On 21 September ECRE and Amnesty International released a 30+ page joint briefing on the 24 February 2010 European Commission “Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND THE COUNCIL amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX),” COM(2010) 61 final.
The joint briefing presents detailed views on the proposal and makes numerous specific recommendations for possible amendments. I have not had time to read the full briefing closely, but here are several excerpts from the Summary:
“1. Role and responsibilities of Frontex vis-à-vis Member States – [***] Amnesty International and ECRE recommend that Frontex be subject to full accountability by the enhancement of democratic oversight of the Agency before the European Parliament, in addition to judicial oversight by the European Courts for legal protection against unlawful actions, and by effective implementation of the requirement to give access to prompt, objective and reliable information on its activities. In particular, accountability should be enhanced by providing for the following: 1) Relevant information, including risk analysis, should be transmitted to the European Parliament to enable adequate scrutiny of Frontex activities; 2) Independent observation should be enabled at the meetings of the Management Board; 3) Frontex programme of work should be subject to public consultation. [***]
2. The legal framework governing Frontex – The proposal clarifies the legal framework of Frontex operations by stating explicitly that its activities are subject to the Schengen Borders Code and should be undertaken in accordance to relevant international and EU law, obligations related to international protection and fundamental rights. Sea border surveillance activities fall within the remit of the Schengen Borders Code, even if implemented in the high seas, and as such must be conducted without prejudice of the rights of refugees and other persons demanding international protection. The Council Decision setting out rules which apply to join sea operations further clarifies that all aspects of these operations, including interception and disembarkation, are subject to international obligations arising from refugee and human rights law.
While meant to deal with Member States’ disputes over responsibility, the Council Decision also includes non-binding guidelines, which must form part of the operational plan drawn up for each Frontex operation and state modalities for disembarkation of persons intercepted or rescued. Yet, these are not detailed enough to ensure that sea operations will meet the requisite standards.
Amnesty International and ECRE recommend that the new Frontex Regulation includes an explicit requirement that the rules for interception at sea operations be formalized in the operational plan. Moreover, they should be accompanied with detailed measures to ensure that disembarkation meets the requisite standards, in particular by specifying the place of disembarkation and as regards the provision of food, shelter and medical care, as well as access to asylum and protection from refoulement.
Although the extent of the extraterritorial application of the EU acquis remains to be determined, Member States intercepting individuals beyond their territorial waters cannot operate in a legal vacuum. In addition, when border surveillance activities take place in the territorial waters of a third country, Member States and Frontex appear to attribute responsibility for any possible human rights breaches to the third country concerned. Adequate measures must also be in place to ensure that those involved in joint operations are able to guarantee refugee and human rights protections in a practical way, both when they act within a territory or territorial waters, as well as extraterritorially Amnesty International and ECRE recommend that the proposal sets out the concrete measures by which States can effectively meet their obligations, when these are engaged both territorially and extraterritorially. These should include at a minimum the following: 1) Individuals have the possibility of explaining their circumstances during a personal interview; 2) Those who wish to apply for asylum are helped to access the asylum procedure, including through interpretation and independent legal advice. International cooperation should never be construed as releasing EU Member States from fundamental rights obligations in relation to those intercepted or diverted in the territorial sea of the third state in question. [***]”
Click here for the Joint Briefing.
Click here for the Proposed Amendment to the Regulation.