Frontex’ involvement in illegal pushbacks and EU’s possible international responsibility

The Mediterranean Sea is considered one of the deadliest routes for migrants and refugees from the Middle East and North Africa (MENA) area. The past decade has seen increased numbers of people fleeing their homes in the hope of safer refuge in European countries. The number of refugees passing through the Mediterranean Sea reached staggering levels in 2015, with approximately 1 million people arriving at the European shores and approximately 3,500 drowning in the process that year.

Sea border and refugee/migrants flows management in the EU have been closely associated with a single agency, i.e. Frontex. Frontex was established in 2004 with Council Regulation (EC) 2007/2004 and, following the 2015 so-called refugee ‘crisis’, Frontex was revamped with Regulation (EU) 2016/1624. The latest review of the agency’s structure and mandate was made with the 2019 European Border and Coast Guard Regulation (EBCG Regulation).

The European Border and Coast Guard Agency has been repeatedly accused of actively participating in or aiding unlawful pushbacks and ill-treatment of refugees both at sea and land. In 2020, there has been a dramatic rise in allegations, elaborated by European and global media, as well as various human rights Non-Governmental Organisations (NGOs), concerning Frontex involvement in pushback operations in both the Mediterranean and the Balkan routes. In order to prevent and address such situations more effectively the EU Agency for Fundamental Rights singed an agreement with Frontex in order to facilitate the establishment of monitoring bodies within Frontex specifically addressing fundamental rights concerns. Additionally, these very serious allegations led the European Parliament, among other actors, to raise the question of the Agency’s accountability therefor, which resulted in the European Commission taking official action by enacting hearings and placing under scrutiny Frontex’s management board and Executive Director with regard to the reported incidents.

The political responsibility of the EU, especially of the European Commission, has been discussed and analysed in multiple fora; however, the clouded matter of the Union’s legal responsibility on the international level will be the subject-matter of the current post.

In principium: Are we talking about Frontex, the EU or both being potentially responsible?

The possibility to be held internationally responsible is a corollary of international legal personality, i.e. the ability to bear rights and duties on the international level (ICJ, Reparation for Injuries suffered in the Service of the United Nations (Advisory Opinion), p. 178). Besides states, which are considered the primary bearers of international responsibility, each other entity’s personhood, including that of International Organisations (IO), must either be explicitly conferred or implied. It is considered that an IO’s international personality is implied once the body in question was intended and actually exercises functions and rights on the international plane which are closely related and can solely be explained in relation to the existence of personhood (ICJ, Reparation for Injuries Advisory Opinion, p. 179).

In order to effectively allocate any potential responsibility for the alleged pushbacks of refugees it is crucial to determine whether Frontex could qualify as an IO of its own or if it constitutes an indistinguishable part of the EU’s internal structural scheme. Frontex is an agency established under articles 77(2)(b) and (d) TFEU and  79(2)(c) TFEU. As an EU agency, Frontex has two main characteristics: (a) it maintains a certain level of organisational and financial autonomy and (b) it is awarded the requisite legal personality according to article 93(1) EBCG Regulation so as to achieve its functions and duties, as provided in the said Regulation, and consequently, it can be held liable under EU public law for violations of primary and secondary EU law, including fundamental rights (CJEU, Muhamed Mugraby v. Council of the EU and European Commission, para 24, Articles 97 and 98 EBCG Regulation). The recognition of Frontex’ legal personality at the Union and domestic levels does not automatically render the agency an autonomous legal person under international law; this highly depends on whether Frontex exercises acts and functions associated with the existence of international legal personality.

On that note, indeed the Agency is afforded a wide international cooperation mandate under Article 68-78 EBCG Regulation according to which it can conclude working agreements with states, IOs or other IO agencies, such as the United Nations High Commissioner on Refugees (UNCHR) and the International Migration Organisation (IOM). Even though the legal nature of these working agreements remains vague and largely debated, a common feature is the inclusion of provisions stipulating that they are not to be considered as international agreements. Therefore, as with other agencies which retain the ability to conclude such agreements without being completely detached on an organisational level from the EU, such as EUROPOL (F. Coman-Kund, 2014 Maastricht University Faculty of Law Working Paper No. 6, pp. 36-37), Frontex cannot be considered to have a separate legal personality and, hence, its impugned conduct cannot raise its own responsibility under international law, but only that of the EU.

