Over the last year, discussions by business and human rights scholars and practitioners in relation to refugee protection have mainly focused on the exploitation of refugees in company operations and global supply chains.Footnote 2 In this article, I do not intend to suggest that this focus is inappropriate, as the exploitation of refugees – children and adults alike – along the supply chains of various industries is unfortunately a significant issue that needs to be further examined and better addressed. Instead, I wish to take the discussion to a different locale, which I argue presents equally crucial challenges in terms of addressing the implications of abuses perpetrated against people on the move.
I focus specifically on the involvement of Private Military and Security Companies (PMSCs)Footnote 3 in both shaping and implementing the European Agenda on Migration (European Agenda), launched by the European Union (EU) in May 2015 in response to a sharp rise in the number of deaths at sea while attempting to reach EU shores.Footnote 4 The policies which have since been adopted by the EU and its Member States to respond to the refugee ‘crisis’Footnote 5 have increasingly enabled the outsourcing to PMSCs of various migration control operations, including inter alia those related to deportations and removal, housing, transport, the detention of refugees and the security of reception and/or processing centres, such as the ‘hotspots’ in Italy and Greece.Footnote 6
The scope and nature of the human rights abuses occurring at the hands of PMSCs implementing EU migration-control policies is well known and has been accurately documented.Footnote 7 Yet, achieving remedy for victims of business-related human rights abuses taking place in migration settings remains an intractable challenge, not least for the jurisdictional hurdles faced by the victims and for the non-state-actor status of PMSCs, who are traditionally not directly bound by international law.Footnote 8 The nature of the abuses and the difficulties encountered in ensuring effective remedies in the context of business’ involvement in migration control were emblematically evidenced in the recent Kamasaee v Commonwealth case, a class action suit against the Commonwealth of Australia and two corporate contractors in charge of operating the immigration detention centre on Manus Islands in the Independent State of Papua New Guinea (one of which, notoriously, was G4S) – a case that was eventually settled without admission of liability for AUD$70 million plus costs.Footnote 9
The main objective of this article is not to articulate in detail the obligations of the home states and the responsibilities of relevant PMSCs in contexts of migration control, but rather to put forward three key arguments which will hopefully engender a debate within the Business and Human Rights community of scholars and practitioners, in relation to the possible responses to the abuses taking place during the implementation of the policies of cooperative deterrenceFootnote 10 which characterize the EU response to the ongoing migration ‘crisis’. My aim is to detail and justify the conceptual and practical applicability of relevant UNGP standards to the context of migration control. Legal scholars may argue that a focus on the UNGPs, as taken throughout this article, should be further supplemented by, e.g., a discussion of EU member states’ responsibility under the Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA)Footnote 11 and PMSC responsibilities under the International Code of Conduct for Private Security Service Providers (ICoC),Footnote 12 issued by the International Code of Conduct Association (ICoCA). Whilst I agree that a discussion of these instruments could further supplement the analysis undertaken in this article, I have chosen to focus on the applicability of the UNGPs to the migration context, and the obligations and responsibilities enshrined therein, as this is now considered the primary soft law instrument setting out what is to be expected of states and business to protect and respect human rights. As such the UNGPs are understood as reflecting standards already existing in international law. This is particularly pertinent, given that several EU member states, including Italy,Footnote 13 have committed to implementing the UNGPs through national action plans (NAPs). Yet, these same states fail to consider the applicability of the UNGPs to obligations arising within the context of the European Agenda, with considerable implications for the conduct of PMSCs. It is outside the scope of the current investigation, therefore, to further consider obligations under other instruments (e.g. ARSIWA and ICoC).Footnote 14
The three main arguments put forward in this article, therefore, are structured as follows. First, in section II, I argue that PMSCs’ involvement in the framing, shaping and entrenchment of militarized responses by the EU through the European Agenda is pervasive. These private non-state actors, in fact, not only provide advanced border security and migration control services to member states and their partners (increasingly non-EU countries of transit and origin), but are also heavily involved in setting the priorities of the EU defence and security research agenda. Evidence indicatesFootnote 15 that in so doing, they contribute to the framing of irregular migration as a security threat which can only be addressed through emergency-driven military responses – and, conveniently, the same services provided by PMSCs. These private non-state actors, therefore, irreversibly shape European migration policies and the ever-increasing privatized securitization of the EU borderscape,Footnote 16 within a context of self-perpetuating convergence of interests between the EU and major security providers.Footnote 17
In section III, after briefly describing the involvement of PMSCs in the context of EU migration control and the human rights risks that such involvement engenders, I then argue that the current context of the European refugee ‘crisis’ meets the conditions of a high-risk area for the purposes of the application of the UNGPs.Footnote 18 As I evidence in this paper, this characterization is particularly appropriate to the privatization of the migration control services both within EU member states and at the increasingly externalized EU border (from the management of deportations and removals, to the running of immigration detention facilities, to the operationalization of housing and health care services, and the distribution of food vouchers, etc.). The definition of ‘high-risk’ is also apposite to describe EU-funded interception operations at sea, as well as the conditions in countries of transit and origin, not least in the Sahel and North Africa, to which EU member states are externalizing specific border control functions, and propose to also transfer asylum determination processing responsibilities.Footnote 19 In section IV, I explain that this re-definition of the migration control measures enshrined in the European Agenda as high-risk operations for the purposes of business and human rights would enable scholars and practitioners to identify heightened human rights obligations of home states and increased due diligence responsibilities of PMSCs involved in implementing EU migration policies. Importantly, this re-definition as a high-risk area would also implicitly shift the emphasis away from the conceptualization of the current migration situation as a ‘crisis’, i.e. an emergency for the EU and its member states, by highlighting instead the high risk of occurrence of gross abuses in this context and the importance of focusing on safeguarding the rights of people on the move.
