Operational cooperation for the surveillance of external borders and access to protection

I would like to start by thanking my colleague, Cecilia Wikström, and the Director of the Red Cross EU office, Mr Leon Prop, for their invitation to take part on such an important debate, especially after the tragic events of Lampedusa, where hundreds of migrants died when their boats sank as they tried to cross the Mediterranean. I would like to highlight 4 main points:

1. The establishment of an Area of Freedom, Security and Justice

The establishment of an Area of Freedom, Security and Justice requires a common and integrated approach on border management, which includes not only the existence of an efficient control of the external borders (which is a condition sine qua non for the existence of freedom of movement within this area), but also the cooperation with third countries.

However, the need to protect our borders and to have an efficient system of border surveillance is not detrimental to the fundamental rights of migrants arriving at European borders. The right to life and respect for the principle of non-refoulement are core fundamental rights and the European Union and its Member States have to ensure their full implementation and respect.

I welcome the position paper on the Right to access international protection, presented by the Red Cross, as well as their recommendations. I fully support their call upon States 'to ensure that their national procedures at international borders, especially those that might result in denial of access to international protection, deportation or interdiction of persons, include adequate safeguards to guarantee the dignity and safety of all migrants and to grant migrants appropriate international protection and ensure their access to relevant services'.

2. The role of Frontex on Maritime Surveillance operations

Operational support to EU Member States in the management of external EU borders is offered through Frontex, which has coordinated operations among several Member States at the external eastern and southern borders of the EU since 2005.  Frontex promotes this integrated approach to border management through the exchange of information and cooperation between Member States, assisting them with training, the development of surveillance systems and risk analysis, as well as cooperation and technical assistance in third countries.

The coordinated joint operations can take place at different types of external borders and are carried out under the command of the host State. Other EU and Schengen associated countries provide human and material resources, which they deploy to the operational area. An important part of Frontex operations are those carried out at sea (having already coordinated almost 50 large joint operations at sea), which consume an important share of the overall Frontex budget for operations (59% of the total budget spent in 2011 on joint operations).

However, some criticism has been made on the framework of Frontex operations, raising some open questions regarding search and rescue situations. In response, the Council of the EU adopted the Decision 2010/252/EU in order to provide guidance on the surveillance of sea borders in the context of Frontex joint operations.

This Decision has been annulled in its entirety by the Court(while maintaining its effects until it is replaced, within a reasonable period), recalling that the adoption of such rules on the conferral of powers on border guards entails political choices which fall within the responsibility of the European Union legislature. Moreover, provisions on conferring powers of public authority on border Guards means that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European legislature is required.

I could not agree more with your recommendation to support a fundamental rights' culture within Fontex. Frontex operations and activities should always be in line with fundamental rights standards and all acts committed during the operations that Frontex is coordinating, should be accountable. For that, it is necessary to have more transparency and an independent and effective monitoring and complaint mechanisms in place.

3. Call for EU action: saving lives and more solidarity

The movement of refugees and migrants, risking their lives aboard un-seaworthy boats, across the Mediterranean Sea towards Europe, in an attempt to flee conflict, persecution, or just to improve their lives and economic opportunities, is not a new phenomenon but in the last years have become a serious challenge for the EU.

The number of persons crossing Europe's southern sea borders amounted to around 10.000 people in 2010, increased to over 70.000 people in 2011, to drop again to around 20.000 people in 2012. As regards 2013, UNHCR estimates that over 8.000 people reached Italy and Malta during the first six months of the year. Most of these crossings were organised by smugglers and involve the use of small boats which are often overcrowded and unseaworthy.

However, there is a clear discrepancy between the expectations of migrants upon their decision to start the journey and the realities they face during the trip and upon arrival at their first European destination and, unfortunately, some do not survive the trip. UNHCR estimates that in 2011 alone, over 1500 people died.

The Member States located at the southern sea borders of Europe, such as Greece, Italy, Malta and Spain, are the most confronted with the frequent arrivals by sea of refugees and asylum-seekers within mixed migratory movements.

Although the phenomenon is not widespread through the EU, it affects the EU as a whole. This situation resulted in prompt calls for more solidarity and sustainable responses from the EU to support those countries most affected by irregular arrivals by sea. Responsibility sharing and solidarity became indispensable factors to ensure that the fundamental rights of those persons are fully respected in the EU.

