Frontex’ Fundamental Rights Ambiguities

Conflicting Political Objectives and the Implications of an Increased Budget for Search and Rescue in the Mediterranean

Roos Margaux Beek Master thesis Political Science Track: International Relations Supervisor: J. M. J. Doomernik June, 2016 Table of contents

Introduction 3

Methodology and operationalization 5

Chapter 1 Theoretical framework 7

Chapter 2 European migration policies 12

Chapter 3 Frontex’ mandate and amended Founding Regulation 17

Chapter 4 Securitization discourse and securitization practices 22

Chapter 5 Unclear legal framework 27

Chapter 6 Legal framework protecting the rights of migrants 31

Chapter 7 Ambiguities regarding Frontex’ fundamental rights protection 36

Chapter 8 Resolutions to commit Frontex to fundamental rights 45

Chapter 9 Budget of Frontex 49

Chapter 10 Migrant deaths at sea 54

Conclusion 59

Bibliography 62

2 Introduction

Europe is being afflicted by a humanitarian crisis in which the Mediterranean Sea has turned into a graveyard. Since the beginning of the Arab Spring, migrants escaped their countries in which civil unrest, and even worse, war had taken over their lives. On the 20th of April 2015, the Guardian reported the worst single tragedy in two years in the Mediterranean. Over 800 people from different nationalities died during shipwrecking, as confirmed by the United Nations (UN) (Bonomolo and Kirchgaessner 2015). Flavio Di Giacomo, International Organization for Migration (IOM) Italy spokesperson, stated that he believes that it is the deadliest disaster in the Mediterranean to date (ibid). Immediately after the incident, the European Council held a special meeting. The European Council stated: ‘Our immediate priority is to prevent more people from dying at sea.’ (European Council 2015). In order to achieve this aim, during the meeting it was decided to further strengthen the European Union’s (EU’s) presence at sea and to rapidly reinforce Operations Triton and Poseidon by at least tripling the financial resources for this purpose in 2015 and 2016 and reinforcing the number of assets, thus allowing to increase the search and rescue possibilities within the mandate of Frontex, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the EU (ibid). Furthermore, the European Parliament adopted a resolution on the 29th of April on the latest tragedies in the Mediterranean and urged the EU and the Member States to do everything possible to prevent further loss of life at sea (European Parliament 2015).

The immense increase of the budget of Frontex caught my eye. Frontex has been accused of ambiguities regarding fundamental rights protection by non-governmental organizations (NGOs) such as Human Rights Watch and Amnesty International. Some even go as far as accusing the Agency of violating fundamental rights. They argue that Frontex is operating from a securitization instead of humanitarian perspective. Approached from this perspective, migrants are perceived as a threat and should be deterred from the EU. As a result, there exists ambiguity over the obligation to provide fundamental human rights. Questions that consequently come to mind are: is it useful to increase Frontex’ budget? Does Frontex prioritize saving lives and therefore help to prevent further losses at sea? In this thesis it is therefore my aim to conduct research on the topic of Frontex’ objectives and mandate and the Agency’s commitment to fundamental rights obligations. Moreover, I want to find out whether Frontex is able to contribute to less deaths at sea and analyze whether the Agency’s tremendous budgetary increase of last year contributes to this objective. My research question

3 is consequently the following: To what extent do the objectives of Frontex conflict with the obligation to guarantee fundamental rights and do budgetary increases affect the Agency in regard to committing to these obligations? As NGOs and critics of Frontex have pointed out the ambiguities that exist regarding Frontex’ compliance with fundamental rights, I intend to contribute a new aspect to this discussion by investigating whether an increased budget will make the Agency commit more to fundamental rights, by, for instance, scaling up search and rescue operations.

I have inserted the following structure. After explaining which methods are applied for this thesis, I turn to the theoretical framework. I will discuss four different theories, namely the theory of securitization, which can be divided into the concept according to the Copenhagen School and the Paris School, neo-realism, neo-liberalism and the impressionistic decision- making style. In chapter 2, I will discuss why Frontex was created. I will argue that securitization discourse, especially in the aftermath of terrorist attacks of September 2011, gave impetus to create the Agency. But more importantly, I will argue that Frontex was the result of an ongoing process of creating migration policies. In chapter 3, I will discuss Frontex’ main objectives and tasks and I will, thereby, explicate Frontex’ Founding Regulation. Also, I will elaborate on the concept of integrated border management, Frontex’ main objective. Moreover, I will discuss how the Founding Regulation has been adapted and analyze how Frontex has been enabled to further extend its tasks. In chapter 4, I argue that Frontex can both be analyzed through the lens of securitization according to the Copenhagen and the Paris School. Next to that, I will argue that Frontex also enunciates humanitarian discourse. In chapter 5, I will make clear that several ambiguities exist within Frontex’ legal basis and operating. Then, I will turn to the Agency’s ambiguities regarding fundamental rights. For this reason, I will first clarify what kind of legal framework exists regarding the protection of migrants that Frontex as a European agency has to obey in chapter 6. In chapter 7, I will turn to the Frontex ambiguities regarding the protection of migrants. In chapter 8, I will explicate that EU institutions have adopted several resolutions in order to make Frontex commit to fundamental rights and provide insight in how Frontex has implemented this commitment. In chapter 9, I will provide insight in how the Agency’s financial resources have been increased over time since its establishment. Furthermore, I will extensively look into the budget increase that Frontex has received last year for 2016 and what goal this increase is supposed to serve and what goals it in reality serves. In chapter 10, I will look at the number of migrants who died at sea since the start of the migrant crisis in order to find out whether the

4 increased budget of Frontex contributes to less deaths at sea. Lastly, in the conclusion I will answer the research question and put forward my final remarks.

Methodology and operationalization

For this thesis, I made use of a qualitative research. I have analyzed several documents in order to interpret their deeper meaning. First of all, I have analyzed policy documents of Frontex, such as their Founding Regulation and its annual Work Programmes. Moreover, I analyzed official communications and resolutions of three EU institutions: the European Commission, the European Parliament and the Council of the EU. Next to that, I have analyzed the official texts of the working arrangements that Frontex has concluded with EU Agency for Fundamental Rights (FRA) and the UN Refugee Agency (UNHCR). Reports from NGOs, namely Human Rights Watch, Migreurop and Amnesty International, and European Think Tanks contributed to the full understanding of the working of Frontex. It is therefore necessary to state that the main angle of sources focuses on concerns of fundamental rights NGOs. Statistical data retrieved from IOM and UNHCR provided insight in how many migrants tried to cross the Mediterranean and passed away or went missing during their attempts since the beginning of the Arab Spring in 2011. In order to provide a clear distinction between how many migrants crossed the Mediterranean before and after the Arab Spring, I have included data from the year 2010 as well. Next to statistical data from UNHCR and IOM, I retrieved statistical data from Frontex’ governance documents on its annual budget in order to analyze for what purposes the budget has been used. For the purpose of this thesis, documents up till the end of 2015 have been analyzed as the more recent ‘deal’ on migrants between the EU and Turkey goes beyond the scope of this thesis as to understanding Frontex’ actions. Also, I conducted a discourse analysis in order to find out whether Frontex makes use of securitizing speech acts. Therefore, I looked at statements from the former Executive Director of Frontex, Ilkka Laitinen. Moreover, securitizing discourse also becomes clear in several policy documents of the Agency. In order to provide answers that literature reviews could not provide for, I conducted two interviews to find out about Frontex’ relationship with fundamental rights. The first interview was conducted with Mrs. Isabella Cooper, Frontex’ spokesperson, via Skype. Next to asking about the Agency’s relationship with fundamental rights, my aim was to find out

5 how the Agency would respond to criticism concerning fundamental rights ambiguities. The second interview was conducted with Mr. Wojtek Kalociński of the Directorate- General of Migration and Home Affairs, a desk officer who is specialized in the relationship between the European Commission and Frontex, over the telephone. I also asked Mr. Kalocińsk about Frontex’ relationship with fundamental rights, and I intended to gain perspective from the European Commission’s point of view on the question if Frontex is able to comply with both border surveillance and the protection of fundamental rights. Both interviews were semi- structured. Using an interview guide, while leaving the possibility open for the interviewee to add something spontaneous to the conversation, helped to gain insight in what the interviewee perceived as important regarding the topic. Both interviewees gave permission to make references to their statements.

The unit level of analysis in this thesis is Frontex, also being referred to as ‘the Agency’. As mentioned, Frontex is the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union that works under the legal mandate of the EU Member States. Its headquarters are located in Warsaw. Besides its staff members working in Warsaw, Frontex has staff members working in operations that the Agency coordinates and carrying out other Agency tasks. Everyone who works under the auspices of Frontex will be referred to as Frontex in this thesis. It is important to note that this operationalization of the unit of analysis remains vague. Although the unit of analysis is normally clearly demarcated, this unit of analysis abstains from being distinctly defined. This is a notable characteristic of the Agency, as it remains enigmatic what the Agency exactly is and does and can be held accountable for. This will become clear in the remainder of this thesis.

6 Chapter 1 Theoretical framework

In this chapter I will discuss four different theories, namely the theory of securitization, which can be divided into the concept according to the Copenhagen School and the Paris School, neo-realism, neo-liberalism and the impressionistic decision- making style. I will use the theory of securitization in order to analyze how migration is perceived as a threat and how the Agency that coordinates integrated border management came into practice. I will use the theory of neo-realism in order to explain how states are engaged in the act of securitizing to provide for their sovereignty and survival. I will use the theory of neo-liberalism to emphasize the respect for fundamental rights, morality and universal values and I will use the impressionistic decision-making style theory to explain how contradictions between different goals and interests in an organization can be reconciled.

Securitization Several scholars have discussed the politicization of threats, which is called securitization. Securitization theory offers many resources for approaching the issues raised by the liberty/security debate, and is a commonly used way to understand how ‘security’ is invoked to legitimize contentious legislation, policies or practices that would otherwise not have been deemed legitimate (Neal 2009: 335). Two different schools have elaborated on the concept of securitization. First, I will cover the Copenhagen School, whose scholars emphasize the importance of security discourse. Following, I will cover the Paris School, whose scholars emphasize the importance of security practices.

Ole Wæver and Barry Buzan laid the foundations of the Copenhagen School. They defined securitization as a successful speech act through which an intersubjective understanding is constructed within a political community to treat something as an existential threat to a valued referent object, and to enable a call for urgent and exceptional measures to deal with the threat (Buzan and Wæver 2003: 491). Waever claims that by uttering “security” an actor moves a particular development is being moved into a specific area, and thereby claims a special right to use whatever means are necessary to block it (Wæver 1995: 55). The main effect of uttering security is its potential to let an audience tolerate violations of rules that would otherwise have been obeyed (Stritzel 2007: 361). Buzan et al. argue that it is the utterance itself that is the act. By saying the words, something is done (Buzan et al. 1998: 26). Matt McDonald, therefore, argues that for the Copenhagen School issues become security

7 issues through language. It is language that positions specific actors or issues as existentially threatening to a particular political community, thus enabling securitization (McDonald 2008: 568). The type of framing or, to put it differently, the discourse of political actors that constructs threats thus enables these policy actors to take extraordinary measures. This is furthermore enhanced by Buzan et al. who state that the invocation of security has been the key to legitimizing the use of force (Buzan et al. 1998: 21). The state of exception in an emergency creates the opportunity for political actors to use extraordinary means, such as the use of force. Weaver concludes that securitization is the specific security rhetoric, which is marked by survival, priority and urgency (Weaver 2003: 10). The Paris School argues the opposite of the Copenhagen School. Thierry Balzacq, a scholar of the Paris School, firmly disagrees with the Copenhagen School by stating: ‘The reduction of securitization to a mere self-referential speech act, as it is done by the Copenhagen School, risks creating a formalistic and narrow linguistic theory, which neglects the socially, culturally and institutional embeddedness of speech acts.’ (Balzacq in van Dijck 2006: 3). For this reason, it is believed within the Paris School that securitization is expressed through common practices and not through the state of exception. Didier Bigo, the main scholar of the Paris School, argues that securitization works through everyday technologies, through the effects of power that are continuous rather than exceptional, through political struggles, and especially through institutional competition within the professional security field in which the most trivial interests are at stake (Bigo 2002: 73). Huysmans and Buonfino state that security practice consists of knitting various discourses of unease and danger into a patchwork of insecurities that facilitate the political exchange of fears and beliefs and the transfer of security practice from one policy area to another (Huysmans and Buonfino 2008: 782). One could define this transfer of a security practice as a spillover effect, as comprehended by neo-functionalism. Neo-functionalism can be described as a zero sum phenomenon of political control in which authority is gradually transferred from Member States to supranational actors (Pierson 1996: 147). The spillover effect then explains that the deepening of integration in one sector would create pressures for further integration within and beyond that sector and greater authoritative capacity at the European level (Rosamond 2000: 60). As a consequence, security practices of surveillance and border controls have been created. This adds up to the argument of Bigo that security practices are primarily technological. For example, ID cards are a technology of identification that can be deployed in different areas of governance where the identification of people is important, particularly when it comes to welfare provision, illegal

8 immigration, asylum seeking, trafficking, crime investigations and poverty relief (Huysmans and Buonfino 2008: 782). ID cards are thus an example of technology that is being used for policing. Therefore, one can perceive that this type of security practice has spilled over to several governance areas. Bigo states that the security process based on misgiving is added to disciplinary technologies and strengthens the legitimacy of a permanent surveillance supposedly intended only for ‘others’, for bad citizens (Bigo 2002: 81). Thus, it extensively legitimates the need for governing a wide variety of practices and social relations by means of security policy techniques (i.e. surveillance of potentially dangerous people or possible free- riders) and security offices (i.e. intelligence and police) (Huysmans and Buonfino 2008: 783). In doing so, it sustains the professional legitimacy of security professionals and an expanding use of security knowledge, skills and technology in a variety of policy areas (ibid).