II. A Perfect Business Model: How PMSCs Shape and Implement EU Policies on Migration
The first argument presented in this article is that PMSCs are significantly influential in shaping EU migration policies in such a way that they become almost indispensable to the practical development and implementation of such policies. This involvement is problematic not only in terms of the symbiotic relationship it engenders, but also because of the way it accelerates the drive towards militarized responses to migration.Footnote 20
As evidenced later in this section through the example of Leonardo S.p.A., it is possible to identify at least three levels of PMSC involvement in the current European refugee ‘crisis’. This three-layered involvement largely reflects the group structure of major actors in the industry, which diversify their services – usually through complex group structures and subsidiaries – to be able to respond to different on-the-ground needs. The main actors involved in this area, therefore, specialize in tailored security services (from border monitoring services to sophisticated floating maritime surveillance systems);Footnote 21 arms trade and production; security and policy research. Their involvement in EU migration policies can thus be traced firstly at the research level, whereby they contribute to framing irregular migration as a ‘security threat’ that can only be addressed through security technologies and solutions. The second level of involvement relates to the way in which PMSCs market their product and services as dual-use technologies. As evidenced by Theodore Baird,Footnote 22 due to defence budget constraints and cuts, since 2008 many PMSC (such as Leonardo/Selex, Thales, Airbus, Altos and Indra)Footnote 23 have accelerated their specialization in dual-use technologies which can be easily adapted from combat situations to civilian environments, including border and migration control contexts. Their third level of involvement can be identified in their lobbying activities; with a turnover of €97.3 billion in 2014,Footnote 24 they represent a sector of major financial significance to the EU. The industry is actively represented by influential lobby groups, primarily the Aerospace and Defence Industries Association of Europe (ASD)Footnote 25 and the European Organisation for Security (EOS),Footnote 26 which seek to inform, and to the extent possible influence, EU policies, including in relation to migration control and border security.
As mentioned above, an emblematic example of this three-layered involvement in the European Agenda on Migration is that of the Italian company Leonardo S.p.A. (formerly Leonardo-Finmeccanica and Finmeccanica). In terms of research, for instance, Leonardo S.p.A. is involved in the EU-funded research programme Horizon 2020.Footnote 27 Moreover, Selex Sistemi Integrati S.p.A., a subsidiary of Leonardo S.p.A., also conducted EU-funded research under the precursor of Horizon 2020, the 7th Framework for Research, for instance on ‘sea border surveillance’ for a project called Seabilla.Footnote 28 The declared aims of the Seabilla project were to ‘reduce the number of illegal immigrants [sic] attempting to enter the EU undetected; increase internal security by contributing to the prevention of cross-border crime;’ and ‘enhance search and rescue capabilities, especially to save more lives of migrants who attempt risky ways to cross the border’.Footnote 29 Seabilla focused on ‘three main European sea areas (Atlantic, English Channel, Med) … to develop solution to counter specific threats’.Footnote 30 The available information on Seabilla lists seven scenarios that include ‘illegal migration’ in the Atlantic, the Mediterranean and the English Channel.Footnote 31
This research clearly frames anybody attempting to reach EU shores as ‘illegal migrants’, and in turn ‘illegal’ (rather than irregular)Footnote 32 migration as a cross-border crime and a security threat, thus opening up the possibility for Selex Sistemi Integrati S.p.A. to offer security solutions for the situation at hand. Regardless of the terminology deployed in these research and development projects, it is important to recall that under international law, as enshrined both in international and regional instruments, there are clear standards of protection against torture and non-refoulement,Footnote 33 as well as standards which ensure, inter alia, non-penalization for migrants’ irregular entry,Footnote 34 the right to leave,Footnote 35 and the right to seek and enjoy asylum.Footnote 36
These international legal standards are reflected in the UNGPs, whose ‘normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for States and businesses; integrating them within a single, logically coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved’.Footnote 37 Current migration control policies, however, at EU level and elsewhere, are mainly aimed at circumventing these obligations and at outsourcing migration control through cooperation based non-entrée policies,Footnote 38 many of which see the direct or indirect involvement of PMSCs.Footnote 39