While the primary responsibility for ensuring that adequate asylum systems and border management systems are in place lies with the States, the TFEU as well as the Stockholm Programme requires an increased level of solidarity and fair responsibility sharing between the EU Institutions, as well as the Member States in the development of the Common European Asylum System and the gradual establishment of an integrated management system for external borders.

The recent tragic incidents of Lampedusa, in which hundreds of lives have been lost despite the best efforts of the Italian Coast Guard and the Armed Forces of Malta to aid the vessels in distress, illustrates clearly that the existing instruments and mechanisms have to be strengthened further in order to be able to respond more effectively and to prevent deaths at sea.

However, if by one side the Italian government, which has called for the EU to adopt an action plan to deal with the issue, and the Prime Minister of Malta, which called the Mediterranean a "graveyard", have both asked on the European Union to act, by other side these two Member States, together with France, Spain, Greece and Cyprus are blocking the 'proposal for a Regulation establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union', which contains concrete rules on the search and rescue of migrants, for the only reason that they refuse to negotiate any detailed EU rules which concern saving migrants' lives.

4. EU rules versus International rules on the search and rescue of migrants

The Draft Regulation, which is now on the table, incorporates within a single legal instrument existing provisions of EU and International law, aiming to overcome the different interpretations of international law adopted by Member States and their diverging practices, in order to bring a greater legal clarity and to ensure the efficiency of sea operations coordinated by Frontex.

The European Court of Justice decision in case C-355/10, among other things, confirmed that the EU is competent to legislate in the field covered by Council Decision 2010/252. It is also clear that the scope of the proposal does not go beyond the current 2010/252 Decision and that the additional binding elements are in line with the European Court of Justice case-law.

However, 6 Member States are blocking this proposal, because it contains concrete EU rules on the search and rescue and disembarkation of migrants, even if it's only limited to cases where Frontex coordinates Member States' maritime surveillance. Those rules (Article 9 - search and rescue; Article 10 - disembarkation) are, in fact, the most important rules on the proposal as regards saving migrants' lives and the protection of their fundamental rights.

I have also serious doubts regarding the arguments used by those Member States, as support for their position:

- Lack of competence from the EU over issues relating to search and rescue or disembarkation.

The Treaties give to the EU the power to develop a common immigration policy. It would be a little bit strange, if the EU has the competence to adopt rules on border controls, namely the rules governing the interception of migrants, but cannot address the question of what to do with those migrants once they are under the custody of the border guards.

It's true that there is nothing in the Treaties which gives the EU power to regulate searches and rescues in a general way. However, the objective of the Draft Regulation is not that one, it only intends to regulate searches and rescues in the context of the EU's border controls policy and only where maritime surveillance was coordinated by Frontex, establishing a general obligation to assist boats in distress and to coordinate action in emergency situations.

Besides that, it would be absurd to believe that the EU would not have the power to set conditions before Frontex, an European Agency funded entirely by the EU budget, which assists Member States with maritime surveillance.

- Incompatibility with international law

The draftRegulation makes explicit reference that it must be applied in consistence with international law.  This is the same terminology that has been accepted by Member States on EU's legislation on irregular migration or border controls. Thus, there is no incompatibility, but it is merely a question of political will.

In what concerns the possibility of overlapping, it would not be the first time that the EU would adopt legislation which overlaps with international law, with the aim to provide for the detailed and effective implementation of the relevant international law obligations.

Conclusion

Legally, I don't see how these Member States can sustain their position.

Morally, I have even bigger doubts, because it would be impossible to defend a position which would confirm its share of responsibility in not taking concrete measures to contribute for the reduction of the number of migrants dying on the Mediterranean Sea.

Finally, I would like to highlight the enormous contribute that Civil Society Organisations, such as Red Cross, can give to the elaboration, implementation and evaluation of any European policies, especially in such an important and sensitive area as this one. Their practical experience will definitely help us to create the necessary instruments to ensure full respect of European Refugee and Human rights standards at European borders and beyond, in order to avoid human suffering and numerous deaths along EU borders.