22 July 2021
The second part of an analysis looking at the legal firewalls that create blurred responsibilities in cases of search and rescue and pushbacks, shielding EU border agency Frontex from accountability measures.
The first part of this analysis is here: To SAR or not to SAR, part 1: Why is Frontex expected to save lives at sea?
Frontex is not designed to save lives at sea. One after another, those at the head of the agency have stressed this point. In 2007, Ilka Laitinen, then-executive director, said:
“Member States want Frontex to become a search and rescue body. Legal advisors could have some problems in explaining why a Community agency should take action in an area that is out of the mandate not only of the agency but also the European Union.”
He was followed by Fabrice Leggeri, in 2015:
“[Joint maritime operation] Triton cannot be a search-and-rescue operation. I mean, in our operational plan, we cannot have provisions for proactive search-and-rescue action. This is not in Frontex’s mandate, and this is in my understanding not in the mandate of the European Union.”
Frontex has been able to hide behind a legal and political shield that, so far, has protected the agency from any real accountability for the mishandling of migrants at sea. The longstanding argument that the agency’s actions are limited to coordinating member states has long-proven successful, all the more at sea where search and rescue (SAR) decisions remain the sole competence of states.
As of 2020, the SAR capacities of Frontex are part of the “multipurpose aerial support” provided to member states alongside fisheries control, law enforcement, and environmental protection. This means that SAR operations may be conducted if required to assist a vessel in distress, as prescribed by the international law of the sea, but that SAR is not the initial purpose of the agency’s deployment at sea. The agency’s programme of work for 2020-2022 expresses no aims for search and rescue capacity, in contrast to, for instance, deportation targets (250 charter flight and 2,700 scheduled return operations). In fact, by 2022, “[a]ccording to the volume of needs of Member States, the Agency will further develop the concept for returns by sea.” There seems to be no doubt as to the mandate of the agency and where its capacities shall and shall not be deployed.
The agency’s most recent mandate, dating from 2019, incorporates the rules on surveillance of the external sea borders (discussed at length in the first part of this series). It does not provide practical guidance enabling a rapid response to vessels in distress at sea. Frontex is a facilitator between member states, some of whom are not even signatories of the same version of the International Convention on the Safety of Life at Sea, namely – and significantly – Malta and Italy.
The whole point of the rules on the surveillance of the external sea borders is to enhance monitoring at sea, detect vessels attempting to undertake unauthorised border crossings and, only if it is established that the vessel is in distress (i.e. not in a state of ‘alert’ or ‘uncertainty’), to inform the International Maritime Coordination Centre which is then charged with informing the National Maritime Coordination Centre (NMCC). The NMCC is the entity that decides which vessel, equipped with SAR capabilities in the closest area, is required to intervene.
During operations in territorial waters, the ‘participating unit’ should inform the International Maritime Coordination Centre (IMCC) and act as instructed by the IMCC, if applicable. During operations on the high seas and in the contiguous zones, Frontex’s presence does not seem to imply any liability. Although ensuring respect for the principle of non-refoulement is a responsibility of the “participating units”, the ultimate decision to disembark in, or to alter the route towards a non-EU state, lies with the host member state, which should then instruct participating units, as per Article 7(9) of the Regulation:
“Where, in the cases referred to in paragraph 7 or 8, the suspicions regarding the nationality of the vessel prove to be founded, that host Member State or that participating Member State may authorise one or more of the measures laid down in paragraphs 1 and 2. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre.”
The lack of clarity on key matters provides an additional shield should unpleasant accusations arise. For instance, the Regulation does not clarify what evidence should count as confirmation that a suspicion is founded. Similarly, no specific guidance is given on how to ensure that disembarkation in a third country is made with full respect of the principle of non-refoulement. Article 4(3) the Regulation posits that:
“…the participating units shall, without prejudice to Article 3, use all means to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand or may reasonably be presumed to understand and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement.”
EU agencies are a means to enhance technical cooperation between sovereign member states. When it comes to infringing on that sovereignty, the balance to be found is very fine and translates into a number of legal shields that make clear the ultimate responsibility of the conduct of an operation lies with member states, especially those hosting an operation. Thus, limiting Frontex’s responsibility during joint operations may be considered as a flagship example of EU cooperation aiming to enhance mutualisation and cooperation whilst maintaining states’ sovereignty, in particular in a domain such as justice and home affairs, which – although it fall within the remit of EU law – is still very much a matter of national power.
