Nina Perkowski is a PhD student at the Graduate School of Social and Political Science, University of Edinburgh.
This article is the second of a three-part series introducing the EU border management agency Frontex. To read the first article introducing Frontex and describing its foundation, follow this link. This piece will focus on what the agency is commonly criticised for, while the next one will outline the historical development of the agency in relation to human rights.
Since its foundation, Frontex has been faced with severe criticism by activists, NGOs, academics and sometimes even EU institutions. In March this year, the EU Ombudsman even decided to launch an inquiry into Frontex’s implementation of its fundamental rights obligations. 19 actors, among them organisations such as Amnesty International, Human Rights Watch, and the Jesuit Refugee Service, have submitted their observations, whereas the Ombudsman’s final observations are yet to be published. In the following, I will outline some of the most frequent complaints made regarding Frontex in recent years.
As Anneliese Baldaccini noted, ‘there is no developed framework for the accountability of Frontex operations’ (Baldaccini, 2010, p. 236). The agency constitutes a shift away from the formerly legislatively centred immigration policies of the Union, and as such prompts concerns regarding its accountability toward the European public (Gibbs, 2010, pp. 135–136). Frontex’s decision-making is centred on its Management Board, which consists of a representative of each signatory state of the Schengen acquis as well as two members of the European Commission. The Executive Director, who since its inauguration has been Ilkka Laitinen, is accountable to this Board. Accountability to the outside is rather weak – only Frontex’s annual report, the findings and recommendations arising out of a five-yearly evaluation, and its final accounts need to be published. In the past, Frontex has also published its annual work programme online, and has released occasional press releases containing some information on ongoing missions. Risk analyses, evaluations and operational agreements for missions (including which guidelines are put in place to safeguard fundamental rights) however do not have to be reported to the public nor to the European Parliament. Having been excluded from the foundational process, the European Parliament overall is rather marginalised regarding the supervision of Frontex. Although it has control over Frontex’s budget (and has recently used that to exert pressure on the agency to improve its search and rescue operations), it can do little to ensure Frontex’s compliance with key norms and values such as fundamental rights. As spelled out in the agency’s founding regulation, the Parliament has the right to invite Frontex staff to report on ongoing tasks as well as the implementation of fundamental rights concerns. However, there is no obligation for those invited to appear, and in the past senior officials have declined to participate in hearings (Baldaccini, 2010, p. 236). Legally, the EU agency has been accountable to the European Court of Justice since the Lisbon Treaty entered into force in December 2009.
With the 2011 amendments to Frontex’s founding regulation, some improvements to its accountability have been made. Now that the newly established Consultative Forum on Fundamental Rights has taken up its work, the annual reports of this board will be made publically available. Moreover, Frontex now needs to inform the European Parliament of any cooperation agreements it has with third states or other EU agencies or bodies. Nevertheless, Frontex’s Management Board remains at the heart of its activities. As the Immigration Law Practitioners’ Association noted, this is a very weak method of scrutiny. With external evaluations conducted only every five years, there is little possibility for both the public and the Parliament to scrutinise Frontex’s practices.
While its founding regulation states that Frontex needs to ensure that ‘the public and any interested party are rapidly given objective, reliable and easily understandable information with regard to its work’ (Article 28(2)), only limited information on missions and practices is available on their website. The most detailed sources of information available online are the general report and the work programme, which provide only partial and superficial information of planned or past missions. The Frontex website moreover features an ‘archive of accomplished operations’, which provides information on the respective operation’s aim, budget, time frame and participating Member States. What was done and how, however, remains unknown. As mentioned above, tailored risk assessments, operational agreements and cooperation agreements with third countries and agencies are also not published (though the European Parliament is since 2011, as noted, informed of the latter). This makes it difficult to access timely information about the agency’s work and what assumptions or analyses it is based on, inhibiting the possibilities for external control.
The Securitisation of Migration and the Externalisation of Migration Control
Frontex is at the same time a result of and reinforces a larger trend towards the securitisation of migration in the European Union. As outlined in the previous article of this series, Frontex was founded as a response to the growing association between migration and terrorism, organised crime and illegality. Once founded, the activities Frontex has been engaging in have contributed to the further strengthening of this association (Léonard, 2010). Its response to the increased arrival of boat people from Tunisia and Libya in 2011 provides just one illustration of that. Frontex played a key part in framing this situation as an ‘extraordinary’ crisis in which urgent support was needed, referring to ‘the possibility of the opening up of a further migratory front in the Central Mediterranean area’, and subsequently launching operation Hermes 2011 in cooperation with Europol, whose mission of assisting in the ‘fight against serious forms of organized crime’ was reiterated by Frontex.
Frontex operates on the assumption that irregular immigration should be decreased, and that this can be partly achieved by intercepting would-be irregular migrants before they reach EU territory. Accordingly, it cooperates with third states to stop migrants before they even leave these states’ territories (as could be seen for instance in operation HERA II conducted in Senegalese waters and in cooperation with Senegalese officers). Not only are those practices questionable because they violate the human right to leave any country, including one’s own (Article 13, Universal Declaration of Human Rights; Article 12, International Covenant on Civil and Political Rights; and Article 2, Protocol IV of the European Convention for the Protection of Human Rights and Fundamental Freedoms), but also they have pushed European border controls south by thousands of kilometres. Frontex has been a key player in the growing externalisation of European immigration policy over the last few years, and is relying heavily on cooperation with third states in its attempt to decrease irregular immigration to the EU.