Neo-realism and neo-liberalism Neo-realists and neo-liberals both seek to explain behavioural regularities by examining the nature of the international system. The core research question for neo-liberals is how to promote and support cooperation in an anarchic and competitive international system. For neo-realists, however, the core research question is how to survive in this system (Lamy 2014: 127). Therefore, neo-realists study security issues and are concerned with issues of power and survival. Neo-liberals study political economy and focus on cooperation and institutions (Lamy 2014: 128). I will further clarify the differences between the two theories in this section. Neo-realists and neo-liberals agree on two points. In the first place, neo-realists and neo-liberals both treat states as primary actor (Baldwin 1993: 9). However, in neo-realism states are unitary actors, whereas in neo-liberalism they co-exist with different actors. Next to that, both neo-realists and neo-liberals assume that in international politics, the ordering principle is anarchical (Nye 1988: 241). They agree that anarchy means that there is no common authority to enforce any rules or laws constraining the behaviour of states or other actors (Lamy 2014: 134). Unlike neo-liberals, neo-realists see anarchy as placing more severe constraints on state behaviour (Baldwin 1993: 5). The latter perceive international relations as a struggle for survival, and in every interaction there is a chance of a loss of power to a future competitor or enemy (Lamy 2014: 134). Grieco, therefore, concludes that international anarchy fosters competition and conflict among states (Grieco 1988: 485). Today's friend may be tomorrow's enemy in war (idem: 487). For this reason, neo-realists state that anarchy

9 requires states to be preoccupied with relative power, security, and survival in a competitive international system (Baldwin 1993: 7). Consequently, anarchy leads to the logic of self-help, in which states seek to maximize their security, because under anarchy the survival of states cannot be guaranteed (Dunne and Schmidt 2014: 101). Dunne and Schmidt explain that self- help comprises that each state actor is responsible for ensuring its own well-being and survival (ibid). They are responsible of achieving their own security. Because states cannot be certain about the intentions of other states, they face a security dilemma (Snyder 2002: 154). One state’s quest for security is often another state’s source of insecurity (Dunne and Schmidt 2014: 109). For this reason, states are not willing to cooperate (Grieco 1988: 486). As a consequence, international institutions affect the prospects for cooperation only marginally (idem: 488). Neo-realists therefore believe that neo-liberals exaggerate the extent to which institutions are able to mitigate anarchy's constraining effects on inter-state cooperation (idem: 485). A different constraint for cooperation in neo-realism is the concern for relative gains. That is to say, the concern of ‘who gets more’ (Snidal 2012: 93). Accordingly, Grieco argues that the fundamental goal of states in any relationship is to prevent others from achieving advances in their relative capabilities (Grieco 1988: 498). States worry that the other state might gain more. As a result, each player in the game is assumed to be a self- interested, self-reliant maximizer of his own utility (idem: 496). According to neo-realism, cooperation is difficult to achieve, because actors trying to maximize relative gains have no common interests (Stein in Baldwin 1993: 6). The above explained definitions of securitization can both be linked to neo-realism. Securitization of the immigrant as a risk is based on the conception of the state as a body or a container for the polity. It is anchored in the fears of politicians of losing their symbolic control over the territorial boundaries (Bigo 2002: 65). The need to monitor borders to reassure the integrity of what is ‘inside’ in the practice of territorial protection creates an image of immigration associated with an outsider coming inside (idem: 67). Therefore, according to Léonard, the securitization of migration is the extreme politicization of migration and its presentation as a security threat (Léonard 2010: 231).

On the other hand, neo-liberalism, or liberal institutionalism as Grieco refers to the theory, adopts different standpoints on international politics and challenges neo-realism. To begin with, neo-liberals are more concerned with economic welfare and other non-security issue- areas (Lamy 2014: 134). They reject the main principle of neo-realism: the centrality of states. Rosecrance argues that the worst aspects of the Westphalian system with its emphasis on

10 territoriality, sovereignty, and a spurious independence, are likely to be mitigated in the years ahead (Rosecrance in Nye 1988: 247). In our current state of global interconnectedness the world has become more pluralistic in terms of actors involved in international interactions and that these actors have become more dependent on each other (Lamy 2014: 132). As a result of globalization, the sovereignty of states will decline as linkages between states and non-state actors are increasing (ibid). This will indeed invalidate the neo-realist argument of the state as unitary actor on the world’s stage. Instead of states, the new key actors in world politics appeared to be specialized international agencies (Grieco 1988: 488-489). Neo-liberals believe that states can work together under anarchy and can do so especially with the assistance of international institutions (idem: 486). Institutions are seen as the mediator and the means to achieve cooperation among actors in the system (Lamy 2014: 132). Furthermore, they can make a difference by helping to resolve global and regional problems and encourage cooperation rather than conflict (idem: 135). According to Walt, international institutions therefore could help to overcome selfish state behaviour (Walt 1998: 30). Consequently, in neo-liberalism states seek to maximize their individual absolute gains and are indifferent to the gains achieved by others (Grieco 1988: 487). Neo-liberals believe that a zero-sum game does not exist as every state could benefit from cooperation. Moreover, institutions can assure states that gains will be evenly divided (Keohane and Martin: 45-46). Nye argues that the core of liberalism is a concern for liberty (Nye 1988: 245). Neo- liberals seek to project values of order, liberty, justice and toleration into international relations (Dunne 2014: 115). Moreover, the respect for fundamental human rights is stressed. As mentioned, morality and universal ideals take precedence over national interests in neo- liberalism (Lamy 2014: 127).

Lastly, I will touch upon the impressionistic decision-making style. Boswell discusses this by Olsen invented style. The style is a bargaining style adopted where an organization faces divergent goals, and there is a need to define legitimate procedures for allocating power and resources (Boswell 2009: 66). This way, the organization can publicly legitimize the prioritization of certain goals that conflict with other goals and interests of the organization. It is a strategy for minimizing outright contradictions between different organizational goals (ibid). The urge and the need to react to ‘unforeseeable events that come out of the blue sky and hits an organization’, legitimizes the prioritization (Boswell 2007: 605). The impressionistic decision-making style thus helps to reconcile contradictions between different goals and interests according to Boswell (ibid).

11 Chapter 2 European migration policies

In this chapter, I will analyze the outcomes of the securitization of migration. First, I will discuss which specific moments gave impetus to create Frontex. These specific moments and their accompanying discourse can be analyzed through the lens of the securitization of the Copenhagen School. It is the exceptionality of these events that provides legitimacy to tackle the security issue with extraordinary means. However, it is not only the discursive fear of these specific moments that gave impetus to create Frontex. In addition, the ongoing process of creating migration policies, starting before the first shocking abruption of exceptional situations, can be established as a series of securitizing practices. Secondly, I will therefore analyze these migration policies through the lens of securitization of the Paris School.

Three major events gave impetus to the creation of Frontex according to Perkowski. Firstly, with high levels of media coverage and public concern, migration had become a contentious issue in the 1990s when the Cold War had ended and migratory patterns changed (Perkowski 2012: 10). Due to the fall of the Iron Curtain migrants from eastern Europe were able to move and aimed at settling where they stood a better chance to make money. This led to an immense change in migration patterns and has led European states to examine ways of reinforcing border controls to restrict the access of migrants to their territory (Léonard 2009: 375). Secondly, the eastern enlargement of 2004 of the EU posed new challenges on border management. As the date to the enlargement of ten new Member States drew closer, there were specific concerns that these new Member States would not be able to effectively control the new external borders of the EU (idem: 375-376). There were increasing calls for strengthening cooperation amongst EU Member States on border controls as a way to alleviate the lack of border control capabilities of the future EU Member States and their difficulties to meet the Schengen/EU border control standards (idem: 376). Thirdly, the terrorist attacks on 11 September 2001 (9/11) led to the increasing association of migration with terrorism, which in turn increased states’ determination to secure their borders (Perkowski 2012: 10). As the events of 9/11, the bombings in Madrid in 2004 and London in 2005 evoked the same effect. According to Gjoncaj, these bombings revised the securitization discourse adopted by the EU (Gjoncaj 2013: 14). She refers to the reaction on the London bombings of Commissioner Franco Frattini who was, at that time, responsible for Freedom, Security and Justice: ‘This attack is not an attack on the United

12 Kingdom or its citizens only, but an attack on the whole of Europe and on all of us, all EU citizens. It is an attack on all those who defend and promote human rights and our shared values of freedom, liberty, justice and security. The priority for the UK Presidency in the area of Justice and Home affairs already identified is that of security and it is a priority which I fully share and on which it is necessary to make progress in the next six months.’ (Frattini in Gjoncaj 2013: 14). One can perceive that after the bombings, the link between migration and security was made and emphasized the need to securitize the EU.

Perkowski states that raising an issue as a threat is an instrument in the struggle for power and legitimacy (Perkowski 2012: 11). The association of terrorist attacks with migration gave rise to creating a securitization discourse. However, according to the Paris School, it is rather the actual practices than discourse caused by exceptional events that should be used to analyze securitization processes (Wӕver 2004: 10). It is the activities that, in themselves, convey the idea that asylum-seekers and migrants are a security threat to the EU (Léonard 2010: 237). Léonard argues that Frontex was created in a context wherein the EU asylum and migration policy had already been shaped by a securitization trend for a certain number of years (idem: 236). Therefore, I will be looking at the development of migration policies that already existed before the end of the Cold War. To begin with, I will provide a passage of Huysmans to prove that migration policies have not always been securitized in Europe. According to Huysmans, contemporary migration policies are the opposite of migration policies in the 1950s and 1960s. He remarks that the economic situation and the labour market back then required a cheap and flexible workforce that did not exist in the domestic market (Huysmans 2000: 753). For this reason, countries like France, Germany and the Netherlands, used a permissive or even promotional migration policy motivated by the need for extra labour (ibid). Migration nowadays has been increasingly presented as a danger to public order, cultural identity, and domestic and labour market stability (idem: 752). As a result, securitizing practices, e.g. the adoption of strict migration policies, came into existence. This process of the securitization of migration already started in 1985. In that year, the European Commission submitted the White Paper on the completion of the internal market, which was completed in the early 1990s. Article 14(2) of the Treaty establishing the European Community provided for a common territory without internal borders between Member States: ‘The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.’ (Consolidated version of the Treaty

13 establishing the European Community 2002). The abolishment of internal borders automatically created one shared external border and posed a security issue since anyone could travel freely once he entered the Community. Jorry therefore states that in order to achieve provisions of Article 14 and to tackle the expansion of trans-national security challenges, some Member States decided to cooperate on a European level within the intergovernmental framework of the Schengen Agreement of 14 June 1985 (Jorry 2007: 3). The Agreement established the gradual abolition of checks at common borders, of which the implementation started in 1995 (European Commission 2016). In 1992, EU cooperation on asylum and migration matters started with the Maastricht Treaty, which established the European Union (Léonard 2010: 233). This Treaty introduced a Third Pillar on Justice and Home Affairs in which migration was an explicit subject of intergovernmental regulation within the European Union (Huysmans 2000: 755). However, migration-related questions became key issues to the European Union and had to move up from the Third Pillar. As a result, in the Treaty of Amsterdam of 1997 the sections of the Third Pillar relating to immigration, asylum and refugees were communitarized and the concept of an ‘Area of Freedom, Security and Justice’ was introduced (idem: 756). Moreover, the Amsterdam Treaty incorporated the Schengen acquis into the institutional framework of the EU and laid down the legal basis for the strengthening of common external border checks

(Baldaccini 2010: 231). Thus, this moment marked a shift from an intergovernmentalist to a communitarized approach. In 1999, EU cooperation on migration, asylum and external borders received an important impetus with the adoption of the ‘Tampere Programme’, a five-year work programme for the development of internal security policies in the EU (Léonard 2009: 234). The programme intended to develop common policies on asylum and immigration, while taking into account the need for a consistent control of external borders to stop illegal immigration and to combat those who organise it and commit related international crimes (European Council 1999). According to Perkowski, these policies aimed at the repression of undesired inflows through externalisation (Perkowski 2012: 11). In 2001, external border control management became even more important, especially in the aftermath of the events of 9/11. The Laeken European Council of 14 and 15 December 2001 once more linked migration to crime and terrorism and decided to further strengthen external border management. This will become clear in the following passage of the Communication of the European Commission: ‘Better management of the Union's external border controls will help in the fight against terrorism, illegal immigration networks and the

14 traffic in human beings. The European Council asks the Council and the Commission to work out arrangements for cooperation between services responsible for external border control and to examine the conditions in which a mechanism or common services to control external borders could be created.’ (European Commission 2002). In 2004, the Tampere Programme was followed by the The Hague Programme. This programme sets out ten new priorities for the Union in order to strengthen the area of freedom, security and justice for the years 2005-2010. Two of them include anti-terrorism measures and developing integrated management of the Union’s external borders. Anti- terrorism measures were considered necessary as ‘a comprehensive response to terrorism is the only way to combat it effectively’ and further developed integrated border management was required because ‘within the Union, the free movement of persons is made possible by the removal of internal border controls and requires greater efforts to strengthen the integrated management of external borders.’ (European Commission 2005). In order to achieve further integrated border management, Frontex has been set up to manage external borders and may be given additional tasks in the future (ibid). By setting up the agency, external border management control had been taken to the next level in supranationality. In December 2009, the European Council adopted the Stockholm Programme, the follow-up of the The Hague Programme which defined the guidelines to strengthen the area of freedom, security and justice for the next five years from 2010 until 2015. It provided a framework for EU action on the issues of citizenship, justice, security, asylum, immigration and visa policy and called for a coherent policy response which would go beyond the area of freedom, security and justice (European Commission 2009). This is due to the fact that the Lisbon Treaty, which entered into force on 1 December 2009, merged the First and Third Pillar, making co-decision the standard legislative procedure for the whole Area of Freedom, Security and Justice and as such completing the process of communitarization of competences in Justice and Home Affairs (Rijpma 2009: 140).

