Accountability at borders: between restrictive European border governance and fragmented national landscapes for human rights protection

Introduction

Systematic and gross human rights violations at European borders have been well-documented by a variety of credible actors, such as journalists, civil society organizations, national bodies, and international actors. While not all violations are recorded, the available evidence suggests that these are not sporadic events, but rather signs of a systemic issue in human rights protection both at internal borders and at the external borders of the European Union (EU).

Behind this persistent issue are the increasingly restrictive asylum, migration, and border governance in the European Union, which to a large extent have been accompanied by a disregard for human rights law and procedural safeguards at borders. In some cases, practices have been preceded or followed by legislative or policy reforms at the national or regional levels. For example, there has been widespread concern about the impact that the different legislative proposals by the European Commission (EC) under the “EU Pact on Migration and Asylum” would have on human rights protection at borders, such as in relation to access to effective remedies and immigration detention.

In this context, there is increased interest in “human rights monitoring” at borders, often framed as a solution to the disregard for national and international human rights law, as well as refugee law, taking place daily across the EU. Monitoring at borders became a hot topic in 2020, particularly in relation to the European Commission’s financing for border management in Croatia, which included funds for the delayed and heavily criticised setting up of a monitoring mechanism for the Croatian border management. This led to an investigation by the European Ombudsman on how the European Commission fails to ensure that the Croatian authorities respect fundamental rights in the context of border management operations financed by EU funds, concluded in February 2022. The issue took a much bigger proportion when the European Commission included under Article 7 of its proposal for a Screening Regulation that “[e]ach Member State shall establish an independent monitoring mechanism”, in brief, to investigate allegations of non-respect for fundamental rights and ensure compliance during the screening.

While the EC proposal is analysed further in section 3, it is important to stress that, despite the growing interest in human rights monitoring mechanisms at borders, there is incipient academic research on the topic. In this regard, this article contributes to bringing closer two strands of literature: one on human rights violations and accountability at borders (among others, Carrera and Stefan, Campesi, Stefan and Cortinovis, Jakulevičienė, Gkliati, Lanneau) and the other on domestic mechanisms for monitoring implementation of human rights law (among others Welch, Carver, Meuwissen, Welch, DeMeritt and Conrad, de Beco, Goodman and Pegram, Murray). Further research on this topic can contribute to policy and legal actions that better respond to known challenges and gaps in European human rights governance.

Key for this article is also the concept of “accountability” as an essential component of the human rights framework. While there is no universal definition of accountability, it has been broadly understood as the system that governs the relationship between “duty bearers” (actors who have an obligation or responsibility to respect, promote and fulfil human rights obligations and to abstain from human rights violations) and “rights holders” (individuals or social groups that have entitlements in relation to duty-bearers). In a legal sense, accountability is also understood in relation to access to effective remedies, complaints mechanisms and investigations, which are firmly grounded in national, EU and international law. Most notably, Article 13 of the European Convention on Human Rights (ECHR) and Article 47 of the EU Charter for Fundamental Rights impose positive obligations on states to, among others, ensure that a remedy must be effective in practice as well as in law in cases of alleged violations. Recently, different organizations have explored the specificities of human rights accountability at borders (for instance, ECRE in relation to Frontex and ENNHRI’s observations on existing gaps).

With this background in mind, Section 1 provides a brief overview of the diverse landscape in the EU of national bodies contributing to further human rights accountability at borders, paying specific regard to the role of National Human Rights Institutions (NHRIs) and National Preventive Mechanisms (NPM). Section 2 explains why they are relevant to stronger protection of migrant’s human rights, building on existing literature on the nature and effectiveness of domestic institutions. Yet, their potential is not fully explored. To illustrate this argument, Section 3 advances a critical perspective of the EC proposal in relation to “border monitoring mechanisms”. It argues that it reflects a limited understanding of accountability at borders and fails to learn from previous EU fundamental rights initiatives in the field of migration. It also analyses how it partially relates to trends at the EU level of a “new human rights governance” focused on domestic implementation of human rights standards, challenged by the question of EU competence.

