Often in the discussion of the allocation of international responsibility between an international organization and its Member States for unlawful acts pride of place is given to the allocation of powers or competences between the organization and its Member States. … Read more
This briefing paper reflects on the manner in which the Draft Agreement on the Accession of the European Union (EU) to the European Convention on Human Rights (ECHR) allocates international responsibility between the EU and its member States. In particular, … Read more
This article is the text of the SHARES lecture Judge Giorgio Gaja gave at the University of Amsterdam on 11 April 2013, entitled: ‘The relations between the European Union and its member states from the perspective of the ILC Articles on Responsibility of International Organizations’.
The first section of this paper will briefly describe the plea made by the European Union for recognition of special rules of responsibility for regional economic integration organizations, with an emphasis on rules on attribution (Part 1). The paper will … Read more
This paper addresses the distribution of accountability between the European Union (EU) and its Member States under the current and future climate regime. Belonging to a field of shared competence between the EU and its Member States, the climate regime … Read more
This chapter explores the basis and manifestations of joint responsibility between the European Union (EU) and its Member States for non-performance of obligations contained in multilateral environmental agreements (MEAs). Joint responsibility has often been advanced as an attractive solution where … Read more
18 October 2013
On 18 October 2013, a seminar will be held in Amsterdam entitled A New Framework for Allocating International Responsibility: the EU Accession to the European Convention on Human Rights.
On 5 April 2013, a draft agreement was concluded on the modalities for the accession of the European Union to the European Convention on Human Rights. The seminar critically reflects on one key aspect of the draft agreement: the allocation of international responsibility between the EU and its member states, as well as between the member states. In particular, it reviews whether the agreement adequately addresses the gaps in human rights protection that presently arise from the specific relationship between the EU and its member states.
During this seminar, the issues of attribution and responsibility; the co-respondent mechanism; and the allocation of responsibility within the legal order of the EU will be discussed. (more…)
4 October 2012
The second SHARES Lecture of the academic year will take place on Thursday 4 October, where Dr Tobias Lock will provide a lecture on the topic of ‘The EU accession to the European Convention on Human Rights and the co-responsibility mechanism’.
Dr Tobias Lock is a lecturer in law at the University of Surrey. (more…)
3 November 2013
In this blogpost I reflect, from a shared responsibility perspective, on two issues arising under the draft EU-ECHR Accession Agreement: (1) the question of to whom EU member states’ acts implementing EU law are attributed, and why; (2) the intervening role reserved for the Court of Justice of the EU (CJEU) in proceedings brought before the European Court of Human Rights (ECtHR). The relevant provisions in the draft Accession Agreement are Art. 1(3), respectively Art. 3(6).
1. Issues of attribution
The draft Accession Agreement makes it clear that the attribution of responsibility may be a function of the relevant primary norms of international law, and their scope (the ECHR norms in the case) rather than of secondary rules that are applicable across-the-board. Questions of shared/exclusive responsibility are then conceived of differently with respect to the ECHR than, say, the World Trade Organization (WTO). In the former case, acts of EU member states implementing EU law are attributed to the member state rather than to the EU, whereas in the latter, such acts are attributed to the EU, the member states being mere agents or organs. (more…)
24 April 2013
On 11 April, Judge Gaja gave a SHARES lecture entitled “The relations between the European Union and its member states from the perspective of the ILC Articles on Responsibility of International Organizations.” In his remarks, Judge Gaja discussed various aspects of the European Union’s relationship to the Articles, including its plea for special status, the implications of the EU’s forthcoming accession to the European Court of Human Rights, and the application of Articles 14 – 17 to international organizations generally.
Of particular note were his remarks on shared responsibility and the EU. Under the Articles, the EU responsibility might arise if it breaches an international obligation by act or omission. Judge Gaja used the Chile v. European Communities case based on dispute between Chile and Spanish fishermen fishing swordfish outside of the EEZ of Chile as an example of a situation where the EU might have been found responsible for failing to achieve a certain result, in this case the preservation of swordfish. Although the case settled, the EU has exclusive competence for the conservation of maritime resources and consequently there is little question it would have been responsible for any breach (see Hoffmeister’s article here). (more…)
15 April 2013
After almost three years of negotiations a final draft agreement on the accession of the EU to the European Convention on Human Rights has been published (here). I considered it therefore appropriate to revisit some of the criticisms I made on an earlier draft in this blog (here). In line with this blog’s remit, I shall again focus on the issue of shared responsibility and will in particular aim to explain the workings of the co-respondent mechanism, which is the agreement’s central innovation.
