On the night of September 08, 2020, the infamous refugee camp in Moria, Greece, was destroyed after a huge fire brought to ashes its facilities and surroundings and left its approximately 13,000 residents stranded in the streets of the island. The camp, which was originally designed to host less than 3,000 people, was elevated to a symbol of the European Union’s (EU) failed asylum policy and a portrayal of its Member States’ (MS) solidarity deficit concerning asylum management. The images of children, women -even pregnant ones- and elderly people sleeping on the streets or local graveyards, circulated by media outlets in Europe and the rest of the world, illustrated the desperation of the camp’s residents and served as a punch in the stomach of every European concerning the inadequacy of the EU to safeguard the basic human rights of those most in need. EU’s political accountability for allowing the situation to reach a point of no return and for showing its slow reflexes to deal with the crisis created is an ongoing discussion steered by numerous international stakeholders; nevertheless, the less discussed issue of EU’s potential responsibility under international law for this situation will be discussed here.
Setting the facts: an overview of the living conditions in Moria
The Moria Reception and Identification Centre located in Lesvos island, on the borders of Greece and Turkey, was the largest refugee camp in Europe and better known in public discourse as ‘the worst refugee camp on earth’. With thousands of asylum-seekers trapped in the island following the 2015 mass refugee influx and the 2016 EU-Turkey Statement, Moria had taken more than 20,000 people, corresponding to seven times its capacity. This situation was only aggravated by the lack of adequate hygiene facilities and supplies, poor housing conditions and inexistent or culturally inappropriate provision of food. What is more, the camp lacked facilities specifically designed and designated to host vulnerable groups of individuals, such as (unaccompanied) minors, women, persons with disabilities, senior individuals and victims of trafficking and/or gender-based violence; this only resulted in people living in a constant state of fear of falling victims of unprovoked, aggravated and gender-based violence, while the best interests of minor residents were completely neglected.
EU’s apathy towards the situation that was created all these years in the Moria camp under its own auspices and via its funding, despite the repeated calls from human rights organisations to evacuate, transformed human despair in the new normality. In the same fashion, EU’s reflexes proved inadequate to accommodate the humanitarian crisis that erupted after the fire in Lesvos, with the desperate images of people sleeping on the streets and lacking access even to drinking water and sanitation for approximately a week appearing in media outlets.
From a public’s eye: Media reception of EU’s role on the situation in Moria.
After the shocking images and cover stories flooded national and international media outlets, the Moria fire reignited the debate concerning the living conditions in EU hotspots. Harsh criticism ensued and the situation was labelled as a disgrace for the European values while media and NGOs, such as Oxfam, called on the EU to stop denying its responsibilities and own up to its fallacies that caused a humanitarian crisis. The fact that the Union, following the establishment of the hotspots in 2016, practically abandoned not only the management of the centres but also their residents was also highlighted to showcase the Union’s insufficient strategy and lack of will to accommodate the situation in hand. Moria became the example to be avoided regarding management of asylum-seekers’ reception in Europe. At the same time, the fire flamed a more general debate and was considered as an opportunity for the EU to rethink its asylum policies or, more precisely, its failures thereon that has led to multiple crises. As eloquently illustrated in an Opinion published by Bloomberg only two days after the Moria tragedy, the fire was ‘blowback for one of the European Union’s worst failures on an admittedly long list: its inability to fix a broken refugee system’.
The Whos and the Whats. Does the EU have obligations under international law?
The first element on which international responsibility of an International Organisation (IO) is premised, according to article 4 of the 2011 ILC Draft Articles on the Responsibility of International Organisations (DARIO), is the breach of an obligation the IO has under international law. Such an obligation might derive from any source of international law (DARIO, Commentary to art. 10, para 2).
Reviewing the factual situation in the Moria camp it can be concluded that violations of the rights to life, physical integrity -including human health, human dignity and breaches of the prohibition of torture and inhumane or degrading treatment have possibly taken place. However, has the EU as an IO breached any of these international obligations? To begin with, one must answer whether the EU as an IO is bound by international law in general. The EU has indeed a unique ‘supranational’ character, in the sense that its MS have transferred to it various competences traditionally attached to national sovereignty, while the EU can take decisions binding its MS. Regardless of this internal structure, EU remains an IO whose relations with the rest of the international community and its actors are governed by the provisions of international law (CJEU cases A. Racke GmbH & Co. v Hauptzollamt Mainz, para 45 and Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, para 291).
