Fortex: Impact of the European Mechanisms

During crises, the situation in specific geographic points on the borders of EU member states can become precarious. To address the potential issues, the European Commission presented the EU ‘hotspot’ practice in its European Agenda on Migration of 2015 (Tas, 2022). The aim of this strategy was to offer operational assistance on the ground to EU Member States facing particular and disproportionate migration challenges at their external borders. However, the devastating report by the European Anti-Fraud Office (OLAF) concluded that the EU border control service Frontex has repeatedly witnessed human rights violations (Fallon, 2022). The most controversial notion regarding the issue is that Frontex not only did not intervene as befits their task, but it undertook some violations itself and made an effort to hide them.

Once this information was released, various UN bodies, civil society organizations and academics rapidly responded with criticism of the violations of fundamental human rights that occurred in the affected areas, namely at the Greece borders. There has been little or no progress in this situation for a long time until Der Spiegel sounded the alarm, with the media and OLAF publishing it (Der Spiegel, 2022; The Guardian, 2022). The subsequent analysis showed that the various control tools are impaired to observe the complicated conditions of the hotspots. In this context, the following essay offers a recommendation from the institutional perspective to enhance political and social monitoring mechanisms in order to ensure the efficient protection of fundamental rights in the general sense and, particularly, in the hotspots. First of all, it explains the historical background of the current case. Then, it describes the theoretical framework with the chosen theoretical perspective and its application to this case. Finally, a piece of advice is issued with concrete recommendations, shortly followed by a critical reflection with references to the course material.

Historical Development

Over the past decade, the EU has focused its migration policy in cooperation with the member states, particularly the Schengen countries, on strict border controls (EP, 2021). The reason was the increase in migration flows to the EU, which caused the Schengen Declaration to come into question. For decades, open borders have been built to allow free movement between Schengen countries to promote the international market. However, the growth of the migration flow limits this freedom. To maintain some control over the migration flow, the European Border Guard Agency (Frontex) has been established. Frontex is an independent agency that carries out its work on funds and on behalf of the European Parliament (Frontex, n.d.b). This agency is responsible, among other things, for coordinating the surveillance of the external borders of the EU (Frontex, n.d.). With more than 1,500 officers from member states, Frontex is available 24/7 to carry out search and rescue tasks.

In the first instance, the member states themselves are responsible for guarding external borders. In this context, Frontex offers support and intervenes where it is needed (Frontex, n.d.). In doing so, the rights of the refugees should not be violated according to international agreements at the supranational level (UN, 1948; ECHR, 1950). Nevertheless, recent practice has shown that asylum seekers and migrants who need protection have to deal with pushbacks at the external borders of the European Union. These pushbacks are often accompanied by the disproportionate use of force by the authorities of EU member states and EU agency Frontex, operating at the external borders. The refugees are deprived of their right to apply for asylum by the degrading and inhumane treatment of migrants and their arbitrary evictions and ‘deportations’ (Amnesty International, 2021; IOM, 2021; UNHCR, 2021). Particularly, since the start of the COVID-19 pandemic until early May, at least 40,000 refugees and migrants have been returned to the EU’s external borders (Fallon, 2020). Overall, this situation directly violates the EU treaties and international human rights.

Theoretical frameworks

This essay recommends, from an institutional perspective, bringing about change in this impasse regarding the functioning of Frontex and the role of the EU in it. Since this case revolves around large institutions, human rights, and the lack and failure of structures within and around the problem within these institutions, both organizationally and policy-wise, the choice to apply the institutional perspective was quickly made. The institutional theory deals with the underlying social structures and looks at how structures such as norms, routines, schedules, laws and rules develop and how they become established (Peters, 2019). In this context, two particularly important frameworks allow for studying Frontex as an organization and its involvement in the current case: path dependency (Pierson, 2000) and punctuated equilibrium theory (True et al., 2007). The following section briefly explains both frameworks and showcases their application to policy dynamics surrounding the case.

Path Dependency

In short, the various past choices made by an institution set the limits for change and development in the future. Once an institution has embarked on a certain path, it becomes difficult to deviate from it because of the associated rising costs (Pierson, 2000). Consequently, when these choices influence future decisions in such a way, there is a strong probability of a ‘lock-in’ occurrence (Pierson, 2000). It means that a policy becomes so entrenched that there will be no possibility for change or a different direction left. The notion of increasing returns also plays a role here; once an investment has been made, it is much more attractive to continue with it because deviation has significantly higher costs. Therefore, institutions’ development and future are often formed early at a critical juncture – a significant event that opens up an opportunity to go down a certain path – and influenced by internal choices and external factors (Pierson, 2000). Reference is often made to a critical juncture as to the starting point of the path dependency.

