At the end of May, Alexander Lukashenko, the President of Belarus, announced that his government would no longer prevent migrants from illegally entering Lithuania through Belarus. Throughout July, evidence emerged that Belarus had even taken active measures to encourage the flow of migrants, such as using government vehicles to escort migrants over the border. From his first announcement, Lukashenko made clear that his actions relating to migrants served as a means of retaliation for the EU enacting sanctions that sought to punish Belarus for its treatment of journalists.
The situation raises important moral and political issues. Morally, Belarus is using human beings living under tough conditions as pawns against the EU. Politically, it adds further pressure to the West as it tries to reign in Belarus. However, it also brings forth an interesting question regarding international law. Generally, under international law, states are supposed to respect each other’s sovereignty. Actively encouraging migrants to illegally enter another state would seem to violate this principle. However, much of the discussion on sovereignty under international law has been more focused on when a nation invades another nation or assists a “secessionist group” within another state. Beyond that, as far as migrants are concerned, international law focuses on the protection of migrants at the border of a country. So, there is a lot left unanswered. This piece evaluates whether Belarus has violated any legal obligations with its policies on migrants, and what that means for international law.
The situation with Belarus
Belarus formally became a sovereign nation in 1990, amid the fall of the Soviet Union. Belarus held its first presidential election in 1994, which brought Lukashenko to power. In 2004, Lukashenko held a referendum to abolish term-limits to allow him to run for an unlimited number of terms. Many election observers and human rights activists believed Lukashenko rigged the election. Since then, Lukashenko has won re-election four times, with at least 80 percent of the vote, always under questionable circumstances on the legitimacy of the election. During his reign, Lukashenko has cracked down on other liberties, such as the freedom of the press, the right to protest and any other civil rights that could be used to hold him accountable. Lukashenko’s oppression of essential liberties has caused many observers to refer to him as “Europe’s last dictator.”
In August 2020, Lukashenko’s stranglehold on Belarus started to loosen after he claimed that he had won a sixth term, again with 80 percent of the vote. Due to years of economic stagnation and the worsening conditions of Covid-19, along with the powerful candidacy of human rights activist Svetlana Tikhanovskaya, people in Belarus started to oppose Lukashenko like never before. 200,000 citizens came out in protest over Lukashenko’s anti-democratic policies. The US and EU condemned Lukashenko’s actions over the election and later enacted sanctions against Belarus. As the pressure increased against Lukashenko, many pundits started to speculate that Lukashenko could soon be out of power.
Over the next few months, Lukashenko continued to oppress protests, and by December Belarusian authorities had arrested more than 30,000 protesters. Lukashenko’s next controversy came when his government seemingly tricked a Ryanair flight that was flying from Greece to Lithuania, to land in Belarus by falsely telling the pilot of the flight that there was a bomb threat. When the flight landed in Belarus, authorities arrested journalist Roman Protasevich and his girlfriend. Protasevich had been forced to exile to Lithuania because he reported stories critical of Lukashenko’s government. Since then, Belarus has continued to arrest more journalists. During this time, the EU and US have enacted more sanctions.
Where Lithuania comes in
As noted above, towards the end of May, Lukashenko announced that he would start sending migrants over the border to Lithuania. Lukashenko explained that he felt that Belarus had been preventing migrants from reaching Lithuania, and the EU as a whole, but after the EU’s treatment of Belarus, that Belarus no had a duty to stem migration to the EU. In early July, Lithuania had conclusive evidence that Belarus was sending migrants on flights to Lithuania. By the end of July, the migration situation became untenable, so Lithuania stepped up its border protection to stop the migrants from Belarus.
In response to Belarus’s tactics on migration, the EU first condemned Belarus and is now assisting Lithuania with securing its border.
An International Law Perspective
The situation between Belarus and Lithuania raises an interesting issue. Belarus is infringing on Lithuania’s sovereignty in some manner by forcing Lithuania to accept migrants that Lithuania cannot handle and without Lithuania’s permission. However, even though Belarus is committing problematic actions, that does not necessarily mean it has violated international law.
