Uncertainties at the European Union's southern borders: actors, policies, and legal frameworks

Abstract

A multiplicity of legal and political arrangements regulate the European Union's external borders. With borders representing the intersection between national and international law and politics, the EU also acquired some legal competences in this realm. The resulting triple set of rules coincides with the growing disaggregation of the classical functions of borders. This state of affairs generates legal and procedural uncertainties and results in a growing ambiguity and lack of transparency, in terms of competences and accountability. Due to the EU's concerns with transnational terrorism, and the growing securitization of migration, the EU's borders with the states of the Middle East and North Africa are particularly relevant in this regard, with the resulting uncertainties touching upon fundamental rights. This article discusses the conceptual starting point of the growing institutional, legal, and political complexity at the EU's southern borders, together with relevant aspects and developments, thus also providing the background to the different contributions in this special issue.

Keywords:

• borders
• European foreign policy
• ENP
• EU-Middle East relations
• EU-MENA relations

A multiplicity of legal and political arrangements regulate the external borders of the European Union (EU). With borders representing the intersection between national and international law and politics, some legal competences of the EU regulate the EU's external borders in multiple issue-areas. The resulting triple set of rules coincides with the growing disaggregation of the classical functions of borders, which once defined simultaneously state territory, state authority, and community, according to the Westphalian model of statehood. The EU's gradual expansion of selected rules, functional regimes, and governance patterns to its periphery, conceptualized by some scholars as EU external governance (e.g. Lavenex 2004, Lavenex and Schimmelfennig 2009), only adds to the complex web of overlapping legal frameworks which regulate the EU's external borders and the adjacent areas. Moreover, the growth of the EU's competences in security management results in a worsening of the decades-old issue of institutional coherence (Gauttier 2004, Hillion 2008). Ultimately, it generates legal and procedural uncertainties, with the notion of uncertainty being defined as the combination of incomplete information and enforcement, together with the confusion born out of a complex decision-making environment (Rathbun 2007, 533 and ff.). This state of affairs clearly impacts on the nature of borders themselves, and the result is a growing ambiguity and lack of transparency, in terms of competences and accountability, at the EU's external borders.

The EU's southern borders are particularly relevant in this regard. While the countries of the Mediterranean Middle East and North Africa (MENA) continue to be of central concern to the EU for a series of key economic and political reasons, combating transnational terrorism has become a major concern of EU policy towards this area in the post-9/11 era. As a consequence, concerns about democratization and human rights have been increasingly moved to the back burner, security and stability taking their place in the order of priorities (e.g. Joffé 2008, Cassarino 2012). Together with an ever-growing complexity, one outcome of this development has been a growing securitization of the issue of migration, with EU migration policies becoming increasingly restrictive. This underpins the image of a “Fortress Europe”, with hundreds of irregular immigrants drowning yearly in the Mediterranean Sea on their way to Europe. At the discursive level, the securitization of migration has been challenged by a “search and rescue” paradigm as well as humanitarian approaches, which, however, have not substantially influenced policy directions and the priority given to security (Fink 2012, Rijpma and Vermeulen 2015).

The state of legal and political uncertainty at the EU's external borders is particularly relevant, since fundamental rights are at stake. More specifically, EU external border management, security and counterterrorism policies, and migration policies, all potentially involve the use of force. Furthermore, EU external action in these policy fields entails the cooperation of the EU and its member states with third countries which do not necessarily respect human rights, thus raising additional questions of legitimacy and accountability.

Using perspectives from political science, international relations, and international law, this special issue aims at highlighting different aspects of the legal and political uncertainties characterizing the EU's southern borders. These range from the intricacies of internal processes of EU policy-making in the realms of security and migration to specific EU “border policies” and from conflicting narratives in the EU's foreign policy towards the MENA region to the EU's attempts to police migration “at a distance”. The volume is specifically interested in EU processes and policies that project different types of borders and border management systems in the MENA region, together with the political implications of these policies.

In the following sections, we will discuss the conceptual starting point, together with relevant aspects and developments, which are significant to understanding the growing legal and political uncertainties at the EU's southern borders. Together with a short literature review, they provide the necessary background to the different contributions in this special issue, which will be presented subsequently.

