Despite its increasingly important role in the field on management of the migratory phenomenon within the European context, there seems to be no complete clarity on the nature and legal implications of the role carried out by Frontex, the European Agency for the management of the external borders of the EU.
For instance, a common criticism against Frontex is the lack of legal certainty in relation to the legal framework governing its activities; this is indeed an issue in light of the importance of ascertaining whether and on which basis the EU could bear responsibility for human rights violations committed during Frontex-coordinated border control operations.
To precisely identify the entity or entities legally responsible for human rights violations that affected one or more individuals is indeed prejudicial to the existence of any effective remedy for those violations.
Frontex’ activity must be put in the context of the EU competence in the field of immigration and asylum, gradually developed alongside the evolution and expansion of the EU itself. According to Frontex’ Regulation, the main purpose of the Agency is the improvement of the integrated management of the external borders of the MS of the EU, although it is clearly stated that “the responsibility for the control and surveillance of external borders lies with Member States”.(1)
In order to achieve its mandate, the Agency has been entrusted with a series of tasks, the most important of which is that of coordinating joint operations and pilot projects;(2) each of these operations is grounded in an operational plan, drawn up by the Executive Director of the Agency.(3)
According to article 3(1), Frontex “shall evaluate, approve and coordinate proposals for joint operations and pilot projects made by Member States […]”. It is important to note that originally the initiative for any joint operations had to be of one or more MS, as is clear from article 3(1), and the Agency could only “launch initiatives” in that regard; after the amendments, however, the new article 3(2) provides that the Agency “may itself initiate and carry out” such operations, in agreement with the host MS. In joint operations are deployed both local and guest border guards, conferred with executive powers, which remain under the command and control of the host Member State authority,(4) with the exception of disciplinary measures, which remain with the sending state.(5)
These operations involve a series of activities that are regulated by multiple, overlapping regimes of international law. The law of the sea, refugee law, human rights law, conventional and customary rules interact in the regulation of operations at sea, including interceptions of vessels.
This last aspect in particular causes serious concern: a series of measures, varying from dissuasion or deterrence techniques from indiscriminate, collective push-back and expulsion, represent the dynamic most frequently implemented by MS at their borders; such practices are in some cases carried out in the territory of third countries and on the basis of apposite agreements concluded between the relevant EU MS and one or more third countries.(6)
These practices appear to be also predominant in the context of Frontex-led operations; they are consequently highly criticised in reason of the serious and widespread reports of violations of human rights and of the principle of non-refoulement in particular.(7)
The situation is furthermore compounded by the circumstance that the prevention of arrivals of migrants in the territory of EU MS appears to be the most prominent part of Frontex’ mission.(8) In this light, the establishment of clear rules for the operations coordinated by Frontex is clearly essential.
Although the Frontex Regulation originally did not contain any mention of the rules to be applied in the context of its operations, nor any reference to human rights, it is now clearly stated and recognized that Frontex has to comply with “obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights”.(9) This obligation furthermore arises from Frontex’ obligation, as an Agency of the EU, to respect the EU primary legislation, including the Charter of Fundamental Rights, and the EU legislation on border control, namely the SBC.
As for the states involved in Frontex-led operations, they all have to comply with their duty to render assistance to whoever finds him/herself in danger or distress at sea(10), Surely, the already mentioned right to seek asylum and the prohibition of refoulement, of primary importance in this context, also bind the states carrying out border control operations.(11)
In sum, the fundamental norms at stake, especially those related to the prohibition of refoulement and the duty to rescue at sea, have to be respected by Frontex as well as the EU MS.
Nevertheless, as constantly reported by several NGOs, violations of fundamental rights of migrants do occur in the context of border control activities. As mentioned already, it is crucial to identify who bears responsibility for these violations, as an essential condition for the right to a remedy. In this regard, there cannot be doubt that the states carrying border control operations at sea,(12) including those led by Frontex, will incur responsibility for violations of human rights suffered by individuals subject to their jurisdiction.(13) In addition to this, it can be useful to assess whether, and on which basis, the EU could bear responsibility for the same or an analogous conduct, in light of the role that it plays in that context.
As to Frontex’ responsibility, on a general note, it can be reasonably argued that the Agency has the duty to ensure respect for the obligations relative to the protection of human rights and rescue at sea in the context of the operations it coordinates; this is clearly established in its Regulation. Moreover, the prominent role of Frontex in evaluating, approving and coordinating proposal for such operations cannot be ignored: responsibility of the EU should be recognized proportionally.
This, notwithstanding that the Regulation indicates an exclusive command of the host state over the vessels deployed in joint operations:(14) this element certainly represents an important indicator that MS will bear responsibility for violations occurred in the context of these operations, but it does not detract from the previous conclusion. This argument can be proposed even more powerfully with reference to joint operations that are carried out by Frontex on its own decision and initiative.