As has been demonstrated in these measures to strengthen external border management, migration had become securitized over a consistent period of time and had not only been defined after exceptional moments. It is the continuing process in which the assumptions that sources of insecurity must come from ‘outside’ and that immigrants are a major source of insecurity to the EU have been made (Neal 2009: 339). Therefore, rather the ongoing process of implementing securitizing practices than securitizing discourse established securitization. To conclude, it is the practices which turn an issue like migration into a security problem by

15 mobilizing specific institutions and expectations which is in line with the Paris School (Huysmans 2000: 757).

16 Chapter 3 Frontex’ mandate and amended Founding Regulation

The willingness to strengthen cooperation amongst EU Member States with regard to external border controls ultimately led to the creation of Frontex (Léonard 2010: 234). The European Border Management Agency was established on 26 October 2004 by Council Regulation (EC) 2007/2004 and came into force in October 2005. ‘Frontières extérieures’ – external borders- lays at the origin of the name Frontex (Marin 2011: 471). Frontex was born as a Community agency for which article 62(2)(a) and Article 66 of the TEC served as the legal basis of Frontex’ founding Regulation EC 2007/2004. Title IV of the TEC Article 62(2)(a) foresees the adoption by the Council of measures establishing “standards and procedures to be followed by Member States in carrying out checks on persons at such borders”, whereas Article 66 concerns the adoption of measures by the Council to ensure cooperation amongst Member States, as well as between Member States and the Commission in the policy areas covered by Title IV (Léonard 2009: 373).

Article 1 of the Regulation provides insight into why the Agency was established. It states: ‘A European Agency for the Management of Operational Cooperation at the External Borders (the Agency) is hereby established with a view to improving the integrated management of the external borders of the Member States of the European Union.’ (Council of the European Union 2004: 3). The aim of the Agency is thus to improve integrated management of the external borders of the EU. This concept was endorsed two years later by the Council of the European Union in its conclusions on the Justice and Home Affairs Council of 4-5 December 2006: ‘Integrated border management is a concept consisting of the following dimensions: • Border control (checks and surveillance) as defined in the Schengen Borders Code, including relevant risk analysis and crime intelligence • Detection and investigation of cross border crime in coordination with all competent law enforcement authorities • The four-tier access control model (measures in third countries, cooperation with neighbouring countries, border control, control measures within the area of free movement, including return) • Inter-agency cooperation for border management (border guards, customs, police, national security and other relevant authorities) and international cooperation • Coordination and coherence of the activities of Member States and Institutions and other bodies of the Community and the Union.’ (Council of the European Union 2006: 27).

17

Article 2 of Frontex’ Founding Regulation encapsulates the Agency’s main tasks: (a) coordinate operational cooperation between Member States in the field of management of external borders; (b) assist Member States on training of national border guards, including the establishment of common training standards; (c) carry out risk analyses; (d) follow up on the development of research relevant for the control and surveillance of external borders; (e) assist Member States in circumstances requiring increased technical and operational assistance at external borders; (f) provide Member States with the necessary support in organising joint return operations. (Council of the European Union 2004: 4).

I will use the following descriptions of the website of Frontex to quickly elaborate on its main tasks. First of all, Frontex helps border authorities from different EU countries to work together. Secondly, Frontex is responsible for developing common training standards and specialist tools. These include the Common Core Curriculum, which provides a common entry-level training rationale for border guards across the Union, and mid- and high-level training for more senior officers. Thirdly, Frontex carries out risk analyses. The Agency collates and analyzes intelligence on the ongoing situation at the external borders. Fourthly, Frontex assists in organizing joint operations. The Agency plans, coordinates, implements and evaluates joint operations conducted using Member States’ staff and equipment at the external borders (sea, land and air). Fifthly, Frontex carries out research. The Agency serves as a platform to bring together Europe’s border-control personnel and the world of research and industry to bridge the gap between technological advancement and the needs of border control authorities. Sixthly, Frontex assists Member States in joint return operations. When Member States make the decision to return foreign nationals staying illegally, who have failed to leave voluntarily, Frontex assists those Member States in coordinating their efforts. (Frontex 2016a).

Marin states that other provisions of the Founding Regulation, such as Articles 13 and 14, reveal the broad scope of the action the Member States allow to the Agency (Marin 2011: 474). Article 13 promulgates: ‘The Agency may cooperate with Europol and the international

18 organisations competent in matters covered by this Regulation in the framework of working arrangements concluded with those bodies, in accordance with the relevant provisions of the Treaty and the provisions on the competence of those bodies.’ (Council of the European Union 2004: 3). This article thus provides the means to Frontex to conclude working arrangements with other EU agencies. Article 14 promulgates: ‘In matters covered by its activities and to the extent required for the fulfilment of its tasks, the Agency shall facilitate the operational cooperation between Member States and third countries, in the framework of the European Union external relations policy. The Agency may cooperate with the authorities of Third Countries competent in matters covered by this Regulation in the framework of working arrangements concluded with these authorities, in accordance with the relevant provisions of the Treaty.' (idem: 3-4). This article thus provides the means to Frontex to arrange working arrangements with Third Countries. Although the working agreements with Third Countries are not considered as internationally binding, they nevertheless reveal operational autonomy (Marin 2011: 474). Moreover, articles 13 and 14 provide for the acquiring of a certain legal personality for the Agency. Next to articles 13 and 14, article 8, clause 3 and 10 also demonstrate that Frontex adapts an operational role rather than merely a facilitating one (Baldaccini 2010: 234). Article 8 (3) promulgates: ‘The Agency may acquire technical equipment for control and surveillance of external borders to be used by its experts for the duration of the deployment in the Member State(s) in question.’ (Council of the European Union 2004: 5). This article thus allows Frontex to own operational resources and assets. Article 10 promulgates: ‘Exercise of executive powers by the Agency’s staff and the Member States’ experts acting on the territory of another Member State shall be subject to the national law of that Member State.’ (Council of the European Union 2004: 5). This article thus makes provision for the exercise of executive powers by the Agency’s staff and Member States’ experts acting on the territory of other Member States (Baldaccini 2010: 234). It thus becomes clear that the stated purpose of Frontex - improving the integrated management of the external borders of the Member- goes much wider (idem: 233).

Frontex represents a compromise between supranationalism and intergovernmentalism. Marin clarifies that although the European Commission was oriented towards a supranational agency, inspired by the proposal of a ‘European Border Police’, it had to accept the solution put forward by the European Council, acknowledging the need to increase cooperation, coordination, convergence and consistency between borders’ practitioners in the EU Member

19 States (Marin 2011: 472). Member States were not willing to provide a complete transfer of sovereignty over border control. Therefore, a European Border Police, as suggested by Italy and Germany, or a European Border Guard could not be established. Especially the United Kingdom was reluctant to see any centralization in that policy area (Léonard 2009: 376). Therefore, one can conclude that although the establishment of Frontex should clearly be seen in the light of a step towards supranationalism as explained in the previous chapter, the establishment of the Agency nevertheless leans more towards intergovernmentalism as national concerns predominated. Accordingly, Member States still maintain responsibility over external border management.

Reforming the Founding Regulation The Founding Regulation was reformed in 2007 and brought two significant changes. To begin with, the amendment established a mechanism for the creation of Rapid Border Intervention Teams. Secondly, the Agency’s communal character was enhanced by, inter alia, compulsory solidarity in Rapid Border Interventions.

The mechanism to request Rapid Border Interventions is based on the new inserted article 8(a) of Regulation (EC) 863/2007. Article 8a promulgates: ‘At the request of a Member State faced with a situation of urgent and exceptional pressure, especially the arrival at points of the external borders of large numbers of Third Country nationals trying to enter the territory of that Member State illegally, the Agency may deploy for a limited period one or more European Border Guard Teams (“team(s)”) on the territory of the requesting Member State for the appropriate duration in accordance with Article 4 of Regulation (EC) No 863/2007 (European Union 2007a: 35). This article thus provides the means to deter Third Country nationals with the help of Rapid Border Intervention Teams in the urge of exceptional circumstances. The Rapid Border Intervention Team Proposal (RABIT Proposal), drafted on 19 July 2006 by the European Commission, aimed at creating a mechanism to rapidly respond to a requesting state facing extreme difficulties by providing support to be given by the Agency in the form of expertise, manpower of border guards and technical assistance (Jorry 2007: 15). Moreover, Rapid Border Interventions Teams are based on the principle of compulsory solidarity and, therefore, reinforce the Community character of Frontex. Article 4(3) promulgates: ‘Member States shall make the border guards available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. The autonomy of the home Member State in relation

20 to the selection of staff and the duration of their deployment shall remain unaffected.’(European Union 2007a: 31). Member States are thus obliged to make border guards available for Rapid Border Interventions. Other amendments made to the Founding Regulation also further develop the Community character of Frontex. Baldaccini argues that the tasks and powers of officers participating in Frontex operations now include active border guard activities as set out in the Schengen Border code, such as investigating nationality, stamping passports and preventing illegal border crossing. Next to that, officers participating in Frontex operations may perform border police tasks in line with those of the host officers under the command of the border police authority of the host country (Baldaccini 2010: 234-235).

Next to the provision to create Rapid Border Intervention Teams and the enhancement of the Community character of the Agency, Regulation 863/2007 put emphasis on the respect for and compliance with fundamental rights. Regulation (EU) 1168/2011 demonstrates other amendments of Regulation EC 863/2007 made to the Founding Regulation. Article 1, paragraphs 2 and 3 are replaced by the following: ‘While considering that the responsibility for the control and surveillance of external borders lies with the Member States, the Agency, (…) shall facilitate and render more effective the application of existing and future Union measures relating to the management of external borders, in particular the Schengen Borders Code (…). The Agency shall fulfil its tasks in full compliance with the relevant Union law, including the Charter of Fundamental Rights of the European Union (“the Charter of Fundamental Rights”); the relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Geneva Convention”); obligations related to access to international protection, in particular the principle of non- refoulement; and fundamental rights, and taking into account the reports of the Consultative Forum referred to in Article 26a of this Regulation (European Parliament and Council of the European Union 2011: 5). In article 2, the following paragraph is inserted: ‘In accordance with Union and international law, no person shall be disembarked in, or otherwise handed over to the authorities of, a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle. The special needs of children, victims of trafficking, persons in need of medical assistance, persons in need of international protection and other vulnerable persons shall be addressed in accordance with Union and international law.’ (idem: 6). In both amendments, one can perceive a stronger notion for a respect for human rights.

21 Chapter 4 Securitization discourse and securitization practices

Frontex can be analyzed from both the perspective of the Copenhagen School and the Paris School. First, I will analyze the successful speech acts in which migrants are treated as threats. According to the Copenhagen School, this discursive language forms the securitization of Frontex. Following, I will analyze Frontex’ common practices that according to the Paris School form Frontex’ securitization. Next to that, I will provide insight in how Frontex claims to be operating from a humanitarian perspective.

Frontex’ securitization discourse Huysmans and Squire argue that by borrowing the language of human trafficking, developing crime statistics differentiating between immigrants and the native population, or presenting security as a choice between individual and national security, security knowledge sustains the idea that migration is a question of insecurity, which tends to radicalize exclusions and legitimate violence (Huysmans and Squire 2009: 178). Within the discourse of Frontex, migration is framed as a question of insecurity in a state of emergency that needs to be dealt with. In this regard, migrants are seen as a threat to the sovereignty of the Member States of the EU. This becomes clear in various regulations and communications Frontex has published. I have selected the following passages: Recital 5 of the Agency’s Founding Regulation states: ‘Effective control and surveillance of external borders is a matter of the utmost importance to Member States regardless of their geographical position’(Council of the European Union 2004: 1). It is therefore possible to interpret anything from outside the borders of the Member States as a potential threat that needs to be stopped by effective border control. Furthermore, in the following passage of former Executive Director Ilka Laitinen, all sorts of threats seem to be border-related: ‘It is clear that more attention has to be paid to the security of the external border as a crucial part of protecting the area of Freedom, Security and Justice. There is a variety of significant potential threats: international terrorism, the proliferation of weapons of mass destruction, regional conflicts, organised crime, trafficking in and smuggling of human beings, pandemics and economic crimes. There is always a very clear border-related aspect to each one of these threats. And all this is happening in the context of growing globalisation and increasing inequality in various parts of the world.’ (Laitinen 2007: 58). Again, there is a reiteration of the assumption that sources of insecurity

22 must come from ‘outside’ and that immigrants to the EU are a major source of insecurity (Neal 2009: 339). In addition, the emergency to tackle threats from outside follows from recital 5 of the Regulation (EC) No 863/2007: ‘Rapid Border Intervention Teams at European level are not considered sufficient, in particular where Member States are faced with the arrival of large numbers of third-country nationals trying to enter the territory of the Member States illegally’ (European Union 2007a: 30). In other words, migration flows can be so threatening to some EU Member States that they would not be able to cope with them, even with the help of the cooperation mechanisms already in place (Léonard 2010: 244). The explicit mention of the need for Rapid Border Intervention Teams on the territory of a Member State requiring assistance ‘for a limited period of time in exceptional and urgent situations’ of recitals 6 and 7 provides further proof of securitization discourse. Besides, RABIT training exercises are regularly organized, which perpetuate the idea that, at any time, migration flows could constitute an emergency situation requiring a rapid response (idem: 27). As the arrival of large numbers of migrants could take place at any time, RABIT teams should be prepared at any time as well. This situation clearly expresses the state of an emergency in which the fear of migrants is not concealed. In 2012, Frontex published the document: ‘Guidelines for Risk Analysis Units. Structure and Tools for the Application of CIRAM Version 2.0’. Inter alia the concept of vulnerability is discussed in the document: ‘Vulnerability: it is determined by the capacity of a system to mitigate a threat. Vulnerability is understood as the factors at the border or in the EU that might increase or decrease the magnitude or likelihood of the threat.’ (Frontex 2012a: 109). Aas and Gundhus state that in this context, vulnerability refers to vulnerability of the border, rather than of humans crossing it (Aas and Gundhus 2015: 9). Vulnerability thus refers to the factors that weaken the borders. Irregular migrants, including those with legitimate protection needs, are therefore first and foremost defined through their risk qualities—as threats—rather than through their vulnerability (idem: 9-10). Next to the above quotations, Baldaccini makes a general remark of Frontex’ publications. She states that Frontex’ evaluations emphasize outputs rather than assessing the impact of Frontex operations: all that is provided are headcount figures on the number of people diverted back or deterred, and the number of facilitators arrested (Baldaccini 2010: 242). This proves that Frontex is focused on the expulsion and deterrence of migrants who are therefore perceived as a threat.