Is the EU bound by the principle of non-refoulement?

According to article 4 of the 2011 ILC Draft Articles on the Responsibility of International Organisations (DARIO) one of the two constituent elements of an IO’s international responsibility is the breach of one of its obligations under international law. It is accepted that international obligations incumbent over IOs can exist irrespective of their ‘origin’, meaning also under customary international law (DARIO, Commentary to art. 10, para 2).

Determining the interrelation between the EU and general international law and especially whether and to what extent the Union is bound by the latter’s rules has sparked heated debates because of the EU’s special nature as a supranational IO. More specifically, the fact that the Court of Justice of the European Union (CJEU) has constantly declared that the EU constitutes a special legal system (Flaminio Costa v E.N.E.L., p. 593), where Member States (MS) have transferred competences traditionally associated with national sovereignty, in combination with the progressive integration of human rights protection in the Union’s constitutive treaties (articles 6 and 7 TEU) and the entry into force of the Charter of Fundamental Rights, have shifted the discussion towards internal obligations concerning protection of human rights. Regardless of its internal structure and special character, the EU remains in principle an IO which is subject to international law and the obligations deriving directly from it (CJEU, A. Racke GmbH & Co. v Hauptzollamt Mainz, para 45). This also includes the obligation of the EU to adhere to rules arising from customary international law (CJEU cases, Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, para 101 and Anklagemyndighenden v. Peter Michael Poulse and Diva Navigation Corp., para 9).

The prohibition of refoulement can be found in numerous international treaties, including Article 33 of the 1951 Refugee Convention, Article 3 of the Convention against Torture, Article 7 of the International Covenant on Civil and Political Rights and Article 3 of the European Convention on Human Rights (ECHR), as it has been interpreted by the Strasbourg Court. However, as of today, the EU is not a contracting party to any of those treaties, although Article 78 TFEU specifically mentions that the Common Asylum Policy of the Union must respect the Refugee Convention and its 1967 Protocol. It must be noted though, that the principle of non-refoulement, a cornerstone of international refugee and human rights law, has been recognised as constituting part of customary international law (HCR/MMSP/2001/09, para 4), therefore fully binding the EU on the international level.

The principle stipulates that refugees cannot be returned to a territory where their life might be endangered (pp. 13-14). It must be noted that ratione personae the prohibition of illegal returns includes both officially recognised refugees as well as asylum seekers, while its ratione loci application extends to any territory where these individuals might be endangered (pp. 120-121).

From the abovementioned it becomes obvious that the EU is at least bound by the negative aspect of the non-refoulement principle, i.e. the obligation to abstain from any action that would result in sending a person back to a place where their life will be endangered. Nonetheless, the prohibition of refoulement in essence also includes an inherently positive aspect, taking into consideration that states can also be held responsible for failing to protect the individuals by expelling them to territories where they might suffer any kind of degrading treatment (M. Hakimi, State Bystander Responsibility (EJIL 2010), p. 343). Therefore, as explained in the first post on the EURIS Observatory, the EU might also be considered responsible for violating its ancillary obligation to prevent the international wrongdoing of its Member States in instances, where Frontex is involved; more precisely, failing to take all measures in order prevent coast border forces from engaging in illegal pushbacks could enact the Union’s responsibility. This responsibility to prevent, which is triggered irrespective of the Member States’ obligations (G. Gaja, SHARES Research Paper 25, para 8) is contextually linked with the due diligence principle (pp. 37-39) and presupposes the capacity of the EU as an IO to effectively influence the unlawful actions that specific persons, including its agents, are likely to commit or are already committing (ICJ, Bosnian Genocide Case 2007, para 430). In the case at hand, the drafting of Operational Plan(s) for each joint and rapid intervention operation at the external borders in advance by the Frontex Executive Director in cooperation with the host MS (Articles 38(2) and 39(8) EBCG Regulation respectively) and the Agency’s supervisory role in Operations, ensures that the EU could effectively act to prevent such violations of human rights.

