European Hegemony: Kapitel Eins

“Flüchtlinge? Das sind keine Flüchtlinge, sondern illegale Migranten.”

(Refugees? They are not refugees but illegal immigrants.)

Some years ago Ilkka Laitinen, Executive Director of Frontex described refugees in the above manner to Der Standard; he simultaneously used the opportunity to defend his seat by describing his agency as a “Sündenbock” (or scapegoat). Despite the above pejorative characterisation of refugees by its Executive Director, Frontex, which is based in Warsaw, Poland, also aims to perform the difficult task of improving the situation in relation to trafficking in human beings.

The legislative keystones for the foundations of Frontex are Articles 74 (ex Article 66 TEC) and Article 77 (ex Article 62 TEC) of the TFEU. Article 77(2)(b) requires common standards, procedures and checks in relation to external borders and Article 77 empowers the Council to “adopt measures to ensure administrative cooperation between the relevant departments of the Member States”. The agency’s mission is “to ensure that the EU’s external borders remain permeable and efficient for bona fide travelers while being an effective barrier to cross-border crime”.

Frontex describes itself as a “community body with legal identity as well as operational and budgetary autonomy” which is governed by a Management Board, consisting of “operational heads of national border guard services and representatives of the European Commission.” The Board sets and implements the budget; it is also meant to establish “transparent working procedures for decision making” and appoints the Executive Director and his subordinates.

However, Frontex has been widely criticised for suffering from an “accountability deficit”.

The agency is founded by virtue of Regulation 2007/2004. This was topped up by Regulation 863/2007 which gave Frontex the capacity to deploy Rapid Border Intervention Teams (RABITs); these consist of a cadre of expert guards who can intervene to prevent extraordinary breaches of Europe’s external borders.

Article 10 of Regulation 863/2007 binds officers participating in joint action to European Union law and it further ties them to the instructions of the host Member State. However, for the purposes of disciplinary action participating officers are subjected to the law of their home country. Article 2(2) of founding Regulation 2007/2004 additionally explains that Member States can continue to cooperate bilaterally and also with third states outside the Frontex framework.

The EU’s institutional framework has been pouring money into Frontex and funding for the agency’s operations saw a 360 per cent increase in the period 2006-2009. Given that Europe is determined to keep foreigners out at any cost, future funding for stricter European border controls is likely to rise further which will no doubt strengthen Frontex.

The possibility that working jointly with Frontex relieves national agencies from any liability for unlawful action means that Frontex’s European hegemony undermines human rights law which is binding upon Member States. Moreover, when Member States’ border guards participate in joint operations with the Warsaw based agency, the Regulations do not provide an exclusive legal process before the CJEU (Luxembourg). Therefore, legal protection and remedies lie with the national courts of the Member State concerned which, in turn, are answerable to Luxembourg (for matters related to border and Community law) and to the ECtHR in Strasbourg (where questions in relation to the application and engagement of fundamental rights protected by the ECHR arise).

Nevertheless, Article 28(2) of founding Regulation 2007/2004 requires that interested parties and the public “are rapidly given objective, reliable and easily understandable information with regard to its work”; to this end Frontex publishes information about itself on its website but this information is purely subjective and is therefore contained in the agency’s yearly reports.

The dilemma of the Frontex Regulations is that while the previously sovereign power of Member States has been delegated to the Warsaw agency, the fact remains that the European courts have been disabled from reacting to Frontex’s prospective unlawful actions.

However, Article 263 of the TFEU fills this lacuna in jurisdiction because it empowers the CJEU to “review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.”

The transfer for national border control regimes to a core EU border agency has the result of transferring the obligations under the Convention to the EU. Intriguingly, in Waite and Kennedy v Germany (see at paragraph 67) and Matthews v United Kingdom (see at paragraph 32) Strasbourg has precluded contracting parties from evading their responsibilities by transferring power to an international institution. In the Bospherous Airways v Ireland case, Strasbourg also took the opportunity to clarify that the Convention organs have an “indirect” jurisdiction over the acts of the EC/EU bodies.

The Council of Europe maintains the Convention on Action against Trafficking in Human Beings whose purpose is to protect victims of trafficking and to safeguard their rights; it also aims to prevent trafficking and prosecute traffickers; it applies to:

[A]ll forms of trafficking; whether national or transnational, whether or not related to organised crime. It applies whoever the victim: women, men or children and whatever the form of exploitation: sexual exploitation, forced labour or services, etc. The Convention provides for the setting up of an independent monitoring mechanism guaranteeing parties’ compliance with its provisions.

Given the concern over Frontex’s activities in connection with human rights violations, the agency’s legal accountability remains critically important. Although the CJEU, following the Lisbon Treaty, has some jurisdiction on Frontex’s possible unlawful behaviour, this is not an adequate replacement for the agency’s direct accountability before the Strasbourg Court.