23 Frontex’ securitization practices Edler explains that the Paris School emphasizes the securitizing practices which demonstrate that there is a drastic change in the patterns of governance, with restrictions to individual liberty on behalf of an alleged increase in protection (Edler 2013: 1). According to Gjoncaj, the EU’s integrated border management strategy legitimizes and reinforces the practice of security; its aim being to tackle what threatens the EU (Gjoncaj 2013: 5). Bigo clarifies that after the events of 11 September, protection has become a synonym for internal security (Bigo 2006: 88). It should be made clear that the focus on internal security has not been transformed into the discourse of a state of emergency that requires exceptional measures, rather the focus on internal security had been changed into a common practice after 9/11. Or, to put it as Edler puts it, a drastic change of patterns of governance had taken place. According to Bigo, this has become clear in the concept of frontalierisation. The act of frontalierisation aims to enclose a given territory as in a container (idem: 97). Protection as frontalierisation is then partly connected with converting territory into sanctuary (ibid). In other words, to protect Europe, everything from outside the borders of the Union, could be distinguished as a potential threat. Fortress Europe is thus established to protect ‘the sanctuary’ and the integrated border management strategy serves this goal. Frontex has been given a key role in implementing the concept of the integrated border management strategy. Consequently, Jeandesboz points out that Frontex might be too overtly oriented towards migration control and predominantly influenced by the agendas of the Member States (Jeandesboz 2008: 1). As the integrated border management strategy consists of a continuing process of securitizing practices, one can analyze several of its main tasks through the lens of these securitization practices. Frontex’ website promulgates the Agency’s main aim: to promote, coordinate and develop European border management (Frontex 2016a). The Agency is thus occupied with the permanent practice of border surveillance which can be perceived as a continuing securitizing practice. Therefore, Frontex can be approached as a security continuum in which the following strategy has been adopted: the more security you have, the less risk you face (Edler 2013: 21). In this sense, security thus prevails over liberty. Edler argues that securitization barely happens through discontinuity, on the contrary, it is simply the evolution of a much longer and complex political process (idem: 22). Frontex is an intelligence-driven agency that carries out risk analyses. It produces Annual Risk Analyses, Interim Annual Risk Analyses, short-term risks analyses and also tailored risk analyses (Gjoncaj 2013: 17). Laitinen presents the function of the Risk Analysis Model as the following: ‘We assess what is the likely threat that threatens the external

24 borders, border security, and EU citizens from outside. In other words, criminal pressure, in terms of illegal migration, human trafficking, and so on, not disregarding other types of organized crime and fighting international terrorism.’ (Laitinen in Neal 2009: 348-349). Neal explains that the logic of the Risk Analysis model is not one of response but rather of anticipation and management (idem: 349). It is no longer a case of intercepting the ‘threat’ as it arrives at the border, but of ‘assessing’ the ‘threats’ ‘likely’ to emerge in the future (ibid). This contradicts with the exceptionality argument of the Copenhagen School as these risk analyses are produced on a continuing basis, and therefore complement the argument of a common practice. The Agency uses sophisticated technology and structures in conducting risk analyses, that fall under CIRAM (Common Integrated Risk Analysis Model). These high tech technology uses amplify the argument that security practices are primarily technological. Moreover, Neal points out that the prevalence of the concept of ‘risk’ is one of the most intriguing aspects of Frontex, as it seems to represent a move away from the political spectacle of the security emergency in favour of a quieter and more technocratic approach (Neal 2009: 348). Gjoncaj remarks that the term intelligence is also used to denote military information and espionage (Gjoncaj 2013: 17). The use of said structures and technologies shows that because the problem of undocumented migration is tackled through military methods, it is treated as a security threat (ibid). Considering how Frontex is employing sophisticated technology, it can be concluded that risk analyses conducted by it do indeed contribute to the further securitization of migration (idem: 18). Léonard also argues that the use of military methods as securitizing practices affirms migration as a security threat. She states that Frontex’ joint operations amongst various states, particularly in the case of the sea joint operations, have traditionally been deployed to address more traditional security issues such as a military attack from a third state, piracy or drug-trafficking (Léonard 2010: 240). Given that some of the actors involved in these joint operations have a semi-military status in their country, such as the Guardia Civil in Spain or the Guardia di Finanza in Italy, these joint operations that aim to stem migration flows can be seen as a ‘semi-militarisation’ of border controls and thereby a securitization of migration flows given the traditional role of the military in addressing security issues (ibid). Furthermore, the following statement of Javier Quesada, head of the Risk Analysis Unit, provides insight in the continuing process of securitizing practices: ‘We started creating intelligence communities in third countries in the Western Balkans, at the eastern borders of

25 the EU Member States and now in Africa. And we intend to continue developing these communities.’ (Quesada in Toğral Koca 2016: 50). Quesada emphasizes the ongoing development of creating intelligence communities as has been provided by article 14 of Frontex’ Founding Regulation. This stresses a common practice instead of extraordinary measure in a state of emergency. In coherence with the Paris School, securitization has moved from a threat-focused analysis to the interpretation of insecurity as a domain of practice that is produced and reproduced through socially and politically investing security rationality in policy areas (Huysmans 2006: 6). Therefore, one can conclude that Frontex is not the institutionalization of exceptionalism, but the institutionalization of normalization in the form of European Union technologies and regulations (Neal 2009: 347-348).

Frontex’ humanitarian discourse As demonstrated above, Frontex can be analyzed through the lens of securitization. Simultaneously, the Agency promulgates to be operating from a humanitarian perspective. For example, Frontex’ General Report of 2008 stated: ‘Frontex identifies humanity, open communication, professionalism, team work, and trustworthiness as values which shall be endorsed, shared, lived and performed by each member of staff and respected by Frontex’ partners.’ (Frontex 2008a: 10). In addition, the report mentions that these five values form the foundation of Frontex’ activities at all levels. Full respect and promotion of fundamental rights belongs to the value “Humanity”, the most important corner stone of modern European border management (ibid). Instead of perceiving the following statement as a deterrence measure, Laitinen argues: ‘Very low numbers of illegal migrants arriving to the Canary Islands and more than a thousand of human lives saved – that is the outcome of Frontex coordinated operation Hera III.’ (Frontex 2007a). Laitinen clarifies: ‘Stopping migrants from leaving the shores on the long sea journey thus reduces the danger of losses of human lives.’ (ibid). One could ask if Frontex perhaps applies an impressionistic decision-making style in which the Agency helps to reconcile contradictions between different objectives. On the one hand, the Agency wants to stop as many migrants from leaving, so that fewer migrants will come to Europe. On the other hand, the Agency formulates this in a way to prioritize fewer deaths at sea.

26 Chapter 5 Unclear legal framework

In this chapter I will explain the several ambiguities that exist within Frontex’ legal basis and operating. I will make use of the critiques of Perkowski, Baldaccini, Léonard and Marin on the Agency’s legal framework that is perceived as unclear.

To begin with, according to Baldaccini as already mentioned in Chapter 2, Frontex’ purpose of improving the integrated management of the external borders of the Member goes much wider than article 62(2)(a) and Article 66 of the TEC serve legal provision for. As a result, there exists ambiguity over border control responsibilities between Frontex and EU Member States. Marin clarifies that on one side, recital 4 and Article 1(2) of the Founding Regulation clearly limit the Agency’s scope of activities: while considering that the responsibility for the control and surveillance of external borders lies with the Member States, the Agency shall facilitate and render more effective the application of existing and future Community measures on the management of external borders (Marin 2011: 474). On the other side, Baldaccini concludes that Frontex effectively initiates the coordination that it engages in, and that its responsibilities derive from its planning and coordinating role (Baldaccini 2010: 234). Article 8, clause 1 of the Founding Regulation promulgates: ‘Without prejudice to Article 64(2) of the Treaty, one or more Member States confronted with circumstances requiring increased technical and operational assistance when implementing their obligations with regard to control and surveillance of external borders may request the Agency for assistance. The Agency can organise the appropriate technical and operational assistance for the requesting Member State(s)’ (Council of the European Union 2004: 5). The Agency thus facilitates and coordinates operational cooperation between Member States and responds to requests from Member States for technical and operational assistance in border control and surveillance matters (Baldaccini 2010: 234). Furthermore, Baldaccini remarks that Frontex is also tasked with carrying out risk analyses to allow Member States and the Community to take appropriate measures or to tackle identified threats (ibid). In practice, the Agency’s operational activities are planned on the basis of these risk analyses, rather than on the basis of Member States’ political considerations (ibid). It is the risk analyses that form the basis for joint operations (COWI 2009: 34). Article 3 of the Founding Regulation provides the means for Frontex to launch initiatives for joint operations: ‘The Agency may itself, and in agreement with the Member State(s) concerned, launch initiatives for joint operations and pilot projects in cooperation with Member States.’(Council of the European Union 2004: 4). Next to that, Member States should not interfere in Frontex’

27 operating as it could jeopardize the functioning of the Agency. This is set out in Article 2, clause 2 of the Founding Regulation: ‘Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives.’(ibid). In addition, Frontex is also allowed to own operational resources and assets, according to article 8, clause 3 of the Founding Regulation as already has been made clear in Chapter 2. Besides, the establishment of Rapid Border Intervention Teams grants Frontex a certain degree of autonomy as the request of the Member States to deploy a RABIT intervention is solely decided upon by the Executive Director, who shares the reasons for his decision only with the Management Board (Perkowski 2012: 19). And, as already mentioned in the previous chapter, through articles 13 and 14 of Frontex’ Founding Regulation, which provide the Agency to sign agreements with other EU agencies and with Third Countries, the Agency has acquired a certain degree of a legal personality. The above mentioned arguments make clear that Frontex is able to execute its own operational role. According to Marin, one can thus assume that there is a gap between Frontex’ role and function, considering the remit and scope of its interventions, which is way more complex than neutral cooperation (Marin 2011: 474). One can therefore conclude that on legal terms Member States are responsible for technical and operational assistance in border control and surveillance matters, however, it might as well be Frontex that is in the driver’s seat. Baldaccini states that the lack of clarity and transparency regarding the exact scope of Frontex’ coordinating role, and the way in which Frontex operations are conducted make it difficult to establish which authority can ultimately be held responsible (Baldaccini 2010: 230). This completes the ambiguity that exists over border control responsibilities.

Secondly, Léonard notes that agencies are often presented as giving more visibility to EU policies especially compared to other institutional arrangements such as the comitology system, thereby increasing their legitimacy and that of the EU in general (Léonard 2009: 374). However, several documents of Frontex are not publicly available. Perkowski remarks that the tailored risk assessments that missions are based on, the operational agreements underlying the operations, and the working arrangements that Frontex has set up with third countries and organisations are not publicly accessible – leaving the agency clouded in secrecy and making it nearly impossible to access timely information regarding its activities (Perkowski 2012: 20). Moreover, it is challenging to access truthful information considering that since these maritime operations take place at sea, it is relatively difficult for independent media to have access to information on what happens in remote areas (Marin 2011: 478).

28 Guardia di Finanza Colone emphasized: ‘On what happens on the high seas there is no direct information, and there will never be’ (Colone of the Guardia di Finanza in Marin: ibid). This contradicts article 28(2) that treats ‘Transparency and Communication’ of the Agency’s Founding Regulation. The article proclaims: ‘It (Frontex) shall ensure in particular that, in addition to the publication specified in Article 20(2)(b), the public and any interested party are rapidly given objective, reliable and easily understandable information with regard to its work.’ (Council of the European Union 2004: 9). Furthermore, the principle of transparency is encapsulated in article 15, clause 3 of the Treaty on the Functioning of the European Union (TFEU): ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union's institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.’ (European Union 2007b: 54).

Thirdly, the EU is based on the principles of democracy and the rule of law as article 2 of the Treaty on the European Union (TEU) proclaims: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.’(European Union 2007c: 17). However, Frontex seems to lack democratic oversight. The European Parliament could not influence the process of establishing Frontex, and is rather marginalised regarding its powers and competences to oversee Frontex’ activities in the Agency’s current functioning (Perkowski 2012: 18). While it has control over Frontex’ budget, it can do little to ensure the accountability of Frontex in the fulfilment of its mandate, including its compliance to refugee and human rights law (ibid). Moreover, in September 2012, the Court of Justice of the European Union criticized the absence of a genuine consultation of the European Parliament prior to the adoption of decision 2010/252 on maritime interceptions during Frontex operations (Frontexit 2014a: 2).

Lastly, Perkowski argues that another lack of accountability emerged more strongly after the 2007 amendment of the Founding Regulation, which permits the use of force by Frontex officers (Perkowski 2012: 20). Article 6, clause 6 of Regulation EC 863/2007 promulgates: ‘While performing their tasks and exercising their powers, members of the teams shall be authorised to use force, including service weapons, ammunition and equipment with the consent of the home Member State and the host Member State, in the presence of border guards of the host Member State and in accordance with the national law of the host

29 Member State.’ (European Union 2007a: 33). What makes it even more difficult is the fact that Frontex’ staff members cannot be held accountable since they enjoy immunity according to article 18 of the Founding Regulation: ‘The Protocol on the privileges and immunities of the European Communities shall apply to the Agency.’ (Council of the European Union 2004: 6). The use of force would not merit one of the core principles of the EU, human dignity, as outlined in article 2 of the TEU. Moreover, the use of force contradicts the right to life as proclaimed by several international conventions as will be discussed in chapter 7.