Can any illegal conduct during such operations in fact be attributed to the EU?  

The second constitutive element of international responsibility under Article 4 DARIO is attribution of the unlawful conduct to the IO in question. Attribution of conduct to IOs is a rather challenging task for two main reasons: first, an IO might consist of agencies that according to its internal rules are to an extent awarded separate legal personality and second, IOs are distinct actors under international law afforded legal personality separate of that of their MS. Concerning the first issue, as discussed above, although Frontex enjoys functional and organisation autonomy to a degree, it cannot be considered distinct in relation to the EU.

The second element concerning the distinction between IOs and their MS gets trickier in the case of IOs such as the EU, where the majority of Union policies and rules are not necessarily implemented through the Union itself but via MS agents or organs. This particularity has heavily influenced EU’s position towards the DARIO, where it maintained in its comments that the ILC had to take into consideration its specific character as an ‘regional (economic) integration organization’ and implement an attribution model according to which each actor’s responsibility will be determined taking into account the allocation of competences based on EU internal law (ILC, EU Comments to DARIO, 2011, p. 6). However, this position of the EU was not eventually accepted by the ILC and for this reason, attribution of conduct, even in the case of EU, is premised on the general rules applicable to every IO. Considering the factual instances at hand, three DARIO provisions can be considered applicable: (a) direct attribution of illegal conduct perpetrated by an IO’s agents/organs (Article 6 DARIO), (b) direct attribution when the conduct is perpetrated by the organs/agents of states place at the disposal of the IO (Article 7 DARIO) and (c) indirect attribution of responsibility, when an IO aids or assists the breach of international law obligations by one or more states or IOs (Article 16 DARIO).

(a) A model of direct attribution of conduct to the EU under Article 6 DARIO

According to the Commentary to Article 6 DARIO, which primarily relies and builds upon Article 4 of Articles on State Responsibility (ASR), the conduct of organs/agents of an IO is directly attributable to it. The terms ‘agents’ and ‘organs’ are understood in the most liberal sense, thus including any organ ‘through [which the IO] acts’ (ICJ, Reparation for Injuries Advisory Opinion, p. 177) with emphasis placed on the organ’s mission instead of its administrative character and position (ICJ,  Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion), para 48).

Frontex is projected to have, per Article 54(1) EBCG Regulation, standing corps, which will consist of both statutory staff, i.e. staff employed directly by Frontex (Article 2(15) EBCG Regulation), as well as staff seconded by the MSs to the Agency for longer or shorter periods of time. According to Article 54(2) EBCG Regulation this personnel can be employed in both joint operations and rapid border interventions. In both cases, they are granted (and might exercise) operational (Articles 55(1) and 82 EBCG Regulation) as well as coordinating powers (Article 95(4) EBCG Regulation). Under those circumstances and taking into consideration the broad understanding of what an IO’s organs is, the conduct of the deployed personnel could be attributed directly to the EU under Article 6 DARIO. This is also true for the personnel that is fully seconded to Frontex by the MS (DARIO, Commentary to Article 7, para 1) in accordance with the EBCG Regulation provisions. In the case that the unlawful actions do not derive directly neither from Frontex personnel nor from staff fully seconded by MSs to it, no direct attribution can be established according to Article 6 DARIO. Besides active participation of Frontex officers and standing staff in pushbacks either at sea or land, the failure of them and the Agency as a whole to act diligently and take all necessary measures in order to prevent such unlawful conduct, constitutes a violation of the Union’s positive obligation under the non-refoulement principle which can be directly attributed to the EU.