Looking at the general discussion on migration under international law, the area focuses more on the rights and protections of individual migrants. This is a logical turn for international law. After all, through important moments in history such as the Holocaust, the Syrian crisis and with the US-Mexico border, when migrants lack sufficient protection, the situation can seriously harm them or even cost them their lives. Nonetheless, the issue between Belarus and Lithuania proves to be unique from these other situations. Though many of the migrants that came through Belarus are from Iraq, which of course has seen its fair share of violence, these migrants are not fleeing Belarus for their lives. Instead, it is likely that these migrants would like access to the EU for a better life, and the Belarusian government is using them as pawns to apply pressure to the EU. So, although international law protects the health, safety and civil rights of these migrants no matter where they are, Belarus is still in the wrong for causing this migration.
An area of international law that potentially applies is Article 2(4) of the UN Charter, which says “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” A plain text reading of these lines would make it seem that Belarus has violated international law, since it made a “threat” to send migrants over to Lithuania, and Belarus is using Lithuania’s borders to provide greater pressure to the EU overall, so Belarus has acted against the “territorial integrity” of Lithuania. However, international legal scholars have historically interpreted Article 2(4) to cover instances regarding physical attacks or “threats” of physical attacks. Moreover, as noted above, “territorial integrity” itself more applies to when a nation faces an invasion, or an internal uprising assisted by an outside nation.
Despite, this general consensus, many scholars have started to re-evaluate whether “use of force” must be a physical attack. Many are looking beyond armed attacks to see if cyber-attacks would fall under Article 2(4). Though Belarus has not engaged in a cyber-attack, its tactic on migration has several similarities to the aims of a cyber-attack. In theory, a cyber-attack is unlikely to directly threaten anyone’s life, instead, it just serves to disrupt a nation through economic means, espionage or to prevent the creation of weapons. Prominent international law Professor Matthew Waxman has noted that “[a]n alternative view of Article 2(4) looks not at the instrument used but its purpose and general effect: that it prohibits coercion.” Under this interpretation, it is clear that Belarus would break the law since Belarus has been open that the migration flow is to retaliate against the EU over sanctions, likely with the hopes of either getting the sanctions lifted or at least deterring future ones.
Moreover, under international law, when a state faces a “use of force” they can respond with “necessary and proportionate” means. It appears Lithuania is doing that. Over the last few weeks, Lithuania has created a barrier on its border with Belarus to stem migration. When the barrier failed to stop migration, Lithuania deployed border guards to turns away migrants. These are all standard steps to prevent migration. Anything more than these actions likely could put Lithuania in legal jeopardy in terms of treatment of migrants and having a “necessary and proportionate” response to Belarus. As mentioned above, the EU has endorsed Lithuania’s actions on the matter. While the EU is not the sole arbiter of international law, there does not seem to be any state or other major international authority that believes Lithuania is violating international law by taking these measures.
Although Lithuania is on sound moral and political ground to protect its borders, the lack of a clear international legal standard of what Belarus’s actions on migrants constitutes as, reveals a blind spot for international law. As the people become more mobile, additional governments may try to follow the actions of Belarus, even if it threatens the well-being of the migrants that they send away. As a result, a firm resolution of this matter could save many migrant lives.
Todd Carney earned his JD from Harvard University in 2021. Originally from Chicago, IL, he earned his Bachelor of Arts in Public Communications in 2013, and worked in New York and DC in digital advertising prior to attending law school.
Suggested citation: Todd Carney, How Belarus’ Migrant Controversy Reveals a Weakness in International Law, JURIST – Professional Commentary, August 20, 2021, https://www.jurist.org/commentary/2021/08/todd-carney-belarus-migrant-controversy/.
This article was prepared for publication by Esther Chihaavi, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
