Poland respects international law. Analysis of the current situation on the Polish-Belarusian border

Adobe Stock

· Poland complies with the decision of the European Court of Human Rights to implement interim measures. Poland has prepared assistance in kind for foreigners in the territory of Belarus near the border with Poland and for a long time has been making efforts to deliver it to foreigners by legal means, which, however, has been prevented by Belarus.

· The ECtHR, while extending the ordered interim measures and ordering two new measures, each time makes their implementation conditional on the veracity of the information provided by the applicants' attorneys and on the actual stay of the foreigners in the territory of Poland.

· From the outset, the ECtHR has stressed that the interim measures ordered cannot be understood as a requirement for Poland to allow illegal migrants into its territory.

· Poland respects international law and the inviolability of national borders, and therefore does not undertake any actions in the territory of Belarus. The applicants' representatives are invited to go to the nearest border crossings in order to implement the ordered interim measures.

· Persons who have crossed the Polish-Belarusian border illegally are sent to secure centres for foreigners and may apply for international protection if they so wish. If they refuse to cooperate with the competent authorities and thus are unwilling to apply for refugee status, they are subject to a procedure consisting in moving them to the border under the Act on Foreigners.

· In a situation where children would be used by immigrants for this purpose, the guardianship court may declare a violation of the child's welfare and decide to place the child in foster care.

'The actions and plans of the Belarusian authorities do not fail to guarantee migrants their rights and freedoms, but the policy pursued by Belarus should determine the response of the Republic of Poland. Poland must act very precisely and always in accordance with the international law that binds it, not to escalate the conflict, but to effectively end it - also for the sake of the migrants humiliated and instrumentally used by the Belarusian authorities,' comments Łukasz Bernaciński, Director of the Ordo Iuris Centre for Legislative Analyses.

In August, the European Court of Human Rights adopted interim measures, in which the Polish and Latvian authorities were to provide foreigners camping at the border with food, water, clothing, adequate medical care and, if possible, temporary shelters. The Court stressed that the application of this measure did not affect any obligations of Belarus under international law in relation to the situation of migrants. Furthermore, the ECtHR made it clear that the measure should not be understood as a requirement imposed on Poland or Latvia to allow the applicants to enter their territories.

On 27 September, the European Court of Human Rights announced that it had decided to extend the interim measures ordered on 25 August 2021 for a further period and to apply two new interim measures. In each case, the ECtHR made their implementation conditional on the veracity of the information provided by the applicants' attorneys that the foreigners were from Afghanistan and had fled their country to escape persecution and, furthermore, that they had crossed the Belarusian-Polish border and were then forced by the Border Guard to enter the territory of Belarus.

The Court decided to request the Polish Government to allow the applicants' lawyers to make the necessary contact with the applicants, provided that the information submitted by the applicants' representative was accurate and that the applicants were staying in the territory of Poland, or to allow the applicants' lawyers access to the Polish border in the vicinity of the applicants' place of stay. In addition, the ECtHR stated that the applicants may not be returned to the territory of Belarus, provided that they are actually present in the territory of Poland.

Poland complies with the decision of the European Court of Human Rights to implement the interim measures. Poland has prepared assistance in kind for foreigners in the territory of Belarus near the border with Poland and for a long time has been making efforts to deliver it to foreigners by legal means, which, however, has been prevented by Belarus.

It is not possible to provide effective assistance without the consent of Belarus, because Poland respects the international law binding on it and respects the inviolability of state borders, which is why it does not take any action in the territory of Belarus. The applicants' representatives are invited to go to the nearest border crossings in order to implement the ordered interim measures.

Persons who have crossed the Polish-Belarusian border illegally are sent to secure centres for foreigners and may apply for international protection if they so wish. There are reports that migrants refuse to cooperate with the competent authorities because they want to reach Germany and apply for protection there. In such cases, the procedure consisting in bringing a foreigner to the border on the basis of the Act on Foreigners is used. In extreme cases, children are used by migrants to achieve their goal and, as the Children's Rights Ombudsman points out, they are deliberately impounded. Importantly, in the case of a threat to the child's welfare, with the parents' refusal to take them under protection, the guardianship court may order placement of the child in foster care, which would mean separation of the family - i.e. handing the parents over to the Belarusian side while ensuring that the child's needs are met in the territory of the Republic of Poland.