(b) Direct attribution of conduct to the EU for acts placed at Frontex’s disposal by the MS (Article 7 DARIO)

It is in the nature of IOs -and especially ones which are as highly integrated as the EU- to make use of staff placed at their disposal by their MS. This is the case especially during Frontex joint and rapid intervention operations at sea or land, where forces and agents of multiple Member or third States are engaged therein side-by-side Frontex personnel.

Article 7 DARIO, which builds predominantly on Article 6 ASR, focuses on the responsibility of an IO for the actions of agents or organs provided to it by states or other IOs over which the providing entity retains some form of control, such as criminal or disciplinary control. The biggest difference between the provisions of DARIO and ASR is the threshold of control that must be present in order for an act to be attributed to the receiving entity and not to the contributing one. According to the wording of Article 7 DARIO it is necessary that the IO exercises ‘effective control’ over the organs placed at its disposal. The Commentary to Article 7 DARIO defines effective control as the factual control exercised over specific conduct, taking full account of the factual circumstances of a particular case (DARIO, Commentary to Article 7, para 4). In the effort to ascertain whether effective, in the sense of factual, control has been exercised by an IO (M. Fink, The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable (2020), p. 539), elements of operational command and control have been considered rather decisive, especially in instances where more than one states and/or IOs have been involved (A/51/389, paras 17-18). This threshold has also been confirmed by the case law of the European Court of Human Rights in its decision on Al-Jedda v. UK, where the conduct of deployed forces to Iraq was eventually attributed to the UK instead of the UN, due to the lack of effective control by the the UN Security Council (para 84). National courts have also applied the same threshold; for example, the Dutch Supreme Court relied heavily on the concept of effective control as provided by Article 7 DARIO in its Nuhanović decision concerning the conduct of Dutch-deployed forces in Srebrenica (paras 3.10.2 and 3.13).

Article 7 DARIO could find application to EU-led Operations within the Common Security and Defence Policy framework, which include, but are not limited to, peacekeeping missions. In these operations, even though the EU predominantly relies upon the resources and personnel provided by its MS, the Council of the European Union retains control at strategic, operational and tactical levels according to Article 43(2) of the Treaty on the European Union (EEAS (2019), EU Concept for Military Command and Control – Rev 9, paras 8-9).

However, the case of Frontex joint operations is rather different as exemplified by the provisions of the EBCG Regulation. While the Agency has an active role in financing joint operations and drafting the Operational Plans necessary for those operations in cooperation with the host MS and after consultations with other participating MSs (Article 38(2) EBCG Regulation) and at the same time maintains a coordinating role concerning the proper implementation of the decided plans (Article 44(1) and (2) EBCG Regulation), it cannot in fact directly issue any operational instructions to deployed personnel within the chain of command. More precisely, Article 43(1) EBCG Regulation stipulates that the authority to issue instructions is exclusively retained by the host Member State or in case of special agreements a third participating state, while the role of Frontex is limited to communicating its views to the host MS concerning the issued instructions (Article 43(2) EBCG Regulation), the latter ultimately being free to follow or not the Agency’s views. It becomes obvious that this level of control cannot be considered adequate under Article 7 DARIO in order for the actions of participating states, e.g. the actions of Greek coast guards, which violate, for example, the principle of non-refoulement, to be attributed to Frontex and by extension the EU (M. Fink, Frontex and Human Rights (OUP 2018), pp. 137-138). Therefore, the Union bears no international responsibility for such actions, at least as the law stands now. This situation would be different in case Frontex was afforded a more centralised role and the ability to issue instructions during joint operations.

(c) Is the EU indirectly responsible for aiding illegal Frontex conduct (Article 14 DARIO)?

Concerning the issue of derivative responsibility as enshrined in Chapter IV DARIO, the only possible scenario that could apply to the case at hand can be found in Article 14 DARIO, namely the condition of rendering aid or assistance to the commission of an internationally wrongful act. Two preconditions for the application of Article 14 are set: (a) a material one and (b) a cognitive one. Concerning the material pre-requisite it is accepted that the aid or assistance of the IO must be of such ‘substance and degree’ (Edward Horgan v An Taoiseach and others, Irish High Court, para 174) that actively facilitates or contributes to the commission of the internationally unlawful act(s).

