In this second article we continue our analysis of Belarus' international responsibilities for the migration crisis on EU's eastern borders. We will look at other key principles of international law, namely those of sovereignty and non-intervention, and then consider the rules relating to the smuggling of migrants and some bilateral treaties between White Russia and neighbouring countries.
Sovereignty and non-intervention
The principle of sovereignty is an all-encompassing principle centred on three fundamental rights - territorial sovereignty, independence of state powers, equality of states on the international level - but it is also reflected in some more specific norms, including those of the principle of non-intervention. The latter would be a sort of corollary of the principle of sovereignty, the most authoritative expressions of which appear in Resolution 2625 of the United Nations General Assembly and in the 1986 judgment of the International Court of Justice in the case of Nicaragua v. United States. In that judgment it is specified that the principle of non-intervention applies only in inter-state relations in the presence of two elements: the object of the intervention and the use of methods of coercion. The first coincides with matters on which each state can decide autonomously by virtue of the principle of sovereignty; the second, although it represents the distinctive element of the principle, has no universally recognised definition in international law, except for clearly coercive contexts in which the use of force is used.
In our case, it seems clear that Belarus has infringed on the sovereignty of the other three states involved; in particular, Minsk has allegedly violated their territorial integrity, in light of the material damage caused at the border with the EU - as highlighted in the first article - and their independence in the exercise of state powers. Indeed, although a state is obliged to receive people within its borders, such as asylum seekers, this obligation does not require it to open its doors in an uncontrolled and indiscriminate manner. In this sense, Belarus' efforts to facilitate the illegal entry of migrants into the EU openly interfere with the governmental function of its neighbours to regulate access to their territories.
Moreover, since the violent actions attributable to Belarus on the Polish border constitute a use of force, they undoubtedly represent methods of coercion. Therefore, White Russia is also in violation of the principle of non-intervention against Poland.
Human trafficking and illegal introduction of migrants
One of the most significant responsibilities attributable to Belarus refers to the "instrumentalisation of migrants" for political purposes. On this basis, the Council of the EU imposed a number of restrictive measures against all persons and entities that facilitated the illegal crossing of borders by migrants, promoting smuggling or trafficking of human beings to the territories of the Union. The indictment involved members of the judicial branch and senior Belarusian political officials, as well as propaganda bodies and companies, totalling 183 persons and 26 entities sanctioned.
As far as international law is concerned, Belarus is a signatory to a number of conventions which impose on it a number of legal obligations, including some fundamental ones relating to the treatment of refugees. As a signatory to the Convention on Refugees (1951) and its Protocols (1967), Belarus may not expel or return migrants from its territory except for reasons of national security and after a procedure prescribed by law (Art. 32). Given the legitimacy of the presence of migrants on Belarusian territory, the Lukašenko regime has used unconventional methods, instructing the security forces to expel refugees who were in the country. Belarus has also acceded to the United Nations Convention against Transnational Organised Crime (2000), including the Additional Protocols, including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Despite his adherence, the Belarusian leader appears to be in serious breach of the very principles laid down in Article 2 of the aforementioned Protocol. The events that took place within Belarusian territory, in fact, would constitute a real trade in persons, that is, the transfer of individuals through the use of fraud, deception and abuse of power for the purpose of exploitation, as expressed in Article 3 of the Protocol. Emblematic are the various cases of extortion testified by migrants, who are asked for large sums of money to be released and repatriated and, in case of non-payment, are forced to enter Poland.
Among the international responsibilities of Belarus, we cannot exclude the country's bilateral agreements with its neighbours.
In particular, in the 1990s White Russia concluded treaties on "good neighbourliness" and cooperation with Lithuania and Poland. Article 1 of both agreements commits the signatory states to observe principles of international law already analysed in these two articles in a spirit of mutual respect and cooperation. These last two generic terms represent a kind of overall objective, an interpretative key to apply the measures of the treaties. In this sense, it is difficult to reconcile the encouragement and material support by the Belarusian authorities for the illegal entry of migrants into Poland and Lithuania with the purpose of the bilateral agreements. Moreover, it is particularly clear that Minsk is in breach of these treaties with regard to Articles 24(2) and 21 of the agreement with Poland and Lithuania respectively, which require the countries to cooperate in combating illegal immigration.
Although such a treaty does not exist between Belarus and Latvia, in 1993 the two countries signed an agreement to regulate the passage from one country's territory to the other's through border checkpoints. As required by Article 6, all exceptions must be authorised in advance. Therefore, since the Belarusian forces not only did not seek any permission from Latvia, but instead facilitated the uncontrolled entry of migrants into the country, White Russia is also violating this agreement.
Let us imagine representing Belarus's violations against each of its neighbours as a pyramid. The base of this pyramid is represented by the most easily transgressed principle, that of sovereignty, which Minsk has broken for all three states involved in the crisis. The next level of the pyramid, on the other hand, is the narrower principle of non-intervention, which requires the presence of a particular element: coercion. Only the pyramid in relation to Poland reaches this level, and indeed exceeds it. In fact, advancing further one reaches the step of the use of force, which Belarusian agents resorted to against the Polish state. Finally, as the top of the edifice there would be an actual armed attack, however, as noted in the previous article, the Polish pyramid does not reach it either.
In addition to these violations, there are those relating to the illegal transfer of migrants and Belarus' bilateral agreements with its three neighbours.
In the next and final article on this topic we will conclude our analysis in the vast realm of human rights.
Translated by Sara Prunecchi