Frontex and non-refoulement : the international responsibility of the EU / Roberta Mungianu.
2016
KZ6530 .M86 2016 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Title
Frontex and non-refoulement : the international responsibility of the EU / Roberta Mungianu.
Published
Cambridge, United Kingdom : Cambridge University Press, 2016.
Call Number
KZ6530 .M86 2016
ISBN
9781107133570 (hardcover)
1107133572 (hardcover)
1107133572 (hardcover)
Description
xxi, 251 pages ; 24 cm.
System Control No.
(OCoLC)948562294
Summary
"Since the Frontex Border Agency's establishment in 2004, its activities have foregrounded the complexity and difficulty of protecting the human rights of those seeking access to the European Union. In this connection, protection from refoulement should be paramount in the Agency's work. By navigating through the intricacies of Frontex's structure and working methods, this book answers abiding questions: which circumstances would trigger European Union responsibility if violations were to occur in Frontex's joint operations? What is the legal standing of the principle of non-refoulement in relation to Frontex's activities? Can Frontex be entrusted with an exclusive search and rescue mandate? This book offers a theoretical and practical insight into the legislative intricacies of Frontex's work, examining the responsibility of the EU, and scrutinising the interaction of international law and EU law with a focus on the principle of non-refoulement"-- Provided by publisher.
"The International Responsibility of the EU Since the Frontex Border Agency's establishment in 2004, its activities have foregrounded the complexity and difficulty of protecting the human rights of those seeking access to the European Union. In this connection, protection from refoulement should be paramount in the Agency's work"-- Provided by publisher.
"The International Responsibility of the EU Since the Frontex Border Agency's establishment in 2004, its activities have foregrounded the complexity and difficulty of protecting the human rights of those seeking access to the European Union. In this connection, protection from refoulement should be paramount in the Agency's work"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 231-244) and index.
Record Appears in
Table of Contents
Acknowledgements
xii
Table of Cases
xiv
Table of Legislation
xix
1.
Introduction
1
1.1.
Frontex Border Agency in an EU Legal and Political Setting
1
1.2.
Aim and Scope
5
1.3.
Structure of the Book
8
2.
At the External Borders of the EU
15
2.1.
Intergovernmentalism and Supranationalisation
15
2.2.
EU Power to Develop a Common Policy on External Border Control
20
2.2.1.
Area of Shared Competence
20
2.2.2.
Common Policy on External Border Control
21
2.2.2.1.
Treaty Basis
21
2.2.2.2.
Administrative Cooperation and the Standing Committee on Internal Security
23
2.2.3.
Power Remaining with the Member States
26
2.2.3.1.
`Safeguard Clauses' in the TFEU on Member State Sovereignty
26
2.2.3.2.
Article 72 TFEU
27
2.2.3.3.
Article 73 TFEU
27
2.3.
Conclusions
30
3.
Frontex Border Agency: Contradiction and Complexity
31
3.1.
Setting the Scene
31
3.2.
Preliminary Observations on Frontex's Structure
34
3.3.
Joint Operations and Pilot Projects at the External Borders
37
3.4.
European Border Guard Teams (EBGTs)
42
3.4.1.
Current Relevant Features and Future Achievements
42
3.4.2.
Composition and Secondment of EBGTs
43
3.5.
Conclusions
46
4.
International Responsibility of the EU and Its Member States in Frontex's Joint Operations
48
4.1.
Objectives and Structure
48
4.2.
Background to the International Responsibility of the EU and Its Member States
49
4.2.1.
EU's Legal Personality
49
4.2.2.
`Organic Model' and the `Competence Model'
51
4.2.3.
Potential Breaches of the Principle of Non-Refoulement in Frontex's Joint Operations: Applying the Two Models
54
4.2.4.
International Law Commission's Work: A Matter of Legal Authority
58
4.3.
Constitutive Elements of an Internationally Wrongful Act
60
4.3.1.
Responsibility of the EU
61
4.3.1.1.
Attribution of Conduct to Frontex
61
4.3.1.2.
Interpretation of the Concept of `Effective Control' by the Courts
63
4.3.1.3.
When `Effective Control' Exists According to the Commentaries to ARIO
66
4.3.1.4.
Does Frontex Exercise Effective Control over the Conduct of Border Guards?
68
4.3.2.
Responsibility of the Member States
70
4.4.
`Derivative Responsibility' of the EU and Its Member States
73
4.4.1.
Principle of `Independent Responsibility'
73
4.4.2.
`Derivative Responsibility' in the ASR and in the ARIO
75
4.4.3.