In the conclusion, the author places this problem in a wider debate about gaps in the domestic implementation of human rights standards. If at first sight discussing the potential of national human rights bodies can seem theoretical, it is argued that building this missing link could contribute substantially to better accountability for migrants’ human rights violations at borders.

1. Diversity of national frameworks for human rights protection in the EU

Domestic bodies are key elements of the international human rights regime. They embody the very essence of this regime: while states abide by human rights obligations under international treaties, they must implement them at the national level. Without the link between the global and the local, human rights become purely theoretical. Significant developments in the past decades indicate a trend of “domestic institutionalisation” of human rights, where national-level institutions are created to contribute to bridging the gap between human rights commitments and reality (Jensen, Lagoutte and Lorion).

At the national level, a multitude of actors contributes to the protection and promotion of human rights, and to accountability where violations occur, albeit in different ways - from civil society organizations (CSOs) and lawyers to parliaments, local authorities, and courts, among many others. This article focuses on two bodies established under national law with a relevant human rights mandate, particularly National Human Rights Institutions (NHRIs) and National Preventive Mechanisms (NPM).

National Human Rights Institutions (NHRIs) are state-mandated bodies, independent of government, with a broad mission to promote and protect human rights. They are established and internationally accredited with reference to the Paris Principles, which were adopted by the United Nations General Assembly (Resolution 48/134). In practice, they take on different forms: the majority of European NHRIs are Ombuds institutions with a human rights mandate, while others are Commissions or Consultative Commissions, and some are institutes or have a hybrid mandate. Their specific mandates, resources and priorities vary depending on the country, and the UN Paris Principles constitute the common thread and set the minimum requirements that must be observed by all NHRIs, such as independence, a broad mandate, pluralism, and cooperation with civil society.

There is much more to be said about NHRIs and, while there is growing academic interest in them, it remains an under-explored topic. The existing literature on NHRIs provides a good basis for their history and specific nature (de Beco and Murray; Welch), the diversity of models (Carver), their engagement at the international level (Zipoli), and regional perspectives (Meuwissen). It has been pointed out that more research is needed on NHRI’s effectiveness (Welch, DeMeritt, Conrad) and their contribution to specific human rights areas (Jagers, Lorion).

More research on NHRIs could better inform the rise of their recognition at the UN level, in the Council of Europe, and the European Union, not to mention the central role they play nationally. For the purposes of this article, it is most important to stress that NHRIs have been key actors for the protection of the human rights of migrants at European borders, particularly in the last decade (UN Special Rapporteur on the Human Rights of Migrants, European Parliament, ENNHRI). Some examples of their work, depending on their mandate, can include monitoring and reporting on the situation at borders, advising parliaments and governments on how to ensure a human rights-based approach to migration and border governance, training border guards on human rights obligations, submitting cases to the Constitutional Court, handling individual complaints, and facilitating access to justice.

Most EU countries have a NHRI in place. Some have been accredited as fully complying with international standards (A-status) while others are partially compliant (B-status). In other countries, existing institutions are either seeking accreditation or would require legislative reforms to align their mandate with that of an NHRI. In the European Union, the most notable examples of countries without an NHRI are Italy and Malta.

Another key domestic actor for the promotion and protection of human rights are National Preventive Mechanisms (NPMs), which are established with reference to the Optional Protocol to the UN Convention Against Torture (OP-CAT). While NHRIs have a broad mandate to engage in all human rights, NPMs are specific bodies aimed at preventing torture and other cruel, inhuman, or degrading treatment or punishment. They have the power to visit and inspect all places of deprivation of liberty, without prior warning. The UN Subcommittee on Prevention of Torture has clarified that this mandate must be interpreted in a broad fashion and includes unofficial places of detention and any facilities or vehicles where people may be deprived of their liberty. In addition to unannounced and unimpeded access to places, they also have the power to inspect documents and reach the concerned people.

If one considers the growing resort to immigration detention – and, more broadly, different practices that deprive migrants of their liberty for short or long periods –, it is not surprising that the work of European NPMs has become even more important. They monitor detention centres at borders and airports, hotspots, reception centres, and forced returns, among others. They address recommendations to governments, parliaments, and other actors to call for the respect for applicable regional and international standards, and to prevent violations from occurring.

