Examination of Witnesses (Questions 45-59)
Mr Jonathan Faull and Mr Henrik Nielsen
16 OCTOBER 2007
Q45 Chairman:Director-General, welcome. It has
become almost a matter of routine, receiving you in this room.
We are extremely grateful to you for agreeing to come and give
evidence to us and the regularity with which we have the pleasure
of seeing you. Thank you also, Mr Nielsen, for coming here. I
will not introduce our team, most of whom I think you know from
previous sessions, and all of whom, I think, myself excepted,
have their names in front of them, but you probably remember by
now who I am.
Mr Faull: I certainly do.
Q46 Chairman: Director-General, as
you know and as usual, this is on the record. A transcript will
be taken of the meeting and you will be sent the transcript, but,
as before, if at any point you decide to go off the record we
will ask Christine to lay her pen down and then you can say when
you want to go on the record again.
Mr Faull: I can even say that Henrik was just
telling me that there is nothing secret in the very fine briefing
he has prepared for me, which gives no-holds-barred answers to
all your questions, and if it would be helpful we can leave it
with you.
Q47 Chairman: That, I think, would
be extremely helpful; thank you very much, but if at any point
you decide to go into ultimate secrecy and depart from your brief
we will respect you. Director-General, can I start by asking you
to give us your assessment of the work of Frontex so far? I think
the Commission are intending to do a Frontex review early next
year so it may be a bit premature to ask you for your conclusions,
but anything you can tell us about how Frontex has performed and
whether it has come up to your expectations would be very helpful.
Moving on to the next question, what do you think the role of
Frontex should be in controlling borders? Should it, for instance,
extend to rescue at sea? Anything you can tell us of your assessment
so far would be extremely helpful. I should just mention that
we are going to Warsaw next week to visit Frontex and we are hoping
to get to the Ukraine border to see how it is operating in practice.
Mr Faull: Good. Thank you very much and good
afternoon to you all. We will indeed carry out a full review next
year and we will know a lot more then, of course. What can we
say now? We can say that, bearing in mind that Frontex really
got going only two years ago, these are early days but I think
we can say with considerable confidence that it is meeting the
expectations that we had for it when it was created and that it
is even continuing to meet expectations, which have grown considerably
since that time and are continuing to grow. Frontex has taken
forward activities in all the areas of its mandate and has become
an important player in the implementation of Schengen rules on
the management of the European Union's external borders. Those
expectations were high and I think now are even higher, and those
expectations are not only ours but also those of the Member States;
they are those of public opinion generally, particularly in the
countries most immediately exposed to migratory pressure. This
has all meant that the agency has had to adapt to changing circumstances
and has had to implement operations at short notice while being
fully dependent on the willingness of Member States to co-operate
with it, with each other and to provide equipment because Frontex
is ultimately only an agency co-ordinating the work of the Member
States, their border guard services and so on. There has obviously
been considerable pressure on and interest in its activities at
the Union's southern borders on the Mediterranean because that
is where migratory pressure has been highest and where media and
political attention have therefore been most closely focused.
Your second question was what should the role of the agency be
in controlling borders and should it extend to rescue at sea.
These are all issues that we will look into next year when, on
the basis of a thorough review, we will look at whether the current
mandate given to Frontex could be extended.
Q48 Chairman: When do you expect
your review to take place?
Mr Nielsen: February.
Mr Faull: I should have introduced Henrik, by
the way; I am sorry. Henrik Nielsen is the Deputy Head of our
unit dealing with borders and visas. He was previously my personal
assistant and is an expert on these and many other matters and
I may, if you agree, ask him from time to time to help me out
with one or other of the answers.
Q49 Chairman: Of course, whenever
you wish.
Mr Faull: For the time being we believe that
the mandate is the right one. Risk analysis must be the basis
for priority setting by Frontex. That is the case at the moment.
That risk analysis is almost a daily one as things develop, as
things change, as migratory pressure moves, but Frontex has proved
within the legal framework set for it sufficiently adaptable and
flexible to deal with issues as they evolve. Turning to search
and rescue, search and rescue first of all are not simply a matter
of border control or migration policy. They are part of a coherent
framework (or at least a framework which should be coherent) set
by the law of the sea with its own institutional framework. We
have no EU legislation on search and rescue aspects of the law
of the sea. They are governed by international rules. Article
98 of the UN Convention on the Law of the Sea, the Safety of Life
at Sea Convention and the Search and Rescue Convention as well
as international customary law all provide essentially that masters
of ships are required to assist any person found in distress at
sea. This obligation, of course, applies to Member State vessels
participating in Frontex joint operations when a distress situation
is encountered during such an operation.
