September 21, 2011

VI. The Fragmentation of EU Responsibilities

Member State Responsibility

Although participating states did not exercise operational command over their border guards deployed with Frontex’s RABIT 2010, they were nonetheless accountable for human rights violations that arose as a result of their co-operation with Greece. In several cases, the European Court of Human Rights (ECtHR) has established that the delegation of state powers to international organizations is limited by the requirement that international organizations adhere to human rights norms. Thus, when agents of participating states knowingly transfer migrants to inhuman and degrading treatment, those countries, too, are liable for violations of their international obligations.

EU member states and other participating European states, many of which have stopped transferring migrants to Greece under the Dublin-II agreement in the wake of M.S.S. v Belgium and Greece, should not turn a blind eye to what their border guards are doing while deployed under the auspices of an EU agency.[152] That RABIT border guards wear their own national uniforms underlines that they act in the name of their home countries. In order not to be complicit in inhuman and degrading treatment of detainees, participating states should condition future involvement in RABIT and similar deployments on there being no co-operation in activities which will lead to the ill-treatment of detainees.

Frontex and Greek Responsibility

In its analysis of Greece’s failures to address the protection emergency in Evros, the FRA goes into some detail about what it calls “the fragmentation of responsibilities for migration” in the Greek government.[153] The agency makes some important points on the lack of clarity on the coordination and the division of labor among several government bureaus. But the fragmentation of responsibilities is not limited to the Greek domestic authorities. It can also be applied to the division of labor among domestic and international actors.

Traditionally, sovereign states have the primary responsibility for ensuring human rights. On the other hand, Frontex has focused solely on enforcement. During RABIT 2010 this EU agency operated alongside a Greek sovereign authority that purportedly had sole responsibility for protection but that was not fulfilling its obligations to provide protection. Therefore, migrants and refugees confronted enforcement barriers (enhanced by Frontex’s engagement) without the requisite human rights and refugee rights protections that provide remedies against unbridled enforcement.

 As Frontex continues to operate in Greece, and other places, Human Rights Watch believes such an unbalanced and unaccountable situation is unsustainable and dangerous for migrants, asylum seekers, and refugees.[154]

 

[152] On the importance of precedent in the ECtHR, and of national officials taking into account Convention rights, including the jurisprudence on them, see Alec Stone Sweet and Helen Keller, “The Reception of the ECHR in National Legal Orders,” in Keller and Stone Sweet, eds, A Europe of Rights (Oxford, 2008), p. 14.

[153] FRA report, p. 14.

[154] On the importance of accountability mechanisms in international executive agencies taking administrative decisions, see Benedict Kingsbury, Nico Krisch and Richard B. Stewart, “The Emergence of Global Administrative Law,” Institute of International Law and Justice (2005), http://www.iilj.org/GAL/documents/TheEmergenceofGlobalAdministrativeLaw.pdf (accessed April 14, 2011).