While NPMs are not periodically accredited to assess their compliance with international requirements (which is the case for NHRIs), their functioning is also entrenched in the international and regional human rights framework. At the UN level, the Subcommittee on Prevention of Torture (SPT) assists and advises NPMs in their work, for instance through guidelines and other tools. In Europe, the European Committee on the Prevention of Torture (CPT), as a specialised independent monitoring body of the Council of Europe, promotes relevant standards and cooperates with NPMs.

The regional landscape of European NPMs is also diverse: most EU countries have NPMs in place, which can take the form of different bodies (from specialised institutions to being part of a centralised multi-mandated body) and will be allocated different degrees of resources. The scope and amount of work in relation to migration also seem to vary among NPMs.

Based on the overview provided by the Association for the Prevention of Torture, out of the 39 NPMs in wider Europe, around two-thirds are housed within NHRIs, which will have the NPM function alongside its broad human rights mandate (and potentially other functions).

This brief panorama of NHRIs and NPMs across the EU is a microcosm of the rich and diverse environment of national frameworks related to the implementation of international human rights obligations. As part of this macrocosm are Equality Bodies, forced return mechanisms, Ombuds institutions, regional bodies, and various thematic and specialised institutions – they can all contribute to the protection of human rights in the field of migration, albeit in different ways. There are no clear guidelines nor sufficient research on the preferred set-up at national level of domestic institutions: some countries opt for a more centralized approach (with one institution holding on to various functions and mandates), while in other countries the trend has been of fragmentation (Carver). The diversity of national frameworks in the EU reflects legal, political, and social developments at the national level. Regional and international advancements, for instance, the ratification of an international treaty, can also trigger changes in the institutional set-up domestically.

2.  Why do national frameworks matter?

Domestic institutionalization in the human rights system should be regarded as a technical exercise: beyond meeting formal requirements, the existence of national frameworks should contribute to further human rights compliance. In this light, when we consider the need to respond to poor accountability for human rights violations at borders, why do national human rights frameworks matter?

Even if there is scope for further research on the effectiveness of NHRIs and NPMs, the value and impact of their work have been recognised by international and regional organizations, parliaments, scholars, and courts, among others. The effectiveness of NHRIs will depend on several factors, such as their specific powers, performance, and legitimacy (ICHRP). Still, it has been generally found that NHRIs increase the (perceived) costs of repression, decrease the probability of the most egregious violations, contribute to human rights treaty compliance, and are associated with improved human rights behaviour (see references in Welch, DeMeritt, Conrad).

In the field of migration, NHRIs and NPMs have an important role in preventing pushbacks (Council of Europe Committee of Ministers, CM/AS(2020)Rec2161), monitoring forced returns (European Parliament, 2019/2208(INI)), promoting a human rights based-approach to border governance, and promoting and protecting the human rights of migrants in general (ENNHRI). NHRIs are also an indicator of respect for the rule of law and are key actors in the national system of checks and balances (EC Rule of Law Report).

The work of NHRIs and NPMs on migration is even more important when governments blatantly reject or discredit the reports of NGOs and journalists. As state bodies, their recommendations and findings carry particular weight. They also make use of their privileged access to parliament and the international fora to strengthen or complement the findings of other actors. The legal anchoring of these bodies in legislation or even the Constitution also makes it harder for national authorities to hinder their work at borders, for instance by impeding access to crossing points or detention centres.

In addition to their contribution nationally, NHRIs and NPMs also help ensure independent scrutiny and to report on what happens at borders to the regional and international levels. In the case of NHRIs, this can include periodic reports to UN Treaty Bodies, interventions before regional courts, and cooperation with other actors. In fact, the “strength of NHRIs lies in their multi-layered engagement with state and non-state actors at home and abroad which offers a plethora of avenues to strategically gather information and share recommendations and advice” (Meuwissen).

It is important to note, however, that NHRIs have faced several challenges when working in the field of migration (ENNHRI). Among others, they have reported being insufficiently funded to dedicate financial and human resources to this issue, border officials rejecting access to documents or facilities, and a lack of cooperation from authorities when working on migration vis-à-vis other topics. Therefore, despite their unique status, NHRIs have not been exempted from the shrinking democratic space in the region, weakening the system of checks and balances.