Returning to the example of Leonardo S.p.A. selected for this article, its capacity to influence policy-making is apparent in the fact that, as of 2015, Leonardo-Finmeccanica (later renamed Leonardo S.p.A. in January 2017) was the ninth largest arms company/defence contractor in the world.Footnote 40 It is partially owned by the Italian Ministry of Economy and Finance (which is its largest shareholder)Footnote 41 and a member of at least two well-known lobby organizations that represent the interests of security and arm companies, namely ASD and EOS. Both ASD and EOS have significant influence in shaping EU security policies.Footnote 42 For instance, many members of the Protection and Security Advisory Group (PASAG), whose main task is to advise the European Commission on the Implementation of Horizon 2020,Footnote 43 were recently found to be connected to EOS members.Footnote 44 Reportedly, ‘many security advisory group members are closely linked to companies and institutions that win EU-funded security projects’.Footnote 45
Unsurprisingly, given the close and complex economic links between Italy and Libya, which are strictly connected to Italy’s colonial history,Footnote 46 in 2014 Selex Sistemi Integrati S.p.A. was involved in a border security deal with Libya funded by the EU and Italy, which included the supply of an advanced border control system.Footnote 47 This contract is a clear example of the involvement of large defence contractors in third countries’ border securitization, at a time in which the EU and its member states were already criticized for externalizing the EU borders and for outsourcing migration controls to North African countries, in an attempt to ultimately circumvent their own human rights obligations.Footnote 48
Notably, at the time of the involvement of Selex Sistemi Integrati S.p.A. in Libya, the conditions in the Libyan detention centres were such as to amount to inhuman and degrading treatment, and return to Libya as non-refoulement. The latter prohibition was indeed breached by Italy’s policies of interception and pushback to Libya, as part of the cooperation agreement with Libya (as discussed in relation to the Hirsi case in section III below). By providing the Libyan authorities with an advanced border control system, it is possible to argue that Selex Sistemi Integrati S.p.A. may have contributed to such violations, and/or enabled the implementation of the migration control policies which were found to be in contravention of Article 3 of the European Convention of Human Rights (ECHR).Footnote 49
According to official discussions in the European Parliament, it is also apparent that more recently Leonardo S.p.A. attended meetings with the European Border and Coast Guard (EBCG, formerly Frontex) where it presented various products tailored to the activities of the agency.Footnote 50 This is of notable significance given the broader mandate of the EBCG, which includes, inter alia, authorization to directly intervene when member states are not doing enough to stem migration flows; to help set up ‘hotspots’ for the processing of asylum seekers; to coordinate Joint Operations at sea; and to be involved in ‘return’ operations.Footnote 51 This broader mandate is matched by an increase in the budget allocated to the agency,Footnote 52 which in turn increases the business opportunities available for PMSCs like Leonardo S.p.A.
This analysis of the involvement of PMSCs and their influence in shaping border security and migration control policies is of significance in better identifying how their activities, especially in the context of migration, can be regulated through the UNGPs in an attempt to prevent human rights harm.Footnote 53 It is to this end that the article now turns to argue that key contextual situations and operations related to the European migration ‘crisis’ can be appropriately defined as high risk, for the purposes of the application of the UNGPs.
III. Re-Defining the Policies of the European Agenda as High-Risk Operations
The second argument that I would like to put forward in this article flows directly from the first one: I submit that there is sufficient evidence to suggest that it is appropriate to characterize the context of the European Agenda as ‘high risk’ and that this re-definition, in turn, will enable a clearer and more targeted application of the standards enshrined in the UNGPs. As further discussed in section IV, this is particularly important to establish heightened obligations for the home states of the PMSCs involved, as well as specific responsibilities of the PMSCs themselves.
