Abstract

         In this article, we highlight the main vulnerabilities to security and cooperation at the level of the European Union, referring to the stages of (re)defining and delimiting the internal and external borders of the European Union. Our objective is to identify the EU’s main steps regarding the management of internal and external borders, in the context of the migration crisis and the delimitation of the external border of the EU after the production of Brexit. Our analysis highlights the main steps and improvements that have contributed to achieving a security, freedom and justice environment within the Union, but which still needs support from the Member States in order to become stronger.

Keywords: borders, migration crisis, Brexit, European Union.

         Introduction

         Referring to the challenges to the unity and security of the EU over the past years, this article discusses the efforts to (re)define the internal and external borders of the European Union by trying to highlight the impact of migration and refugee flow, as well as that of the Brexit negotiations. Connecting the EU’s efforts in (re)defining and designing its internal and external borders to the management of social, economic and political crises helps us identify and understand the main vulnerabilities that hinder the cooperation between the countries of the European Union.

Our approach also means to identify the EU’s main courses of action regarding the process to eliminate internal border control and institutionalise the control of its external borders.

Conceptualizing and (Re)shaping the EU Borders

        The aspiration of a world „without borders”[1] evoked for the past three decades by the supporters of globalization has been challenged by the complex and uneven practices to regulating and militarizing the borders.[2] The Brexit and Donald Trump coming to the White House produced significant changes on the way the borders are defined and demarcated.[3] Referring to the decision taken by the United Kingdom to leave the EU, Gilmartin, Burke Wood and O’Callaghan discovered two major changes, as follows: 1) the anxieties generated by the 310 mile land border between the Republic of Ireland and Northern Ireland were brought back to the forefront and 2) the regulations regarding the external borders of EU were unlocked[4]. The redesign of the borders between the United Kingdom and the EU gives them an alternate meaning, the main characteristic being “the wider reconfiguration of borders within EU”[5]. The lack of a consensus on borders constitutes the founding of a “border thinking […], when the imaginary of the modern global system is flawed”[6]. Destabilising the governing patterns of understanding what borders are leaves room for a new way to redefine them.[7]

“Sovereign security sites and mobile meeting places”[8], the borders help marking territories and enforcing regulations on inclusion and exclusion of multiple forms of mobility, categorized according to the level of threat[9]. Minca and Rijke have seen that more focus on borders has in fact encouraged the rhetoric based on walls building[10], a trend explained by Wendy Brown[11] as “a sign of lack of state authority, rather than a show of strength”[12]. The architecture of the borders has been reshaped due to globalization and to the development of new digital and communication technologies.[13]

         Within the European community, borders initially had two major dimensions –economic and security –based on which the international flow of capital, goods and services was structured, and the main EU reform policies have sought to facilitate access to the national markets of the member states and to protect them.[14]The EU border transformations were simultaneously based on eliminating internal border controls and institutionalising control of its external borders (national borders as well).[15]The concept of a supranational external EU border substantially attenuates the role of national border, due to the ambivalent nature of EU policies (implementation of the Schengen aquis, border control and monitoring by specialized EU agencies, implementation of the European asylum and neighbourhood policies)[16].

“Fortress Europe”[17] serves “as a barrier, a bridge and a symbol of identity simultaneously”.[18] “The paradox of EU borders”[19] is represented by their mobility[20] and their diversity[21], positioned somewhere between the “de-bordering” and “re-bordering” attempts[22]. Analysing the EU borders from the perspective of their functions, Etienne Balibar identified the following different attributes: over-determination, polysemy, omnipresence and heterogeneity.[23] A cultural and geographical entity, the European Union is described by William Wallace with reference to the ambiguity of the expansion process that doesn’t define clearly the EU’s external borders.[24] The migration crisis has further enhanced “Europe’s image as a fortress” that secures its borders against irregular and unwanted migrants, the EU’s presence being exerted not only at the external borders of its member states, but also in border areas (known as stable buffer zones)[25]. At a domestic level, through the Schengen Agreement the EU has created an internal security zone for all the members of the Agreement, removing internal border control, while “the external borders of all Schengen members have become a matter of common interest”.[26] The EU’s stages of enlargement have deeply changed the external borders,[27] while the adoption of the Convention implementing the Schengen Agreement of 14 June 1985 and the Dublin II Regulation (that has replaced the 1990 Dublin Convention) targeted to support the creation of an area of freedom, security, and justice[28] that gives the EU an identity of its own (economic, social and political).[29] The borders of the EU don’t only represent the sum of all external borders belonging to the member countries situated at the periphery of the Union (geographically speaking) but also a set of regulations and actions that imply the adoption and implementation of a common approach from all member states.[30]

         The Management of the Internal and External Borders of the EU

          The EU’s actions regarding the becoming and consolidation of the Schengen area (a unique area without internal border control) and the implementation of common standards regarding the external border control, have generally served when the flow of migrants increased and when the EU’s security has been put at risk. The moment the EU’s external borders were established coincides with the beginning of its involvement in internal and foreign common security issues, the EU’s role being defined with the signing of the Maastricht Treaty, in 1993.[31] The Common External and Security Policy (CESP, the EU’s second pillar) and the Justice and Home Affairs Council (JHA, the EU’s third pillar) have regulated, following the Maastricht Treaty, the EU’s policies and steps to “offer its citizens an area of freedom, security and justice without internal frontiers, where the free movement of persons is ensured in conjunction with appropriate measures with respect to external border control, asylum, immigration, as well as crime prevention and fighting” (art.3, paragraph 2, TUE)[32]

