Memorandum by Malta High Commission
GENERAL
1. This document has been prepared by the
Armed Forees of Malta (AFM) in response to the Call for Evidence
issued by the Sub-Committee in caption in regard to an inquiry
into Frontex, the European Agency for the Management of Operational
Cooperation at the External Borders of the EU Member States. The
views and opinions therein are derived from the institutional
knowledge and experience of the AFM and are thus a fusion of the
inputs from various individuals involved in operational and technical
cooperation with Frontex.
AIM
2. The aim of this document is to provide
responses to a number of questions raised in the said Call for
Evidence. Only those questions which directiy regard areas of
competence of the AFM have been addressed. The responses address
matters at the operational and strategic level as it is deemed
that responses at the political level are not within the purview
of this organisation.
Responses are being provided to the following
points:
— The legal framework for border guards'
exercise of control and surveillance powers in the course of Frontex
operations.
— Whether and how international obligations
with regard to search and rescue at sea affect the Agency.
— Whether it is practical to retain
a distinction at operational level between preventing irregular
migration and preventing crime.
— Whether there is sufficient cooperation
from Member States in terms of personnel and equipment for joint
operations.
— The extent of Frontex involvement
in surveillance operations.
— How Frontex joint operations are
planned and mounted.
— How Frontex joint operations are
mortitored and the outcomes evaluated.
— Whether there is, or should be, any
involvement of, or assistance from, the military in Frontex operations.
— How the Agency's role should develop
in the future.
INSTITUTIONAL BACKGROUND
3. In order to provide a deeper understanding
of the responses given, it is appropriate to understand the character
and roles of the AFM in regard to border control. The AFM is the
national military force in Malta with an establishment of 2,050
personnel. In addition to the primary role of the maintenance
of the security and integrity of Maltese territory in peace time
and in crisis, the AFM also fulfils a number of "soft-security"
roles which in many other States are undertaken by police or para-military
organisations. Given that the AFM is also the sole national agency
which disposes of significant coastal surveillance, maritime and
air assets, many of these toles are associated with the maritime
area.
4. Notable among these and relevant to the
discussion in question are the following responsibilities:
— The AFM is the Competent Authority
for Maritime and Aeronautical Search and Rescue (SAR).
— All surveillance of Malta's Blue
Borders including a 12NM band of territorial sea and a 24NM Contiguous
Zone.
— Providing maritime law enforcement
services in regard to traffic safety, illegal trafficking, fisheries
and anti- and counter-terrorism.
— The provision of coastal maritime
traffic control and safety communications.
5. All these activities are underpinned
by local legislation empowering members of the AFM to act in these
roles. Most notable among this legislation is Subsidiary Legislation
220.06 which accords Police and Customs powers to members of the
AFM in the fulfillment of their duties. It is of note, however,
that eventual investigative and prosecution actions are taken
by the Police. Thus the involvement of the AFM is very much limited
to the operational aspects of preventing and controlling illegal
migration. It is against this background that the responses to
the points indicated in paragraph 2 above are provided.
RESPONSES
6. The legal framework for border guards'
exercise of control and surveillance powers in the course of Frontex
operations. When operating in the maritime arena, activities are
limited by the constraints imposed by the applicable body of formal
international law, international customary law and domestic legal
provisions. Beginning from the innermost jurisdictional zone,
the internal waters of a coastal state ie those waters enclosed
by the baseline, these are deemed equivalent to the land territory
of the state and thus the latter may assert full jurisdiction
including arrest for illegal entry. Within the territorial seas
which extend 12 nautical miles from the baseline, jurisdictionis
limited by the doctrine of innocent passage which, however, is
intended to prevent interference with legitimate coastal traffic
and is not a right which must automatically be accorded to a stateless
vessel transporting migrants. On the other hand no obligation
exists to prevent the passage of such. Thus within this zone the
coastal state can continue to exert substantial control and, should
this be acceptable under its domestic law, may grant the exercise
of such control to the assets of third states. It should be noted
that the internal waters and territorial seas of a state are deemed
to exist ipso facto and do not require any declaration
on the part of the coastal state. Furthermore, surveillance within
these zones may only be conducted by the coastal state or other
authorised parties. The furthest reaching jurisdictional zone
relevant to border control tasks that may exist, subject to declaration
by the coastal state, is the contiguous zone that may extend up
to 24NM from the baselines. Within this zone the coastal state
may exercise the control necessary to prevent and punish infringement
of inter alia immigration laws committed within its territory
or territorial seas. Third parties may conduct surveillance activities
within this zone without the consent of the coastal state.
