognise NHRIs and their work on migration, as they can provide credible and up-to-date information on the situation at borders and on governments’ respect for EU law. The European Council has already acknowledged NHRIs’ “crucial role in the protection and promotion of fundamental rights and in ensuring compliance with the Charter [of Fundamental  Rights]”. The European Commission, Parliament and Council should cooperate more strongly with ENNHRI to fully capture NHRIs’ expertise in migration, and proactively call on Member States to work constructively with NHRIs and follow up on their recommendations.

There is no need to reinvent the wheel. A range of bodies, including NHRIs, are already conducting independent and effective monitoring at borders on a regular basis. Working together, they provide a credible and comprehensive picture of what happens at borders and inform current discussions on asylum and migration policies in Europe. A stronger recognition and reinforcement of these actors will be beneficial for all.

Download the statement in PDF

ENNHRI is the European Network of National Human Rights Institutions. We bring together over 40 National Human Rights Institutions (NHRIs) across Europe to enhance the promotion and protection of human rights in the region. Our network provides a platform for collaboration and solidarity in addressing human rights challenges and a common voice for NHRIs at the European level.

ENNHRI’s work in relation to migrants’ rights at borders is supported in part by a grant from the Foundation Open Society Institute in cooperation with the OSIFE of the Open Society Foundations

Photo credit: Flickr/European Parliament