Derogate the non-derogable: the legitimization of migrant pushbacks in Lithuania

Abstract

Migrant pushbacks have become a common practice in many European countries and have garnered considerable academic and media attention. In contrast, the legitimization of migrant pushbacks represents a relatively new legislative development within the EU, often obscured by governments and lacking sufficient scrutiny. Forceful returns of migrants involve denying entry or expelling individuals without individualized assessment, thereby contravening absolute human rights, such as the prohibition of torture and the principle of non-refoulement. Paradoxically, despite the significance and absolute nature of these provisions, Lithuania chose to derogate from them by amending its border laws on April 25, 2023. Consequently, this paper aims to explain how Lithuania's legislative framework came to legalize pushbacks and how racialized narratives have influenced this process. To answer these questions, the study focuses particularly on the notion of absolute rights, the principle of the primacy of EU law, the concept of racial tropes in conjunction with postcolonial theory, and the Critical Legal Studies (CLS) approach. This socio-legal research will be carried out by employing a single-case study design and utilizing two methods: Bacchi and Goodwin’s (2016) ‘What’s the Problem Represented to Be?’ (WPR) policy analysis and discourse analysis combined with thematic coding of the language used by Lithuanian government officials. Findings reveal that Lithuania's restrictive asylum policies are significantly influenced by the broader EU stance on immigration, which has become increasingly hostile. The EU's own derogations from international law, coupled with the culture of impunity and a lack of public resistance, have facilitated Lithuania's actions. Additionally, the use of racial tropes has profoundly contributed to the codification of ongoing European neocolonialism and the dehumanization of arriving newcomers into law. The study concludes that the legal and political environment within the EU is regressing in terms of upholding human rights, challenging the notion of absolute rights and weakening the rule of law.