Understanding European Border Management

Political discussions of ‘border management’ thrive on oversimplified dichotomies of ‘security vs mobility’ and ‘in or out’. As a result, complex and difficult questions concerning drivers of and responsibility for migration, integration, reception capacity and human rights respectful policies that arise with border management policies remain underexplored. The absence of meaningful political, legal and critical engagement with different iterations of border management as a tool of ordering and ‘othering’ and the implications this has beyond the simple binary of ‘in/out’, is a gaping wound in the EU’s Borders, Asylum and Migration (BAM) governance (Article 77, 78, 79 TFEU), jeopardising both its effectiveness and credibility.

This contribution highlights how the transformation of the EU border legal architecture – focusing overwhelmingly on the ‘in/out’ dichotomy – disrupts conventional state-centric understandings of border management, while fostering impunity for human rights violations in its enforcement. EU borders are increasingly controlled in a supranational fashion by a panoply of different actors with different legal mandates and obligations, expanding within and beyond the physical frontiers of Member States. In addition, new technologies and the political turn to the logic of ‘crisis governance’ are contributing to changing the traditional practice of border controls, with a multiplicity of actors being involved in a complex dynamic of securitization. The actors, practices and the legal framework governing European border controls are rapidly changing; yet underlying linear and territorial assumptions and liability regimes remain unchanged perpetuating serious human rights shortcomings.

EIBM and its Transformations

The EU’s Integrated Border Management (EIBM) policy points to the four-tier access control model, meaning that it “comprises measures in third countries, such as under the common visa policy, measures with neighbouring third countries, border control measures at the external borders, risk analysis and measures within the Schengen area and return”, to manage the EU’s external border and to be implemented at national and an EU level as a necessary corollary to “the free movement of persons within the Union” (Recital 1 and 11 EBCG Regulation)

How border management is understood within the EU’s legal framework challenges state-centric understandings of border management (Raimondo). The traditionally state-centric and centralised approach to border management has given way to an amorphous decentralised border management mechanism in the EU, where EU Member States are no longer the sole executing arm of EIBM.      This transition initially came about to bolster the creation of the EU internal market; it later continued to develop in response to perceived external security risks and increasing migratory flow to the EU. Just shy of ten years, it is clear that the incremental shift from intergovernmental to supranational EIBM architecture and its accompanying legal framework has failed to stem irregular migratory flows, much less in compliance with human rights. These unmet objectives continue to drive further transformations of EIBM objectives.

Externalization

No longer confined to fixed geographical lines, EU border controls have become elusive, or liquid, permeating diverse spaces and transcending the traditional notion of the (physical) frontier. The EIBM exemplifies this spatial expansion through mechanisms such as the externalisation of border controls, that is “the process of shifting functions normally undertaken by a State within its own territory so they take place, in part or in whole, outside its territory” (RLI Declaration on Externalisation and Asylum). Increasingly, the EU and its Member States have put in place various strategies to deter migrants’ departures and impede their arrival, allowing these actors to skirt their human rights commitments vis-a-vis third-country nationals. These include restrictive visa requirements and carrier sanctions, facilitated by the posting of liaison officers in third countries, interdictions at sea, and the adoption of the ‘safe third country’ rules.

Border externalisation, or ‘remote control’, strategies are not new. Yet they have morphed and adapted to judicial correctives accordingly designing containment policies that are aimed at eclipsing human rights responsibility (Gammelthoft-Hansen; Scott FitzGerald). A notable example of such development is the shift, in the aftermath of the landmark Hirsi decision, from direct interceptions and pushbacks in the Mediterranean Sea to indirect pullbacks operated by the Libya Coast Guard, trained and financed by Italy and the EU (Pijnenburg, De Coninck, Spiegel).

Informalisation

The same logic underlies various informal agreements which, following the blueprint of the EU-Turkey deal, are aimed at encouraging third countries to vicariously and pre-emptively enforce border controls and readmit irregular migrants. These include Member States’ bilateral cooperation with third states (see the most recent Italy-Albania cooperation plan), the EU Migration Partnerships Framework and the various ‘Team Europe’ initiatives on migration. The MoU between the EU and Tunisia is one of the most recent examples, which aligns with the more general trend of increased informalisation in the EU’s external action on migration (see here and here). Taken together, externalisation and informalisation form an ‘architecture of repulsion’ underpinned by a neo-colonial narrative of emergency aimed at curtailing positive legal human rights obligations of third-country nationals.

Digitalisation

The delocalisation of border controls is reinforced by their increasing digitalisation. Border digitalisation is widely associated with the introduction and expansion of databases such as SIS, VIS, Eurodac, EES, ETIAS, ECRIS-TCN, and EUROSUR. These IT systems serve different purposes, but they all share a common aim: to extend the reach of migration controls beyond territorial borders. This objective is operationalised through the ‘enhanced interoperability’ of various surveillance and border control systems, thereby enmeshing immigration and criminal law purposes (Vavoula). The EU ‘virtual borders’ demarcate a ‘buffer zone’ administratively connecting the EU, its Member States and third countries through a dense and impenetrable network of information exchange. For example, the EU has been funding the development of biometric identification systems in third countries; providing them with surveillance equipment necessary to implement border controls without a proper impact assessment; and supporting efforts to predict migration movements through adaptive machine learning. Often, these initiatives are sponsored by the EU in third countries with the intermediation of other non-state actors, such as the IOM or the ICPMD.

Militarization

This network of digitalised borders is ultimately operationalised by military equipment, such as drones with thermal cameras, unmanned aerial vehicles, or firearms used for border surveillance purposes. This (old) trend towards securitisation involves the integration of military tools and equipment into border control strategies, blurring the lines between civil and military objectives. The expansion of military technologies is often justified by (new) humanitarian narratives, emphasizing their efficiency in search-and-rescue operations. This contributes to obfuscating the reality of securitisation policies mainly aimed at interdicting and deterring access to the EU, in violation of international obligations (Moreno-Lax).

