Socio-economic Rights and Migration deals: Obligations and Responsibility of EU Member States
Annick Pijnenburg, Assistant Professor, Radboud University Nijmegen. Author of the book: “At The Frontiers of State Responsability: Socio Economic Rights and Cooperation on Migration“
This blog post examines the human rights obligations of EU Member States towards people on the move contained in neighbouring third countries like Libya and Turkey as a result of migration deals, as well as the question whether EU Member States incur international responsibility for violations of their socio-economic rights. The analysis first describes migration deals and their impact on people on the move (Section 1), before turning to EU Member States’ obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) (Section 2). This post argues that EU Member States can have two types of obligations under the ICESCR: direct obligations that apply when there is a jurisdictional link; and global obligations of international assistance and cooperation. Section 3, in turn, demonstrates that EU Member States can incur direct responsibility for breaching their direct and/or global obligations as well as derived responsibility for complicity in human rights violations abroad. This post is based on my recently published PhD thesis to which the reader is referred for a detailed analysis: At the Frontiers of State Responsibility: Socio-economic Rights and Cooperation on Migration.
1. Migration deals and their impact on people on the move
Since the turn of the century EU Member States increasingly cooperate with countries in the Global South to stem migration flows, as evidenced by the increasing number of migration deals between, on the one hand, the EU and its Member States, and, on the other hand, third countries that neighbour the EU, including Morocco, Libya and Turkey, as well as further afield, such as Niger (see for instance the 2016 Migration Partnership Framework).
Such cooperation aims to prevent the arrival in the EU of ‘unwanted’ people on the move, i.e. irregular migrants, including asylum seekers and refugees (on the term ‘people on the move’ see here. EU Member States cooperate with third countries in different ways, including: by transferring people on the move from the EU to third countries (e.g. under the 2016 EU-Turkey Statement); by providing third countries with funding, equipment and training (as is the case with the Libyan Coast Guard); and by using development aid conditionality (e.g. through the EU Trust Fund for Africa). The result is that people on the move are contained in third countries like Libya and Turkey, as the latter countries are expected to prevent their arrival in the EU and host them.
An important development, which is particularly salient in the case of Libya, concerns the shifting of interception and search and rescue activities at sea from EU Member States to Libya. In other words, in reaction to the European Court of Human Rights’ (ECtHR) condemnation of Italian pushback practices in the case of Hirsi Jamaa and others v Italy, contemporary cooperation with Libya includes European support for the Libyan Coast Guard which pulls back people on the move. However, shifting the burden of intercepting people on the move onto third countries does not automatically mean that EU Member States do not incur any obligations or responsibility for their plight, including as regards socio-economic rights. Indeed, the negative impact of migration deals on the rights of people on the move, notably regarding the right to asylum and the principle of non-refoulement have received much attention. For instance, a key issue regarding the EU-Turkey Statement concerns the question whether Turkey is a safe third country (see for instance here and here). Yet scholarship pays scant attention to the fact that migration deals can also result in widespread violations of the socio-economic rights of people on the move contained in the third countries.
Thus, the plight of people on the move in Libya is extremely dire, being generally referred to as ‘hell on earth’. Notwithstanding the positive difference made by the EU Facility for Refugees in Turkey, many issues remain as regards access to adequate housing, health care, education and the labour market, especially in the context of the COVID-19 pandemic (see here. Since the situation of people on the move in third countries is closely linked to migration deals between EU Member States and the countries that host them, the question arises whether EU Member States have an obligation to contribute to realising their socio-economic rights.
2. EU Member States’ obligations under the ICESCR
Article 2(1) ICESCR states that “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”.
Many human rights treaties, especially those protecting civil and political rights, include a jurisdiction clause that determines their scope of application. For instance, Article 1 of the European Convention on Human Rights requires states parties to secure human rights ‘to everyone within their jurisdiction’. Although the ICESCR does not contain such a clause, its provisions are consistently interpreted in terms of jurisdiction. Moreover, it is generally accepted that states can have human rights obligations towards persons outside their territory. Therefore, the key question is: when do states exercise extraterritorial jurisdiction under the ICESCR and hence have direct obligations towards persons abroad?