As explained in my previous post one of the key challenges for the negotiators of the accession agreement was to create, as required by Protocol 8 to the Lisbon Treaty, ‘the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.’ The background to this is that it is chiefly the EU’s Member States which apply European Union law. Thus where a provision of EU law is (allegedly) in violation of the ECHR, a claimant will be confronted with an act by a Member State authority and will consequently seek remedies in the courts of that Member State. If these remedies are unsuccessful, the claimant can file an individual application with the European Court of Human Rights (ECtHR). The respondent in such a case would be the Member State. (more…)
8 October 2012
The negotiations on accession by the EU to the ECHR have recently entered their final stage. Representatives of the EU and of the forty-seven parties to the ECHR (the so-called Group 47+1, which has published the reports of its first and second meeting) are scheduled to meet twice this autumn to agree on a final accession agreement. It is likely that it will largely be based on the draft agreement on EU accession, which was made publicly available last year. Once final agreement has been reached, it is very likely that the Court of Justice of the EU (CJEU) will be asked for an Opinion on whether the agreement is compatible with the EU Treaties. Should the CJEU give the agreement a green light, the ratification process can begin.
This blog entry asks whether the co-respondent mechanism provided for in the draft agreement leads to a sensible allocation of responsibility between the EU and its Member States for violations of the Convention post-accession. (more…)
30 March 2012
This week, a committee of the Parliamentary Assembly of the Council of Europe released a draft resolution and report on the fateful voyage of what has been dubbed the ‘left to die’ boat – a story that was first picked up by The Guardian. The tragedy involved a boat carrying 72 Sub-Saharan migrants who fled from the conflict in Libya in March 2011, but ran into trouble and, despite a distress call by satellite from the ship’s Ghanaian “captain” to an Eritrean priest living in Italy who alerted the Rome Maritime Rescue Coordination Centre (Rome MRCC), eventually washed up on the shores of Libya 15 days later. By then, only 11 people were still alive. (more…)
30 October 2011
Refugees are legally and morally entitled to some form of protection. This is generally undisputed. The disagreement begins when we ask the question which state will be called upon to provide that protection? (more…)
4 April 2011
The European Court of Human Rights issued a landmark ruling in the case of M.S.S. v. Belgium and Greece on 21 January 2011. The case concerned the expulsion of an asylum seeker to Greece by the Belgian authorities in application of European asylum law. Not only is this judgment extraordinarily rich, it also exposes serious flaws in the current European asylum regime.
2 May 2013
A draft law was agreed on by EU Council and Parliament representatives, and endorsed by the Civil Liberties Committee on Wednesday 24 April 2013.
To reduce disparities in the asylum procedures among EU member states, Council and Parliament have agreed to review the Asylum Procedures Directive (2005) to harmonise procedural guarantees for asylum seekers. Asylum seekers would get fairer, more uniform access to international protection across the European Union under this new law. Also, special guarantees for vulnerable persons and deadlines for EU states to process an asylum application have been inserted.
This draft law is part of the backbone of the Common European Asylum System (CEAS), which will be put to a plenary vote in June. In order to enter into force, the draft text needs to receive backing of the member states and confirmation by the Parliament, which might happen in June.
Source: European Parliament Press Release | Civil Liberties Committee backs plan to improve asylum procedures
12 January 2013
The International Herald Tribune reports that because of the financial crisis and euro crisis, most member states of the North Atlantic Treaty Organization (NATO) and the European Union (EU) will most likely spend less on, and invest less in, defense. EU governments hesitate ‘to really improve Europe’s military technology sector or its security.’ Analysts say that Europe should take ‘more responsibility for its own security’ now the Obama administration’s security agenda focusses more on Asia.
Both NATO and the EU believe there is one way to deal with reducing resources: through smart defense or “pooling and sharing.” In practice, it would mean NATO and EU members, the majority of whom belong to each other’s organization, cooperating much more on defense.
Source: International Herald Tribune | How Much Are Americans Willing to Spend to Defend Europe?
15 November 2012
On 14 November, the UN Security Council unanimously renewed the mandate of the European peacekeepers in Bosnia and Herzegovina for one more year in its Resolution 2074.
EUFOR Althea took over peace operations in Bosnia from NATO’s SFOR in 2004. It is one of the three ongoing military operations deployed by the EU in the framework of its Security and Defense Policy.
Source: UN News Centre | Security Council extends mandate of European peacekeepers in Bosnia for another year
7 November 2012
On 25 October, the European Parliament gave its permission for the European Union (EU) to approve the Food Assistance Convention. It is expected that the EU deposits the instrument of ratification before 30 November. The Convention will enter into force on 1 January 2013 if five signatories will deposit instruments of ratification, acceptance or approval by 30 November 2012.
