Drone and Border Surveillance: Necro-Racial Effects in the Mediterranean

Drawing on the new DEMIG VISA database which covers global bilateral travel regulations from 1973 to 2013, this paper explores patterns and trends in international travel visa regimes. The analysis challenge the idea of a growing global mobility divide between ‘North’ and ‘South’, yielding a more complex image reflecting the multi-polar and multi-layered nature of international relations. While predominantly European and North American OECD countries have maintained relatively high levels of entry visa restrictiveness for Africa and Asia, the latter regions have the highest levels of entry restrictions themselves. While citizens of wealthy (mainly OECD) countries generally enjoy greatest visa-free travel opportunities, this primarily reflects their freedom to travel to other OECD countries. Visa-free travel is mostly realised between geographically proximate countries of integrated regional blocs such as ECOWAS, the EU, GCC and MERCOSUR. Analyses of global dynamics in visa reciprocity show that 21 per cent of the country dyads have asymmetrical visa rules, but also show that levels of reciprocity have increased since the mid-1990s. Our analysis shows that visas are not ‘just’ instruments regulating entry of visitors and exit of citizens, but are manifestations of broader political economic trends and inequalities in international power relations.

This chapter explores the challenges underlying the policy choice of deploying drone technology in the area of border surveillance, with specific reference to the surveillance of European Union (EU) member states' external southern borders. Border surveillance is one of the top priorities of the member states of the EU for several reasons: the most prominent is the fight against irregular migration and cross-border crime. Within this context, public agencies (at both the national and the European level) are investing important resources in deploying the most up-to-date technologies, in an attempt to stop undesired migrants. The deployment of drones for border policing purposes is already a reality in the USA, and also in some EU member states. Frontex has also devoted attention and resources to exploring the possibility of deploying drones in border surveillance, as they are seen as beneficial assets in the perspective of European Border Surveillance System (EUROSUR). The aim of this chapter is to explore the recent developments constituted by the deployment of drone technology in border surveillance. The chapter first introduces the actors, policies and practices in the sphere of border management, specifically in the area of border surveillance (1); then it discusses the use of drone technology for border surveillance, looking not only at its potentialities but also at its current shortcomings (2); it will then move toward the regulatory framework enabling the safe deployment of drones under aviation law and on border surveillance (3) and presents the constraints represented by fundamental rights and data protection rules on drone technology and the challenges drones represent for the human rights of migrants Migrants human rights of (4), before concluding that drone technology might entail a further securitisation of border surveillance, together with a shift toward preventive border surveillance (5).

In the European Union (EU), border control and surveillance have emerged as significant policies for managing migration. The EU’s action at the external borders is based on a combination of migration securitisation and externalisation of border management policies. The EU follows a ‘shared competence’ and ‘shared responsibility’ for developing an integrated European border management system in the context of migration control. This chapter examines the division of internal and external competences and responsibilities between EU institutions/agencies and national authorities of member states concerning border management and migration. Further, it analyses the intensity and scope of the EU’s intervention in this area along with its limitations. The European integrated border management is crucial for improving migration management and is conducted within a multi-level governance system with binding rules and various actors. This raises concerns regarding the exact allocation of competences and corresponding obligations and responsibilities conferred on each of them. The Schengen Borders Code (Regulation (EU) 2016/399) and the European Border and Coast Guard Regulation (Regulation (EU) 2019/1896) are the primary legally binding instruments, which specify common (supranational) rules governing the movement of persons across EU borders and highlight how member states manage their borders serving a common interest within an increasingly harmonised substantive and institutional framework. Although, the rules relating to the management of EU external borders continue to evolve in the context of the Schengen acquis, member states retain their own competences and responsibilities regarding border control and entry to their territories concerning the maintenance of legal and public order and national security. However, the member states are required to exercise their competence in this field in compliance with the objectives and acts of the EU’s border management and migration acquis and policies, ensuring full respect for fundamental rights.

