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.