Indeed, notwithstanding EU MS responsibility for their own acts, Frontex is not relieved “of its responsibilities as the coordinator and it remains fully accountable for all actions and decisions under its mandate”.(15) For instance, Frontex should bear the responsibility for not terminating an operation when there is evidence of violations of human rights.(16) More broadly speaking, responsibility should also be reconciled with competence; on this point it must be noted that, in the process of its expansion of the EU, a not insignificant transfer of competence has been realized from MS to the EU, also in the field of border control.(17) Consequently, it is reasonable to argue that responsibility of the EU, alongside that of MS, should also be recognized under this perspective.
In sum, the obligations to respect fundamental rights in border control activities are clearly binding on all the entities involved in these operations; therefore, all of those entities should bear responsibility for their violations where appropriate.
Provided that responsibility is ascertained, however, a further issue arises: the lack of available effective remedies, which remains a matter of serious concern, leaving individuals powerless to effectively react to any violation they may have suffered. Frontex does not offer any complaint mechanism(18).
Furthermore, at the current stage it is not possible to bring a claim to the ECtHR for a breach of the Convention committed by the EU. As judicial remedies to hold IOs accountable for human rights violations lack on the international level, possible victims are left with domestic remedies; indeed, domestic courts of the MS of the EU are the primary fora for the enforcement of EU law, which includes the Charter of Fundamental Rights, addressed “to the institutions and bodies of the Union”,(19) EU Agencies included.
In conclusion, notwithstanding the narrative that sees Frontex as mere coordinator of states’ actions, the Agency plays in fact a prominent role; this role, under some conditions, could well entail the responsibility of the EU under international law.
Of course, any conclusion reached here as to responsibility can only be hypothetical, given the lack of information as to what happens in practice in the course of Frontex-led joint operations. This observation, however, does not detract from the importance of clarifying the rules and responsibilities of Frontex, as a necessary condition for respecting the rule of law. This can potentially, in a broader perspective, positively benefit and improve the protection of the human rights of the individuals involved in the action of Frontex.
(1) Frontex Reg., Art. 1.
(2) According to the external evaluation report carried out by COWI, issued on 15 January 2009, joint operations “cater for more than 75% of Frontex’ total operational costs”.
(3) Frontex Reg., Art. 3(a).
(4) Conference “The Feasibility of a European System of Border Guards: A practitioner’s perspective”, Academy of European Law (ERA) & Frontex Warsaw, 28-29 October 2013, at 5.
(5) Fundamental Rights Agency, EU solidarity and Frontex: fundamental rights challenges, originally published as part of Fundamental rights at Europe’s southern sea borders, at 6 (2013).
(6) This is the practice carried out by Spain with Senegal and Mauritania.
(7) Report of the Special Rapporteur on the human rights of migrants, François Crépeau, Addendum, Mission to Greece, UN DOC. A/HRC/23/46/Add.4 (2013), at 5; Pro Asyl, Pushed Back. Systematic human rights violations against refugees in the Aegean Sea and at the Greek-Turkish land, at 4 et seq. (2013); UNHCR, Syrians in Greece: Protection Considerations and UNHCR Recommendations, 17 April 2012; Amnesty International, Frontier Europe – Human Rights Abuses on Greece’s borders with Turkey (2011); S. Keller, U. Lunacek, B. Lochbihler, H. Flautre, Frontex Agency: which guarantees for human rights? A study conducted by Migreurop on the European External Borders Agency in view of the revision of its mandate (2011); Migreurop, EMHRN, FIDH, Frontex between Greece and Turkey. At the border of denial, Report of the Frontexit campaign (2014).
(8) FRONTEX, Annual Report 2006-2007, at 8, 13; see B. Vandvik, Extraterritorial Border Controls And Responsibility To Protect: A View From Ecre, Amsterdam Law Forum, at 7 (2008).
(9) Frontex Reg., Art. 1.
(10) A customary law norm, also codified in UNCLOS, article 98. See G. Goodwin-Gill, The refugee in international law 157 (1996).
(11) See, inter alia, art. 13 of the 1948 Universal Declaration of Human Rights U.N. Doc A/810, and art. 12 of the 1966 International Covenant on Civil and Political Rights, 999 UNTS 171.
(12) See V. Moreno-Lax, Searching Responsibilities and Rescuing Rights: Frontex, the Draft Guidelines for Joint Maritime Operations and Asylum Seeking in the Mediterranean, REFGOV WP Series FR, available at: http://refgov.cpdr.ucl.ac.be/?go=publications&cat=1&subcat=8.
(13) This depends on the scope of application of the applicable treaty.
(14) Frontex Reg., Art. 10.
(15) Frontex. Fundamental Rights Strategy, Endorsed by the Frontex Management Board on 31 March 2011.
(16) Id., at 4.
(17) European Parliament, Directorate General for Internal Policies, Citizens’ Rights and Constitutional Affairs, Justice, Freedom and Security, Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies Frontex, Europol and the European Asylum Support Office, Study 2011.
(18) Special Report of the European Ombudsman in own-initiative inquiry OI/5/2012/BEH-MHZ concerning Frontex, Decision of 12 November 2013.
(19) EU Charter of Fundamental Rights, Art. 51(1).