Frontex: Human Rights Responsibility and Access to Justice
By Dr Melanie Fink, Postdoctoral Researcher, Europa Institute, Leiden University; author of Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’ under the ECHR and EU Public Liability Law (Oxford University Press 2018).
Ever since Frontex’s establishment, the question of its human rights responsibility has been a source of contention and uncertainty. This has a number of drawbacks. On the one hand, if no clear consequences follow from unlawful conduct, this undermines the law’s preventive effect. If Frontex and the Member States participating in its operations can shift the blame among each other, they may be less ‘motivated’ to ensure their own compliance with human rights law. On the other hand, uncertainty also weakens the position of the victim of a breach because bringing legal action requires knowledge of the role each actor played with respect to a particular violation and the extent to which that is relevant for responsibility.
Drawing on some of the findings published in my book, this post discusses whether Frontex is responsible for human rights violations that occur in the context of its activities and how individuals’ access to mechanisms to invoke that responsibility can be improved.
Is Frontex Responsible for Human Rights Violations?
Frontex itself typically avoids the question of its responsibility altogether. Essentially pointing to its coordinating role and lack of personnel with executive powers on the ground, it locates fundamental rights responsibilities with the Member States (see for example here and here). This bypasses the question of Frontex’s compliance with its positive obligations, that is, its responsibility for omissions. Human rights law places Frontex under an obligation to take all reasonable measures to protect individuals from human rights risks the agency knows or should know of. While this is not explicitly set out in EU fundamental rights law, Article 53(3) CFR requires EU law to guarantee the same level of protection as the ECHR, which has long been held to impose obligations to protect. Frontex’s positive obligations are also reiterated in Article 80 EBCG Regulation, which requires the European Border and Coast Guard to guarantee that human rights are complied with. Frontex, in other words, has to make reasonable efforts to ensure that all participants—not just its own staff—act in conformity with human rights.
Reasonable are those measures that could have had a real prospect of mitigating the harm and do not impose a disproportionate burden on Frontex (see, for instance, here). Think of measures such as communicating views to the host Member State through the Frontex Coordinating Officer, withdrawing financial support, suspending or terminating a joint operation, or positively influencing the course of action on the ground—for example, through informal advice. As a rule, the more obvious and persistent a human rights violation, the more actively Frontex can be expected to take measures to prevent or stop it. If it fails to do so, it incurs human rights responsibility.
Frontex’s insistence of being a mere coordinator has thus long failed to capture the full reality of its activities and the human rights obligations flowing from it. But even by its own standards, a recent development makes this argument increasingly unsustainable and its responsibility for the actions of deployed personnel more likely. The 2019 revision of the EBCG Regulation (see Annex I) introduced a standing corps of 10,000 border guards that is partially made up of genuine EU border guards with executive powers (as opposed to Member State border guards made available to Frontex). As Frontex will have its own border guards on the ground and thus lead the first ever European uniformed service the actions of which will give rise to its responsibility, it is essential to create possibilities for individuals to invoke Frontex’s responsibility in a court of law.
Holding Frontex Responsible
The major problem continues to be individual access to mechanisms to hold Frontex to account. A long fought-for improvement was the introduction of an individual fundamental rights complaints mechanism in 2016. It allows anyone whose rights are violated by the actions of personnel deployed during a Frontex operation to submit a complaint to the agency. The mechanism turned out to fall short of expectations. One of the reasons was that all complaints concerning the actions of Member State personnel were passed on to the Member States without any substantive review. Very much in line with Frontex’s more general approach to its own responsibility, allegations of Frontex’s failure to comply with its positive obligations fell through the cracks. In 2019, the relevant provision (now Article 111 EBCG Regulation) was amended to explicitly allow individuals to bring a complaint against ‘the actions or failure to act on the part of staff involved in a joint operation’. This small, often overlooked, change may considerably increase the possibilities for individuals to hold Frontex to account. Still, the complaints mechanism does not qualify as an effective remedy within the meaning of Article 47 Charter of Fundamental Rights of the European Union because it is non-judicial and internal to Frontex.