Other legal shields are more questionable, given that they fail to provide much-needed clarification in important situations: who comprises the “participating units”? What exactly are the elements meant to confirm that a vessel is “suspicious”?
The absence of guidance on how to act with full compliance of the principle of non-refoulement means that interpretation is left to the discretion of the participating units. It is all the more surprising that practical guidance is often given so everyone is clear on what the law provides, as in the case of the various appendixes to the Schengen Borders Code and the applicable visa procedures and forms to be used. It may be argued that clarifying appropriate practices and procedures should come at a later stage – for example, if issues are raised via internal procedures or court cases. It is not the purpose of this article to develop on what has already be demonstrated at length by reports and academic research i.e. the structural impunity of Frontex, the lack of accountability avenues and the ineffectiveness of internal complaint mechanisms. Current maritime operation sadly epitomise this situation, in particular the Aegean case in 2020.
It is no doubt difficult to maintain a practical balance between communitarianism and federalism on the one hand, and availing a strategic actor of any responsibility on the other. This is all the more problematic when this very actor has seen its influence grow massively since its establishment, including with the acquisition of executive competencies, as is the case with Frontex. The “technical agency” label is not reflective of the genuine influence and role of the agency in informing and, in fact, influencing EU’s border management both in law and in practice. Nonetheless, legal shields are maintained as a way of disguising the politics driving the agency.
Looking at other domains where the agency is deployed, it seems that the shield that prevents Frontex from stepping in on member states’ SAR competences may be interpreted as a political shield translated in a legal framework.
Until 2011, for instance, Frontex was not able to initiate joint operations and its role was strictly limited to that of a coordinator of operations initiated by the host member state(s). Still, in 2007, the Council of the EU and the European Parliament decided to amend Frontex’s mandate to allow for the deployment of the Rapid Border Intervention Teams (RABITs) to provide rapid technical and operational assistance to member states requesting it in particularly challenging border management contexts. In such situations:
“Frontex determines the composition of the teams, whose members come from the national reserve, and decides on their deployment” within a maximum of five days.
Even if the reaction capacities ought to be quicker in life-saving contexts, this example suggests that the EU institutions and member states, when faced with a suitably urgent situation, can agree to extend the competences of the agency, even where they impinge further upon national sovereignty.
Thanks to the unabated support of EU institutions, who have consistently voted in favour of the reinforcement of the agency’s technical, human and financial capacities since 2005, Frontex has gained an unprecedented monitoring capacity at the EU’s external sea borders.
In 2013, the agency was tasked with the administration of EUROSUR, the European Border Surveillance System. One of its objectives is to “protect and save lives at the external borders by diminishing considerably the unacceptable death toll of migrants at sea”. Since 2017, Frontex has developed and implemented Multipurpose Aerial Surveillance (MAS) as part of the ‘Eurosur Fusion Services’, “giving the agency, for the first time, real-time surveillance capability” – an unprecedented capacity to monitor the situation at sea.
Frontex is able to detect vessels in the “pre-frontier” area, a neologism created to encompass international waters, contiguous zones but also the territorial waters of non-EU countries – essentially, anywhere beyond the territorial waters of EU member states. Information released by the Frontex Files investigation has revealed publicly the extent of the agency’s current and prospective monitoring capacities, thanks to the support of flagship technology provided by leading industrial companies. Frontex’s ability to undertake situational awareness (another key term in the agency’s vocabulary, and which is best-translated as “surveillance”) has never been greater.
As a hub for data collection, Frontex also stands as the one and only agency mandated to consolidate this data, assess and analyse the ‘risks’ identified at the EU’s external borders. As such, it is undeniable that Frontex has rapidly turned from merely consolidating information to a significant influence on the EU’s border management policy. In 2018 the agency launched its first maritime risk analysis network, the MIC-RAN (Maritime Intelligence Community – Risk Analysis Network), comprising member states with a maritime border, the European Commission, Frontex itself, and the agencies on fisheries (EFCA), maritime safety (EMSA) and police cooperation (Europol). It should be stressed here that search and rescue is not part of the EMSA’s mandate.
