DI MARGHERITA CESERANI
One of the greatest challenges to European democracies in the last decade has been the increasing flow of incoming people, through unsecure routes and smuggling action. Following the Trumpist hysteria of building walls, European leaders have set up a military fortification consisting of armed operations in the Mediterranean Sea and other borders with the aim to prevent illegal journeys. Since refoulement of illegal migrants is forbidden by international law, the management of borders has steered into a violent contingency, comprising the use of sophisticated arms and technologies against asylum seekers escaping war scenarios.
New technologies are becoming more and more central in the evaluation process according to which migrants are acknowledged as persons entitled to cross a border or to be blocked before arrival. Accordingly, the tendency is to employ hi-tech gear in border management, and to pursue the political inclination of external border fortification in what has been defined as “Cyber-Fortress Europe”. Drones, biometrics, and other machineries have been typically used for military reasons, however, patrol from the sky is rising as a civil practice for preventing people from reaching European edges. Accordingly, migrants are discriminated against for the right to seek asylum. Moreover, their employment is not only restricted to Europe per sé, instead partners and Third Countries, like Turkey and North African states, are more frequently provided with the know-how and components to carry on hi-tech surveillance. The employment of drones for border control raises several questions on their effectiveness, as well as their respect for European and international human rights legislation.
The EU Drone Regulation 2021 recognizes the need to develop a common set of rules regarding drones and human rights. The legislation understands that operation of drones should be regulated in a proportionate manner to the risk of the specific operation. However, risks associated with people’s security are left to national provision, signaling there is still no common ground on human’s protection from UAVs’ hazards. As Article 6 of the Schengen Borders Code recites, border control should be fully in line with respect to human dignity, not discriminatory, and proportionate to the pursued objectives; obligations to protect human rights should be respected by border managers also when carried out on European borders.
Despite the fact that European legislation outlines drones as remotely piloted aircraft systems (not surveillance systems), European and partner states have expanded the scope of these military tools for the sake of fulfilling internal security and external threat prevention at borders. As such, national police agencies and Frontex can deploy Raptors and Predators, two types of UAVs, to carry out intelligence and monitoring operations. Targets of the UAV image acquisition systems are not, however, foreign soldiers as it happens to be in warfare contexts like in the Ukraine, but inflowing migrants on illegal routes, used with the aim to provide border guards with communication on their position. The intended outcome is to convert border patrol into a reactive response to migration, thus abandoning the hitherto characterizing pro-active approach to safeguarding the Schengen area.
The choice behind the increase of drones’ purchases is said to lie in their operational advantages, for example they reduce staff’s costs, they are effective under poor weather conditions (in contrast to satellites) and for longer periods (than humans). Nevertheless, to date their employment in Search and Rescue operations is limited to site determination, risk analysis and condition assessment, holding no direct intervention power. Moreover, communication between drones and operative centers are often slow and result in delayed involvement of rescue units on the field. Figures prove that drone maintenance and operations are not cheap at all: Frontex’s Aerial Surveillance Service, for example, has settled a contract with the Dutch company Airbus in Malta worth €50 million, with the aim to provide 1200 flight hours, to which 1870 other flight hours have been summed. Finally, it remains unclear how this increased surveillance through drone technology will contribute to the security of migrants.
Employing a humanitarian narrative can, indeed, be a persuasive legitimizing element when applied by traditional security entities. The benevolent framework surely enables actors to offset their public perception: their strategies appear not solely to be focused on control but also encompass a caregiving aspect. The humanitarian justification adds an additional level to the European strategy to border management, establishing a dual sense of “emergency” in that the demand for the most advanced technological solutions meets the need of a facilitated comprehensive oversight and data gathering. Notably, European and global drone producers are often extended invitations to exhibit the latest innovations at the Frontex Industry Days, offering further room for socialization and influence among border management authorities, research institutes, and the defense industry. However, power supported by financial capabilities should not override human dignity, and the interests of the European defense industry should not encourage securitized practices on people in distress. It should not be forgotten that EU states are bound to respect the European Convention on Human Rights (ECHR).
If drones are frequently poised to play a crucial role in locating migrants at sea, as they have the capacity to cover a much broader expanse than conventional manned vessels or aircraft, such tools operate primarily as sensing and detection technology, they do not offer a comprehensive solution to the fundamental issues inherent in Search-and-Rescue operations.
Another central challenge associated with drone deployment in the Mediterranean Sea revolves around the privacy and data protection rights of individuals within the drone's line of sight at sea, encompassing fishermen, tourists, and migrants. Indeed, drone technology for civil purposes challenges legal frameworks like Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, according to which individuals have the right to privacy and the right to the protection of their personal data. On the other hand, states are allowed to restrict the scope of the obligations and rights, if this is necessary to protect national security (Data Protection Directive 95/46/EC). Restrictions to fundamental rights have to be based on the rule of law, and have to be necessary to protect public order values (such as national security and public safety) and prevent disorder or crime.
Finally, Cyber-Fortress Europe threatens to generate the so-called chilling effect, or to say the discouragement of the legitimate exercise of a constitutional right because of the fear of potential or threatened prosecution or sanction, which leads to normalization of previously unacceptable levels of surveillance. European and national defense agencies should not fall in the trap of using drones for pull backs before borders. Monitoring must avoid criminalizing people, but with further development can be employed to save them.
Further sources to be consulted:
Marin, Luisa, and Kamila Krajčíková. “Deploying Drones in Policing Southern European Borders: Constraints and Challenges for Data Protection and Human Rights.” Drones and Unmanned Aerial Systems, December 24, 2015, 101–27. https://doi.org/10.1007/978-3-319-23760-2_6