Q50 Baroness Henig: Director-General,
thank you for meeting us here yet again. Some witnesses in their
written evidence to us have highlighted a general reluctance on
the part of Member States to commit national assets for Frontex
operations because there are not clear rules as to where people
intercepted by EU joint operations at sea are to be disembarked,
and I wondered what your views were on this and what proposals
the Commission might put forward to address this problem.
Mr Faull: All Member States are subject to the
same international legal framework but it is certainly true that
differences in practical application and interpretation of that
framework can be different from one country to another and those
differences may have an impact on the effectiveness of operations,
particularly when vessels from different Member States are acting
within the framework of the same operation. You are right in pointing
out that the issue of where persons rescued at sea should be landed
is an extremely complex one on which different views are held.
It is at this stage not possible, and certainly it would be premature,
to conclude that these differences are deterring Member States
when considering whether or not to participate in joint operations.
We are not aware of any example where a Member State has decided
not to take part in a joint operation for this specific reason.
We are discussing this very important issue with the Member States
as part of the follow-up to a study which we recently published
on the law of the sea.
Q51 Lord Teverson: Coming back to
how the Commission reckons Frontex has done, what does it use
as the criteria to assess the performance of Frontex? What do
you do to give it five stars or two or one? Is there a formal
way of doing it?
Mr Faull: There is and that will be spelt out
in the evaluation with a proper methodology when it is carried
out next year, so everything I say at this stage is preliminary.
What Frontex does is, and, Henrik, do not hesitate to come in
and complete or correct this if necessary, is risk assessment
based, based on its own understanding of where its intervention
is most needed and, of course, very largely from what Member States
tell it about where they think its intervention is needed. It
then sets up joint operations. The joint operations are only as
good as the equipment and the resources and the men and women
made available to it by Member States. We talk generally about
its "toolbox", what is in its toolbox at any time, and
then its operations take place, and its operations, which have
been taking place very largely in the Mediterranean Sea in the
recent period, are measured by how effective they are, first of
all in dealing with the specific circumstances which called the
operation into existence, and more generally (but this gets much
more difficult) into any deterrent effect on illegal immigration
that it might be having in the countries of transit and origin
in respect of north and sub-Saharan Africa. That becomes much
more difficult to assess but each operation is the subject of
report and analysis. There are always areas of improvement and
the adaptation process, as I said, is an eternal one, but the
general assessment by Frontex itself, by us, by Frontex's management
board and by the Member States is that it has made a difference
and is doing a good job given the resources made available to
it so far. It may sound vague to you but this is all at this stage
rather preliminary because we will carry out this very full evaluation
in the next few months.
Mr Nielsen: Also, of course, Frontex has published
its annual report in which it describes overall its accomplishments,
and I would stress once again, as Jonathan has done, that the
individual reports on each joint operation describe exactly what
has been done and to what extent the objectives have been achieved.
Q52 Lord Teverson: So there is quite
an emphasis on the individual operations?
Mr Faull: Yes.
Q53 Lord Teverson: Because the macro
side is very difficult to assess?
Mr Faull: The macro side is difficult to assess.
We will try to develop a methodology for doing that. In an area
like this it is always difficult first of all to say what would
have happened if Frontex had not been there and the main focus
of its activities so far in mounting joint operations has been
because of the events in the Mediterranean, so yes, the focus
is on that.
Q54 Lord Jopling: Reverting to the
international law of the sea, could you tell us what your impressions
are of the Commission's recent work on this, particularly so far
as illegal immigration is concerned? Do you think it is just a
study which will go into a pigeonhole and nobody will do much
about it or do you see any signs of activity to follow it up?
Mr Faull: We have no illusions about the difficulties
involved. The law of the sea is a matter of enormous complexity.
