Europe's 21st Century Challenge: Delivering Liberty 9781409499886, 140949988X

Table of contents :
Cover
Half Title
Title Page
Copyright Page
Table of Contents
List of Figures and Tables
Acknowledgments
Notes on Contributors
List of Abbreviations
1 The Changing Landscape of European Liberty and Security
Part I Liberty Challenges to the Constitution of Authority
2 The Changing Dynamics of Security in an Enlarged European Union
3 Mapping the European Field of Security Professionals
4 Assuming Responsibility in the Changing Dynamics of Security? The European Security Strategy and the EU as a Security Actor beyond its Borders
5 The Security Dimension of EU Policies between Legal Provisions and Living Practice: The European Council as the Key
6 European Governance and the Interplay between Liberty and Security
7 Transparency and Accountability: From Structuro-Procedural Transparency and Institutional Accountability to Communicating (In)Security in Digi-Space
Part II Liberty Challenges to Borders
8 The Legal Competence With Regard to External Borders: Examining Coherence
9 Liberty, Security and Enlargement
10 Gateways to Europe: Checkpoints on the EU External Land Border
11 The Constitutional Price of Visa Free Travel: The Experiences of Bulgaria and Romania
12 Effects of Exceptionalism on Social Cohesion in Europe
and Beyond
13 Exceptionalism and its Impact on the Euro-Mediterranean Area
14 Securitization, Liberty and Law: The EU’s 21st Century
Part III Theoretical Perspectives on Challenges to Liberty
15 Violence and Exceptionalism in Contemporary Politics: War, Liberty, Security
16 The Value of Security
17 Delivering Liberty and Security? The Reframing of Freedom when Associated with Security
Bibliography
Index

Citation preview

EUROPE’S 21ST CENTURY CHALLENGE

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Europe’s 21st Century Challenge Delivering liberty

Edited by DiDiEr Bigo Sciences Po, France sErgio CarrEra Centre for European Policy Studies, Belgium ElspEth guilD University of Nijmegen, The Netherlands and r.B.J. WalkEr Keele University, UK

ROUTLEDGE

Routledge Taylor & Francis Group

LONDON AND NEW YORK

First published 2010 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © Didier Bigo, sergio Carrera, Elspeth guild and r.B.J. Walker 2010 Didier Bigo, sergio Carrera, Elspeth guild and r.B.J. Walker have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Europe’s 21st century challenge : delivering liberty. 1. national security--law and legislation--European union countries. 2. Civil rights--European union countries. i. Bigo, Didier. 323.4'4'094-dc22 Library of Congress Cataloging-in-Publication Data Europe’s 21st century challenge : delivering liberty / by Didier Bigo ... [et al.]. p. cm. includes bibliographical references and index. isBn 978-1-4094-0194-0 (hardback) 1. internal security--European union countries. 2. law enforcement--European union countries. 3. Civil rights--European union countries. i. Bigo, Didier. ii. title: Europe’s twenty-first century challenge. hV8194.a2E97 2010 323.4'9094--dc22

isBn 9781409401940 (hbk)

2009052467

Contents

List of Figures and Tables Acknowledgments Notes on Contributors List of Abbreviations 1

The Changing Landscape of European Liberty and Security Didier Bigo, Elspeth Guild and R.B.J. Walker

vii ix xi xix 1

PART I LIBERTY CHALLENGES TO THE CONSTITUTION OF AUTHORITY 2

The Changing Dynamics of Security in an Enlarged European Union Elspeth Guild, Sergio Carrera and Thierry Balzacq

31

3

Mapping the European Field of Security Professionals Didier Bigo, Philippe Bonditti and Christian Olsson

49

4

Assuming Responsibility in the Changing Dynamics of Security? The European Security Strategy and the EU as a Security Actor beyond its Borders Esther Barbé and Elisabeth Johansson-Nogués

5

The Security Dimension of EU Policies between Legal Provisions and Living Practice: The European Council as the Key Wolfgang Wessels, Franziska Bopp and Cyril Gläser

65

81

6

European Governance and the Interplay between Liberty and Security 91 Nikos Scandamis, Kosmas Boskovits, Sofoklis Stratakis and Frantzis Sigalas

7

Transparency and Accountability: From Structuro-Procedural Transparency and Institutional Accountability to Communicating (In)Security in Digi-Space Juliet Lodge

107

Europe’s 21st Century Challenge

vi

PART II LIBERTY CHALLENGES TO BORDERS 8

The Legal Competence With Regard to External Borders: Examining Coherence Leonard F.M. Besselink, Evelien Brouwer, Galina Cornelisse and Imelda Tappeiner

129

9

Liberty, Security and Enlargement Judit Tóth

143

10

Gateways to Europe: Checkpoints on the EU External Land Border Marta Kindler and Ewa Matejko

155

11

The Constitutional Price of Visa Free Travel: The Experiences of Bulgaria and Romania Angelina Tchorbadjiyska

167

Effects of Exceptionalism on Social Cohesion in Europe and Beyond Alessandro Dal Lago, Salvatore Palidda and Federico Rahola

189

12

13

Exceptionalism and its Impact on the Euro-Mediterranean Area 201 Cristina Fernández, Alejandra Manavella, Iñaki Rivera and Gabriela Rodríguez

14

Securitization, Liberty and Law: The EU’s 21st Century 217 Elspeth Guild, Evelien Brouwer, Paul Minderhoud and Ricky van Oers

PART III THEORETICAL PERSPECTIVES ON CHALLENGES TO LIBERTY 15

Violence and Exceptionalism in Contemporary Politics: War, Liberty, Security Vivienne Jabri

16

The Value of Security Peter Burgess

17

Delivering Liberty and Security? The Reframing of Freedom when Associated with Security Didier Bigo

Bibliography Index

237 251

263 289 323

List of Figures and Tables

Figures 3.1 3.2 3.3 3.4

The Legal Bases and the European Field of Professionals of Security The Position of Security Agencies and Units in the Process of Europeanization Prerogatives and Competencies of the European Security Agencies Position of the Security Agencies, Targets of Security Practices and Attitudes towards the Intelligence-led Rationale

61 62 62 63

Tables 11.1 11.2

Number of issued orders based on Article 76 (6) LBID Application of the Compulsory Administrative Measure (2003–2006)

181 182

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Acknowledgments

The editors would like to express their gratitude to Alejandro Eggenschwiler (Research Assistant at the Justice and Home Affairs (JHA) Section at the Centre for European Policy Studies, CEPS) for his dedication and assistance in the editing of this collective volume. Special thanks also go to Massimo Merlino for his support in the preliminary phases of the editing process. We would also like to express our gratitude to all the CHALLENGE partners, particularly those having contributed to this book, for their cooperation and impressive contribution to the project. We are also grateful to Angela Liberatore, CHALLENGE scientific officer at DG Research of the European Commission, for all her support, advice and cooperation during the lifetime of the project. This book falls within CHALLENGE (The Changing Landscape of European Liberty and Security) a five-year research project funded by the Sixth Framework Research Programme of the Directorate General for Research of the European Commission. For more information about the project see www.libertysecurity.org.

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Notes on Contributors

Thierry Balzacq is Professor of Political Science at the University of Namur and Co-Director of the EU Justice and Home Affairs research programme at the Centre for European Studies at Sciences Po Paris. He is also Research Director at the University of Louvain (CECRI). His articles have appeared in the Journal of Common Market Studies, the European Journal of International Relations, Security Dialogue, International Review of Sociology, Review of International Studies and Cultures & Conflits. Esther Barbé is Professor of International Relations at the Universitat Autònoma de Barcelona (UAB). She is the Director of the Observatory of European Foreign Policy. Leonard F.M. Besselink studied law at the University of Leiden and the Johns Hopkins School of Advanced International Studies, and holds a doctorate in social and political science of the European University Institute. He has taught constitutional law at the Universities of Amsterdam and Utrecht, and presently holds the Jean Monnet Chair in European Constitutional Law at the University of Utrecht. Didier Bigo is Professor of International Relations (and Maître de conférences des universités) at Sciences Po Paris, Professor at King’s College London and Researcher at CERI/FNSP. He is co-editor with R.B.J. Walker of the new ISA journal International Political Sociology, published by Blackwell. He is also Director of the Centre for Study of Conflict and Editor of the quarterly journal Cultures & Conflits published by l’Harmattan and edited once a year in Alternatives: Global, Local, Political. Professor Bigo works on critical approaches to security in Europe and the relation between internal and external security, as well as on sociology of policing and surveillance. He analyses the relations and tensions between international relations, politics and sociology. Philippe Bonditti is a Visiting Fellow at the Watson Institute for International Studies at Brown University. He holds a PhD in Political Science/International Relations from Sciences Po Paris. Philippe is also associate researcher of the Centre for Study of Conflict, a member of the editorial board of the journal Cultures & Conflits, the editorial and communication team of the journal International Political Sociology and the European research network Critical Approaches to Security in Europe (CASE). His research work focuses on the multileveled transformation of

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the modern state security apparatus in the digital age as well as the mutation in the exercise of sovereign power and in the art of governing people. Franziska Bopp holds a Diplom Regionalwissenschafler and was a research associate at the Jean Monnet Chair for Political Science at the University of Cologne until October 2008. Her main area of research is the political system of the EU with the focus on migration policy, justice and home affairs and foreign and security policy. Kosmas Boskovits holds a PhD in European Law from the University of Strasbourg and is Research Fellow in the Department of Political Science at the University of Athens. He is also member of the Legal Service of the Greek Ministry of Foreign Affairs in the policy section for European Affairs and has participated in the negotiations leading to the conclusion of the Constitutional Treaty and the Treaty of Lisbon. His principal publications deal with the institutional aspects of European integration, the status of the individual, the relationship between the market and public interventions and the techniques of Governance with a view to security. Evelien Brouwer is Assistant Professor of Constitutional and Administrative Law in the Law School of the Utrecht University, The Netherlands. Between 2002 and 2007 she was researcher at the Centre for Migration Law, Radboud University Nijmegen, The Netherlands, where she has written her dissertation on the right to effective remedies for third-country nationals reported in the Schengen Information System. Peter Burgess is Research Professor at PRIO, the International Peace Research Institute, Oslo, where he leads the Security Programme and edits the interdisciplinary peer-reviewed journal Security Dialogue. In addition, he is Adjunct Professor at the Norwegian University of Science and Technology (NTNU), Trondheim. Born in Germany, he was trained in Mechanical Engineering, Comparative Literature, and Philosophy in the US, Germany, France and Italy. His research and publishing has covered fields such as philosophy, political science, gender, history and cultural studies. His current research focuses on the ethical implications of the changing nature of threat and insecurity, particularly in Europe. He has been an active originator and coordinator of a number of national and international research projects, most recently the project Converging and Conflicting Ethical Values in the Internal/External Security Continuum in Europe (INEX), funded by the European Union’s Seventh Framework Programme for Research and Technological Development (FP7). Sergio Carrera is Head of Section and Research Fellow at the Justice and Home Affairs Section of the Centre for European Policy Studies (CEPS) in Brussels. He holds a PhD on immigration law from the University of Maastricht (The

Notes on Contributors

xiii

Netherlands). Carrera is an external expert on immigration and integration for the European Economic and Social Committee, the Committee of the Regions and the European Parliament. He has been involved in the coordination and research in CHALLENGE. Galina Cornelisse holds a PhD from the European University Institute and an LLM degree from the Leiden University. She works as a Lecturer in Constitutional Law at Utrecht University, The Netherlands. Her research focuses on the interface between constitutional law and immigration law and policy in contemporary constitutional democracies. Alessandro Dal Lago is Full Professor of Sociology of Culture at Genoa University. His research fields are the classical sociological thought, the contemporary philosophy of politics and society, the social ethnography, the sociology of migrations, the sociology of deviance and social control, the sociology of leisure and sport and the sociology of art and literature. He has been director of some European research projects under the FP4, FP5, FP6 and FP7 and has published thirty books and over one hundred articles in scientific reviews. Cristina Fernández is Head of the Research Area on Europe, Rights and Liberties of the Observatory of the Penal System and Human Rights (OSPDH) at the University of Barcelona. Cyril Gläser holds a Master of Arts and is a research associate at the Jean Monnet Chair for Political Science at the University of Cologne. His main area of research is the political system of the EU with the focus on protest and social movements, national parliaments and EU institutions. Elspeth Guild is Jean Monnet Professor of European Migration Law at the Radboud University Nijmegen, The Netherlands. She is also Senior Research Fellow at the Centre for European Policy Studies (CEPS) in Brussels and a partner at the London law firm Kingsley Napley. She is a Visiting Professor at the London School of Economics (LSE) and teaches in the Department of War Studies at King’s College London. She has acted as Special Adviser to the House of Lords and is a member of the European Commission’s expert group on the policy needs for data on crime and criminal justice. Guild has also been part of the coordination team and a research member in the CHALLENGE project. Vivienne Jabri is Professor of International Politics and the Director of the Centre for International Relations at King’s College London. Professor Jabri’s current research interests centre on: the implications of late modern warfare and the politics of security for the international sphere and its transformations in relation to law; the international politics of culture and race; debates surrounding the multicultural state, and the location of boundaries in state/citizen relations.

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Elisabeth Johansson-Nogués is a visiting fellow at the Swedish Institute of International Affairs and associate researcher at the Institut Universitari d’Estudis Europeus (IUEE). She is member of the Observatory of European Foreign Policy. Marta Kindler has been a member of CMR since 2003. She defended her PhD ‘Risk and Risk Strategies in Labour Migration: The Case of Ukrainian Domestic Workers in Poland’ at the European University Viadrina Frankfurt (Oder). She participated in many research projects in the field of international migration studies. Her research area includes short-term migrations in Central and Eastern Europe with a focus on undocumented labour migration, especially migrant domestic workers. In 2004 she received a doctoral scholarship at the European University Viadrina Frankfurt (Oder), Graduate College Migration and Transnational Networks, sponsored by the European Commission (Interreg III). Juliet Lodge is Professor of European Studies and co-Director of the Jean Monnet European Centre of Excellence, University of Leeds, UK. Her research focuses on the political, constitutional and ethical challenges of ICTs and biometrics to egovernance in the EU. Alejandra Manavella is a Researcher at the Observatory of the Penal System and Human Rights (OSPDH) at the University of Barcelona. Ewa Matejko is a doctoral student at the Institute for Social Science, University of Warsaw and a researcher of The Centre of Migration Research. She participated in many research projects in the fields of international migration and EU external border. Her research interests include the consequences of emigration for local communities and labour markets, the return of migrants to Poland, problems of borderland economy and management of the EU external borders. In her PhD dissertation she investigates the role of the informal transborder market in the socio-economic transformation of borderlands and focuses on the case study of one of the cross-border points at the Polish-Russian border. Paul Minderhoud is an Associate Professor at the Centre for Migration Law of the Radboud University Nijmegen, The Netherlands. His main research interests are the legal and socio-legal aspects of immigration and social security. He is project director of the European Network on Free Movement of Workers and coeditor of the European Journal of Migration and Law. Christian Olsson is Associate Researcher at the Centre for the Study of Conflicts (Paris), member of the editorial board of the journal Cultures & Conflits, of the editorial and communication team of the journal International Political Sociology and of the European research network Critical Approaches to Security in Europe (CASE). He has participated in CHALLENGE as a junior researcher at the Institut d’Etudes Politiques of Paris (CERI/Sciences Po). Currently, he is finishing, under

Notes on Contributors

xv

the supervision of Professor Didier Bigo, his PhD dissertation in international relations at the CERI/Sciences Po on the problematic of the legitimation of violence in the context of overseas military operations (Balkans, Afghanistan, Iraq; 1996– 2006). He has published a set of articles and book chapters on this subject. Salvatore Palidda is Professor of General Sociology, Sociology of Deviancy and Social Control and Sociology of Human Mobility at the University of Genoa, Italy. Palidda holds a Doctorate in Sociology and European Studies from the École des Hautes Études en Sciences Sociales (EHESS), Paris. His research fields are the sociology of politics and society (in particular military, police and criminality studies), the social ethnography and the sociology of migrations. He has been co-director or director of some European research projects under the FP4, FP5, FP6 and FP7. He has published ten books and over fifty articles in scientific reviews. Federico Rahola is a Researcher at the University of Genoa, Italy. His research fields are the sociology of culture, the social ethnography and the sociology of migrations. He has participated in some European research projects under the FP4, FP5, FP6 and FP7. He has published four books and over twenty articles in scientific reviews. Iñaki Rivera is Director of the Observatory on the Penal System and Human Rights (OSPDH) of the University of Barcelona. He is also Director of the official master’s degree in Criminology and Sociology of Penal Law and reader in Criminal Law at the same university. He has been Guest Professor at several universities in Europe and in Latin America. He has published widely on Penitentiary Law, History and Sociology of Prison and Criminology and Criminal Policy in Spain, Europe and Latin America. Gabriela Rodríguez is Head of the Research Area on Resolution of Conflicts and Penal System of the Observatory of the Penal System and Human Rights (OSPDH) at the University of Barcelona. Nikos Scandamis is Professor of European Law at the Department of Law of the University of Athens. Holder of a Doctorat d’État from the University of Paris (1973), he has served in a number of positions, including as a member of the Central Team of Negotiations set up by the Greek State to conduct the accession to the European Communities and as a Director in the Directorate General for Employment, Social Affairs and Equal Opportunities of the European Commission. Currently, he is a member of the Scientific Council of the Greek Parliament as well as a member of the Legal Council of the Greek Association of Banks. Professor Scandamis is also an author of numerous publications in the field of European law as well as European integration from an interdisciplinary perspective.