As demonstrated, these arguments all contribute to the contradictions and ambiguity that exists within Frontex’ legal framework. In the following two chapters it will become clear that there exists ambiguity outside of the Agency’s legal framework, especially with regard to human rights.

30 Chapter 6 Legal framework protecting the rights of migrants

Several human rights obligations exist to protect the rights of migrants. In this chapter I will clarify what kind of legal framework exists regarding this protection.

International Refugee Law To begin with, there is the 1951 Geneva Convention and Protocol relating to the Status of Refugees. All EU Member States have ratified this convention. The core principle of the convention is the principle of non-refouler as proclaimed in article 33. This article promulgates: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’ (UNHCR 2010a: 30). A refugee is defined as ‘a person who is owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it’, according to article 1(A2) (idem: 14). Moreover, the Convention stipulates that illegal border crossings of refugees is permissible in article 31(1). This article promulgates: ‘The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’ (idem: 29).

Fundamental human rights law A set of fundamental human rights is outlined in, inter alia, the Universal Declaration of Human Rights (UDHR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and in the International Covenant on Civil and Political Rights (ICCPR). All EU Member States are party to these conventions. Moreover, a European framework of fundamental human rights came into existence by implementing the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights (CFR). According to Article 6 (2) TEU, the EU is bound by EU fundamental rights (European

31 Union 2007c: 19). It is important to note that the geographical scope of European fundamental rights would appear to be applicable beyond EU borders, according to ECJ case-law (Scheinin et al. 2012: 5). In addition to the 1951 Geneva Convention and Protocol relating to the Status of Refugees, article 3(1) CAT and article 19 (2) CFR promulgate the principle of non- refoulement (UN General Assembly 1984: 2; European Parliament, European Commission; European Council 2000: 399). Furthermore, article 3 ECHR which proclaims the prohibition of torture and article 4 CFR which prohibits torture and inhuman or degrading treatment or punishment should be seen in light of the non-refoulement principle since no one should be expelled to a country where he or she would be exposed to torture or inhuman treatment (European Court of Human Rights and Council of Europe 2010: 3; European Parliament, European Commission and the European Council 2000: 396). These articles demonstrate that European fundamental rights are applicable beyond EU borders. When the EU or its Member States cooperate with Third Countries to perform border controls or return illegally staying Third Country nationals, Article 4 CFR and Article 3 ECHR entail an obligation to apply coercive measures in removal proceedings in accordance with the right to dignity and to protect individuals risking persecution in the country of origin or transit (Cogolati et al. 2015: 23). Moreover, the European Court of Human Rights held in the Hirsi Jamaa and others v. Italy case that persons are not to be pushed back after a rescue operation on the high sea, to a country where they risk being treated in violation of Article 3 ECHR (Scheinin et al. 2012: 4). Next to articles 3 ECHR and article 4 CFR, article 7 ICCPR, article 5 UDHR and article 4 CAT prohibit torture or cruel, inhuman or degrading treatment (UN General Assembly 1966: 175; UN General Assembly 1948; UN General Assembly 1984: 2). The prohibition of non-refoulement entails that persons rescued or intercepted are entitled to a thorough, individual, and substantive examination of their applications for international protection (Weinzierl and Lisson 2007: 5). Therefore, these persons must have access to legal remedies. Article 7 ICCPR, article 8 UDHR and Article 13 ECHR, provide for an effective legal remedy (UN General Assembly 1966: 175; UN General Assembly 1948; European Court of Human Rights and Council of Europe 2010: 12). The right to life is recognized in article 6 (1) ICCPR, article 3 UDHR, article 2 ECHR and article 2(1) CFR (UN General Assembly 1966: 174; UN General Assembly 1948; European Court of Human Rights and Council of Europe 2010: 6; European Parliament, European Commission and the European Council 2000: 396). The right to life means that

32 unreasonable use of force should not be used to prevent the entry of irregular migrants (Cogolati et al 2015: 23). The right of any person to leave any country, including his own, is recognized in article 12(2) ICCPR , article 13(2) UNDR and article 2(2) of protocol 4 ECHR (UN General Assembly 1966: 176; UN General Assembly 1948; European Court of Human Rights and Council of Europe 2010: 34). Migrants thus have the freedom to leave their country without a valid reason. The right to seek asylum is recognized in article 18 CFR and article 14(1) UDHR (European Parliament, European Commission and the European Council 2000: 399; UN General Assembly 1948). Furthermore, article 3 of the Asylum Procedures Directive obligates Member States to accept ‘applications for asylum made in the territory, including at the border or in the transit zones of the Member States’ (Weinzierl and Lisson 2007: 14). Member States therefore cannot refuse asylum claims. The prohibition of collective expulsion is proclaimed by article 19(1) CFR, article 4 of protocol 4 ECHR and article 16(2) CAT (European Parliament, European Commission and the European Council 2000: 399; European Court of Human Rights and Council of Europe 2010: 34; UN General Assembly 1984: 5). Moreover, in the Hirsi Jamaa and others v. Italy case, the European Court of Human Rights decided that acts, such as the interception and disembarkation of boat migrants, in a Third Country without any examination of each individual situation, can amount to collective expulsion (Cogolati 2015: 23-24).

Duty to rescue Next to being entitled to fundamental human rights law, migrants are entitled to be rescued. Cogolati et al. argue that the right to life translates into the duty to render assistance to persons in distress at sea (Cogolati et al. 2015: 23). Scheinin et al. state that the international law of the sea makes clear that there is an obligation to captains and vessels to render assistance to those in distress at sea without regard to their nationality, status or the circumstances in which they are found (Scheinin et al. 2012: 2). According to the 1979 International Convention on Maritime Search and Rescue (SAR) Chapter 1 (1.3.2) rescue is defined as an operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety (International Maritime Organization 1979). Asylum seekers who have yet not been determined as such should therefore also be rendered assistance. This becomes clear in the following passage retrieved from a UN General Assembly note: ‘The duty not to refoule is also recognized as applying to refugees

33 irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any measure attributable to a State which could have the effect of returning an asylum-seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx.´ (UN General Assembly 2001: 6). Refusal to provide such assistance is a criminal offence under the penal codes of the Member States bordering the Mediterranean (Cogolati et al. 2015: 20). The customary obligation to rescue is codified, inter alia, in article 11 of the 1910 International Assistance and Salvage at Sea Convention, article 12(1) of the 1958 Convention on the High Seas, in Chapter V, regulation 10 A of the 1974 International Convention for the Safety of Life At Sea (SOLAS) and in article 98(1) of the 1982 UN Convention on the Law of the Sea (UNCLOS) (Scheinin et al. 2012: 2). The latter article for example promulgates: ‘Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers; (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.’ (UN General Assembly 1982: 435-436). Clause 2 proclaims that states must maintain search and rescue service: ‘Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.’ (idem: 436). The duty to render assistance is also encapsulated by SAR in Chapter 2 (2.1.10): ‘Parties shall ensure that assistance be provided to any person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found’ and in Chapter 3 (3.1.9): ‘Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships´ intended voyage, provided that releasing the master of the ship from these obligations does not further endanger the safety of life at sea. The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination

34 and cooperation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization. In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable.’ (International Maritime Organization 1979).

35 Chapter 7 Ambiguities regarding Frontex’ fundamental rights protection

Léonard remarks that it is generally believed that asylum and migration have been securitized in the EU and that this evolution has had a negative impact on the status of asylum-seekers and migrants, including the protection of their human rights (Léonard 2010: 232). Baldaccini argues that special concerns for human rights protection in connection with Frontex-led sea operations arise from the fact that it is not clear how the guarantees and protections under the EU legal framework can be applied to joint border operations, or how compliance with international obligations with regard to the conduct of these operations and the handling of migrants who are intercepted and rescued at sea can be monitored (Baldaccini 2010: 229- 230). As a result, Frontex has received a notable amount of criticism. Its activities have generated much controversy and have been heavily criticized especially by human rights activists and pro-migrant groups. Several blogs and websites that are critical of the actions of Member States and the EU towards migrants and asylum-seekers specifically focus on Frontex, such the blog entitled Frontexwatch and the website of the Noborder network (Léonard 2010: 232). The German social movement foundation Bewegungsstiftung claims that Frontex is a murderer of refugees and migrants, a hunter of boatpeople and undocumented, and an agency of charter-deportations (Horsti 2012: 301). A variety of pro- migrant associations called to shut Frontex down, inter alia, Frontexit. Moreover, the German NGO Pro Asyl handed in a petition to the European Parliament in December 2008 that demanded notably the following: ‘Stop the death trap at the EU borders! Frontex activities which violate human rights must cease!’ (ibid). Next to NGOs, the European Council on Refugees and Exiles (ECRE) and the UN, and the UN Special Rapporteur on the Human Rights of Migrants (UN Special Rapporteur) have expressed their concerns. The ECRE and the British Refugee Council stated that Frontex fails to demonstrate adequate consideration of international and European asylum and human rights law including the 1951 Convention relating to the Status of Refugees and European Community (EC law) in respect of access to asylum and the prohibition of refoulement (ECRE and British Refugee Council 2007: 2). The UN Special Rapporteur has criticized Operation Triton because of its ‘limited mandate for effective search and rescue operations, incoherence in search and rescue zone management, tensions between unilateral and regional interventions, disincentives for private and military vessels to provide assistance to migrants, limited resource commitments from Member States and difficulties in establishing disembarkation protocols’ (Cogolati et al 2015: 19).

36 Next to the ECRE and the British Refugee Council, and the UN Special Rapporteur, Human Rights Watch criticized Frontex. The thrust of the 2011 Human Rights Watch report is that Frontex should be held accountable for placing the migrants in conditions that are inhumane and degrading in contradiction to obligations under the EU Charter (Brooks 2012: 9). Also a large group of legal scholars who gathered at the 11th Annual Meeting of the European Society of International Law in Oslo on 12 September 2015 expressed their concern and urged the EU and its Member States to treat all refugees, asylum-seekers and migrants with dignity and respect, respecting and protecting their human rights, irrespective of status (Cali et al. in Cogalati et al. 2015: 21). Moreover, in light of the tragic events in the Mediterranean, the UN High Commissioner for Refugees has compared Europe with the Wild West where a human life no longer has value (UN High Commissioner for Refugees in Weinzierl and Lisson 2007: 10). Consequently, Aas and Gundhus pose the question: ‘How can and does a humanitarian self- perception by European Member States and EU agencies co-exist with policies which directly and indirectly contribute to the precariousness of life? (Aas and Gundhus 2015: 1). As Frontex’ unclear legal framework has been clarified in chapter 4, I will now turn to the Agency’s ambiguities regarding the protection of migrants that critics of Frontex have pointed out.

Jeandesboz argues that Frontex is a Community body which should not only respect the EU fundamental values in its activities, but also work for their promotion, particularly in a field that touches upon crucial questions related to migration and freedom of movement (Jeandesboz 2008: 1-2). Evelien Brouwer, expert at Migration law, points out that safeguarding human rights and the rule of law is considered a prerequisite for the legitimacy of the EU and the loyalty of its Member States towards this legal framework (Brouwer 2010: 211). Accordingly, the respect for fundamental rights is captured in Frontex’s Founding Regulation. Recital 22 of this Regulation promulgates: ‘This Regulation respects the fundamental rights and observes the principles recognised by Article 6(2) of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union.’ (Council of the European Union 2004: 2). Moreover, the Stockholm Programme of 2009 stressed that it is of paramount importance that law enforcement measures, on the one hand, and measures to safeguard individual rights, the rule of law and international protection rules, on the other, go hand in hand in the same direction and are mutually reinforced (Council of European Union 2009: 3). However, various critics and reports have suggested that Frontex

37 may have been involved in human rights violations. The Green group in the European Parliament under Keller et al. questioned if Frontex can be held accountable to have violated the right of asylum, the right of non-refoulement, the right to leave any country and the prohibition of inhuman and degrading treatment. I will elaborate on these ambiguities. Moreover, I will exemplify how different critics question if Frontex violates the right to life, the prohibition of collective expulsions and the duty to render assistance to those in distress at sea.

Ambiguities regarding the right to seek asylum Keller et al. state that the Agency’s annual reports focus deliberately on statistical results in terms of detection, apprehension and “refusal of entry of illegal immigrants” at the borders of the EU (Keller at al. 2011: 11). This becomes clear in the following statement retrieved from Frontex’ Annual Risk Analysis of 2015: ‘In 2014, detections of illegal border-crossings reached a new record, with more than 280.000 detections.’ (Frontex 2015a: 5). Stopping migrants from entering the EU can be perceived as a deterrence measure. The more migrants are stopped from entering the EU, the more successful an operation is. This is enhanced by the following statement retrieved from Frontex’ General Report of 2009: ‘Thanks to the permanent implementation of the joint operation Hera 2009 and to better co-operation of the involved African countries, there was a notable reduction in the number of migrants arrived to Canary Islands (rounded 2,280 /9,200). Optimized aerial and maritime surveillance close to the territory of Senegal and Mauritania, connected with Police co-operation and information campaigns, led into a drastic decrease of migrants.’ (Frontex 2009a: 43). The aim to detect and deter migrants also becomes clear in the operation goal of Hera II (2006): ‘the main aim of this joint effort was to detect vessels setting off towards the Canary Islands and to divert them back to their point of departure thus reducing the number of lives lost at sea. During the course of the operation more than 3500 migrants were stopped from this dangerous endeavour close to African coast’ (Frontex 2006a). Simultaneously, Frontex aimed at saving lives by deterring migrants. Moreover, the European Parliament's Subcommittee on Human Rights under Cogolati et al. states that according to authorities carrying out push-back operations, these operations have been ‘particularly effective in tackling irregular migration by sea’, leading to ‘a sharp decline in the number of undocumented individuals reaching European shores’ (Cogolati et al 2015: 33). In this regard, it seems as if these authorities are providing a service to migrants, since migrants would not suffer in small unstable boats on the rough sea, while they deprive migrants from the right to apply for asylum. By focusing on statistical

38 results of how many migrants are being stopped from entering the EU, Frontex does not consider the motives and circumstances of migrants to leave. While these people on the move might have a valid claim to seek asylum, by deterring them they are deprived of their right to apply for protection in a country elsewhere. Next to that, the signing of agreements with Third Countries can also be approached in the light of a deprivation to apply for asylum. When Third Countries agree to keep migrants in their country of origin when Frontex provides the financial and material means in order to achieve this, migrants are deterred and do not have the possibility to apply for asylum elsewhere.