The first form of common management of the external border takes shape after the signing of the Schengen Agreement[33], supplemented five years later by the Schengen Convention.[34] The Schengen acquis, incorporated into the European Union law by the Amsterdam Treaty has five main categories of measures, with the Schengen Borders Code[35] as main instrument seeking the uniform implementation of regulations. The Schengen Information System gives EU authorities access to an information sharing system that contains over 80 million alerts on missing or wanted persons and objects.[36] In 2017 it was consulted by authorities over 5 billion times and generated “over 240,000 positive results regarding alerts from other countries (issued by other countries)”[37], thus bringing an important contribution to security within the Schengen area.[38] The reform in 2018 added new categories of alerts to the system[39], SIS being replaced by three regulations regarding the police and judicial cooperation on criminal matters[40], border control[41] and the return of illegally staying third-country nationals.[42]

         Another instrument that the EU countries have access to is the Internal Security Fund – the Borders and Visa component – that deals with task assignment and covers the funds allocated by the member countries for the control of the borders that are also EU’s external borders.[43] To ensure a high security level inside the Union, and to facilitate legitimate travel the EU has set up the Fund with 3.8 billion Euros for the period 2014-2020[44]. The adoption in November 2017 of the regulation that establishes the Exit/Entry System (EES)[45] has contributed to a more expedited border registration and control of third-country nationals.[46]The online operation of the EES strengthened internal security, intensified the fight against terrorism, reduced the amount of time needed for border control, enabled the automatic control of the duration of authorised stay for every traveller, and offered national authorities access to travellers’ data.[47]

         The expansion of the field of application of the European Border and Coast Guard Agency (Frontex) activities is a major step towards strengthening the EU’s common effort to manage migration, the fight against cross border crime and the search and rescue operations.[48] Basically, Frontex has been given “a greater role in returning migrants to their countries of origin, according to decisions taken by national authorities”,[49]being allowed to intervene and offer assistance to the member states at the request of the Council and in exceptional circumstances (the failure of a member state to comply with binding decisions, jeopardising the Schengen area).[50] The proposal presented by European Commission in September 2018deals with the same matters regarding the strengthening and expansion of the powers of Frontex.[51] The “cornerstone” of the new Regulation (that will be enforced by the end of 2019) will be the institution of a permanent standing corps of 10,000 border guards (fully operational by 2027) that will offer support to the member states at all time.[52] It is worth mentioning the important contribution of the Romanian presidency of the European Council consisting in the informal agreement with the representatives of the European Parliament, lately recognized by the EU ambassadors.[53]

         In the meantime, the massive flow of refugees has generated both a humanitarian crisis in the region of the Mediterranean Sea and a political crisis at the level of the EU. Building fences at the external borders of the Schengen area coincided with the image offered by the loss of human lives on the migration routes in the Mediterranean Sea, hence the discussion on the existence of an identity and values crisis at the level of the EU. Violating the regulations of the Schengen Borders Code (article 14, paragraph (2)), the decisional blockage in the Union, the rise of the anti-European populist and nationalist narratives, the “uncomfortable” negotiations with Turkey have all highlighted the limits of the cooperation between the member states, as well as the difficulties regarding the necessity of a swift response to the challenges that endanger the security of the borders. Slovakia and Hungary challenged in the European Court of Justice the decision of the European Council on the mandatory quotas (of relocation) of asylum seekers[54] however, they have been dismissed.[55] These actions draw attention on the lack of consensus between the institutions of the European Union and its members.

         Surfaced in the context of the so called migrants and refugees “phobia”, Brexit reinforced the need for a swift and firm response supported by a common approach from the other 27 members. Unlike the political and ideological disputes caused by the migration crisis, the 27 members have joined forces and designated one person as negotiator in the name of the EU and its members. The EU requirement to the United Kingdom to keep a soft (open) border considering “Northern Ireland’s peculiar situation”[56] (part of the EU’s single market and customs union)[57] highlights “the EU’s hegemonic stand in drafting regulations regarding its borders”[58].The matter regarding the border between the Republic of Ireland and Northern Ireland placed the negotiations of the Withdrawal Agreement at a standstill, even leading to psychological implications – Michel Barnier put an emphasis on the fact that “European integration helped to remove borders that once existed on maps and in minds. Brexit changes the external borders of the EU.”[59]

         (Re)shaping the borders is a complex process that requires the support of all EU members, a scenario that is less likely if we take into consideration the new legislature of the European Parliament and the increase in the level of fragmentation of political groups.

        Conclusions

        In this article we have highlighted the necessity of a unitary approach, as well as the fact that the EU and its members should use flexible tools to manage its internal and external borders. Our effort has emphasized the weaknesses in security and cooperation at the level of the European Community, thus identifying the main risks in the process of (re)defining and delimiting the EU’s internal and external borders.

       Referring to the latest changes in the process of border management, we have identified the main progresses and steps that have contributed to achieving an area of security, freedom and justice within the Union, which still needs support from the member states in order to become stronger.

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