7. Actions on the high seas present a more
difficult legal scenario. While it is generally accepted that
any vessel may exert jurisdiction vis-a-vis a stateless
vessel, what is less clear is whether such actions are provided
for in the national legislation of the state from which the enforcing
vessel hails. Furthermore, it is also generally recognized that
any actions are subject to the principle of proportionality and
undertaken with the aim to arrest the vessel and its occupants.
Thus actually using any level of force to constrain a migrant
vessel to alter course or return to its port of departure has
at best only a very tenuous legal basis.
8. Whether and how international obligations
with regard to search and rescue at sea affect the Agency. Search
and Rescue (SAR) does not fall within the competency of Frontex
nor that of any of the Commission Agencies. The fundamental obligations
regarding SAR are generated by various international law instruments
most notably the UN Convention on the Law of the Sea (UNCLOS '82),
the SAR Convention '79 and the Safety of Life at Sea Convention
(SOLAS '74) together with various amendments that have been made
to the latter two conventions. The obligations therein are generally
imposed on States and the vessels that fly their flags. However,
given that Frontex joint operations are conducted by warships
or other state vessel provided by the various EUMS, it is clear
that such obligations remain incumbent upon the masters of these
vessels regardless of the type of operation in which they are
involved. Thus, if in the course of Frontex operations the commanding
officer of a state vessel becomes aware of a distress situation
(distress being defined as a situation in which persons-are in
imminent danger and require immediate assistance) then there exists
a duty to immediately provide assistance insofar as this does
not unduly endanger the crew of the assisting vessel or the assisting
vessel itself In practice, this obligation generally leads to
vessels involved in Frontex joint operations being regularly tasked
to undertake SAR operations with a corresponding reduction in
the effort allocated to pure border-control operations. It should
also be noted that at such time as SAR operations are initiated,
such vessels would no longer respond to the coordination of the
International Coordination Centre (lCC) established for the particular
joint operation but receive operational instructions and guidance
from the Rescue Coordination Centre (RCC) responsible for the
SAR Region (SRR) within which SAR activities are taking place.
9. A further aspect of SAR which impinges
directly upon Frontex joint operations at sea is the question
of where rescued persons are to be disembarked. Again, some amount
of international law provides regulation in this regard. However,
a number of challenges exist which have yet to be addressed. Amendments
to the SAR and SOLAS Conventions promulgated in 2004 and which
came into force in 2006 were designed to clearly delineate the
manner in which disembarkations of rescued persons should occur.
However, although accompanied by guidelines, the said amendments
still contain points which remain debatable. In light of this,
Malta together with Finland and Norway have declined to accept
these amendments or in some cases parts thereof The situation
is further complicated by assertions made by organisations such
as the UN High Commission for Refugees (UNHCR) and the International
Organisation for Migration (IOM) that third countries, as exemplified
by Libya, do not represent a safe place to disembark rescued migrants.
In fact the United Nations High Commissioner for Refugees (UNHCR)
condemned the return by Italy of 180 people to Libya on 17 March
2005, saying that it was far from certain that Italy had taken
the necessary precautions to ensure that it did not send genuine
refugees back to Libya, which could not be regarded as a place
of safe asylum which statement was also quoted in a European Parliament
Resolution on Lampedusa of the same year. An additional layer
of complexity is added by the fact that it is conceivable that
rescued migrants are in a position to claim asylum in that State
to whom a warship or state vessel belongs. This has resulted in
the necessity for arrangements to be put into place prior to the
commencement of a given joint operation, a process which may be
somewhat contentious at times.
10. Whether it is practical to retain a
distinction at operational level between preventing irregular
migration and preventing crime. The act of irregular migration
has, in the majority of EUMS, been decriminalised. That having
been said, the facilitation and organisation of such voyages remains
a criminal offence carrying significant penalties including incarceration.
Thus, at the operational level there is inevitably a blurring
of the dividing line between the two issues. What is more of an
issue in this regard when considering Frontex joint operations
is the question of jurisdiction. In the cases of operations which
occur on the high seas, exercising jurisdiction is difficult as
a jurisdictional nexus cannot always be established. Thus any
distinction between irregular migration and preventing crime is
academic given that no jurisdiction really exists to suppress
either. This statement must obviously be qualified insofar as
certain crimes do exist (piracy, slavery, illegal transmission)
that attract universal jurisdiction on the high seas but these
are of little relevance to the matter at hand.
