Academic journal article Alternatives: Global, Local, Political

Maintaining Security within Borders: Toward a Permanent State of Emergency in the EU?

Academic journal article Alternatives: Global, Local, Political

Maintaining Security within Borders: Toward a Permanent State of Emergency in the EU?

Article excerpt

    Freedom, wherever it existed as a tangible reality, has always been
    spatially limited. This is especially clear for the greatest and
    most elementary of all negative liberties, the freedom of movement;
    the borders of national territory or the walls of the city-state
    comprehended and protected a space in which man could move freely.
    Treaties of international guarantees provide an extension of this
    territorially bound freedom for citizens outside their own country,
    but even under these modern conditions the elementary coincidence of
    freedom and a limited space remains manifest. What is true for
    freedom of movement is to a large extent valid for freedom in
    general. Freedom in a positive sense is possible only among equals,
    and equality itself is by no means a universally valid principle
    but, again, applicable only with limitations and even within spatial
    Hannah Arendt, On Revolution, 1963

Contemporary challenges to traditional concepts of security, and especially to the distinction between internal and external security, has stimulated justifications across Europe for a significant increase in state practices involving intrusive surveillance, policing, and restrictive measures toward people in general. (1) In some instances, this change may have resulted in the erosion of civil liberties, human rights, and the rule of law. Therefore, the practices implementing the Schengen borders regime merit special attention.

The Schengen agreement of 1985 and the Schengen Convention of 1990 that implemented it (2) were intended to establish, through an intergovernmental approach, (3) the application of "the principle of the free movement of persons" within the European borders. (4) The Single European Act, which came into effect on July 1, 1987, by introducing article 14 into the EC Treaties (formerly, article 8a), stipulated that the European Community should adopt measures aimed at achieving "a market without frontiers"; that is, an internal market. Article 14.2 states:

    The internal market shall comprise an area without internal
    frontiers in which the free movement of goods, persons, services and
    capital is ensured in accordance with the provisions of the Treaty.

Thus, an internal market should consist of an area without qualitative or quantitative barriers in which the free movement of persons, among the other three freedoms of movement, should be ensured and fully respected under certain circumstances. (5)

It is also important to recall that it was not until May 1, 1999, when the Amsterdam Treaty came into effect, that Schengen became part of the EU machinery (6) and the section dealing with the Schengen borders acquis (7) was incorporated within the first pillar. A protocol annexed to the Amsterdam Treaty finally integrated the Schengen acquis into the framework of the European Union, including the decisions and declarations adopted by the executive committee established by the 1990 convention.

Looking at the implementation by member states of some of the measures adopted under the Schengen regime, (8) however, a different path has been taken from the one carefully settled in the EU Treaty (TEU) structure (9) as a consequence of the predominance of claims about the need for security over claims about the conditions of freedom. (10) In some instances, member states have unilaterally reintroduced border controls and checks on individuals, justified on grounds of "special security concerns" or a "state of emergency." Thus, not only has one of the main goals of the internal market, the freedom of movement of persons, been undermined, but so, too, have other fundamental rights and freedoms provided at the European as well as at international level. Additionally, the categories of people affected by these restrictive policies cover not only those who qualify as third-country nationals or "others," (11) but also EU citizens in general. …

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