Abstract
The phenomenon by which people are dying while attempting to cross the Mediterranean constitutes one of the humanitarian emergencies of our times. Even more strikingly, this continues to happen at a time when the European Union and its member states (MSs) are policing the Union’s external borders more intensively than ever before. This chapter examines the EU’s border surveillance and investigates Frontex’s actions in order to assess Frontex’s compliance with the EU’s constitutional commitment to respecting and enforcing fundamental rights. Border surveillance is a crucial part of the EU’s strategy for integrated border management. The aim is to combat irregular migration and cross-border crime, which in the EU policy debate are framed as internal security issues. In this research, I examine and investigate Frontex’s most controversial (Hera and Nautilus) and recent (RABIT 2010 and Poseidon in the Evros region) operations on Europe’s southern and south-eastern borders. These operations have been criticised on grounds of legality and respect for human rights. Decision 2010/252/EU supplementing the Schengen Borders Code (SBC) was meant to provide a solution to at least some of the problems that emerged in the first years of Frontex’s operations, but it was annulled by the EU Court of Justice. After explaining those aspects of the EU’s legal framework for fundamental rights that are relevant to Frontex, I suggest that the Hirsi judgment by the European Court of Human Rights (ECtHR), which condemned the Italian push-back policy of 2009, indirectly places boundaries on practices such as those which Frontex used in Hera. Having assessed Frontex’s adoption of a fundamental rights policy, I make some recommendations for improving Frontex’s commitment to fundamental rights, thus squaring the circle between border surveillance and individuals’ human rights.
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Notes
- 1.
Migrants’ routes and the human dimension of the extraterritorialisation of migration control policies have been covered by the media. Among the independent media, see the film documentaries “Mare chiuso” and “Come un uomo sulla terra” and the book “Mamadou va à morir”, by G. del Grande, author of the blog ‘Fortress Europe’, at http://fortresseurope.blogspot.nl/.
- 2.
See UNHCR Briefing Note “Mediterranean takes record as most deadly stretch of water for refugees and migrants in 2011”, 31 January 2012, at http://www.unhcr.org/4f27e01f9.html.
- 3.
“Lives Lost in the Mediterranean Sea: Who Is Responsible?”, report by Tineke Strik, Committee on Migration, Refugees and Displaced Persons, 5 April 2012, Doc. 12895.
- 4.
The blog ‘Fortress Europe’, by journalist Gabriele Del Grande, lists all fatal accidents recorded by the media. According to this source, since 1988, about 19,000 people have lost their lives at sea. See http://fortresseurope.blogspot.nl/2006/01/press-review.html.
- 5.
- 6.
- 7.
Stockholm Programme, para. 5.1, p. 26, OJ C 115/2010.
- 8.
The humanitarian purpose of EUROSUR, “to protect the lives of migrants”, was implemented in earlier Council documents (11437/12 of 20 June 2012), but was deleted in a recent Council discussion (12905/12 of 1 August 2012).
- 9.
Meijers Committee, Note on the proposal for a Regulation establishing the European Border Surveillance System (COM(2011) 0873), ref. CM1215, of 12 September 2012, at http://www.commissie-meijers.nl/assets/commissiemeijers/CM1215%20Note%20on%20the%20proposal%20for%20a%20Regulation%20establishing%20EUROSUR.pdf.
- 10.
According to the most recent version, currently under discussion (on file with the author).
- 11.
European Court of Human Rights, 23 February 2012, Judgment, Hirsi Jamaa and others v Italy, Application no. 27765/09.
- 12.
See “Immigrati respinti, La Corte UE condanna l’Italia”, at http://ricerca.repubblica.it/repubblica/archivio/repubblica/2012/02/24/immigrati-respinti-la-corte-ue-condanna.html?ref=search. Even after the judgment, former Northern League (Lega Nord) head Mr Umberto Bossi declared “l' importante è che abbiamo impedito che il Paese si riempisse di immigrati (the important thing is that we avoided the Country being filled with migrants)”. Former Minister of the Interior Roberto Maroni stated: “È una sentenza politica di una corte politicizzata. Rifarei esattamente quello che ho fatto” (“It is a political judgment by a politicised court. I would do exactly again what I have done”; [translation by the author]).