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Frantzis Sigalas is a PhD candidate in European Law at the Department of Law of the National and Capodistrian University of Athens. He is also a lawyer and member of the Athens Bar Association. Mr Sigalas holds a postgraduate degree in European Law from the University of Athens. Sofoklis Stratakis is a PhD candidate in European Law at the Department of Law of the National and Capodistrian University of Athens. He is also a lawyer and member of the Athens Bar Association. Mr Stratakis holds postgraduate degrees in European Politics (University of Essex) and in European Law (University of Athens). Imelda Tappeiner holds a PhD in police cooperation in the European Union and an LLM degree. She is a lecturer and researcher in constitutional and administrative law at the Faculty of Law of Utrecht University, The Netherlands. Her research interests include police, public order, human rights and general issues of constitutional and administrative law. Angelina Tchorbadjiyska is a member of the Legal Service of the European Parliament and Associate Research Fellow of the Institute for European Law of the Catholic University of Leuven, Belgium. From 2004 to 2008, she participated as representative of the European Institute in Sofia in the research project CHALLENGE, funded by the European Union’s Sixth Framework Programme for Research and Technological Development (FP6), and, together with partners from Hungary, Poland and Malta, conducted research on the changing relationship between the accession countries and their neighbours. Her research interests include European visa policy, enlargement of Schengen and external aspects of the Area of Freedom, Security and Justice. Judit Tóth holds a PhD and is Associate Professor of Law at the Department of Constitutional Law of the University of Szeged, Hungary. She has twenty years’ experience in the legal practice and worked as a legal adviser to the Hungarian Parliament, the Prime Minister’s Office and the Ombudsman. Judit is also a Senior Research Fellow at the Hungarian Academy of Sciences and at the Institute for Minority and Migration Issues and has conducted research at the Institute for Political Sciences from 1990 to 2001. She has published widely on refugee, migration and comparative constitutional law as well as enlargement policy. She has worked in international research teams on migration and human rights issues since 1991 and, as partner in the CHALLENGE project, led the research team on enlargement. Ricky van Oers is a PhD candidate at the Centre for Migration Law at the Radboud University of Nijmegen, The Netherlands. Her research concerns the introduction and effects of formalized citizenship tests in Germany, The Netherlands and the UK. She participated in the NATAC project, coordinated by Rainer Bauböck,

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which focused on comparing the way in which 15 EU member states regulate the acquisition and loss of nationality. Furthermore, she conducted research into the implementation of the Directives on family reunification (2003/86/EC) and on long term residents (2003/109/EC) in the EU member states. R.B.J. Walker is Professor of International Relations at Keele University, UK and Professor of Political Science at the University of Victoria, Canada, where he is also Director of the interdisciplinary graduate programme in Cultural, Social and Political Thought. He has published very widely on the implications of contemporary transformations for modern accounts of sovereignty, subjectivity, boundaries and the spatiotemporal articulation of political life. He is also the editor of two journals: Alternatives: Global, Local, Political and, together with Didier Bigo, International Political Sociology. Wolfgang Wessels holds the Jean Monnet Chair for Political Science at University of Cologne. His priorities in teaching and research include the political system of the EU, its role in the international system, its deepening and widening, modes of governance as well as theories and strategies of European integration. He is chairperson of the Executive Board of the Institut für Europäische Politik (IEP), Berlin, and of the Trans European Political Studies Association (TEPSA), Brussels. Since 1981 he has been Visiting Professor at the College of Europe (Bruges and Natolin). In 2007 he was awarded the Jean Monnet Award in Gold.

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List of Abbreviations

AFSJ AG ANT AWF

Area of Freedom, Security and Justice Advocate General Advanced Neuro Technology Analysis Work File

BE BMENA BTWC

Belgium Broader Middle East and North Africa Biological and Toxin Weapons Convention

CBC CCC CEEC CEPOL CFI CFSP CHALLENGE CIA CIP CIS CISA CIWIN CNTBT CVM CWC

Common Borders Code Community Customs Code Central and Eastern European Countries European Police College Court of First Instance Common Foreign and Security Policy Changing Landscape of Liberty and Security in Europe Central Intelligence Agency Critical Infrastructure Protection Customs Information System Convention Implementing the Schengen Agreement Critical Infrastructure Warning Information Network Comprehensive Nuclear Test-Ban Treaty Cooperation and Verification Mechanism Chemical Weapons Convention

DdL DE DG DNA

Legislative Decree Germany Directorate-General Deoxyribonucleic Acid

EAW EBMS EC ECHR ECtHR ECJ EDPS

European Arrest Warrant European Border Management Strategy European Community European Convention on Human Rights European Court of Human Rights Court of Justice of the European Communities European Data Protection Supervisor

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EEA EEAS EESC EEW ENP EP EPC EPCIP ESDP ESS ETA EU EUBAM EUISS EUPOL COPPS EUSR

European Economic Area European External Action Service European Economic and Social Committee European Evidence Warrant European Neighbourhood Policy European Parliament European Political Cooperation European Programme for Critical Infrastructure Protection European Security and Defence Policy European Security Strategy Euskadi Ta Askatasuna European Union European Union Border Assistance Mission European Union Institute for Security Studies European Union Police Mission in the Palestinian Territories European Union Special Representative

FR FRA FSJ

France EU Agency for Fundamental Rights Freedom, Security and Justice

G8

Group of Eight

IAEA IBMS ICCPR ICMPD ICT IOM IR ISAF IT

International Atomic Energy Agency Integrated Border Management Strategy International Covenant on Civil and Political Rights International Centre for Migration Policy Development Information and Communication Technology International Organization for Migration International Relations International Security Assistance Force Information Technology

JHA

Justice and Home Affairs

LBID LIBE Committee

Law on the Bulgarian Identification Documents Committee on Civil Liberties, Justice and Home Affairs

MEP MIFD MP

Member of the European Parliament Management Information Format Database Member of the Parliament

NATO NGO

North Atlantic Treaty Organization Non-Governmental Organization

List of Abbreviations

xxi

NL No. NPT

The Netherlands Number Non-Proliferation Treaty

OECD OJ OLAF OOTW OPCAT OPCW OSCE OSPDH

Organization for Economic Cooperation and Development Official Journal European Anti-Fraud Office Operations other than War Optional Protocol to the Convention Against Torture Organization for the Prohibition of Chemical Weapons Organization for Security and Cooperation in Europe Observatory of Penal System and Human Rights

P. PNR Pp. PSO

Page Passenger Name Record Pages Peace Support Operations

RFID RMA ROC

Radio Frequency Identification Revolution in Military Affairs Local Educational Center

SAC SAP SBC SIS SIS II SITCEN

Supreme Administrative Court Stabilization and Association Process Schengen Borders Code Schengen Information System Second Generation Schengen Information System Joint Situation Centre

TCN TEC TECS TEU TFEU

Third Country National Treaty Establishing the European Community The Europol Computer System Treaty on the European Union Treaty on the Functioning of the European Union

UN UNESCO UNHCR US

United Nations United Nations Educational, Scientific and Cultural Organization United Nations High Commissioner for Refugees United States

v. VIS Vol.

Versus Visa Information System Volume

xxii

WMD WP

Europe’s 21st Century Challenge

Weapon of Mass Destruction Work Package

Chapter 1

The Changing Landscape of European Liberty and Security Didier Bigo, Elspeth Guild and R.B.J. Walker

Introduction This chapter is the outcome of CHALLENGE (The Changing Landscape of Liberty and Security in Europe), a research project on contemporary transformations in the relationship between liberty and security, funded by the Sixth Framework Programme of the European Commission’s Directorate General for Research. The project involved 23 universities and research institutes across Europe for a period of five years. Given the importance of liberty and security as values both within Europe and beyond, the project considered a wide array of trends, situations, institutions and debates over competing principles and legal norms. A large number of books, articles and policy briefs have been published within the framework of the project. Given the broad range of research undertaken, this chapter makes no attempt to summarise its specific findings. We will simply note that different researchers have examined the following issues: • • • • • • • • •

First, the broad reconceptualization of relations of power and authority at international level; Second, interpretations of the dynamics generated after 11 September 2001 and their long-term impact on the European Union (EU)’s institutions; Third, the external dimension of EU policy and how it deals with third countries, specifically with its close neighbours, with the great regional powers, and with the United States (US); Fourth, the development of an Area of Freedom, Security and Justice (AFSJ) under the 2004 Hague Programme; Fifth, the institutionalization of this Programme and the networks of actors that have been involved in its completion; Sixth, emerging patterns of internal differentiation inside the EU generated by the implementation of major aspects of the Programme; Seventh, the disproportionalities apparent in efforts to expand security measures in comparison with measures to sustain freedom and justice; Eighth, the detailed results of this Programme in many policy arenas; and Ninth, the alternative policy measures that might better regulate the resort

Europe’s 21st Century Challenge

2

to violence, the protection of critical infrastructures, collective security, the rule of law, principles of citizenship, fundamental rights, privacy, data protection, market governance and the rights of foreigners. Some indication of the work done by the different research teams, the methodologies used and their attempts to work within increasingly international and transnational environments may be found in the CHALLENGE Mid-Term Report published by the United Nations Educational, Scientific and Cultural Organization (UNESCO) in the International Social Science Journal in June 2008.1 Here, however, we wish to step back from these specific contributions in order to consider the view that the multiple and complex dynamics that have exercised policy-makers in so many situations reveal some fundamental challenges to conventional accounts of how the competing principles of liberty and security should be reconciled. It is fairly clear to everyone involved in this project, as it is to many others, that we need to think differently about the multiple tensions between claims about security and claims about liberty, and that the EU institutions will have to change the framing of the relationship between these principles if they are to respond coherently to many contemporary trends. This is not only because of the risks that came into sharp focus in September 2001, but also because of the conscious attempt to create a new kind of political order in the EU and by the broad dynamics that have come to be described under the vague concept of globalization. Established accounts of the proper relationship between liberty and security ultimately express a world of political possibilities and limits rooted in the power and authority of sovereign states. Even if sovereign states remain with us, few observers are persuaded that we can take them as our only guide to the way we think about fundamental principles like liberty and security in today’s world. Any rethinking of such concepts will have serious implications for the values that the EU expresses both internally and externally, for the ongoing reorganization of its institutional structures and legal norms and, not least, for the specific structuring of the Justice and Home Affairs (JHA) sector. It will have implications for the major reforms that are currently envisaged, for the preparation of the Stockholm Programme and relations with third countries (including the US) and for third country nationals (TCNs) entering the EU. One way of understanding the broad dilemmas that are now framed as a tension between liberty and security is that both terms identify arenas of profound uncertainty, while simultaneously affirming established and even dogmatic answers that tell us that we must remain entrenched within the conventional wisdom. In effect, established answers make it very difficult even to identify the questions that must be posed now. It has become increasingly clear to us throughout the CHALLENGE project that even the most empirical and policy-focused research 1

Bigo et al. (2008).

The Changing Landscape of European Liberty and Security

3

on contemporary tensions between liberty and security poses difficult challenges to the way in which we now use these terms, articulate them within juridical and administrative procedures and make claims about the enhancement of both values, while undermining the very possibility of achieving either value under new conditions. Perhaps the most difficult task uncovered by all our research has involved the need to better understand the fundamental questions that are systematically silenced by the assumption that the liberal democracies of the EU already have perfectly acceptable answers to the questions about how to deal with security and liberty. Too many policy responses presume that we know how to deal with the relation between liberty, security and both democratic and governmental responsibilities and with the limits of sovereignty, citizenship, privacy in European, international and even global settings, even though boundaries of identity, territorial borders and the limits of legal jurisdiction are so obviously fluid and mutable. Among the reassuring answers that dull many analytical strategies in this respect is the idea that the EU is a community of ‘established democracies’ able to resist potentially dangerous practices enacted on their margins: the activities of the secret services, non-transparent forms of diplomacy, the pooling of national interests in ways that undermine other forms of social solidarity and so on. This idea is especially suspect given the strength of claims about the need for governments to deal with new forms of transnational and terrorist violence – claims that justify emergency measures and corollary claims about the need for speedy action that can be achieved only by an executive unconstrained by parliaments, courts and other processes of accountability. After all, claims that normal rules of conduct must be suspended under certain conditions, at least for a certain period, have a very troubling history, and we should not expect them to be any less troubling now. The idea that new technology offers better solutions to political problems also comes into play here, especially in claims that more advanced technology will restore to governments the capacity to regulate violence, crime, public disorder and the flow of people crossing their borders. The technologies in question rely heavily on high-speed communication between integrated platforms, the computerization of data and the transnational exchange of selective information, the construction of profiles of potentially dangerous populations or populations at risk and the reconstruction of categories of information, and thus the political identities, through biometric technologies that reduce citizens to the mere indicators of a physical body. Such technologies in turn help sustain the idea that security must be understood in terms of new measures to prevent various worst-case scenarios, so that, for example, policing must be less a matter of research and punishment of a criminal act than about actions that must be taken before any such act occurs. This kind of prevention is only possible through ever more ‘perfect’ information and the transnational exchange of such information; and consequently, through the integration of police and military forces, intelligence services, border guards, customs services, immigration services and even social services, together with