Ambiguities regarding the principle of non-refoulement Joint operations of Member States under the auspices of Frontex could lead to ambiguities regarding the principle of non-refoulement. Papastavridis states in relation to the joint operations coordinated by Frontex that the application of the principle of non-refoulement appears to be especially problematic in the majority of these operations since it is very likely that the persons onboard the intercepted vessels would be forced to return to their countries of origin, where they may be subjected to torture or inhuman or degrading treatment (Papstavridis 2010: 75). All the persons that are intercepted, returned or otherwise prevented to reach the EU’s territory as a result of the operations coordinated by Frontex are treated as if they were all illegal immigrants. No provision is made for the potential asylum-seekers amongst them (Léonard 2010: 240). Operation Nautilus IV is the clearest example of a non- ambiguous interdiction and push-back operation which led to the violation of the principle of non-refoulement according to Human Rights Watch. This NGO stated in its 2009 report ‘Pushed back, pushed around’: ‘On June 18, 2009, for the first time in its history, a Frontex operation resulted in the interdiction and push back of migrants in the central Mediterranean Sea to Libya. A German Puma helicopter operating as part of Operation Nautilus IV coordinated Italian coast guard interception of a boat carrying about 75 migrants 29 miles south of Lampedusa. The Italian Coast Guard reportedly handed the migrants over to a Libyan patrol boat, which took them to Tripoli where they were reported to have been handed over to a Libyan military unit.’ (Human Rights Watch 2009: 37). Furthermore, the former Frontex Vice-Director, Gil Arias-Fernandez, commented favourably on this operation: ‘Based on our statistics, we are able to say that the agreements [between Libya and Italy] have had a positive impact. On the humanitarian level, fewer lives have been put at risk, due to fewer departures.’ (ibid). It seems that Arias-Ferdandez did not consider the circumstances in Libya and had not

39 realized that sending back migrants would leave them endangered of their lives and freedom. The signing of agreements with Third Countries can lead to ambiguities regarding the violation of non-refoulement as Third Countries might not uphold fundamental human rights as the EU does. It is necessary to reiterate that EU fundamental human rights are applicable in EU activities beyond EU borders as outlined in chapter 5. Furthermore, it is highly important to note that Laitinen stated that Frontex is purely a “technical actor”, not subject, that is, to obligations under international law which fall upon the Member States participating in Frontex coordinated joint operations (Laitinen in Baldaccini 2010: 243). The responsibility of Frontex in joint operations in this sense can not be placed under the scrutiny of international law according to Laitinen.

Ambiguities regarding the right to leave any country Ambiguities exist regarding the right to leave any country. Frontex’ General Report of 2006 stated: ‘Through the information collected during the interviews (in Operation Hera I), it was possible to detain several facilitators mainly in Senegal and to avoid the departure of more than one thousand people.’ (Frontex 2006b: 12). Avoiding people to leave might be perceived a violation of the right to leave any country, including one’s own. These Senegalese were not granted the opportunity to leave their country.

Ambiguities the right to life Frontex signing agreements with Third Counties can lead to ambiguities regarding the right to life. Rijpma argues that increased controls and cooperation with Third Countries have led to the diversion of migratory routes, the so-called ‘waterbed effect’, often resulting in longer and more perilous journeys (Rijpma 2010). These perilous journeys endanger the life of migrants. As a result, agreements with Third Countries could endanger the right to life. Cogolati et al. extend this connection to European migration policies. They state that in the absence of regular and safer migration opportunities to seek asylum in the EU, the increasing use by migrants of precarious routes such as through the Central Mediterranean Sea results in large- scale violations of the right to life (Cogolati et al 2015: 29-30). These European migration policies make it harder for migrants to enter Europe legally. As a result they have to find illegal ways, such as the perilous journeys on sea, to come to Europe. This leads to a large number of migrants dying at sea. This argument is reinforced by Spijkerboer who argues that these deaths should therefore be seen as the responsibility of Member States because they implemented these strict border policies which make a safe and legal entry to the EU

40 impossible (Spijkerboer 2013: 226-227). Furthermore, these strict border policies can also be approached as an ambiguity regarding the right to leave a country as they hinder migrants from leaving their country. Moreover, Frontex does not systematically collect information about migrant mortality and deaths at the border (Aas and Gundhus 2015: 10). It is not in the interest of Frontex to collect data on the amount of migrants dying at sea, instead the Agency collects data in terms of detection, as already mentioned. Aas and Gundhus argue that the act of collecting numbers is an expression of a political will to acknowledge and to know a phenomenon (idem: 12). Andreas and Greenhill point out: ‘In practical political terms, if something is not measured it does not exist, if it is not counted it does not count. If there are no “data”, an issue or problem will not be recognized, defined, prioritized, put on the agenda, and debated. Therefore, to measure something – or at least claim to do so – is to announce its existence and signal its importance and policy relevance.’ (Andreas and Greenhill in Aas and Gundhus: ibid). The denial and the ‘invisibility’ of dead bodies leads to ambiguities concerning the right to life. Furthermore, ambiguities exist regarding the right to life by the excessive use of force. The Commissioner for Human Rights of the Council of Europe remarked that migrants are at risk during their journey of losing their lives or facing serious injury as a result of excessive use of force by law enforcement officials charged with border control (Commissioner for Human Rights of the Council of Europe 2007: 3). Next to that, the objective of Operation Sophia’s third phase leads to ambiguities regarding the right to life. Although aimed to stop smugglers, the operational goal stated to ‘take all necessary measures against a vessel and related assets, including through disposing of them or rendering them inoperable’ (Cogolati et al. 2015: 46). Making vessels inoperable, would make the vessel sink, which would result in drowning migrants.

Ambiguities regarding the prohibition of inhuman or degrading treatment Keller et al. remark that expelled persons regularly report violence in the form of humiliation, insults, aggression, blows and even beatings during attempts to remove them (Keller et al. 2011: 15). Moreover, they note that their legs may be bound and their wrists handcuffed, their mouths are sometimes covered to prevent them from speaking or crying out, and in some instances disabling sprays are used to prevent them from shouting (ibid). This leads to ambiguities concerning inhuman treatment on the hand of Frontex. Violence accounts for inhuman and degrading treatment and the use of it should therefore be prohibited by Frontex. However, Keller et al. note that charter flights as part of joint expulsions, aimed at returning

41 people to their countries of origin against their will, are often accompanied by violence. It is therefore necessary to mention that between 2006 and 2009, Frontex considerably accelerated the rate of joint expulsions, from 1 to 28 charter flights (idem: 14). The use of violence had thus also augmented. I will provide the following passage retrieved from a report from expelled foreign nationals who stayed in contact with friends in Europe, which speaks of ill- treatment suffered during joint flights coordinated by Frontex to point out the ambiguities of ill-treatment: ‘Joint-flight expulsion on 3 February 2010, from the United Kingdom to Nigeria. The account is provided by PBBB (man). He was transferred by bus, along with other individuals, from the Tinsley House detention centre to the airport. He was on the bus from 11 a.m. to 6 p.m., was unable to leave the vehicle and was not allowed to stand up − each detainee being escorted by two security guards − until they boarded the plane. According to PBBB, “children were crying (…) as they saw how their parents were being treated. Minors separated from their parents had sadness written all over their faces”. During a stopover in Dublin, more deportees were brought on board, handcuffed and complaining that they had been beaten. The plane then stopped in Madrid, where security staff noticed that PBBB, who has serious circulation problems, was experiencing pain in his legs due to prolonged immobility. The medical team was summoned and said that he was not in a fit state to be on a deportation flight. The security staff then allowed PBBB to walk around. “It was in Spain that things were most horrendous (…) a lot of people were mistreated, (…) the detainees were insulted, the police verbally assaulted them and beat them”. When PBBB asked the Spanish police officers the reason for this ill-treatment, they began to hit him until the British police officers told them to stop because of his condition.’ (Millebabords in Keller et al. 2011: 16). The charter flight of PBBB provides insight into the degrading and inhumane treatment by Member State officers who work for Frontex. Next to that, denying people access to water is an example of inhumane ill- treatment. In a report broadcast in October 2009 by the German TV channel ARD, witnesses accused Frontex of having denied refugees access to drinking water during a maritime interception operation (idem: 18).

Ambiguities regarding the prohibition of collective expulsion Scheinin et al. argue that measures to push back migrants on the high seas carried out without any form of examination of each individual situation can amount to collective expulsion (Scheinin et al. 2012: 4). According to NGO Migreurop, Frontex carried out collective expulsions of the Roma community in cooperation with Germany. In order to deport ‘irregular’ migrants, a group flight of Roma deportees left Düsseldorf and headed for

42 Belgrade on the 17th of April 2012, Migreurop argues (Migreurop 2012). Deporting a community as a whole without examining each individual situation demonstrates ambiguities that exist regarding the prohibition of collective expulsion. This argument is reinforced by the conclusion of the Hirsi Jamaa and others v. Italy case in which the European Court of Human Rights held that acts carried out outside of the national territory, such as the interception and disembarkation of boat migrants in a Third Country without any examination of each individual situation, can amount to collective expulsion (Cogolati et al. 2015: 23-24).

Ambiguities regarding the duty to render assistance Several above mentioned ambiguities automatically translate into the ambiguity regarding the duty to render assistance. For example, when the right to life is violated at sea this automatically means that when assistance could have been provided, has not been provided. Moreover, during push-back operations the vulnerability of those on dilapidated vessels is neglected.

Frontex stated not to be responsible for these mentioned ambiguities and argued: ‘Since Frontex’ task is only to coordinate the cooperation of the EU Member States and Schengen Associated Countries, activities that can affect on a person’s rights can only be performed by the competent authorities from the Member States hosting or participating in the operation. Frontex’ staff members do not have executive powers in the fields of border control; all such powers are only in the hands of the Member States authorities. Hence, any person claiming that his/her fundamental rights were violated by an action from that authority may use both national and EU mechanisms to file a complaint.’ (Frontex 2012b: 2).

Next to the criticism that Frontex has received regarding its fundamental rights protection, I would like to demonstrate with interviews that I have carried out that the European Commission and Frontex have a different view of the Agency and its relationship with fundamental rights. Mr. Wojtek Kalociński of the European Commission made clear that Frontex operates within the scope of its mandate in full compliance with fundamental rights. Moreover, he referred to several measures that Frontex has implemented in order to keep up with full compliance of fundamental rights. He argued that not only border surveillance but all Frontex activities are in compliance with fundamental rights. Moreover, he stated that search and rescue is not a EU competence. Search and rescue is an international obligation. Nevertheless,

43 he stated that the tripled budget of 2015 served indeed to deliver on search and rescue capabilities as the operational coverage area of Frontex is extended. However, one should keep in mind that Frontex is a border control agency that focuses on border surveillance. Moreover, Mr. Kalociński reassured that Frontex’ Executive Director Leggeri does not say anything controversial, he is referring to the legal framework in place. Frontex is assisting in border control, but Member States are in charge. Primary border control lies with Member States as they are obliged to control their borders. Frontex’ spokesperson Isabella Cooper argued that no ambiguities exist regarding the relationship of Frontex with fundamental rights. She argued that Frontex is bound by fundamental rights, just like any other European institution. Mrs. Cooper also pointed out the measures that Frontex has implemented in order to help the Agency perform better in the compliance with fundamental rights. She argued that search and rescue is an absolute duty to whoever is on sea and encounters people in distress. Therefore, Frontex has the same obligation. Moreover, she argued that the priority of Frontex is to save lives. She stated: ‘Saving lives is a priority, if you have people in distress you don’t ask they who they are, you rescue them. There is no question that lives should be saved. No question that this is our priority.’ As I asked Mrs. Cooper to comment on criticism of ambiguities regarding fundamental rights obligations, she replied: ‘Every operational plan states search and rescue as the priority. Full stop. There is an international law, you know, you don’t state every provision of the international law that applies. It applies. Full stop. There is an obligation to save lives at sea and there is an explicit mention in our operational plan. There is no question that we are taking this very seriously.’. Moreover, regarding the relationship with UNHCR, Mrs. Cooper stated: ‘Frontex has no good relationship with UNHCR, no, we have an excellent relationship with UNHCR. You are welcome to get in touch with my colleague in UNHCR for that matter.’. The interview demonstrated that asking about the relationship of Frontex with fundamental rights was clearly a sensitive topic. What caught my eye was that the European Commission noted that saving lives is not Frontex’ priority. Frontex, on the other hand, stated this as its priority. Moreover, it seems arbitrary that the Commission stated that Frontex should deliver on search and rescue capabilities while focusing on border surveillance.

In the next chapter, I will provide what kind of changes and clear references to fundamental rights Frontex has adopted after severe critiques and urges by EU institutions expressed in resolutions.

44 Chapter 8 Resolutions to commit Frontex to fundamental rights

EU institutions have adopted several resolutions in order to make Frontex commit to fundamental rights. According to Borelli and Stanford legislative measures are finally being taken by the EU in order to address fundamental rights concerns through these resolutions adoptions specifically dealing with immigration control operations at sea coordinated by Frontex (Borelli and Stanford 2014: 60). As a result, the Agency adopted a Fundamental Rights Strategy, a Code of Conduct, a Fundamental Action Plan, started a Consultative Forum for fundamental rights, and made the position of Fundamental Rights Officer available. Moreover, the Agency has concluded a cooperation agreement with FRA and a working arrangement with UNHCR. First, I will outline the resolutions adopted by EU institutions to highlight their concern for fundamental rights commitment by Frontex and their urges to make Frontex commit to these rights. Following, I will provide insight in how Frontex has implemented this commitment.