- 13.
See the statement of Mr Maroni’s successor, Ms Cancellieri (25 September 2012) “Flussi migratori, serve una linea d’azione che coniughi rigore ed esigenze umanitarie”, on the necessity of combining respect for rules with a humanitarian approach (translation by the author). Original at http://www1.interno.gov.it/mininterno/export/sites/default/it/sezioni/sala_stampa/notizie/2099_500_ministro/2012_09_25_audizione_comitato_Schengen.html?category=immigrazione&x=5&y=8; however, the approach of the government led by Mario Monti was not immune from criticism. See the Statewatch note “Documents unveil post-Gaddafi cooperation agreement on immigration” of 5 September 2012, at http://www.statewatch.org/news/2012/sep/01italy-libya-immigration-cooperation.html.
- 14.
See L.F.M. Besselink, A Composite European Constitution/Een Samengestelde Europese Constitutie. Groningen: Europa Law Publishing, 2007.
- 15.
L. Marin, “Policing the EU’s External Borders: A Challenge for the Rule of Law and Fundamental Rights in the Area of Freedom, Security and Justice? An Analysis of Frontex Joint Operations at the Southern Maritime Border”, Journal of Contemporary European Research, vol. 7 No. 4 2011, pp. 468–487.
- 16.
Council Regulation (EC) No. 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 349/1, hereinafter: Frontex Regulation. It was then reformed under Regulation (EC) No. 863/2007 of the European Parliament and of the Council of 11 July 2007, establishing a mechanism for the creation of rapid border intervention teams (RABIT) and amending Council Regulation (EC) No. 2007/2004 in regard to that mechanism and regulating the tasks and powers of guest officers, OJ L199/30, hereinafter: RABIT Regulation. The last reform arrived with Regulation (EU) No. 1168/2011 of the European Parliament and of the Council of 25 October 2011 amending Council Regulation (EC) No. 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 304/1, hereinafter: Frontex Recast.
- 17.
Article 1, Frontex Recast.
- 18.
See Frontex Regulation, Article 2, as amended by Frontex Recast.
- 19.
See L. Marin, “Is Europe Turning into a ‘Technological Fortress’? Innovation and Technology for the Management of EU’s External Borders. Reflections on FRONTEX and EUROSUR”, in M.A. Heldeweg & E. Kica (eds.), Regulating Technological Innovation: Legal and Economic Regulation of Technological Innovation, Palgrave MacMillan, 2011, pp. 131–151.
- 20.
See the Frontex review of migratory routes: http://www.frontex.europa.eu/intelligence/migratory-routes.
- 21.
Signed in Benghazi on 30 August 2008. For a comment see “Il trattato Italia-Libia di amicizia, partenariato e cooperazione”, dossier n. 108/2009, under the direction of N. Ronzitti, available at http://www.iai.it/pdf/Oss_Transatlantico/108.pdf. Additional Technical-Operational Protocol of 4 February 2009, not publicly available.
- 22.
See L. Marin, “Policing the EU’s External Borders: A Challenge for the Rule of Law and Fundamental Rights in the Area of Freedom, Security and Justice?”, op. cit., pp. 477–479. See also V. Moreno Lax, “Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea”, International Journal of Refugee Law 23 (2011), pp. 174–220.
- 23.
Frontex Press Release, 21 February 2011, “Hermes 2011 running”, at http://www.frontex.europa.eu/.
- 24.
- 25.
See the Human Rights Watch (HRW) Report “The EU’s Dirty Hands. Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece”, 2011, available at http://www.hrw.org, pp. 23–24.
- 26.
