A/HRC/41/44 may or may not be correct to argue that their concern over the relatively large influx of such migrants into their territories satisfies requirement (a) above, it would be extremely difficult for them to make a convincing argument that requirement (b) is satisfied. The means they have chosen clearly does not impair as little as possible the human rights of migrants and their humanitarian allies, and there is also no proportionality between the effects of the measures limiting the right (that is the criminalization and suppression) and the objective for which it has been limited (which is to restrict immigration to their territories). 74 However, the solidarity channels are all too often the only channels through which irregular migrants and refugees can access basic rights and live a life of even minimum dignity. 75 As social networks and solidarity are almost always the main means through which irregular migrants can effectively access basic rights, the criminalization of solidarity therefore fosters social exclusion and constitutes a direct challenge to internationally-protected human rights, such as the right to dignity. 76 The fact that even the inclusion of the “optional humanitarian clause” in European Directive 2002/90/EC was contentious (a clause that was not compliant with the Protocol against the Smuggling of Migrants by Land, Sea and Air 77) is instructive here. The final wording adopted was in fact a compromise agreement suggested by Sweden, as Austria had opposed the clause in its entirety, the UK had submitted reservations, Germany had proposed a compulsory humanitarian clause, and Greece did not disagree with the substance of the provision. 47. It should also be noted that these measures and acts that criminalize or suppress the expression of human rights-based international solidarity in favour of irregular migrants and refugees contravene the letter and spirit of the right of the latter group of persons to international solidarity; a right that is contained in the draft declaration on the right to international solidarity that was submitted to the Human Rights Council in 2017 as an annex to the final report of the previous Independent Expert (A/HRC/35/35). The draft declaration provides us with a persuasive indication of what international solidarity would require in this context. VII. Conclusions and recommendations for reform that is pro-human rights 48. In conclusion, the Independent Expert is of the view that the criminalization or suppression of the rendering of humanitarian assistance to irregular migrants and refugees significantly and unjustifiably impairs or harms many of their human rights and is thus illegal under international human rights law. The European Agency for Fundamental Rights has recognized this.78 It should also be noted that the recent effort in France to decriminalize the expression of solidarity to irregular migrants and refugees, including the progressive decision by the Constitutional Court in the Cedric Herrou case, is indicative of a growing realization even within Governments of the anti-human rights nature of such edicts.79 74 75 76 77 78 79 See Liz Fekete, “Europe: crimes of solidarity”. See Sergio Carrera and Joanna Parkin, “Protecting and delivering fundamental rights of irregular migrants at local and regional levels in the European Union”, p. 3. See Sergio Carrera and Massimo Merlino, “Undocumented immigrants and rights in the EU: Addressing the gap between social science research and policy-making in the Stockholm programme?” (Centre for European Policy Studies, December 2009), p. 33. See Sergio Carrera and others, Fit for Purpose?: The Facilitation Directive and the Criminalization of Humanitarian Assistance to Irregular Migrants, pp. 10–11. See also Neil Boister, An Introduction to Transnational Criminal Law (Oxford, Oxford University Press, 2012), p. 47. See European Agency for Fundamental Rights, “Criminalization of migrants in an irregular situation and of persons engaging with them”. See Law No. 2012-1560, available from www.legifrance.gouv.fr/affichTexte.do;jsessionid= 1A086BE418596ED3F4A27A222F25AAE7.tpdjo15v_1?cidTexte=JORFTEXT000026871211&cate gorieLien=id. See also Mark. Provera, “The criminalization of irregular migration in the European Union”, p. 17. 15