Responsibility of international organizations for human rights violations: the case of Frontex

Universiteit Leiden Chiara Loiero – s1162314 LLM – Public International Law 2014/2015 La tesi affronta la seguente questione: è possibile individuare una responsabilità internazionale in capo all’Unione Europea per eventuali violazioni di diritti umani commesse nel contesto di operazioni di controllo delle frontiere coordinate dall’Agenzia Frontex? Prendendo spunto dalle regole sulla responsabilità delle organizzazioni internazionali adottate dalla Commissione di Diritto Internazionale, la tesi propone alcune ipotetiche conclusioni circa la possibile responsabilità dell’UE per violazioni di diritti umani commesse in occasione di operazioni in cui la stessa agenzia Frontex è coinvolta. Tale analisi, seppure resa più complessa dalla mancanza di una chiara demarcazione delle responsabilità tra le diverse entità in gioco e dalla non totale trasparenza dell’agenzia circa le sue attività, mira a promuovere un maggiore rispetto dei diritti umani attraverso il rafforzamento dei principi di responsabilità e certezza giuridica all’interno dell’UE e delle agenzie ad essa collegate. Responsibility of international organizations for human rights violations: the case of Frontex. Tesi di Chiara Loiero

Introduction

The proliferation of international organizations (hereinafter: IOs) and the breadth and importance of their activities pose increasingly complex challenges; some organizations operate in delicate contexts, directly impacting security, democracy and human rights. Therefore, it cannot suffice to rely on the presumption that IOs are generally and inherently “good” [[J. Klabbers, Unity, Diversity, Accountability: The Ambivalent Concept Of International Organisation, 14 MJIL 149 at 153 (2013); M. Parish, An essay on the accountability of international organizations, 7 IOLR 277 (2010).]]. On the contrary, it is fundamental to ensure that States, being subject to international law and human rights law on their own, ensure the same respect for international law and human rights within the IOs that they set up. As obvious as it may seem, since IOs are a ‘product’ of international law, this is not to be taken for granted, but to be carefully assessed in each case. In light of this, the aim of this thesis is to provide an analysis and assessment of the activities of Frontex, the European Agency for the management of the external borders of the EU, from the perspective of international law. In particular, a theoretical application of the rules on responsibility of IOs to the activities of Frontex will be carried out; the purpose of this operation is to ascertain whether and on which basis the EU could bear itself responsibility for human rights violations committed during Frontex-coordinated border control operations. In order to reach this purpose, the thesis will proceed in the way that will be now described. The first Chapter of the thesis will outline the basis on which IOs can be held responsible under international law for their wrongful conduct, by outlining the main rules governing the regime of responsibility of IOs. Accordingly, it will start by presenting and defining IOs; then, the concept of accountability will be briefly addressed, focusing in particular on its legal aspect, that of responsibility. In this context, the concept of international legal personality (ILP) of IOs will be presented, being a preliminary condition to hold an IO responsible on the international plane. Subsequently, the fundamental components of responsibility of IOs will be introduced and briefly presented; in this regard, the work of the International Law Commission in drafting the Articles on Responsibility of International Organizations will be duly taken into account, representing an authoritative guidance as to the relevant law and its development, to say the least [[C. Ryngaert, The European Court of Human Rights’ approach to the Responsibility of Member States in Connection with Acts of International Organizations, 60 ICLQ 997 at 999 (2011)]]. In the subsequent chapters, the focus will be moved towards a specific case that will illustrate how both crucial and difficult is to reconcile theory and practice. For this purpose, the specific and peculiar example of European Agency for the Management of Operational Cooperation at the External Borders (Frontex) will be analysed. The case of Frontex can indeed give a clear example of how even a highly developed, integrated and human rights-oriented organization such as the European Union can reveal to be in fact not impeachable. From another point of view, the example will be useful to grasp the difficulty and, at the same time, the importance of identifying the boundaries of responsibility between the organization and its member states. The second chapter will thus focus on Frontex, in order to understand its nature and role; this is indeed necessary in order to address the issue of the division of responsibility for human rights violations between Frontex and the member states participating in its operations. For this purpose, an overview of the legal basis and mandate of the Agency will be offered; its main tasks will be described, with particular reference to the coordination of joint operations (JO). This overview will permit to grasp the main issue at stake, which also constitutes the wrongful conduct in relation to which responsibility is discussed: the human rights violations that regularly occur during Frontex coordinated operations. Once identified the problem, the legal framework governing Frontex’ activities will be outlined. Subsequently, in the third chapter, a synthesis of the elements presented in the first two chapters will be carried out. In particular, the rules on responsibility of IOs will be applied, in a theoretical way, to Frontex’ activities, with the purpose of assessing specifically whether Frontex -or the EU- could bear responsibility for violations occurred during Frontex-led operations. For this purpose, it will be first identified which entity, between Frontex and the EU, would hypothetically bear responsibility for such violations; subsequently, some hypothetical conclusion in terms of responsibility will be proposed. In this process, extensive reference will be made to the ARIO rules that appear more suitable to the case. Moreover, a brief overview will be given of possible remedies available to individuals who suffer human rights violations against the EU, in the event that these are attributable to the organization. The thesis will be then concluded with a concise reflection on the possible value of the analysis carried out.

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