The EU and its borders

Borders can best be understood as a set of laws, rules, and practices that differentiate between at least two distinct territories and/or areas of law and authority. Borders may be closed or porous to different degrees; they may be territorial or functional; their nature may change; and they may also move over time. Instead of being fixed and given, borders are thus complex institutions; they are the result of social construction (cf. Newman 2003, Cassarino 2006, Newman 2006).

There are different reasons for the fact that the three main functions that borders perform according to the Westphalian state model – delimiting territory, state authority, and the nation – are increasingly incongruent today.¹ These include, perhaps most notably, globalization and the rise of transnational governance patterns. When considering the borders of the EU in particular, it is important to recall that disaggregated borders characterize the EU itself, mostly resulting from the European integration process. As noted by Del Sarto (2010, 2014), overlapping, but distinct areas of sovereignty and membership composition mark, for example, the EU, the Eurozone and the Schengen Area.

Overall, the EU's asymmetrical integration has gradually shifted responsibility for border management to the European level in various ways, creating a mix of policy regimes that combine different institutional configurations with intergovernmental and supranational features (Berg and Ehin 2006, Wolff 2008, Geddes and Taylor 2013, for the legal aspects see Craig 2004). For instance, EU regulations pertaining to the border-free Schengen Area are marked by different competences of EU institutions in this field (Huber 2015). Of course, those rules and practices impact on the EU's border regime with non-Schengen countries, Schengen borders often being congruent with the EU's external borders.

Inevitably, for a polity that operates across nationalities and multiple legislative environments, questions of what is internal, what is external, and how the two areas are linked to each other have become an important object of analysis (Smith 1996, Zielonka 2001, O’Dowd et al. 2004, Diez 2006). Most importantly for this special issue, it has been shown that the EU's area of Justice and Home Affairs (JHA, now Area of Freedom, Security and Justice) and the EU's foreign policy are closely linked, with the EU embedding internal security objectives in its external policies (Lavenex 2006, Lavenex and Wichmann 2009, Mounier 2009, Baldaccini 2010, Cremona et al. 2011). This state of affairs does not only affect the management of external relations but also has direct implications for the nature of the external borders of the Union. Ceasing to be outer boundaries of internal policies and, therefore, the edge of political sovereignty, the borders change their political and institutional meaning.

The complexity born out of the division of border functions between different levels of government and institutions does not, by any means, secure coherent planning or efficient management (Rumford 2006, Baldaccini 2010, Hobbing 2011, O’Neill 2015, Steindler 2015). With regard to the institutional implications of this process, recent studies have looked at how policy areas communicate. The analysis of relations between JHA and the Common Security and Defence Policy (CSDP, previously ESDP) does point to some slow and laborious improvements in the coherence of the EU's action (Mounier 2009, Martins and Ferreira-Pereira 2012, Argomaniz 2013). However, scholars have called for more coordination between actors and a strengthening of the so-called “comprehensive approach” (Drent 2011, Gebhard and Norheim-Martinsen 2011).

The multiple and disaggregated borders of the EU, and the lack of coordination in their management, must be seen in the context of the Union's expansion of its governance patterns beyond its borders. Indeed, the EU has been exporting some of its disaggregated borders to the periphery, including neighbouring states in different functional regimes, practices, and regulations. The European Neighbourhood Policy (ENP) is an example of this. As a result, the EU's “fuzzy borders” (Christiansen et al. 2000) are becoming even less defined (also Casas-Cortes et al. 2013). What is more, it creates an area of disaggregated and partly overlapping borders in the EU's “borderlands”. Looking at the Union's expansion of its functional and geographical borders, some authors have sought to redefine the EU's international actorness, conceptualizing it as a neo-mediaeval or postmodern empire of sorts. According to this conceptualization, it is possible to discern elements of the transcendence of the Westphalian state model that defined the nation state and its borders on the European continent. The EU's export of its rules and practices to the neighbourhood, which is inherent in the ENP, and thus the expansion of its “fuzzy” borders to the periphery, also witnesses the partial outsourcing of its border control duties. These features are seen as indicators of the EU's aim of wanting to extend the “imperial” order beyond its geographical borders (cf. Zielonka 2002, 2008, 2013, Gravier 2009, 2011, Del Sarto 2010, 2013).

