State shall be liable for any damage caused by members of border and coast guard
teams during their operations in that Member State.
36
Where damages are caused by gross negligence or wilful misconduct, the host
Member State may approach the home Member State to claim for reimbursement of
any sums it has paid to the victims or to any persons entitled on their behalf. Along
the same line of reasoning, the Article 110 of the UNCLOS establishes that, after the
exercise of the ‘right of visit’ by a warship, if suspicions prove to be unfounded and
provided that the ship boarded has not committed any act justifying them, it shall be
compensated for any loss or damage that may have been sustained.
37 Likewise, also
the Article 111 of the UNCLOS provides that where a ship has been stopped or
arrested outside the territorial sea in circumstances which do not justify the exercise
of the ‘right of hot pursuit’, it shall be compensated for any loss or damage that may
have been thereby sustained. As a result, in case of civil liability resulting from
interception and boarding operations on the high seas, the host Member State can be
held accountable for any damage with respect to foreign ships suspected of migrant
smuggling and engaged by border and coast guard authorities directly on the high
seas without any prior authorisation from the flag State.
In addition, in accordance with Frontex operational procedures,
38 during joint
international operations, the host Member State exercises command and control over
border and coast guard teams deployed by home Member States. Members of
the teams may only perform tasks and exercise powers under the instructions from
the border and coast guards of the host Member State. Under special circumstances,
the host Member State may authorise members of the teams deployed by home
Member States to act on its behalf.
39 Therefore, also in these cases, the host Member
State can be accountable for any misconduct of border and coast guard teams
deployed by home Member States in the execution of their tasks during Frontex
operations. In fact, the conduct of border and coast guard teams placed at the
disposal of the host Member State by the home State, under international law it
shall be considered as an act of the host Member State because these teams are acting
in the exercise of elements of the governmental authority of the host Member State.
40
36 See Art. 42 (civil liability) of the Regulation (EU) 2016/1624 of the European Parliament and of
the Council of 14 September 2016 on the European Border and Coast Guard.
37 See supra note 5.
38 See Rules of Engagement (Annex 6) of the Themis Operational Plan, Public Accessible Document version, available upon prior request to the European Agency Frontex.
39 Art. 40 (Tasks and powers of the members of the teams) of the Regulation (EU) 2016/1624 of the
European Parliament and of the Council of 14 September 2016 on the European Border and Coast
Guard.
40 See Art. 6 (Conduct of organs placed at the disposal of a State by another State) of the text adopted
by the International Law Commission at its fifty-third session on the Responsibility of States for
Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II.
13 Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and. . . 231
teams during their operations in that Member State.
36
Where damages are caused by gross negligence or wilful misconduct, the host
Member State may approach the home Member State to claim for reimbursement of
any sums it has paid to the victims or to any persons entitled on their behalf. Along
the same line of reasoning, the Article 110 of the UNCLOS establishes that, after the
exercise of the ‘right of visit’ by a warship, if suspicions prove to be unfounded and
provided that the ship boarded has not committed any act justifying them, it shall be
compensated for any loss or damage that may have been sustained.
37 Likewise, also
the Article 111 of the UNCLOS provides that where a ship has been stopped or
arrested outside the territorial sea in circumstances which do not justify the exercise
of the ‘right of hot pursuit’, it shall be compensated for any loss or damage that may
have been thereby sustained. As a result, in case of civil liability resulting from
interception and boarding operations on the high seas, the host Member State can be
held accountable for any damage with respect to foreign ships suspected of migrant
smuggling and engaged by border and coast guard authorities directly on the high
seas without any prior authorisation from the flag State.
In addition, in accordance with Frontex operational procedures,
38 during joint
international operations, the host Member State exercises command and control over
border and coast guard teams deployed by home Member States. Members of
the teams may only perform tasks and exercise powers under the instructions from
the border and coast guards of the host Member State. Under special circumstances,
the host Member State may authorise members of the teams deployed by home
Member States to act on its behalf.
39 Therefore, also in these cases, the host Member
State can be accountable for any misconduct of border and coast guard teams
deployed by home Member States in the execution of their tasks during Frontex
operations. In fact, the conduct of border and coast guard teams placed at the
disposal of the host Member State by the home State, under international law it
shall be considered as an act of the host Member State because these teams are acting
in the exercise of elements of the governmental authority of the host Member State.
40
36 See Art. 42 (civil liability) of the Regulation (EU) 2016/1624 of the European Parliament and of
the Council of 14 September 2016 on the European Border and Coast Guard.
37 See supra note 5.
38 See Rules of Engagement (Annex 6) of the Themis Operational Plan, Public Accessible Document version, available upon prior request to the European Agency Frontex.
39 Art. 40 (Tasks and powers of the members of the teams) of the Regulation (EU) 2016/1624 of the
European Parliament and of the Council of 14 September 2016 on the European Border and Coast
Guard.
40 See Art. 6 (Conduct of organs placed at the disposal of a State by another State) of the text adopted
by the International Law Commission at its fifty-third session on the Responsibility of States for
Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II.
13 Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and. . . 231