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their private partners. It is in this way that we can understand the pressures to reorganize the relations among all these agencies and to oblige them to work together both nationally and internationally, thereby creating a privileged level of exchange between EU members, with their closest allies and even with any states that are willing to combat terrorist activities, regardless of whether they are liberal regimes or not. In all these contexts, we can see a pervasive and systematic tendency to insist that principles of liberty must be reframed in a way that they can survive new conditions of emergency. Today’s supposedly new demands are said to require new forms of security both internally and externally; the integration of different security institutions and their extension into other social spheres and institutions in order to prevent not only new forms of violence but also any possible form of risk and danger. When taking certain understandings of Europe as a given, as a comfortable arena in which all the tough questions have been answered within ‘achieved’ democracies, the always profoundly problematic relationship between security and liberty fades into the background. Yet if the great diversity of research pursued by the CHALLENGE project shows anything, it is that the relationship between liberty and security is becoming ever more problematic, in ways that must put many of the comfortable assumptions of what Europe is, or even where it is in relation to the wider world, into serious question. It is unclear whether anyone has a real understanding of how sovereignty works in the EU, how it is constrained by international and other sovereignties or how the EU now mediates the authority of its institutions with claims of some form of popular sovereignty. Consequently, it is unclear how liberty has been thought through, constructed and practised in the EU; how the ideas about the fourth or fifth freedoms to defend the core values of the EU are to be sustained or how established ideas about and practices of liberty might adapt, resist or be entirely reframed when claims about danger, risk, emergency and legitimate violence are made by many different authorities with fewer and fewer obligations to submit to democratic scrutiny. The aftermath of the attacks in the US on 11 September 2001, and the 2004 Hague Programme for the EU’s AFSJ, which placed great emphasis on the issues of emergency and exception, provide the context for the three questions that have been central to the CHALLENGE project. All three questions relate to a profound process of (in)securitization and the emergence of a transnational guild of (in)security professionals making claims about the reality of threat and risk. This is a historical moment in which the boundaries between identities and national territory (the nation), the EU and the US were subjected to great stress and resulted in reformulations and reconfigurations. Boundaries in which claims regarding integration, security at a global level and dedifferentiation of transnational fields of power all shifted with profound consequences for our understanding of what the international is and, in that context, what the national might be. Three main questions are the result of these pressures and processes:

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First, what are the conditions of political modernity? This includes the following question: what are the implications of these conditions, in particular with regard to their impact on the achievements of liberty and democratic accountability? Second, when political modernity is at stake, what happens to the relationship between liberty and security? Third, what does the reframing of boundaries mean for individuals and popular sovereignty in light of the answers given to the first two questions? Examining Emergency, (In)securitization and Dedifferentiation This is why we begin the comments that follow with a brief examination of the concepts of emergency and exception that have traditionally been at the heart of the relationship between liberty, security and sovereignty. In this context, we want to show how claims that we are living in an exceptional historical moment work, both so as to legitimize some long-established and still disturbing procedures through which claims about security must always trump claims about liberty and simultaneously redraw, displace and reframe the location of traditional boundaries in order to create a more coherent form of global integration that is nevertheless dependent upon the authorization of boundaries and sovereignties. We especially want to stress that the exceptional moments of decision that may be identified in the contemporary attempts to reframe the relations between liberty and security must be understood not as a great event, whether as the great singular moment of exception or the great moment of a generalized exception, but as products of routinized processes of (in)securitization generated by the everyday practices of multiple actors in many different sites. This (in)securitization process itself is embedded in a broader transformation of relations between national and international authorities, as are the difficulties faced by national governments in controlling their bureaucracies and pursuing their national interests or strategies of cooperation. The territorial limits of state actions framed by nationalism and national citizenship still function as the limits of a political imagination that is framed by processes of state-making and the differentiation of bureaucracies within territorial boundaries. Now another process seems to be in motion, one in which established forms of differentiation are being dedifferentiated, though not unified, which is reshaping old limits. One consequence is that new solidarities between transnational professional guilds often trump the national solidarities and the effectiveness of national policy in many crucial arenas. The precise cartography that might map this restructuring of solidarities remains unclear and in need of further research, but we do know that the limits of solidarity are being redrawn through many different fields of practice. Not least, the formal and juridical assumptions prevalent among EU

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actors are being challenged by a rapid and transversal restructuring of the field of the professionals of (in)security.2 The process of dedifferentiation that we have identified has major consequences for contemporary forms of (in)securitization and the creation of a form of politics predicated on the management of unease through worst-case scenarios. It has pushed the professionals of politics and the EU institutions towards a common belief that the integration of information is the solution to violence, disorder and social transformations induced by flows of people across the world. It has encouraged claims about the need to preserve visions of order, certainty and identity that are framed against a future that can only lead to Armageddon if prevention technologies are not deployed immediately and globally. The urge to deploy these specific technologies has been both the effect of the emergence of a transversal field of professionals of (in)security and an accelerator of the processes sustaining this field. A specific way of framing the character and significance of (in)security has shaped the practices of specialized institutions, which have in turn become increasingly dependent upon the reproduction of specific ways of framing problems. Institutional self-interest has all too often become a crucial influence on analytical judgements. This development is illustrated by the EU entry-exit system proposed by the European Commission,3 and by the drive to integrate multiple databases, or at least to give specific access to police and intelligence services to these data bases (Guild et al. 2008). The latter is a common trend in both the EU and the US, but it is a trend that must be explained not so much in relation to the demands of either the EU or US administrations as by the transversal professional fields that have attained considerable autonomy from both national and international authorities. No one with political responsibility in the diverse institutions of the EU can now simply assume that conventional accounts of the relationship between liberty and security, or of the way in which this relationship can be sustained through specific practices of liberalism, or of the way in which this relationship expresses claims to sovereign authority or democratic legitimacy, can be taken for granted. On the contrary, liberal practices now tend to reveal a number of acute problems in the relationships between liberty, security, sovereign authority and democratic accountability. Security in particular has become an arena in which claims are made about a privileged authority able to decide what is considered to be a danger, a threat or even the ultimate fate of humanity. Such claims have begun to transform the rules governing the conditions under which privacy, habeas corpus, the presumption of innocence and individual freedoms can be sustained, or not. This transformation involves many specific dynamics. It is certainly the case that 2 Bigo et al. (2007). 3 European Commission, Communication from the Commission to the European Parliament, the Council, the European and Social Committee and the Committee of the Regions: Preparing the next steps in border management in the European Union, COM (2008) 69 final, Brussels, 13 February 2008, p. 7.

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new forms of knowledge production, technologies of information exchange, and the categorization of information in profiles have all created a ‘public/private partnership’ among a specific field of professionals whose interests are under minimal scrutiny or either parliamentary or judicial control. The implications of these dynamics extend far beyond the immediate concerns of operational policy into the furthest corners of what we have come to understand as modern liberal and democratic societies capable of sustaining and securing liberty. What are the Conditions of Political Modernity? There seems to be agreement on the fact that many of the detailed examinations of the liberty-security relationship suggest a broader challenge to established accounts of political community, identity, authority, accountability, boundary conditions, the supposed convergence of legal limits and territorial borders and so on. There seems to be some agreement, also, that the character of the boundary conditions and the structuring of internal/external relations that is classically expressed as a necessary convergence of territorial borders and legal limits is transforming in ways that challenge the usual statist assumptions about the containment of all identities within and between nation states. Much is at stake if this is indeed the case. It is especially worth noting that many of the analyses of change and transformation in the European context that might help us understand the implications of these developments have been framed primarily in terms of a double dynamic: on the one hand, a move inwards, whether as enlargement or the much longer story about the necessity of an attempt to bring the world into the orbit of modern culture and ‘subjectivity’; on the other hand, a vertical move to establish new authorities at higher ‘levels’. In both cases we encounter characteristic limits: how far does Europe extend out into the world in horizontal space (a question that raises familiar suspicions about manifestations of European universalism in practices of European colonialism); how high does authority need to go and what happens to lower forms of authority (national, local) in the process? (a question that raises equally familiar suspicions of claims to supranationality and the return of hierarchical or even imperial government from above). It is also clear that the problems and processes in Europe are part of a much wider array of dynamics. At least four groups of dynamics are worth identifying in the present context: •

•

First, as a historical project, Europe has worked by distinguishing itself from the rest of the world in various ways (including colonialism, imperialism, claims about the superiority of its civilization, assumptions about linear development and the universality of its values) and must come to terms with the rest of the world on new footings; Second, as a political economy especially, Europe is caught up in patterns of globalization that are sometimes said to threaten the European political

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• •

order with the disappearance of boundaries and the loss of centres of authority; Third, Europe is caught up in processes that are less universal than hegemonic, subordinate to the US in some way; and Fourth, Europe still sees itself as a (very complex) part of a broader international order predicated on competing and indeed profoundly conflicting claims about citizenship and humanity.

It is the final – international – context that may be most relevant to understanding the underlying questions about community, authority and identity that arise in many discussions about liberty and security. In a nutshell, it is the formal structuring of international politics that gives us our regulative ideal of what the proper relationship between unity and diversity must be like. This is because it gives us a very powerful answer to the question of how we are supposed to be at once citizen and human. Again, in a nutshell, this answer involves: • •

•

First, an ambition for autonomy as the core meaning of liberty; Second, a framing of this ambition on a scale from small to large: thus the Kantian ideal of the individual self that does not depend on others telling it what to do, the (also Kantian) ideal of national self-determination, and the (again Kantian) ideal of a system of autonomous states that enables the autonomy of states and individuals; and Third, a recognition that although this scale permits ideas about a world in which universality may be realized within each individual, state or system, the relation between each of these three sites of modern liberty also works as a profound contradiction. Hence, in one set of formulations, the struggle between popular sovereignty and state sovereignty domestically (and thus the primary contradictions of democratic theory) and the struggle between state sovereignty and the sovereignty of the international system (and thus the contradictions expressed in the United Nations (UN) Charter, for example, between claims to domestic jurisdiction and collective security).

Life in the international sphere has always been more complicated than this, of course. Not least, order in the system has been predicated upon the need for inequality (the Security Council, which has the hegemony on power) rather than equality (the General Assembly, which embodies some principles of international law). Even so, to speculate that we may be seeing new patterns of consolidation and fragmentation in any specific arena, but perhaps especially in relation to the organization of relations between liberty and security, is to wonder about the continuing force of this regulative ideal, which is, after all, extraordinarily elegant and persuasive on many grounds, despite all those nationalist claims about realism and interstate war. Put differently, what we call realism is largely a consequence of what we call idealism of the Kantian variety, not its opposite.

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So, to examine the regulative ideals of the international order may provide a starting point to understanding Europe, partly because the European project was articulated against the logic of the international but also partly because the European project may not conform very closely to its own understanding of itself as a challenge to the international order, and especially to its self-understanding as a move up the scale to a more encompassing, more universal act of integration. It is in relation to this broad background of a standardized reading of the condition of modernity that CHALLENGE might have been guided by two grand narratives that could be taken for granted and insinuated into the detailed analysis of specific tendencies: Europe is still some sort of international order, and the regulative ideal of self-determination should then provide grounds for judgement about new patterns of consolidation and fragmentation; or, Europe has a clear sense of hierarchical subordination of lower to higher, from the particular to the universal. As good Europeans, we are probably expected to adopt the second interpretation. But what is perhaps more interesting is that the detailed empirical analyses developed within the project do not easily confirm either the horizontal or vertical expectation. Three general comments may be useful at this point. First, there have been other contexts in which the integration-fragmentation theme has been posed in terms other than those given by the international system. Most influentially, perhaps, we might remember various analyses of the relation between a universalizing capitalist world order and a fragmented interstate order; this is the context in which we might understand the power of the Keynesian accommodation between state and market that has been unravelling for the past few decades. Second, the pattern expressed by the state system rests on a long-standing philosophical/cultural tradition in which it is assumed that particularity and difference must be subsumed within some kind of universality, a tradition in which it is very difficult to think about difference or heterogeneity except as a subset of universality, terms set both by Greek philosophy and Christian theology. Third, the relation between unity and diversity finds expression as a theory of political strategy and the opposition between claims about the need for a united front and claims about some kind of networked or guerrilla operation. It is not clear, however, if any of these experiences help us to understand what has been going on in Europe any better than the expectations offered by the horizontal and vertical accounts of an internationalized political order. For example, much of the empirical work in CHALLENGE seems to support a claim that we confront a significant integration of systems of security across both functional sectors and territorial spaces and a systematic privileging of integration in security apparatuses. But this is in sharp contrast to the heterogeneous practices of democracy, rights and liberty, all of which seem to be fragmented or fragmenting. There are many questions about causality that may be posed here, but it is also worth asking some more general questions. For example, if there is indeed a profound change underway, does liberty now need greater degrees of

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integration and consolidation in order to mirror the forms of integration apparent in the security arena, or do we need to be cautious about the benefits of a united front under contemporary conditions? And if change is underway, is it to be understood as part of a wider series of moves in political economy and elsewhere? In either case, how are we supposed to think about the boundaries that the conventions of international relations (IR) tell us must either still be with us or are being eroded as we move up the levels to some more encompassing political order? The increasingly obvious lack of convergence between legal and territorial boundaries, citizen/human dualities and states/state-system borders does not necessarily mean that boundaries are disappearing (the world integration view), but rather leads us to question the whereabouts and character of the new boundaries of meaning, which permit certain types of integration while blocking others. In any case, is there a single opposition within a single system in this respect or perhaps a differentiation of competing systems expressing different logics, with sovereignty being transformed into a practice working to affirm the priority of some networks, problems and principles over others rather than as a mechanism guaranteeing either horizontal differentiation within a loose horizontal system or a subordination under a universalizing authority. Profound principles of sovereignty are obviously at stake here. But this is surely what must be confronted once it is recognized that even countenancing change in the international order of things, whether in ambitions for a new Europe or challenges to established accounts of the relation between liberty and security that might be taken up with a new Europe, involves a multidimensional destabilization of the relationship between our claims to citizens of particular jurisdictions and our claims to be human beings, part of a generalized humanity expressed in an internationalized system encompassing all particular jurisdictions. This is ultimately what is at stake in contemporary debates about liberty and security, and what offers considerable common ground for those who think, rightly in our view, that it is necessary to resist many of the specific practices that are currently reshaping human possibilities, but in ways that systematically minimize the achievements of liberty and democratic accountability. Balancing Liberty and Security? Many of these questions come into sharper focus if we examine the ease with which a metaphor about the balance between liberty and security has come to structure both popular and professional understandings of the problems we confront. It is a metaphor used both by those who wish to privilege claims to security and those who wish to privilege claims to liberty. A balance, of course, presumes that just two values are being evaluated and that these two values are measurable on the same scale, subject to the same calculation. This framing assumes that liberty and security are ‘eternal values’, homogeneous, comparable, quantifiable and easily distinguished. But no sustained analysis of how these concepts developed or how they work together in modern political