HRW Report, p. 43.
- 27.
See Human Rights Council, Mission to Greece Report, submitted by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, 4 March 4 2011, at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=4e6082e72&skip=0&advsearch=y&process=y&allwords=&exactphrase=&atleastone=&without=&title=specialrapporteurtorture&monthfrom=&yearfrom=&monthto=&yearto=&coa=&language=&citation=
- 28.
Extensively quoted at paras. 160-173 of the judgment of the ECtHR in M.S.S. v Belgium and Greece, request no. 30696/09, of 21 January 2011.
- 29.
See Human Rights Watch report “Stuck in a Revolving Door: Iraqis and Other Asylum Seekers and Migrants at the Greece/Turkey Entrance to the European Union”, November 2008, at http://www.hrw.org/en/node/76211/section/8, p. 22.
- 30.
ECtHR, M.S.S. v Belgium and Greece, request no. 30696/09, of 21 January 2011.
- 31.
Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ L 50, p. 1-10 [2003]
- 32.
Judgment M.S.S., cit., para. 160.
- 33.
See HRW interview with K. Wahlstorm, head of Frontex operational office in Greece. Source: HRW Report “The EU’s Dirty Hands”, op. cit., p. 23.
- 34.
Fundamental Rights Agency (FRA) Report “Coping with a Fundamental Rights Emergency. The Situation of Persons Crossing the Greek Land Border in an Irregular Manner”, 2011, p. 24. The report is available at http://fra.europa.eu/sites/default/files/fra_uploads/1500-Greek-border-situation-report2011_EN.pdf.
- 35.
For a review of Frontex’s mission, tasks and responsibilities, see L. Marin, “Policing the EU’s External Borders: A Challenge for the Rule of Law and Fundamental Rights in the Area of Freedom, Security and Justice?”, op. cit.
- 36.
See Art. 2(9) SBC: Article 2: “Definitions. For the purposes of this Regulation the following definitions shall apply: (…) 2. “external borders” means the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders; (…) 9. “border control” means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance; (….)”.
- 37.
See Art. 3 SBC: Article 3: Scope. “This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:
(a) the rights of persons enjoying the Community right of free movement;
(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement”.
- 38.
See B. Ryan and V. Mitsilegas (eds.), Extraterritorial Immigration Control. Legal Challenges (Leiden-Boston, 2010).
- 39.
One could argue that Frontex’s participation was enabled by the Frontex Regulation itself, although this remains problematic for interception and diversion operations. For other MSs’ officials, see E. Papastavridis, “‘Fortress Europe’ and Frontex: Within or Without International Law?”, Nordic Journal of International Law (79) 2010, 75–111, 89.
- 40.
Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 111, p. 20.
- 41.
See Preamble 4 to the Decision: “(…) the European Council underlined the need for strengthened border control operations coordinated by the Agency and for clear rules of engagement for joint patrolling. The European Council in June also stressed the need for rules on disembarkation of rescued persons”.
- 42.
See Recital 9 of the Decision, referred to at para. 23 of the judgment.
- 43.
Under this procedure, the Commission presented a proposal and the Regulatory Procedure with Scrutiny Committee did not deliver an opinion. Therefore, the Commission submitted the proposal to the Parliament, which did not oppose it. The Council adopted the contested decision. See Article 12, paragraph 5, “Additional rules governing surveillance may be adopted in accordance with the procedure referred to in Article 33(2)”—which refers to the so-called ‘Comitology Decision’, Decision 1999/468/EC, Articles 5 and 7—“having regard to the provisions of Article 8 thereof and provided that the implementing measures adopted in accordance with this procedure do not modify the essential provisions of this Regulation”.
- 44.
OJ C 246 (11 September 2010), p. 34. The Commission was granted intervention in this case.
- 45.
Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 105, p. 1.
- 46.
CJEU, Case C-355/10, European Parliament v Council of the European Union, Judgment of the Court (Grand Chamber) of 5 September 2012, OJ 2010 L 111, p. 20. not yet reported.
