A/80/302
lawfully conclude any agreement the foreseeable consequences of which would
undermine the right of migrants not to be subjected to torture and ill -treatment. 74
G.
Right to life
35. Externalization measures risk violating the right to life, which is protected in
article 6 (1) of the International Covenant on Civil and Political Rights. The
obligation to respect and ensure the right to life extends to reasonably foreseeable
threats and life-threatening situations that can result in loss of life. States may violate
the right to life even if such threats and situations do not result in loss of life.
Specifically, States are also required to respect and protect the lives of all individuals
on marine vessels and aircraft registered by them or flying their flag, as well as those
individuals who find themselves in a situation of distress at sea, in accordance with
their international obligations regarding rescue at sea. 75
36. Most frequently, arbitrary deprivation of life can arise as a result of excessive
use of force in the context of border control measures, including pushbacks, pullbacks
and interceptions. Leaving boats in distress, delayed search and rescue, pushbacks to
the high seas without water or food and expecting that another State will bring
assistance are tantamount to a life-threatening situation, violating the right to life. 76
Even when a situation does not result in loss of life, States can be in violation article
6 of the Covenant. There have also been cases of unlawful death in the third State
after transfer or return. 77
H.
Prohibition of enforced disappearance
37. The Special Rapporteur has already observed that the growing externalization
of migration governance is one of the reasons for the increase in the risk of being
subjected to enforced disappearance. Enforced disappearance constitutes multiple
human rights violations, including of the rights to life and security of the person, to
be protected from torture and ill-treatment, to receive information, to be recognized
as a person before the law and to an effective remedy. 78 Enforced disappearance is
prohibited in absolute terms under article 1 of the International Convention for the
Protection of All Persons from Enforced Disappearance. Under article 2 of the
Convention, enforced disappearance is considered to involve arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by
persons acting with the acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or whereabouts
of the disappeared person.
38. Pushback policies may lead to the disappearance of migrants owing to delayed
search and rescue, criminalization of other actors providing emergency rescue, failure
to register incoming migrants and removal of communication channels. 79
Specifically, when pushbacks involve the deprivation of liberty of migrants and the
concealment of their fate or whereabouts, they amount to enforced disappearance
regardless of the duration of the deprivation of liberty. 80 Deportations carried out
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75
76
77
78
79
80
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A/HRC/37/50, paras. 11 and 14.
Human Rights Committee, general comment No. 36 (2019), paras. 7, 13 and 63.
A/72/335, paras. 23, 25 and 33; and United Nations Support Mission in Libya and OHCHR,
“Detained and dehumanized”, 2016.
OHCHR, “Nowhere but back”, pp. 7–8.
A/HRC/59/49, para. 20.
A/HRC/59/49, paras. 6, 29, 32, 43–46 and 49.
Committee on Enforced Disappearances, general comment No. 1 (2023), paras. 35 –36.
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