In Europe’s slide towards adopting a xenophobic attitude towards immigrants the predominant legal view is that Frontex, which is enjoying a free flow of funds and power, is not sufficiently constrained to operate within the framework of international and European law. One area of concern is that the agency has no evidence to confirm that European border guards have consistently applied the Schengen Borders Code in connection with its rescue at sea, disembarkation and interception duties.

For example, Anneliese Baldaccini has made recommendations that Frontex’s activities required “monitoring” and “proper scrutiny” because otherwise:

[T]he communitarisation of the protection of the external EU borders will ultimately result in Member States’ authorities increasing their autonomy at the expense of political, legal and institutional constraints on policy making in the field of border control.

In The Dark Side of European Immigration Policy (Journal of Money Laundering Control 2011, Vol. 14, Issue 2, pp. 158-169) Rita Duca argues that restrictive immigration policies in Europe are providing impetus to illegal (or irregular) migration.

As far as Frontex is concerned, Duca’s view is that in the troika of libertas, securitas, justitia; the second principle trumps the other two and naturally undermines the supremacy of human rights law which European States are wedded to.

Duca’s analysis is that instruments used to organise legal immigration and control illegal immigration do not resolve the problems connected to illegal immigration. Instead, such policies create “boomerang effects” which can be summarised as facilitating (i) concentrations of immigrants in the same location rather than “creating a mobility of the migrant flows”; (ii) increases of illegal immigration (which is precisely what allows immigrants to be exploited in the first place); (iii) the impermanence of the distinction between smuggling and trafficking; (iv) the work of criminal organisations; and (v) the enlargement of the black market’s borders.

Ultimately economics demands that the “European single market feeds itself”. Duca asserts that illegal immigration has increased in Europe because no effective way for the regular and legal entry of low skilled workers exists in light of which illegal immigration becomes inevitable. Moreover, the “employment contract = residence permit” condition hampers the status of legal foreign workers because they can be subjected to a blackmail wage in working conditions which are imposed by local businessmen who are likely to abuse power to maximise profit.

Moreover, the legal distinction between migrant smuggling and human trafficking is one which is inherently problematic for an agency like Frontex – which is aimed at securing Europe’s borders through its coercive hegemony but must also respect human rights law. Migrant smuggling involves people making voluntary payment by migrants to be transported, whereas human trafficking involves forcing people to relocate to a new location, nationally or internationally, in order to exploit them for their labour or be used as sex slaves.

In the absence of reliable and exact data on the scale of the human smuggling problem the estimate used by the International Centre for Migration Policy Development approximates that there are between 2.5 to 4 million unauthorised border crossings annually. (This rough estimate includes those who are trafficked, smuggled and also those who cross borders independently of their own initiative.)

The additional hazards for smuggled migrants are that they have no access to health care or other essential services in the host country. Equally, the possibility of a smuggled migrant being converted into trafficked migrant is very real because when a smuggled migrant fails to pay his or her bill to the smugglers the predicament of being trafficked becomes automatic.

Upon coming to power in May 2010 the Coalition British Government made human trafficking a central feature of their power sharing agreement. Yet the government initially opted out of the EU’s Directive on combating trafficking in human beings and protecting victims (Directive 2011/36/EU). On 15 September 2010 Prime Minister David Cameron explained that the human trafficking Directive added nothing to existing British law but he qualified that by saying that he would “look” into the matter “again”.

Subsequently, on 22 March the government announced its intention, subject to Parliamentary scrutiny and process, to opt in to the human trafficking Directive; accordingly the British Government’s intentions were voiced by the Minister for Immigration Mr Damian Green on 9 May 2011. (See here.)

The human trafficking Directive will accord greater rights to victims; especially those who are children. It is noteworthy that Article 14 of the Directive requires trafficked children to be provided support in order for them to recover from their psycho-social trauma. The British Parliament’s statistics indicate that in the year 2007 more than half of the children trafficked to the UK went missing. Equally, there are provisions for guardians and representatives to be appointed for children who require it; no such equivalent exists in the UK at present. Other provisions include the (i) widening of the definition of human trafficking to include forced begging: (ii) provision of accommodation and assistance to victims; (iii) establishment of a National Rapporteur on human trafficking over and above the present Ministerial Group; (iv) widening of powers in relation to prosecution and investigation; and (v) protecting the identities of witnesses giving evidence in relation to criminal proceedings connected with human trafficking.

There is so much more to the above story: Part II to be published soon.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Council of Europe, ECHR, European Union, Frontex, Hegemony, Human Trafficking, International Law and tagged , , , , , , . Bookmark the permalink.

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