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EU: A drop of fundamental rights in an ocean of unaccountability: Frontex in the process of implementing Article 26(a) (1)

01 May 2012

15.05.2012 - On 27 April, Frontex presented a tentative timeline in view of the establishment of the controversial Consultative Forum on Fundamental Rights which comes as a result of negotiations between the Council and the European Parliament in November 2011. [1] While European borders remain some of the most dangerous in the world, details of the establishment process of this new body confirm the pre-eminence of the Management Board and Member States in the functioning of Frontex, and the leaving aside of any democratic oversight and independent monitoring mechanism.

The European Parliament's reaction to Frontex's poor human rights record

Article 26(a) has been at the core of negotiations between the Council of the EU and the European Parliament as amendments of Regulation 2004/2007 were discussed. Indeed, since its inception the Agency has been criticised for not establishing enough safeguards to guarantee the respect of the fundamental rights of irregular migrants during operations such as interception at sea or joint return flights.

The Meijers Committee, as early as 2008 [2], raised concerns on what Human Rights Watch later called "push-back operations":

"According to the statistical Annex to the Commission's report, in the course of operations of sea border control coordinated by FRONTEX in the years 2006-2007, 34.905 illegal migrants have been 'intercepted' and a total of 9.671 illegal migrants have been 'diverted back' (operations Hera, Agios, Minerva, Poseidon). The Standing Committee observes that the evaluation fails to specify to which procedures these illegal migrants have been subjected". [3]

The absence of any monitoring mechanism to address human rights abuse has also been denounced for a long time. The reporting mechanisms initially proposed by the Commission in 2010 remain purely internal. It was suggested that a Code of Conduct applicable during Joint Return Operations be adopted and that all persons taking part in Frontex activities should be trained on fundamental rights. This resulted in the adoption of a non-binding text by the Agency which reasserts principles based on international and European law that Frontex should already be abiding by. [4]

Acting as a co-legislator, the European Parliament pushed for the adoption of an article establishing the creation of a fundamental rights authority dedicated to the monitoring of Frontex's activities.

The initiative for the creation of an independent Advisory Board on Fundamental Rights and the insertion of a new article (Article 26(a)) was a major breakthrough. The Advisory Board was meant to be an external and independent body made up of representatives from the EASO, FRA, the UNHCR "and other relevant organisations", assisting both Frontex's Executive Director and its Management Board. It was supposed to publish an annual report on how Frontex complied with fundamental rights. The report would then be submitted to the Management Board, the European Parliament, the Council and the Commission, and would be made public in line with the Parliament's ambition of more external and democratic monitoring and more transparency in relation to the Agency's work.

The Parliament's proposal granted the Advisory Board an unconditional right to access information whenever requested, with respect to joint operations, rapid border interventions or pilot projects. It could access the evaluation reports of the operations, including return operations. The Advisory Board would be able to suspend an operation if they considered it to be in breach of "fundamental rights and international protection obligations".[5]

The trilogue and the missed opportunity of human rights accountability

This proposal was unlikely to be endorsed by the Council. As a matter of fact, none of the national delegations approved the Parliament's proposal. However, concerns over the fundamental rights aspect of the Agency's work had gained momentum, leading Frontex to adopt window-dressing proposals such as the Frontex Fundamental Rights Strategy in March 2011[6]. In this context, it seems that the Council opted for a diplomatic strategy of keeping up appearances with continued negotiations but had no intention of creating an empowered independent authority. After a few months of negotiations, the Parliament's initial proposal became void of its very substance and no longer contained an independent body capable of accessing information and suspending operations should human rights be breached.

The Parliament agreed on the adoption of a "Fundamental Rights package" that did not provide sufficient systematic, preventive and evaluative guarantees. As of July 2011, the Advisory Board had turned into a Consultative Forum nominated by the Management Board and in charge of implementing the Fundamental Rights Strategy of the Agency. The role of the independent Fundamental Rights Officer, which was the driving force of the EP's amendments, was watered down to a Fundamental Rights Officer designated by the Management Board, whose role would be consultative rather than advisory.

Still, the agreement on the new Article 26(a) was celebrated by most of MEPs:

"One of Parliament's key concerns in the negotiations has been to ensure full respect for fundamental rights. At Parliament's request, Frontex will appoint a fundamental rights officer and set up a consultative forum on fundamental rights". [7]

The Green-EFA delegation criticised the text for being "half-heartened and unconvincing" [8] and abstained from voting on the "compromised" version of Regulation 2004/2007 that was endorsed by the European Parliament.

Cosmetic changes for Europe's dangerous borders

The decision-making process in view of the implementation of Article 26(a) illustrates very well the unchanged nature of the functioning of Frontex, whereby the decisional power of Member States and the pre-eminence of the Executive Director are maintained (the adopted version of the amended Regulation 2004/2007 foresees that operations may be suspended by the Executive Director in total or in part if the latter considers that human rights are at risk).

The decision over the establishment of the Consultative Forum is made by the Drafting Advisory Committee made up of delegations from six Member States (Austria, France, Germany, Italy, the Netherlands, Spain) and the European Commission. The composition of the forum will be known by 23 May 2012.

"The DAC shall advise and guide the Agency in the preparations of the relevant Frontex Management Board Decisions".

Only at a later stage was this committee joined by "partner organisations" (EU Fundamental Rights Agency, UNHCR, European Asylum Support Office) whose role remains purely consultative.

The Fundamental Rights Officer, to be appointed by the Management Board by September 2012, will report to the Management Board and the Consultative Forum, with no reference to the European Parliament as initially proposed. It remains to be seen what influence the Consultative Forum will have given it will only have access to information the Management board has agreed to transmit.[9]

The Agency's timeline announcement coincides with the news of the death at the Greek-Turkish border of two migrants and their smuggler in a car accident as they were trying to escape Frontex's border patrols. [10] In the absence of any satisfactory human rights safeguards and independent reporting mechanism taking into account expert organisations' opinion and making Frontex accountable for its actions, it seems unavoidable that human rights will remain "an afterthought for the EU's border agency". [11] This lends credence to concerns expressed recently by the UN Human Rights Office at a meeting in Geneva that border controls are having a disproportionate impact on the human rights of migrants. [12]

The discrepancy between the mere consultative nature of the forum and the cruelty and serious reality of deaths at the external borders of the European Union is a sign that the Agency and the European Union still consider fundamental rights and Frontex's accountability before democratically elected institutions to not be a top priority.

Sources
[1] Frontex Consultative Forum and Fundamental Rights Officer (2012)

[2] Meijers Committee (2008) Views on the Commission report on the evaluation and future development of the FRONTEX agency (COM(2008) 67 final)

[3] Human Rights Watch (2009) Pushed Back, Pushed Around h

[4] Frontex (2011) Code of Conduct for all persons participating in Frontex activities

[5] European Parliament (2011) Orientation vote result on the proposal for a regulation of the European Parliament and of the Council 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 (FRONTEX)

[6] Frontex (2011) Fundamental Rights Strategy

[7] European Parliament (2011d) Frontex border guard teams and fundamental rights, Press Release (20110622IPR22352)

[8] Green-EFA (2011) Half-hearted improvements on human rights protection fall short

[9] "On the proposal of the Executive Director, the Management Board shall decide on the composition and the working methods of and the modalities of the transmission of information to the Consultative Forum," Article 26(a)(2).

[10] Three People Dead While Trying to Escape FRONTEX Control

[11] Ibid at [8]

[12] Crossing borders: for millions of people on the move, borders can be a dangerous space, December 18