A/80/302 adherence to procedural standards or under the law of the externalizing State, may in practice be substandard and unfair, and lack adequate procedural guarantees and remedies. 69 E. Prohibition of arbitrary detention 31. The implementation of externalization arrangements leads to multiple circumstances of deprivation of liberty that could amount to arbitrary detention. Detention can be imposed in third States to prevent migrants from transiting their territories, including on the basis of legal provisions criminalizing irregular stay, and during pullback measures, before and after readmission or expulsion and during offshore processing of asylum applications. 70 Arguably, such detention is often arbitrary, imposed automatically, without review and carried out in inadequate conditions. 32. Under the International Covenant on Civil and Political Rights, everyone has the right to liberty and no one can be subjected to arbitrary arrest or detention (art. 9 (1)). In order not to amount to arbitrary detention, any deprivation of liberty must be in accordance with the law, be necessary in the individual case and proportionate to a legitimate purpose. It must be imposed only as a measure of last resort, following consideration of less coercive alternatives, be based on an individual assessment of the need to detain and be subject to independent judicial review. 71 F. Prohibition of torture and ill-treatment 33. In the context of externalization arrangements, there have been multiple reported cases of torture and ill-treatment. This risk arises during pushbacks, pullbacks and other border control measures and during detention. Also, delayed disembarkation may amount to torture or ill-treatment. Likewise, after a pullback, interception or return, migrants may be at risk of torture or ill-treatment in the third State. 72 There are concerns that persons in vulnerable situations, such as women, children and lesbian, gay, bisexual and transgender persons, might face heightened risks of violence, exploitation, or discrimination during pushbacks. 73 34. Torture and ill-treatment are prohibited in absolute terms under, inter alia, the International Covenant on Civil and Political Rights (art. 7) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (arts. 2 and 16). In addition to having negative obligations to refrain from torture and ill-treatment, States also have positive obligations to take all effective measures to prevent acts of torture and ill-treatment, including by State officials and, in accordance with the due diligence obligation, by private actors or other States’ organs operating within their jurisdiction. Under the good faith principle, States cannot __________________ 69 70 71 72 73 25-12609 A/HRC/47/30, para. 67; communication ITA 3/2024 and the reply thereto; and communication USA 4/2019. A/HRC/37/50, para. 55; communications USA 14/2025 and SLV 1/2025; and communications MRT 1/2025 and ITA 3/2024 and the replies thereto. A/HRC/39/45, annex, para. 19. A/HRC/37/50, para. 53; communications OTH 129/2024 and TUN 6/2024 and the replies thereto; communication ALB 1/2024; and Office of the United Nations High Commissioner for Human Rights (OHCHR), “Nowhere but back: assisted return, reintegration and the human rights protection of migrants in Libya” (2022), pp. 7–8. Protecting Rights at Borders, “The pushback – disconnect: current and anticipated practice”, 2025, p. 6. 13/23