Lesson 6 Flashcards
Frontex
Intends to ensure a “uniform and high level of control and surveillance, which is a necessary corollary to the free movement of persons” (established 2004) EU regulation.
Though originally means to facilitate the free movement of persons within the EU, Frontex has increasingly become an instrument for controlling migration and strengthening external borders.
Annual budget 900 million euros by 2027.
10.000 border guards.
It supports EU member states in managing the EU’s external borders
Today:
- Debriefings with migrants, asks about routes, prices etc.
- Facilitate and coordinate operations between member staten in the area of the external boarder.
Matthieu Chillaud. “Frontex as the Institutional Reification of the Link between Security,
Migration and Border Management”. Contemporary European Studies 01:27-43.
Frontex securitization?
Survelliance, drones and sattelites = mass data collection.
Sarah Léonard & Christian Kaunert (2022) The securitisation of migration in the European Union: Frontex and its evolving security practices, Journal of Ethnic and Migration Studies, 48:6,
Securitization Practices
Extraordinaryt measures
Operational Expansion: Large-scale operations like Triton and Poseidon treat migration as a security issue.
Collaboration: Works with NATO and Europol, reinforcing migration as a security matter.
Intelligence Focus: Expands to terrorism and organized crime, beyond basic border control. Use of drones and sattelites
Sarah Léonard & Christian Kaunert (2022) The securitisation of migration in the European Union: Frontex and its evolving security practices, Journal of Ethnic and Migration Studies, 48:6,
Security Continuum and Frontex
Security is seen as a gradual intensification of measures, not just existential threats.
Frontex shifts migration from a “normalcy” issue to a perceived significant threat requiring extraordinary actions.
Sarah Léonard & Christian Kaunert (2022) The securitisation of migration
in the European Union: Frontex and its evolving security practices, Journal of Ethnic and
Migration Studies, 48:6,
Paradox between SAR and interdiction in EU migration policy
SAR (Search and Rescue) saves lives at sea, while interdiction prevents unauthorized entry.
The paradox is that rescued migrants are often barred from entering the country, undermining the humanitarian purpose of SAR with securitized border control measures.
The EU Humanitarian Border and the Securitization of Human
Rights: The ‘Rescue-Through-Interdiction/Rescue-Without-
Protection’ Paradigm*
VIOLETA MORENO-LAX
Queen Mary University of London
How has the EU securitized human rights in the context of Mediterranean migration?
The EU has co-opted human rights to justify restrictive border control measures. This is done by framing border control as a means to uphold human rights as a fundamental EU value, while selectively prioritizing certain rights (like the right to life of migrants at sea, or the right to self-defense of border guards) over others (like the right to seek asylum or the right to non-refoulement)
The EU Humanitarian Border and the Securitization of Human
Rights: The ‘Rescue-Through-Interdiction/Rescue-Without-
Protection’ Paradigm*
VIOLETA MORENO-LAX
Queen Mary University of London
Name some specific policies and practices adopted by the EU that prioritize interdiction and restrict access to asylum and protection
- Collaboration with third countries to prevent departures (e.g., Operation Hera)
- Push-backs of migrants to third countries without proper assessment of their protection needs (e.g., Italy’s push-backs to Libya)
- “Direct repatriation” agreements with third countries that use simplified procedures and fail to guarantee the right to seek asylum (e.g., Italy-Tunisia agreement)
4.Limited search and rescue operations, despite emphasizing the importance of saving lives
5 Militarization of border control, with a focus on disrupting smuggling networks (e.g., EUNAVFOR Med Operation Sophia)
The EU Humanitarian Border and the Securitization of Human
Rights: The ‘Rescue-Through-Interdiction/Rescue-Without-
Protection’ Paradigm*
VIOLETA MORENO-LAX
Queen Mary University of London
Consequences of the EU’s “rescue-through-interdiction/rescue-without-protection
Increased deaths at sea, despite rhetoric about saving lives
Denial of access to protection for migrants seeking asylum
Trapping migrants in unsafe and inhumane conditions in third countries
Diversion of migration flows to more dangerous routes
Further empowerment of smuggling networks
The EU Humanitarian Border and the Securitization of Human
Rights: The ‘Rescue-Through-Interdiction/Rescue-Without-
Protection’ Paradigm*
VIOLETA MORENO-LAX
Queen Mary University of London
What was the initial response of the EU and Italy to the migrant crisis?
In the early years of the migrant crisis, from 2012-2015, the EU and Italy treated the situation as a humanitarian crisis and prioritized saving lives.
From Humanitarian Rescue to Border Security:
Managing Migration in the Central Mediterranean
Gemma Marolda Gloninger
What operation did Italy launch in response to the migrant crisis?