As recommended by the Council of Europe Committee of Ministers, States “should implement the recommendations of NHRIs and are encouraged to make it a legal obligation for all addressees of NHRI recommendations to provide a reasoned reply within an appropriate time frame, to develop processes to facilitate effective follow-up of NHRI recommendations, in a timely fashion and include information thereon in their relevant documents and reports” (CM/Rec(2021)1).

Yet, the potential of NHRIs and other national frameworks is not fully exploited either by national authorities or by regional organizations. Even where strong national frameworks exist, alone they cannot bring about the change necessary to guarantee human rights protection and accountability at borders. National authorities are the duty bearers and remain responsible for ensuring that legislation, policies, and practices comply with human rights law. In turn, regional actors such as EU institutions could rely more often on the work of NHRIs when assessing states’ respect for international or EU law, support them financially or politically, and work with them to monitor and promote human rights.

The importance of national frameworks has gained centre stage also in the field of migration, particularly after the European Commission’s Proposal for a Screening Regulation, under which Article 7 proposes that “[e]ach Member State shall establish an independent monitoring mechanism”. This proposal, thus, is part of the broader context of the rich landscape of national human rights frameworks in the EU (identified in Section 1) and reflects the trend of relying on domestic institutions to contribute to stronger respect for human rights obligations (Section 2).

However, does the EC proposal sufficiently take into account existing national frameworks in the EU? Does it build on lessons learned from other EU initiatives in the direction of “domestic institutionalization”? Is it part of a broader dissociation between EU law and the wider human rights regime? Section 3 provides initial reflections on these points.

3.  A critical analysis of the EC proposal on monitoring mechanisms at borders

The EC proposal regarding monitoring mechanisms at borders was overall positively received, even if NGOs, NHRIs, and international organizations provided further recommendations and had some concerns, for instance in relation to independence guarantees and the mechanism’s scope (see ECRE, ENNHRI, UNCHR). Yet, there is widespread agreement that, with appropriate safeguards, monitoring could contribute to better accountability for and prevention of violations at borders.

Despite the proposal being still under scrutiny and negotiation by the EU co-legislators, there is some academic work on this topic on the context influencing the proposal and its main features, as well as some initial reflections (see Jakulevičienė, Stefan and Cortinovis, Lanneau, Fotiadis). However, more academic research is needed. Due to its limited scope, this article does not provide an overview of the proposal and directly proceeds to a critical analysis.

First, it can be argued that an underlying assumption of the Commission when proposing that monitoring mechanisms are put in place is that the main issue at borders is the lack of information on human rights violations taking place. While there is certainly scope for stronger monitoring, this is a fallacy: in fact, independent actors have produced credible reports of human rights violations at borders. It can be affirmed that the issue at the EU internal and external borders is not one of insufficient knowledge of violations, but rather a lack of legal and political accountability. With this approach, the EC risks opening space for the EU Member States to discredit existing reports, findings, and recommendations from actors that are not part of monitoring mechanisms.

In this sense, the EC proposal reflects a limited understanding of accountability. Monitoring in itself is unlikely to bring about a positive change at borders. It must be part of a broader system that ensures that monitoring and reporting lead to access to justice and effective remedies, the revision of legislation and policies that result or contribute to breaches of human rights, and actions to prevent future violations. While Article 7(1) establishes that “Member States shall adopt relevant provisions to investigate allegations of non-respect for fundamental rights in relation to the screening”, it fails to develop the linkage between the work of the monitoring mechanism and accountability at the national or regional levels. A better understanding of the challenges and needs of existing national human rights bodies would have contributed to an approach focused on the outcome (i.e., human rights being protected at borders) rather than the process (i.e., through monitoring).

Second, the EC proposes the establishment of a monitoring mechanism at borders. While there is no clarity on whether this means the creation of a new body, or of a legal mandate that can be assigned to an existing body, the language of the proposal seems to point to a new framework being established (for example, Article 7(2) refers to FRA’s possible guidance “on the setting up of such mechanism and its independent functioning”, emphasis added). It is acknowledged that the proposal mentions that “Member States may invite relevant national, international and non-governmental organisations and bodies to participate in the monitoring”, but the EC still fails to sufficiently recognise that there are already national bodies with a broad mandate to promote and protect human rights, including that of migrants at borders.

