‘Whose Mare?’ – Rule of Law challenges in the field of European border surveillance in the Mediterranean

‘Whose Mare?’ – Rule of Law challenges in the field of European border surveillance in the Mediterranean

Leonhard den Hertog (CEPS)

This blog post is based on a paper with the same title, co-authored by Dr. Sergio Carrera (Senior Research Fellow and Head of the Justice and Home Affairs Unit at the Centre for European Policy Studies (CEPS) in Brussels) and by Dr. Leonhard den Hertog (researcher within the same unit at CEPS). The study will be available on the SOURCE and CEPS websites in February 2015.

The full version of the paper can be downloaded at the following address: http://www.ceps.eu/book/whose-mare-rule-law-challenges-field-european-border-surveillance-mediterranean

Introduction

The field of European border surveillance in the Mediterranean was abound with legal, policy and operational developments in recent times. We have witnessed the Italian Mare Nostrum operation in the Mediterranean, the discussions on European exit strategies for this operation and the resulting Frontex (EU Border Agency) Triton joint operation. The negotiations over the Regulation on Frontex sea border surveillance operations were unravelling alongside these developments and focused on the sensitive competences of Search and Rescue (SAR) and disembarkation. Moreover, the EU Maritime Security Strategy was adopted and several maritime surveillance systems are under development in Europe.

With this increasingly complexity, it is vital to understand how these developments may relate to each other and how they may transform the legal and institutional face of this field. By analysing these developments in their mutual context, it becomes evident that numerous actors and alliances are seeking authority over this field. More importantly, we present our understanding here of how EU rule of law frameworks and the post-Lisbon EU ‘politics of de-pillarisation’ have driven some of these recent developments. In responding to the question of ‘Whose Mare?’, the main argument is that these various developments driven by distinct actors and alliances diverge as to whether they can be located in- or outside EU rule of law frameworks. This in turn impacts on the essential question of how to allocate responsibility for the persons targeted by surveillance in the Mediterranean, which are often those seeking international protection. 

Recent developments: a field of struggles for authority and rule of law challenges

In response to headline-grabbing cases of deaths at sea off the island of Lampedusa, the Mare Nostrum operation was launched in October 2013 as a unilateral Italian response outside EU law. The operation was led by the Italian Navy and engaged in the interception of over 150,000 migrants in the Central Mediterranean. Its operational area stretched far beyond Italian territorial waters to include parts of the Maltese and the Libyan SAR areas. 

In the summer of 2014, the Italian government attempted to devise exit strategies for the Mare Nostrum operation at the EU level and in collaboration with other Member States. Both in Italian and European policy circles, the operation became increasingly perceived as a ‘pull factor’ for migration. The discussions over the future of the operation increasingly turned the attention to the possible role of Frontex. Initial expectations raised by inter alia former Home Affairs Commissioner Malmström that a Frontex ‘plus’ operation could ‘take over’ the Mare Nostrum operation were tempered by Frontex, invoking its limited mandate as a border control agency that would exclude SAR. By November 2014, the new Frontex joint operation Triton was launched that counted with a considerably lower budget and smaller operational area compared to Mare Nostrum. The European policy debates over the establishment of Triton however signalled the central importance of EU rule of law frameworks as drivers in the area of Schengen based and Home Affairs driven cooperation. By continuously invoking limited EU legal mandates, competences and rules, the horizon of possible European prolongations of Mare Nostrum was clearly claimed as restricted to a small scale border surveillance operation and as excluding SAR operations. This can however also be understood as evading a more fundamental political question of who actually wanted the continuation of Mare Nostrum.

Crucial to understanding the wider struggles for authority and rule of law challenges in this field were the negotiations over the Regulation (656/2014) on Frontex sea border surveillance operations, leading to its adoption in May 2014. Following a 2010 Council Decision containing guidelines on SAR and disembarkation that was successfully challenged by the European Parliament before the Court of Justice in 2012, a new Regulation had to be adopted. The negotiations over the Regulation highlighted the opposition to EU rule of law frameworks in this field, as a number of Mediterranean Member States were strongly opposed to EU rules on SAR and disembarkation. The adopted Regulation does now stipulate such a rule of law framework, albeit with several shortcomings. The scope of the Regulation is purposefully limited to Frontex sea border surveillance operations, thereby excluding unilateral Member State activities. The position of Italy in this negotiation process was especially insightful as it fiercely opposed this EU rule of law framework on SAR whereas at the same time carrying out a high profile operation with a clearly claimed SAR focus. It signals the difficult road to more EU rule of law frameworks in this Schengen based and Home Affairs driven field of competence and authority struggles.       