A Schiebel drone operated by the European Maritime Safety Agency (EMSA). Image: EMSA
If Frontex’s reports are to be taken at their word, its situational awareness capabilities have a significant impact. In particular:
“…the Maritime Simulation Module Service can provide a prediction of a vessel’s position in a given time frame using also the environmental layer as the input data. In addition to that, over the course of 2017 Frontex implemented multipurpose surveillance activities, referring to the aforementioned Maritime Aerial Surveillance concept, by providing a real time surveillance data streaming to Frontex headquarters and requesting [member states] and Agencies (in 2017 EFCA). All these services in the maritime domain contribute to providing vital support especially in the context of SAR operations for saving lives at sea.” [emphasis added]
The document further stresses that:
“In October 2016, HUMINT indicated a possible departure in the coast of Libya. A Coastal Monitor Service was activated and the area had been monitored for several weeks. During the monitoring period multiple analytical reports and warnings were issued and shared with the ITA and MLT NCCs and EUNAVFOR MED Operation SOPHIA. The knowledge shared on the imminent departures from the Libya coast, contributed to saving lives at sea, improving reaction capabilities and gaining more knowledge on modus operandi of smugglers.” [emphasis added]
What this document omits to mention is that Libya had authorised the deployment of the Eurosur system over its territorial waters as early as May 2012 as part of the EUBAM operations.
This narrative contrasts with NGO reports denouncing pull-back operations (to Libya) before and after 2016. It is nonetheless illustrative of the mindset that seems to prevail across Frontex’s teams. Irrespective of the obligations deriving from the rules on external sea border surveillance that apply to situations when intercepted or recued migrants are about to be “disembarked, forced to enter, conducted to or otherwise handed over to the authorities of a third country,” there seems to be no contradiction for Frontex between identifying migrants leaving Libya and sharing information with the so-called Libyan coast guards on the one hand, and the breach of the right to leave any country on the other. Nor does Frontex seem to see a contradiction in providing information that results in the interception of people by a “coast guard” under whose authority they may face arbitrary detention, torture, slavery and rape, amongst other abuses.
Clearly, the agency’s risk analyses do not take into account the risks of inhumane and degrading treatment in Libya as an element that may condition the subsequent planning of joint maritime operations, as can be seen in the 2020-2022 Programme of Work. This document, grounded in the agency’s risk analyses, makes no reference to the situation in Libya:
“The Multipurpose Maritime Activities (MMA) are composed of the joint maritime operations implemented at the Eastern, Central and Western Mediterranean regions as well as the Atlantic Ocean according to risk analysis in order to provide increased technical and operational assistance to the host MS [member state] national authorities at the external sea borders to control illegal immigration flows, to tackle cross border crime and to enhance European cooperation on coast guard functions.”
Article 4(2) of Regulation 656/2014 states:
“Intercepted or rescued persons shall not be disembarked, forced to enter, conducted to or otherwise handed over to the authorities of a third country when the host Member State or the participating Member States are aware or ought to be aware that that third country engages in practices as described in paragraph 1.” [Emphasis added]
Such practices include those to which people returned to Libya are subjected. Moreover, before such an interception and disembarkation, the responsible unit must (paragraph 3):
“…use all means to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand or may reasonably be presumed to understand and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement.”
Frontex’s former Fundamental Rights Officer (FRO) observed a “lack of clarity and absence of clear methods to assess personal circumstances of intercepted or rescued persons to be disembarked, forced to enter, conducted or handed over to authorities of a third country,” as well as insufficient information needed to identify and refer those with international protection needs, or otherwise in a vulnerable situation.
Moreover, they noted that assessments of the general situation in non-EU countries “did not meet the basic requirements established in Regulation 656/2014 to justify that any disembarkation will not amount to potential violation on fundamental rights, and in particular the principle of non-refoulement”. In 2019, the FRO recommended a review of whether Libya could really be considered a place of safety according to the International Convention on Maritime Search and Rescue, recalling the requirements of Article 4 of Regulation 656/2014 and suggesting that the disembarkation of anyone in Libya should be prohibited.