Additionally, EU might arise, based on its internal system, for breaches of fundamental rights, according to article 340(2) of the Treaty on the Functioning of the EU (TFEU). Such liability comprises of three cumulative elements: (a) unlawful conduct (b) the existence of damage and (c) the causal link between the unlawful act the damage to the individual (CJEU, Alfons Lütticke GmbH v Commission of the European Communities, para 10). Given the limited nature of this review, human rights violations as unlawful conduct will be our primary concern. Within the Union’s legal order, its organs and agents, as well as states acting with the scope of EU, are bound by the Charter of Fundamental Rights, according to article 51(1) of it. Article 2 of the Charter provides for the right to life, article 3 for physical and mental integrity and article 4 prohibits torture and inhuman or degrading treatment. It is safe to consider that these provisions are conferring rights to individuals (Explanation to Article 52(5), Opinion of AG Cruz Villalón in Association de médiation sociale case, paras 45, 47) and their violation is considered serious enough per se in order to give rise to the Union’s liability. However, it must be noted that liability of EU organs, such as the European Asylum Support Office (EASO) for breaches of the Charter remains a predominantly internal matter of the Union, considering also that the CJEU holds the exclusive power to adjudicate on such cases, according to article 268 TFEU.
As far as human rights treaties are concerned, the EU is bound only by the Convention on the Rights of Persons with Disabilities (CRPD), its second effort to become party to the European Convention on Human Rights (ECHR) having failed in 2014 following EU Court of Justice’s (CJEU) Opinion 2/13. Regarding the CRPD, articles 15, 16(2) and (3) and 25(b) explicitly call the parties to the Convention to take positive measures in order to fulfil their responsibilities and ensure safety and well-being of individuals with disabilities; failure to abide by these treaty provisions could trigger the EU’s international responsibility.
While the EU has established its own internal human rights protection system with the Charter having a primary position in it, this system does not mirror the range nor the depth of obligations (p. 8) undertaken by its MS that have also ratified UN human rights treaties. This is the case, firstly, because the Charter does not include specific rights pertaining to the conditions of asylum seekers, such as the rights of minorities (article 27 ICCPR) or the right to adequate housing and food (article 11 ICESCR). Secondly, the CJEU, as the body exclusively responsible for interpreting EU law, has been rather persistent that while respect for human rights constitutes a pre-requisite for the legality of EU actions, the Union lacks the necessary competence to proactively pursue the establishment of a comprehensive human rights policy. The Union’s role is limited to ensuring respect (negative aspect of protection) for human rights (CJEU, Opinion 2/94 Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para 27), while positive obligations, such as the one to prevent other entities, including MS, from violating human rights are not recognised, not even in the Charter (Explanation to Article 51, para 1).
Therefore, one question keeps persisting: is the EU really bound by any obligation(s) to prevent violations of human rights? Even though the EU is not party to any international human rights treaties (besides the CRPD) and the duty to prevent is not prescribed in EU’s internal legal order, the Union remains obliged to adhere to rules arising from customary international law (CJEU, Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, para 101). Therefore, if one or more human rights have obtained the status of CIL, the EU is bound by the entirety of created obligations, negative or positive. In particular, the rights to life and physical integrity (Diplomatic and Consular Staff in Tehran, p. 42) as well as the prohibition of torture and inhuman or degrading treatment (A/HRC/25/60, para 22) have obtained the status of international custom. Additionally, it has been recognised that the basic rights of the person (such as life, integrity and human and dignified treatment) are erga omnes in nature (Barcelona Traction Light and Power Co. Ltd. (Belgium v. Spain), p. 32) meaning that their protection is an obligation owed to the international community as a whole.
Delving into the specificities concerning the right to life in particular, it indisputably prescribes positive obligations (ECtHR, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, para 130) dictating states and IOs to ‘prevent third parties from interfering in any way with the enjoyment of the right’ (CESCR, General Comment 14, para 33); thus, the obligation to prevent illegal actions endangering the right to life (i.e. the deprivation or threat of life) is recognised as part of CIL. This means that the EU might be internationally responsible not only when it violates obligations directly binding it, such as the protection of and non-interreference with the right to life, but also by violating its ancillary obligation to prevent the international wrongdoing of its Member States that violate the right to life (G. Gaja, SHARES Research Paper 25, para 8). It must be noted though, that, as Gaja explains, international responsibility is triggered not in connection to the obligation of the respective MS under international law but by the specific subsidiary obligation of the EU, which in this case is the obligation to prevent MS from violating human rights.. Failure to prevent potential violations of the right to life depends, firstly, on the capacity of an IO ‘to influence effectively the actions of persons likely to commit, or already committing’ (Bosnian Genocide case, para 430) human rights violations. To determine the IO’s capacity to prevent, factors such as the political links between the different actors and the IO’s potential limitations to act based on its internal rules of organisation shall be taken into consideration. Secondly, constructive knowledge that a breach will occur is required for the obligation to prevent to be triggered. Applying the test to the EU, it becomes obvious that it is specifically its internal structure that allows it to have full knowledge of the conditions in EU-funded hotspots and be in a position to prevent violations of the right to life, especially since violations were brought to common knowledge by various stakeholders, such as Amnesty International and the Greek Council for Refugees.