Adding further complexity to this field, the General Affairs Council adopted the EU Maritime Security Strategy (MSS) in June 2014 and a corresponding Action Plan in December 2014. This strategy prioritises maritime surveillance, highlights the importance of border security and classifies ‘illegal migration’ under ‘risks and threats’. The MSS proposes a ‘cross-sectoral’ approach, with ‘civil-military’ cooperation and ‘dual use’ funding at its heart. This MSS is driven forward by the Defence, Foreign and Maritime Affairs policy making communities, at EU level represented by respectively the European Defence Agency (EDA), the European External Action Service (EEAS) and Commission Directorate-General Maritime Affairs (‘MARE’). Much in contrast with the Schengen based and Home Affairs driven approaches that are built around legal mandates and competences, the MSS approach seeks exactly to transcend these legal boundaries. It therefore also represents an approach situated outside the EU rule of law frameworks that have gradually come to accompany the civilian Schengen based and Home Affairs driven cooperation in the EU. Moreover, it has been negotiated within the ‘Friends of the Presidency’ group of the Council, which is an informal, cross-sectoral, ad hoc and Presidency-driven Council group. Due to its low level of formalisation and institutionalisation, the transparency and accountability of its work is meagre.  

The struggles for authority come most visibly and concretely to the forefront in the competition between different maritime surveillance networks developed in the EU. We have witnessed the becoming operational of the Home Affairs driven and Frontex developed ‘EUROSUR’ network, the Navy driven and EDA developed ‘MARSUR’ network, as well as the MSS long term goal of establishing a ‘cross-sectoral’ Common Information Sharing Environment (CISE) surveillance network by 2020. As all networks claim to become the ultimate and exclusive ‘system of the systems’, they not only replicate efforts but also present rule of law challenges. These relate inter alia to the emphasis of CISE on multipurpose data exchange, dual use funding and its development outside the involvement of the Union legislature.

At a critical junction: Actors inside and outside EU rule of law

We conclude that this field is marked by increasing struggles for authority taking European cooperation in this field beyond the slowly and painfully established EU rule of law frameworks of the Schengen based cooperation. This Schengen based and Home Affairs driven cooperation on border surveillance was strongly rooted in informal ‘clubs’ of security professionals, but has gradually endowed itself with more EU rule of law frameworks in a broader process of institutionalisation and formalisation. The adoption of the Schengen Borders Code and of the Regulation on Frontex sea border surveillance operations are prime examples of this process. These rule of law frameworks do lay down some ‘red’ lines and may facilitate the allocation of responsibility and liability in cases of human rights breaches, however imperfect they may be and slow and painful their establishment has been.

However, in building the civilian law enforcement Home Affairs cooperation in this field since the 1990s, other Defence, Foreign and Maritime Affairs actors have been effectively sidelined in this process. Exactly these actors have now renewed their attempts at seeking venues and networks of cooperation in this field. The development of the ‘cross-sectoral’ MSS in the ‘Friends of the Presidency’ Group, where Commission DG Home Affairs did not have a leading role, is the prime example of this. We argue that these renewed attempts of seeking authority are possible due to the ‘politics of de-pillarisation’ in a post-Lisbon EU where the field of European border surveillance has been opened up to a wider range of actors. Moreover, the establishment of the EEAS after the Lisbon Treaty as a body in between the different institutions that combines civilian and military elements has been crucial in forging a ‘civil-military’ approach.

While support in public and policy circles for more such ‘cross-sectoral’ cooperation is growing, we think it is important to take a step back and reflect on the institutional and legal consequences of such a shift in the field of European border surveillance. There is a central rule of law challenge, namely that this cooperation will take us back to the days of ‘experimental governance’ or ‘laboratory’ approaches that we have witnessed in this field in the earlier days of Schengen based cooperation. The painful and long process of adopting several rule of law frameworks in this area with the involvement of the full Union legislature – such as the EUROSUR Regulation and the Regulation on Frontex sea border surveillance operations – would have been in vain if other actors and alliances attempt to work outside these frameworks in the same field. Moreover, the increasing involvement of military actors poses questions as to their judicial accountability in an EU where the Court of Justice does not have jurisdiction over the actions under the Common Foreign and Security Policy (CFSP). As rule of law frameworks that include public, parliamentary, and judicial accountability serve the allocation of responsibility amongst actors, in this case for those persons often seeking international protection, any cooperation taking us beyond these frameworks deserves scrutiny.    

Recommendations

In the forthcoming paper we put forward several recommendations aiming to reinforce the rule of law frameworks in this field. We list them here briefly, but they will be available in more detail in our paper published later in February 2015:

  • More scrutiny by the European Parliament of ongoing operations and decision-making.
  • The monitoring of rule of law compliance under the Regulation on Frontex sea border surveillance operations by the European Ombudsman, the Frontex Consultative Forum and the Fundamental Rights Officer, considering the ongoing Triton joint operation as a test case for the application of the Regulation.
  • A new post to coordinate monitoring: the EU Border Monitor.
  • A Court of Auditors assessment of the added value and mixing of funding sources, especially under the ‘dual use’ funding approach that accompanies the MSS.
  • The establishment of a horizontal European border surveillance rule of law strategy by the Commissioner responsible for horizontal rule of law, Mr. Timmermans.
  • The extension of the scope of the Regulation on Frontex sea border surveillance operations, to cover Member State surveillance activities as well.
  • More attention for the shipmasters’ and fishermen’s obligations to render assistance, also including the explicit de-criminalisation of that assistance and the development of a financial compensation scheme for those rendering assistance that face high economic losses as a result of Member State delays in admitting persons for disembarkation. 
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