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Book Review: Frontex and Human Rights: Responsibility in 'Multi-Actor Situations' under the ECHR and EU Public Liability Law



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Giulia Raimondo is a PhD candidate in International Law and a Teaching Assistant at the Graduate Institute of International and Development Studies in Geneva. She obtained a law degree from the Catholic University of Milan and a Master of Laws from McGill University, Montreal. While attending law school, she worked as a legal trainee at the Tribunal of Milan, where she assisted the Judge of Appeal during proceedings pertaining to asylum seekers in Italy.

Review of Frontex and Human Rights: Responsibility in 'Multi-Actor Situations' under the ECHR and EU Public Liability Law, by Melanie Fink (Oxford University Press, 2018.

Lack of responsibility is at the heart of the European Union (EU) political controversies on migration and asylum matters. While the race to the bottom of who can take the least responsibility for people rescued at sea continues, the EU is implemented a reform of the European Border and Coast Guard Agency, Frontex. Frontex coordinates, and to various extents influences, the collective border control activities led by Schengen states at the EU external borders. In April, the European Parliament approved the political agreement reached by the EU Institutions to strengthen Frontex, endowing it with greater human and operational capacities. According to the new regulation, Frontex will be equipped with a larger standing corps of 10,000 border guards by 2027 and will have stronger enforcement powers with regard to its involvement in return operations as well as in the cooperation with third countries. While the agency’s human rights compliance remains a serious challenge to its legitimacy, the priority seems to be the securitization the EU external borders through a more ‘effective’ European Border and Coast Guard Agency.

Human rights violations occurring during Frontex-coordinated joint operations involve the personnel and equipment of both the agency and various EU member states. In such cases, the responsibility for the harmful consequences of Frontex joint operations is  dispersed among the many actors involved in the European integrated border management system. The issue of the human rights violations occurred during Frontex coordinated border control operations has been reported by several NGOs (see, e.g. here, here and here). The UN Special Rapporteur on the Human Rights of Migrants, the European Ombudsman as well as the Human Rights Committee on Migration, Refugees and Displaced Persons of the Council of Europe have also raised concerns and questioned the agency’s human rights compliance. Legal doctrine has also analysed this issue from various angles (see, e.g. here, here, here and here). However, an exhaustive study of the legal questions related to the distribution of responsibilities for potential migrants’ rights violations during Frontex joint operations was lacking.

Melanie Fink has skillfully tackled this issue in her book titled Frontex and Human Rights. Responsibility in 'Multi-Actor Situations' under the ECHR and EU Public Liability Law. The monograph is based on the author’s PhD thesis defended in 2017. This is a particularly timely contribution since it looks at the issue of attribution of legal responsibility for human rights violations from both an international and EU law perspective. Fink offers a clear and systematic analysis of the legal and practical complexities in ascertaining the existence and extent of the respective responsibility of each actor involved in Frontex activities. She examines these questions through the lenses of the European Convention on Human Rights (ECHR) and EU law. Fink’s assessment of these complex legal issues is rigorous, well-organised, and written for specialists in this area of law. The strength of this book lies in the detail and accuracy of the author’s research. Her meticulous study of the relevant doctrine and case-law coupled with the interviews she conducted with various Frontex officers provides the reader with a clear picture of the complex network within which the agency operates.

The book starts with a general outline of the author’s research, coupled with concrete examples of the issues at stake in the context of Frontex-coordinated joint operations. The second chapter provides the reader with a clear and well organised portrayal of Frontex and its action. It dexterously combines desk and field research resulting in a detailed explanation of the relations between the agency and member states authorities. This serves as the basis for the analysis related to the attribution of responsibility that is addressed in the two core chapters of the book.  The third chapter addresses the issue of attribution of international responsibility for violation of the ECHR. Here, the author makes a masterful use of legal doctrine and case-law from the European Court of Human Rights.

The fourth chapter is devoted to the attribution of responsibility – which under EU law takes the name of “liability” – under EU public liability law. Fink provides a comprehensive and thorough analysis of the rules governing attribution of responsibility under EU law in the context of fundamental rights violations. This chapter is particularly welcome as it covers an area of the law that was relatively under-researched. The last chapter recapitulates the main findings of the book and proposes some policy recommendations. In particular, Fink underscores the necessity for the EU to sign the ECHR and emphasizes the need to set up a specific fundamental rights complaint procedure under EU law. The results of Fink’s well-documented study are neatly summarized in tables and applied to concrete situations. Overall, the book provides the reader with a much needed, clear, and in-depth analysis of the factual and legal scenarios that can take place during Frontex joint operations.

On a critical note, the title of the book - Frontex and Human Rights - may be somewhat misleading. On the one hand, this work is not merely about Frontex, but about the complexity of the network in which the agency operates; on the other hand, the book is not utterly devoted to the EU (and Frontex) international obligations under human rights and refugee law, but to the allocation of the legal responsibility that the breach of such obligations might entail. It would have been interesting to read more about the human rights obligations of Frontex and its member states when it comes to border controls.

That said, Fink’s study is without question a fundamental contribution to the discussion about the responsibility of the EU for human rights violations in the context of border control and return operations under the aegis of Frontex. This book would be thus of great interest to policy makers, judges, lawyers and all those interested in EU migration law and in problems of attribution of responsibility for human rights violations in the context of the emerging European integrated border management system.

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How to cite this blog post (Harvard style) 

Raimondo, G. (2019) Book Review: Frontex and Human Rights: Responsibility in 'Multi-Actor Situations' under the ECHR and EU Public Liability Law. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/07/book-review (Accessed [date])

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