Borders and EU–MENA relations

With a clear focus on counterterrorism and an ensuing security-oriented approach to migration, borders and border management are particularly relevant in the context of EU–MENA relations. Assessments of the evolving frameworks of the EU's Mediterranean policy point to an overall security rationale (e.g. Marks 1996, Philippart 2003, Del Sarto and Schumacher 2005, Pace 2010, Bicchi 2011). The September 11 attacks paved the way to a growing EU concern with terrorism emanating from “the south”. The Madrid bombings of 2004 gave an additional impetus to this development, visible for instance in the adoption of the Union's counterterrorism strategy of 2005 (Council of the European Union 2005). Coinciding with the launching of the ENP, which in itself embodies a buffering logic of sorts towards the new periphery (Del Sarto and Schumacher 2005), the institutionalized cooperation with MENA countries on police, justice, and migration (such as EUROMED Police, EUROMED Justice, and EUROMED Migration) has its origins in this period. Indeed, the EU's growing focus on counterterrorism has a noticeable “Mediterranean” dimension (Wolff 2009). This also entails an increasingly institutionalized EU–MENA cooperation on borders, with, for instance, joint attempts to tackle drug trafficking, organized crime, and trafficking in human beings (O’Neill 2015).

It is then possible to recognize a legal and territorial extension of counterterrorism practices (Kaunert 2010, Kaunert and Léonard 2011, Ferreira-Pereira and Martins 2012; see also O’Neill 2015) and another pertaining to migration control policies (Boswell 2003, Lavenex 2006, Rijpma and Cremona 2007; see also Geddes 2015), with both presenting ethical challenges (Wolff 2008, Jeandesboz 2011; see also Rijpma and Vermeulen 2015). While the degree of integration of MENA states into various EU legal and functional frameworks has undoubtedly increased over the last decade,² studies on the EU's migration and security policies towards third countries build on the concept of “externalization” of the Union's internal policies in the realm of JHA (Lavenex and Ucarer 2002, Geddes 2005, Bigo 2006, Guiraudon and Lahav 2006, Lutterbeck 2006, Balzacq 2008). This process implies the moving of the EU's territorial borders and border controls to the periphery while “policing at a distance”. According to this argument, the EU is gradually “transporting the actual border beyond the borderline” (Balibar 2004; also Bigo and Guild 2003). This process entails the partial outsourcing of border control duties to third countries as well as the co-option of these governments into the management of the EU's borderlands. As the example of Libya under Qaddafi showed, the new role of third countries as the EU's gatekeepers may significantly increase their leverage over the EU and its member states (Paoletti 2011). As seen in the current increase in pressure by the EU on the governments of Morocco and Tunisia (Limam 2014), these countries are of particular significance for the EU's migration control policies, giving them a certain, albeit so far limited, space of manoeuvre in their relation to the EU.

Hence, rather than a proper “externalization”, the process at play may perhaps better be conceptualized as a reconfiguration of functions, duties, and competences at the EU's external borders. Significantly, this process involves the delegation of legal and human rights responsibilities to third countries, with little if any attention paid to either monitoring or enforcement. The human rights record of most states in the MENA region, however, is by no means impressive. Thus, EU–MENA cooperation on migration and security through coercive means and surveillance technology, such as the EUROSUR project (Rijpma and Vermeulen 2015), would seem to run counter to democracy and the rule of law, those core norms supposedly guiding the EU's external actions.