In a resolution adopted in December 2008, the European Parliament called for the mandate of FRONTEX to explicitly include an obligation to meet international human rights standards and a duty towards asylum seekers in rescue operations on the high seas in recital 18 (European Parliament 2008). Resolution 1821 of 2011, ‘The interception and rescue at sea of asylum seekers, refugees and irregular migrants´, of the Parliamentary Assembly of the Council of Europe highlights the ever-increasing role of Frontex in immigrant interception at sea with a concomitant lack of respect for human rights and obligations (Brooks 2012: 1). Recital 3 promulgated: ‘the Parliamentary Assembly once again expresses its deep concern over the measures taken to deal with the arrival by sea of these mixed migratory flows. Many people in distress at sea have been rescued and many attempting to reach Europe have been pushed back, but the list of fatal incidents – as predictable as they are tragic – is a long one and it is currently getting longer on an almost daily basis’ (Parliamentary Assembly of the Council of Europe 2011). Furthermore, the Parliamentary Assembly noted that the absolute priority in the event of interception at sea is the swift disembarkation of those rescued to a place of safety (ibid). Moreover, the Parliamentary Assembly of the Council of Europe, demonstrated its concern for human rights responsibilities of Frontex in Resolution 1932 of 2013. Recital 6 promulgated: ‘There is still a dangerous mindset which views Frontex’ activities as being no

45 more than those of Member States, with responsibilities lying with individual Member States and not with the Agency. While progress has been made in accepting that this is not always the case, the recourse to this argument is still too frequently made when looking at issues involving human rights responsibilities.’ (Parliamentary Assembly of the Council of Europe 2013). The Parliamentary Assembly thus reasserted that Frontex should not be involved in the act of blame shifting and should take responsibility for its actions. Furthermore, the Parliamentary Assembly affirmed that Frontex should be kept an eye on by the European Parliament. Recital 11 promulgated: ‘Finally, the Assembly invites the European Parliament to use its democratic control and supervisory function to oversee Frontex and its activities that have human rights implications.’ (ibid). Furthermore, the European Commission emphasized in ‘Communication from the Commission to the European Parliament and the Council on the work of the Task Force Mediterranean’ that the role of Frontex in coordinating operational cooperation between Member States in the Mediterranean is key to ensuring effective border control in the region, whilst contributing to ensuring protection of those in need and saving the lives of migrants (European Commission 2013: 16). On 30 April 2014, The European Parliament and the Council of the EU adopted the 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’. Recital 1 reaffirmed the obligation of Frontex to protect and save lives: ‘The objective of Union policy in the field of the Union external borders is to ensure the efficient monitoring of the crossing of external borders including through border surveillance, while contributing to ensuring the protection and saving of lives.’ (European Parliament and Council of the European Union 2014: 1). Furthermore, the obligation to carry out border surveillance with respect for fundamental rights for Member States as well as for Frontex is reasserted in recital 8 and 9 (idem: 5-6). Recital 15 affirmed the duty to render assistance and bring these persons in distress to a place of safety (idem: 9). According to this resolution, a place of safety refers to a location where rescue operations are considered to terminate and where the survivors' safety of life is not threatened, where their basic human needs can be met and from which transportation arrangements can be made for the survivors' next destination or final destination, taking into account the protection of their fundamental rights in compliance with the principle of non-refoulement (idem: 18).

46 On 29 April 2015, the European Parliament adopted a resolution on the then latest tragedies in the Mediterranean and EU migration and asylum policies in which it urged the EU and the Member States to do everything possible to prevent further loss of life at sea (European Parliament 2015). Recital 2 called for the EU and the Member States to provide the necessary resources to ensure that search and rescue obligations are effectively fulfilled (ibid). This recital emphasized that amongst Member States and other EU agencies, Frontex should carry out search and rescue operations. This is further enhanced by recital 5 which called for a robust and permanent humanitarian European rescue operation (ibid).

As a result of these Resolutions and critiques, Frontex has signed cooperation agreements with UNHCR and the European Union Fundamental Rights Agency (FRA) and has implemented several measures. I will explain the purpose of the agreements and will clarify which measures and for what purpose they have been adopted. In 2008, Frontex signed a working arrangement with UNHCR in order to strengthen their partnership. UNHCR stated that the working arrangement between Frontex and UNHCR aims to contribute to the establishment of a protection-sensitive EU integrated border management system, by providing for regular consultations, exchange of information, expertise and experience, and inputs into border officials’ training, particularly on international human rights and refugee law (UNHCR 2010b: 3). Moreover, a UNHCR liaison officer has been assigned to Frontex in Warsaw, who will be working closely with Frontex with the aim of ensuring that border management is fully compliant with Member States' international obligations (Pagonis 2008). On 26 May 2010, Frontex concluded an cooperation agreement with FRA. This agreement was arranged to establish a cooperation framework between the FRA and Frontex with the overall objective of strengthening the respect of fundamental rights in the field of border management and in particular in Frontex activities (FRA and Frontex 2010: 3). Frontex endorsed a Fundamental Rights Strategy on 31 March 2011. The preamble promulgated: ‘Frontex considers that respect and promotion of fundamental rights are unconditional and integral components of effective integrated border management. Frontex is fully committed to develop and promote a shared understanding of fundamental rights among the entire EU border-guard community and integrate this also into the cooperation with Third Countries.’ (Frontex 2011a: 1). Furthermore, recital 1 promulgated that the respect for fundamental rights is an essential part of integrated border management and emphasized that Frontex must respect and promote these rights in its activities. Besides, an important mention

47 has been made that Frontex is fully accountable for all its actions and decisions under its mandate, as proclaimed by recital 13 (idem: 4). In this sense, Frontex cannot shift responsibility as coordinator of border control management. To ensure a comprehensive and structured implementation of the Fundamental Rights Strategy, a Fundamental Rights Actions plan was developed and adopted by Frontex’ Management Board on 29 September 2011 as a tool for the implementation of the Strategy (Frontex 2012b: 1). Next to the Fundamental Rights Strategy, Frontex established a Code of Conduct in 2011. The Code consists of provisions on the respect and the promotion of fundamental rights and international protection issues of Frontex’ activities. The Code is applicable to all persons participating in the Agency’s activities: ‘Every person operating in Frontex’ activities must promote and respect human dignity and fundamental rights of every individual and promote compliance with fundamental rights and international protection obligations’, as set out by article 4 and 5 (Frontex 2011b: 7-8). In 2012, Frontex appointed a Fundamental Rights Officer and set up a Consultative Forum on Fundamental Rights to monitor compliance with the Fundamental Rights Strategy. The forum serves as an independent body which advises the Agency’s Management Board as well as its Executive Director in all fundamental rights matters. It offers strategic advice on how Frontex can structurally improve respect for fundamental rights in its various activities (Frontex 2016b). Moreover, the European Asylum Support Office, FRA and UNHCR have become permanent members of the Forum (Frontex 2015b: 2).

By implementing these measures, Frontex has demonstrated to make a severe effort to commit to fundamental rights. On the one side, Frontex aims to bring persons in distress to a place of safety. On the other hand, Frontex aims to control borders and keep migrants out of the EU. Frontex cannot live up to both desires as they are incompatible. Therefore, critics of Frontex argue that the Agency’s priority to control borders does not benefit fundamental rights. In this regard, increasing the Agency’s budget would not benefit fundamental rights protection but border surveillance. In the next chapter, I will clarify for what reasons Frontex’ budget has been increased last year and exemplify what purposes the budget in reality serves.

48 Chapter 9 Budget of Frontex

In this chapter I will look at Frontex’ budget. I will provide insight in how the Agency’s financial resources have been increased over time since its existence. Furthermore, I will extensively look into the budget increase that Frontex has received last year for 2016 and what goal this increase is supposed serve and what goal it in reality serves.

Frontex has almost consistently received a notable budgetary increase since its existence. This will become clear in the following table (Frontex 2005; Frontex 2006c; Frontex 2007b; Frontex 2008b; Frontex 2009b; Frontex 2010; Frontex 2011c; Frontex 2012c; Frontex 2013; Frontex 2014c; Frontex 2015d; Frontex 2015e).

2005 2006 2007 2008 2009 2010

Budget in € 6.280.202 19.166.300 41.980.000 70.432.000 83.250.000 92.846.928

2011 2012 2013 2014 2015 2016

Budget in € 86.384.000 84.960.000 93.950.000 97.945.077 143.300.000 254.035.000

The Agency’s budget of 2016 is 40 times higher than its starting budget. Moreover, comparing the 2014 to the 2016 budget, the budget has augmented with 250 percent. Comparing the 2015 to the 2016 budget, which has been increased twice –first to 176 million and ultimately to 254 million, the budget has augmented with 170 percent.

The budgetary increase that Frontex received last year was provided in order to prevent further loss of life at sea. This was decided after, according IOM, the worst tragedy on record, involving migrants crossing the Mediterranean from North Africa, in which an estimated 800 migrants died when their overcrowded vessel capsized off the coast of Libya (IOM 2015). Boosting Frontex is a key element in the EU's response to the flood of refugees from the Middle East and Asia which have grown into Europe's worst migration crisis since World War Two (Strupczewski and Baczynska 2015). The European Council held a special meeting on the 23rd of April and concluded that further loss of life at sea needs to prevented. They stated: ‘The situation in the Mediterranean is a tragedy. The European Union will mobilise all efforts at its disposal to prevent further

49 loss of life at sea and to tackle the root causes of the human emergency that we face, in cooperation with the countries of origin and transit. Our immediate priority is to prevent more people from dying at sea.’ (European Council 2015). The European Council decided to further strengthen its presence at sea and rapidly reinforce (by Frontex coordinated) EU Operations Triton and Poseidon by at least tripling the financial resources for this purpose in 2015 and 2016 and reinforcing the number of assets, thus allowing to increase the search and rescue possibilities within the mandate of Frontex (ibid). A Resolution adopted by European Parliament followed a few days later, on the on the 29th of April. In this resolution the European Parliament urged the EU and the Member States to do everything possible to prevent further loss of life at sea (European Parliament 2015). Recital 2 called for the EU and the Member States to provide the necessary resources to ensure that search and rescue obligations are effectively fulfilled (ibid). The ensuring of search and rescue obligations is further enhanced by recital 5 which called for a robust and permanent humanitarian European rescue operation (ibid). But most importantly, recital 4 stressed the need to reinforce Operation Triton. The recital promulgated: ‘Welcomes the European Council’s commitment to reinforcing the EU Triton operation by increasing funding and assets; urges the EU to establish a clear mandate for Triton so as to expand its area of operation and increase its mandate for search and rescue operations at EU level’ (ibid). As such, the European Parliament had thus welcomed the willingness of the European Council to give a new dimension to Operation Triton, by increasing its funding and its means (European Parliament 2015b). This new dimension would consist of an increase in its area of operation and an extension in its mandate for search and rescue operations (ibid). On the 13th of May, in the Draft amending budget no 5 to the general budget 2015, the European Commission granted Frontex 26.8 million in order to fulfil the tripling of the budget (European Commission 2015c: 4). Moreover, the European Commission decided to reinforce Triton and Poseidon by intensifying aerial and maritime surveillance in an enlarged geographical area to match the scope of Mare Nostrum, in line with the European Council Conclusions (ibid). The Commission stated that Frontex will deploy an increased number of vessels and aircrafts, building on Member States assets, and update the situational picture of the operational areas in order to increase the search and rescue possibilities (ibid). As a result, in this Draft amending budget the European Commission had realized Frontex’ new dimension which was ultimately realized on the 19th of June when the amended budget was approved by the Council of the European Union (Council of the European Union 2015).

50 The above mentioned arguments demonstrate that EU institutions have put saving lives high on the agenda. Even more, it has been stated as the EU’s priority. In order to accomplish this, a tripled budget has been made available for Operations Triton and Poseidon to increase search and rescue efforts. The following arguments will demonstrate that search and rescue have not been stated as a priority to Frontex. To begin with, I would like to mention that when Operation Triton was launched, Arias-Fernandez stated: ‘I would like to underline that operation Triton focuses on border control and surveillance.’ (Frontex 2014b). The mission of Frontex in its Work Programme of 2016-2019 is stated as the following: Frontex supports the Member States to achieve an efficient, high and uniform level of border control in accordance with the relevant EU Acquis in particular the Schengen Border Code. Frontex coordinates operational and EU measures to jointly respond to exceptional situations at the external borders. Frontex develops capacities at Member States and European level as combined instruments to tackle challenges focusing of migration flows, but also contributing to fight cross border crime and terrorism at the external borders (Frontex 2015c: 8). Frontex’ main aim is thus to deliver efficient border control. Accordingly, the tripling of Frontex’ budget has not transformed the Agency to adopt a search and rescue mission.

The following table explains how the budget for joint operations is spent (idem: 21).

It is possible to perceive that no explicit mention has been made of search and rescue operations. This is neither done in the Agency’s general budget on operational activities:

51 (idem: 48)

Nor has such a mention been made for the budget on operational activities for 2015.

(Frontex 2014: 8)

According to Mrs. Cooper, it is not necessary to make an explicit mention to search and rescue in Frontex’ Work Programmes as it is an international law obligation to provide assistance to persons in distress. However, the operational goals of joint operations, demonstrate to have different priorities than saving lives. The Work Programme of 2015 promulgated: ‘Joint operations and pilot projects at sea borders will be the recipient of the biggest share of Frontex budget allocations. Strengthening the Member States’ operational capacity to cover increased operational areas and implementation periods will enhance the tackling of irregular migration flows on routes identified by risk analysis.’ (ibid). This demonstrates that by increasing Frontex’ operational area, Frontex is able to increase its capabilities to tackle irregular migration. The European Council made references to extend the operational area of the

52 Agency to enhance search and rescue operations in order to prevent more people from dying at sea. These different aims do not comply and cannot be executed at the same time.

