On Frontex responsibility: From individual to systemic accountability

Joint Responsibility

Individual accountability (remedying the violation for a particular individual) though claim against member state

Passing from individual to systemic accountability

Outline

Frontex: Separating the insiders from the outsiders

• Frontex responsibility for fundamental rights violations (joint responsibility)

• Attribution of responsibility through ILC Draft Articles on the Responsibility of International Organizations

• Passing from individual to systemic accountability.

• Terminology:

legal responsibility: the breach of an engagement under international law involves an obligation to make reparations

legal accountability: answering for breaches of legal obligations before a judicial forum

Systemic Accountability

Art. 48 of ILC Articles

• Frontex is one of the most important actors in border enforcement in Europe

• joint operations inherently sensitive to HR violations

• new EBCGA replacing Frontex

• difficulty in attributing responsibility in multi-actor operations. Frontex arguing that it has no responsibility.

On Frontex responsibility: From individual to systemic accountability

Application of ILC Articles

Strategic litigation

Rawls's Theory of Justice

• top-down approach

(enforcement of human rights in all operations)

complementary to bottom-up approach

(leading cases against member states)

• new pathways for legal accountability of agencies:

- CJEU (Art. 263 TFEU)

- ECtHR (Art. 6(2) TEU, CJEU Opinion 2/13)

• useful as source of inspiration for CJEU

• rules on attribution

• Arts 14-16 (responsibility through aid or assistance, direction and control, and coercion)

• First principle of justice:

‘Each person has an equal right to a fully adequate scheme of equal basic liberties compatible with a similar system of liberties for all’.

• ECtHR:

fully adequate scheme of basic liberties for each -

individual accountability -

individual measures by ECtHR

compatible with a system of liberties for all -

systemic accountability -

general measures by the ECtHR

Rule of law

• rule of law as effective limitation to the coercive power of public authority in defense of individual liberties

• requires system of safeguards for effective judicial protection, legal certainty, legitimate expectations

Mariana Gkliati, Leiden University

Case of possible push backs:

protection guarantees hidden

under a veil of secrecy

Case of push back in the hands of

the national authorities as regular practice

Case of detention in inhumane

conditions of those apprehended

• operational plan:

- should include human rights guarantees (Art. 4, Frontex Sea Operations Regulation, 2014)

- failing to include them = violation of positive obligation

- co-drafted by Frontex

• sufficient degree of direction and control, direct responsibility (Art. 15 ILC Articles)

• ECtHR, Hirsi v. Italy (operation Nautilus 2009)

• duty to refrain from acts and omissions, that foreseeably expose individuals to ill-treatment

• The Executive Director shall suspend or terminate operations when serious or persistent violations (Art. 3(1)a (2011))

• assisting in the commission of an internationally wrongful act(Art. 14 of ILC Articles)

• Systematic detention of irregular migrants in Greece. 12,000 irregular migrants detained during the first RABIT operation, Art. 4 Charter

• Frontex has co-leading role in operations, drafting operational plan (Art. 3a (2011 Frontex Regulation))

• risk analysis carried out by Frontex, technical and other assistance

• indirect responsibility for assisting in the commission of the violation (Art. 14 of ILC Articles)