'Fortress Europe' and FRONTEX: Within or Without International Law?

Abstract

AbstractIt is true that the problem of interception of human beings on the high seas is more acute than ever, not only in terms of the number of vessels intercepted but also in terms of the variety of legal issues that it raises. The most worrisome observation, however, is that while interception of human beings has been practiced for centuries, currently the pendulum has swung from interception to free and save lives, for example, in the context of chattel slavery, to interception to prevent people from entering developed States and claiming a better future. This is particularly reflected in the practice of EU Member States, which have taken many initiatives in the maritime domain to strengthen the external borders of 'fortress' Europe. Lately, this practice is coordinated by a European Agency, commonly referred to as FRONTEX, which was established in 2004 in order to "coordinate the operational cooperation between Member States in the field of external borders management". To this end, FRONTEX has launched a number of maritime interdiction operations carried out on the high seas and even further, i.e. in the territorial seas of States of departure or transit, such as Mauritania, Senegal, Cape Verde. The purpose of this article is to address the most important questions that these maritime operations of FRONTEX raise, analysing them through the lens of the law of the sea and other rules of corpus juris gentium. Accordingly, in the first part there will be a thorough discussion of the pertinent legal bases of the interception operations on the high seas and in the territorial waters, while in the second the analysis will focus more on the relevance of other international rules like the use of force or the principle of non-refoulement to the present context. The application of the latter principle appears to be especially problematic in the majority of these operations since it is very likely that the persons onboard the intercepted vessels would be forced to return to their countries of origin, where they may be subjected to torture or inhuman or degrading treatment.