Since the last meeting between the Italian Minister of the Interior, Angelino Alfano, and Cecilia Malmström, the European Commissioner for Home Affairs, on August 28th, there has been a lot of speculation on the new European programme called FRONTEX Plus. Named after the programme that is still running, FRONTEX, the very issue at stake is the necessity to face the highly problematic phenomenon of immigration through the Mediterranean Sea. This issue, became even more troublesome, in the light of the proclaimed suspension of the Italian-led programme ‘Mare Nostrum’ which in the last year saved thousands of migrants. Although being still under debate; there is a question that should not be evaded: will the highly anticipated FRONTEX Plus ever be successful in its double mission of saving lives and protect the external border of the European Union?

Pending news from Brussels in November, when the programme should be launched, what we can do is to look at FRONTEX as it is now, and in particular at its critical aspects. This exercise could be useful to understand the direction that the new programme should pursue. What is not to be forgotten are the reasons that were behind its first launch: the necessity to protect the external border of the European Union, that got rid of its internal borders in the name of free movements of people, services and capitals. This freedom is of course not for free, and the European Union needs to control its external border: that is why FRONTEX was launched.[1] To date, 10 years after its establishment, there are at least three elements that need further analysis.

The first big issue is the one of responsibility. Born as an independent agency, a platform to ease the cooperation among member states and non-EU/Schengen members; it is in the very same regulation that established the Agency that we can see the seeds of future contradictions. As noted by Human Rights Watch in a report from 2011, paragraph 14 affirms and grants ‘full autonomy and independence’, ‘legal personality’ and other implementing powers to the agency itself; on the other hand paragraph 16 reads that ‘responsibility for the control and surveillance of the borders lies with the member States’. This ambiguity echoes in the lack of clear responsibility, and was defined as the biggest challenge for the agency by the same Executive Director of FRONTEX during an audition in front of the LIBE Committee on October 2012. In essence, who is to hold accountable in case of plaintiffs? This question needs a straight answer: the single member State, the agency, or both?[2]

The second issue is the one of the context of FRONTEX in the Mediterranean, in particular in the aftermath of the many regime changes occurred recently. It goes without saying that non-territorial seas are more difficult to be patrolled, and also that the risks of each mission are so much higher than those of equal entity on territorial sea; let alone on the land. This circumstances cannot be overlooked. Moreover, the Union is, once again, re-acting on the international stage rather than acting. This tendency, which has become unfortunately some sort of a feature, is crystal-clear in this situation. Europe had no common strategy to respond to events in Libya, and the same goes with Syria. In each of these cases, the complex framework of the Common Foreign and Security Policy (CFSP), and more specifically its military side, the Common Security and Defence Policy (CSDP) failed. The incoherent and uncoordinated actions that took place, even by the hand of some member States (France and UK), ended up in excluding the European Union as a whole from the decision making process. No strategy of action, and more strikingly, no common exit strategy was ever figured out. Today’s chaos in the Mediterranean Sea is the direct consequences of these historical mistakes. The failing of FRONTEX in this European hot spot is just the most evident of them.

Finally, the issue of the nature of FRONTEX. The change occurred with the Rapid Border Intervention Teams (RABIT) Regulation in 2007 that allowed the possibility to bear arms, transformed the nature of this programme into ‘quasi-military’.[3] Is this nature suitable dealing with a matter with such relevance in terms of human rights? It is very likely that a more defined nature – be it civilian or military – could help not only in the actual functioning of the mission, but also to go beyond shady situations and ill-treatments occurred in many sites (especially Greece).[4]

What is really needed is not only another European programme to wink at some member state with a clear conscience; but rather an effective and clear strategy. To go beyond ‘buffer solutions’ is and should be then the main goal of the European Union. To handle normal flows of migrants in the sea is one thing; a whole different issue is to deal with numbers that are clearly the result of extraordinary conditions, as it is the case of Libya, where a regime has collapsed after decades, and a civil war was the natural consequence of tribal hostility in a situation where the State does not exist anymore. According to official data, just in the first six months of this year, more than 60,000 peoples decided to cross the Mediterranean Sea just to land in Sicily, Apulia and Calabria. It goes without saying that Italy alone cannot handle these numbers, especially when it comes to emergency situations in high sea. On the other hand, what is just as clear, is that at the EU level there should be more attention for the greater picture. Short-termism is something that should be avoided, and Europe is already paying for it.

Given its peculiar structure, especially in foreign and security affairs, the European Union cannot act if there is no common position among all member States. This is the highly problematic environment in which all the actors involved need to move: Member States, EU institutions and FRONTEX Plus itself.

Finally there is another consideration that needs to be discussed. The creation of the Schengen Area was accepted in its internal consequences with no particular problems. Member States got rid of their internal borders, and thanks to that, today it is possible to cross a border almost unwittingly, if it was not for some road signs. So, at least internally, Europe is really a whole. Unfortunately, this consideration is not true for the external border. When a ship arrives in Sicily the responsibility, in accordance also to European laws on asylum, is all on Italy. The same happens when they land in Greece, Spain and Malta, but the responsibility for this situation, that is the lack of a shared external border, is not only a burden that weights on EU’s shoulder. Member States, especially those hit harder by migration, entangled themselves very often on this issue; as if the problem could be solved just on their own terms and the solution was at their fingertips. Quite obviously migration is a powerful issue in every political arena. This facade however is illusory. For many reasons, no single State can handle migration alone, especially when it has to deal with this kind of numbers.

However, what is needed for the European Union is not just the pooling of resources but also the sharing of responsibilities, and FRONTEX Plus can be a good ‘yard-stick’ in the assessment of this trajectory.

 

MARCO QUAGLIA

Master of Arts in International Relations (LUISS “Guido Carli”)

 

 


[1]European Council’s Regulation, 2007/2004.

[2]Baldaccini, A., 2010. Extraterritorial Border Controls in the EU: The Role of Frontex in Operations at Sea. In B. Ryan & V. Mitsilegas (eds.), Extraterritorial Immigration Control: Legal Challenges (“Immigration and Asylum Law and Policy in Europe” – Vol. 21). Leiden, The Netherlands: Martinus Nijhoff Publishers.

[3]European Council’s Regulation, 863/2007.

[4]Human Rights Watch, 2011. EU’s Dirty Hands.