Approximately one million people used the Mediterranean Sea routes to reach the European Union (EU) and seek asylum in 2015. The vast majority of these people used the eastern Mediterranean route from Turkey to EU member state, Greece. They continued along the Western Balkans route to re-enter the EU, either through the Republic of Croatia (Croatia) or Hungary. In March 2016, the Western Balkans route was declared closed by EU representatives. These border closures coincided with the implementation of the EU-Turkey Statement. Agreements between the EU, Turkey, and the countries of the Western Balkans ended the influx of people seeking asylum in the EU. More people lost their lives trying to reach the EU to seek asylum in 2016 than in 2015 using alternative routes to the eastern Mediterranean route, such as the central Mediterranean route, and there are increasingly more people seeking asylum being detained in Turkey and Greece. In addition, as of May 2019, there were just under 4000 people waiting in limbo in the Republic of Serbia, most of whom were in the recently opened ‘migrant reception and transit centres,’ while over 500 people are estimated to be camping close to borders with Croatia, Bosnia and Herzegovina or Hungary. My hypothesis is that by strengthening the EU’s external borders for people seeking asylum, the EU has attempted to restrict access to asylum and the arrival of people in need of international protection in Europe. The ‘saving lives’ rhetoric, which is the purported aim of policies such as the EU-Turkey Statement, does not appear to capture fully the motivations of EU actors or acknowledge the impacts of EU actions on people seeking asylum. It is important to delve deeper into the consequences of the EU and individual member state responses to the 2015 influx of people seeking asylum in order to (i) analyse for whom these measures ensure security, (ii) determine why they have been implemented, and (iii) describe how these measures impact on the right to asylum. This thesis employs the theoretical framework of securitisation to analyse the reasons behind the closure of the Western Balkans route and the EU-Turkey Statement in order to identify the dominant security paradigm and how securitisation impacts access to asylum in Europe. The consequences of the EU-Turkey Statement and the closure of the Western Balkans route suggest that providing protection for people seeking asylum is not imperative in the EU and reinforces the narrative of only EU citizens deserving freedom and security from the perceived ‘threat’ of unmanaged migration. To test my hypothesis that the ‘saving lives’ rhetoric is misleading, I collected empirical data in the form of interviews from government officials along the Western Balkans route, Greece and Hungary, as well as non-governmental organisations, and intergovernmental organisations. In addition to empirical research, I conducted a doctrinal analysis of EU regulatory frameworks and provide a background analysis of EU law concerning matters of migration and asylum and its increasingly restrictive tendencies, as well as that of the countries of the Western Balkans and Turkey. I used triangulation to validate my findings. This thesis presents how European governments fuelled the 2015 ‘migration crisis’ with their mismanagement and reluctance to work together to resettle and relocate people from Turkey and out of Europe’s ‘hot spots.’ Empirical data shows that people seeking asylum are not perceived by the interviewees of this research as a real(ist) existential threat, but that their presence has been constructed as ‘burdening’ and threatening in other ways, such as to the labour market, social services and religious and cultural makeup of European society. The ‘crisis’ and threat of undocumented migration was used for electoral benefits and to reinforce the power and control of EU governments, institutions and agencies. The year 2015 brought the plight of millions of people displaced around the world to Europe’s doorstep. In order to ‘save lives,’ European governments, institutions and agencies mobilised to secure the borders to prevent people from drowning at sea. Stronger border security, however, has resulted in adverse consequences: an increase in smuggling, more dangerous alternative pathways, and has externalised the EU border, restricting access to asylum on European territory. While tragic, the majority of interviewees viewed the influx as a ‘crisis’ and ‘threat’ predominantly in terms of the numbers and irregularity (transit) – and not in the number of lives lost. Measures implemented in 2016 as a result of the 2015 influx privilege the security of EU citizens over those in need of international protection.

The external dimension of European Union (EU) border management cooperation has recently been developed, in particular through the promotion of integrated border management (IBM). The European Commission has been keen to foster IBM, an attempt to reach EU standards in the absence of an EU common border service. Integrated border management is regulated under the Treaty of Lisbon, and the Stockholm Programme calls for its further development. This article analyses and compares the policy instruments promoting IBM standards beyond EU borders, namely the European Agency for Operational Cooperation at the External Border of the Member States of the EU (FRONTEX) (with the signature of Working Arrangements with the border services of third countries) and the activity of the EU Border Assistance Mission to the Republic of Moldova and to Ukraine (EUBAM) at the Ukrainian–Moldovan border. Moreover, it provides an empirical account of IBM activity carried out in the Eastern Partnership and Russia, and explains the reasons underlying the lack of IBM promotion in the southern Mediterranean countries.

