By Maria-Konstantina (Mariadina) Lili-Kokkori, researcher at the unit «International & European Law»

Introduction

Approximately 20.000 migrants and refugees have lost their lives since 1988 attempting to cross the Mediterranean to reach Europe. (2) After the tragic death off the Sicilian coast in October 2013, the European Union and Member States were forced to take action. However, their responses remain limited and their main focus was to prevent migrants and refugees from departing from Southern Mediterranean countries and from reaching EU territory.

The following research paper will examine thoroughly the EU mission to promote, coordinate and develop European border control through Frontex operations. The first issue to be examined concerns the operations that have been established at sea in order to help and save migrants and refugees. Then, the human rights provisions that are being violated during Joint Operations at sea will be examined. The last section of the paper concentrates on the fundamental question; who has to pay for these violations at sea, who has the responsibility; is it the European Border and Coast Guard Agency (Frontex)? Is it the EU? Is it the Member States (hereinafter referred to as MS)?

1. Legal Basis / Origin

According to Art. 3(2) of the Treaty on the European Union (TEU), “The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which thus the free movement of persons is ensured on conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime”. The EU’s aim is the right to freedom, security and justice without internal borders and thus the necessity to protect the external borders.

For this reason, in 2004 it was established in Poland one of the European agencies, the “European Agency and Management of Operational Cooperation at the External Borders” of the MS of the EU. This was changed and renamed when the European Border and Coast Guard Agency (Frontex) was established by Regulation (EU) 2016/1624 of 14 September 2016 on the European Border and Coast Guard (OJ L 251, 16.9.2016, p. 1). While, it is for each MS to provide a border control, Frontex’s role is to ensure that countries will apply a high standard of protection.

While the “European Border and Coast Guard Agency” replaces the “European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union”, it has the same legal personality and the same short name: Frontex.

The location of Frontex is Warsaw, Poland, as established in Article 56 of the European Border and Coast Guard Regulation, subject to the requirements set out in Article 57 of that regulation. (3)

2. Mandate

The mission of Frontex (4) is to promote, coordinate and develop European border management in line with the EU Fundamental Rights Charter and the concept of Integrated Border Management (EU Regulation 656/2014). (5) Frontex coordinates and organizes joint operations and rapid border interventions to assist Member States at the external borders, including in humanitarian emergencies and rescue at sea. The establishment of Frontex is rooted in the willingness of the EU Commission to develop a common approach to border control, through the establishment of an integrated system of border management (IBM). (6)

Frontex supports MS with the screening, the debriefing, the identification and the fingerprinting of migrants. The agency assists EU Member States in forced returns of people who have exhausted all legal avenues to legitimise their stay within the EU. This assistance includes obtaining travel documents for the returnees by working closely with consular authorities of the relevant non-EU countries. It can also organise voluntary departures of nationals of non-EU countries who were issued return decisions by MS authorities. Frontex also organises return operations on its own initiative and “collecting return operations”, where returnees are returned with escort officers and transportation provided by their countries of origin. It has created several pools of return experts to be deployed in MS when needed. The other tasks include assisting MS in the training of national border guards, and assisting them in circumstances requiring increased technical and operational assistance at external borders.

Frontex focuses on preventing smuggling, human trafficking and terrorism as well as many other cross-border crimes. It shares any relevant intelligence gathered during its operations with relevant national authorities and Europol. The Agency’s operational capacities were further strengthened by the establishment of the European Border Surveillance System (Eurosur) in December 2013, which is an information-exchange system enabling near real-time sharing of border-related data between MS and Frontex. (7)

3. Operations

Many operations have been established under Frontex’s regulation, EU’s authority and also MS capacity, through “search and rescue”. Search and rescue means search for and provision of aid to people who are in distress or imminent danger. This section will only analyse a selected number of operations, starting with HERA I and II.

Some of Frontex Operations are HERA I (8) and HERA II, (9) at the Canary Islands, during 2006. These two operations were the longest in duration that helped thousands of people to reach land with safety. More particularly, during HERA I, 19.000 migrants and refugees reached the Canary Islands, and during HERA II, the arrivals extremely decreased as well.

Regarding the MS Operations at sea, one significant operation was the Mare Nostrum, (10), launched by the Italian Government on 18 October 2013, as a military and humanitarian operation aimed at tackling the humanitarian emergency in the Strait of Sicily, due to the dramatic increase in migration flows. The Operation ended on 31 October 2014.

EU launched an operation in Italy in 2015, named EUNAVFOR MED operation Sophia, (11) with a mandate to undertake systematic efforts to identify, capture and dispose of vessels and enabling assets used or suspected of being used by migrant smugglers or traffickers, in order to contribute to wider EU efforts to disrupt the business model of human smuggling and trafficking networks in the Southern Central Mediterranean and prevent the further loss of life at sea.

