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By Tamás Molnár, Legal research officer, European Union Agency for Fundamental Rights, Visiting lecturer, Corvinus University of Budapest.

 

Setting the scene

In the field of border management, following the concept of European Integrated Border Management as set out in Article 3 of the new European Border and Coast Guard (EBCG) Regulation (EU) 2019/1896, EU Member States have been intensifying their cooperation either with third countries, or under the authority of third countries, or even operating in third countries. 

As a recent report by the EU Agency for Fundamental Rights outlined, these diverse forms of cooperation include: 

1) posting document experts or immigration liaison officers at third country airports to assist airlines in checking passengers before embarkation; 

2) the presence of EU Member State officials on third-country vessels patrolling the sea; 

3) EU Member State vessels patrolling the territorial waters of a third country based on a bilateral agreement (e.g. Spain has concluded such agreements with Senegal and with Mauritania); 

4) sharing information with the neighbouring third country and requesting it to intercept people before they cross the border; as well as 

5) providing border management capacity building activities (e.g. training, technical assistance with equipment, intelligence and even financing) in third countries (e.g. Italy supporting the Libyan Coast Guard and Navy under their bilateral Memorandum of Understanding).

Such activities entail risks of violating human rights of people on the move. These include the right to leave any country including one’s own – amounting to ‘pull-backs’ – which is firmly anchored in international law and Council of Europe law (for rigorous analyses of the meaning and content of the right to leave, see e.g. Guild, Kochenov, Stoyanova and Markard). 

This raises questions of shared or ancillary (derivative) responsibility of EU Member States under international law when the above-depicted co-operations end up in violating basic human rights of migrants and asylum seekers, such as preventing their departure from the country where they embark on their journey to Europe. Selected extraterritorial border management scenarios carried out in cooperation with third countries are in a somewhat “grey zone” in terms of State responsibility as codified in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). This contribution focuses on Member States’ responsibility from the international law perspective (Skordas referred to it in this blog as still a “blind spot” in the migration debate). The responsibility of the EU itself as an international legal entity and its agencies within the meaning of the Articles on the Responsibility of International Organisations or as flowing from lex specialis EU law instruments, is not examined.

Allocating international responsibility of EU Member States: twilight zone

When EU Member States carry out border control activities outside their territory, notably when they are engaged in joint extraterritorial immigration measures (some commentators call it ‘outsourcing’), multiple challenges emerge in the following three selected cooperative migration control scenarios:

  1. Activities carried out by EU Member States within third countries, such as Member State’s vessels patrolling in the territorial sea of a third country (typically based on a bilateral agreement) and capacity building activities for third countries implemented by EU Member States (e.g. training, technical assistance). 
  2. Activities carried out on board of vessels flying the flag of third countries when these extraterritorial actions essentially aim at preventing irregular departures and people irregularly entering the EU territory. 
  3. In case Member States’ border guards identify people moving towards the ‘green’ (land) or ‘blue’ (sea) border and suspect that they intend to cross the EU external border irregularly, these EU authorities share this information and request assistance from the neighbouring third country to intercept these people before they cross the external border of the EU.

It can be stated at the outset that in the above-described situations, the international responsibility of EU Member States for possible violations of the right to leave (and other human rights such as the prohibition of refoulement and collective expulsions as the case may be)  remains unclear. 

Putting the ARSIWA rules into context in the first scenario (EU Member State officials carry out various border-management related activities in a third country – see it here pp. 28-31), when a vessel of an EU Member State patrols in a third country territorial sea, the Member State’s responsibility – and its nature – depends on the types of measures/degree of control and on the fact whether its officials have been placed at the disposal of the host country within the meaning of Article 6 ARSIWA. For the latter, the terms of the bilateral agreement constituting the legal background of such operations, as well as the host country’s relevant domestic legislation and operational plans can greatly inform this legal assessment. In order for these acts to be attributable to the host third country, the threshold to reach is quite high as ECtHR case law in X v. Switzerland and Xhavara and Others v. Italy and Albania illustrates. According to the Strasbourg Court, the mere exercise of some elements of public authority is not enough to attribute the conduct of a State organ (here: military or law enforcement operating the vessel) to another State. If Article 6 ARSIWA is not likely to shift the EU Member State’s responsibility to the host third country, unlawful action against individuals at sea (e.g. turning their boat back) over whom the Member State officials on board of the vessel thus exercise jurisdiction, is attributable to the EU Member State concerned and triggers its direct responsibility pursuant to the general rules embodied in Articles 1-2, 4 and 12 ARSIWA.

Still remaining in the first scenario, the legal appraisal of the consequences of providing training and capacity-building to third-country’s border officials gets trickier. Arguably, undertaking these activities in itself does not constitute an internationally wrongful act, hence the EU Member State’s direct responsibility is not incurred. However, international responsibility may also arise when a State aids or assists another State to engage in conduct that violates international obligations (Article 16 ARSIWA). The International Law Commission (ILC) explicitly acknowledged that “material aid to a State that uses the aid to commit human rights violations” is one such example. Here, the responsibility of the Member State concerned is not triggered by its own unlawful action, but it arises in connection with a wrongful act committed by another State, for instance when border officials who have been trained by a Member State engage in human rights violations, including obstructing the right to leave by intercepting people in the territorial sea and thereby preventing their departure. Scholars have argued in this direction as concerns Italy’s engagement with Libya by providing funding, equipment and training (see e.g. Pascale as well as Giuffré and Moreno-Lax). This derived responsibility or complicity – forming part of customary international law according to the International Court of Justice – “heralds the extension of legal responsibility into areas where States have previously carried moral responsibility but [international] law has not clearly rendered them responsible for the acts that they facilitate” as Professor Lowe aptly opined. Nonetheless, not all forms of cooperation amount to complicity. Taking it to the extreme, an expansive interpretation of Article 16 ARSIWA on aiding or assisting could have a chilling effect on international cooperation (see Nolte and Aust). Extraterritorial border management activities, such as training and capacity building, could potentially fall under the scope of Article 16 ARSIWA if three requirements are fulfilled: 1) the relevant state organ providing aid/assistance must have knowledge of the circumstances making the conduct of the assisted State internationally wrongful; 2) the aid/assistance must be provided to facilitate that conduct, which must indeed result in a wrongful act; and 3) the conduct must be such that it would have been wrongful even if it had been committed by the assisting state itself (“a State cannot do by another what it cannot do by itself”, as the ILC put it in its commentaries to ARSIWA). Given that the threshold to trigger State responsibility is high in these cases, it is necessary to establish a close causal connection between the EU Member State’s act of aiding/assisting and the third country’s internationally wrongful act.