This dissertation investigates the implications of the EU non-tariff measures, focusing on both SPS measures on food safety and technical regulation aspects of TBT that govern the agricultural food sector, and their consequence for African exports. This is undertaken in four distinct but interrelated essays. In the first essay, we investigate if the European Union (EU) sanitary and phytosanitary standards and technical regulations governing fish products are overprotective in nature following the reoccurring rejection of Africa’s fish exports by the EU at its borders since 2008. To produce unbiased and consistent estimates for policy making, we undertake a careful consideration of the robustness of a number of widely used estimators. We find that the EU food measures are indeed non-protectionist in spite of the huge level of Africa’s fish exports rejected at the EU border since 2008. This result shows that the high incidence of border rejection cannot be wholly attributed to stringent EU fish standards but rather to Africa’s inability to comply with the EU standards. We therefore agitate that deeper trade negotiations between the EU and African countries involving a significant transfer of science and technology to Africa could help improve Africa’s compliance to EU fish standards and ensure increased export penetration. The second essay of the thesis has focused on how the EU sanitary and phytosanitary standards on pesticides residual limits affect selected Africa’s fresh fruit and vegetable exports using a previously unexploited dataset on EU regulation of citrus and tomato pesticide standards. In addition, we also analyse the trade effect EU entry price system which aims to protect EU growers of certain fruits and vegetables against international competition. We represent these trade costs in the context of a Melitz firm heterogeneity framework using the Helpman, Melitz and Rubenstein (2008) method. At the extensive margin of trade, the high stringency of EU pesticide standards prevents new entry into the EU market, drives less productive firms away, and discourages existing exporters from expanding their market base. However, at the intensive margin, the trade effect is product specific as standard can either be a catalyst or barrier to export success, depending on the product considered. Furthermore, our results also reveal that the EU entry price system has no apparent effects on all products considered but significantly impedes the export of tomatoes to the EU. To ensure increased market access, we recommend the negotiation of deeper trade agreements with comprehensive provisions on standards by the trading partners. In the third essay, we investigate the protectionist extent of EU sanitary and phytosanitary measures covering pesticide standards using a sample of EU food imported from African countries with a specific focus on tomatoes and citrus fruits. We formalize what protectionism is by comparing EU food safety standards to the internationally scientific referenced benchmarks regulated by both the Food and Agricultural Organisation and the World Health Organisation. Our results show that the EU tomato food sub-sector is less dependent on imports and is overprotected by more stringent standards relative to the international benchmarks. Conversely, we find that the EU orange and lime and lemon food sub-sectors are heavily import dependent and are under-protected relative to the international standards. These results largely support the hypothesis that heavily import dependent food sub-sectors are less protected, and vice versa. The implication of our findings highlights the fact that importing countries’ standards are not always protectionist or protectionist as widely portrayed in the literature and can at times be anti-protectionist relative to internationally acceptable standards. The fourth essay was inspired from antecedent evidence that selected food exports of many African countries were rejected at the EU border due to their inability to conform with the required EU standards. Thus, in the fourth essay, we investigate the causes of the rejections of African exports at the EU borders and collated detailed data on the driving the inabilities of Africa countries to comply with EU food safety standards. Our results indicate that natural geographical hurdle, poor trade-related infrastructure, inefficient border procedures and a lack of technical personnel increase the incidences of rejection at the EU border and add to Africa’s challenges in accessing EU markets. In addition, in line with the growing literature, this study finds empirical support for the proposition that institutions, infrastructure and logistic quality matters for increased market penetration and continuous integration into the global trading system. The study recommends that the barrier created by the EU rejection of Africa’s exports can be overcome through the strengthening of Africa’s institutions and trade facilitation measures.