Concerning the obligation to prohibit torture and inhuman or degrading treatment, inadequate provision of basic living conditions and necessary items, such as housing, healthcare, food, sanitary facilities, in refugee camps, in combination with the vulnerable state of asylum-seekers has been recognised as a violation of the prohibition of inhuman treatment (ECtHR, M.S.S v. Belgium and Greece, paras 249-264). Such violation extends also in the case of treatment causing either bodily injury, intense physical or mental suffering or a feeling of fear and anguish to the victims (ECtHR, Peers v. Greece, para 74).
The condition in Moria as described previously suffices without a doubt to trigger the international responsibility of the EU. Firstly, the fact that the EU has failed to prevent the mistreatment of persons with disabilities and has not put additional pressure on the adoption of special protective measures concerning facilities, professional support and healthcare by the Greek authorities constitutes a clear violation of its conventional obligations under the CRPD. Secondly, the EU has breached its customary obligations to take measures in order to prevent violations of the rights to life and physical integrity as well as of the obligation to prevent inhuman treatment in hotspots camps.
Lastly, it is worth mentioning that the EU is bound by positive obligations in relation to the right to life (I-ACmHR, Victims of the Tugboat ‘13 de Marzo’ v. Cuba, para. 79) and the prohibition of inhuman and degrading treatment (I-ACtHR, Juridical Condition and Rights of the Undocumented Migrants (Advisory Opinion), paras 97-101) which have acquired the status of peremptory norms of international law. In this case, the EU is under the additional obligation, under Article 42(2) DARIO, not to provide any aid or assistance to a state violating rules of jus cogens like the ones mentioned.
Can we really point fingers? The struggle to attribute unlawful conduct to the EU.
The second constitutive element of IO international responsibility, according to article 4 DARIO, is attribution of the unlawful conduct to the IO in question. In the case at hand, and based on the DARIO, attribution could be premised on two provisions: (a) direct attribution of conduct, when the breach is conducted by the IO’s organs or agents (Article 7 DARIO) and (b) indirect attribution of responsibility, when the IO aids or assists the breach of international law by another state or IO (Article 16 DARIO). This second element of establishing responsibility happens to be the most challenging one; IOs are distinct actors of the international community having their very own legal personality different from their MS meaning that MS conduct can rarely be attributed to them and vice versa. However, the borders get more blurry with IOs such as the EU, where the MS have transferred a wide array of competences to it, thus negating elements of their own decision-making capacity and empowering the IO to take decisions for them without them.
(a) Wasn’t me, solve it with the MS: Is direct attribution of conduct to the EU really a lost cause?
In the case of border facilities management, the EU has in fact a fairly limited role when it comes to ‘getting its hands dirty’. The asylum policy constitutes part of the Union’s long-lasting aim to establish a common area of freedom, security and justice, thus falling under the Union’s shared competences. This means that the EU has delegated the majority of the policy’s implementation responsibilities to its MS, while on the EU level asylum-seekers reception conditions are predominantly regulated via Directives that allow for a wider margin of appreciation by the MS.
The revised Reception Conditions Directive (RCD) sets the standard principles EU Member States must adhere to when dealing with third-country nationals or stateless people requesting international protection. Nonetheless, in such situations, MS maintain a wide margin of discretion to act within their domestic competences, based, among others, on their financial capabilities and the capacity of their justice system to complete asylum procedures quickly. The fact that the RCD includes various positive obligations addressed to the MS concerning the establishment of appropriate means of living, accommodation and health care, shows that –prima facie- EU agents (namely the institutions included in the process of drafting the Directive) have not violated any of the Union’s international responsibilities.