Operation Mare Nostrum, a large-scale search and rescue (SAR) operation that saved over 150,000 lives in 10 months. Despite its humanitarian aims, the operation was criticized by some for contributing to an increase in departures from Libya
From Humanitarian Rescue to Border Security:
Managing Migration in the Central Mediterranean
Gemma Marolda Gloninger
How did this shift in priorities impact the division of labor at sea?
- EU and Italy focusing on interdiction and border control measures, and
- NGOs continuing to prioritize search and rescue and humanitarian assistance.
From Humanitarian Rescue to Border Security:
Managing Migration in the Central Mediterranean
Gemma Marolda Gloninger
EU & Italy adopted strategy to externalize border control
They collaborated with third countries, particularly Libya, to prevent departures and intercept migrants before they reach Europe.
This strategy involved training the Libyan coast guard and providing funding to build border control capacity in Libya.
From Humanitarian Rescue to Border Security:
Managing Migration in the Central Mediterranean
Gemma Marolda Gloninger
2017 Code of Conduct
The 2017 Code of Conduct is a set of rules imposed by Italy on NGOs operating in the Mediterranean. It placed restrictions on NGO activities, including limiting their ability to enter Libyan waters. NGOs saw the Code as an attempt to restrict their humanitarian work and prioritize border security over saving lives.
From Humanitarian Rescue to Border Security:
Managing Migration in the Central Mediterranean
Gemma Marolda Gloninger
Key concerns raised about the EU’s response to the migrant crisis
Criticized for its potential to violate human rights, particularly through the externalization of border control to countries with questionable human rights records. There have also been concerns about the prosecution of humanitarian actors involved in search and rescue missions, raising questions about the criminalization of humanitarianism
PROTECTING THE EU EX
TERNAL BORDERS AND T HE
PROHIBITION OF REFOU LEMENT
Protecting the EU external borders
NANDA OUDEJANS
Extraterritorial
Extraterritorial jurisdiction is the situation when a State extends its legal power beyond its territorial boundaries.
PROTECTING THE EU EX
TERNAL BORDERS AND T HE
PROHIBITION OF REFOU LEMENT
Protecting the EU external borders
NANDA OUDEJANS
Refoulement
The act of forcing a refugee or asylum seeker to return to a country or territory where he or she is likely to face persecution.
PROTECTING THE EU EX
TERNAL BORDERS AND T HE
PROHIBITION OF REFOU LEMENT
Protecting the EU external borders
NANDA OUDEJANS
Non-refoulement
Prohibits states from returning individuals to territories where they face threats to their life or freedom due to their race, religion, nationality, membership in a particular social group, or political opinion.
Enshrined in the 1951 Refugee Convention art. 33
PROTECTING THE EU EX
TERNAL BORDERS AND T HE
PROHIBITION OF REFOU LEMENT
Protecting the EU external borders
NANDA OUDEJANS
De jure control
*According to the law *
This is exemplified by cases like Hirsi, where intercepting migrants on the high seas and returning them to a third country without due process was deemed a violation of non-refoulement.
PROTECTING THE EU EX
TERNAL BORDERS AND T HE
PROHIBITION OF REFOU LEMENT
Protecting the EU external borders
NANDA OUDEJANS
De facto control
Where no law exists
Exercising effective control over individuals, even without legal authority, such as through push-back operations in a third country’s waters
PROTECTING THE EU EX
TERNAL BORDERS AND T HE
PROHIBITION OF REFOU LEMENT
Protecting the EU external borders
NANDA OUDEJANS
The EU-Turkey Agreement
016 agreement between EU and Turkey
- 1:1 Scheme: For each Syrian migrant returned to Turkey from Greece under the agreement, another Syrian refugee already present in Turkey is considered for resettlement in an EU member state
- **Safer Alternatives for Migrants: **By providing a legal pathway for some Syrian refugees to enter the EU, the agreement aimed to deter migrants from undertaking dangerous journeys across the Mediterranean.
- More parts of the agreement exists.
PROTECTING THE EU EX
TERNAL BORDERS AND T HE
PROHIBITION OF REFOU LEMENT
Protecting the EU external borders
NANDA OUDEJANS
Concerns about EU-Turkey agreement
Safe Third Country Status of Turkey: The agreement’s reliance on returning asylum seekers to Turkey hinges on Turkey being considered a “safe third country”. However, this designation is contested by some scholars and NGOs, raising concerns about potential human rights violations if individuals are returned to unsafe conditions.
Collective Expulsion: The return of all “illegal immigrants” to Turkey without conducting individual assessments of their protection needs might constitute collective expulsion, which is prohibited under international law.
PROTECTING THE EU EX
TERNAL BORDERS AND T HE
PROHIBITION OF REFOU LEMENT
Protecting the EU external borders
NANDA OUDEJANS
SOLAS Convention Regulation 33
Obligates ships who are made aware of people in distress at the sea to assist “with all speed”.