Punctuated Equilibrium

Punctuated equilibrium is recovered as a state of natural and social systems, appearing over time from significant and rapid bursts of activity. Its essence is the cyclicality of states of rest, equilibrium, stagnation, and rare bursts of change that can change the state of an inert system through radical, revolutionary actions. In accordance with True et al. (2007, p. 3), organizational entities, which are groups with decision-making powers, are limited in time and cognitive resources, and distributed attention is important in policy change. Consequently, although the human factor in society is a necessary fact, in the process of the need for change there may be a confrontation, a clash of interests, which contributes to the displacement of the whole system.

It is essential to emphasize that the migration of refugees to the EU is consistent with the described theory. This is because the main catalysts of the migration process were internal social changes and political or economic upheavals. Accordingly, after a certain period of calm, a negative process occurred. Periods of change are much shorter than periods of stability due to the challenge of dealing with the immobility of institutional cultures and constraints (True et al., 2007). Nevertheless, according to the theory of discontinuous equilibrium, the consequences of such changes are always highly significant and contribute to major shifts in public opinion, legislation, and the situation in general. Therefore, the migrant crisis has posed a challenge for the EU.

Frontex and the Migration Crisis

Migration Crisis of 2005-2006

The role of the newly formed Frontex in the 2005–2006 ‘migration crisis’ had three general components. First of all, it conducted a risk analysis that confirmed the importance of Spain as a way of choice for asylum-seekers and irregular migrants coming from Africa to the EU. Second, Frontex supported the Spanish authorities with various technical assistance in terms of establishing the migrants’ identity and country of origin, oftentimes facilitating their return. Thirdly, the agency coordinated joint sea operations that involved the assets of numerous EU member states. Traditionally, actions involving various states have been conducted to tackle issues perceived as security threats, such as drug trafficking, military attacks, or piracy.

Migration Crisis of 2015-2016

To a significant extent, the 2015–2016 ‘migration crisis’ has led to an intensification of the Frontex practices’ security orientation. It is particularly visible in conducting actions generally aimed at tackling widely recognised threats, such as joint maritime operations that have become substantially more sophisticated than during the previous crisis. Another notable development during the 2015-2016 crisis is the development of Frontex’s cooperation with bodies with a more robust security profile, such as NATO – a military alliance – and Europol in law enforcement. In that way, Frontex has assumed a vital role in the collection and production of migration intelligence and organised crime and terrorism – other types of intelligence associated with ‘harder’ equilibrium changes.

COVID-19 Case

During the most recent COVID-19 issue, Frontex provided various recommendations to Greece. Some served to protect fundamental rights, such as the need to expand the medical existence and reception conditions and improve the transfer systems to the mainland. Others, however, undermined their protection; for instance, there was a request to adopt legislation that authorised the use of force for acquiring fingerprints and the inclusion of a provision on longer-term retention for those migrants that resist fingerprinting (Tas, 2022). Apart from that, the deal between the EU and Turkey regarding the latter’s safety has resulted in numerous asylum appeals rejection. Originally, the Greek asylum request bodies opposed Turkey being evaluated ‘not safe’ and rejected the sending back of asylum seekers. However, after the deal’s implementation, Greece returned hundreds of individuals to Turkey under the indirect influence of the infamous institution (Tas, 2022). In this context, the influence on member states regarding safety does undeniably fall under the security problem and can provoke the equilibrium change.

Advice

This essay focuses on an integrated approach to creating new dynamics in Frontex. However, the broad network of directly involved institutions cannot be ignored. Each party has an important role to play in this, which requires multi-faceted advice (Jacobs & Weaver, 2015). Thus, the section will consider the four central EU institutions and bodies engaged in supervising the EU’s hotspots approach: the European Commission (EC), the EP, the Fundamental Rights Agency (FRA), as well as internal monitoring mechanisms of Frontex.