Automated decision making is becoming the norm across large parts of society, which raises interesting liability challenges when human control over technical systems becomes increasingly limited. This article defines “quasi‐automation” as inclusion of humans as a basic rubber‐stamping mechanism in an otherwise completely automated decision‐making system. Three cases of quasi‐automation are examined, where human agency in decision making is currently debatable: self‐driving cars, border searches based on passenger name records, and content moderation on social media. While there are specific regulatory mechanisms for purely automated decision making, these regulatory mechanisms do not apply if human beings are (rubber‐stamping) automated decisions. More broadly, most regulatory mechanisms follow a pattern of binary liability in attempting to regulate human or machine agency, rather than looking to regulate both. This results in regulatory gray areas where the regulatory mechanisms do not apply, harming human rights by preventing meaningful liability for socio‐technical decision making. The article concludes by proposing criteria to ensure meaningful agency when humans are included in automated decision‐making systems, and relates this to the ongoing debate on enabling human rights in Internet infrastructure.

THE COHERENCE OF EU LAW: THE PROMOTION OF INVESTMENTS VS. THE PROTECTION OF HUMAN RIGHTS

The European border regime has traditionally rested on the hidden surveillance activities of border authorities, which have contributed to human rights violations (including “push-back” and “left-to-die” practices) and a rising migrant death toll. Recently a number of humanitarian and activist organizations, including Migrant Offshore Aid Station (MOAS), Médecins Sans Frontières (MSF), Sea-Watch, and WatchTheMed, have organized to aid migrants in distress at sea using surveillance technologies, ranging from drones to GPS. By doing so, they presented a challenge to the European border surveillance regime. In dialogue with the concept of countersurveillance, this paper introduces the concepts of humanitarian surveillance and human rights surveillance and deploys them to examine and categorize the activities of MOAS, MSF, Sea-Watch, and WatchTheMed. Humanitarian surveillance narrowly focuses on aiding victims of surveillance without problematizing the logic and hierarchies of surveillance, while human rights surveillance operates as a form of countersurveillance; it aims to protect and advance the human rights of victims of surveillance and expose human rights violations committed by authorities through opposing the hierarchies of surveillance. The paper shows how civilian groups incorporate elements of humanitarian and human rights surveillance in their activities at varying levels and discusses the extent to which they challenge the European border surveillance regime.

Within the areas of immigration, asylum and external border control, the European Union (EU) and its member states have often been caught between the conflicting goals of protecting human rights whilst at the same time tightening up immigration laws and external border controls. One of the areas increasingly subject to human rights criticism is that of cooperation in the management of external borders. Even though this is part of a more general trend towards international cooperation in migration control, the mutual assistance between EU member states is remarkable in its extent and institutionalisation. In 2004, the Agency for the Management of Operational Cooperation at the External Borders of the EU Member States (Frontex) was created. Its task is to ensure the coordination of the actions of member states in the implementation of Union measures relating to the management of external borders. The agency provides technical expertise, facilitates the exchange of information and coordinates operational activities of member states. Within this framework, Frontex also coordinates joint border control and surveillance operations in which financial and technical means as well as personnel are deployed by participating member states and Frontex to support a host member state in the control of their external borders. On 1 November 2014, for example, a Frontex-coordinated joint operation named ‘Triton’ started its activity in the Central Mediterranean in support of Italy’s efforts to control its southern border. In addition to Italian personnel and equipment, Triton relies on human and technical resources made available by twenty-one participating member states. The contributions include aircrafts, helicopters, vessels and a total of sixty-five guest officers for intelligence gathering and identification screening purposes. Apart from the challenges relating to reach, applicability and enforcement of human rights, these operations raise the question of how to allocate responsibility between the cooperating actors, in particular where allegations of human rights violations arise. This in turn reflects a more general difficulty to deal with multi-actor situations, that is to say instances where several actors cooperate in or contribute to the realisation of a breach of international law, in the law of international responsibility. The central aim of this contribution is to explore responsibility of ‘third parties’, understood as those states or international organisations that merely contribute to a violation and are thus not the principal actors to whom the relevant conduct in breach of human rights is attributable. Attribution, as a precondition for responsibility, is binary. Hence there is no possibility of ‘a bit of attribution’ triggering ‘a bit of responsibility’. Put simply, no attribution of the relevant conduct in breach of the law means no responsibility. Contributions to a wrong that remain below the threshold required to create an ‘attribution link’ thus seem to escape responsibility. The question therefore arises whether third parties operate within a ‘blind spot’ of the framework of international responsibility, making the primary actor the only bearer of the consequences following from the breach. For example, are those participating in a Frontex-coordinated operation released from responsibility for alleged human rights violations occurring during operations, if the relevant conduct is not attributable to them? After setting out how the rules on attribution of conduct, coupled with the principle of independent responsibility, lead to a ‘gap’ in responsibility regarding those whose involvement falls short of creating an ‘attribution link' (section 2), this contribution divides third party responsibility into two categories (section 3). These two forms, original third party responsibility and derivative third party responsibility, shall be discussed in more detail in sections 4 and 5 respectively. The case of Frontex-coordinated operations, focusing on participating states’ responsibility under the European Convention of Human Rights [ECHR or ‘the Convention’], serves as an example to illustrate the application of these forms of responsibility. It is argued that international law, and even to a larger extent human rights law, offer mechanisms to hold third parties responsible for having played a role in breaches committed by other states or international organisations. However, even though third parties by no means operate within a ‘blind spot’ of the law of international responsibility, implementation of such responsibility may prove difficult in practice.