Although there is no agreed-upon definition of ‘conflict-affected and high-risk areas’,Footnote 54 and principles 7 and 23(c) of the UNGPs refer to conflict-affected areas and to gross human rights abuses (see also section IV below), it is possible to resort to other relevant definitions of these terms, so as to evince their definitional content. The Organization for Economic Co-operation and Development (OECD), for instance, defines ‘conflict-affected and high-risk areas’ as follows:
[c]onflict-affected and high-risk areas are identified by the presence of armed conflict, widespread violence or other risks of harm to people. Armed conflict may take a variety of forms, such as a conflict of international or non-international character, which may involve two or more states, or may consist of wars of liberation, or insurgencies, civil wars, etc. High-risk areas may include areas of political instability or repression, institutional weakness, insecurity, collapse of civil infrastructure and widespread violence. Such areas are often characterised by widespread human rights abuses and violations of national or international law.Footnote 55
Similarly, the EU definition of ‘conflict-affected and high-risk areas’ characterizes them as:
[a]reas in a state of armed conflict, fragile post-conflict areas, as well as areas witnessing weak or non-existing governance and security, such as failed states, and widespread and systematic violations of international law, including human rights abuses.Footnote 56
If we apply the above conceptualizations to the European refugee ‘crisis’, various contextual elements suggest that current EU policies are implemented in high-risk areas and/or contexts that increasingly entail high-risk operations. In the remainder of this section I explain how this claim can be substantiated.
Primarily, since the launch of the European Agenda in 2015, a crucial theatre of the current refugee ‘crisis’ is Libya’s territory, both on land and at sea. For the purposes of the application of the UNGPs, Libya also qualifies as a conflict-affected country (as per UNGP 7), irrespective of whether we consider the country as still in a situation of armed conflict or in a post-conflict situation.Footnote 57 Libya also meets the criteria applicable to a high-risk area, given the well-documentedFootnote 58 widespread violations of international law, including human rights abuses against migrants, occurring both in Libyan territorial waters and in official and unofficial detention centres scattered around the country. As mentioned in the previous section, Leonardo S.p.A. supplied border control systems to Libya at a time when these violations were already taking place,Footnote 59 as confirmed by the decision by the European Court of Human Rights (ECtHR) in Hirsi Jaama and Others v Italy,Footnote 60 where the Court found that the Italian interceptions in the high sea and related pushback operations to return people to Libya were in breach of the prohibition against non-refoulement. More specifically, the Court held that the Italian authorities knew or should have known that the people returned to Libya ‘would be exposed in Libya to treatment in breach of the [Convention] and they would not be given any kind of protection in that country’,Footnote 61 in breach of Article 3 ECHR.
As already mentioned in section II, PMSCs involved in migration control activities at the time of the Italy–Libya cooperation agreement considered in Hirsi (such as Selex Sistemi Integrati S.p.A.), were at risk ‘of causing or contributing to gross human rights abuses’. As such, they should have treated this risk as a legal compliance issue, as envisaged in UNGP 23(c). As clarified in the commentary to the latter principle, complex operating environments (such as the one characterizing the cooperation on migration between Italy and Libya) may increase the risk of being complicit in gross human rights abuses by other actors, therefore ‘business enterprises should ensure that they do not exacerbate the situation. In assessing how best to respond, they will often be well advised to draw on not only expertise and cross-functional consultation within the enterprise, but also to consult externally with credible, independent experts, including from Governments, civil society, national human rights institutions and relevant multi-stakeholder initiatives’.
Within the context of Leonardo S.p.A.’s involvement in migration control measures through its subsidiary, it is likely that Italy, as the home state and major shareholder of Leonardo S.p.A., may have been involved in supporting some of the negotiations leading to the conclusion of this deal. There is no evidence, however, that it provided advice and/or support to Leonardo S.p.A. as envisaged in UNGP 7, i.e. to ‘help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships’ (as per subsection (a) of the principle); and ‘to assess and address heightened risks of abuses, paying special attention to both gender-based and sexual violence’ (as per subsection (b)).Footnote 62 As the Italian Ministry of Economy and Finance is the largest shareholder of this PMSC, Italy should have taken ‘additional’ steps to protect against human rights abuses by its own state-owned enterprise, as envisaged in principle 4 of the UNGPs. These ‘additional’ steps are complementary to the international obligations reflected in principles 1–3 of the UNGPs, and in line with the need to achieve policy coherence (principle 8 of the UNGPs).
Crucially, the Council of Europe Committee of Ministers has also acknowledged the need for additional measures to be taken by states that own or control business enterprises. In its recommendations, the Committee specified that ‘Member States should apply additional measures to require business enterprises to respect human rights, including, where appropriate, by carrying out human rights due diligence, that may be integrated into existing due diligence procedures, when member States … own or control business enterprises’.Footnote 63 Whilst there is no evidence that such ‘additional’ steps were undertaken by Italy, there is also no evidence that Leonardo S.p.A. engaged in activities aimed at assessing, mitigating and/or preventing human rights harm, as envisaged under pillar two of the UNGPs (business responsibility to respect).