Crisification

The turn to militarization is in part the result of what Moreno-Lax has referred to as ‘crisification’. The crisis narrative increasingly occupies political discussions, normalising security responses that were previously considered unthinkable at best. In recent years, several Member States have ‘legalised’ illegal push-back practices through emergency measures or suspended the admission of asylum seekers on the grounds of addressing unprecedented migratory pressure, derogating from binding procedures in national international law (here §78 and 80 and here §38). Consider the EU external border with Belarus where states adopted emergency measures, suspending non-refoulement obligations, limiting access to human rights and refugee law protection, and restricting the access of humanitarian actors and journalists to border areas (§33-39 here and here). The (much criticised) European Commission’s proposal for a ‘regulation addressing situations of instrumentalisation in the field of migration and asylum’ builds on this crisis narrative. Yet, the targeted exceptionalism of this ‘crisification’ results in the erosion of existing international and EU human rights standards.

Privatisation

Concomitantly, the synergies between civil and military strategies reveal the growing role of the security and defence industry in the design and transformation of border controls in Europe. Private military and security companies are heavily involved in the EU border control operations, providing services to Member States and their non-EU partners (see here, here and here). Further, the security and defence industry is increasingly influencing border management through lobbying, industry fairs, and partnerships with EU agencies like Frontex. In doing so, they contribute to the framing of irregular migration as a security threat that necessitates emergency-driven military responses –coincidentally, the same services they offer (Davitti).

The Problem of Orchestrated Impunity

There are a number of questions that flow from these transformations, not in the least whether the racialized ‘Othering’ that is consolidated by EIBM, truly reflects the EU’s normative project, much less its constituency. As a practical matter, these transformations also render the enforcement of EIBM no longer the primary responsibility of the EU Member States. Instead, the execution and implementation of EIBM is now a joint endeavour shared by the EU Member States, EU entities such as Frontex, third countries and transnational corporations – in a wide array of governance iterations. Each of these actors provide smaller contributions to the execution of EIBM, than compared to border management executed solely by a single Member State. While the outcome of an EIBM pushback operation and a single Member State executed pushback operation may thus be experienced by an individual as one and the same, the (concerted) EIBM conduct giving rise to a pushback will now instead be crumbled across a myriad of actors. And it is precisely this ‘crumbling cookie’ effect that is not accommodated by and unveils the insufficiencies of the EU’s human rights responsibility regime.

No Right to an Effective Remedy

The EU legal framework purports to provide a holistic set of legal remedies, including a constitutionally embedded ‘action for damages’ through which individuals may assert the EU’s human rights responsibility before the EU Court of Justice. Yet this procedure cannot ensure the right to an effective remedy in its current state for two reasons. First, the rules of causation and attribution are simply not developed to accommodate scenarios of transnational cooperative governance, where EU entities collaborate with Member States and third (private) actors engaged in indissociable (border management) cooperation. In other words, the transformations of EIBM, resulting in multiplicity of actors and their coordination, cannot be accommodated by the action for damages that envisages responsibility solely for EU entities.

Second, the action for damages presumes clarity as to which (human rights) obligations apply to the implicated EU entities, and by extension to the various implicated Member State and non-state entities (e.g. transnational corporations). And here the distinction between a human rights commitment and how such commitments translate to actionable obligations, including how they may be enforced and litigated in court, is crucial. For example, the normative commitment to the right to life in and of itself, signals a commitment to a particular value-centric norm. It does not fully reveal how this right may be enforced in a court of law through concretised negative and positive obligations.

The Uncertain Human Rights Obligations of Non-State Actors

For States, the translation of human rights commitments to actionable and enforceable obligations has been subject to a continuous process of refinement and articulation across various regimes and jurisdictions, by legislators and courts alike. This same process has yet to occur for the implicated non-state actors in a meaningful way, however, who by virtue of their very nature, cannot adhere to the same actionable human rights obligations as States. So while they may be bound to identical human rights commitments as States, it is currently under-scrutinised to what extent (if at all) non-state actors can meet the same actionable human rights obligations that bind States.

This absence of clarity makes it difficult at best, to ascertain whether small, concerted contributions by non-state actors (e.g., EU entities and private corporations) cooperating with each other, will amount to unlawful conduct capable of generating legal responsibility. This means that these different actors, implicated in EIBM through its various transformations, may all be contributing to a single human rights harm which was the very object of state-centric human rights regulation and adjudication, but that their contributions are too small or remote to be caught by the contemporary human rights regime and respective liability regime. While the human rights harm thus remains the same, the way in which this human rights outcome is achieved, is different and cannot be accommodated by the legal framework in place.

Conclusion

While the law articulates the development of the EIBM, it also contributes to structuring the impunity for human rights violations in its enforcement. In this sense, the transformation of the EU’s border architecture challenges both the linear and state-centric state notion of borders and undermines the credibility of the EU’s human rights commitments.

These transformations bring us to the following conclusions. First, human rights commitments that apply almost indiscriminately to state and non-state actors, have yet to be transposed to enforceable obligations for non-state actors in a meaningful manner, and have to be considered mindful of different permutations of multi-actor governance. In other words, human rights commitments have to be considered through the lens of contributory responsibility. Second, the EU’s liability regime requires a meaningful overhaul in order to adequately capture the multi-actor and decentralised implementation of its policies and ensure the effective responsibility of EU entities. That is of course, if the objective is to align border management specifically and BAM-policy more generally, with human rights, and for the EU to remain a credible human rights actor – a task that cannot and should not fall squarely on the shoulders of the EU judges.