A ‘Blind Spot’ in the Framework of International Responsibility? Third Party Responsibility for Human Rights Violations: The Case of Frontex
Forthcoming in T Gammeltoft-Hansen, J Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement (2015)
20 Pages Posted: 9 Apr 2015 Last revised: 18 Apr 2015
Date Written: April 6, 2015
Within the areas of immigration, asylum and external border control, the European Union (EU) and its member states have often been caught between the conflicting goals of protecting human rights whilst at the same time tightening up immigration laws and external border controls. One of the areas increasingly subject to human rights criticism is that of cooperation in the management of external borders. Even though this is part of a more general trend towards international cooperation in migration control, the mutual assistance between EU member states is remarkable in its extent and institutionalisation.
In 2004, the Agency for the Management of Operational Cooperation at the External Borders of the EU Member States (Frontex) was created. Its task is to ensure the coordination of the actions of member states in the implementation of Union measures relating to the management of external borders. The agency provides technical expertise, facilitates the exchange of information and coordinates operational activities of member states. Within this framework, Frontex also coordinates joint border control and surveillance operations in which financial and technical means as well as personnel are deployed by participating member states and Frontex to support a host member state in the control of their external borders. On 1 November 2014, for example, a Frontex-coordinated joint operation named ‘Triton’ started its activity in the Central Mediterranean in support of Italy’s efforts to control its southern border. In addition to Italian personnel and equipment, Triton relies on human and technical resources made available by twenty-one participating member states. The contributions include aircrafts, helicopters, vessels and a total of sixty-five guest officers for intelligence gathering and identification screening purposes.
Apart from the challenges relating to reach, applicability and enforcement of human rights, these operations raise the question of how to allocate responsibility between the cooperating actors, in particular where allegations of human rights violations arise. This in turn reflects a more general difficulty to deal with multi-actor situations, that is to say instances where several actors cooperate in or contribute to the realisation of a breach of international law, in the law of international responsibility.
The central aim of this contribution is to explore responsibility of ‘third parties’, understood as those states or international organisations that merely contribute to a violation and are thus not the principal actors to whom the relevant conduct in breach of human rights is attributable. Attribution, as a precondition for responsibility, is binary. Hence there is no possibility of ‘a bit of attribution’ triggering ‘a bit of responsibility’. Put simply, no attribution of the relevant conduct in breach of the law means no responsibility. Contributions to a wrong that remain below the threshold required to create an ‘attribution link’ thus seem to escape responsibility. The question therefore arises whether third parties operate within a ‘blind spot’ of the framework of international responsibility, making the primary actor the only bearer of the consequences following from the breach. For example, are those participating in a Frontex-coordinated operation released from responsibility for alleged human rights violations occurring during operations, if the relevant conduct is not attributable to them?
After setting out how the rules on attribution of conduct, coupled with the principle of independent responsibility, lead to a ‘gap’ in responsibility regarding those whose involvement falls short of creating an ‘attribution link' (section 2), this contribution divides third party responsibility into two categories (section 3). These two forms, original third party responsibility and derivative third party responsibility, shall be discussed in more detail in sections 4 and 5 respectively. The case of Frontex-coordinated operations, focusing on participating states’ responsibility under the European Convention of Human Rights [ECHR or ‘the Convention’], serves as an example to illustrate the application of these forms of responsibility. It is argued that international law, and even to a larger extent human rights law, offer mechanisms to hold third parties responsible for having played a role in breaches committed by other states or international organisations. However, even though third parties by no means operate within a ‘blind spot’ of the law of international responsibility, implementation of such responsibility may prove difficult in practice.
Keywords: International Law, Human Rights, European Convention on Human Rights, Frontex, Responsibility, Positive Obligations, Aid or Assistance
JEL Classification: K33
Suggested Citation: Suggested Citation