11. In practice, when considering the type of
Frontex joint operations that have been mounted in the central
Mediterranean, operations are not occurring in a zone where jurisdiction
can be exercised in respect to either irregular migration nor
criminal activities unless the latter have been made subject to
the provisions of a particular bi- or multi-lateral agreement
or convention.
12. Whether there is sufficient cooperation
from Member States in terms of personnel and equipment for joint
operations. When one considers the first phase of Operation Nautilus
II held between 25 June 07 and 27 July 07, it becomes immediately
apparent that the said operation was under-resourced, especially
in regard to surface assets. The force offering received for the
five-week operation conducted in the offshore environment was
as follows:
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| Surface assets: | Malta |
3 vessels for the duration of the operation |
| Greece | 1 vessel for 2 weeks
|
| Spain | 1 vessel for 10 days
|
| | |
| Air Assets: | Malta: | 2 aircraft for the duration of the operation.
|
| Germany: | 2 medium helicopters for 3 weeks
|
| Italy | 1 aircraft for 1 week
|
| France | 1 aircraft for 1 week
|
| | |
With the notable exception of the German contribution, all
assets were committed for relatively short periods and, especially
in the case of the surface assets, their operational activity
during the committed period was limited while the assets themselves
were not suited to an operation occurring some 100 nautical miles
from the available shore facilities. This is despite the existence
of CRATE (Centralised Record of Available Technical Equipment),
a database maintained by Frontex of those technical resources
which EUMS may consider making available for joint operations.
The weakness of CRATE is that the listed resources are only deployable
subject to the approval of those EUMS making them available and
sufficient financial resources being available to fund their deployment.
In fact, Ilkka Laitinen, Director of Frontex, stated in a 11 June
07 press release that "At the same time one can hear voices
from Member States inviting Frontex to use Rabits immediately
for stopping the flow of illegal migrants from Africa. These voices
would also like Frontex to deploy as much equipment as possible
to the region. Why? Because Frontex has 21 airplanes, 27 helicopters
and 116 boats. That's the fact I cannot deny, we have them . .
. on paper."
13. It is the reasons behind this lack of participation
that bear further examination. The general reluctance to provide
surface assets is related to the fact that no clear solution exists
as to where any rescued persons are to be disembarked. Thus a
justifiable apprehension exists on the part of the donor nations
that national military or police assets may become involved in
complicated situations with substantial numbers of third country
nationals aboard who may register asylum claims on board. Therefore
further moves towards clarification of the legal framework and
operational procedures under which such operations take place
may serve to allay such fears and provide for a more robust participation
by operational assets of the various EUMS.
14. The extent of Frontex involvement in surveillance
operations. Frontex itself does not generally play an active operational
role in operations. The role of the agency is more that of a coordinator
which serves to pull together the various national resources and
personnel provided by the respective EUMS. That having been said,
Frontex retains an oversight role both during the planning phases
of the operation as well as during the implementation. Support
is also provided in the form of provision of intelligence as well
as financial assistance that offsets up to 80% of the operational
costs incurred by the individual EUMS.
15. During the operations, coordination of the activities
is exercised from an International Coordination Centre (ICC) established
for the particular joint operation. The ICC will be manned by
representatives of all national contingents participating in the
operation as well as Frontex representatives who together form
the Joint Coordinating Board (JCB). All decisions regarding the
manner in which operational resources are employed are taken in
a collective manner by these persons with national representatives
having the final say on how their assets are employed. Throughout
this decision-making cycle the role of the Frontex representatives
is to facilitate this process while ensuring that the activities
decided upon are in line with the overarching operational, strategic
and political objectives set out for the particular joint operation.
The Director of Frontex has also been empowered to negotiate operational
agreements with third States which may facilitate the conduct
of such operations but whether such powers have been exercised
to date is not known.
16. How Frontex joint operations are planned and mounted.
Before the beginning of each new year, Frontex invites EUMS to
submit proposals for border control operations for the ensuing
year which proposals generally include the objectives, the area
and duration of the joint operation. FRONTEX will then assess
the proposals and decide which operations are viable subsequent
to which the operational budget allotted by the Commission is
divided amongst the approved operations. The amount of funds channelled
to each operation is based on the proposed duration of the operation,
the assets involved, and the estimated effectiveness of the operation.
