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The reinforcement of Frontex and the intensification of cooperation with third countries

28 March 2012

Amendments to Regulation 2004/2007 reinforcing the powers and widening the mandate of the European Agency for the Management of External Borders entered into force in January 2012.[1] Some of the amendments broaden the Agency's mandate when dealing with third countries. These developments of the Agency's external relations reflect the ambitions of Frontex, and reinforce concerns regarding its impact on human rights and civil liberties.

Working arrangements: technical cooperation and political agenda

Frontex is empowered to sign cooperation agreements with third countries to facilitate cooperation between EU countries and their partners. In addition to the existing possibility of signing working arrangements with the competent authorities of third countries, the Agency can now deploy liaison officers in partner third countries and engage in technical cooperation projects with their competent authorities. Frontex argues that such cooperation remains purely technical and aims to facilitate EU and EU member states' cooperation with third countries.

Such technical cooperation is based on political choices (securing EU external borders based on evaluated threats), and has political consequences for the nature of the EU's external relations. The selection of certain countries rather than others to conclude such agreements is an example.

To date, the Agency has signed 16 working arrangements with the "competent authorities" of third countries. Two of them were signed earlier this year, one with Nigeria, in January 2012, and the latest one with Armenia in February 2012. These two agreements were signed as part of a larger scale of cooperation on border management and migration management between the EU and both countries. The agreement with Armenia comes as confirmation of the EU's strong interest in countering irregular migration from the South Caucasus as illustrated by the adoption of the Prague Process Action Plan by the Polish Presidency in November 2011. The Prague Process is made up of 47 countries and the Action Plan 2012-2016 was adopted in cooperation with the European Commission and the General Secretariat of the Council of Europe.[2]

Nigeria is considered as a country of origin of major importance where organised crime targeting the EU is well developed (human trafficking, irregular entry with forged documents).[3] It is also a neighbour country of Niger, one of the target countries of the EU-funded West-Sahel project whereby the EU seeks to externalise its practices of border and immigration management.[4] The UN Counter-Terrorism Committee is also a driving force in supporting cross-border cooperation in the region:

"Joint border posts and community policing are among the good practices identified by participants, who also indicated that extending access to INTERPOL databases to all border posts would help officials identify and stop wanted persons from crossing borders", as reported on the UN Counter-Terrorism Committee's website.[5]

Frontex already has the ability to operate on the Atlantic, in Senegalese and Spanish waters thanks to a bilateral agreement between both countries. According to its new mandate, based on the working arrangement signed with Nigeria, the Agency can now deploy liaison officers in that country and technically support the management of its borders, including at Lagos airport.

Surveillance equipment: the other aspect of external cooperation

Frontex does not limit its external relations to countries with which it has signed a working arrangement or those which have concluded bilateral agreements with certain EU member states. Cooperation follows the appetite of the Agency for the development of its own equipment. This, again, was largely facilitated in the new mandate which was negotiated over the past two years between the European Commission, the Council of the European Union and the European Parliament. The Agency has pointed out its lack of resources and the subsequent lack of autonomy which, it argued, was impeding its capacity to react to threats at the EU's external borders.
The new mandate was still under negotiation when Frontex published a call for interest in participating in a workshop in 2010 entitled "Small UAVs and Fixed systems for Land border surveillance".[6]

Now that the mandate officially authorises the Agency to own its equipment, search for cooperation with equipment providers is actively sought, not least in the field of drones. A recent showcase in Greece in early February 2012 suggests the likelihood of cooperation with the Israeli Aerospace Industries (IAI) as the IAI presented its Heron Unmanned Aerial System (UAS).
"Demonstrations like the one in Greece help Frontex understand whether there are possibilities for a civilian use of such technologies. Our main interest is their potential use for border control and for search and rescue operations at sea, as saving human lives is one of our priorities", according to Edgar Beugels, Head of Frontex Research and Development.[7]

The Agency's external cooperation goes beyond technical cooperation and involves EU diplomatic relations and the buying of defence equipment for civilian use.

Relations with third countries on the brink of legality

Whether they result in working arrangements or in the purchase of equipment, discussions lack transparency with Frontex having no accountability to the European Parliament. However, since the adoption of the Lisbon Treaty, the European Parliament can veto international agreements, and has the power of co-decision together with the Council of the European Union, in the field of justice and home affairs, which includes migration-related policies.[8]

The fact that democratic scrutiny is left aside has raised major concerns throughout the negotiations of the amended 2004/2007 Regulation, and led the Green Party to abstain from the European Parliament's vote on the text.

The conclusion of working arrangements with third countries remains an act of political significance which may be seen as a legitimation of the partner country's migration policy and border management. Indeed, as enshrined in Frontex's mandate, working arrangement are only signed with third countries whose border management policy meets EU standards. It remains to be seen if the recent immigration law passed in Israel to detain irregular migrants for up to three years without any judicial decision attached to the detention is in line with European standards.[9] The same doubts remain regarding Israel's decision to build a fence in the Negev desert to stop migrants from entering the country irregularly, although this may result in refugees being denied entry to a safe country.[10] In December 2011, the European Commission refused to fund the construction of a fence between Greece and Turkey on the grounds that "it would not effectively discourage immigrants or smugglers who would simply seek alternative routes into the European Union".[11]

[1] See Regulation (EU) No 1168/2011 of 25 October 2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union

and Full-text of Regulation as amended: The Frontex Regulation – Consolidated text after 2011 amendments (33 pages, pdf) by Steve Peers, Professor of Law, University of Essex

[2] Polish Presidency of the EU (7 November 2011) Prague Process Action Plan adopted for 2012-2016

[3] Europol (September 2011) Knowledge product Trafficking in Human Beings in the European Union

[4] Durham University (6 February 2011) Joint Border Control Programme begins between Mauritania and European Union

[5] UN Counter Terrorism Committee (April 2011) Securing the borders of the Maghreb and the Sahel

[6] Frontex (September 2010) Call for expressions of interest

[7] Israel Aerospace Industry (9 February 2012) Israel Aerospace Industries' Heron Unmanned Aerial System was demonstrated to Frontex EU Agency

[8]Migreurop (2010) Frontex: Which guarantees for human rights? p.32

[9] Amnesty International (10 January 2012) Israel: new detention law violates rights of asylum seekers

[10] Egypt Independent (12 December 2011) Israel's growing wall of steel fences off Egypt

[11] Ekathiremini (6 December 2011) EU will not fund Evros fence