As per the second scenario when Member State’s representatives are present on board of vessels flying the flag of third countries and patrolling the sea (see it here pp. 27-28), the legal qualification of their action revolves around the question whether or not their role qualifies as ‘exercising control’. In case they do not have law enforcement powers and essentially merely advise the third-country vessel to prevent boats carrying migrants from reaching the high seas or the territorial waters of an EU Member State, direct responsibility of that EU Member State is not engaged for human rights violations committed by the third country officials. However, the former’s derived responsibility can still be established under Article 16 ARSIWA, if the above-mentioned requirements are met. In case they do exercise law enforcement powers and hence exercise control over the individuals stopped at sea, unlawful conduct, such as violating these people’s right to leave, most likely results in a shared/joint responsibility of the EU Member State and the third country concerned in application of Article 47 ARSIWA read in light of the ILC commentaries thereto (pp. 124-125).

Turning to the third scenario (see it here  pp. 37-38 and here pp. 23-24), the question is whether the EU Member State located at the external border exercises effective control when it shares information with and requests assistance from the neighbouring third country, or whether effective control also requires physical action to stop the migrants as they approach the border. One way of reasoning is that individuals are prevented from reaching the border through the actions of the border guards of the neighbouring country. Put differently, effective control is exercised by the third country and not by the EU Member State officials who simply provided the information on the migrants’ position to the former. Although this line of interpretation excludes the EU Member States direct responsibility, such action (where the fulfilment of the knowledge/intent requirement, no matter how narrowly or extensively this mental element is construed, is hardly contestable) clearly incarnates a form of aid or assistance to the commission of an internationally wrongful act pursuant to Article 16 ARSIWA. This can be thus associated with the violation of these individuals’ right to leave the neighbouring third country. No case law from international courts or tribunals is available yet on whether complicity could also consist of the sharing of information which enables a third country to take actions in violation of core fundamental rights. 

An alternative arguable standpoint is to claim that the authorities of the EU Member States indirectly exercise effective control when they activate the action (i.e. the apprehension of people on the move) by the authorities of the third country through the information exchange. Article 89(5) of the EBCG Regulation appears to support this view as it prohibits an information exchange with third countries if the information provided could lead to the identification of persons in need of international protection or those who are at serious risk of any other fundamental rights violations. In other words, this secondary EU law provision obliges EU Member States to take into account the human rights situation in the third country and not to take action when they know, or should have known, that the individuals concerned face a risk of serious harm.

Assessment and outlook to the future

This rudimentary legal analysis of selected scenarios shows that a number of areas call for more legal clarity when it comes to determining EU Member States’ international responsibility along the lines of ARSIWA. There are several factors to consider in this regard. In particular, some grey areas or “twilight zones” remain which concern EU Member States’ operations in third countries, especially when they support or collaborate with them in their efforts to manage migration flows. Such involvement comes rather from the ‘background’ without a direct or simultaneous engagement in the commission of unlawful acts such as violations of migrants’ and asylum seekers’ right to leave any country including their own. Hathaway and Gammeltoft-Hansen note that ARSIWA rules on aiding or assisting another State in breaching its obligations under international law have “enormous potential to close the accountability gaps that the new generation of non-entrée practices seek to exploit”, but they also acknowledge that this is not yet settled law. Other commentators expressed similar views on the role of the secondary norms laid down in ARSIWA in ensuring “that both forms of direct and indirect responsibility are not evaded” (Mackenzie-Gray Scott). As of yet, there exists no international case law which would provide guidance as to how States’ derived responsibility under the complicity regime of ARSIWA would be applied in the context of border management. It is still debated whether the conduct of an EU Member State entails international responsibility in those situations which involve activities carried out under the umbrella of international cooperation but, in some cases, with the ultimate aim of preventing people from heading towards the EU territory. 

The first steps of conceptualisation and rigorous legal inquiry into the ways relevant rules of State responsibility – as ‘secondary norms’ in Hartian terms – operate in this specific area have been taken: besides the above-quoted materials, monographic works by Ligouri, Pijnenburg and Heschl have made amongst others crucial inroads into the topic. This strand of research must go on, along with scrutinising ECtHR case law on States’ positive obligations to prevent human rights violations as a functional alternative to Article 16 ARSIWA (see Aust) with a view to shedding more light on the various forms of EU Member States’ responsibility under international law for unlawful acts committed in externalised, cooperative border management scenarios. More awareness about their possible legal responsibility can also have a preventive effect – hopefully resulting in EU Member States’ better human rights compliance when engaging in actions outside their borders.

 

The views expressed in this blog post are solely those of the author and its content does not necessarily represent the views or the position of the European Union Agency for Fundamental Rights.