CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ MIGRATION FROM BELARUS TO LITHUANIA, POLAND, LATVIA IN 2021–2022 … they could not be said to have entered the territory of the State concerned and to come within its jurisdiction. The findings regarding the issue of jurisdiction in Hirsi Jamaa and Others and Khlaifia and Others could not be transposed to the instant case since the international law of the sea, which had played a key role in those cases, was not applicable in the present case.” 76 Therefore, in this question we see differing opinions of ECtHR and different states and the tension between the obligations according to asylum law on one hand and the protection of state security in more general sense and the protection of state borders according to Schengen code of EU. It is not an easy dilemma to solve. We can imagine the situation at hand if all persons were allowed to cross the borders of the state claiming asylum, whether it was grounded or not, at any section of the border whatsoever, which would create unceasing flow of migrants through that border, where at least their asylum applications (if all of them lodged the applications) would be considered for prolonged periods. Also the question of providing for these persons basic needs would be very difficult, an enormous strain on the receiving country’s resources. A question is if it does not create an unlimited right to migrate to any country by claiming asylum. The protection of travelling persons’ rights would also come into question as they may become victims of human trafficking. Furthermore, it needs to be stated that the jurisdiction aspect applies to Lithuanian actions only partially, as not all the migrants that were “pushed back” entered the territory of Lithuania, some of the migrants were dissuaded by mere presence of the border guards on the other side of the border, and now (October 2022) they are discouraged from entering Lithuania by the help of physical barrier to the border. Thus, the question of jurisdiction applies only to the cases where the migrants actually enter Lithuania and are escorted back to the territory of Belarus. The question of the protection of human rights in a broader context is illustrated by the statement of member of Parliament of Lithuania: “The policy of pushback protects human rights in a way. We cut off a lot of things, profit for people smugglers, opportunity for Lukashenko to profit. But at the same time, we stopped many cases when people, risking the fate of themselves, their loved ones, and their children, no longer flee here. By stopping illegal migration, we stop human rights violations, we stop the possible victims and tragic fates of those people. The open-door policy is an invitation to illegal migration, carrying children, walking through forests in winter. In this sense, by supporting the reversal, I am a defender of human rights.” 77 The policy of Lithuania had taken into account the needs of vulnerable persons. The state border guard service had admitted 260 people for humanitarian reasons. This, according to member of Parliament of Lithuania, proved that the mechanism for the protection of vulnerable persons was working successfully. Coming back to the question of tension between migration rights and state security, it can be stated the state sovereignty implies that the state may protect its borders. Is there a difference if the border is not accessible due to physical barrier or due to the presence of state border guards? Furthermore, are the country obligations fulfilled if they accept the asylum applications at the border crossing points (as in case of Lithuania) and do not allow to enter the territory in non-designated areas? Therefore, there are many questions that arise 76 Ibid ., para. 97. 77 Vytenis Miškinis, ‘Lietuvai – griežtos tarptautinės rekomendacijos dėl migrantų: atstūmimo turi nebelikti’ www. delfi.lt (28 December 2021) accessed 24 October 2022.

95