The Food Assistance Convention was adopted on 25 April 2012 and seeks to improve the effectiveness and quality of food assistance to the most vulnerable populations, by strengthening international cooperation and coordination. A key provision is that each party agrees to make an annual commitment of food assistance (article 5).
Source: European Commission News | The European Parliament gives its consent on the new Food Assistance Convention
Source: Food Assistance Convention
7 November 2012
On 12 October, the United Nations Security Council (UN SC) adopted a resolution, determining that the situation in Mali ‘constitutes a threat to international peace and security’. The UN SC declared its ‘readiness’ to send an international military force to assist the Malian armed forced to drive Islamists out of the north of Mali. After a coup in March 2012, much of the country is occupied and controlled by Tuareg rebels and Islamist militants linked to al-Qaeda. The authorities of Mali and the Economic Community of West African States (ECOWAS) were given a 45 day deadline to formulate a plan for military action led by ECOWAS. The European Union considers assisting ECOWAS with military planning and logistics and sending about 200 troops to train Mali’s army to retake the north of Mali.
Source: Reuters | EU considers sending 200 troops to train Mali army
Source: The Guardian | France to send drones to Mali in fight against al-Qaida-backed insurgents
Source: The Guardian | North Mali prepares for war as refugees dream of liberation from al-Qaida
Source: The Guardian | Islamist rebels vow assault on Malian capital if international forces attack
31 October 2012
A consortium of 22 European non-governmental organisations (NGO’s) published a report on 30 October 2012, entitled: Trading Away Peace: How Europe helps sustain illegal Israeli settlements.
This report concludes that while the European Union (EU) consistently condemns Israel’s settlement policy, and defines Israeli settlements in the occupied Palestinian territories as being illegal under international law, EU policies help sustain Israeli settlements because of (heavy) trade with these settlements. The report recommends concrete measures that individual member states or the EU can take in order to make sure their policies do not (in)directly support settlements.
Source: The Guardian | EU urged to re-think trade deals with Israeli settlements in West Bank
Source: Der Spiegel | Activists Seek Ban on Trade with Israeli Settlers
Source: Report | Trading Away Peace: How Europe helps sustain illegal Israeli settlements
14 September 2012
A briefing paper from Human Rights Watch (HRW) entitled ‘Hidden Emergency – Migrant deaths in the Mediterranean’ argues that the EU needs to take urgent action to address the tragic deaths of thousands of boat migrants on its shores. According to UNHCR, an estimated 1500 migrants died in the Mediterranean in 2011 making it ‘the deadliest year on record’.
HRW recommends establishing a framework for cooperation in rescue at sea and standard operating procedures for shipmasters as well as amending the draft legislation creating EUROSUR – a surveillance system to monitor the Mediterranean and North Africa – in order to include the duty to assist migrants at sea. Furthermore, it is advised that resettlement programs for recognized refugees rescued at sea should be put in place.
Source: HRW | Hidden Emergency - Migrant deaths in the Mediterranean
21 August 2012
In a column published by Reuters, Anatole Kaletsky argues that Italian and French leaders would only find political and fiscal integration acceptable, if collective European control over domestic fiscal policies – which is insisted upon by Germany – would be ‘balanced by collective responsibility for national debt burdens.’
Kaletsky argues that this ‘more complex and balanced approach to fiscal integration’ could make the continued existence of the euro possible, and would save Europe from ‘a decade of depression.’
Source: Reuters | Column: Reject the politics of oversimplification
15 June 2012
On 13 June 2012, the fisheries ministers of the European Union (EU) agreed to ban the dumping of healthy and edible fish catches back into the sea, which is done by fishermen to remain within the EU quotas and to maximise profits. However, the starting dates of phasing in the ban for different species are subject to further negotiations.
Environmental campaigners urged European politicians to stop this wasteful practice. The agreed reforms, changing the Common Fisheries Policy (CFP) to eliminate the discards, are seen as an important step towards a sustainable fisheries policy. However, experts fear that these measures will come too late for certain fish stocks.
Source: The Guardian | Fishing discards practice thrown overboard by EU
Source: The Guardian | Will the fishing discard deal be enough to save fish stocks?
14 June 2012
Amnesty International published a report on 13 June 2012, urging the European Union (EU) and its member states, especially Italy, to protect the rights of migrants, refugees and asylum seekers ‘according to international standards’.
According to Amnesty, human rights are violated as a result of migration control policies and practices, such as outsourcing border security. An online petition was opened in order to urge members of the European Parliament to hold institutions of the EU and national governments accountable for the way migrants are treated.