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life could make such assumptions. We speak of liberty under certain conditions, not least conditions of security. We also understand that questions about security traditionally arise at the edges of what is considered to be the ‘normal’ forms of political life in which liberties, equalities, democracies and the rule of law can be enacted. Again, in a nutshell, claims about security at the limits, borders and boundaries of political life, at the territorial edges of states, at the boundaries of community and identity where exceptions are made to the presumed norms of society. The metaphor of a balance converts this relation between norm and margin, or norm and emergency, or norm and exception, into a relationship between two equal values competing on an apparently normalized middle ground. In effect, the old antagonism between popular sovereignty and state sovereignty is erased, and the choice between competing values is articulated as a choice to be made by a sovereign people but on terms given by some other sovereignty insisting that the choice must be made. The metaphor simply dismisses the most basic questions of sovereign authority and democratic accountability from the political arena. The metaphor of balance in fact describes an imbalance, and silences the capacity of political judgement under a neo-juridical argument. Over the past decade it has become one of the most powerful tools used to limit discussions about liberty. Firstly, it has been clear that some authors playing with the balance metaphor have had a rhetorical strategy in mind. In order to unify security and to fragment freedom, they used the term freedom, understood as a series of freedoms within structures of competition, rather than a general principle of liberty. Simultaneously, they used the term security for all the practices of war, coercion and protection, both collectively and individually and both internally and externally. In this reasoning, it is necessary that liberty be fragmented and considered mainly in individualist terms while security is reunified, aggregated as safety, protection, security, survival and considered in individual, collective and even global terms. Under these rhetorical conditions, it is not difficult to say that security must trump liberty. Security may even become freedom itself by being transformed into the first freedom, the freedom from fear for life. In a second use of a framing of a unified security and a fragmented liberty, the metaphor of a balance, referring to a set of scales, is used in a context where danger is made central, so that the balance is effectively transformed into a triangle through which security must be enhanced against liberty because of the broad horizon of risk, danger and threat. On such a triangle of danger, liberty, security, it is clear that liberty is the problem. All the main political actors of our time have insisted on the need for security to be completed, to become global, to be developed beyond traditional cooperation and to become the marker of the identity of civilized values against the barbarians. But this claim for a global security agenda, total information awareness, security without limit or security first, quickly opens out into a conception of security as coercion, surveillance, control and a powerful dynamic of violence and exclusion. This is why we now experience so much forgetting of what democracy means through the mobilization

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of claims about a cosmopolitanism that must privilege values of safety, protection and security as a public good. If liberty is a goal advanced by any liberal regime, is security a goal too, or just a means to achieve freedom and democracy? It is telling that this question has not often been raised in public debates. It has been very rare to find framings of a balance in a triangle involving liberty, security and democracy, because there security becomes the problem, not the solution. Indeed, the balance metaphor enables the avoidance of any sustained discussion of the relationship between liberty, security and democracy. CHALLENGE has developed many facets of these apparently abstract but nevertheless pressing dilemmas in practical terms and has criticized in many ways the framings of the relationship between liberty and security that generate and legitimize a hierarchy in favour of control, surveillance, policing and war against social change, nomadism and everyday life.4 Even many critical commentators pay little attention to the various ways in which concepts of liberty and security may refer to the same practices depending on the grammar and language used, whether it is, for example, a language of social change and opportunity or a language of order and utility. Within this systematic pattern of the erasure of fundamental questions about the relation between liberty, security and sovereign authority, different bureaucracies have been able to develop specific lines of strategic reasoning. The Pentagon has insisted on the need to use so-called surgical strikes‚ to destroy infrastructural support for clandestine organizations, and on the need to have a full range of powers to extract information from the enemy. It was not initially a supporter of large-scale war, preferring very high technology action abroad and greater power for the military within the US in order to oversee the coordination of the different civil administrations. These military bureaucracies were not the first supporters of large-scale war and would have preferred very high-tech actions abroad and more power for the military inside the US in order to oversee the coordination of the different civil administrations. They were keen to use their satellite surveillance everywhere, including on home territory. The North Atlantic Treaty Organization (NATO) and the transatlantic network of Echelon were on their side. The Central Intelligence Agency (CIA) and Homeland Security, while in competition for the upper-hand, shared the idea of a terrorist network, which was pre-existing. A form of enemy already infiltrated from within. Both insisted on the capacity of individual terrorists to infiltrate through flows of foreigners, and on the necessity to control but not block movement and flows at borders. They wanted to develop their powers inside the territory for the surveillance of foreigners and those born abroad. Consequently, the surveillance of freedom of (hate) speech, freedom of association and the freedom of so-called cultural, religious and minority groups had to be reinforced. Collaboration at the transnational level was central.

4

For a reading of the broader context here, see Walker (2009a).

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The Federal Bureau of Investigation (FBI) developed a more traditional detection approach and a justice line of thought (often against Director John Ashcroft himself), which was followed by the ministries of interior and justice in Europe. They insisted on proactive policing, infiltration of already known networks and the surveillance of criminal milieu and specific minorities. They resisted the high-tech ambitions of the surveillance industry to catch unknown people through their behavioural patterns, and criticized the role of the secret services and the army in trying to take control of the counter-terrorist fight. They were interested in more police powers to be used against terrorists (but also against criminals and even irregular migrants) and in freeing themselves from the constraints placed by magistrates and defence rights in order to have time to interrogate suspects more effectively. Contrary to the police, defence and even traditional intelligence service approaches, another angle proposed the centralization of surveillance in the hands of analysts (both private and public) and the development of mass intelligence for national security purposes. It presupposes a massive investment in pattern recognition technologies as well as forms of tracing individuals, whose mechanisms are connected at high speed among bureaucracies, plus a high level of cooperation and centralization. Captured by Donald Rumsfeld’s phrase that ‘there are also unknown unknowns’,5 which reintroduces an overt theology into the political, this form of analysis has also been shaped by the development of a concept of policing that goes beyond state bureaucracies to include private surveillance companies and even social welfare agencies. In this view, all of society must be mobilized by emphasizing the role of local surveillance groups in watching those exhibiting ‘abnormal behaviour’, whose surveillance can be justified against the normal behaviour of the good citizen (Dillon 2007, 7–28; Dillon and Neal 2008; Foucault 2003). Here, an individual’s freedom of action is judged by its conformity to a local social norm. Anyone who might be considered deviant in some way is susceptible to suspicion as a potential terrorist. These different lines of thought are the signs of distinctive deviations (écarts distinctifs), which can be explained better by the institutional positions of the agents expressing them than by their ideology or their capacity to create performative acts (Bourdieu 1984). They are the objectivizations of the practices, the result of the actualization of the making of different agents. These struggles generate a specific doxa but each line of thought assigns different priorities, different articulations of the relations between, for example, terrorism, Islam, migration, asylum and tourism. If they have articulated these concerns in relation to freedom, it has been a freedom of the collective self, of the protection of the self of the ‘society’ going 5 Donald Rumsfeld proclaimed in his US Department of Defense news briefing on 12 February 2002: ‘As we know, there are known knowns. There are things we know we know. We also know there are known unknowns. That is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don’t know we don’t know.’

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along with the diminution of personal freedom of movement, speech, association, religion of the ‘others’. In each case, security is considered as the major value, the value requiring collaboration in order to achieve a global security against the global insecurity born in the cauldron of Al Qaeda in Afghanistan.6 A doxa – more profound than any form of consensus – has structured all the debates between these different lines of justification made by the different agencies and their conflicting claims about the best techniques to use, by failing to question the transformation of the notion of freedom that the association with security creates. This doxa has been constructed not only on claims about the necessity of an exception but also on the reframing of the notion of freedom as such. Understood in this way, the main lines of struggle have not been between the US versus Europe, or the Iraqi coalition of the willing versus those opposed to the war, but between an array of emerging transnational professional guilds and the internal security agencies, intelligence agencies, mass surveillance companies, magistrates and courts. These professionals in the management of unease are the brokers of a global security vision constructed on the basis of a specific form of freedom ‘for us’ to spread abroad. It works through the discourses of cooperation, the interests of some agents for specific techniques of investigation and other issues connected with their institutional position, their personal trajectory and their social and symbolic capital. But it does not lead necessarily towards the expressed goal of enhancing collaboration; on the contrary, it exacerbates struggles between competing institutions, interests and practices. Against this background, various researchers in CHALLENGE have sought to understand many specific ‘solutions’ to the problems that have been identified, such as the development of a global policing at a distance through various forms of filtering and classification that generates an illusion of ‘smart borders’,7 or the cultivation of different forms of suspicion and thus the legitimacy of a claim about exceptionality (Baldaccini et al. 2007; Brouwer 2006, 137–54; Guild 2003, 491– 515; Jabri 2007; Tsoukala 2005a, 161–92). On this basis we are drawn to observe that, while we may not be leaving democracy, we have certainly been witnessing sterner illiberal practices by liberal regimes, in many domains, and invading many everyday routines. Liberty has not been suppressed, but has been systematically undervalued and, perhaps more importantly, reframed through a redefinition of what freedom means and what the practices of freedom should be.

6 On the structuring role of collaboration for an identity and beyond a doxic structure, see Guittet (2004). 7 There has been a significant data-led restructuring of the role of the border guard in border surveillance practices. Therefore, the proliferation of ‘smart borders’ and ‘electronic borders’ has caused the repositioning of border guards as ‘the last line of defence and not the first’. The everyday experience of surveillance at the border is thus preceded by a ‘dataveillant’ system that assesses the risk before the physical border checkpoint. See Amoore (2006, 336–51).

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The questions of political modernity and the relationship between liberty and security have a central impact on the structure of democratic claims in the EU, popular sovereignty and the values of human and fundamental rights that the EU promotes. The EU’s geographical and institutional boundaries are fundamentally dependent on the transformations that have been and continue to take place in the context of these two questions. The capacity to create legitimacy in respect of political modernity, and thus to calibrate the relationship of liberty and security, depends on the identity of the people. It is evident that the issues of boundaries and identities in the EU structure all claims in respect of violence, risk and thus protection. Attempts to avoid this centrality of identity when discussing risk, violence and legitimacy, so often encountered in national discourses (and even academic discussions), are in vain and fail to comprehend the real challenges of the twenty-first century. Where are the Borders of the EU and their Relation to Popular Sovereignty? Where, then, are the political boundaries in the EU? Who is entitled to participate in the construction or deconstruction of legitimacy, including in the form of popular sovereignty, and thus in the determination of the boundaries between liberty and security? Over the period of the CHALLENGE project, the EU has changed twice and on both occasions there has been much reflection on what the transformations mean. We began thinking of the EU borders as the 1 May 2004 enlargement, brought about the most substantial change in the size and shape of the entity since its inception. Ten states in the Baltic, Central and Eastern Europe and Mediterranean regions joined all at once. 1 January 2007 brought a further change to the borders of Europe with the addition of Bulgaria and Romania as member states. The abolition of controls at intra-member state borders was gradually abandoned for most of the EU as from March 1995 under the Convention Implementing the Schengen Agreement (CISA) 1990. But during the CHALLENGE project the momentous lifting of border controls between the EU 13 (that is the pre-2004 member states without Ireland and the UK) and the 2004 member states (without Cyprus) took place (staggered between December 2007 and May 2008).8 The presence of the state at the border disappeared for most of the EU, leaving aside Bulgaria, Cyprus, Ireland, Romania and the UK. Bulgaria and Romania will join the border controlfree area soon. Cyprus must await a resolution of its territorial uncertainty. Ireland and the UK remain in splendid voluntary isolation. Two changes in the EU took place during our period of research, both of which revealed much about the nature

8 Free movement of workers – Consolidated Report 2007 including member states’ comments , accessed 9 September 2009.

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of inclusion and exclusion and the constitution of authority: enlargement and the abolition of border controls on the movement of persons for most of the territory. As a result of the two dynamics, the identity of those persons entitled to participate in the EU’s choices about liberty and security has changed dramatically. From the original six member states to the current 27, a considerable change in the practices of liberty has taken place. With each change in the membership of the EU, people have been transformed from irregular migrants – or in the language used by the EU – ‘illegal migrants’ – into rights-holders given the title of citizen of the Union. Each reconfiguration of the body of persons entitled to participate in popular sovereignty has been accompanied by a reassertion of the centrality of the right to move without administrative obstacles (in the form of border controls on persons). While citizens of the Union, of whatever generation of the EU, may be uninterested in voting in European Parliament (EP) elections, they are intensely interested in the possibility of moving without hurdles across the combined territory of the EU. The logic of borders involves separation between those inside who are entitled to certain settlements about liberty and those outside who are not. State borders express a status of normalcy. The Peace of Westphalia (1648) is still used to explain why state borders are key to the definition of IR. However, the EU’s casual approach to borders – demonstrated through enlargement and abolition of controls – permits a rethink about the meaning of exclusion and inclusion as embedded in state border practices. The violent displacement of border practices to the EU’s southern borders in the Mediterranean and Atlantic carries with it a significant symbolic element – the pushing outwards of the field of exclusion (Ceriani et al. 2007). The development of internal exclusionary practices based around the allocation of the title ‘illegal’ to human beings forms another pole (Palidda 2009). The transformation of practices entitled liberty and security to go in quite different directions with substantially different relationships with state borders, and demanded a reconsideration of the meaning of security. Claims about security go in two key directions: collective security and individual security. The security of the individual, for instance security of residence status, is highly visible and particularized; the claims of collective security form one of the main ways in which the security of the individual is extinguished. The individual as a citizen or foreigner forms the building block of the European state system’s claim to legitimacy: the citizen as the participant in governance and for whose benefit governance takes place. However, the understanding of the divide between citizen – the essential participant in (national) community – and the foreigner has become exceptionally complex in Europe and derives from a very wide range of sources. The relationship of the citizen and the state is articulated around claims to freedom, and around the right to move across borders and to security. The concept of security is a contentious one in as far as it works within the relationship between the individual, the community and the state and comprises the possibility of empowerment and justification.

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The proliferation of statuses undergone by the individual between citizen and foreigner in Europe can be explained by the relationship of successful claims to freedom in the form of the abolition of border controls on the movement of persons, as framed against exclusion on the grounds of security (whether this is territorial exclusion, social exclusion in the form of exclusion from social security or other forms and manners of security). In respect of the critical right to movement, exclusion takes three forms: exclusion, expulsion or non-admission. A brief typology might be as follows: First, the citizen of the nation state (some though not all states) in Europe: the source of security of residence of the individual is the constitution as reinforced by the international treaty system, which no longer permits banishment or exile. Yet this citizen is, in many European countries, the object of a community security project that places obstacles in the way of their enjoyment of family life with foreign family members. The acquisition of foreign family members (through marriage, for example) is discouraged in the first place since the state hinders the arrival of those family members. Second, the citizen of the EU who is not a national of the state where they are living (for example the Polish national living and working in Ireland); here, although the individual has the title ‘citizen of the Union’, they are still eligible for expulsion (back to Poland for instance); the rights of entry, residence, economic activity and protection against expulsion come from the EC Treaty and are not subject to change by the state acting alone – the state is not sovereign as regards citizens of the Union (except in respect of criminal acts); expulsion and exclusion are possible only on the grounds of public policy, public security or public health. In practice only public policy (that is criminal acts but also possibly religious deviance, which the state considers so dangerous as to require extreme action) forms the basis of decisions to expel or exclude citizens of the Union from the territory of another member state. It is for the state to justify why and how the exclusion or expulsion of the individual meets the high threshold set by the Court of Justice of the European Communities (ECJ); but this migrant EU citizen has a right to family reunification with foreign family members acquired directly from the EU that the citizen at home does not necessarily enjoy. Third, the citizen of the Union who is temporally excluded: the case of nationals of the 2004 enlargement of the EU, not all of whom enjoy the right to take employment in all member states;9 nationals of the 2007 enlargement do not yet enjoy the right to take employment in many member states; these restrictions are time-limited but as such provide a different time dimension in the equation. Fourth, the citizen of the Union who is informally excluded on the basis of ethnicity – the example of the Roma is the most shameful for the EU in this category. Although most of Europe’s Roma hold citizenship of an EU member

9 In 2009, transitional restrictions on the free movement of workers from eight of the ten member states were still in place in Austria, Germany and the UK.