4. Human rights provisions during Joint Operations

The EU and its MS (Frontex also) are bound by human rights provisions in their territory and the high seas. As an Agency of the EU, Frontex is bound to respect the EU primary legislation, including the Charter of Fundamental Rights, in their territory and in the high seas. Furthermore as its establishment is linked with border checks and surveillance, Frontex must act in observance of the EU legislation 2016/399 on border control, namely the Schengen Border Code (SBC).

Various human rights are compromised by border control measures; the right to seek asylum and the prohibition of refoulement (12) are of primary importance. The right to leave a country, the right to life, the prohibition of torture, the right to liberty and security also apply.

It is fundamental to recall that all EU MS are parties of the European Convention on Human Rights (ECHR). All States must comply with their duty to rescue at sea. This duty to render assistance to whoever is in danger or distress at sea is arguably a customary norm (13) and was codified in UNCLOS, article 98. The aforementioned provisions and principles have to be respected by Frontex as well as by the EU MS.

5. Human rights violations: Who has the responsibility?

The essential question to address is whether there is a sound legal basis on which Frontex or the EU could be held responsible for violations of human rights. We will try to answer this question, by analysing the outcome of two scenarios. But before we do that, a fundamental point has been left aside: is Frontex an International Organization? The rules on responsibility defined by article 2a ARIO, (14) apply to International Organizations. In order to find Frontex responsible for any breach under international law, it must first be ascertained that it fulfils this definition. Frontex can be considered as an organ, or at least as an agent, through which the EU acts, not as an International Organization. In order to be established as an International Organization, Frontex needs to have international legal personality, and this is efficient only at most limited to the treaty-making capacity necessary to conclude working arrangements with Union Agencies, bodies and third countries. Following this path, any conduct of Frontex, or an agent charged by Frontex to carry out one of its functions (15) that is found to be in breach of an international obligation binding Frontex and the EU would lead to responsibility of the EU. (16)

Scenario 1. Rescued refugees by Frontex returned back to a country are subjected to inhuman and degrading treatment. Who has the responsibility: the EU (through Frontex), MS or both?

We should start with the general rule that, under article 2 ARSIWA, (17) MS or International Organizations are held responsible for an international wrongful act. An International Organization is responsible for a conduct of an organ or an agent, under article 6 ARIO. (18) Consequently, an International Organization is responsible when there is an effective control of the International Organization of the State’s, or agents’ or organ’s act, under article 7 ARIO. (19) However, there is no effective competence of the EU for an act or omission of MS organs for violation of non – refoulement. This act or omission is attributed to MS, not to the EU. This means that MS are responsible for human rights violations of their organs and agents.

Does this mean that the EU responsibility is excluded? Article 14 ARIO (20) provides that an International Organization is internationally responsible when it aids or assists a State or another International Organization. This means that when the International Organization does so with knowledge of the circumstances of the internationally wrongful act, and the act would be internationally wrongful if committed by the International Organization, then, the EU can be held responsible for human rights violations for aid or assistance.

Scenario 2.“Left-To-Die-Boat’’ in Lampedusa, 2011.

The incident in Lampedusa gives us the opportunity to discuss the issues of responsibility for human rights violations arising from this incident, including the potential responsibility of NATO. The Left-To-Die-Boat underlines the responsibility arising from the failure to save refugees at sea. (21)

Due to factual circumstances, NATO’s operation was called “Unified Protector”, with plenty of vessels and helicopters taking part there. But, despite the numbers deployed by NATO, all distress calls were ignored by NATO and its Member States, even though two NATO vessels were in the boat’s vicinity.

The question arising here is, whether there is a shared responsibility of both NATO and the flagship countries. To answer this, we should examine the primary obligations under human rights law and the secondary obligations of international responsibility. Due to the primary obligations, Article 98, which provides a duty to render assistance, is an internationally customary law in all maritime zones. Additionally, ICCPR, ECHR and CAT provisions apply on the high seas and bind the flag States. Secondly, Article 2 ARSIWA (22) and Article 4 ARIO, (23) sets the alleged responsibility of the flag States, the coastal States and NATO.

From the flag States involved, the Italian military helicopter breached Article 2 ECHR and Article 6 ICCPR, (24) by leaving people in distress under the de facto control of the Italian jurisdiction. Commercial shipping are neither de jure nor de facto organs, so they do not have responsibility under Article 5 ARSIWA. (25) The warships were unknown military vessels with visual contact that failed to assist breaching Article 2 ECHR(26) and article 6 ICCPR.(27)

From the coastal States involved, Italy took all the measures to notify the authorities and the search and rescue vessels and international organizations, but it did have ‘’long distance de facto control’’ and the Italian authorities did not consider themselves as the responsible authority because they were not in the SAR zone. Italy had a large extent of positive obligations concerning the right to life, but omitted to use necessary resources. Even though the omission is attributable to the State, Italy cannot be held responsible for violation of the right to life. (Art. 2 ECHR). Malta, had an ipso facto jurisdiction, but to be responsible a de facto link between people and the coastal State is needed. There were multiple acts attributable to Libya, i.e. the boat-people under Libya’s jurisdiction, the distress call within the SAR zone of Libya, the violation of the right to live, the violation of non – refoulement, the lack of medical treatment, and the imprisonment and degrading treatment to all people involved. These acts are attributable to Libya, and so Libya is held responsible.