While the agency has an influence over where joint maritime operations should be deployed, it is also quite clear that its approach and mandate are centred on an interpretation of border management in which SAR constitutes a derivative of the core tasks of the agency, and only then if the vessel is deemed ‘in distress’, a notion left undefined in the agency’s own legal basis, but outlined restrictively in Article 2(e) of Regulation 656/2014.
During a hearing before the European Parliament’s civil liberties committee (LIBE) in December 2020, Frontex’s executive director was keen to emphasise a distinction in Regulation 656/2014 between situations of rescue, and situations of interception. Leggeri’s comments about “interception” imply that if the host state of a joint operation does not define an incident in which an unseaworthy vessel approaches national waters as a rescue situation, the agency and host state can legitimately “intercept” that vessel and prevent it reaching EU territory.
In an internal Frontex email from March 2021, published by the website EUobserver, the Danish crew involved in the joint maritime operation explicitly refers to the “rescue” of individuals at sea:
“On 02.03.2020 around 05:25 hrs a migrants’ rubber boat was observed and intercepted by the Danish [crew]…33 migrants were rescued…”
The email goes on to explain that the Hellenic Coast Guard liaison officer:
“informed the crew about an order from his authority to transfer the migrants back to the rubber boat and escort/transport them into [Turkish] territorial waters (TTW)”.
The order was cancelled after the commander of the Danish vessel informed the Danish national official at the international coordination centre (ICC), who then forwarded the information to the Hellenic Coast Guard. The email says that “a new order was given to bring the migrants to Kos Harbour and hand them over to HCG.”
According to EUobserver, Leggeri told the LIBE committee that this as an isolated incident, a “misunderstanding”. The website also cites a 25-page letter of the Greek government which “describes how its border operations along Turkey are designed to keep people from entering the country to claim asylum.”
These word games – a rhetorical labyrinth where escapism counts as the one and only exit strategy for the agency whenever confronted with obvious contradictions in terms – are another way in which it is able to shield itself from responsibility. A vessel in distress? No, a suspicious vessel to be intercepted. Handing over migrants to coast guards from a third country in breach of the non-refoulement principle? A regrettable misunderstanding. Frontex seems to be endowed with significant political support to the extent that the word of the agency not only defines what constitutes a risk at the external border, but also seems to be sufficient to do away with human rights violations.
At sea as well as on other fronts, Frontex is a pro-active player in the EU institutions’ vast efforts to prevent the entry of undesirable migrants on its territory. Bilateral agreements between member states and coastal non-EU states have often provided the legal basis for the deployment of operations, for example between Spain and Senegal. More recently, soft law documents such as the Italy-Libya Memorandum of Understanding (MoU) signed in 2017 or the EU-Turkey statement signed in 2016 have played a central role.
Irrespective of the legal nature or the binding force of such documents, Regulation 656/2014 applies. In theory, the safeguards and the framework provided for in the Regulation should ensure that some risks of push-back are avoided. However, incidents such as those documented in the Aegean in 2020 indicate otherwise. As pointed out since the agency’s very first maritime operations, the human rights situation in the country of disembarkation seems to be deliberately left in a blind spot.
The way in which Frontex’s annual reports fail to address a number of questions on the conduct of operations at sea is striking. For instance, Joint Action Day Adria, launched in May 2019 at the Adriatic/Ionian Sea border and at some land borders in the region, was coordinated by Frontex and co-led by France, Croatia and Italy. The “operational results” shared for this operation mention that 169 migrants were apprehended and 166 were refused entry. No reference is made to Regulation 656/2014, even less to measures to ensure whether intercepted migrants expressed fears of return.
With regard to operations beyond EU’s borders, it seems that cooperation with non-EU countries is a means for sidestepping the minor responsibility the agency is meant to share with member states during joint maritime operations. The mere location of an apprehension determines the standards by which the lives of migrants and the respect for international human rights law are appraised.
