Frontex and Human Rights Responsibility
On Wednesday 13 December, Melanie Fink will defend her doctoral thesis ‘Frontex and Human Rights: Responsibility in “Multi-Actor Situations” under the ECHR and EU Public Liability Law’. The defence will take place at 10.00 hrs at the Academy Building of Leiden University, Rapenburg 73. The supervisors are Rick Lawson and Jorrit Rijpma from Leiden, as well as Manfred Nowak, and Stephan Wittich from the University of Vienna – the thesis is written in the context of a so-called ‘cotutelle agreement’.
In her thesis, Melanie examines the legal responsibility for human rights violations that may occur in the context of border control or return operations coordinated by Frontex. The analysis is particularly timely, given the recent reinforcement of Frontex’ powers, but also the ongoing refugee ‘crisis’, which once more illustrates the serious human rights challenges border control may entail.
What is Frontex?
Frontex is a European Union agency that supports Schengen states in the management of their external borders inter alia by organising so-called joint operations. In the framework of a joint operation, a state (referred to as the ‘host state’) receives assistance in order to carry out border control activities at its external borders or to return third country nationals that have no right to stay. This assistance consists of additional resources, such as border guards or border control vessels, made available by other Schengen states (referred to as ‘participating states’) or Frontex. In addition, Frontex finances the operations and coordinates the activities of the various actors involved.
How to allocate human rights responsibility?
Imagine the following scenario: During a border control operation at sea, a vessel forces a boat carrying migrants back to its place of origin. Assume, for the current purposes, that this is in violation of human rights, in particular the prohibition of collective expulsions, but probably also the prohibition of refoulement. The operation is hosted by State A, coordinated and financed by Frontex, but the vessel in question and its crew are from State B. The incident is supervised by a nearby vessel of State C and a helicopter of State D. The crew on State B’s vessel did not decide alone to send the migrant boat back. In fact, representatives of A, B, C, D, and Frontex sat together and discussed possible courses of conduct, reaching the conclusion this was the way to proceed. Whilst each one of them may have contributed to the unlawful activity, their contributions vary in nature and degree. But which one leads to legal responsibility? In other words, who has to bear the consequences for and remedy the unlawful conduct?
The need for clarity
This lack of clarity in the allocation of responsibility is highly problematic. First, it creates room for ‘blame-shifting’, i.e. for Frontex and the Member States to blame each other for human rights violations they committed in cooperation. This, in turn, may weaken the incentives for and thus undermine compliance with human rights obligations. Second, a lack of clarity weakens the position of the individual victims of human rights violations. The reason is that bringing legal action against Frontex or the Member States requires knowledge of the role each of them played with respect to the violation and the extent to which this is relevant to responsibility. Thus, it is imperative to clarify the allocation of legal responsibility among the actors involved in joint operations in order to ensure individual victims of human rights violations can make use of their right to an effective remedy.
In order to examine legal responsibility for human rights violations that may occur during Frontex operations, Melanie used two legal frameworks: responsibility under the ECHR on the one hand and non-contractual liability under EU law on the other.
The thesis concludes that 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, the study also exposes just how difficult it may be for individuals to find a place for bringing complaints against violations of their human rights suffered at the EU’s external borders. This casts doubts on whether the current legal framework offers them an effective remedy.
Professor Rick Lawson about Melanie Fink
"Hardly any other subject for a dissertation is more topical than this! No-one can deny that the Union’s external borders must be adequately protected, and Frontex has an increasingly larger role to play in this regard. Having said this, there is a great deal at stake here; think of the human dramas taking place in the Mediterranean. But when disaster strikes - a boat with refugees sinks - all involved parties start pointing fingers: who is responsible? Melanie has carried out meticulous research to find out. And I must say that Jorrit Rijpma really did a great job in the day-to-day supervision.
The dissertation was written within the framework of a ‘cotutelle’ agreement: a collaboration between the universities of Vienna and Leiden. Melanie therefore also has an Austrian supervisor and co-supervisor. Lawson: "This international collaboration makes it a highly interesting project. Each country has its own traditions, procedures and expectations concerning content. But we managed to navigate these waters in a very enjoyable way; Manfred Nowak is an outstanding scholar who I know for many years. And of course I was secretly very glad that Melanie seemed to enjoy being in Leiden most!"