Malta and Italy has ratified.
The sources analyze two decisions by the UN Human Rights Committee concerning Italy and Malta’s failure to rescue over 200 migrants in 2013.
Why it is so Hard to Hold Frontex Accountable: On Blame-Shifting and an Outdated Remedies System
SAR 2.1.9.
Coordinate and perform search and rescue.
Ensure collaboration with other states when necessary to save lives at sea.
Malta has ratified.
The sources analyze two decisions by the UN Human Rights Committee concerning Italy and Malta’s failure to rescue over 200 migrants in 2013.
Why it is so Hard to Hold Frontex Accountable: On Blame-Shifting and an Outdated Remedies System
Accountability Challenges Facing Frontex
- Blame-Shifting: Frontex operations often involve a network of participants, including different EU member states, third countries, and even private entities. This makes it challenging to pinpoint exactly who is responsible when a human rights violation occurs.
- Outdated Remedies System: The EU’s legal framework for addressing human rights violations is ill-equipped to deal with the complex, multi-actor nature of Frontex operations.
The EU judiciary is split between national and EU levels, meaning that each participant in a Frontex operation would need to be brought to a separate court. This presents a significant obstacle for individuals seeking redress.
Why it is so Hard to Hold Frontex Accountable: On Blame-Shifting and an Outdated Remedies System
Article 263 TFEU
Purpose: Allows individuals to challenge the legality of acts adopted by EU institutions, bodies, offices, and agencies, including Frontex. If successful, the act can be declared void.
Limitations in Frontex Cases: The sources point out that this article is often ineffective in addressing human rights violations committed by Frontex. This is because human rights violations often do not occur through a formal, legally binding “act” that can be challenged and annulled.
Why it is so Hard to Hold Frontex Accountable: On Blame-Shifting and an Outdated Remedies System
Article 340 TFEU
Treaty on the functioning of EU.
Purpose: Allows individuals to sue the EU for damages caused by its institutions or servants, which could include Frontex. This means that if Frontex’s actions (or inactions) directly lead to harm, individuals could potentially seek financial compensation.
Challenges in Frontex Cases: The sources note that while this article might be the most viable option for holding Frontex liable for human rights violations, it faces challenges due to the Court of Justice of the EU’s restrictive interpretation of liability. This means that proving a direct causal link between Frontex’s actions and the harm suffered, and meeting the Court’s standards for liability, can be difficult.
Why it is so Hard to Hold Frontex Accountable: On Blame-Shifting and an Outdated Remedies System
Italy issue and jurisdiction outside territorial waters
The central issue is whether Italy could be held accountable for a human rights violation that occurred outside its territorial waters.
The shipwreck occurred in Malta’s designated search and rescue area. However, the Committee ultimately found that Italy had jurisdiction over the individuals on the distressed vessel, even though it was not in Italian waters.
More than 200 drowned
2013.
Drowning Migrants Human Rights Commitee
2013 shipwreck in the Mediterranean
Italy and Malta’s obligations to rescue migrants in distress at sea.
Migrants was in international waters
Malta’s SAR area:
1. SAR 2.1.9. Coordinate and perform search and rescue.
Ensure collaboration with other states when necessary to save lives at sea.
Italy:
1. Italy recieved call from the distressed vessel to naval ship.
2. Italy had a Naval ship in the area. (SOLAS Convention Regulation 33, all its speed).
3.
Both states:
ICCPR art. 6 (right to life)
Extraterritorial jurisdiction, 2013 Mediterranian
Malta and Italy were considered to have extraterritorial obligations under the International Covenant on Civil and Political Rights (ICCPR) because:
Malta had operational control as the SAR zone coordinator.
Italy had physical proximity and involvement in rescue communications, creating a dependency relationship.
Consequences: Reputition.
Drowning Migrants Human Rights Commitee
Human Rights Committee
1. Monitor State Compliance
Reviews state reports on ICCPR implementation.
Provides recommendations to improve human rights protections.
2. Adjudicate Individual Complaints
Handles complaints under the First Optional Protocol.
Determines violations and recommends remedies.
Drowning Migrants
Due diligence
Proactive: Not just reacting to harm but actively working to prevent it.
Italy’s violations (Human rights Committee)
Violations
Article 6 (Right to Life): Failed to act with due diligence, contributing to 200+ deaths.
Article 2(3) (Effective Remedy): Did not conduct a prompt, independent investigation.
SOLAS
Safety of Life at Sea
This convention sets minimum safety standards for ships and includes regulations for search and rescue operations
UNHCR
The United Nations High Commissioner for Refugees (UNHCR): This UN agency is mandated to protect refugees and has developed standards for “effective protection” in the context of refugee law.
Government guidence in implementation of refugee law