As recent United Nations (UN) reports on Libya revealed, the human rights of people attempting to cross the Mediterranean to reach the EU continue to be severely violated.Footnote 64 The Libyan Coast GuardFootnote 65 is actively involved in ‘pull back’ operations,Footnote 66 aimed at intercepting people attempting to leave Libya by sea and returning them to Libyan detention centres, where they are subject to torture and inhuman and degrading treatment.Footnote 67 Recent evidence has emerged that Italy and the EU are involved in equipping and funding the Libyan Coast Guards with migration control systems, training and equipment,Footnote 68 which are therefore used in operations that breach the prohibition against torture and against refoulement. Furthermore, it is important to note that such migration control measures are underpinned by the findings of research projects carried out by PMSCs and connected with the theme of ‘illegal’ migration in the Mediterranean Sea. Such projects are, for instance, the abovementioned Seabilla projectFootnote 69 and project ‘Perseus’ by Indra Sistemas S.A.Footnote 70 There is little doubt that the conditions in Libya, both on land and at sea, meet the definitional criteria for conflict-affected and high-risk areas set out in the OECD and EU definitions, that is (at a minimum) a situation of ‘political instability’, ‘collapse of civil infrastructure’, ‘widespread human rights abuses’, ‘violations of national or international law’ and ‘weak or non-existing governance and security’.Footnote 71
A closer analysis of the broader operational context of the European Agenda on Migration reveals the active engagement of PMSCs at different levels of policy implementation. According to Mark Akkerman, for instance, military drones were tested by the European Border and Coast Guard in the course of 2018 for maritime border surveillance in the Mediterranean Sea.Footnote 72 More generally, the 2004–2020 budgets of the External Borders Fund, of the Internal Security Fund and of the Borders and Schengen Facility (amounting to approximately €4.5 billion) were used by EU member states to purchase border patrol vehicles and vessels, airplanes, surveillance systems, cameras, thermal vision equipment, and biometric and IT systems, many of which were supplied by EU-based PMSCs.Footnote 73
As widely documented, the militarization and securitization of the EU borders has resulted in higher death tolls, as people are increasingly pushed towards more dangerous routes.Footnote 74 In turn, a marked increase in human rights abuses has been recorded at various stages of the migration journey (examples range from deprivation of liberty and lack of due process; inhuman and degrading treatment and conditions in detention centres; lack of access to appropriate medical care, food and water; and sexual and other violence).Footnote 75
In order to provide a more detailed contextualization of the policies of cooperative deterrence that characterize current EU migration control, it is important to note that some of the other EU partners identified as ‘priority third countries’ under the Partnership Framework,Footnote 76 for instance Mali and Niger, are also likely to meet the OECD and EU definitions, given their complex political and socio-economic situations. Some of these countries are in fact listed as medium- or high-risk countries on various risk maps often used by states for official risk assessments.Footnote 77 The EU has also started discussing country packages for further cooperation on migration with 16 priority partners, including countries such as Afghanistan in which armed conflict is still ongoing.Footnote 78
The implications of such a decision by the EU and its member states to increase their cooperation on migration with conflict-affected and high-risk countries are multi-faceted. Undoubtedly these interventions risk exacerbating already fragile and precarious situations, thus potentially leading to an escalation of the armed conflicts existing in these areas.Footnote 79 The EU is also prioritizing the aims of its own external action agenda (e.g. reducing the numbers of people reaching EU shores and therefore able to claim asylum in EU member states) at the expense of safeguarding an already compromised regional and international balance in its partner countries, including in the fragile Sahel region. Both Italy and France, for instance, have increased their military presence in the region over the past few years,Footnote 80 and other EU member states were considering similar steps during the spring of 2018.Footnote 81
As skilfully documented by the field work of the Clingendael Netherlands Institute of International Relations, the escalating securitisation of North Africa and the Sahel by the EU and its member states, however, including for the purposes of migration control, is not a new phenomenon.Footnote 82 Extractive and other geopolitical interests in these regions have ensured that the EU always kept close links with key countries and a military presence in the area.