It should be noted that the reduced public scrutiny and democratic oversight characterizing border and security policies, broadly conceived, also affect the EU. With friction between the need for transparency, on the one hand, and security concerns, on the other, the EU's specific institutional structure further impedes the democratic accountability of what are defined as security policies (Del Sarto 2006, Kantner and Liberatore 2006). The tension between promoting human rights and democracy on the one hand and the EU's security concerns on the other has been particularly noted in the Union's policy towards the south (also Balfour and Missiroli 2007, Barbé and Johansson-Nogués 2008, Bicchi 2010, Biscop 2010, and Schumacher 2015). However, the myth that the Union is able, or willing, to push for democratic governance and human rights in MENA countries has largely been debunked, before and after the Arab uprisings (Gillespie and Youngs 2002, Bicchi 2006, Panebianco 2006, Pace et al. 2009, Del Sarto and Schumacher 2011, Tocci and Cassarino 2011, Teti 2012). Hence, the realities of EU “border policies” towards MENA countries clearly demonstrate the limits of the concept of “normative power” (Manners 2002) and the portrayal of the EU as a benign exporter of norms. In fact, Schumacher (2015) demonstrates that the EU has been maintaining very different, and partly contradictory, discourses towards the MENA region (such as those based on EU interests and those based on EU values), discourses which legitimize different lines of policies, thus creating yet more uncertainties. These contradictions are also reflected in the current EUROSUR project, where the discourse of “saving lives at sea” has been added almost as an afterthought and sits uneasily with the primary rationale of preventing unwanted migration (Rijpma and Vermeulen 2015).

Borders and the EU's institutional development

Finally, the EU's institutional set-up and the important developments after the Lisbon treaty have perhaps had the most important impact on the EU's border policies. The uncertainty at the EU's southern borders can thus partly be explained by the fact that EU institutions maintain different, and partly overlapping, security policies, or programmes that have a security component (Steindler 2015). While these programmes and policies have multiplied, there is a clear lack of coordination across the different EU institutions. With the increasing competences of the European Parliament (EP) after the Lisbon Treaty, its greater involvement in and oversight of the EU's border and security policies are currently observable (Bajtay 2014, Huber 2015). Concurrently, however, the external relations of the Union remain a typical intergovernmental competence, thus escaping the control of the EP post-Lisbon. Border issues migrate to the communitarian sphere, not without difficulties (Carrera et al. 2013).

Thus, the growing duplication and fragmentation of EU security policies, the involvement of multiple actors, and the competition over competences between different institutions only add to the lack of transparency and the resulting uncertainty at the EU's external borders. Hence, and perhaps unsurprisingly, what is happening within the EU directly impacts on the nature and management of the EU's borders. While EU migration policies continue to be dominated by the member states, there are additional factors explaining these legal and political uncertainties. These include the reconfiguration of functions and competences at the EU's external borders, mentioned above, together with the delegation of legal and human rights responsibilities to third countries with doubtful democratic credentials. Hence, it is doubtful whether the increasing competences of the EP in EU border policies will correct the lack of transparency and accountability in any meaningful way, at least in the medium term.

The contributions

Focusing on the EU's external territorial and functional borders, specifically as regards cooperation on security and counterterrorism as well as migration policies, the contributions to this special issue provide an analysis of different aspects of the legal and political uncertainty at the EU's southern borders.

The first series of articles traces this uncertainty, including the lack of transparency and accountability, to the institutional set-up of the EU, as well as to EU-internal processes and developments. Which actors define and implement the different policies affecting the EU's external borders with the south? How does the EU's internal distribution of competences work? And which frames and narratives are used to explain and legitimize specific border policies towards the south? Providing a broader context to the inconsistencies and contradictions of the EU's border policies, Tobias Schumacher examines the different narratives the Union has produced regarding its external relations. Providing legitimacy to distinct types of policies, Schumacher discusses how these different narratives work in the context of the EU's border management practices vis-à-vis the southern borderlands, in particular with respect to their inclusionary and exclusionary potential. In this context, the article gives a thorough account of the inception of the ENP which articulates the issue of democracy promotion vs. engagement of the Union with authoritarian regimes.

Chiara Steindler focuses on the consequences of the multi-layered institutional framework for the coherence of EU policies towards its southern borders and its near abroad, and discusses the unclear distribution of competences in EU security policies. With an ever-growing field of external security being managed by the EU, Steindler observes an increasing dispersion of EU security policies across different sectors, resulting in an increasing demand for coordination. In some cases, coordination has improved through experimental mechanisms, but the system remains highly fragmented. Steindler also discerns a continuing central role of the Council and its committees, while detecting substantially increased competences of the Commission in the post-Lisbon system. While this institutional fragmentation is wholly internal, the policy inconsistency it generates has an impact on the external relations of the EU. This impact cannot be ignored, especially when it comes to the thick web of relations with the neighbourhood.