The Committee on Economic, Social and Cultural Rights (CESCR) determined the scope of States’ extraterritorial obligations as follows: “a State party would be in breach of its obligations under the Covenant where the violation reveals a failure by the State to take reasonable measures that could have prevented the occurrence of the event. The responsibility of the State can be engaged in such circumstances even if other causes have also contributed to the occurrence of the violation, and even if the State had not foreseen that a violation would occur, provided such a violation was reasonably foreseeable”. (General Comment 24, para 32)
In other words, the ICESCR requires states to take reasonable measures to avoid reasonably foreseeable violations of economic, social and cultural rights: when a state can take reasonable measures to avoid reasonably foreseeable violations of economic, social and cultural rights, it has a direct obligation to contribute to the realisation of the economic, social and cultural rights of individuals abroad. Although it differs from the European Court of Human Rights’ approach to extraterritorial jurisdiction (see Al-Skeini and others v United Kingdom), the CESCR’s approach finds support in Principles 9 and 13 of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights and in recent pronouncements of the Human Rights Committee (see General Comment 36 and A.S., D.I., O.I. and G.D. v Italy).
In the context of migration deals, do EU Member States exercise jurisdiction over – and hence have human rights obligations towards – people on the move in Turkey and Libya? That is the case if they can take reasonable measures to avoid reasonably foreseeable human rights violations. More specifically, EU Member States breach their direct obligations under the ICESCR if they fail to take into account the reasonably foreseeable adverse impact of migration deals on the socio-economic rights of people on the move in third countries. In the case of Libya, it is reasonably foreseeable that people on the move who are returned to Libya by the Libyan Coast Guard will be detained in dire conditions in Libyan detention centres. It is arguable that EU Member States fail to take reasonable measures to improve their plight, as illustrated by the severity of the abuse and the lack of improvement in their situation. In the case of Turkey, however, the situation is more nuanced: the Facility for Refugees in Turkey serves to improve the living conditions of people on the move in Turkey as well as their access to education and health care. It can be argued that, at least to some extent, EU Member States have taken reasonable measures to avoid reasonably foreseeable violations of their socio-economic rights. In sum, while migration deals with Libya and Turkey can both trigger EU Member States’ jurisdiction, the latter are more likely to comply with their direct obligations under the ICESCR in the case of Turkey than in the case of Libya.
Moreover, while Article 2(1) ICESCR does not refer to ‘territory’ or ‘jurisdiction’, it does require states parties to ‘take steps, individually and through international assistance and co-operation’ in order to progressively realise economic, social and cultural rights. Therefore, limiting states’ obligations under the ICESCR to persons within their jurisdiction fails to account for the element of international assistance and cooperation in the ICESCR. Accordingly, we must recognise that the ICESCR imposes different kinds of obligations that result in distinct dimensions of extraterritorial obligations: in addition to direct obligations that are triggered when they exercise jurisdiction, states parties to the ICESCR arguably also have global obligations of international assistance and cooperation (see Principle 8 of the Maastricht Principles). Global obligations ‘follow from the fact that the obligations of the Covenant are expressed without any restriction linked to territory or jurisdiction’ (CESCR, General Comment 24, para 27).
Unlike direct obligations, there is no direct relationship between a state as duty-bearer and an individual as rights-holder: global obligations are not owed to individuals in a particular state and the latter have no claim against states which do not comply with their global obligations. Rather, the international community as a whole has an obligation to assist states that lack sufficient resources to comply with their own obligations to realise socio-economic rights. More specifically, the obligation to provide international assistance and cooperation ‘is particularly incumbent upon those states which are in a position to assist others in this regard’ (CESCR, General Comment 3, para 14). Given EU Member States’ wealth and high development levels, it is safe to assume that they are in a position to assist third countries realise socio-economic rights.
Notwithstanding the overall agreement, at a general level, that obligations of international assistance and cooperation exist, their scope and nature remain contentious and in need of clarification. In particular, it remains unclear how to assign such obligations among the various members of the international community. More specifically: who has an obligation to provide international assistance and cooperation to a state that hosts people on the move as a result of migration deals but lacks sufficient resources to realise their socio-economic rights? It could be argued that the obligation to provide international assistance and cooperation rests more heavily on EU Member States that cooperate with third countries than on other states on account of their cooperation. Migration deals can thus be seen to establish a pre-existing relation between EU Member States and Libya or Turkey. Thus, although this is not settled as a matter of lex lata, it is at least arguable that migration deals could trigger EU Member States’ obligations of international assistance and cooperation towards third countries hosting people on the move.
Finally, this points to the flip side of the relation between migration deals and international assistance and cooperation: can EU Member States discharge their global obligations by cooperating with third countries on migration control? The fact that they already transfer resources to countries such as Turkey and Libya suggests that cooperation on migration control could itself qualify as the provision of international assistance and cooperation. As noted above, the Facility for Refugees in Turkey makes a significant contribution to improving the plight of people on the move in Turkey, notably in terms of standard of living, health and education. It can therefore be said to discharge (part of) EU Member States’ global obligations under the ICESCR. In the case of Libya, however, this does not seem to be the case. Indeed, resources are primarily spent on developing the Libyan coast guard’s capacity and do not significantly contribute to improving the plight of people on the move in Libya. In other words, there is a significant risk that European cooperation with Libya does not comply with the ICESCR because the assistance and cooperation provided risk contributing to violations of the socio-economic rights of people on the move rather than remedying these violations.