The European Agenda on Migration, crucially, explicitly links migration control to the security aims of EU member states, by ensuring that ‘migration will become a specific component of ongoing Common Security and Defence Policy (CSDP) missions already deployed in countries like Niger and Mali, which will be strengthened on border management’.Footnote 83 The Valletta Summit Action Plan of 2015 also identified as one of its objectives the ‘prevention of and fight against irregular migration, migrant smuggling and trafficking in human beings’ hereby explicitly connecting the prevention of irregular migration from African countries with the fighting of transnational crimes such as migrant smuggling and human trafficking.Footnote 84
In the European Commission’s Joint Declaration on the EU legislative priorities for 2017Footnote 85 migration and security were further interconnected with each other, as ‘better protection of [EU] external borders’ was prioritized under the heading of ‘better protecting the security of our citizens’.Footnote 86 In a Joint Communication of the Commission and High Representative of January 2017,Footnote 87 migration and security were also linked by a reference to the ‘fight’ against smugglers and traffickers through the European Maritime Security Strategy Action Plan and a stronger CSDP engagement with the G5 Sahel Force, the joint military and security force of Niger, Burkina Faso, Chad, Mali and Mauritania.Footnote 88
For the specific purposes of this article, it is important to note that, by crystallizing the security dimension of EU migration policies, the interventions outlined so far exponentially increase the business opportunities for PMSCs, who already have long-standing expertise in these high-risk areas. Increased securitization of migration control in fragile and unstable contexts, however, also intensifies the risk of PMSCs’ involvement in violations of international law perpetrated by states within the context of ongoing migration policies under the European Agenda on Migration.
Crucially, and as discussed in section II, this establishment of a link between migration and security was already identified as in need of prioritization in the research outputs of EU-funded research projects (for instance within the remit of EU Research for a Secure Society) carried out by PMSCs themselves.Footnote 89 By explicitly connecting migration control to the European Maritime Security Strategy Action Plan, to EUCAPFootnote 90 and CSDP missions, and to policies to fight transnational crimes and increase the security of European citizens, migration is irrevocably identified and addressed as a ‘security threat’. This discourse, in turn, also ensures access to EU security funds for the purposes of migration control, enables the lowering of restrictions on data sharing on refugees and asylum seekers, and more generally justifies the implementation of draconian measures to tackle irregular migration.Footnote 91
The security dimension in which EU migration policies are enveloped makes PMSCs ideally placed to offer their security services and expertise,Footnote 92 not only in countries in which an armed conflict is ongoing (such as Libya and Afghanistan) or which are in a post-conflict situation, but more broadly in any migration control setting, in the EU and elsewhere. The general security approach to the European refugee ‘crisis’ is such that everyday services for refugees and asylum seekers are also increasingly contracted out to PMSCs: from immigration detention facilities to deportation and removal services,Footnote 93 from housing, to access to health care services and distribution of food vouchers,Footnote 94 all these ‘services’ are managed by (largely the same) PMSCs.Footnote 95
In light of what has been examined so far, it is possible to argue that the securitized context in which EU migration policies are implemented means that the security services flowing from these policies and the PMSCs contracted to provide them should be subjected to a higher level of scrutiny, not least through the direct application of the UNGPs. Principles 7 and 23(c) expressly refer to conflict-affected areas and gross abuses. It is argued, however, that these principles also hold relevance in high-risk areas where there is a risk of gross human rights abuses taking place, including within the context of migration control.
IV. The European Refugee ‘Crisis’: Heightened Home States’ Obligations and PMSCs’ Responsibilities
A. Gross Abuses and Heightened Home States’ Obligations
As evidenced so far in this article, it is appropriate to conceptualize the EU policies on migration control and securitization, aimed at tackling the European refugee ‘crisis’, as pertaining to high-risk operations for the purpose of implementing the UNGPs. The EU itself appears to have no concern in framing such policies as part of security operations to combat human trafficking, smuggling and terrorism, and more broadly as enhanced measures for the security and protection of EU citizens. PMSCs themselves are involved in research projects that frame current migration flows as a security threat to the EU which requires increased security measures. It is only reasonable, therefore, to ensure that the outsourced services flowing from these security policies are subject to higher scrutiny, as it is pertinent for security policies and services deployed in high-risk or conflict contexts.
The third argument that I put forward in this article, is that for the purposes of a business and human rights analysis, the direct consequence of such a re-conceptualization of the policies developed within the European Agenda on Migration is that the home states of PMSCs operating in these highly securitized contexts have heightened human rights obligations, whilst the PMSCs providing these services have increased responsibilities, as envisaged by the UNGPs. Although home states and PMSCs themselves might at first be reluctant to support this approach, I advance the argument that it would enable a clearer understanding of the obligations vested upon home states and, in turn, of the relevant human rights due diligence responsibilitiesFootnote 96 expected of PMSCs operating in a high-risk migration context.
Despite the justifiable critique of the restrictive policies adopted to tackle the refugee ‘crisis’,Footnote 97 there is no sign that the EU and its member states will abandon the European Agenda on Migration any time soon. Thus, whereas it would be preferable to see an overall rethink of the current EU approach to migration control, in the meantime it is important to argue that both home states and PMSCs are subject, respectively, to heightened human rights obligations and responsibilities.