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state, their ability to exercise their free movement rights is the subject of seemingly endless state obstruction, particularly in France and Italy. Fifth, the Swiss national (or the Norwegian or the Icelander) in a member state (for instance Ireland) who, although not a citizen of the Union and thus a TCN, enjoys rights equivalent to those of the citizen of the Union who has migrated, including family reunification. Sixth, the Turkish worker in an EU state: on the basis of the 1963 agreement between the EU and Turkey and its interpretation by the ECJ in the 1990s onwards, Turkish workers are also protected to the same high level as citizens of the Union against expulsion from member states; the obligation is on the state to justify why expulsion is permissible on the grounds of public policy, public security or public health; family reunification however can be impeded for Turkish workers as for nationals at home. Seventh, the TCN who has lived lawfully in a member state for five years or more and is thus entitled to the status of long-term resident TCN: they enjoy protection against expulsion equivalent to migrant citizens of the Union but family reunification is on the basis of lower rights than citizens of the Union. Eighth, the TCN whose country of nationality is on the EU’s visa white list, for instance the US nationals: they are only obligatorily excluded from EU territory on the basis of a positive act by a member state to include their identity in a database of persons to be excluded on security grounds; there is no system to prevent the individual from arriving in the EU, only to refuse admission once they are here; the inclusion of an individual’s details on the database is on the basis of a state’s appreciation of the security risk posed by the individual; for the moment, this is still a matter of national sovereignty with little EU external control, political or judicial; refusal of entry to the EU is complicated by an EU law requiring reasons for refusal to be given on grounds within the law, a right of appeal, a duty not to discriminate and so on. Ninth, the TCN whose country of nationality is on the EU’s visa black list but with which the EU has a visa facilitation agreement in force, for example Russian nationals: here the individual is collectively described as a potential security risk of some kind (illegal immigration, criminality, terrorism depending on the state to which they belong), but this presumption of security risk is then partially neutralized by the visa facilitation agreement that provides for easy, rapid and cheap issue of visas for short stays in the EU; the place where the security control takes place is the consulate of the member state where the application is made; the security reassurance for the EU that ‘compensates’ for the facilitation of visas is the conclusion of a readmission agreement whereby states with visa facilitation agreements agree to take back their citizens when they are expelled from the EU (and usually also agree to take back non-nationals who have arrived in the EU via their state). Tenth, the TCN whose country is on the EU visa black list and there is no visa facilitation agreement, for example Chinese nationals: there is a presumption that these persons pose a security risk and thus they must obtain a visa at an EU member

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state consulate in their country of origin proving that they are not a security risk before they are issued a visa allowing them entry into the EU. Eleventh, the TCN whose country is on the EU visa black list and whose country has been specified in the EU visa rules as a country of specific security concern by at least one member state: here the presumption that the individual is likely to be a security threat is higher than for TCNs whose countries are on the visa black list but not the security threat list; the list is composed through notification by member states of the countries they want on the list – there is no indication that reasons or grounds are given and the information is not public – indeed the list itself is confidential. These different statuses can be understood as expressions of a liberty-security relationship among individuals, communities and states. The various forms of security provide an organizing principle around which territorial and social inclusion and exclusion are drawn. The border as a line that separates different territories of sovereignty is one of the most cherished in IR. So long as there is a border between states it is possible to think about migration – people belong to one side or the other of the border. If the international community is characterized by anarchy, then the border provides the line of resistance against that disorder. Within the state, there is order surrounded by the border of sovereignty. What happens, though, when borders start to move or to reconfigure themselves? If sovereignty is embedded in the capacity of a state to govern and be governed – to regulate activities within its area, be that coercive in respect of criminal law, distributive as in respect of social security – the edges of authority are important. When the border changes its nature as a result of the changing conceptions of sovereignty, the concept of migration itself is fundamentally changed. Without the border, there cannot be international migration. Instead of a state-centric view of movement of persons, the state disappears and the subject matter of migration studies must be adjusted. When the border remains for some purposes, but not for others, for instance control of movement of persons, the illusion of migration studies remains but the practices are transformed. The capacity to include or reject moves away from its most brutal frame – at the edge of the territory and, if it is to be exercised at all, it must find other venues. The relationship between sovereignty, security, borders and people is undergoing substantial change in the EU. There is a fundamental transformation taking place regarding the position of authority in the EU and the consequences of that authority on individuals. While the uniforms of the officials who carry out border controls have not changed, what they do and where they do this has. Sovereignty, in the form of authority, is migrating away from the territorial borders of the state but instead can be found at work deep within the territory of other states, through visa rules, on the high seas and elsewhere. The political argument for the migration of sovereignty is security, but whose security and security in whose name becomes more opaque the farther the exercise of authority moves from its traditional territorial home.

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These questions can only be understood in the context of the struggles around popular sovereignty and the boundaries of political modernity. The complexity of inclusion and exclusion indicates the contestation that is taking place regarding boundaries and the stakes that are revealed by such struggles. The issue of whose liberty and whose security can only be addressed in terms of these changing boundaries and the conflict that blurs them. The EU institutions need to reflect these realities in an operational manner. The separation of liberty from security and the primacy of fundamental rights need to find the proper institutional structures to permit the correct calibration of the priorities that result from popular sovereignty rather than the preferences of select groups of transnational experts. Conclusions We find ourselves in changed times, addressing new questions. The traditional answers that are predicated on a twentieth century political order are no longer satisfactory to comprehend the needs we are currently facing. Political modernity is being transformed along many dimensions, as the CHALLENGE project has revealed, and as we have synthesized here. Turning our backs, as academics, on these changes is tantamount to abandoning policy-makers just at the moment they need new ways to think about the issues that changing boundaries present. The many practices that increasingly privilege security over liberty have to be confronted with popular sovereignty and more effective public scrutiny and judgement, especially when those practices imply a redefinition of the categories of freedom and security. The least satisfactory response to these challenges is what we have seen all too often on the national political scene of a number of member states over the past five years – a retreat into national populism that constructs and targets the foreigner as the source of all insecurity, threat and risk and thus not entitled to liberty. Instead, we need to reflect on the changing boundaries of liberty that the EU project has incorporated into the normality of daily life – free movement of persons without border controls, entitled to move and reside in other countries without the humiliation so commonly meted out by national border guards and visa officials. Liberty and security do not express a simple balance but a much more complex relation between values that have been carefully constructed in ways that prevent the reduction of public to private, popular sovereignty to state sovereignty and norm to exception. These ways are intrinsic to democracy and the rule of law. Democracy is not a given, it is a process that needs to be analysed when multiple authorities are not accountable and are not elected. The connection between the transnational guilds of security professionals and some elected political professionals that play with emotions, politics of fear and unease has to be watched, and can emerge from the countries that consider themselves to be fully-fledged democracies; the models for all others.

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The ambition of the EU to promote its values of equality, liberty and human rights abroad stumbles on this question of popular democracy. Only by examining the sources of legitimacy and embracing the priority of liberty in its multiple forms can the EU begin to construct its external face. The forms of authorities that the EU can sustain internally are central to the projection of which it may be capable externally. Solutions that give greater credibility to claims to diversity permit greater legitimacy both internally and externally. Indeed, internal and external conditions of legitimacy are so interdependent because they are part of the dedifferentiation process of the transversal field of power. Claims to equality need to give rise not only to solemn pronouncements but to equality in outcomes for individuals. If the Czech Roma consider that the Canadian Bill of Rights will better result in equality of outcomes than the EU Charter of Fundamental Rights then the EU project is doomed to a fundamental lack of legitimacy, both internally and in its effort to project its values in a multipolar world. It is by looking at the particular way in which the EU is developing effective control of these transversal forces and non-elected authorities that the EU can achieve a constructive dialogue with the rest of the world, in particular with the other great regional powers (like Brazil, South Africa and India) and which also claim to value equality, liberty, democracy and human rights. Outline of the Book This collective volume presents the final results of the CHALLENGE project. At the end of the five years, a selection of researchers that participated in the project bring together in this volume the synthesis of the results and major findings emerging from their work on liberty and security in Europe. The central idea of the book is an interdisciplinary examination of how liberty and security operate as concepts and practices in the EU today. The book is comprised of 17 chapters and has been structured into three main parts: (1) Liberty challenges to the constitution of authority; (2) Liberty challenges to borders and (3) Theoretical perspectives on challenges to liberty. The first section starts with Elspeth Guild, Sergio Carrera and Thierry Balzacq providing an analysis of the relation between liberty and security over the past ten years in the EU integration process (Chapter 2). The authors argue that with the expansion of the EU’s powers into domains falling within the scope of the AFSJ, liberty and its relation to security has brought a new range of issues, struggles and debates. In particular, they emphasize how acts of political violence labelled as ‘terrorism’ and human mobility at the European and international levels have justified the construction of these phenomena as threats to the security and safety of the nation state. In their view, such acts have legitimized the development of normative responses that go beyond traditional configurations and raise fundamental dilemmas for the security and liberty of the individual. The authors assess the ways in which the notions and perceptions of security and insecurity in

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the EU have evolved as political values and legal/policy goals, and how they are being transformed. The increasing deployment of technologies of control and surveillance of individuals, as well as the exchanges of know-how and mass-data between and within EU member states in (in)security practices at the EU level is the subject of the analysis by Didier Bigo, Philippe Bonditti and Christian Olsson (Chapter 3). When addressing such a complex process involving a wide array of interconnected and interacting institutions and agencies at the national, European and international levels, the authors focus on the relations between Eurojust, Europol, Frontex, CEPOL, the European Anti-Fraud Office (OLAF), the Directorate General (DG) for Justice, Freedom and Security of the European Commission, the General Secretariat of the Council as well as the Joint Situation Centre (Sitcen) in order to draw a map of the positions of these security agencies giving a sense of the density of the so-called ‘European level’, a dimension that otherwise is either neglected when looking at only one agency, or exaggerated when speaking in general of the EU institutions as a unique agent. The authors seek to point out how the professional solidarities and struggles between agencies and individual agents restructure power relations at the EU level, but also impact on the national and transatlantic levels. They use the notion of ‘field of (in)security professionals’ to describe the space of competition between agencies and institutions over the pertinent knowledge concerning threats, risks and vulnerabilities, and shed light on the alliances and struggles concerning the evolving relationship between danger, (in)security and freedom. In their contribution (Chapter 4), Esther Barbé and Elisabeth JohanssonNogués look at the changing security perceptions within the Union as well as at the links between intra-EU security and external security in terms of proliferation of weapons of mass destruction (WMDs), regional conflict and state failure in the area falling within the European Neighbourhood Policy (ENP). Holding the 11 September as a point of inflection in the EU’s approach to security, the authors argue that there was a broad consensus on the idea that ‘a secure Europe in a better world’, which is at the heart of the European Security Strategy (ESS) adopted in December 2003, meant more attention to current international security challenges and the need for the EU to assume a larger role as a security actor on the global stage. Nevertheless, they emphasize that five years later there are indications that the EU’s perception of security is once again undergoing change and that this fact reverberates in the Union’s relations with third countries, whether with the US or with its partner countries in the European neighbourhood area. The security dimension of EU policies is further analysed by Wolfgang Wessels, Franziska Bopp and Cyril Gläser. Their contribution (Chapter 5) focuses on the institutional architecture of the EU’s cooperation in foreign and security policy both in the legal provisions, especially after the treaties of Nice and Lisbon, as well as on the living practice in migration policy and flexibility in the European Security and Defence Policy (ESDP). As a major priority, they investigate the role of the European Council with a closer look at the Presidency conclusions as important documents of the collective perception of the heads of state or

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government especially on security threats and attempts to construct a common response to the challenges of globalization and a changing international security context. The objective of the contribution by Nikos Scandamis, Kosmas Boskovits, Sofoklis Stratakis and Frantzis Sigalas (Chapter 6) is to shed new light on the interplay between liberty and security by exploring the conceptual framework and the practical operation of European governance as a specific type of liberal regime while drawing insights from patterns of global governance. In this respect, the authors consider the founding European treaties as embodying a normative code of liberalism open to conflicts between competing interests and values framed in the language of rights. In their opinion, the concept of rival securities refers not only to the underlying duality between security as integrity and security as prosperity in a Union without pillars but also to the complex articulation between personal safety of individuals and public security at national and European levels. They conclude their analysis by suggesting specific tools of individual protection against new sources of discretionary power in the AFSJ. Juliet Lodge concludes the first section of the book by arguing that the risks to liberty and security of insufficient and inappropriate transparency and accountability are magnified by a communication deficit (Chapter 7). This is explored in relation to structuro-procedural deficiencies, technological automatic information exchange, and the role of parliaments and publics in the AFSJ. The chapter outlines some research findings which confirm that a communication deficit exacerbates a sense of fragmented freedom without consolidating a sense of security or liberty. It concludes that politico-institutionalist and sociolegal theories need to be complemented by communications theories in order to better understand the re-bordering of citizenship, and with it liberty and security for citizens in a geopolitical European space resulting from the new security technologies. The author believes that the communication of (in)security in digispace has yet to find appropriate responses from policymakers. In this respect, the voice of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) of the EP is insufficient, owing not just to the nature of mediated governance, legal and institutional structures and the way the EP ‘communicates’ with citizens, but owing to public-policy partnership elusiveness and the failure of governments to ‘capture’ them and apply traditional rules of democratic accountability and responsibility. Liberty and security are consequently underlined inadvertently without there being an adequate or sufficient countervailing response. Evelien Brouwer, Leonard F.M. Besselink, Galina Cornelisse and Imelda Tappeiner open the second section of the book, devoted to liberty challenges to borders. At the core of their contribution (Chapter 8) is the identification of the shifts in governance that have occurred with respect to the legal competence with regard to control over state borders in the light of the protection of internal and external security. Particular attention is placed on their consequences for the position of the individual towards competent public authorities in terms of human rights and political accountability. This aspect is studied from the legal point of view. The

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analysis concerns various manifestations of the notion of state ‘borders’ in presentday circumstances, which focus on citizenship, digitalization of borders, maintenance of public order and detention. The objective is to devise the relationship between these activities of the state concerning the protection of territorial boundaries on the one hand, and the rule of law and the protection of fundamental rights of individuals (privacy and data protection, freedom of assembly and demonstration and right of liberty of immigration detainees) on the other. Judit Tóth addresses the weaknesses of the democratic and constitutional frameworks in the new member states that have emerged as a result of the social and political impact of the enlargement (Chapter 9). The author analyzes the externalization of JHA into the ENP and cross-border and regional co-operation as well as the politically motivated legislative and judicial efforts in the adoption of the acquis. Field research, existing statistics and literature as well as exchange of views within academic networks have revealed certain specificities in Europeanization in the new member states. The enhanced, integrated border management, which benefits from EU financial support, together with visa restrictions may prevent the accession of asylum seekers to the region, and the anti-migration rethoric excludes the refugees and undermines a comprehensive integration policy. The revitalizing cross-border and people-to-people contacts in the Schengen regime is being offset by a kin-state policy providing ethnic preferences in entry, visa and residence proceedings. However, this ‘ethnic exceptionalism’ is not hindering the securitization against (mainly the regional) migrants and Roma citizens. Parliamentary scrutiny and the role of non-governmental organizations (NGOs), free access to relevant information on state agents in the present and in the past and the effective, autonomous judiciary protection of fundamental rights of individuals have been under development to strenghten democratic control. Nonetheless, this is not enough to balance the effects of the implemented ethnic profiling, the biometrical identification or verification systems, the growing invlovement of security services and the intelligence-driven law-enforcement and personal data exchange. Bilateralism in external relations, fragile democracy and rule-oflaw, heterogeneity and the lack of social cohesion are the real concerns in the accession process without substantial, objective evaluation criteria. According to the author, in Central and Eastern European Countries (CEEC) the impact of the ethic, political and social crises has been greater than that of the economic crisis, and this cannot be considered as a common signal of ‘enlargement fatigue’. She concludes by advising that instable governance, low turnout in the elections, scepticism over EU membership, high rate of xenophobia and racism, as emerged from the research, are to be taken into account not only in further enlargement assessments but also in the preparation of the next multiannual programme on AFSJ (Stockholm Programme) and the ENP. With a view to the 2007 EU enlargement, the new member states have prepared their borders to function as the external border of the EU. To this end, they have adapted the legal framework and the infrastructure of the border-crossing points. The EU external border has been and continues to be strengthened security-wise.