3. EU Member States’ responsibility
The foregoing raises the following question: when do EU Member States incur responsibility for violations of the socio-economic rights of people on the move in Libya and Turkey? The answer lies in the interaction between the ICESCR and the secondary rules of the law of State responsibility, as embodied by the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). According to Articles 1 and 2 ARSIWA, a state incurs international responsibility when it commits an internationally wrongful act, i.e. when an act or omission is attributable to the state and breaches its international obligations.
In the context of migration deals, EU Member States can incur international responsibility when they breach their direct and/or global obligations under the ICESCR. At a general level, the attribution requirement does not pose a serious obstacle to establishing responsibility because, as a rule, the decision to conclude migration deals and provide international assistance and cooperation is made by a state organ and hence attributable to the state (Article 4 ARSIWA). The question whether the implementation of such measures is also attributable to EU Member States is more complex, especially when other actors are involved. For that to be the case, their conduct must be attributable to EU Member States under one of the attribution rules in Articles 5-11 ARSIWA. In addition, some human rights case law, like the ECtHR’s decision in El-Masri v Macedonia, suggests that conduct could be attributed to a state on the basis of acquiescence or connivance, which implies a lower threshold than the ARSIWA rules, although it remains unclear if this also applies extraterritorially. In any event, bearing in mind the possible obstacle posed by the attribution requirement, since it is more likely that EU Member States breach their obligations under the ICESCR in their cooperation with Libya than with Turkey, it is also more likely that they incur responsibility for violations of the socio-economic rights of people on the move in Libya than in Turkey.
Finally, EU Member States could also incur derived responsibility under the complicity rule. Indeed, Article 16 ARSIWA provides that: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
- that State does so with knowledge of the circumstances of the internationally wrongful act; and
- the act would be internationally wrongful if committed by that State”.
In other words, an EU Member State can incur derived responsibility when it aids or assists Turkey or Libya in violating the socio-economic rights of people on the move. While it remains unclear how the requirements in Article 16 ARSIWA should be interpreted – especially as regards the subjective element in paragraph a) – various scholars have found that EU Member States can incur derived responsibility for aiding or assisting Libya and Turkey (see e.g. here). Yet the analysis is more complex as regards socio-economic rights, since violations of these rights are often an indirect consequence rather than the main aim of migration deals. Indeed, as the latter’s aim is to prevent ‘unwanted’ arrivals in EU Member States, the aid or assistance provided by EU Member States to Libya and Turkey can contribute to violations of the principle of non-refoulement and the right to leave. However, the causal link between migration deals and violations of socio-economic rights is more difficult to establish. Likewise, it can be more difficult to demonstrate that the requirements in paragraphs a) and b) of Article 16 ARSIWA have been met, especially if Article 16(a) is interpreted as requiring consent (see Commentary to Article 16 ARSIWA). In sum, although it can be difficult to establish, we cannot exclude the possibility that EU Member States incur derived responsibility for violations of the socio-economic rights of people on the move in Turkey and Libya.
EU Member States have direct obligations towards people on the move abroad when the latter are within their jurisdiction, i.e. when EU Member States must take reasonable measures to avoid reasonably foreseeable violations of their socio-economic rights. It can also be argued that they have global obligations to contribute to the realisation of the socio-economic rights of people on the move in Libya and Turkey. EU Member States can incur responsibility if they fail to comply with their obligations under the ICESCR, provided the conduct in question is attributable to them. In addition, they could incur derived responsibility for providing aid or assistance to Libya and Turkey.
Therefore, EU Member States should take into account their obligations under the ICESCR, in order to comply with these obligations and avoid incurring international responsibility for the violations of the socio-economic rights of people on the move in third countries. Above all, this would help improve the plight of people on the move in countries like Libya and Turkey. It would also signal EU Member States’ commitment to fundamental rights. Moreover, if we accept that people on the move often travel from countries close to their country of origin to the EU because of their inability to access a decent standard of living, health care, education and work, European support that contributes to realising their socio-economic rights in third countries could contribute to the aim of stemming migration flows to the EU. While it remains questionable whether it is legitimate for the EU and its Member States to seek to contain people on the move in third countries, migration deals that contribute to realising the socio-economic rights of people on the move could lead to a win-win-win situation: for EU Member States, for international human rights law, and, most importantly, for people on the move.