Protecting the EU’s borders from … fundamental rights? Squaring the circle between Frontex’s border surveillance and human rights

The phenomenon by which people are dying while attempting to cross the Mediterranean constitutes one of the humanitarian emergencies of our times. Even more strikingly, this continues to happen at a time when the European Union and its member states (MSs) are policing the Union’s external borders more intensively than ever before. This chapter examines the EU’s border surveillance and investigates Frontex’s actions in order to assess Frontex’s compliance with the EU’s constitutional commitment to respecting and enforcing fundamental rights. Border surveillance is a crucial part of the EU’s strategy for integrated border management. The aim is to combat irregular migration and cross-border crime, which in the EU policy debate are framed as internal security issues. In this research, I examine and investigate Frontex’s most controversial (Hera and Nautilus) and recent (RABIT 2010 and Poseidon in the Evros region) operations on Europe’s southern and south-eastern borders. These operations have been criticised on grounds of legality and respect for human rights. Decision 2010/252/EU supplementing the Schengen Borders Code (SBC) was meant to provide a solution to at least some of the problems that emerged in the first years of Frontex’s operations, but it was annulled by the EU Court of Justice. After explaining those aspects of the EU’s legal framework for fundamental rights that are relevant to Frontex, I suggest that the Hirsi judgment by the European Court of Human Rights (ECtHR), which condemned the Italian push-back policy of 2009, indirectly places boundaries on practices such as those which Frontex used in Hera. Having assessed Frontex’s adoption of a fundamental rights policy, I make some recommendations for improving Frontex’s commitment to fundamental rights, thus squaring the circle between border surveillance and individuals’ human rights.