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But did the border-crossing conditions of travelers improve? An answer to this question is provided in the contribution co-authored by Marta Kindler and Ewa Matejko (Chapter 10), who present the results of the research they conducted in 2007 at the EU external border-crossing points in Bulgaria, Estonia, Finland, Hungary, Poland, Romania and Slovakia. The analysis, which covers problems of infrastructural operation of border-crossing points and the quality of services rendered by border guards and custom officers, allowed the authors to conclude that the quality of services provided to travelers at the border is unsatisfactory. The signature of visa facilitation and readmission agreements with the European community represented a fist step by the Western Balkan countries towards visafree travel. It has been suggested that the experience of Bulgaria and Romania in getting off the visa black list could be used as a sort of road map to achieve the same result. Angelina Tchorbadjiyska argues in her contribution (Chapter 11) that some of the measures taken by Bulgaria and Romania to control emigration (and thus obtain visa free status from the EU) might conflict with the human right standards promoted by the EU itself. The chapter provides a legal analysis of the measures, introduced by Bulgaria and Romania, limiting the right of exit of their own citizens who had infringed the immigration laws of other countries. It studies the main material and procedural law rules in Bulgaria and Romania, provides statistics on their implementation and questions their compatibility with the provisions of the national constitutions, the European Court of Human Rights (ECtHR) and the EU rules on free movement. Chapter 12, co-authored by Alessandro Dal Lago, Salvatore Palidda and Federico Rahola, develops three main theoretical and political themes. The first theme concerns the central, constitutive role played by war and security in current national and international politics. The basic theoretical assumption is to consider contemporary global politics as being shaped by a continuum between war and security politics, which has progressively abolished any distinction between internal/national and external/international politics. The second theme concerns security policies and their impact at local and regional level. Here the authors intend to assess the social and political impact of security politics by answering the following questions: How far does the idea of security extend today? What are its boundaries? Who are the actors involved and what kind of power legitimizes them? Who are the subjects targeted by security policies? The third theme explores the relationship between the pervasive dimension that security assumes once it is translated into a practice of government and the institutional framework of democracy at the global political scale. In order to understand its essential characteristics, the authors define governmental power in terms of the invention and assembly of a whole array of policies that connect the calculations and strategies developed in political centres to the thousands of spatially scattered public and private actors (such as NGOs) in the global political sphere that are not included in the nation-state architecture. Iñaki Rivera, Cristina Fernández, Alejandra Manavella and Gabriela Rodríguez provide an analysis of some of the consequences and social implications of the

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implementation of exceptional measures in the Euro-Mediterranean area (Chapter 13). They focus on three specific policy fields (antiterrorism, immigration and control of everyday life) where they identify uncertainties regarding the action of the State, the police and the judiciary as a result of the contemporary loss of state protagonism in many areas of social life, but also its attempt to reinforce its power in certain areas such as control over the movement of people, security and punishment. They argue that the effects of such measures should be analysed from the perspective of the principle of the rule of law, human rights and the legitimacy of new forms of institutional authority. Finally, with their analysis they intend to shed light on the violations of the rights and liberties of those (European or non-European) citizens who suffer the most from the implementation of the abovementioned exceptional measures within the EU. Elspeth Guild, Evelien Brouwer, Paul Minderhoud and Ricky van Oers close the second section of the volume with a contribution that engages the question of legal mechanisms of constitutionalism which set the boundaries between citizen and foreigner (Chapter 14). Central to the analysis are the issues of separation of status in criminal law, legal structures of separation, social protection as a form of separation and the internal/external dimensions of civil liberties. The development of an EU AFSJ has an impact on these issues. Four different aspects of a changing relationship between liberty and security are examined here in as many case studies: the effect of EU law on member states’ sovereignty; the development of instruments based upon the use of large-scale databases and the exchange of personal data; the control of immigration via social security and the introduction of mandatory integration requirements for TCNs in the EU member states. Vivienne Jabri opens the third section of the book, dealing with the theoretical perspectives on challenges to liberty, with a contribution focusing on practices of security: from warfare, to incarceration, deportation and anti-terror legislation, all taking place at the limits of legality and illegality, and hence constitutive of politics of exception (Chapter 15). The author intends to provide a theorization of this limit space and its implications for the liberal democratic polity with a specific focus on sovereignty and political subjectivity and how these are articulated in a context of globalized social, economic and political relations. Shifting away from Clausewitzian understandings of war, confined as these are to the battlefield context of conflict between territorially bounded states, the chapter explores the implications of transformations in violence wherein distinctions between the norm and the exception, the inside and outside, war and security, war and policing seem to disappear. The chapter explores what is at stake in conceptualizing the present in terms of exceptionalism and the re-inscription, re-articulation and legitimation of new sites of violence. Based upon the assumption that, since the outset of Europe’s role in the War on Terror, the protection of Europe’s ‘critical infrastructures’ has been a central focus of the anti-terrorist effort, the contribution by Peter Burgess focuses on the challenges involved in conceptualizing critical infrastructure and its protection in terms of social values (Chapter 16). These difficulties, he suggests, are not

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merely roadblocks standing in the way for effective anti-terror policy making. They challenge European policy makers in all fields to revisit and reflect upon the meaning and aim of anti-terror protection. What does the focus on critical infrastructure aim to achieve? What are its assumptions and what can it accomplish? The author believes that the European Programme for Critical Infrastructure Protection (EPCIP) has the potential for tremendous utility, gathering knowledge and experience for protecting a range of structures that play a crucial role in our way of living. However, he warns that conventional thinking about ‘protection’ in general and ‘critical infrastructure protection’ in particular is inadequate to meet the challenge posed by transnational terrorism. The book concludes with a contribution by Didier Bigo providing an analysis of the way in which the relationship between freedom and security has been addressed in the IR literature since 11 September 2001 (Chapter 17). The author argues that, under the assumption that security is a core value threatened by global terrorism and as such comes before liberty, analysts have mostly focused on discussions about security, risk and exception and have only marginally considered their consequences on liberty. With this chapter, Bigo intends to contribute to overcoming this gap by analysing the ‘most sophisticated and serious’ studies on democracy and freedom. To this end, he assesses the use of the terms ‘liberty’ and ‘security’ and the way in which IR specialists have put them in relation to each other through the notion of the ‘balance metaphor’. The author concludes that the major weakness of this approach has been the fragmentation of the notion of liberty, considered mainly as a series of individual freedoms in competition, as opposed to the reunification of the notion of security, understood as global safety and protection. To overcome these deficiencies, Bigo argues, it is necessary to develop liberty studies that would engage the question of ‘liberty as practice’ rather than focusing exclusively on the question of order.

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PART I Liberty Challenges to the Constitution of Authority

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Chapter 2

The Changing Dynamics of Security in an Enlarged European Union Elspeth Guild, Sergio Carrera and Thierry Balzacq

Introduction The intersection of liberty and security in the EU integration process has been a highly contestable area over the past ten years. This situation is problematic as the EU was founded on the principle of inalienable freedoms (the much vaunted four freedoms). The EU’s construction required that wherever member states sought to interfere with one of those freedoms that interference had to be justified on the narrow grounds permitted by the Treaties, which in turn were jealously guarded by the ECJ. The expansion of the EU’s powers (particularly after 1999) into JHA, liberty and its relation to the concerns of some member states’ ministries of justice and interior over security has brought a new range of issues, struggles and debates in the field of integration. In this context, acts of political violence commonly labelled as ‘terrorism’ and increasing human mobility at the European and international levels have justified the construction of these supranational phenomena as threats to the security and safety of the nation state and the EU. In this respect, they have legitimized the development of normative responses that go beyond traditional configurations and raise fundamental dilemmas for the security and liberty of the individual subject to these processes. This chapter assesses the ways in which the notions and perceptions of security and insecurity in the EU have evolved as political values and legal/policy goals, and how they are being transformed. It aims at synthesizing the results of the research conducted by the JHA Section of CEPS through the CHALLENGE research project during five years of work. The research has been premised upon one basic but determining question: to what extent has the evolution of the international context altered the dynamics of liberty and security in the EU? The first part of the chapter begins by examining three mechanisms underpinning the transformation of the EU AFSJ, each attending to a specific phase of the policy process: the discursive construction of threats, the development of technological tools as solutions to any security issue, and the tension between the intergovernmental and communitarian methods of decision-making. The second part then goes on to discuss the implications that these forces have had for the design and evolution of the AFSJ. We conclude by addressing a fast growing trend, that is the external dimension of the EU AFSJ. As we argue, this is where substantial challenges to the EU’s credibility and integrity are bound to emerge afresh.

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Theoretical Schemes and Policy Preferences The EU AFSJ is now ten years old, and it has been the subject of concerted EU law-making and increased institutional pluralism. Policy fields that lie at the heart of traditional conceptions of nation-state sovereignty and that have been shaped by administrative law – including phenomena qualified as immigration, asylum, borders, policing, judicial cooperation in criminal matters and counter-terrorism – have been at the core of frequent disputes since the first harmonized steps were taken at the EU level after the entry into force of the Amsterdam Treaty in 1999. What have been the forces and mechanisms underpinning the institutionalization of the EU AFSJ? Three processes have been decisive in its design and evolution. First is the discursive construction of wider categories of persons and practices as threats – securitization. Second is the resort to technology as the ultimate solution to any issue constructed as threatening. Third is a bias towards intergovernmentalism, conceived as the best decision-making procedure for responding to common security issues. Securitization and the Making of the ‘Security Continuum’ The political structurization or securitization of certain persons and practices as ‘threats’ can be better understood through the concept of a ‘pragmatic act of security’. As Balzacq (2006) has argued, the processes of securitization are rather a ‘pragmatic act’ (a pragmatic model of security) consisting of (i) a relatively stable system of heuristic artefacts or resources (metaphors, image repertoires, stereotypes, emotions), (ii) discursively mobilized by an agent, who (iii) works persuasively to prompt a target audience to build a coherent network of implications (feelings, sensations, thoughts, intuitions) that concurs with the enunciator’s reasons for choices and actions, by (iv) investing the referent subject with such an aura of unprecedented threatening complexion that (v) a customized political act must be undertaken immediately to block its development within a specific space-time continuum or a social field.

From this perspective, the pragmatic act of security aspires to determine the strategic and tactical uses of language to attain a certain aim, while looking at the consequences of ‘saying security’. By doing so, it creates a more solid approach to securitization. At the same time, it is essential to take into account the audience and the social context of the EU. In fact, [a] scheme [that] seeks to promote an understanding of discourses of security as actions must be committed to recover not only the text, but also other temporally embedded variables such as agents’ capabilities, the ontology of their relations and the social field in which rhetorical games take place. Arguably, this position

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prevents discourse analysis from being regarded as a practice ‘that is divorced from the real world’ (Balzacq 2005, 16).

A logic of converging (in)securitization has affected particular thematic policy issues, such as irregular immigration, borders and the integration of immigrants, and it has framed them as ‘threats’ or insecurities for the EU and its member states. The ‘undesired’ form of human mobility, often called ‘irregular immigration’, is being subsumed into a European legal setting that treats it as a crime and a risk against which administrative practices of surveillance, detention (Bietlot 2006; Guild 2005a), control and penalization are necessary and legitimized. EU law and policy have also developed a security nexus between irregular forms of human mobility and border security (Carrera 2007a and 2007b; Carrera and Guild 2007). This has been the case with respect to the implementation of the Integrated Border Management Strategy (IBMS) and its relationship to a common EU policy on irregular immigration. The guiding principle seems to be that border management must be ‘integrated’ and cover all border-related threats that the EU is supposed to be facing. The phenomenon of irregular immigration represents the target against which ‘the EU border’ and its multilayered components, as framed by the IBMS, have been conceived.1 Indeed, one of the most important objectives of EU border management is the building of a common immigration policy that ‘manages comprehensively’ and ‘fights against’ the sort of mobility negatively qualified as ‘illegal’. In the same context, it is also critical that the EU continues using the expressions ‘illegal immigration’, the ‘fight against’ and ‘combat’ when dealing with this phenomenon. The negative implications inherent in the use of these terms attributes to the person concerned a status that imputes suspicion and criminality (Balzacq and Carrera 2005b; Balzacq and Carrera 2006).2 Both the integrated and the global discoursive approaches constitute an innovative discursive and political strategy at the EU level, whose real purpose is to present in a more ‘fashionable’ manner the vision according to which more security measures for the common external borders are the more plausible ‘solution’ to the challenges and dilemmas the EU appears to be facing. Moreover, this is sold at the official level as the pivotal ingredient of a so-called ‘comprehensive policy on irregular immigration’. The logic of the converging (in)securitization over human mobility needs to be subject to contestation. The EU should instead treat the dilemmas posed by the phenomenon of human mobility as an employment and social-related issue, framed by a common policy ensuring equal treatment

1 See European Commission, Communication on Policy Priorities in the Fight against Illegal Immigration of Third-Country Nationals, COM (2006) 402 final, Brussels, 19 July 2006, in which ‘secure borders’ and ‘an integrated management of the external borders’ are considered a key policy priority for ‘a comprehensive EU approach to combat illegal immigration’. 2 See also Balzacq and Carrera (2006) and Guild (2004a, 3–28).

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and non-discrimination of those not falling within the privileged category of EU citizens (Carrera 2007c). Another example of this logic of converging securitization is the nexus between immigration, integration and citizenship. This nexus is becoming the norm in a majority of the national legal systems as well as at the EU level (Carrera 2006c). Integration, or rather the lack of or failure of integration, of those qualified as TCNs has been framed as an insecurity issue. In the national arena, there appears to be a distinct trend towards civic integration programmes with a mandatory character. Obligatory participation in such programmes is now a regular feature of both immigration and citizenship legislation, and a precondition for having access to rights and a secure juridical status (Carrera 2006a and 2006b). The notion of integration is becoming restrictive in nature and mostly related to cultural aspects. Current policy, institutional and juridical frameworks in some EU member states demand that the non-nationals abandon their own identity in favour of the dominant, mainstream societal model and, so the argument runs, the homogeneous identity of the receiving state. Only in this way the state will offer the non-citizen this privileged status, with the attendant security of residence and protection. The link made between the social inclusion of immigrants and the juridical framework on immigration and citizenship, which is now being transferred to EU law, may conflict with human rights and endanger the interculturalism and diversity that are intrinsic to the EU. Technology as the Ultra-Solution to Threats The AFSJ is being driven by robust confidence in security technology. Technology for enhancing control and surveillance is presented at the EU official level as the solution to every security dilemma and ‘threat’ identified, and as being essential to the establishment of the EU as a common AFSJ.3 It is held to be the ‘ultra-solution to the permanent state of fear’, without reflection that it may end up creating more insecurity for the individual (Bigo and Carrera 2004). Indeed, Europeanization processes are fostering the belief that technology is the most plausible tool to face any imagined insecurity, without duly considering that it could engender more insecurity in terms of data protection, fundamental rights and liberty. Also, a certain tension arises between security technology in its various forms (large-scale centralized EU databases, biometrics and so forth) and the rule of law. The EU has proposed and continues to propose to develop a wide array of EU databases and systems of information exchange, such as the Schengen Information Systems I and II (SIS I and SIS II), Eurodac, the Customs Information System (CIS), the Europol Computer System (TECS), the Eurojust files and the Visa Information System (VIS). These systems are supplemented by other methods of direct information exchange among law enforcement authorities, including data 3 See Council of the European Union, A Secure Europe in a Better World, European Security Strategy, Brussels, 12 December 2003, presented by Javier Solana.

