Frontex Working Arrangements: Legitimacy and Human Rights Concerns Regarding 'Technical Relationships

• Author: Melanie Fink
• Position: Lecturer and Research Assistant at the Department for European, International and Comparative Law, University of Vienna; PhD Candidate in Law, University of Vienna
• Pages: 20-35

Frontex Working Arrangements: Legitimacy and Human Rights

Concerns Regarding ‘Technical Relationships’

Melanie Fink

Merkourios 2012 – Volume 28/Issue 75, Article, pp. 20-35.

URN:NBN:NL:UI:10-1-112855

ISSN: 0927-460X

URL: www.merkourios.org

Publisher: Igitur, Utrecht Publishing & Archiving Services

Copyright: this work has been licensed by the Creative Commons Attribution License (3.0)

Keywords

Frontex, ‘External Relations’ of EU Agencies, Working Arrangements, Extraterritorialisation of Border Control, Legal

Personality of EU Agencies, Cooperation with ird Countries in EU Border Control, Area of Freedom, Security and Justice

Abstract

Practices of extraterritorialisation have become cornerstones of the European Union member states’ border control. Most of

them are highly dependent on the willingness of third countries to cooperate. An increasingly important phenomenon is that

cooperation is secured through relationships established by administrative authorities. is article deals with the challenges

arising from the active engagement of Frontex in setting up cooperation structures.

It is argued that the so-called working arrangements concluded between Frontex and the respective authorities of third

countries, in their current form, show considerable deciencies from the perspectives of the rule of law, democracy and

human rights protection. ey are not open to judicial review, the Parliament is not involved in their conclusion and they are

not disclosed to the public. Furthermore, the human rights record of cooperating authorities is not considered. Concerns in

this respect are frequently attempted to be dispelled by recourse to the ‘technical’ as opposed to ‘political’ nature of working

arrangements. Likewise, it is assumed that merely ‘technical relationships’ cannot aect individuals. ese arguments are not

convincing. Quite the contrary, the political implications of working arrangements and their operation in a highly human

rights sensitive eld demand conformity with the fundamental values the European Union is based on.

Author Aliations

Lecturer and Research Assistant at the Department for European, International and Comparative Law, University of Vienna;

PhD Candidate in Law, University of Vienna. e author would like to thank Dr Timo Tohidipur for his helpful comments

on earlier drafts of this article.

Article

Merkourios - International and European Migration Law - Vol. 28/75 20

Case Note

Article

I. Introduction

It is estimated that around 100,000-120,000 people cross the Mediterranean Sea every year, without possessing the necessary

documents to enter the EU.1 e ght against this irregular migration is high on the political agenda of EU member states.

Some of their practices trigger critique as regards their compliance with human rights. In June 2011, the Parliamentary

Assembly of the Council of Europe launched an investigation into the responsibility for the loss of life of more than 1,000

‘boat people’ that are thought to have perished in the Mediterranean Sea since January 2011 while eeing unrest in North

Africa. e appointed Rapporteur will in particular look at the way boats are intercepted by the coastguards.2 e practice

of interception is part of a general trend towards border control activities that are aimed at preventing migrants from leaving

their home shores or those of transit countries or at shifting responsibility to third countries.

Many terms have been used in order to describe this phenomenon of ‘polic[ing] the EU borders at distance’.3 ‘Remote control’4

and ‘extraterritorialisation’5 refer to actions aimed at controlling the movement of people before they reach the EU borders.

e rst measures that were taken in this regard are visa policies,6 but they also include carrier sanctions and interception of

migrants at sea.7 e term ‘externalisation’ often focuses in particular on the practices of outsourcing migration control and

shifting responsibility to countries of origin and transit in order to construe a ‘buer zone’ around Europe.8 For the purpose

of this paper, I will use the term ‘extraterritorialisation’.