Aid or Assistance When Committing an Internationally Wrongful Act
77
4.4.4.
Element of `Knowledge'
80
4.4.5.
Aid or Assistance Given by a Home Member State and by Frontex
85
4.5.
Conclusions
87
5.
Principle of Non-Refoulement in the EU Legal Setting
89
5.1.
Interconnection of International Law and EU Law Sources
89
5.2.
Obligations of Non-Refoulement Which Bind the EU and Its Member States Directly under International Law
91
5.2.1.
Background to the EU's Non-Refoulement Obligations
91
5.2.2.
1951 Refugee Convention and `the Other Relevant Treaties'
95
5.2.3.
Principle of Non-Refoulement as Customary International Law
99
5.3.
Obligations of Non-Refoulement Which Bind the EU and Its Member States within the EU Legal Order
103
5.3.1.
Introduction
103
5.3.2.
Principle of Non-Refoulement and the Relevance of International Treaties in the EU Legal Order: Article 78(1) TFEU
104
5.3.3.
Principle of Non-Refoulement as Customary International Law in the EU Legal Order
108
5.3.4.
Principle of Non-Refoulement as a General Principle of EU Law
110
5.3.5.
EU Charter of Fundamental Rights
117
5.3.5.1.
Overview
117
5.3.5.2.
Specific Non-Refoulement Provisions; Collective Expulsions; the Right to Asylum and Their Legal Interaction with the General Provisions of the EU Charter
119
5.3.5.3.
Scope and Application of the EU Charter's Principle of Non-Refoulement
125
5.3.6.
Non-Refoulement in EU Secondary Law Concerning Frontex's Joint Operations at the EU's External Borders
129
5.3.6.1.
Introduction
129
5.3.6.2.
How the Legal Instruments Are Connected
130
5.3.6.3.
Prohibition of Refoulement
132
5.4.
Conclusions
134
6.
Exploring the Legal Standing of Protection. The Ratione Loci Application of the Principle of Non-refoulement
136
6.1.
Introduction
136
6.2.
Matter of International Law
137
6.2.1.
Crossing the Borders
137
6.2.1.1.
Article 33 of the 1951 Refugee Convention
140
6.2.1.2.
International Human Rights Instruments
148
6.2.2.
Beyond the Borders
150
6.2.2.1.
Concept of Jurisdiction in International Human Rights Law
153
6.2.2.2.
European Convention of Human Rights and Fundamental Freedoms
155
6.2.2.2.1.
Actual Control over Persons
155
6.2.2.2.2.
Non-Refoulement under the ECHR
163
6.2.2.2.3.
Al-Saadoon Case
163
6.2.2.2.4.
Hirsi Case
165
6.2.2.3.
International Covenant on Civil and Political Rights
171
6.2.2.3.1.
Non-Refoulement under the ICCPR
174
6.2.2.4.
Convention against Torture
176
6.2.2.4.1.
Non-Refoulement under the CAT
177
6.2.2.5.
Extraterritorial Application of the 1951 Refugee Convention
180
6.2.2.5.1.
Methodological Considerations
180
6.2.2.5.2.
Application of Methodological Considerations
183
6.3.
Matter of EU Law
186
6.4.
Conclusions
189
7.
Frontex Saving Lives at Sea
191
7.1.
Interaction of Protection Regimes
191
7.2.
Search and Rescue at Sea
192
7.3.
Interaction with the Principle of Non-Refoulement
194
7.4.
EU Sea External Borders Regulation
196
7.5.
Greater Involvement for Frontex in Search and Rescue Operations?
198
7.6.
Conclusions
203
8.
EU, Frontex and Non-Refoulement: Constructing Scenarios
205
8.1.
Potential Triggers of EU and Member State Responsibility
205
8.2.
Joint Operations at Sea
207
8.2.1.
Principle of Non-Refoulement
208
8.2.2.
Frontex and the EU
210
8.3.
Joint Operations on Land
213
8.3.1.
In EU Territory
213
8.3.2.
Outside EU Territory
214
8.3.2.1.
Deployment of Technical Means
216
8.3.2.2.
Member States' Border Guards in the Territory of a Third Country
217
8.3.2.3.
Principle of Non-Refoulement
218
8.3.2.4.
Jurisdiction in Third-Country Territories
218
8.3.2.5.
Frontex and the EU
220
8.4.
Conclusions
221
9.
General Conclusions
222
9.1.
Process of Embedding the EU/Frontex's Border Control and Surveillance in a Fundamental Rights Milieu
222
9.2.
Contribution of This Study
225
Bibliography
231
Index
245