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on the results of DNA analysis, football matches, terrorism, passport information, criminal records and money laundering (Geyer 2007 and 2008b; Hobbing 2006). The content, structure and way in which these insecurity technologies are used in practice as well as their ethical implications give rise to a number of questions. It should first be stressed that extended access does not always yield improved use of the data available. Furthermore, persistent cross-pillar complexity highlights the difficulty of technical harmonization, which does not simultaneously address legal incoherence. Improving interoperability and synergies should not be reduced to linking the network of surveillance and casting the net of control so wide as to include reputable citizens. Indeed, perhaps one of the most compelling risks is that of ‘function creep’ (Hobbing 2006). One also wonders whether the individual has any chance of finding out that their data have been inserted into and form part of any of those databases, and if so, contesting it. The current shape of these instruments is insufficient for establishing how personal information has actually been used or interlinked, and among which authorities it has been exchanged. Thus, there is a considerable deficit of common standards on data protection. This problem partly seems to stem from the lack of an EU ‘third pillar’ measure on data protection (Geyer 2008b) comparable to the first pillar Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.4 In the same vein, on 13 February 2008 the European Commission presented its ‘Border Package’, setting out its vision of how to foster the further management of the EU’s external border (Carrera et al. 2008a; Carrera et al. 2008b).5 One of the key elements of this package is a communication aimed at establishing an EU entry/exit system registering the movement of specific categories of TCNs at the external borders of the EU. It also recommends the establishment of an automated border-control system for the verification of a traveller’s identity based on biometric technology, as well as an electronic travel-authorization system that would oblige non-EU travellers to provide personal data for a pre-departure online check. These ‘securitizing tools’ (Balzacq 2008) would imply the creation of yet another EU-wide database and its interoperability with the existing ones. There is a critical relationship between these initiatives and the set of mechanisms and general principles on the rule of law and fundamental rights. These measures are

4 OJ L 281/31, 23 November 1995. The European Commission’s 2005 proposal on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters intended to remedy this situation, yet there has been no progress within the Council. See European Commission, Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters, COM (2005) 475 final, Brussels, 4 October 2005. 5 See European Commission, Communication on Preparing the Next Steps in Border Management in the European Union, COM (2008) 69 final, Brussels, 13 February 2008.

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neither necessary nor suitable, nor are they consistent with EU data protection rules, fundamental rights and the principle of proportionality. Lack of Trust and Intergovernmentalism The third aspect is one that could perhaps be called the logic of intergovernmentalism. There is a high degree of competition, fuelled by a certain lack of trust, among the member states when negotiating, adopting and implementing substantial and institutional developments related to an AFSJ. There is continuing competition among member state authorities and networks, which still see themselves as rivals. This competition becomes most active in relation to the exchange of information among (in)security professionals at the EU and national levels. Competing strategies are also evident in the interplay between the Community method of cooperation and the intergovernmental one. There is a difficult relationship between EU and intergovernmental processes in the area of security policy, which is primarily manifested in the form of challenges to the EU ‘from below’ by certain member states. An excellent illustration of this phenomenon is the Treaty of Prüm,6 originally signed by seven EU member states on 27 May 2005 (Balzacq et al. 2006a; Balzacq et al. 2006b; Guild and Geyer 2006; Guild 2007b). The original objective of the Prüm Treaty7 was to further [the] development of European cooperation, to play a pioneering role in establishing the highest possible standard of cooperation especially by means of exchange of information, particularly in combating terrorism, cross-border crime and illegal migration, while leaving participation in such cooperation open to all other Member States of the European Union.8

The Prüm Treaty is not merely a technical attempt to accelerate the exchange of information among the participating member states. It is rather a countervailing political force against the EU’s AFSJ. The Prüm Treaty has weakened the EU more than it has strengthened it. First, Prüm has created a hierarchy and a multilevel game within the EU. Second, by focusing on data exchange, the Convention has provoked competition with the ‘principle of availability’ proposed 6 See the Convention between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the stepping-up of crossborder cooperation particularly in combating terrorism, cross-border crime and illegal migration (‘Prüm Convention’), Prüm, 27 May 2005, 10900/05, Council Secretariat, Brussels, 7 July 2005. 7 Throughout this chapter, the terms Prüm Convention and Treaty of Prüm are used interchangeably. 8 See the Preamble to the Prüm Treaty, p. 3.

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by the Commission and The Hague Programme.9 Third, by reverting to an intergovernmental arena, it excludes the EP at a time when its role in democratic scrutiny is critical. Fourth, by developing new mechanisms of security that operate above or below the EU level (or both) it has dismantled trust and confidence among member states. Finally, by establishing a framework whose rules are not subject to parliamentary oversight, the Prüm Treaty impacts on the EU principle of transparency (Guild 2007b).10 Implications for the Design and Evolution of the EU Security Landscape What has been the impact of Europeanization processes in the field of internal security on the structures, methods and contents of policy-making in justice and home affairs? To address this question, we think that, while special attention needs to be paid to the AFSJ multi-annual programmes, we need to start from the Treaty of Amsterdam if we are to grasp the overall normative setting of the EU AFSJ. This context, and the events that have shaped it, have generated one of the most troubling tensions of our times, namely that between freedom and security. In many ways, this tension helps us weigh the policy achievements and deficits of the AFSJ. The Normative Framework and its Constitutive Tension From the Treaty of Amsterdam to the Hague Programme The entry into force of the Treaty of Amsterdam in May 1999 constituted a historic step in the normative and political configurations of liberty and security in the Union. The transfer of (shared) competence in the domains of immigration, asylum and borders (Title IV of the Treaty Establishing the European Community (TEC): ‘Visas, Asylum, Immigration and Other Policies related to the Free Movement of Persons’) to the European Community (EC) meant a stronger role for the EU institutions thanks to 9 More specifically, the European Commission’s Proposal for a Council Framework Decision on the exchange of information under the principle of availability, COM (2005) 490 final, Brussels, 12 October 2005, states: ‘Under the latter principle, the authorities of any Member State would have the same right of access to information held by any other authority in the Union as applies to state authorities within the state where the data are held’. Thus, the element of the national settlement on the collection, retention and manipulation of data expressed in national constitutions is transformed into an EU-wide right of use of data. The national border is removed from the principle of data collection, retention and use. By contrast, Prüm created a database whose use was going to be restricted to the seven signatories. 10 On the initiative of Germany, part of the Treaty of Prüm will be Europeanized after the adoption of a Council Decision on the stepping-up of cross-border cooperation, particularly in combating terrorism and cross-border crime. See Bellanova (2008, 203– 21).

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the expansion of the Community method of cooperation. Furthermore, it facilitated the emergence of a stronger political impulse for the development of common supranational responses on policy and judicial cooperation in criminal matters (Title VI of the Treaty on the European Union (TEU): ‘Provisions on Police and Judicial Cooperation in Criminal Matters’). The Treaty of Amsterdam also meant the creation of the first-/third-pillar Treaty divide on security and liberty. Numerous have been the deficits inherent to the EU’s legislative foundations, engagement and institutional framing of FSJ (Balzacq and Carrera 2005b; Balzacq and Carrera 2006; Guild 2008; Guild and Geyer 2008). The third pillar has been affected, for instance, by a large democratic deficit (the limited role of the EP – consultation) and weak judicial accountability (limitation to the jurisdiction of the ECJ), and its legal instruments and decisionmaking procedures have brought about a number of externalities including the lack of transparency, coherence and legal certainty. The Treaty of Amsterdam opened the way for the progressive construction of the AFSJ and for its Treaty-based objectives to be increasingly developed.11 Since then, the political agenda structuring EU action on these issues has been organized in the form of multi-annual (five-year) programmes offering general orientations, specific objectives and timetables. Two are noteworthy. The first is the Tampere Programme (1999–2004), adopted by the European Council meeting of 15–16 October 1999.12 The Tampere Programme also saw agreement on a number of milestones that would guide the overall agenda. The first milestone stated: From its very beginning European integration has been firmly rooted in a shared commitment to freedom based on human rights, democratic institutions and the rule of law. These common values have proved necessary for securing peace and developing prosperity in the European Union. They will also serve as a cornerstone for the enlarging Union [emphasis added].

The second, more decisive framework for the development of the AFSJ is the Hague Programme, agreed by the European Council on 4–5 November 2004.13 The Hague Programme constituted the second multi-annual programme adopted by the Council concerning the AFSJ. In replacing its predecessor of Tampere, it provided a new legislative timetable and policy roadmap for the attainment of 11 The objectives of the first pillar are stipulated in Article 61 TEC and those pursued by the third pillar are laid down in Article 29 TEU. 12 See European Council, Presidency Conclusions of the Tampere European Council of 15–16 October, SN 200/99, Brussels, 1999. 13 See European Council, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, OJ C 53/01, 3 March 2005, and European Commission, Communication on The Hague Programme: Ten priorities for the next five years – The partnership for European renewal in the field of Freedom, Security and Justice, COM (2005) 184 final, Brussels, 10 May 2005. See also Balzacq and Carrera (2006).

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its expected goals between 2005 and 2010. Unlike the Tampere milestones, the Hague Programme started from the following ideological premise: The security of the European Union and its Member States has acquired a new urgency, especially in the light of the terrorist attacks in the United States on 11 September 2001 and in Madrid on 11 March 2004. The citizens of Europe rightly expect the European Union, while guaranteeing respect for fundamental freedoms and rights, to take a more effective, joint approach to cross-border problems such as illegal migration, trafficking in and smuggling of human beings, terrorism and organized crime, as well as the prevention thereof … . The programme … seeks to respond to the challenge and the expectations of our citizens [emphasis added].

The general conceptual bases characterizing the Hague Programme may therefore be summarized in the following manner.14 First, it presents a blurring of the scope and division between measures dealing with FSJ. Second, it advocates an expansion, predominance and strengthening of the security dimension over the other two rationales. Finally, it provides a critical understanding of security according to which the security of ‘the European Union and its Member States’ takes precedence over the liberties and security of the individual, and it is this last understanding that functions as the guiding value (Bigo et al. 2007a). The Hague Programme has also involved a major transformation in the conceptual setting underpinning the policy and political framework of the AFSJ. As Bigo (2006a, 35–44) has argued, the meanings and functionalities of the terms ‘freedom’ and ‘justice’, where introduced within its text, have been reconfigured as lower values compared with the priority of security (understood as coercion) and through the use of a ‘balance metaphor’ for freedom and security. But in practice, the balance has tilted in favour of security. In fact, the concept of freedom has been profoundly transformed. The way in which The Hague Programme understands ‘Strengthening Freedom’15 allows, for example, coercive practices of surveillance (biometrics and information systems), management and control (visa policy, return and readmission, border checks and the ‘fight against illegal immigration’) without taking into account their actual and potential impacts on liberty, fundamental rights and the rule of law (CHALLENGE Paper 2004). The special context that it has given to the dimensions of FSJ has also been recognized by EU institutional actors such as the European Economic and Social Committee (EESC).16 14 See the UK Parliament, House of Lords European Union Committee, The Hague Programme: A Five-year Agenda for EU Justice and Home Affairs, Report with Evidence, 10th Report, HL Paper 84, Session 2004–05, House of Lords, London, 23 March 2005, pp. 11–3 and p. 34. 15 See the Specific Orientations of the Hague Programme in point III. 16 The EESC stated: ‘[T]he Hague Programme confuses aspects relating to ‘security’ with aspects relating to ‘freedom’. Policies directly relating to security clearly take priority

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Freedom versus security: on the balance metaphor The relation between freedom and security has been depicted, in institutional terms, as an epitome of a well-crafted ‘balance’. The concept of a balance is no more than a smokescreen. It could be argued that the (ab)use of the metaphor of a balance between security and freedom has undermined the legitimacy of the EU AFSJ. It entered the EU’s discourse after 11 September 2001 and it was incorporated into the second fiveyear work programme that commenced in 2004.17 The constitutive problem of the metaphor is the belief that freedom and security are analogous concepts, and thus can be compared with and weighed against each other. This belief is difficult to uphold. Freedom, and its more concrete formulation as liberty, is a central value that can be found at the heart of not only the EU treaties but also of all international human rights treaties. In its most essential form, it is contrasted with its opposite – detention or imprisonment. The individual is either free or detained (as for instance in Article 5 of the European Convention on Human Rights, hereinafter ECHR). If one then takes the metaphor of freedom and security as a balance and applies it to a specific individual, the balance is between liberty and detention. Of course, other forms of liberty may be subject to limitations of other kinds (for instance, the right to family life is a liberty in respect of which the state may interfere on limited grounds and in accordance with the procedures set out in the ECHR). What is common to all the understandings of liberty is that it is the defining value: democracy, the rule of law and fundamental rights are designed to protect the liberty of the individual within the society. Security, on the other hand, is not a value as such. Yet, some forms of security, such as social security as a kind of economic redistribution, are capable of being so categorized, coercive security by state officials is very difficult to render capable of entry into the category. Attempts to categorize coercive security as a public good are beset by difficulties, which are immediately evident the minute one takes an example of the individual. Who is coercive security a public good for? Can the and interfere with aspects concerning freedom and justice. This is the case for instance with initiatives based on the introduction of biometrics systems and new technologies, the interoperability of databases, greater control of internal and external borders and more effectively fighting irregular immigration, all of which are paradoxically included under the heading “Strengthening Freedom”’. See the Opinion of the EESC on the Commission Communication, The Hague Programme: Ten Priorities for the Next Five Years – The Partnership for European Renewal in the Field of Freedom, Security and Justice, COM (2005) 184, SOC/209, Brussels, 15 December 2005. 17 In particular, in the section entitled ‘Strengthening Freedom’, The Hague Programme states: ‘The European Council requests the Council to examine how to maximise the effectiveness and interoperability of EU information systems in tackling illegal immigration and improving border controls as well as the management of these systems on the basis of a communication by the Commission on the interoperability between the Schengen Information System (SIS II), the Visa Information System (VIS) and EURODAC to be released in 2005, taking into account the need to strike the right balance between law enforcement purposes and safeguarding the fundamental rights of individuals’.

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individual who is falsely imprisoned be the recipient of a public good? Or is such a person rather the object of interference with their right to freedom? In order to seek to define coercive security as a public good one must accept that the recipient of the public good is the public. But that public is composed of many different individuals, families and groups. Economic and social disparities among them mean that access to public goods, and this is particularly true of coercive security, is far more available for the protection of some individuals and groups and their property than it is for others. The precedence of liberty as a value that must be protected by all states, EU institutions and mechanisms is key to ensuring that security in its coercive form is used only as a tool to support freedom and is subject to its priority. Hence, the individual is entitled to freedom and any interference with that freedom must be justified by the state on limited grounds and be subject to the important procedural requirements set out in European and international fundamental and human rights instruments. Somewhat controversially, the ECJ has confirmed that the fundamental freedoms of the EU (including freedom of movement) take priority over fundamental rights where they enter into competition. While fundamental rights may pose an obstacle to the exercise of a fundamental freedom, this must nonetheless be justified. The justification, even when on fundamental rights grounds, must conform to the principles on which fundamental freedoms can be limited.18 The EC Treaty has always recognized the priority of freedom, particularly in the form of free movement of persons, over coercive security claims. Where a member state seeks to expel from or refuse to admit a national of another member state to its territory, the only grounds on which this obstacle to free movement can be justified is public policy, public security or public health. The meaning of these three terms of exception is strictly controlled by the ECJ. The exclusion of the state from control functions that, in the name of security, limit or prevent the exercise of free movement rights by individuals can be seen as a mechanism of desecuritization. The EU has moved rapidly since 1999 towards the elimination of state coercive controls at the intra-member state borders. At the same time, the EU has enlarged twice – first in 2004 to include five countries in Central and Eastern Europe, the three Baltic states and two Mediterranean islands. In 2007, the EU enlarged again, this time to include Bulgaria and Romania. In respect of all the new member states’ nationals, the right to free movement of persons in all capacities as tourists, students, visitors, service providers or recipients and for self-employment was immediate. The only exception was in respect of the free movement of workers, whereby the pre-2004 member states were allowed to make an exception for all (except nationals of the two islands) where the workers were not already part of the labour force of the member state. The delay is staggered: in the first two years, the member state can apply the 18 See judgment of 18 December 2007 in Case C-341/05: Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet and Others.

