The Bear's Lair

The following post was contributed by Serena Garelli. Serena holds a Bachelor degree in international relations from the University of Turin and Masters degrees from the Université Libre de Bruxelles and the College of Europe. She is currently working at the European Central Bank.

Introduction

Is external border control undermining one of the basic principles of the European Union – the protection of human rights? As border control has become crucial to the EU’s overall strategy in recent years, this question seems increasingly pertinent.

Since its founding in 2004, the Frontex agency has attempted to coordinate border management control among member states, though the latter retain responsibility for the majority of surveillance that is carried out. As Frontex’s prominence has grown, it has increasingly found itself in the spotlight, with several NGOs raising questions about its impact on migrants’ human rights.

Academia has proffered the term “securitization” to describe how ‘security’ has been invoked to legitimize the EU’s sometimes contentious migration and asylum policy. So what role has Frontex played in this “securitization”? Academia is inconclusive. Leonard argues that Frontex has played a key role while Neal argues that Frontex is a “failure of securitization” and instead has turned out to be an “uncontroversial” actor, albeit one that might have a resurgence through the Rapid Response Border Intervention Teams (RAPID).

As Frontex is a regulatory agency with no executive power it cannot directly implement human rights protection measures. Rather it is the absence of legal provisions for the protection of human rights within Frontex’s regulations, that is a source of concer

The general context: migration and border control

Frontex’s main task is the coordination of border control among member states. According to Guild, a ‘border’ is the place in which the ‘control’ of the flow of people is carried out. The “human rights” implications relate to Frontex’s impact on potential asylum seekers, who are entitled under international law to the principle of non refoulement, as guaranteed by instruments such as the European Convention of Human Rights and the 1951 United Nations Geneva Convention.

The EU’s strategy for external border control started to gather pace after the launch of the Tampere Program in 1999 and the subsequent Commission communication: “Towards integrated management of the external border of the Member States of the European Union” in 2002. This paved the way for the development of Frontex, which was established two years later. The Commission later issued another communication which called for the reinforcement of the southern border’s management and stated the crucial role which Frontex should play in “Europeanising the migration policies of member states”.

Transit Migration has demonstrated that, since the 1990s, the EU has been increasingly using the threat of “illegal migrants” to justify the employment of security personnel in border management control. As Carrera has pointed out, a ‘securitizing’ link is being created between border control and migration strategies and Frontex has been presented as the actor in charge of concretising the connection. However this emphasis on security appears to have had consequences on human rights protection

Frontex: legal issues and practice

Frontex’s founding regulations clearly show the securitization process at work. While human rights protection only earns one citation in the preamble (paragraph 22), cooperation with Europol is explicitly mentioned in article 13. Although Frontex has started to cooperate with the United Nations High Commissioner for Refugees and the EU Fundamental Rights Agency, there is no mention of this in the founding regulations.

In 2006 a new regulation was passed that called for the formation of the Rapid Border Intervention Team (RABIT) which would act temporarily in the event of an “exceptional and urgent situation”, where there is large scale illegal immigration. The securitization process was again invoked with provision being made for RABIT to take ‘extraordinary measures’ to combat this threat.

The UN High Commissioner for Refugees has pointed out that Frontex activities, and in particular RABIT, should always respect human rights and in particular, should comply with the principle of non reofoulement. The latter is mentioned in the RABIT Regulation (Article) and members of the team must comply with human dignity concerns. In addition, human rights protection was also mentioned at a recent Council decision which provided guidelines for surveillance at sea.

However, according to Klepp, “the fact that Frontex is operating without an elaborated legal background is worrying”. Since actions lacking a proper legal background can easily take on a securitization context, it seems even more relevant to assess the implications of this weak legal basis in reality.

Article 2 of the founding Regulation describes the mission of the Frontex as: “the coordination of Member States’ operations and technical and operational assistance when needed, as well as support in joint return operations; training of border guards; follow up on the relevant research and risk analysis.” Research by Klepp on Frontex operations in Malta shows that this weak legal basis is often exceeded in the heat of operations. Methods to intercept migrants, for example, are often decided by military personnel on a case by case basis.

There is also legal uncertainty about the responsibility for determining the presence of potential asylum seekers on vessels. This nebulous and vague situation leaves Frontex personnel with considerable room for manoeuvre and they can potentially undermine the basic human rights principles such as non refoulement.

A phenomenon currently taking place during Frontex operations is the “off-shoring of the border” and an “extra-territorialisation of control”. This refers to how the control of the flow of people is being transferred far away from where the physical border actually is. Carrera’s work on the Hera operation shows that Frontext often intercepts vessels in the territorial water of a third country and forces them to go back. The Frontex website proudly shows the number of migrants that they stopped from reaching the EU’s territory. However, these intercepted vessels may have contained potential asylum seekers. If a potential asylum seeker is sent back to a country such as Libya, who is not part of the Geneva Convention and where an asylum program is not in place, there could be a significant danger to that person’s life. This action is also potentially contrary to the Geneva Convention and prevents Community law itself from being applied.

It is also important to consider the assistance provided by Frontex to Member States in the training of their border guards. Given their large room for manoeuvre, it is crucial that security personnel are trained to properly respect human rights. To this end, RABIT’s regulations mandates the respect of human dignity by the personnel participating in operations. Frontex has also launched the Common Core Curriculum project which aims to establish a more uniform system of training for national border personnel. The Cowi Report, a very comprehensive audit document prepared in 2009, underlines the high level of satisfaction of Member States with these training activities. However the report failed to mention the importance of human rights knowledge among border guards. A more positive sign is the Commission’s proposal to revise the (CE) 2004/2007 Regulation, which foresees “appropriate training in fundamental rights” for border guards participating in operations.

Another Frontex activity listed in Regulation (CE) 2004/2007 is the risk analysis that it carries out, based on the research of Member States. The securitization logic again comes in to pay here with ‘risk’ being defined as the potential arrival of migrants wishing to cross the EU’s border. However, as the UNHCR points out, not every migrant is a ‘risk’ and some could be potential asylum seekers. The risk analysis carried out by Frontex is kept secret. Although the Commission has access to the findings, the Parliament does not, which raises questions over transparency and accountability.

It is clear that this Fontex risk analysis contains sensitive material and cannot be made public as it could be misused by smugglers. However this lack of transparency and accountability is a real point of concern. The European Parliament decides on the budget of Frontex but the latter is not accountable to the EP. This is quite prescient when one considers the Parliament’s traditional sensitivity to human rights concerns.

The role of the Parliament has again surfaced as the revision of the original Frontex regulation, initiated by the Commission in February 2010, will be decided through the ordinary legislative procedure. Included in the current proposed amendments is a requirement that a proper training in human rights is compulsory for the participants of a given operation.

Conclusion

EU migration and asylum policies have become increasingly securitized. This has lead to the building up of a global strategy for migration and border control where Frontex has a big role to play. However Frontex remains framed within a weak and unclear legal context, which gives its security personnel considerable room for maneuver. This emphasis on security leads the EU to push its control beyond the physical border and it creates a situation where the protection of human rights is at risk.

This problem should be solved before enhancing Frontex’s role in the coordination of border management control to avoid any “institutionalization” of informal practices. Indeed, the actions undertaken in the Mediterranean Sea might in the long term change the paradigm of the EU’s asylum and migration system beyond recognition. The Commission proposal for a revision of the Frontex Regulation thus seems like a good place to start.

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