Secondly, as far as the cognitive element is concerned, the term ‘knowledge’ used in the first sentence of the article has sparked heated discussion. On the one hand, the Commentary to DARIO (Commentary to Article 14, para 4), heavily reproducing the Commentary to the equivalent Article 16 ASR, explains that mere knowledge of the possible illegal action is not enough for the IO’s international responsibility to be invoked; it is necessary that the IO under question intended to facilitate the unlawful conduct (by analogy ASR, Commentary to Article 16, paras 4-5). On the other hand, the said criterion has been interpreted by the majority of scholars as being fulfilled once aid or assistance is indeed provided in a deliberate manner, without the full awareness of this assistance’s ultimate use by the receiving entity being a precondition. Additionally, the element of intent seems to be questioned by international case law, where it is considered that in case an entity -including IOs- was or should have been aware of the potential risk of providing assistance, attribution can be established regardless of the existence or not of intent, solely because it was expected by the said entity to act in such a diligent manner as to be(come) aware of the potential danger of its conduct (ECtHR, El-Masri v [then officially named as] “the former Yugoslav Republic of Macedonia”,  para 239).

Applying the two criteria in the case at hand, it can hardly be disputed that the EU, via Frontex, might be considered responsible for aiding the perpetration of illegal conduct in the Aegean Sea or the Balkan route against refugees. More specifically, taking into consideration the fact that as of 2018 almost 60% of the agency’s stand-alone budget was channelled to operational activities (p. 10), the contribution of the EU has to be considered as enough under Article 14 DARIO for enabling operations during which pushback incidents might happen. Secondly, as far as the element of knowledge is concerned, the repeated references by human rights NGOs, as well as media outlets, to incidents of pushbacks sufficiently corroborates the view that the EU could not be unaware of the condition. Thus, the fact that Frontex funds joint border managements operations, whether at sea and in land, as well as the fact that no action has been taken by its Executive Director under Article 46(3) and (4) EBCG Regulation in order to withdraw the financing in operations marred by accusations regarding the violation of the non-refoulement principle, could establish the Union’s international responsibility for rendering aid to internationally wrongful conduct.

Following the increase of refugees’ arrivals at the external borders of the EU in the last decade and especially after 2015, the conduct of Frontex has been in the centre of heated political debates and institutional scrutiny. The Agency’s constantly growing importance in the field of border management is clearly depicted by the increase of its budget from €142 million in 2015 to €460 million in 2020. However, the increasing incidents of pushbacks during operations at sea and land, has resulted in NGOs, such as Front-Lex and Legal Centre Lesvos taking the first official legal  actions against Frontex pursuant to article 265 TFEU, calling it to suspend operations which violate human rights. While this process showcases that intra-EU processes remain the preferred field of action for raising EU liability with regard to Frontex, the Union’s international responsibility remains a rather contested issue.

As the law currently stands, it becomes obvious that the EU is bound by the principle of non-refoulement since it has acquired the status of customary international law. On the other hand, on the matter of attribution, while the acts of deployed Agency personnel (permanent or completely seconded by Member States) can indeed create the EU’s responsibility under Article 6 DARIO, the highly decentralised character of joint operations and the important role of the MS in the command chain means that the EU cannot be considered responsible for the actions of forces offered by Member States during Frontex joint operations under Article 7 DARIO. Lastly, one aspect that must be kept in mind is the fact that the growing awareness of the mistreatment taking place during those operations can create the responsibility of the EU for aiding, via the provision of funding, acts which violate the prohibition of refoulement. Closing this short analysis, it must be recalled that, even if specific acts could be attributed to it, holding the EU legally liable in international (quasi-) judicial fora seems to be a rather impossible task for the time being. Since the accession of the EU to the ECHR was rejected by the CJEU pursuant to its Opinion 2/13, the Union could not be directly brought before the ECtHR for the illegal conduct of Frontex during its border management operations.