In her article, Katrin Huber reconstructs the formal and informal powers of the EP in the management of the EU's “border policies” after the Lisbon treaty. Focusing on the management of the Schengen Area and its borders, Huber looks in particular at how the EP was able to expand its role with respect to EU border policies. The EU-internal management of the Schengen borders being relevant for understanding the state of affairs “on the other side” of those borders, Huber's article also points out the ongoing inter-institutional competition and reconfiguration of EU competences in the definition and management of the EU's external borders, together with the resulting complexities and incoherence.

The second set of articles shifts the focus of attention to specific EU “border policies” towards its southern periphery. Of particular interest are the types of borders that these policies create, together with their legal and political impact on the EU's near abroad. In her article, Maria O’Neill analyses the EU's counterterrorism cooperation with MENA countries from a legal perspective, linking the overlapping jurisdictions in the context of law enforcement and prosecutions, which the EU has developed internally, to the complexity of its definition of external borders. The paper argues that, notwithstanding the rhetoric on counterterrorism, there is actually greater potential for development of cooperation in the area of cross-border drugs trafficking and human trafficking. A greater focus on this aspect of security may, in due course, spill over into counterterrorism provision.

Jorrit Rijpma and Mathias Vermeulen analyse the new Pan-European border surveillance system, EUROSUR. Their article questions the origins and development of the new surveillance system and, in particular, the Commission's claim that one of EUROSUR's main goals is to save lives at sea. In their contribution, the authors question that assertion, defining EUROSUR as representative of the steady, technocratic development of a European system for border management.

Finally, Andrew Geddes explores the issue of environmental migration in the context of the EU's Global Approach to Migration and Mobility, claiming that initial perceptions of the possible size and features of the phenomenon need to be revised in light of new researches and estimates. The issue of migration as a security threat is certainly as crucial as are practices and strategies of “governing from a distance” enacted by the EU in its neighbourhood, and which could determine an alteration of the classical functions of borders.

In its investigation of the changing roles of the actors that shape EU policies in sovereignty-sensitive areas such as borders and in its analysis of concrete aspects of the EU's border policies in the field of security policies and migration, the aim of this special issue is to contribute to a better understanding of a central, and widely understudied, aspect of EU–MENA relations.

Notes on contributors

Raffaella Del Sarto is Part-time Professor at the Robert Schuman Centre for Advanced Studies (European University Institute), San Domenico di Fiesole and directs the research project on “BORDERLANDS: Boundaries, Governance, and Power in the European Union's Relations with North Africa and the Middle East” funded by the European Research Council (ERC). She is also Adjunct Professor of Middle East Studies and International Relations at the Paul H. Nitze School for Advanced International Studies (SAIS), Bologna Center, Johns Hopkins University.

Chiara Steindler is Research Fellow at the Robert Schuman Centre for Advanced Studies (European University Institute), San Domenico di Fiesole. She works for the BORDERLANDS Project,funded by the European Research Council (ERC).

Acknowledgments

The authors would like to thank all the participants at the workshop “Uncertainty at the EU’s Southern Borders: Actors, Policies and Legal Frameworks”, held at the European University Institute on 29–30 November 2012. The authors would also like to thank Stefania Panebianco and Sarah Wolff for their extremely useful comments on previous versions of this special issue. Special thanks to Jessica Ayesha Northey for research assistance and language editing. The usual disclaimers apply.

Disclosure statement

No potential conflict of interest was reported by the authors.

Additional information

Funding

This work was supported by the BORDERLANDS Project, funded by the European Research Council [grant number 263277]. The project is directed by Raffaella A. Del Sarto and hosted at the European University Institute, Robert Schuman Centre for Advanced Studies, Florence.

Notes

1. For a more detailed discussion of this issue, see Del Sarto (2010).

2. See for example the database and interactive maps at http://borderlands-project.eu/DataMaps/Index.aspx.