Many of the measures related to extraterritorialisation are highly dependent on the cooperation of third countries.9 Where

EU Member States engage in joint operations outside the territory of the EU under the auspices of Frontex, the EU Agency

for the Management of Operational Cooperation at the External Border, collaboration of third countries can be secured

through working arrangements between Frontex and the respective authorities of third countries.10 It is becoming of

increasing importance that administrative authorities are ever more taking the initiative to enter into external relations and

build cooperation structures.11 Even though international cooperation is to be welcomed for the numerous benets it can

deliver, the challenges such cooperation poses need to be addressed. In the case of EU agencies, there is by far no clear line to

distinguish lawful from unlawful international cooperation.12

e purpose of this paper is to analyse whether working arrangements provide for an adequate basis for the practice of

involving the authorities of third States in the border control of the EU. I start with a brief outline of the background of

Frontex’ relationships with third countries, especially highlighting the importance attached to this cooperation (Section II).

Subsequently, I deal with the limits and provisions on Frontex’ ‘external relations’ (Section III) and proceed to examine the

legal nature of working arrangements and their shortcomings (Section IV). In Section V, I deal with the argument that as

‘technical relationships’, working arrangements do not trigger legitimacy and rule of law concerns. My ndings will show

that this argument is based on two assumptions that are not convincing, which leads me to my suggestions for the future

conclusion of working arrangements (Section VI).

1 A Fischer-Lescano, T Löhr and T Tohidipur, ‘Border Controls at Sea: Requirements under International Human Rights and Refugee Law’ (2009) 21 Interna-

tional Journal of Refugee Law 256, 256-57; M Baldwin-Edwards, ‘Migration in the Middle East and Mediterranean’ (2005) Global Commission on Interna-

tional Migration, 18.

2 PACE, ‘PACE Inquiry into Responsibility for Loss of Life in the Mediterranean Sea: Visit to Italy’ (Council of Europe Press Release, 2 September 2011).

3 E Guild and D Bigo, ‘e Transformation of European Border Controls’ in B Ryan and V Mitsilegas (eds), Extraterritorial Immigration Control (Martinus Nijho

Publishers 2010) 257, 258.

4 A Zolberg, ‘Guarding the Gates in a World on the Move’ (2002) Social Science Research Council - After September 11; V Guiraudon, ‘Before the EU Border:

Remote Control of the “Huddled Masses”’ in K Groenendijk, E Guild and P Minderhoud (eds), In Search of Europe’s Borders (Kluwer Law International 2003)

191, 191; A Pérez, ‘e Externalization of Migration Control in Spain and Its Impact on Moroccan and Ecuadorian Migration’ in R Zapata-Barrero (ed), Shap-

ing the Normative Contours of the European Union: A Migration-Border Framework (CIDOB 2010) 97, 100.

5 B Ryan, ‘Extraterritorial Immigration Control: What Role for Legal Guarantees?’ in B Ryan and V Mitsilegas (eds), Extraterritorial Immigration Control (Mar-

tinus Nijho Publishers 2010) 3; J Rijpma and M Cremona, ‘e Extra-Territorialisation of EU Migration Policies and the Rule of Law’ (2007) EUI Working

Papers LAW 2007/01.

6 Zolberg (n 4).

7 Ryan (n 5).

8 Pérez (n 4) 101; Rijpma and Cremona (n 5) 12.

9 Guiraudon (n 4) 206.

10 eir content will be discussed in more detail in Section V.A. ey basically aim at establishing a partnership between Frontex and the respective authorities

of third countries in order to counter irregular migration by means of border control. e working arrangements foresee cooperation in various elds like risk

analysis, joint return operations, Frontex-coordinated joint operations, Pilot Projects, training of border guards and technical cooperation in the eld of research

and development.

11 C Möllers, ‘Verfassungs- und Völkerrechtliche Probleme Transnationaler Administrativer Standardsetzung’ (2005) 65 ZaöRV 351, 351-55.

12 E Chiti, ‘An Important Part of the EU’s Institutional Machinery: Features, Problems and Perspectives of European Agencies’ (2009) 46 Common Market Law

Review 1395, 1426.

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