Source: Newsday | Amnesty International: Europe endangers migrants
10 June 2012
Turkey has signed a Memorandum of Understanding (MoU) with the EU border agency Frontex.
The Turkish Foreign Ministry stated that the MoU envisages sharing experience and information with Frontex to conduct joint assessments regarding mixed migration flows. Also, Frontex and the Turkish authorities agreed to cooperate in the areas of risk analysis, training as well as research and development.
Furthermore, both parties foresee the possibility of deployment of Turkish officers to selected border crossing points at the EU’s external borders.
Source: Turkish Weekly | Turkey Signs MoU with EU for Cooperation in Border Security
22 May 2012
After several states have criticised the European Union Emissions Trading Scheme (ETS), now two airlines from India and eight airlines from China have refused to report to the European Union (EU) the amount of carbon dioxide they have emitted last year.
The ETS is applied to all airlines that use airports in the EU since January, aiming to charge carriers for the pollution they cause. Many states have criticised this system, on the ground that the EU would lack the power to enforce their laws on non-European carriers, or on the ground that the carbon tax which is imposed by the EU, is a “disguised” trade measure, taken unilaterally in the name of combatting climate change.
Source: BBC | Airlines 'are conforming' with EU rules on emissions
16 May 2012
Following the decision taken on 23 March 2012 by the Council of the European Union to allow the EU Naval Force to take disruptive action against known pirate supplies on the shore, EU forces destroyed pirate equipment on the Somali coastline. The EU’s ATALANTA mission at the Horn of Africa has been in the headlines regarding trials against captured Somali pirates in several domestic courts across Europe.
Source: EU NAVFOR | EU Naval Force Delivers Blow Against Somali Pirates On Shoreline
9 May 2012
Negotiations on the amount of money European Union (EU) member states will contribute to the ‘Green Climate Fund’ after 2012 (for the period 2013-2020) have been unsuccessful so far. In light of the economic crisis, some of the EU member states argue against any firm commitment to contribute to the Climate Fund after 2012.
The Green Climate Fund was established by international agreement within the framework of the UN Framework Convention on Climate Change (UNFCCC), aiming to provide financial support for developing States to cope with the effects of climate change. Although the aim of this fund was to raise up to 100 billion dollars a year by 2020, the EU member states have merely given a clear pledge for funding until the end of 2012.
Source: Reuters | EU nations get cold feet over climate change fund
16 April 2012
A German owned ship suspected of carrying arms for the Syrian military was diverted about 80 km southwest of the Syrian port of Tartus. The ship was chartered by a Ukranian company and purportedly loaded the arms in Dijbouti. Syria is currently under an arms embargo imposed by the European Union.
Source: Euronews | Germany investigates report ship carrying arms to Syria
4 April 2012
On 14 December 2011 the European Parliament decided not to renew the Fisheries Partnership Agreement between the European Union and Morocco signed in 2005. This agreement granted licenses to EU vessels to fish in Morocco’s Atlantic waters, without distinguishing between the waters of Morocco and those of Western Sahara. Western Sahara is a territory annexed by Morocco, that continues to strive for self-determination. A 2002 legal opinion of UN Legal Advisor Hans Corell expressed that exploitation of the territory’s resources could only be considered legal if the Sahrawi population were consulted and benefited.
The vote in Parliament was largely based on a report by MEP Carl Haglund, who raised the question of the legality of an agreement including fishing rights off the coast of Western Sahara and the question of the benefit to the Sahrawi people.
Source: Think Africa Press | Unexpected Victory for Western Sahara Campaigners at the European Parliament
Source: Presseurop | Western Sahara sinks EU-Morocco accord
29 March 2012
The European rapporteur charged with investigating the case of 63 African migrants who were “left to die” in the Mediterranean last year has warned those responsible could end up in court. On Wednesday, the Guardian revealed the findings of a damning official report into the fateful voyage, which saw the sub-Saharan refugees drifting in the sea for two weeks while dying of thirst and starvation, even though their boat had been located by European authorities and emergency distress calls had been issued to all other ships in the area. The report blamed a collective set of “human, institutional and legal” failures for the inaction, labelling it a “dark day for Europe” and concluding that large loss of life could have been avoided if the various agencies in the area – NATO, its warships, the Italian coastguard and individual European states – had fulfilled their basic obligations.