Instead of developing an approach that would acknowledge, support, strengthen, and mobilize existing domestic frameworks for human rights protection (such as NHRIs and NPMs), the EC opted for the creation of new bodies with a very specific, and arguably unclear, mandate. The risks of this approach are numerous: it can lead to inefficiencies and lack of complementary with existing monitors, funding and political support being diverted from existing bodies, authorities discrediting the reports of actors that are not part of the formal mechanism, and the creation of bodies that better suit political interests. These risks do not seem to have been fully considered by the European Commission, adding another concern to the already fragile environment for human rights work across the EU.

Third, the proposal leaves to Member States’ discretion the exact composition and other elements of the monitoring mechanism, while pointing to the possibility of seeking support from FRA. On the one hand, this gives leeway to create mechanisms that fit each Member State's specific legal framework – as explained in Section 1, the landscape in the EU is very diverse and a one-size-fits-all solution would not be appropriate. On the other hand, the EC fails to acknowledge that most Member States are unwilling to create bodies that can independently monitor authorities’ behaviour at borders, particularly where violations are well-known or encouraged. The difficulty in establishing, maintaining, and strengthening effective and independent NHRIs is an example of this tension.

In this regard, the EC could have benefitted from the lessons learned in relation to the “forced-return monitoring system” under the EU’s Return Directive. Under this Directive, EU Member States were called to “provide for an effective forced-return monitoring system”, without specifying conditions, standards, or appropriate set-up to this system. As a result, it has been found that these mechanisms vary widely across the EU and do not ensure consistent safeguards of the rights of migrants being returned (Martin). A Comparative Study funded by the European Commission in 2011 provided lessons learned in this regard even if its recommendations were considered to be limited from a human rights perspective (Martin). FRA has also regularly monitored and reported on the functioning of return monitoring systems, alerting them to widespread inefficiencies and lack of independence in their practical operation, despite being provided by law. Serious concerns in this regard were raised by the European Parliament in its 2020 Resolution on the implementation of the Return Directive (2019/2208(INI), para. 35).

Therefore, one could reasonably ask why the European Commission expects that the case will be different in relation to its proposal on monitoring mechanisms at borders. Regrettably, the experience so far does not provide a reason for optimism when it comes to entrusting the Member States to set up national frameworks, particularly where few requirements are set out in advance. This should not be taken as a criticism of the potential of national frameworks (which has been demonstrated in Section 2), but as a call for caution about initiatives aimed at creating new bodies without prior sufficient safeguards and periodic evaluation of their effectiveness and independence.

It is important to acknowledge, however, that the European Commission has restricted scope for action in this regard in view of its limited competence and respect for the principle of subsidiarity. This reflects the “inherent tension between the doctrine of allocation of competences and the dynamics of fundamental rights protection” at the EU level (Muir). More research is needed on the relation between this tension and the EU’s reliance on national bodies in this field, and how much this reflects the elements of “new governance” in the human rights system (cfr. Jägers and Lorion).

To a certain degree, the three critical reflections above seem to be shared by some Members of the European Parliament (MEPs) involved in shaping the European Parliament’s position on the Screening Regulation. For instance, the Rapporteur on the file, MEP Birgit Sippel (S&D) proposes stronger provisions on the link between the monitoring and steps for accountability, the obligation to involve “national human rights institutions, national ombudspersons, international organisations or relevant non-governmental organisations in the management and operation of the mechanism” or to closely cooperate with them, and Member States’ requirement to respect the mandate of the mechanism (thus reflecting the challenges of existing national frameworks). Some of the proposed amendments by other MEPs also go in this direction.

While the EP’s Committee on Civil Liberties, Justice and Home Affairs has not yet voted on a final report, it can be affirmed that the European Parliament seems to demonstrate a better understanding of the diverse landscape for human rights protection in the EU. Consequently, it appears better equipped to set out the necessary conditions that need to be in place for new or existing mechanisms to contribute to human rights protection at borders.