Furthermore, when looking at statements of current Executive Director Fabrice Leggeri, it becomes clear that Frontex’ priority lies with deterrence measures to tackle irregular migration. For instance, in January 2016 Leggeri stated that in January migrant arrivals are down significantly over December (2015), but are many times higher than the number who arrived in January 2015 (USnews.com 2016). Moreover, in an interview that Reuters conducted with Leggeri on the 17th of December 2015, Leggeri stated that in all of 2015, Frontex so far recorded more than 1.5 million irregular border crossings into Europe (Strupczewski and Baczynska 2015). Next to that, Leggeri remarked that saving migrants’ lives in the Mediterranean should not be the priority for the maritime patrols he is in charge of (Kingsley and Traynor 2015). He stated: ‘Triton cannot be a search-and-rescue operation. I mean, in our operational plan, we cannot have provisions for proactive search-and-rescue action. This is not in Frontex’s mandate and this is in my understanding not in the mandate of the European Union.’ (ibid). These statements make clear that Frontex’ priority lies with deterrence measures that aim to stop migrants from coming to Europe. Therefore, Frontex’ priority and the priority of the European Council, the European Parliament and the European Commission to prevent more losses of lives at sea do not match. This raises questions if Frontex’ focus on deterrence can rather be analyzed from a security-oriented approach than from a humanitarian approach to migration. It might seem that Frontex’ security agenda is more dominant.

53 Chapter 10 Migrant deaths at sea

In this chapter I will analyze how many migrants died at sea since the migrant crisis in order to find out whether the increased budget of Frontex contributes to less deaths at sea. I will analyze data from IOM, Human Rights Watch and UNHCR.

First of all, there exists a necessity to reiterate that Frontex does not collect data on how many migrants die at sea. This is once more emphasized by The Migrants Files, a consortium of journalists from European countries that won the European Press Prize of 2015. Journalist Manach stated for the Migrant Files: ‘Frontex' reports provide detailed statistics about illegal border-crossing, clandestine entries, facilitators and illegal stay, refusals of entry, applications for asylum, document fraud, return decisions issued (and effective returns), but nothing at all about shipwrecks, missing or dead persons.’ (Manach 2015). As explained in chapter 7, it is not in the interest of the Agency to collect this data. When those deaths would be recognized, the Agency would have to deal with them and put them on its agenda. Instead, Frontex keeps count of how many people illegally cross the European external border. However, it is of utmost importance to document the number of people who have died attempting to cross the Mediterranean. Last and Spijkerboer name various reasons. For one, they state that this information would enable us to appreciate the extent of migrant mortality in the Mediterranean. Furthermore, knowledge of when, where and how migrants die is important to determine the factors contributing to these deaths, so that further incidents may be prevented through changes in policy or practices (Last and Spijkerboer 2015: 85).

Amnesty International stated that the EU and its Member States are imposing a survival test on refugees and migrants. Unable to enter the EU through safe and regular routes, tens of thousands, desperate for asylum and a better life, attempt to cross the central Mediterranean each year (Amnesty International 2014: 2). This will become clear in the following table which provides data retrieved from UNHCR on the 13th of May 2016 (UNHCR 2016a).

54 2010 2011 2012 2013 2014 2015 2016 Migrant 9654 70.402 22.439 59.421 216.054 1.015.078 187.920 arrivals by sea Migrants 20 1500 500 600 3500 3573 1361 missing or assumed dead

The beginning of the Arab Spring clearly marks a tipping point as one can perceive a significant change in migrant arrivals by sea. Moreover, the difference in deaths at sea is huge. As for the situation in 2016, 41 percent of the migrants come from Syria, 22 percent from Afghanistan and 13 percent of them come from Iraq (ibid). Analyzing the current situation in Syria (and Iraq) is beyond the scope of this thesis, but it is save to say that the self-proclaimed Islamic State affects society tremendously and caused several million Syrians to flee their homes. According to UNHCR, 4,8 million Syrians are registered refugees in neighbouring countries and more than 1 million Syrians applied for asylum in Europe (UNHCR 2016b).

With over 3,770 estimated deaths, 2015 has been the deadliest year on record for migrants and refugees crossing the Mediterranean, trying to reach Europe (IOM 2015). This accounts for 10 deaths on average per day. The figure below will provide insight in the reported or assumed deaths per month in 2015.

Reported deaths in the Mediterranean by route, 2015 (IOM 2016) January February March April May June Central 67 337 53 1,230 95 4 Mediterranean Eastern 0 9 8 14 0 6 Mediterranean Western 15 0 0 0 0 0 Mediterranean Total 82 346 61 1,244 95 10

55 July August September October November December Total Central 206 652 76 163 8 1 2,892 Mediterranean Eastern 24 29 190 221 98 207 806 Mediterranean Western 0 5 2 50 0 2 72 Mediterranean Total 230 686 268 434 106 210 3,772

In the weekend of 17 April 2015, a boat carrying over 800 people on board shipwrecked. Carlotta Sami, spokeswoman of UNHCR, confirmed that 800 people were dead and called the shipwreck the deadliest disaster of the Mediterranean to date (Bonomolo and Kirchgaessner 2015). Only 27 people had survived. IOM Director General William Lacy Swing responded to the horrific numbers of 2015 in general. He stated: ‘It is shocking and inexcusable that desperate migrants and refugees have lost their lives in record numbers this year, when they should not. The international community world must act now to stop this trend against desperate migrants.’(IOM 2016).

Different political opinions exist on the topic of immigration in relation to the refugee crisis. Socialist Peter Schwarz took the severity of the April incident to the next level. He stated on the World Socialist Web Site: ‘The deaths of hundreds of refugees in the Mediterranean on Monday is not only a tragedy, it is a crime.’ (Schwarz 2016). Furthermore, Schwarz stated that thousands of deaths by drowning are accepted, if not welcomed, as collateral damage required by the campaign to keep desperate refugees out of Europe (Schwarz 2016). Next to Schwarz’s opinion, several other politicians expressed their sentiments regarding the migrant crisis and its consequences for Europe. I will provide for contrasting opinions that circulate within the European Parliament. I will start with anti-immigrant opinions. German Member of the European Parliament (MEP) Beatrix von Storch argued reportedly that the police should be allowed to use weapons against women and children who enter Germany illegally (Kroet 2016). Von Storch is member of the far right Europe of Freedom and Direct Democracy (EFDD) group in the European Parliament. Italian EFDD MEP Fabio Massimo Castaldo said that the Member States' approach to the refugee crisis was ‘the sign of an internal crisis (…) that gives rise to internal barriers and threatens the stability and solidarity to us all’ (European Parliament

56 2015c). Also the far-right Europe of Nations and Freedom (ENF) group in the European Parliament expresses anti-immigration sentiments. Leader of the Dutch ‘Partij van de Vrijheid’ Geert Wilders, is also member of the ENF group. When the group was formed, he stated: ‘Today it's the beginning of our liberation, our D-Day.’ He added that the new bloc would be the voice of the new "European resistance", defending their countries' sovereignty and would fight mass immigration as well as "Islamisation" (bbc.com 2015). It is clear that anti-immigration MEPs want to focus on keeping as many migrants out of the EU in order to protect the countries’ sovereignty and the stability of Europe. The following statements from pro-immigrant MEPs, on the other hand, focus on a more humanitarian approach to address the refugee crisis. Italian Socialists and Democrats group member Gianni Pittella argued: ‘Walls, egotism, hatred, that's all negative and shows that we cannot manage and resolve problems. Let's move forward, so that we don't endanger the soul or indeed the future of Europe.’ (European Parliament 2015c). Belgian European Free Alliance member Philippe Lamberts stated: ‘The 160,000 refugees the Council has decided to resettle constitute 0.2 % of world refugees. I think the EU can do better.’ (ibid). Deputy Secretary General of the Party of European Socialists (PES) Marije Laffeber, stated that ‘Migration is not a temporary issue. More people then ever before are on the move. The European Union is a community of solidarity and humanity. Therefore we have to work closely together to find common solutions and answers and to implement fair and humane policies. Migration will remain an important part of the European and PES agenda in the years to come.’ (PES 2015). The contrasting opinions of MEPs reflect the political tension on the topic of immigration. This creates a difficult political reality, since there exists no consensus on how to deal with immigrants. In relation to Frontex, this political tension creates an inability for the Agency to be able to live up to both operational expectations of deterring migrants and simultaneously providing them a place of safety.

One thing is clear: the number of deaths at sea needs to be reduced. In order to do that, Swing stated: ‘One of the major challenges for the coming years would be for the international community to work diligently towards changing from the current toxic migration narrative to one that is more historically accurate, namely, that migration has been overwhelmingly positive.’ (IOM 2016). This toxic narrative thus has to change according to Swing. Instead of securitizing migration, and perceiving the phenomenon as a threat, migration should become accepted and even be approached as something that is positive.

57

Although Frontex’ budget has increased, the number of deaths has not decreased. Last year, when Frontex’ budget for Operations Triton and Poseidon was tripled, the most deaths at sea occurred. In 2011, a similar situation took place for the year in which Frontex then had received the most funding. Tineke Strik, Rapporteur for the Parliamentary Assembly of the Council of Europe stated: ‘Precisely in the year the Mediterranean region was subject to the most surveillance, the largest amount of deaths or disappearances were recorded’ (Marin 2011: 476). Therefore, one should ask if it is helpful to increase the budget of an Agency that kept operating with the same priorities on the agenda but with an increased budget for different purposes.

58 Conclusion

As demonstrated in this thesis, there are vivid indications for a political and moral dilemma in the operating of Frontex. The political thinking behind the Agency is ambiguous as political objectives conflict. On the one hand, the EU and its Member States have the objective to provide humanitarian aid to those in distress at sea. Approached from a neo-liberal perspective, Frontex has to aspire to universal values, such as liberty, justice and fundamental rights instead of preceding national interests. On the other hand, the EU and its Member States aim to keep migrants out of the EU. Approached from a neo-realist perspective, migratory flows form a pressure that might diminish the Member States’ sovereignty. In this regard, borders need to be protected as a form of self-help and survival. This focus on deterrence can rather be analyzed from a security-oriented than from a humanitarian approach. There remains uncertainty over the interests that the Agency serves. Because Frontex’ principals of the EU are not able to choose between these objectives, Frontex is not able to choose either. Frontex does not have its own agenda, but is being governed by politics. As a consequence, Frontex’ operations are enigmatic in which an impressionistic-decision making style might come at stake, in order to reconcile contradictions between different goals and interests. Several questions should therefore be posed and put on the EU’s political agenda. One should wonder what it means that Frontex can implement an increased budget for different purposes than what the increase is supposed to serve. As demonstrated, the number of deaths in the Mediterranean do not decrease while the increased budget is supposed to scale up search and rescue operations. Why do EU institutions not call Frontex to account for its budget and instead turn a blind eye to the Agency’s contradicting practices? What does this mean for Frontex’ accountability? In order to provide an answer to my research question, one can state that the objectives of the Agency conflict to such an extent with the obligation to guarantee fundamental right as the priorities and the operational scope of the Agency are not clear. For this reason, ambiguities regarding fundamental rights protection exist. If the mandate of Frontex is ambivalent, the execution of it is too. Increasing the Agency’s budget in order to provide search and rescue efforts is no use if the mandate of the Agency states that Frontex’ priorities lie with border control management. In this regard, I would argue that an increased budget does not benefit fundamental rights.

59 A new mandate for Frontex with clearly demarcated responsibilities might put an end to ambiguities regarding fundamental right protection. On 15 December 2015, a new mandate for the Agency has been proposed and might be adopted this month, in June 2016. The proposal intends to give Frontex more competences, staff and equipment, and to rename it the European Border and Coast Guard (EBCG) (Carrera and den Hertog 2016) The EBCG will have a rapid reserve pool of borders and will be able to draw on at least 1500 experts that can be deployed in under three days (European Commission 2015d). Moreover, the new Agency will be able to acquire equipment itself (ibid). Instead of coordinating, the EBCG will have a supervisory and monitoring role in border management (ibid). Furthermore, the EBCG would have a mandate to work in Third Countries and would have a stronger role in returns (ibid). Next to that, the EBCG would have the right to intervene (ibid). This would mean that the EBCG would have the ability to enter a country without the permission from its government in the case of emergencies (European Council on Foreign Relations 2016). In sum, the EBCG would have more capabilities to reinforce external border management. The implications of this new mandate could be heading into two different directions. Either the EBCG could take concerns regarding fundamental rights ambiguities away. The EBCG would act as an autonomous agency, independent from Member States and would be held accountable for its own actions. A shift of sovereignty would take place and the EBCG would acquire a legal personality. This means that also in case of ambiguities or violations, the EBCG would be addressed as accountable. Member States would have no responsibility for the EBCG’s actions. This might cause the EBCG to pay careful attention to fundamental rights. Or, as the EBCG would be created in order to reinforce external border control management, the new mandate might have a clearer focus on securitization and might focus less on humanitarian issues. The Centre for European Policy Studies expressed its concern that the priority of the EBCG, that focuses on external border controls, return and cooperation with third countries as the ‘solutions’ to the refugee crisis, comes at the expense to address asylum, humanitarian and human rights challenges (Carrera and den Hertog 2016). Also the European Economic and Social Committee argued that the EBCG must be akin to a civilian, not a police force (European Economic and Social Committee 2016). Furthermore, this Committee stated that when Frontex would turn into a European Border and Coast Guard, the new mandate should provide for rescue operations (ibid). More humanitarian disasters will not be prevented if the new mandate will focus on border control management. In this regard,

60 the concern of the EBCG to guarantee fundamental rights might be even less vivid than with Frontex. Unless the mandate for the Agency, either continuing as Frontex, or changed into a European Border and Coast Guard, changes and prioritizes fundamental rights, migrants will keep drowning and the Mediterranean Sea will turn into an even bigger graveyard.

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