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Part I
Political, legal and security challenges
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Challenges of consistency
Valeria Bonavita
Introduction: the externalization of border controls as a challenge to the consistency of the EU’s fundamental rights protection regime
In its Communication ‘A Strategy on the External Dimension of the Area of Freedom, Security and Justice’ (AFSJ), the European Commission (2005b) made geographic prioritization one of the guiding principles for initiatives in this area. While full-spectrum coordination in AFSJ matters should be concentrated on candidate and neighbouring countries of the European Union (EU), targeted cooperation in specific policy domains, such as border management, should be the rule vis-à-vis other countries.
Recent statistics show that, unlike in the last decades of the twentieth century, incoming migration flows currently transit through the territory of the EU’s neighbouring countries but originate further away (Eurostat 2014: 4–5, 7). When it comes to Africa, for example, the source of such flows lies in the sub-Saharan region.1 While the observation of such change in migratory trends did not discourage European institutions from carrying on with the pursuit of a policy of active engagement vis-à-vis the countries of the European Neighbourhood Policy (ENP) on migration and mobility, it nonetheless imposed a reconsideration of the EU approach towards the ‘neighbours of the neighbours’ in matters of migration and border controls. Whereas the ENP has been widely dealt with by scholars (see for instance Fargues 2013), little attention has been paid to the EU’s engagement towards its broader neighbourhood in this policy area. The purpose of this contribution is to explore those avenues while keeping a watchful eye on issues of consistency and ultimately legitimacy. This study is thus placed at the crossroads of two intertwined debates: on the one hand, it deals with the external dimension of the Area of Freedom, Security and Justice; on the other hand, it strives to assess the consistency – at the horizontal level at least – between the internal and the external aspects of the EU’s policies in this field. The main focus is on the quest for consistency between the internal and external dimensions of EU fundamental rights protection and the impact of the EU’s Charter of Fundamental Rights (CFR) on the external dimension of the AFSJ. The concept of horizontal consistency is herein employed according to the definition given by Tietje (1997: 213), who points out that consistency has the negative meaning of absence of contradictions, as opposed to the concept of coherence which entails the existence of positive connections and mechanisms aimed at actively avoiding inconsistencies. Coherence is a matter of degree, and therefore a relative concept, whereas consistency is a static and absolute one: concepts of law can be more or less coherent, but they cannot be more or less consistent – either they are or they are not.
This chapter seeks to assess to what extent and how the EU is currently putting in place mechanisms for the externalization of border management towards its broader neighbourhood as part of the external dimension of the AFSJ and whether such an external policy is consistent with the EU’s internal regime of fundamental rights protection. The analysis shows that the question remains open as to whether current forms of cooperation amount to a sufficient critical mass for claiming that border control responsibilities are even partially externalized towards the neighbours of the EU’s neighbours; further assessment is needed. However, the current state of affairs does not preclude looking at such forms of cooperation through the lens of policy consistency and, by implication, legitimacy. By building upon the lessons learned from the EU’s cooperation in the domain of border management with countries such as Libya, the analysis in this chapter shows that externalizing border controls through either operational arrangements or development cooperation instruments negatively affects the EU’s capacity to abide by its internally established regime of fundamental rights protection, including relevant provisions of international law. The chapter does not attempt an analysis of the EU Member States’ role in the externalization of border controls. Recent EU practices in this domain remain the sole focus of the research and the findings do not take into account national policies. The conclusions are therefore limited in scope as the Member States continue to be ultimately responsible for the operational management of the EU’s external border controls.
This chapter will first provide the reader with a definition of externalization of border controls (EBC) as transfer of responsibility towards third countries, thus leaving aside other forms of EBC such as sub-contracting or burden-shifting. While doing so, the chapter will already give a first glimpse at the impact that different forms of EBC might have on rights related to migration and asylum. Second, the contribution will investigate the EU’s cooperation with the neighbours of its neighbours in the field of border management. With this aim, two categories of instruments will be taken into account. On the one hand, the operational arrangements between EU agencies and the neighbours of the EU’s neighbours, such as those established between the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) and Mauritania, will be analysed. On the other hand, avenues of capacity-building through the EU’s development cooperation instruments will be explored. Finally, in order to limit the speculative nature of the arguments presented, the EU’s practice of EBC towards the neighbours of its neighbours will be looked at against the background of the EU’s cooperation with Libya in the fight against irregular migration. While Libya is not a neighbour of the EU’s neighbours but an ENP country, the analysis of the EU’s cooperation with Libya in the fight against irregular migration serves the purpose of this chapter for two reasons: on the one hand, Libya is a country of transit of migratory flows towards the EU’s external borders; on the other, EU–Libya bilateral cooperation represents a precedent which unmistakably points towards externalization. Analysing this cooperation allows to establish how the EU puts in place mechanisms of externalization and to point out how such patterns may be duplicated in relation to the neighbours of the European Union’s neighbours.