The “Invisible Children”: Uncertain Future of Unaccompanied Minor Migrants in Europe

Violent border practices against irregular migration are not new, although increasing xenophobia and anti-immigrant sentiments have drawn greater attention to such practices in recent years. Such measures—both in and at the borders—constitute organized violence on migrant bodies, making them permanently insecure. This is particularly striking in the context of European liberal democracies with its established discourse of human rights, which have since the 1990s consolidated a formidable architecture of deterrence and which have intensified such efforts with the 2015 “migrant crisis” with increasing sea interceptions, restrictive anti-immigrant measures, and the criminalization of solidarity efforts. This article asks: How does the European Union (EU) legitimize violence in its border regime and reconcile this regime with its core identity as a defender of human rights and a “normative superpower”? By drawing on critical discourse analysis and reviewing policy statements, speeches, and press releases, it identifies the discourse topics, discursive strategies, and linguistic means through which EU migration discourse seeks to legitimize its sprawling architecture of strategic cruelty against irregular migration. This article argues that the purpose of the resulting discourse is to “absolve and resolve”—absolving the union as a whole of guilt and resolving the cognitive dissonance between the professed identity of the EU as supremely humanitarian and the observable inhumane acts of itself and its member states. This explains how the EU can employ strategic cruelty to mitigate the arrival of migrants while simultaneously maintaining moral standing to chastise individual members for “violating” the hegemonic collective identity of the union.

The reason for writing this article is the fact that the migration crisis that has been ongoing in Europe since 2015 is one of the greatest challenges that the European Union (EU) has faced since its establishment. It requires Member States to fulfill their obligation to ensure the security of the EU’s external and internal borders, while respecting common values, which include solidarity and human rights. The aim of the article is to analyze and evaluate the currently functioning migration policy, especially in the context of the use of EU IT systems in the face of the phenomenon of refusal of entry into the territory of the receiving country. This combination of two research areas fills a certain gap in the current literature on the subject. De lege lata comments and de lege ferenda demands will be presented, focusing primarily on criticism of the current system. The research used two research methods typical of legal sciences: the formal-dogmatic method and the comparative method. As a summary of the findings, it can be noted that investments are actually being made in new IT systems, the potential of which is still unused, and on the other hand, it is clear that basic human rights are not fully respected in the form of allowing applications for international protection. There is a need to reform migration management at the national level of Member States to be as consistent as possible with EU law and, in particular, its fundamental values.

This chapter discusses the challenges presented by the increased ease of opportunity for transient serious violent or sexual offenders to move across European Union (EU) borders. The Serious Offending by Mobile European Criminals project brought together a range of European Union (EU) law enforcement and probation personnel to investigate the use of existing mechanisms for information exchange available to EU Member States. This chapter focuses on how varied understandings and commitments to concepts of risk, rehabilitation, multi-agency working, and privacy and data protection influence information exchange. Several EU legislative frameworks support a proactive engagement in shared cross-border understandings of identifying who is high risk and how this information is to be exchanged. However, establishing an EU-wide commitment to such information exchange remains in its infancy. The chapter concludes by considering the impact of this tardy progression, together with the UK’s withdrawal from the EU and any assumption that ‘closed borders’ are a quick fix.

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