Source: The Guardian | Migrant boat disaster: those responsible 'could face legal action'
16 March 2012
The European Ombudsman, P. Nikiforos Diamandouros, has opened an inquiry into how Frontex implements its fundamental rights obligations. Frontex is an EU agency based in Warsaw that assists EU Member States in the field of border security. The inquiry follows concerns voiced by civil society that Frontex would be ‘complicit’ in the violation of human rights, in particular because of its cooperation with Greece, where migrants are, according to the European Court of Human Rights, systematically treated in violation of human rights. One of the questions asked by the Ombudsman to Frontex is which party, Frontex and/or the Member State, is responsible for possible failures to respect fundamental rights in joint operations of border control. Further, the Ombudsman wants to know whether Frontex envisages the establishment of a mechanism by which migrants may complain to Frontex about possible human rights violations. The Ombudsman has asked Frontex to submit an opinion by 31 May 2012. The letter which opens the inquiry can be found here.
Source: European Ombudsman | Ombudsman investigates Frontex’s fundamental rights implementation
2 March 2012
Ministers for Home Affairs of European Union countries will next week approve an increase in the compensation Member States receive from the EU budget for allowing refugees from outside the Union to settle in their territory. They will also endorse a pilot scheme under which each Member State is to indicate by 1 May how many refugees it plans to resettle in 2013, and from which groups designated by the EU as priorities. The ministers will meet in Brussels on Thursday 8 March.
Source: European Voice | EU member states to get more money for receiving refugees
9 December 2011
On 11 November 2011 a German administrative court in Cologne decided that Germany violated the prohibition of torture, inhuman and degrading treatment (Articles 3 ECHR and 7 ICCPR) by transferring Somali pirates captured by the German fregate “Rheinland-Pfalz” in the framework of the EU anti-piracy mission ATALANTA to Kenya. The German court rejected two other claims by plaintiffs that the capture and detention on the “Rheinland-Pfalz” were in violation of international and German constitutional law.
Decision (in German): link
5 December 2011
On 2 December 2011, the European Commission presented a communication on enhanced intra-EU solidarity in the field of asylum proposing to improve responsibility-sharing and improve mutual trust through legislation, practical cooperation, and a better use of EU funding mechanisms. According to the European Commission, the improvement of solidarity mechanisms should be reached by making the supportive role of the newly established European Asylum Support Office more effective and by increasing the amount of funds available to Member States. The Commission also proposes to encourage the relocation of beneficiaries of international protection amongst EU Member States, through financial assistance.
28 November 2011
Evidence has emerged of unregulated tuna fishing in Libyan waters during this year’s conflict. EU boats are implicated in the fishing, which the European Commission believes could be judged illegal. The issue led to heated discussion at the recent Istanbul meeting of the International Commission for the Conservation of Atlantic Tunas (ICCAT), where it was decided that research will be carried out into the events.
Source: BBC News – Tuna fished ‘illegally’ during Libya conflict
22 September 2011
In her Opinions in joined cases C-411/10 N.S. v Secretary of State for the Home Department and C-493/10 M.E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform concerning the interpretation of the Dublin II Regulation, Advocate General Verica Trstenjak of the European Court of Justice has established that asylum seekers may not be transferred to other Member States where they could face a risk of serious breach of the fundamental rights which they are guaranteed under the Charter of Fundamental Rights.
22 September 2011
Human Rights Watch has released a new report on the Involvement of Frontex in Ill-Treatment of Migrant Detainees in Greece, titled ‘The EU’s Dirty Hands’. The report assesses Frontex’s role in and responsibility for exposing migrants to inhuman and degrading detention conditions during four months beginning late in 2010 when its first rapid border intervention team (RABIT) was apprehending migrants and taking them to police stations and migrant detention centers in Greece’s Evros region. The RABIT deployment has been replaced by a permanent Frontex presence. The report is based on interviews with 65 migrants, refugees, and asylum seekers in Greece in November and December 2010 and February 2011, as well as with Frontex and Greek police officials.
5 May 2011
The General Assembly voted on 3 May 2011 to upgrade the status of the European Union’s participation at the United Nations 192-member body. The resolution on the participation of the EU in the work of the UN was adopted by 180 UN Member States and will allow senior EU representatives to present to the Assembly the common positions of the European bloc. It also gives EU representatives the right to speak, the right to make proposals and submit amendments, the right of reply, the right to raise points of order and the right to circulate documents.
26 April 2011
France and Italy have jointly called for changes in the Schengen Agreement in the face of a wave of immigrants arriving in Europe from Libya. Free passage among the European Union should temporarily be denied in case of exceptional circumstances. They also called on the European Union to broaden the role of its border agency Frontex.
11 April 2011
The recent upheaval in North Africa has caused a massive wave of immigration, with thousands landing on the Italian island of Lampedusa in recent months. The government in Rome wants to move the immigrants on to other EU member states, but other countries don’t want them.