Definition of externalization of border controls
The concept of the externalization of border control management, which is frequently used in the discourse on asylum and migration policy, can be broken down into two main aspects: the EU’s practice of outsourcing or relocating border control procedures outside its territory (EBC as sub-contracting), and the EU’s policy of making and holding third countries de facto accountable, through a transfer of responsibilities (EBC as transfer of responsibilities), for delivering its own preferred policy outcomes concerning border controls, including anti-trafficking and management of migratory flows and ensuing consequences in relation to abidance by applicable international obligations (Slominski 2012: 24–26). This section will introduce some examples of the mechanisms characterizing these two dimensions of EBC and highlight their shortcomings.
Externalization as sub-contracting
Externalization as sub-contracting entails a practice whereby border management is not operated at the EU’s external borders but is relocated further away, usually within the territory of third countries with which the EU cooperates. When intended as sub-contracting, extraterritorialization of border management procedures can also take the form of cooperation with private entities such as, for instance, air carriers. While externalization through sub-contracting of entry-related procedures is excluded from the scope of this study due to the scarcity of such EU practice in relation to the neighbours of its neighbours, it will nonetheless be briefly dealt with for the purpose of outlining the main differences and commonalities with externalization as transfer of responsibilities.
As mentioned above, carrier sanctions are an example of cooperation with private entities which results in the sub-contracting of border control procedures. The responsibility for verifying whether or not passengers who intend to enter the EU’s territory fulfil all applicable document and visa requirements and are thus legally entitled to cross the Union’s external border inbound is delegated to transport companies. A powerful incentive for carriers is represented by the fact that, should the latter perform inadequate controls resulting in unauthorized entries, they will be subject to pecuniary fining and forced to return undocumented passengers.2 A second avenue of externalization as sub-contracting consists in exporting surveillance and identification techniques and skills to the countries of departure or transit with a view to protecting the Union’s borders through a network of Immigration Liaison Officers seconded to those countries (Council of the European Union 2004). Another example of sub-contracting is the establishment of protected entry procedures: this system allows individuals who wish to claim asylum in a EU country to approach an embassy, rather than having to risk the dangerous journey to the country itself. The embassy assesses their claims, and if they are approved the individual can travel safely to the host country.
Despite technical differences, these examples of externalization of border controls via sub-contracting mechanisms all feature a certain degree of institutionalization whereby the EU’s counterpart, be it air carriers or third countries’ border control authorities, is made formally responsible for ensuring that subjects crossing the EU’s external border are legally entitled to do so. The same degree of institutionalization cannot be observed in relation to the mechanisms of externalization as transfer of responsibility that will be analysed below and which are the ones that the European Union operates in relation to the neighbours of its neighbours. However, it is worth noting that the externalization by sub-contracting does not exclude risks in relation to the treatment of potential asylum-seekers to the extent that it is not necessarily accompanied by specific arrangements for safeguarding access to international protection by the subject concerned prior to the physical entry of the latter into the territory of the relevant country.
A recent study on carrier sanctions and Immigration Liaison Officers by McNamara (2013) examines the relations between externalization, judicial competence and effective protection of fundamental rights. State responsibility for externalized migration controls is assessed through the lens of the jurisdiction of the European Court of Human Rights (ECtHR). ECtHR jurisprudence has made it clear that it is the exercise of physical power and control over a person by the state which is pivotal to deciding on its jurisdiction over the claim, that is to say that jurisdiction is engaged only to the extent that the Court finds that physical power and control by the state have been ‘effective’. This threshold of ‘effective’ control which has emerged from the Court’s jurisprudence is a demanding hurdle to the extent that only if state control is found to be ‘effective’ can the state be held responsible for the full range of rights contained within the European Convention on Human Rights (ECHR).
Pending the EU’s accession to the Convention, the same considerations appear to be relevant in relation to the Union’s possible externalization practices. The question can, however, be raised as to whether the ECtHR can keep abreast of these controls. The difficulty of assessing their extent positively affects the states’ capacity to evade jurisdiction and thus avoid fundamental rights responsibilities. One possible interpretation of recent jurisprudence is that the ECtHR is moving toward a broader way of construing jurisdiction. It is in this context that externalized controls have come under renewed scrutiny. A prevailing opinion is that the ECtHR will be able to protect those asylum-seekers who encounter externalized control (McNamara 2013: 3–4). However, an alternative reading of the ECtHR’s jurisprudence suggests that the hurdle of extraterritorial jurisdiction is so demanding that states manage to avoid it despite exercising extensive control over migrants. Notwithstanding this considerable control, examination by the ECtHR is likely to result in a failure to satisfy the ‘effective’ control threshold. Responsibility can thus be avoided while extraterritorial control is retained. The control level held by the state is still capable of guaranteeing a denial of entry to individuals in need of international protection. If juri...