- 47.
Para. 73 of the judgment.
- 48.
Para. 74 of the judgment.
- 49.
Para. 76 of the judgment.
- 50.
Paras. 86–90 of the judgment.
- 51.
While this chapter was going to press, the Commission has presented a proposal for a Regulation establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, COM(2013) 197 final, 2013/0106 (COD), of 12.4.2013.
- 52.
J. Pollak and P. Slominski, (2009) ‘Experimentalist But Not Accountable Governance? The Role of Frontex in Managing the EU’s External Borders’, West European Politics, 32:5, 904–924.
- 53.
Article 51 Charter of Fundamental Rights.
- 54.
Article 263 TFEU. See also Fischer-Lescano, Löhr & Tohidipur (2009), “Border Controls at Sea: Requirements under International Human Rights and Refugee Law”, International Journal of Refugee Law, 21 (2) 2009, 256–296, 295.
- 55.
G. Noll, “Seeking Asylum at Embassies: A Right to Entry under International Law?”, International Journal of Refugee Law, 17 (2005), 542, 548, quoted in S. Trevisanut, ‘The Principle of Non-Refoulement at Sea and the Effectiveness of Asylum Protection’, in A. von Bogdandy and R. Wolfrum (eds.), (2008) 12 Max Planck Yearbook of United Nations Law (Brill, 2008).
- 56.
Conclusion No. 22 (XXXII) 1981.
- 57.
See S. Trevisanut, ‘The Principle of Non-Refoulement at Sea and the Effectiveness of Asylum Protection’, in A. von Bogdandy and R. Wolfrum (eds.), (2008) 12 Max Planck Yearbook of United Nations Law (Brill, 2008), 205.
- 58.
See European Court of Human Rights, 23 February 2012, Judgment in Hirsi Jamaa and others v Italy, Application no. 27765/09, paras. 120 and 122.
- 59.
Another provision (Article 53) states that “nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective field of application, by Union law and international law and international agreements to which the Union or all the Member States are party, including the European Convention of (HR), and by the Member States’ constitutions”.
- 60.
See the Charter’s Preamble, para. 5. See also Art. 6 TEU, enabling EU access to the ECvHR.
- 61.
Safety of Life at Sea (SOLAS) Convention, most recent version of 1974, and SAR Convention, of 1979. Information on the SOLAS Convention can be found at http://www.imo.org/About/Conventions/ListOfConventions/Pages/International-Convention-for-the-Safety-of-Life-at-Sea-(SOLAS),-1974.aspx, and on SAR at: http://www.imo.org/about/conventions/listofconventions/pages/international-convention-on-maritime-search-and-rescue-(sar).aspx.
- 62.
European Court of Human Rights, 23 February 2012, Judgment, Hirsi Jamaa and others v Italy, Application no. 27765/09.
- 63.
Hirsi, para. 78.
- 64.
Ibid., para. 77.
- 65.
Ibid., paras. 139–158.
- 66.
Ibid., para. 177.
- 67.
Ibid., para. 180.
- 68.
See also the request for an explanation of the relation between operations carried out on the basis of the bilateral agreements between Italy and Libya and the activity of Frontex from the ECtHR to the Italian state, defendant in the case Hirsi and others v Italy, request no. 27765/09: “Il est enfin invité à expliquer à la Cour le rapport existant entre les opérations prévues par les accords bilatéraux avec la Libye et l’activité de l’ ‘Agence européenne pour la gestion de la coopération opérationnelle aux frontières extérieures des États membres de l’Union européenne (Frontex)’”.
- 69.
Resolution, 1821 (2011), PACE, para. 9.4.
- 70.
Ibid., para. 10.
- 71.