As mentioned in section III, in cases such as Leonardo S.p.A., where the company is partly owned by the state, home states are also expected to take additional steps to protect against human rights abuses by state-owned companies, as envisaged by UNGP 4.Footnote 98 These ‘additional’ steps are supplementary to the international obligations reflected in principles 1–3 and 7 of the UNGPs, further examined here. The majority of PMSCs involved in the European Agenda, however, are not state-owned enterprises, so my focus in this subsection is mainly on the enhanced obligations articulated in UNGP 7 and relevant to the home states of companies operating in conflict affected and high-risk contexts.
According to UNGP 7, home states of PMSCs involved in the implementation of the European Agenda on Migration are expected to ‘help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships’ and ‘to assess and address heightened risks of abuses’.Footnote 99 As expanded in the commentary and in a report in an addendum to the UNGPs,Footnote 100 home states’ engagement is to be understood as in addition to the engagement of host states where the PMSC are deployed. Home states’ engagement should be proactive and take place as early as possible:
because prevention is cheaper than reaction for both States and business enterprises. It is furthermore more likely that engagement can be effective in helping business enterprises to avoid involvement in human rights abuse if it takes place before violence becomes widespread. Nonetheless, prevention might not be enough, and States should remain engaged with the business enterprise through the conflict cycle.Footnote 101
As convincingly argued by Radu Mares, a close analysis of UNGP 7 and of its commentary reveals that this principle is ‘conceptually dependent on “gross abuses” and not on the conflict context’.Footnote 102 Gross abuses are to be understood as more serious human rights abuses than ‘severe impacts’ or ‘significant risks’, referred to for instance in other principles.Footnote 103 The first two provisions of the commentary to UNGP 7, Mares contends, ‘couple the increased likelihood of occurrence (high-risk areas) with the grossness of the abuse’ in order to ensure that home states are proactive and supportive of cooperative companies.Footnote 104 Accordingly, the reference is to high risk of human rights abuse rather than to high risk of conflict.Footnote 105 The last two provisions of the commentary, instead, ‘refer to gross abuses with no coupling to high probability of business involvement in such abuses. So even in this case the call towards home states is not dependent on conflict, merely on the grossness of the abuse’.Footnote 106 Gross abuses, therefore, not only occur in situations of armed conflict but, as evidenced in sections II and III of this article, also in various other high-risk contexts,Footnote 107 including when PMSCs are involved in deportation and removals, immigration detention, securing EU ‘hotspots’ and other processing centres, and providing essential services to refugees and asylum seekers (e.g., access to health care, housing and food).Footnote 108
In these high-risk contexts, the provisions in UNGP 7 are forceful, as they require home states to ‘[deny] access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation’. UNGP 7(d) also requires home states to ‘ensur[e] that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses’.Footnote 109 As further emphasized in the addendum report on conflict-affected areas, home states:
should ensure that their regulatory frameworks are adequate, the applicability to business entities is clarified and, for the most extreme situations, make sure that the relevant agencies are properly resourced to address the problem of business involvement in international or transnational crimes, such as corruption, war crimes or crimes against humanity.Footnote 110
Thus, in contrast to objections regarding the existence of an obligation to regulate vested upon the home state,Footnote 111 the nature of high risk of gross abuses, is such that UNGP 7 demands the exceptional engagement of home states, something that in the context of the European Agenda on Migration might be particularly challenging to achieve in practice. Most of the PMSCs involved in implementing EU migration policies, unsurprisingly, are based in EU member states, and represent a sector of major financial significance to the EU, as discussed in section II in relation to their influence and lobbying clout. It is therefore useful to consider, albeit briefly, that there are also additional public procurement obligations vested upon member states purchasing security and other services for the purposes of migration control.Footnote 112 As recognized by the UNGPs, and even more so in these high-risk situations, the state should also be seen as a commercial actor:Footnote 113 purchasing activities by the state thus engage clear international legal obligations and an expectation that the state will be proactive in using public procurement to leverage protection against human rights abuses.Footnote 114
B. An Increased Responsibility to Respect Human Rights for PMSCs
The UNGPs provide that, in order to fulfil their responsibility to respect human rights, companies should avoid infringing on the rights of others and address negative impacts that they have caused or contributed to. This is to be achieved specifically through human rights due diligence,Footnote 115 which is substantially aimed at ensuring that a company assesses its actual and potential ‘adverse’ impacts (in other words, human rights abuses); takes action when such adverse impacts are identified; tracks and communicates to relevant stakeholders the ways in which it addresses such impacts; and contributes to remediating them. In high-risk contexts, such as the ones analysed in this article, PMSCs have a heightened responsibility, including vis-à-vis the type of human rights due diligence that they carry out and the remediation mechanisms that they provide. They should have a clearer understanding of the severity of the abuses that they become involved in and/or contribute to, in terms of scale and scope of the abuses but also in terms of trauma and irremediable nature of the harm.Footnote 116 The focus of the human rights due diligence process, therefore, is not on the risk to the company, but on the higher risk to which refugees and migrants are exposed when PMSCs implement migration control operations. PMSCs should consider both the likelihood and severity of the risk, and that this risk increases proportionally with the negative impact on the people subject to the migration control operations they are contracted to carry out or to otherwise enable.