As long as migrants are intercepted in contiguous zones or international waters, the sole responsibility lies with member states. In fact, if cooperation with the third country is well-coordinated enough, based on the effective deployment of surveillance technology over the third country’s territorial waters (the “pre-frontier area”), no joint operation is even needed: coast guards in non-EU states can simply intercept migrants thanks to the information they obtain with EU-funded technology deployed at their sea border, as in Libya.
According to a document recently obtained by Statewatch, the EU Border Assistance Mission in Libya (EUBAM Libya) wants to continue its support for the Libyan coast guard agencies that intercepted almost 3,000 more people at sea in 2020 than in 2019. These activities, involving the gathering and transmission of surveillance data that aids in pullbacks, clearly demonstrates Frontex’s agency and power of action, decision, and the heavy impact that such decisions have on human lives. May such elements be sufficient to demonstrate the agency’s de facto responsibility and therefore the blatant shortcomings in its mandate regarding its accountability?, This aspect does not seem to have been conclusively addressed by legal experts so far, although ongoing cases pending before the European Court of Human Rights and the European Court of Auditors may herald landmark rulings for a practice that has been going on since at least 2004. Whether it applies to Frontex or to the EU’s external action at large, one of the elements at stake has to do with establishing a ‘jurisdictional link’, as stressed by Professor Moreno-Lax, demonstrating the influence, even by proxy, of an EU entity in a situation happening de facto outside of the EU’s territory.[a]
“…further pave the way for the European Border and Coast Guard (EBCG) to work in a more proactive way in order to predict and prevent challenging situations from emerging at the external borders.”
It has often been pointed out that this strategy has resulted in the funding of programmes, deployment of national and EU Immigration Liaison Officers and, eventually, actions in the pre-frontier area where prevention of unauthorised entry happens outside EU territory. This translates as the prevention of exit, a breach of international human rights law as per the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights – not to mention other potential rights breaches and abuses that might be carried out in the name of preventing human movement.
The impact and influence of risk analyses, and the methodology used for them, on EU border management and migration policies has been largely underreported. However, they mark the junction between Frontex’s role as a gatekeeper of the EU’s external border and the agency’s role as a facilitator of the externalisation of border control and migration management policies.
Since the agency’s establishment, 20 working arrangements between Frontex and the competent border management authorities in non-EU countries and regions have been signed. These working arrangements have laid the ground for the signature of status agreements between the EU and the authorities of several of these countries on Frontex activities in their territories. So far, such agreements have been signed under the mandate of the 2016 Regulation, with Balkan states that share a border with an EU state. They will serve as a template for future agreements under the 2019 Regulation, which can be made with any non-EU state, even if they do not share a border with the EU. The first operational risk analysis for a Frontex joint operation in a non-EU state was launched for the agency’s 2019 deployment in Albania.
Countries across the Mediterranean may now engage in such operational risk analyses provided a status agreement is signed. It is indeed a matter of priority for the European Commission, as stressed in some suggested amendments to be included in the agency’s multi-annual programme of work 2021-2024:
“As regards the Strategic Action Areas of the Multiannual Programming, the Commission propose[s] to the Agency to add under point 2.2.5. (Reinforce the external dimension aimed at multiplying Frontex operational impact through cooperation with the European Commission and EEAS as well as through partnerships with Member States, EU entities, Third Countries and International Organisations) a new “focus area” on strengthening operational cooperation, including joint operational activities with third countries being it the most prominent form of the Agency’s cooperation with third countries.”
Particular emphasis was laid in this opinion on Morocco and Turkey – ironically, both countries that have realised in recent months and years the political purchase that acting as border guards for Europe gives them over the EU and its member states.
The unaccountability of Frontex’s operations is an issue that has been repeatedly denounced for years. The fatal consequences of the unclear chain of command at sea when rescuing boats opens ways to avoid rescue responsibilities. This must also been seen alongside the criminalisation of NGOs providing SAR at sea and the transformation of the Mediterranean into a battlefield. The increased militarisation of maritime surveillance (increased cooperation between EU Common Security & Defence Policy (CSDP) missions Frontex, in particular the EUNAVFORMED operations in the Mediterranean) has gained in strength since 2015. The terrible reality of pushbacks is not new.