These conventions took decades to negotiate and we are dealing
here with extremely complicated issues. Nevertheless, the facts
are these. We published a study in May 2007 on international law
in relation to illegal immigration by sea in response to a request
from the European Council in December 2005. The study looks at
the current legal framework for the exercise of control and surveillance
powers at the sea borders and the main obstacles to the effective
exercise of that surveillance, and looks for solutions such as
completion of the existing legal framework by bilateral or regional
agreements and the establishment of guidelines for Frontex joint
operations defining criteria for the sharing of responsibilities
between Member States which participate in such operations. It
also looks at the obligations of third countries under international
maritime law (for example, with regard to search and rescue and
safety of navigation) and the Palermo Protocol on the smuggling
of migrants, and, of course, the Geneva Convention on refugees.
Among the key issues is the one already alluded to of the appropriate
place of disembarkation in a search and rescue situation, knowing
that the way the Mediterranean Sea is divided into search and
rescue areas does not tally with political geography. For example
the Maltese search and rescue area is a very large and extensive
one; it goes all the way to Crete in the east, the Sicilian island
of Lampedusa is in the middle of it, and therefore the issue of
where illegal immigrants are to be landed when rescued is a very
acute one and one which arises between those two Member States.
Another example is the question of who is responsible for the
processing of an asylum application made following a rescue at
sea. These are all issues which are not conclusively to everybody's
satisfaction settled by the law of the sea texts as they stand
at the moment. We looked into all of this and a meeting was held
on 8 June with Member States and experts from Frontex but also
from the International Maritime Organisation, the UN High Commissioner
for Refugees' office and the International Organisation on Migration.
It was agreed to set up an informal working group to look at what
guidelines could be used by Member States in the context of Frontex
joint operations. It would not be legislative and could, for example,
be part of the operational plan, which is prepared in advance,
of each joint operation. The United Kingdom is part of a group
which is trying to draft such guidelines. It has met twice already
on 19 July and 24 September. The next meeting will be held in
the middle of November, so this is a way in which we could go
which would mean not trying (because that would be a task of enormous
proportions) to settle the law of the sea issue for ourselves,
or indeed for the whole of the international community, but to
deal with the specific case of what happens in a joint operation
under Frontex's aegis, and there we would have, if you like, rules
of engagement which would determine in advance what would happen
in a particular operation in the event of rescuing putative illegal
immigrants at sea, particularly with regard to the question of
disembarkation and of asylum applications.
Q55 Lord Jopling: If there is an
argument over who carries out a search and rescue, particularly
a rescue at sea, because nobody particularly wants to be saddled
with whoever is there, what role does the Norwegian Centre at
Stavanger have in organising these rescues? I was there in May
and a case came in when I was there of a ship drifting 200 miles
east of Djibouti with no fuel and no food, and they were organising
the rescue of that. Do they have a role in this within the waters
around the EU?
Mr Nielsen: I am afraid I am not familiar with
that particular centre unless it operates under the framework
of the International Maritime Organisation.
Q56 Lord Jopling: Yes, it does.
Mr Faull: I do not know either. We will look
into that and I will reply to you in writing. The general trend,
therefore, as I said, is to try to craft rules which would apply
in Frontex operations, no doubt meaning, therefore, that everybody
would be able to say that that was without prejudice to their
general view on the interpretation of international law. Perhaps
I will go off the record here for a few minutes.
(There followed a short discussion off the
record)
Q57 Baroness Henig: What is the international
institution that can resolve the problem of which country should
take illegal immigrants, because obviously you need a clear legal
framework within which to operate?
Mr Faull: You do. We are in a way instigating
reflection on this because people's minds are focused on it because
of the events. Not only because of us but also because of our
study and what will follow this is now on the agenda. How will
it be settled? I do not know. There is an International Court
of Justice which is the ultimate arbiter of international law
if someone takes a case there. As far as I know there is no such
case pending.
Q58 Baroness Henig: Yet.
Mr Faull: Also, the world community can reconsider
the conventions in the UN Framework, but I do not see that happening
either. It is probable that the best we can do as Europeans faced
with a particular European problem is to sort it out for ourselves
within the particular context of Frontex operations. If that works
and is seen to work between countries of very different sizes
and resource levels, perhaps that will shine out to the rest of
the world as something which will be followed and will either
harden into customary international law or will be taken up in
an international convention one day. At the moment I think the
best solution for us is to be pragmatic and solve the particular
problem. After all, it is a problem of human tragedy as well;
it is a life or death problem in the Mediterranean. We have to
sort it out the best we can.
Q59 Baroness Tonge: Given that Frontex
was only established in 2005 and started operations a year ago
--- am I right?
Mr Faull: A bit more than a year ago.
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