17. Those EUMS which have had their proposals approved
are then requested to forward a draft operational plan, which
is in turn forwarded to the other Member States for their assessment.
Frontex then invites EUMS to participate in the operations and
initiates a series of planning meetings in Warsaw and the host
countries. Meanwhile, the Member State which proposed the operation
is tasked with preparing a detailed plan for the operation, whilst
Frontex assists by coordinating all the operational details with
the participating EUMS. If needs be, the original operation plan
may be further modified until all participating EUMS are satisifed
that the contents thereof conform with the parameters set by their
respective politicians and service exigencies. A final operator's
brief is held in the hosting country a few days prior to commencement
during which advance parties discuss final logistical requirements
and tactical information and procedured.
18. Once the operation commences, this is coordinated
through the International Coordination Centre (ICC) that is based
in the hosting Member State. This is manned by local personnel
that are specialists in communications and operational planning.
Meanwhile, the ICC is also equiped in accordance with the minimum
Frontex requirements in regard to such items as PCs, faxes, telephones,
etc. The ICC's primary tasks include:
a. Implementing the operational schedule authorised by
Frontex for participating units in coordination with the latter
agency.
b. Coordinating the development of maritime/air operations
in respective operational areas.
c. Receiving reports from assigned assets, collecting
and evaluating all the data, and conveying relevant information
to other National Coordination Centres.
d. Once migrant vessels are sighted, the ICC will provide
assets with recommended courses of actions in accordance with
national and international law.
19. The ICC will report to the Joint Coordinating Board
(JCB) which is responsible for running the joint operation. This
Board is led by an official designated as the Coordinator who
is generally a senior national officer of the leading Member State.
Other members of the JCB include a representative from each Member
State which provided air and/or maritime assets, who are designated
as National Officials as well as a Frontex liaison officer and
intelligence officer who maintain the flow of information to Frontex
after analyzing information from debriefing teams. The latter
are expert interviewers that are provided by participating Member
States for the duration of the joint operation.The command and
control of maritime and/or air assets participating in the operation
remains under the authority of National Commands through the nominated
National Officials on the JCB. The tactical command of maritime
and air assets remains under the authority of the specific Commander
of each asset. Patrolling is carried out by naval and air units
in order to acquire a clear surface situation in the sectors,
whilst information regarding contacts of interest is forwarded
to the ICC via any communication means for guidance and action
deemed necessary.
20. How Frontex joint operations are monitored and the
outcomes evaluated. Frontex assesses joint operations through
its Risk Analysis Unit (RAU) which prepares questionnaires in
order to collect specific information during and after the EU
joint operations for further analysis. Frontex staff attached
to the ICC send daily reports which give a breakdown of all relevant
information pertaining to the operation. These analytical questionnaires
are analysed in order to provide a picture of difficulties or
obstacles encountered by the forces deployed. All information
received at Frontex is assessed and documented, and when appropriate,
alerts are passed onto other EUMS. The latter are expected to
give feedback to Frontex through their respective National Focal
Points. of Contact (NFPOC) regarding migration trends in their
respective countries so that Frontex will be able to ascertain
whether the on-going operation could have induced a displacement
effect. At the end of the operation, the RAU compiles an evaluation
report, which is intended to indicate the success or otherwise
of the operation. The said evaluation report generally includes
the following topics:
— Analysis of Replies to the Analytical Questionnaire.
— Number of migrant cases including Asylum Seekers.
— Entries refused (in case of airports).
— Other Irregularities which may include implications
in the trafficking of drugs and human beings.
— International Criminal Networks.
— Comparison by statistics with previous operations.
— Operational Evaluation by the Deployed Experts.
21. The scope of the final evaluation report is also
to make recommendations for the future. This may include the improvement
of basic tools such as language skills, IT, or analytical questionnaires
which need to be more target-specific. Another vital aspect is
to ascertain whether the operation actually induced migrant traffickers
to change their modus operandi by putting pressure on other
illegal points of entry including major changes to the migratory
routes. In this sense, the evaluation report makes recommendations
to secure other weak and illegal access points which have emerged
during the joint operation. The recommendations also include courses
of action to target specific nationalities attempting to enter
EU borders, including the possibility of improving international
enforcement agencies such as Europol or Interpol which could be
better exploited to enhance the investigation of cases related
to the involvement of travel agencies, smuggling organizations,
and other trans-border crime.
22. Whether there is, or should be, any involvement of, or
assistance from, the military in Frontex operations. Military
involvement in Frontex operations already occurs, with the AFM
being a case in point. Furthermore, Operation Nautilus has involved
military resources from both France and Italy at various stages.