As for NATO, an omission is attributable to NATO itself, and there is a breach of an international obligation as such (Art. 98 UNCLOS,(28) and Art. 2 ECHR). If a decision is made by the NATO Commander, the conduct is attributable to NATO. If the decision is made by the Commanding Officer, the conduct is attributable to the flag State. It should be mentioned, that NATO is bound by the fundamental provisions under human rights law. Regarding these aforementioned points, NATO has no responsibility under international law.

6. Concluding remarks

The conclusions drawn in relation to the responsibility of the relevant actors varied; Frontex (EU) coordinates the operations. Member States have the primary responsibility of the breach of an international obligation. The EU might be responsible but only regarding aid/assistance or failure to meet its positive obligations regarding human rights. The direct responsibility for most human rights violations lies with the host state. In addition, participating states who contribute large assets (such as vessels), as well as Frontex will often incur responsibility together with the host state, predominantly on the basis of their obligations to protect or supervise. However, it is really difficult for individuals to find a place for bringing complaints against violations of their human rights suffered at the EU’s external borders.

References

  1. Copyrights of the photo to Klear, available here.
  2. Statistics available here. [last accessed 17 December 2018].
  3. The revised European Border and Coast Guard Regulation and its fundamental rights implications – Opinion of the European Union for Fundamental Rights available here. [last accessed 17 December 2018].
  4. European Border and Coast Guard Agency, Overview, available here. [last accessed 17 December 2018].
  5. Eupopean Database for Asylum Law, available here. [last accessed 17 December 2018].
  6. European Commission, Towards Integrated Management of the External Borders of the Member States of the European Union, COM (2002) 233 final, 7 May 2002.
  7. Frontex, “Eurosur”, available here. [last accessed 11 December 2018].
  8. Operation HERA I, available here. [last acessed 17 December 2018].
  9. Operation HERA I, available here. [last acessed 17 December 2018].
  10. Mare Nostrum operation at sea, launched by the Italian Government in 2013, available here. [last accessed 17 December 2018].
  11. European Union Naval Force – Mediterranean Operation Sophia, available here. [last accessed 17 December 2018].
  12. David Weissbrodt and Isabel Hortreiter, The Principle of Non-Refoulement: Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Comparison with the Non-Refoulement Provisions of Other International Human Rights Treaties, 5 Buff. Hum. Rts. L. Rev. 1 (1999), available here. [last accessed 16 December 2018].
  13. G. Goodwin-Gill, The refugee in international law 157, 1996.
  14. ARIO, Articles on International Responsibility for International Organizations, 2011, available here. [last accessed 16 December 2018].
  15. According to the definition of the term “agent” given by the ICJ in the Advisory Opinion “Reparation for Injuries Suffered in The Service of the United Nations”, April 11th 1949, 1949 ICJ Rep. 174 at 177.
  16. ARIO, Articles on International Responsibility for International Organizations, 2011, available here. [last accessed 16 December 2018].
  17. ARSIWA, Responsibility of States for Internationally Wrongful Act, 2001, available here. [last accessed 16 December 2018].
  18. ARIO, Articles on International Responsibility for International Organizations, 2011, available here. [last accessed 16 December 2018].
  19. ARIO, Articles on International Responsibility for International Organizations, 2011, available here. [last accessed 16 December 2018].
  20. ARIO, Articles on International Responsibility for International Organizations, 2011, available here. [last accessed 16 December 2018].
  21. Papastavridis Efthymios, The ‘’Left-To-Die Boat’’ incident of March 2011: Questions of International Responsibility arising from the failure to save refugees at sea, Refugee Law Initiative, RLI Working paper No. 10, available here. [last accessed 16 December 2018].
  22. ARSIWA, Responsibility of States for Internationally Wrongful Act, 2001, available here. [last accessed 16 December 2018].
  23. ARIO, Articles on International Responsibility for International Organizations, 2011, available here. [last accessed 16 December 2018].
  24. Article 6, ICCPR, available here. [last accessed 16 December 2018].
  25. ARSIWA, Responsibility of States for Internationally Wrongful Act, 2001, available here. [last accessed 16 December 2018].
  26. Article 2 ECHR, available here. [ last accessed 16 December 2018].
  27. Article 6, ICCPR, available here. [last accessed 16 December 2018].
  28. Article 98, UNCLOS, available here. [last accessed 17 December 2018].