Fundamental Rights Outside of the EU – Implications of Frontex Multi-actor Operations Beyond the External Borders

Abstract: The European Border and Coast Guard (EBCG), consisting of the EU agency of Frontex and the Union member states, has the mandate to perform missions relating to border management beyond the territory of said states. Its staff may act in the territory of third countries and on the high seas, which raises the question of what the implications are in respect to the obligations which the EU fundamental rights regime imposes on the public entities during their operations. The purpose of this thesis is therefore to evaluate the impact of the multi-actor operations pertaining to the territorial scope of fundamental human rights. By examining the relevant legislation concerning border management, rights-sensitive situations pursuant to the operations the EBCG may engage in are identified, serving as a basis for outlining concrete fundamental human rights. The sources of the rights are interlinked through the EU legal order, where its Treaties and Charter of fundamental rights (the Charter) adhere to the European Convention on Human Rights (ECHR). Particular fundamental rights, principally at the least dually protected due to their codification at both the Union and international level, are subsequent to their deduction from the situations identified assessed in the light of both the overarching legal framework on fundamental rights, and secondary EU law. The conclusion reached is that the territorial scope of the material rights in question is not confined to intra-Union events. Instead, it may reach to confer rights on individuals beyond the external borders of the member states. The conditions deciding on the scope differs depending on what instrument a contested right stems from. Pursuant to EU law, the fundamental rights regime tracks any action which are the result of duties deriving from the legal order itself. Therefore, spatial circumstances do not necessarily restrict individuals from enjoying the fundamental rights. The ECHR is interpreted as awarding individuals the genuine enjoyment of rights outside the contracting states’ borders where they are subject to control of any of those states. The conventional human rights have, as opposed to those deriving from the Union’s legal system, through the European Court of Human Rights (ECtHR) been expressly held to inhere an extraterritorial scope. The lead interpreter of EU law, the Court of Justice of the European Union (CJEU), exerts great influence over the understanding of the EU legal system. Due to Treaty-provisions and rules in the Charter, the CJEU, in its interpretation of the material rights corresponding to Convention-rights, is bound by the same meaning and scope which the ECHR is found to have by its adjudicator. Thus, as the Charter may only provide for the higher protection of rights, the differentiation between EU fundamental rights and rights flowing from the ECHR is, for the sake of the extraterritorial scope of the former, peripheral. However, despite the link between them, the different instruments do not necessarily bind the same actors; the Charter is binding on the EU, including its agencies, and the ECHR puts duties on third countries.