See the “UN Special Rapporteur on the human rights of migrants concludes his third country visit in his regional study on the human rights of migrants at the borders of the European Union: Italy” available at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12640&LangID=E; on Frontex, the report states: “During my mission, I have also learned how the management of Italy’s external borders has been harmonised and strengthened through the Schengen process and is further supported by the EU border agency FRONTEX. FRONTEX’s work in strengthening Italy’s search and rescue capacity is important. I am encouraged by recent positive steps such as the appointment of a Fundamental Rights Officer within FRONTEX. Nevertheless I am aware that the key focus of FRONTEX remains information and intelligence gathering. In Italy FRONTEX thus works predominantly with the Guardia di Finanza and the Border Police to combat irregular migration, migrant smuggling and other migration related crimes. I remain concerned that these security objectives still appear to overshadow human rights considerations. For example, I have learned that FRONTEX officers conduct interviews with migrants in Italian detention facilities in order to gather information on their journeys. However, these interviews are conducted without any external supervision. It is thus essential that effective human rights standards be integrated into all departments and agencies related to border management”. While this chapter was going to press, the UN Special Rapporteur has released the final report; see Rapport du Rapporteur spécial sur les droits de l’homme des migrants, François Crépeau Étude régionale: la gestion des frontières extérieures de l’Union européenne et ses incidences sur les droits de l’homme des migrants, available at http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A-HRC-23-46_fr.pdf.
- 72.
See Regulation (EU) No. 1168/2011 quoted above, OJ L304/01.
- 73.
Endorsed by the Frontex Management Board on 31 March 2011, the document is available at http://www.frontex.europa.eu.
- 74.
For a detailed analysis and proposals for improving accountability of EU agencies, see the study “Implementation of the EU Charter of Fundamental Rights and Its Impact on EU Home Affairs Agencies”, authored by E. Guild, S. Carrera, L. den Hertog and J. Parkin, available at http://www.ceps.be/book/implementation-eu-charter-fundamental-rights-and-its-impact-eu-home-affairs-agencies.
- 75.
New Article 9 Frontex Recast.
- 76.
See Frontex’s press release: http://www.frontex.europa.eu/news/management-board-designates-fundamental-rights-officer-zqofRR.
- 77.
New Article 26a Frontex Recast, ‘Fundamental Rights Strategy’.
- 78.
J. Pollak and P. Slominski, (2009) ‘Experimentalist But Not Accountable Governance?’, cit.
- 79.
See the report: “Borderline” of the Heinrich Boell Stiftung, at http://www.boell.de/downloads/DRV_120523_BORDERLINE_-_Border_Surveillance.pdf.
- 80.
See Meijers Committee, Note on EUROSUR, CM1215 of September 2012, quoted above.
- 81.
Council doc. No. 16508/12, on file with the author.
- 82.
Among the NGO reports, I would refer to that by Human Rights Watch; among those by international organisations, I have referred above to the Council of Europe documents and resolutions, together with UNHCR documents.
- 83.
Article 1, para. 2, of the Frontex Regulation. See also para. 13 of the Fundamental Rights Strategy, quoted above.
- 84.
See paragraph 15 of the Fundamental Rights Strategy, in particular: “As last resort, Frontex might terminate a JO if the conditions guaranteeing the respect for fundamental rights are no longer met”.
- 85.
Cf. CJEU, Joined Cases C-411/10 and C-493/10, N.S. v SSHD and M.E. et al. v Refugee Applications Commissioner, Judgment of the Court (Grand Chamber) of 21 December 2011 [2011] OJ C 274/21 and OJ C 13/18 . See also: S. Carrera, M. De Somer and B. Petkova, “The Court of Justice as a Fundamental Rights Tribunal”, CEPS Paper No. 49/2012.
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Marin, L. (2014). Protecting the EU’s Borders from … Fundamental Rights? Squaring the Circle Between Frontex’s Border Surveillance and Human Rights. In: Holzhacker, R., Luif, P. (eds) Freedom, Security and Justice in the European Union. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-7879-9_5
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