Putting FRONTEX in perspective: some thoughts at the margin of the last EP plenary vote

By Marco Stefan, MEDEA Institute

On the 16th of April 2014, the last plenary session of the European Parliament 7th legislature put to the vote and formally approved the Commission’s proposal for a regulation establishing rules for the surveillance of the external sea borders in the context of operations coordinated by Frontex (the European Agency for the Management of Operational Cooperation at the External Borders of the member states of the EU)[1].

Subject to ordinary legislative procedure – a “trialogue” involving the three EU political institutions – this piece of legislation represents the agreement reached between Member States and the Parliament on the DG Home proposal for rules authorising border guards to apply measures against ships or persons when they are apprehended by sea. The discussions at the EU level followed a Court of Justice of the European Union’s decision that defined external sea border control as an essential element and major development in the Schengen Border Control System[2]. Most notably, the Grand Chamber ruling served to put migrants rights’ issue at the very heart of the EU ordinary legislation on external borders surveillance. In fact, the (soon to be) regulation openly stresses and normatively articulates the need to ensure adequate protection to those embarking upon hazardous maritime migratory routes. The novelties introduced by the new legislative initiative are especially relevant when it comes to operational cooperation for the control of migratory flows crossings the Mediterranean Sea, where human rights challenges are more likely to occur.

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© Georges Gobet/AFP. The European Parliament has formally approved on 16th April a regulation for the external borders controlling operations, by Frontex agency.

In particular, the regulation spells out detailed operational rules for border guards engaging in Frontex sea operations, and is thought to provide practical guidelines to follow in the seizing and disembark of migrants in the Mediterranean Sea. Introducing “emergency phases” for search and rescue operations, and clearly spelling out the duties upon the different units participating in Frontex maritime operations, the new rules should help to avoid the confusion that so far derived from EU member states’ differing interpretations of international law and practices, ultimately helping to save lives at sea[3]. Guarantees for particularly vulnerable groups – including (but not limited to) persons in need for international protection, victims of trafficking in human beings, unaccompanied minors – are embedded in the procedures for the identification of migrants, which prescribe Frontex-coordinated border surveillance to follow detailed “operational plans”[4]. In accordance to the principle of non-refoulement, “Pushback” operations on the high seas are explicitly forbidden, and criminal sanctions for the shipmasters and crews responsible for the sole rescue of persons in distress at sea have been excluded, in line with customary international law. Still, border guards are entitled to “warn and order” vessels not to enter in the territorial waters of a member state, and provisions ensuring migrant individual access to interpreters and legal advisers have not been fully contemplated. Despite not completely satisfactory, the compromise reached through the new regulation globally improves the protection of migrants rights and enhances borders guards’ accountability operating within the EU framework[5].

Unfortunately, the new rules on search and rescue operations and the disembarkation of migrants will only cover operations coordinated by Frontex. To this regard, it is opportune to remind that even if the new rules do not apply to patrolling operations performed outside the agency coordination, Member States not acting under the Frontex cooperative umbrella remains subjected to obligations flowing from international human rights and refugee law, as the European Court on Human Rights made clear in its 2012 landmark Hirsi vs. Italy ruling[6].

[1] The draft regulation was approved by 528 votes to 46, with 88 abstentions (final text available at http://www.europarl.europa.eu/plenary/en/texts-adopted.html). The EU Council of Ministers is now responsible for the draft regulation’s final approval.

[2] And therefore need to undergo legislative scrutiny for an appropriate balancing of the conflicting interests at issue. EUCJ, Case C‑355/10, in particular paras. 76-78.

[3] While surveillance activities are regulated at the EU level through the Schengen Borders Code (Article 12), search and rescue activities remain under international law: in particular by the law of the Sea Convention (UNCLOS), the Convention on the Safety of Life at Sea (SOLAS) and the Convention on Search and Rescue (SAR). However, not all EU Member States ratified the SAR and SOLAS 2004 amendments defining which State is responsible for finding a “place of safety” for migrants in distress.

[4] Under the upcoming rules, possible coercive measures may be taken only after migrants are identified. The identification rules are mandatory, whereas the enforcement ones are optional.

[5] Beside recent legislative developments, the European Ombudsman started inquiring on implementation by Frontex of its fundamental rights obligations. See, http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/11758/html.bookmark.

[6] See the Grand Chamber of the European Court of Human Rights judgment in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09).