However, according to some scholars, being Frontex an international organisation with legal personality,
41 the agency might be equally responsible for any
misconduct of participating Member States during its joint maritime operations
along with the host Member State.
42 This is due to the fact that, under international
law, the conduct of a State that is placed at the disposal of another international
organisation, it shall be considered as an act of the latter organisation if the
organisation exercises effective control over that conduct.
43 In case of Frontex,
which is a European specialised agency facilitating the operational coordination of
participating Member States, the conduct of members of the border and coast guard
teams in the performance of their functions during joint operations, under international law, it might as well be considered as an act of the agency itself.
44
In this regard, it must be noted that in accordance with the principle of ‘shared
responsibility’ enshrined in Frontex Regulation,
45 in the implementation of the
European integrated border management, the agency is responsible together with
the national authorities in charge of border control. While Member States retain
primary responsibility for the management of their sections of the external sea
borders, in close cooperation with Frontex, they shall also ensure that their actions
are taken in full compliance with Union law. As a result, as it is possible to infer from
the provisions on ‘shared responsibility’, Frontex shall support the application of
Union measures relating to the management of the external borders by reinforcing,
assessing and coordinating the actions of Member States in the implementation of
those measures.
Therefore, during its joint maritime activities, while the host Member State can be
held accountable for the damages caused by home Member States involved in
Frontex operations, it is also the agency’s responsibility to constantly monitor and
supervise the operational practices adopted by all participating States. To this end,
together with the host Member State, the agency should ensure that the interception
measures taken by border and coast guard authorities on the high seas comply with
the international law of the sea legal framework, in their own interests, in the interest
of the host Member State and in those of the European Union as well.
41 See Art. 56 (Legal status and location) 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.
42 Salvadego (2017), pp. 1122–1150.
43 See Art. 7 (Conduct of organs of a State or organs or agents of an international organisation placed
at the disposal of another international organisation), Draft articles on the responsibility of
international organisations, Yearbook of the International Law Commission, 2011, vol. II, Part
two. The text was adopted by the International Law Commission at its sixty-third session, in 2011
and submitted to the General Assembly as a part of the Commission’s report covering the work of
that session (A/66/10).
44 Kuijper and Paasivirta (2013), pp. 63–69; Naert (2013), pp. 313–338.
45 See supra note 18.
232
M. Fantinato
41 the agency might be equally responsible for any
misconduct of participating Member States during its joint maritime operations
along with the host Member State.
42 This is due to the fact that, under international
law, the conduct of a State that is placed at the disposal of another international
organisation, it shall be considered as an act of the latter organisation if the
organisation exercises effective control over that conduct.
43 In case of Frontex,
which is a European specialised agency facilitating the operational coordination of
participating Member States, the conduct of members of the border and coast guard
teams in the performance of their functions during joint operations, under international law, it might as well be considered as an act of the agency itself.
44
In this regard, it must be noted that in accordance with the principle of ‘shared
responsibility’ enshrined in Frontex Regulation,
45 in the implementation of the
European integrated border management, the agency is responsible together with
the national authorities in charge of border control. While Member States retain
primary responsibility for the management of their sections of the external sea
borders, in close cooperation with Frontex, they shall also ensure that their actions
are taken in full compliance with Union law. As a result, as it is possible to infer from
the provisions on ‘shared responsibility’, Frontex shall support the application of
Union measures relating to the management of the external borders by reinforcing,
assessing and coordinating the actions of Member States in the implementation of
those measures.
Therefore, during its joint maritime activities, while the host Member State can be
held accountable for the damages caused by home Member States involved in
Frontex operations, it is also the agency’s responsibility to constantly monitor and
supervise the operational practices adopted by all participating States. To this end,
together with the host Member State, the agency should ensure that the interception
measures taken by border and coast guard authorities on the high seas comply with
the international law of the sea legal framework, in their own interests, in the interest
of the host Member State and in those of the European Union as well.
41 See Art. 56 (Legal status and location) 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.
42 Salvadego (2017), pp. 1122–1150.
43 See Art. 7 (Conduct of organs of a State or organs or agents of an international organisation placed
at the disposal of another international organisation), Draft articles on the responsibility of
international organisations, Yearbook of the International Law Commission, 2011, vol. II, Part
two. The text was adopted by the International Law Commission at its sixty-third session, in 2011
and submitted to the General Assembly as a part of the Commission’s report covering the work of
that session (A/66/10).
44 Kuijper and Paasivirta (2013), pp. 63–69; Naert (2013), pp. 313–338.
45 See supra note 18.
232
M. Fantinato