In the specific securitized and militarized contexts analysed here, direct consultations with affected stakeholders would not be feasible (or highly unlikely) and this is why the UNGPs recommend the use of expert resources to ascertain the human rights concerns related to the activities in which they will be involved. Due to the high risk of gross abuses, UNGP 23(c) is of particular significance to this analysis as it provides that ‘businesses enterprises should treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue wherever they operate’.Footnote 117 As already discussed in section III, the need to consider the risk of being involved in gross human rights abuses as a compliance issue is clearly specified in the commentary to UNGP 23(c). The latter, John Sherman posits:
recognizes that regardless of the uncertainty of the law in particular jurisdictions, a company’s involvement in gross human rights abuses would be such an egregious calamity for the company and society that its lawyers should proactively monitor the company’s efforts to prevent its involvement in such abuse, as they would do to prevent its involvement in any serious corporate crime.Footnote 118
UNGP 23 should be read in conjunction with UNGP 24, as the latter indicates the need to prioritize actions aimed at preventing and addressing adverse impacts. PMSCs involved in high-risk operations, therefore, should not only ascertain the likelihood of their contribution to gross abuses, but should also prioritize action to address the most severe impacts.Footnote 119
In light of the above, it appears that the involvement of PMSCs in the implementation of the European Agenda on Migration might not sit comfortably with the provisions in UNGPs 23 and 24. In particular, by framing refugees and migrants as a ‘security threat’, influencing EU policy-making to prioritize militarized responses to migration, and then providing the security services ideally placed to address such a prioritized threat, PMSCs might have done the opposite of what is recommended in the UNGPs. Rather than acting to prevent their involvement in gross abuses and treating such risk as a legal compliance issue, they may have actively engaged in increasing the risk of their occurrence, making it more likely in the fragile and complex context of EU migration control.
This article, however, has not been conceived as an indictment against PMSCs and home states, but as a call to further examine both the actions and omission by homes states and companies involved in the implementation of the European Agenda, so that much-needed corrective actions can be taken, not least towards adopting a radically different approach to the European refugee ‘crisis’, in full compliance with international legal obligations.
In this article I closely examined the role of PMSCs in implementing EU migration control policies enshrined in the European Agenda on Migration. Three main arguments have been advanced in this contribution to the business and human rights debate: first, I have argued that PMSCs do not merely provide border security and migration control services. They frame, shape and entrench militarized responses within the European Agenda. They contribute to the framing of irregular migration as a security threat which can only be addressed through emergency-driven military responses – and, conveniently, the same services that they provide. Thus, they irreversibly shape European migration policies and accelerate the securitization of the EU border.
I have then argued, in section III, that the context of the activities carried out by PMSCs involved in implementing the European Agenda on Migration meets the conditions of ‘high-risk’ operations for the purposes of the application of the UNGPs. The presence of a high risk of occurrence of gross human rights abuses, as further discussed in section IV, triggers the applicability of the UNGPs to such contexts, irrespective of the presence of an armed conflict. This point is crucial because it enables the applicability of relevant UNGP standards also in times of peace, whenever there is a risk of involvement in gross abuses.
In the final section of the article, I discussed the heightened obligations of home states and the specific enhanced responsibilities of PMSCs that such a re-conceptualization entails. More specifically, I highlighted the need to acknowledge that home states and PMSCs are falling short of what is expected of them under the UNGPs. This has profound implications, which should be examined by further research on the topic, for issues of jurisdiction, complicity, joint responsibility, and the responsibility of the EU as an international organization. The application of the UNGPs (principles 7 and 23(c) in particular), might contribute to a shift towards the prevention of human rights violations in high-risk situations. Until EU migration policies are driven by the self-perpetuating convergence of interests between the EU and major PMSCs, however, there is little hope that a more human rights-centred approach to the European refugee ‘crisis’, in full compliance with international law and in line with the UNGPs, will be envisioned.