Direct attribution of conduct to the EU is further hindered by the fact that the Strasbourg Court has established the presumption that the EU legal system, part of which is the European Common Asylum System and the RCD, provides protection to human rights in a manner equivalent to the ECHR system, thus requiring proof of manifest deficiencies in the protection scheme in order for the assumption to be rebutted and unlawful conduct to be recognised to the EU (ECtHR, Bosphorus Airways v. Ireland, paras 155-156 and 165). This is only exuberated by the fact that EU organs and agents (such as EASO organs) are rarely part of the decision-making process and hierarchy, while their role remains also limited when it comes to implementation of asylum policies inside the camps; therefore, the instances where their conduct, directly attributable to the EU, could violate in such a manifest way human rights.
Even though the EU might not be responsible because of actions it has taken, the omission of its institutions to act in accordance with their duty to prevent, could be directly attributed to the Union. First, failure of EU institutions to take measures in order to prevent violations of the right to life and prohibition of torture and inhumane or degrading treatment are established by applying the already-mentioned capacity test. At the same time, the provisions of the CRPD are very clear. State and IO parties must take positive measures to prevent violations and promote the rights of people with disabilities. Lastly, while there was no human possibility to predict the fire in the Moria camp, it was easy to predict that the following days, 13,000 people would end up in the streets taking into consideration the lack of facilities to accommodate them. In the present case, under article 17 of the Treaty on European Union, the European Commission has the role to ensure that EU law is properly implemented by the MS, including of course respect towards human rights obligations. Therefore, the European Commission by failing to take the necessary measures within its capacity, meaning either to initiate infringement procedures against Greece under article 258 TFEU or minimize the funding provided to Greece unless the living conditions improved, violated its obligation to prevent the unlawful conduct by the state. Therefore, such an omission could be directly attributed to the EU and establish its international responsibility.
(b) Wasn’t there, didn’t see: Indirect attribution of conduct to the EU
The second possibility of attribution arises in case the IO aids or assists the illegal conduct of another IO or state. Article 16 DARIO requires two elements: (a) a material one and (b) a cognitive one. Beginning with the material element, participation of an IO in the wrongdoing of another international entity has to be determined on a basis of its ‘substance and degree’ (Edward Horgan v An Taoiseach and others, Irish High Court, para 174), but in any event should be enough to actively facilitate or contribute to the commission of the internationally wrongful act.
Concerning the cognitive element of complicity, namely whether it is necessary for the aiding IO to have intent to facilitate such violation of international law, there has been wide scholarly discussion. It is considered, though, that the cognitive element of an IO is fulfilled once aid is deliberately provided without it being obliged to have full awareness of the assistance’s ultimate use by the receiving entity. At the same time, it has been argued that it is not necessary to show that an IO had intention for its assistance to be used for the wrongful act committed nor that it wanted the particular outcome of the conduct; as long as the IO was aware or should have been aware of the potential risk of providing this assistance, attribution can be established (ECtHR El-Masri v “the former Yugoslav Republic of Macedonia”, para 239).
In the case of the Moria camp, the EU could potentially be considered responsible as complicit for funding a project that admittedly and publicly violated basic human rights, especially considering that the hotspots concept was initiated by the European Commission as a solution after the 2015 refugee crisis. As already mentioned, the EU will have separate and additional responsibility to that of its MS, which will be based on its contribution to the unlawful conduct in question (by analogy to article 14 ASR).
More specifically, all elements of article 16 DARIO seem to be fulfilled. First, knowingly prolonging financial assistance to a state for managing a specific project that is widely found by NGOs as violating human rights, fulfils the requirement of the IO acting in knowledge of the circumstances which constitute the state’s unlawful conduct. The funding of the EU without any doubt is the predominant condition for the situation in the hotspot camps to continue existing and thriving, thus the material element required by the article is also fulfilled. This is only elevated in the case of CRPD where the obligations to prevent the rights of persons with disabilities are clearly stated and directly binding.
Amidst recurring calls for further ‘Europeanisation’ of refugee camps management, especially on the Greek islands, the European Commission agreed with the Greek authorities to establish a new and up-to-standard reception centre on Lesvos by September 2021 while maintaining a minimal, non-existent, involvement in its administrative or practical management. Just a few months ago, the proposal for a New Pact on Migration and Asylum was released; seemingly prioritising solidarity and cooperation among Member States, it provides no indication that the Union aims to take more responsibilities on the field. A tentative final remark could point to the conclusion that should the EU be in charge, both legally and practically, concerning the management of its hotspots, its international responsibility would be more straightforward to establish; in this case, acts and/or omissions violating international law would be the direct result of IO and not Member State(s) conduct.