Eventually, much more decisive action is needed. Creating a new mechanism—an EU fundamental rights complaints procedure for instance—would be ideal, but there are also ample possibilities to adapt current mechanisms. This could entail further modifying the Frontex fundamental rights complaints mechanism to place decision-making with a body independent from the agency’s management and allow appeals to the Court under the action for annulment (Article 263 TFEU), similar, for instance, to the possibility of challenging decisions of the European Chemicals Agency under Article 94 REACH Regulation. Since the lack of individually accessible judicial responsibility mechanisms is a more general challenge within EU law, another possibility is to reinterpret existing procedures, such as the action for damages, so as to make them more suitable as human rights remedies (on this topic see my article in Volume 21, Issue 3 of the German Law Journal). In any case, external review is essential, which involves making accession of the EU to the ECHR a priority.
Ensuring access to accountability mechanisms is urgent not just because Frontex will have its own border guards. Having launched its first ever joint operation beyond EU territory in May 2019 at the Albanian-Greek border, Frontex continues to increase its cooperation with third states, an activity that involves new human rights risks and challenges. While there is some control over the human rights performance and remedies made available by Member States (think, for instance, of the agency’s follow-up possibilities under Article 111 EBCG Regulation or, more generally, the Commission’s powers as a ‘Guardian of the Treaties’ under Article 17(1) TEU) this is less so in relation to third states. This makes it even more important to clarify how Frontex ensures human rights compatibility in that context and how individuals are to seek redress should it fail to do so.
Short Term Solutions
Amending and creating new fundamental rights accountability mechanisms requires broad consensus among the Member States, which is difficult to reach in the current political climate. However, there are also simple measures that can go a long way in removing obstacles for individuals to hold Frontex to account. One of these is transparency.
When human rights violations occur in the context of Frontex’ activities, there are a number of factors that are typically of relevance for the determination of responsibility: authority (Who determined, commanded, controlled, or otherwise decided on the course of conduct that resulted in a breach?), knowledge (Who knew, or should have known, about the violation?), and the possibility to prevent (Who was competent and actually in a position to prevent the violation?).
Answering these questions in the case of Frontex joint operations is unnecessarily difficult. One reason is the fragmentation of the applicable legal framework. The rules setting out the role and powers of all actors are dispersed in a broad range of documents—the EBCG Regulation, the Operational Plans that detail the practical aspects for each joint operation, the Handbooks to the Operation Plans, and a multitude of Annexes of the Operational Plans. On their own, none of these describe the roles and authority of all actors in sufficient detail to get a complete picture of their authority over deployed resources. But the major obstacle is that essential documents are not publicly accessible. This concerns in particular key parts of the Operational Plans that contain the most detailed description of the specific authority and decision-making powers of the actors involved. Even upon request, they are only partially made available, only for completed operations, and only for EU citizens (a recently decided case highlights the difficulties with challenging Frontex’s decisions denying access to documents).
It is thus necessary to draw up a document that sets out in a comprehensive and unambiguous manner who does what during a joint operation, including chains of command and possibilities to intervene and influence decision-making. This is not at all unusual and exists, for instance, in the context of EU Common Security and Defence Policy operations. Importantly, this document needs to contain neither sensitive information, such as the operational area or specific methods applied, nor names or other details of persons involved in a specific operation. There is thus no reason to not make it fully and unconditionally publicly available. Since bringing legal action requires knowledge of the role and powers of each involved actor, this simple measure could significantly improve individuals’ access to redress.
As recent events have proven once again, the nature of Frontex’s tasks may require it to engage in situations that raise human rights concerns. A European agency with expertise on border management could play an important role as the Union’s eyes on the ground that ensure persons at the EU’s external borders are treated—in line with the values the EU is founded on (Article 2 TEU)—with dignity and respect. For that potential to become reality, however, it is essential that human rights and access to justice become priorities in the set-up and daily functioning of Frontex. In the long term, this requires decisive action by the EU legislator. But until then, Frontex can make a significant contribution towards reaching this goal by acknowledging its responsibility and ensuring transparency.