Frontex fundamental rights ambiguities : conflicting political objectives and the implications of an increased budget for search and rescue in the Mediterranean

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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

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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 Frontexcaught 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

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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

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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

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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.

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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

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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

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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

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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

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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).

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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

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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

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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

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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 Anti-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

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

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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).

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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

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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

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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

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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.

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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

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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.

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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

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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

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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.

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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’

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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).

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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

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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.

Frontex fundamental rights ambiguities : conflicting political objectives and the implications of an increased budget for search and rescue in the Mediterranean