The structural irresponsibility of Frontex is illustrative of broader issues concerning the legal nature of EU agencies and their operational and executive powers. But it is also emblematic of the inherent incompatibility between the EU’s border management strategy and alignment with the human rights safeguards entailed in community law. Strikingly, after years of revisions to legislation legislation on maritime interceptions and SAR responsibilities, no real debate on the main bones of contention (state responsibilities associated with disembarkation rules, a harmonised asylum system applicable to all member states) has been convened at the level of the Council of the EU or among MEPs.
The imprecise terms of the debate and of applicable frameworks at sea leave a sufficient margin of interpretation to allow for avoidance strategies at the level of member states and at the level of Frontex, in combination with an expanding externalisation agenda that shifts the ultimate responsibility of SAR to non-EU countries and “[validates] border violence”. EU institutions seem to leave humanitarian organisations and private ships no other choice but to compensate for one of the most blatant failures of EU policy of the past ten years – but the latter are then criminalised for filling that gap, a clear indicator of the underlying agenda of the Integrated Border Management “philosophy”.
To date, the EU still lacks comprehensive and harmonised rules on SAR, as stressed by the Council of Europe in a Resolution adopted in 2019.  The only common legal basis is Regulation 656/2014, applicable to an agency not designed to provide SAR and pro-actively engaged in the implementation of an agenda structured by a definition of “illegal migration” as “one of the major threats to the EU’s security,” alongside cross-border crime and terrorism (Frontex’s 2020 Annual Risk Analysis Report also refers numerous times to the notion of “migratory threat”). Even the EU’s Guidelines on Places of Refuge, adopted in 2018 by the European Maritime Safety Agency, expressly state that the document does not cover SAR.
A comment made by Professor Steve Peers in 2014 still resonates today:
“The existence of… Regulation [656/2014] is welcome, as its rules on search and rescue are valuable and its provisions on protection, disembarkation and accountability of Frontex are better than nothing at all. But the complex interplay of the provisions of this Regulation with EU asylum law has led to something of a ‘dog’s dinner’ of rules governing the asylum applications of people rescued or intercepted in the Mediterranean, and the rules on the accountability of Frontex are something of a ‘red herring’ in light of the allegations of serious misconduct in some cases by national authorities. Finally, the Commission’s continued unwillingness to bring infringement proceedings in this area (and in the face of its own documented breaches of other EU immigration and asylum law) is undermining the letter and spirit of the Charter by allowing Member States’ authorities to think that they can violate the Charter with impunity”.
Note: This analysis was edited on 3 August 2021 to include a reference to the work of Professor Moreno-Lax.
 Ibid at 7 p.21
 ‘participating units’ remains a blurred notion which is not really defined, as referred to in Part 1 of this analysis. The author’s interpretation will go by equating ‘participating units’ to Frontex, the host member states and participating member states
 “The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured”, art. 33 of the UN Convention of the Law of the Sea available at https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
 Article 4(2), Regulation 656/2014
 2019 Annual Report on the implementation of Regulation (EU) 656/2014; Joint Maritime Operations
 A much debated topic, see Steve Peers, ‘The final EU/Turkey refugee deal: a legal assessment’, EU Law Analysis, 18 March 2016, https://eulawanalysis.blogspot.com/2016/03/the-final-euturkey-refugee-deal-legal.html
 https://www.statewatch.org/analyses/2020/eu-military-mission-aids-pull-backs-to-libya-with-no-avenues-for-legal-accountability/; https://www.statewatch.org/media/documents/news/2020/apr/eu-libya-legal-complaint-finance-27-4-20.pdf
 https://concordeurope.org/2018/01/24/monitoring-eu-trust-fund-africa-publication/ ; http://www.migreurop.org/article2069.html ; https://www.europarl.europa.eu/RegData/etudes/STUD/2015/536469/IPOL_STU(2015)536469_EN.pdf
 Commission’s opinion on the Single Programming Document containing the draft multiannual programming for 2021-2023 and the draft Annual Work Programme for 2021 (‘Single Programming Document for 2021-2023’) of the European Border and Coast Guard Agency https://ec.europa.eu/transparency/regdoc/rep/3/2021/EN/C-2021-1-F1-EN-MAIN-PART-1.PDF pp.5-6
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