Such involvement generally takes place when the military is assigned
full or partial responsibility for various aspects of border control
in the State of Origin. This would usually imply that some form
of national legislative framework supporting such an employment
of the armed forces exists. Furthermore, especially in the case
of maritime operations which generally take place on the high
seas, the specific nature of a maritime or air unit bears little
relevance given that activities are governed by international
legal frameworks which generally accord the same rights to warships
and other state vessels such as those operated by police or customs
agencies.
23. A number of other considerations must be taken into
account when considering the employment of military assets. On
the one hand such assets are generally extremely capable in regard
to their detection and tracking facilities and are usually far
more deployable than police or customs assets which are designed
for employment within areas of national jurisdiction. Such assets
are also more interoperable as procedures are usually based on
widely-accepted standards. That having been said, care must be
exercised during operations where third countries may be hosting
operational assets or allowing them to operate within their national
jurisdictional zones. While it may be perfectly acceptable from
a political point of view to permit such activities when undertaken
by "non-belligerent" police and coastguard platforms,
the presence of military platforms may lead to friction and weakened
internal support for such activities given the spectre of colonialism.
24. How the Agency's role should develop in the future.
There is a body of opinion that feels that Frontex should continue
to evolve into an operational organisation in contrast to its
present roles of coordination and facilitation. This view is supported
by the Frontex Regulation which foresees the procurement by the
Agency of its own operational assets. Thus, in theory, Frontex
could evolve into a supranational "border guard", operating
in support of the overarching interests of the Union. Such a view
is, however, overly simplistic especially when applied to operations
in the maritime field. All aircraft and vessels must perforce
operate under the flag of a state, be they military or civilian.
Thus a national connection is inevitable bringing with it all
the considerations related to asylum claims, use of force, operational
procedures, command and control and disciplinary structureS necessary
within a uniformed force. It is hard to imagine any EUMS allowing
use of its flag for the assets involved in such operations without
retaining at least some level of control over the activities of
those assets especially when one considers the eventual diplomatic
implications which may arise.
25. Maintaining such a force also requires a substantial
investment in all the support structures associated with such
resources, be they technical, administrative or infrastructural.
When one considers, for instance, the approach of NATO to the
generation of a multinational force, it quickly becomes apparent
that NATO itself operates very few resources (restricted mainly
to support and research platforms) preferring instead to rely
on the contributions of the member states operating under NATO
command, control and coordination. Even this approach requires
the promulgation of unanimously-approved procedures, rules of
engagement, operating standards and equipment specifications.
26. Thus a more realistic way forward for Frontex seems
to be to enhance its coordination and facilitation activities
while continuing to rely on the individual EUMS for force offerings.
This process can be encouraged by Frontex providing robust, consensus-based
operating procedures under which to conduct such operations while
also making efforts to provide clarity as regards the legal framework
within which the operations must take place. The provision of
support assets, such as unmanned surveillance platforms, may also
represent an area where Frontex can make a further contribution
to future joint operations. All this should occur against a background
of expanded efforts by Frontex to provide intelligence support
during both the planning and deployment phases of such operations
as well as increased financial assistance to offset the substantial
unplanned costs incurred by EUMS when deploying national assets
out of area Increased financial resources would also allow an
increase in the geographical and temporal scope of operations
thus providing a more persistent deterrent to would-be migrants
rather than a temporary stop-gap measure.
27. Efforts also need to be made by Frontex to assist
in addressing the indirect costs and long-term financial and social
aspects incurred as a result of such operations. Some EUMS may
shy away from hosting such joint operations due to the fact that
there is a strong possibility of these resulting in an elevated
influx of would-be migrants which are intercepted or rescued by
participating units. Establishing a framework by which this burden
can be equitably and efficiently shared will further encourage
the various EUMS to take a leading role in such operations by
freeing them from the political and financial concerns that may
be associated with such activities.
28. Finally the Agency must make more of its role as
the Union's interlocutor with third states in regard to migration
matters. The leverage available should be used to move transit
and source countries towards operational agreements which see
them not only allowing EUMS assets to operate in their jurisdictional
areas but possibly even participate as partners in joint activities.
While some progress has been made in certain regions in this regard,
other areas are lagging far behind with no sustainable solution
to the migration issues in sight without managing to obtain the
cooperation of various non-EU partners.
7 September 2007
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