Unsurprisingly, the compromised position reached at the level of the Council of the European Union asks for the removal or watering down of the (few) safeguards found in the European Commission’s proposal in relation to the potential mechanisms’ powers and independence.

Conclusion

The European Commission proposal exposes the need for more academic research on the apparent excursion by the EU into the broader trend of “domestic institutionalization”, under which national bodies are created to contribute to bridging the gap between international commitments and national practice. In the field of fundamental rights, the examples of National Equality Bodies under the EU legislative framework, National Rapporteurs on Anti-Trafficking under the EU Anti-Trafficking Directive, Forced-Return Monitoring Systems under the EU Return Directive, and Border Monitoring Mechanisms under the proposed Screening Regulation, could provide more knowledge regarding this trend.

As one of the few additional safeguards in relation to human rights under the EU Pact on Migration, the idea behind the proposal for “monitoring mechanisms” at borders should be welcomed. There is no doubt that monitoring can contribute to better human rights protection if the necessary safeguards are in place to ensure independence, effectiveness, and corresponding accountability. However, the proposal also took attention away from broader questions regarding national human rights frameworks, and how the EU supports and engages with them.

Regardless of the outcome of the negotiations under the Screening Regulation, existing public bodies such as NHRIs and NPMs will continue to perform their work – within their mandates and constraints – to promote and protect the rights of migrants at borders. So far, the EU has failed to shift the debate from the inclusion or exclusion of a new mechanism to a comprehensive and inclusive approach that would allow it to rely on the expertise, findings, and recommendations of existing bodies, such as NHRIs and NPMs. Ultimately such an approach would contribute to better implementation of the EU Charter of Fundamental Rights, and to more synergies across the human rights system’s multiple layers.

Embedding this discussion in the broader debate about gaps in the implementation of international standards (and the role of the EU in this regard) could lead to longer-term solutions that build on existing national frameworks for human rights protection. This article hopes to contribute to bringing the discussion in this direction.

 

Suggested Readings and Selected Bibliography:

This article references and put forward suggestions for further reading, linked in the text and ranging from academic research to recent analysis by civil society organizations. In particular, the materials below are recommended for further reading:

On pushbacks, accountability at borders, and developments at the EU level:

J.-Y. Carlier, F. Crépeau, A. Purkey, From the 2015 European “Migration Crisis” to the 2018 Global Compact for Migration: A Political Transition Short on Legal Standard, McGill International Journal of Sustainable Development Law and Policy, September 2020.

M. Stefan and R. Cortinovis, Setting the right priorities: is the new Pact on Migration and Asylum addressing the issue of pushbacks at EU external borders?, Asile Project Forums, November 2020.

R. Lanneau, The Commission’s proposal for a new Independent Monitoring Mechanism at the external border of the EU: a necessary but limited mechanism, EU Migration Law Blog, February 2021.

S. Carrera and M. Stefan (eds), Fundamental rights challenges in border controls and expulsion of irregular immigrants in the European Union: complaint mechanisms and access to justice, Routledge, 2020.

T. Strik, Pushbacks in the EU: how to end impunity?, European Policy Centre, December 2020.

On national human rights frameworks:

R. Carver, One NHRI or Many? How Many Institutions Does It Take to Protect Human Rights? – Lessons from the European Experience, Journal of Human Rights Practice, March 2011.

S. LB Jensen, S. Lagoutte and S. Lorion, The Domestic Institutionalisation of Human Rights: An Introduction, Routledge, 2021

R. Murray, National Human Rights Institutions. Criteria and Factors for Assessing Their Effectiveness, Netherlands Quarterly of Human Rights, 2007.

R. M. Welch, National Human Rights Institutions: Domestic Implementation of International Human Rights Law, Journal of Human Rights, 2015.

R. M Welch, J. H. R. DeMeritt, C. R. Conrad, Conceptualizing and Measuring Institutional Variation in National Human Rights Institutions (NHRIs), Journal of Conflict Resolution, 2021.

 

To cite this contribution: G. Almeida, “Accountability at borders: between restrictive European border governance and fragmented national landscapes for human rights protection”, Cahiers de l’EDEM, Special Issue, August 2022.