Nevertheless, it is dubious whether such an approach can be successful in the long run – barriers and walls have failed before to stop people from trying to cross them if the desire or need to do so remains strong. As Baldaccini remarks, ‘Frontex operations might have an immediate effect in increasing apprehension and reducing migratory pressure but this effect wanes as soon as the operation is terminated’ (Baldaccini, 2010, p. 243). One consequence of Frontex’s externalising and intensifying border controls has been the growing reliance of migrants and asylum seekers on professional facilitators, often making them more vulnerable to violence and boosting the business of people smugglers around Europe’s external frontiers (Andrijasevic, 2010). As migrants and asylum seekers are seeking to avoid controls and detection, they tend to take more dangerous routes and risk their lives in the process (Spijkerboer, 2007). According to UNHCR, the Mediterranean was the most deadly stretch of water worldwide in 2011, with more than 1500 reported deaths. When moving into the European Union is associated with such high risks, those who have successfully made it might decide to settle, rather than returning home and potentially risking another dangerous crossing later on (Karyotis, 2011). Not only is Frontex’s strategy of interception therefore imposing high costs on would-be migrants and refugees, but it might also fail to reach its own objective: the decrease of irregular immigration to the European Union.
Human Rights and Non-Refoulement
When would-be international migrants and asylum seekers are prevented from reaching European territory, they cannot exercise the rights they would hold if they were within the legal framework of the European Union, including the right to due process and non-refoulement. Instead, they are simply kept from moving into judicial categories within the EU. Frontex Executive Director Laitinen admitted that the externalisation of border controls led to legal uncertainties, partly caused by varying interpretations of extraterritorial legal obligations relating to refugee and human rights among Member States. While this may be the case from Member States’ and Frontex’s perspective, there exists a wide consensus that state jurisdiction arises out of the exercise of effective control by a state over a person. And whether exercised extraterritorially or not, state jurisdiction is understood as bringing human rights obligations with it (Goodwin-Gill & McAdam, 2007, pp. 244–253). This was confirmed also by the European Court of Human Rights in February of this year when it condemned Italy for intercepting and returning migrants on the high seas. While the ‘push-back’ operation examined occurred outside Italy’s territory, Italy was nevertheless condemned for exposing the migrants involved to the risk of ill-treatment in Libya and to potentially being repatriated to Somalia and Eritrea (Hirsi Jamaa and Others v. Italy).
Given these concerns, it is especially worrying that Frontex does not provide transparent information on what procedures exist to identify asylum seekers and to ensure that nobody is returned to situations where they could face inhuman or degrading treatment or threats to life or freedom. As Frontex often operates far away from the public gaze, for instance by patrolling on the high seas, it is extraordinarily difficult to monitor their activities and their impact on migrants’ fundamental rights. The secrecy of the agency regarding its practices and procedures only adds to this difficulty. While Frontex has developed a Fundamental Rights Strategy, and recently appointed a Fundamental Rights Officer to report on its missions’ impact on human rights to the agency’s Management Board, there exists no complaint mechanism thus far for individuals who have suffered from human rights violations by Frontex staff. In addition, Frontex maintains that officers remain accountable to their home state regarding potential human rights violations, and therefore has no redress mechanism in place. Also its monitoring mechanisms regarding respect for fundamental rights in operations and cooperation with third states have been judged as insufficient and virtually absent.
Putting the critique in context
As outlined, Frontex has provoked a wealth of criticism from activists, NGO workers, academics and at times EU institutions. For migrants’ rights movements in and around Europe, it sometimes appears to have become the primary opponent in their struggle for a more just European immigration policy. While the agency should certainly be evaluated rigorously and criticised for every instance in which it appears to be failing, it would be too simple to focus the blame for increasing restrictionism, potential human rights violations and growing numbers of deaths on the agency alone. As Jorrit Rijpma pointed out, EU Member States and the Commission have – to a certain degree successfully – attempted to shift responsibility for border controls to the agency. And while Frontex has strongly grown in powers and responsibilities over the last few years, it remains largely controlled by Member States and is dependent on the European Parliament financially. Frontex is deeply embedded in a highly restrictionist and exclusionary immigration policy framework developed, adopted and encouraged by Member States.
References:Andrijasevic, R. (2010). Deported: The Right to Asylum at EU’s External Border of Italy and Libya. International Migration, 48(1), 148–174.
Baldaccini, A. (2010). Extraterritorial Border Controls in the EU: The Role of Frontex in Operations at Sea. In B. Ryan & V. Mitsilegas (Eds.), Extraterritorial Immigration Control: Legal Challenges (Vol. 21, pp. 229–257). Leiden, The Netherlands: Martinus Nijhoff Publishers.
Gibbs, A. H. (2010). Reasoned ‘Balance’ in Europe’s Area of Freedom, Security and Justice. European Law Journal, 17(1), 121–137.
Goodwin-Gill, G., & McAdam, J. (2007). The Refugee in International Law (3rd ed.). Oxford: Oxford University Press.
Karyotis, G. (2011). The Fallacy of Securitizing Migration: Elite Rationality and Unintended Consequences. In G. Lazaridis (Ed.), Security, Insecurity and Migration in Europe (pp. 13–30). Surrey: Ashgate Publishing Limited.
Léonard, S. (2010). EU border security and migration into the European Union: FRONTEX and securitisation through practices. European Security, 19(2), 231–254.
Spijkerboer, T. (2007). The Human Costs of Border Control. European Journal of Migration and Law, 9, 127–139.