The European Commission

The European Commission provides a facilitating and supervisory function in the hotspots. As protector and guarantor of the Treaty, it should ensuring that the EU’s approach to hotspots is adopted and promoted in compliance with EU law and the protection of fundamental human rights. This double management and oversight role leaves the Commission in a difficult position. In addition to its monitoring role, the Commission issues guidelines for the enforcement of the hotspot policy process (Tas, 2022). However, experience has revealed that the EC has performed a controversial role, occasionally adversely influencing the protection of basic rights, as in the case of the security treaty between the EU and Turkey. Therefore, eliminating ambiguity to prevent the wrongdoings of its subordinated institutions, especially in the face of a crisis, should become the first priority for the institution.

The European Parliament

The EP plays a classical role in the democratic oversight of EU agencies and institutions. The true value is that EP can monitor the role of both the EU agencies and the EC itself (Tas, 2022). However, the EP’s role in the recent crisis proved to be greatly insufficient. For instance, its visits to the field were limited, which resulted in a lack of oversight in the Greek Samos and Chios hotspots. Moreover, despite the announced investigation of Frontex’s actions in response to widespread criticism, the investigation’s scope is limited in that it will not specifically focus on the hotspots’ situation. Therefore, the EP should focus on increasing its overall involvement.

The Fundamental Rights Agency

The FRA is an agency that was established to specifically provide expert advice to other EU agencies and institutions. As such, it did provide advice to the Greek authorities and Frontex during the pandemic and also witnessed the hotspots (Tas, 2022). In this context, the FRA can be viewed as an alternative mechanism with a broad influence but a limited impact. For example, while FRA can advise the involved actors, it nonetheless cannot issue legally binding decisions. Thus, an enhanced FRA’s role should be explicitly stated and consequently implemented.

Frontex

Since EU agencies have an essential role in the hotspots’ shared administration, it is vital to include their internal monitoring mechanisms in the analysis. The aim is, however, to focus specifically on their monitoring functions to ensure adherence to human rights. In this context, analogically to the EP and FRA, their competence is greatly limited in scope and power despite the important insider role (Tas, 2022). For instance, a Fundamental Rights Officer – an integral part of Fortex – can only take the reports of inhumane practices into account without the ability to legally influence them (Frontex, n.d.a). Therefore, legal enhancement is required in order to prevent potential violations.

Reflection

In sum, the stated European mechanisms do have the power to control authorities, agencies, and institutions but have a clearly limited impact on international organizations, such as Fortex. In the scope of the chosen pandemic issue, the general advice would be to improve political and social monitoring to ensure the efficient protection of fundamental human rights. However, given the much broader scope of Fortex security ensuring, an institutional perspective should be applied not only to monitoring but to overall control over the agency’s development. In this context, the notion from the course lecture on institutional perspective in policy dynamics stuns with its accuracy: institutions are, to some extent, unruly in their ways to make behavior more predictable and reduce uncertainty (Pierson, 2000). This is why changing the development path that fails to adhere to vital conventions is more important, even in the face of some financial and organizational challenges.

References

Amnesty International. (2021). New evidence: Pushbacks and violence along Greek border now standard policy. Web.

Christides, G. & Lüdke, S. (2022). Classified report reveals full extent of Frontex scandal. Der Spiegel. Web.

European Convention on Human Rights (ECHR). (1950). Web.

European Parliament (EP). (2021). Pushbacks at the EU’s external borders. Web.

Fallon, K. (2022). Global development EU border agency accused of serious rights violations in leaked report. The Guardian. Web.

Frontex. (n.d.a). The Fundamental Rights Officer (FRO). Web.

Frontex. (n.d.b). Who we are. Web.

International Organization for Migration (IOM). (2021). Web.

Jacobs, A.M., & Weaver, R.K. (2015). When policies undo themselves: Self-undermining feedback as a source of policy change. Governance, 28(4), 441-457.

Peters, B. G. (2019). Institutional theory in political science: The new institutionalism. Edward Elgar Publishing.

Pierson. (2000). Increasing returns, path dependence, and the study of politics. American political science review, 94(2), 251-267.

Tas, S. (2022). Fundamental rights violations in the hotspots: Who is watching over them? European Papers-A Journal on Law and Integration, 2022(1), 215-237. Web.

True, J. L., Jones, B. D., & Baumgartner, F. R. (2007). Punctuated-equilibrium theory: Explaining stability and change in public policymaking to appear in Paul Sabatier’s (ed.) Theories of the policy process, 2nd edition [PDF]. UNC.edu. Web.

United Nations (UN). (1948). Universal Declaration of Human Rights. Web.

United Nations High Commissioner for Refugees (UNHCR). (2021). The UN Refugee Agency. Web.