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exception; then in the next three years, the state must notify the Commission that it intends to continue to apply the exception. Finally, there is a two-year period in which the member state must justify a continuation to apply the exception to the right of free movement of workers. While many member states exercised their right to apply the delay in 2004, by 2008 almost all member states have lifted the exception for those countries that entered the Union on 1 May 2004. Nonetheless, the right to move freely is a right for all citizens of the Union irrespective of their country of origin. That there are periods during which this right is less respected as regards the nationals of some member states is a sad reflection of the political opportunism of some state leaders and their civil servants. The post-1999 period of EU policy on the movement of persons has been much marked by the obligation to abolish intra-member state border controls on the movement of persons first agreed by the member states in 1987 to take place at the latest on 31 December 1992. The end of bipolarity and its consequences for the movement of persons across the EU meant that politically the deadline shifted as did the legal mechanisms by which the lifting of controls on the movement of persons took place. It gave the EU the concept of ‘Schengen’, which by now has become an almost mythic word that opens borders or closes them. The lifting of intra-member state border controls first took place on 25 March 1995, and although some member states have reapplied intra-member state border controls from time to time, borders have remained remarkably control-free since that time. In policy terms, an important challenge for the EU has been how to extend the control-free borders to include the ten plus two new member states. This extension has since happened with a surprisingly low degree of opposition as regards nine of the ten member states that acceded in 2004 (the exception being Cyprus, which has particular issues concerning its external borders). The lifting of controls at the intra-member state borders took place first along the land borders on 21 December 2007 and then at the air borders at the end of March 2008. Although the director of Frontex, the EU’s external border agency, expressed his deep concern about the security threats that the lifting of the controls at these borders would entail, the political will to complete the process of freedom of movement was sufficiently strong that even his concerns did not delay or stop the lifting of the controls (Faure Atger 2008). Although a number of member states have instituted police checks within their borders – in respect of which there are concerns as to whether they are in fact replacing border controls (in which case they are against EU law) – these appear to be a minority. Pressure to comply with EU law may be hoped to encourage and in the end force those member states that may not be fully compliant to bring their practices into line. The abolition of border controls shows that the metaphor of a balance between freedom and security does not work. The EU adopted the Schengen Borders Code (SBC), which came into effect on 13 October 2006. It is in the legal form of a regulation, which means it has direct legal effect in the member states. It determines how the external borders of the EU must be controlled. At the insistence of the EP, the Code is detailed – setting out more clearly than any national law has done before

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the rules on admission (and refusal of admission) at the external borders of the EU. For those who are refused admission there is the right to a written notice of refusal; the refusal must be motivated by clear and precise reasons; the motivation must conform with the regulation; there must be a right of appeal against the refusal; the member state must provide information on how to exercise the right of appeal and how to obtain legal assistance in order to do so. Furthermore, the exercise of border control must respect the dignity of the individual; officials carrying out the controls must not discriminate on the basis of race, religion or other grounds (other than nationality). In comparison with the formal rules regarding the crossing of the external borders of the EU, the member states’ national rules provided a much higher degree of discretionary action for officials than the SBC. To summarize, the changing dynamic of security has been accompanied by a changing dynamic of liberty in the EU. In this regard, two core aspects deserve mention: first, the AFSJ acquis suffers from the lack of a consistent and harmonized EU policy on fundamental rights; second, that notwithstanding, liberty has been subject to substantive and institutional steps forward, which call for its further integration, consolidation and reinvigoration. Concerning the first of the elements, while most of the EU’s normative instruments include express references to fundamental rights and to the wider, international human-rights obligations of the member states, their insertion in the actual contents of the instruments is still lacking and they are at times rather vague in nature. The tension inherent in the use of ‘minimum standards’ and ‘lowest common denominators’ as mechanisms of law-making is that when dilemmas arise about the compatibility of certain provisions of these acts with fundamental rights, all too often the EU institutions wiggle out of the problem by stating that these are only minimum standards, and it is for the member states to apply the necessary (read higher) ones required by fundamental and human rights concerns (Balzacq and Carrera 2005b and 2006). The predominance of this legal technique leads to difficulties for the attainment of a consistent, unified and identifiable transnational policy on fundamental rights. It also allows for the existence of a dispersed and fragmented response in relation to the degree of ‘liberty’ that the individual enjoys within the Union (Carrera and Guild 2006b and 2006c). Finally, while when comparing the logics driving insecurity with those affecting liberty, one can argue that the latter is rather weak. It is also necessary to acknowledge the existence and ongoing development of legal and institutional supranational mechanisms at the EU level addressing the changing landscape of liberty in the EU, as well as its internal and external dimensions. As long as internal security is subject to processes of externalization and Europeanization, so is liberty too. This has been the case for instance in relation to the increasing institutional pluralism thanks to agencies such as the EU Agency for Fundamental Rights (FRA) and the European Data Protection Supervisor (EDPS). These institutional structures should also be further integrated and their cooperation reinforced (Bigo et al. 2007a). There needs to be an increase in the level of policy convergence and Europeanization in this dimension. This should be accompanied

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by an increasing judicialization of AFSJ-related policies in relation to the general principles of EC law and fundamental rights (Carrera and Guild 2006c; Carrera and Geyer 2008b). Security justifications always require substantial amounts of official discretion. Once transparency and clarity apply, the scope of application of security exceptions diminishes exponentially. Thus, the EU’s external borders are in the process of becoming, as the SBC gradually becomes accepted as the governing law in this field, an area governed by clear laws that provide individuals with a legitimate expectation that, if they fulfil the requirements, they will not be impeded at this boundary. At present, however, there is much concern that the Borders Code is not (yet) being properly applied. Not least, at the Mediterranean borders it does not appear that individuals who seek to arrive are being informed of their rights and, if refused admission, provided with the detailed forms and reasons, let alone advised of their right to appeal against refusal. Nevertheless, this will come with time. Member states have often had delays in correctly implementing EU laws as their officials only gradually become aware of their content. The importance of the function of EU rules is sometimes delayed for these officials. Still, with some assistance from the courts and the ECJ, compliance has become the EU norm even in highly contested and political fields. Policy Achievements and Deficits The analysis of the main policies and legal responses developed in the context of an AFSJ in relation to liberty and the rule of law brings at least two new features to the fore (Balzacq and Carrera 2005b; Balzacq and Carrera 2006; Guild and Geyer 2008). First, there has been an unsatisfactory level of ‘policy convergence’ in relation to policies dealing with or affecting the dimension of ‘freedom’. Second, a majority of the policy and legal responses presented or adopted entail low minimum standards (some of them posing human rights concerns) and provide wide discretion to the member states when applying exceptions to the general rules and derogations to rights. Factors that might explain the current obstacles and deficiencies in EU policies on an AFSJ can be summarized as follows: •

•

•

First, diverging operations and diverse approaches on the part of national legal systems and practices of member state authorities in areas such as police and judicial cooperation in criminal matters (Guild and Geyer 2008); Second, a profound mistrust or lack of confidence in supranational cooperation when this begins to have a real impact at the national or local level as regards the rights of individuals; there is also resistance by the ministries in some member states to the loss of discretionary power and competence in these areas (the prevalence of the principle of subsidiarity); Third, an unsatisfactory institutional setting (first/third pillar) as well as

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•

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decision-making process (with consultation applicable to the area of regular immigration, visa-related policies and the third pillar); and Fourth, a predominantly intergovernmental approach even concerning those areas where the EU has recognized competence (Apap and Carrera 2004; Balzacq and Carrera 2005b; Carrera and Guild 2006b).

The Europeanization of fields that come into the sphere of an AFSJ has also led to a new institutional setting, which has been dependent upon and affected by the first-third pillar divide. On the one hand, the DG for Justice, Freedom and Security of the European Commission has acted as one of the main motors of European integration over these areas within the scope of the first pillar. On the other hand, the EP has become an increasingly involved and powerful actor in European cooperation in these domains. This has especially been the case in those fields falling within the scope of the first pillar and now benefiting from the codecision procedure.19 In order to ensure the necessary democratic accountability and transparency of EU policies on security and liberty, the EP needs to be recognized as one of the key actors in the institutional landscape of FSJ cooperation in the EU (Carrera and Guild 2006a). In addition, the role that has been played by the Community courts, and more particularly by the CJEU and the Court of First Instance (CFI), has been impressive in terms of liberalizing current legal constraints and the normative ghettos presented by current Treaty configurations.20 Their case law has also been decisive at times of interpreting and restricting exceptionalism in the hands of public authorities, these being at 19 See Council Decision 2004/927/EC of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the TEC to be governed by the procedure set out in Article 251 of that Treaty, OJ L 396/45, 31 December 2004. The Presidency Conclusions of the Brussels European Council of 4–5 November 2004 (SN 14292/1/04, REV 1, 8 December) state: ‘The European Council asks the Council to adopt a decision based on Article 67, Paragraph 2 TEC immediately after formal consultation of the European Parliament and no later than 1 April 2005 to apply the procedure provided for in Article 251 TEC to all Title IV measures to strengthen freedom, subject to the Nice Treaty, except for legal migration.’ 20 Recent judgments have entailed major implications for the classical principles and legalistic structures comprising the EU AFSJ, in such cases as the following: judgment of 27 June 2006 in Case C-540/03: European Parliament v. Council dealing with the Council Directive 2003/86 on the right to family reunification; judgment of 6 May 2008 in Case C-133/06: European Parliament v. Council dealing with the Council Directive; judgment of 18 December 2007 in Case C-77/05: UK v. Council dealing with Frontex; judgment of 12 December 2006 in Case T-228/02: Organisation des Modjahedines du people d’Iran v. Council of the European Union, dealing with the Council’s ‘terror lists’; judgment of 27 February 2007 in Case C-354/04 P: Gestoras Pro-Amnistía, Juan Mari Olano and Julen Zenarain Enarrasti v. Council of the European Union, in which the ECJ opened up the possibility for national courts to ask the ECJ for a preliminary ruling in matters referring to third-pillar fields; and judgment of 23 October 2003 in Case C-440/05: Commission v.

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the level of the member states or the EU, in relation to acting within the scope of EU law. The increasing judicial control and proactive judicialization of FSJ are of central importance for ensuring the rule of law. Indeed, the current limitations of the ECJ’s competence,21 and especially to reviewing and interpreting third pillarrelated issues, are critical for guaranteeing the necessary jurisdictional control of the actions of public authorities and judicial protection of the individual in the EU (Carrera and Guild 2006b; Carrera and Geyer 2008a and 2008b). There is, moreover, an increasing institutional pluralism in aspects related to security (Europol, Frontex, Sitcen) and justice (Eurojust). A whole host of EU-level agencies and Community bodies has emerged over the last few years, which has greatly transformed the landscape of the AFSJ (Bigo et al. 2007b). Increasing levels of democratic (at both the EU and national levels – an excellent example being the UK Select Committee of the House of Lords) and judicial control is of utmost relevance in order to guarantee the principles of legal certainty, lawfulness and proportionality of their activities, as well as the respect of fundamental rights (Balzacq et al. 2006c; Carrera 2007a and 2007b; Guild and Geyer 2008). After the negative results of the Irish referendum of 13 June 2008, the destiny of the Treaty of Lisbon remains uncertain.22 The AFSJ is actually among those policy dimensions most affected by the Treaty (Carrera and Geyer 2007, 2008a and 2008b). The formal abolition of the legal duality of the pillar approach and the legally binding nature of the Charter of Fundamental Rights would be among the key relevant changes. A renewed legal setting would in this way address many of the current institutional and decision-making weaknesses. Yet, at the same time the Treaty of Lisbon would also institutionalize and reinforce mechanisms that allow member states far too much flexibility and too many exceptions to EU cooperation in sensitive areas through enhanced cooperation, emergency brakes and wider opt-outs. There is a risk of an incipient exceptionalism and differentiation that could have critical implications for the construction of a common AFSJ. Too much flexibility might lead to too much complexity, paralyzing the practical cooperation of national authorities on the ground. Furthermore, differing areas of FSJ might endanger the status and legal safeguards of EU citizens, who could find themselves caught in the gaps of this patchwork.

Council, in which the ECJ found the use of criminal law sanctions in pursuit of Community law objectives to be lawful. See Guild (2008). 21 See in particular Article 68 TEC and Article 35 TEU. 22 See the ‘Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community’ (‘Treaty of Lisbon’), Lisbon, 13 December 2007, 2007/C306/01, OJ C 306/01, 17 December 2007; UK Parliament, House of Lords European Union Committee, The Treaty of Lisbon: An Impact Assessment, 10th Report of Session 2007–2008, vol. 1: Report, House of Lords, London, 2008.

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Externalization: The New Frontiers of the EU AFSJ AFSJ-related policies are increasingly subject to a whole series of processes and strategies of externalization and extra-territorialization. They are formulated and framed in the context of external relations with third countries and in the scope of the ENP (Balzacq 2007). There is an impressive expansion of the ‘external dimensions’ of the AFSJ that use these areas as tools of a series of externalization processes moving ‘outside’ the confines of the common EU territory, and as an instruments of the Union’s neighbourhood and external relations policies. Two case studies can be identified with respect to the implications of this approach for liberty and the rule of law: the joint operations of Frontex and ‘extraordinary renditions’. The joint operations coordinated by Frontex involve an external dimension that entails the extra-territorialization of control (Rijpma and Cremona 2007) and the prevention of mobility from outside the common EU territory. The external dimension (Lavenex 1999, 29–38 and 73–102; 2004, 680–700; 2006, 329–50) is one of the key ingredients of the EU’s ‘four-tier border control’ and is now viewed at the official level as one of the most important prerequisites for an efficient integrated border management.23 Within the context of Frontex, this dimension consists of partnerships allowing for a ‘functional cooperation with partner countries in terms of identification of their nationals, readmission of own nationals and readmission of third country nationals’.24 Moving border management outside the EU results in two negative effects: first, it leads to human rights considerations in relation to respect for the principle of non-refoulement and the Geneva Convention on the Status of Refugees of 1951; and second, pre-border surveillance prevents the applicability of Community governance and the regime of protection provided by the Community border and the SBC (Carrera 2007a and 2007b). Furthermore, EU member states have not resisted the temptation of taking advantage of extraordinary renditions and unlawful detentions. This tendency is exemplified by recent examples of ‘profiteering’ with respect to interrogations at Guantánamo Bay and other detention centres as well as information exchange with foreign services under circumstances of questionable legality (Geyer

23 See European Commission, Communication on a Strategy on the External Dimension of the Area of Freedom, Security and Justice, COM (2005) 491, Brussels, 12 October 2005; Council of the European Union, Strategy for the External Dimension of the Area of Freedom, Security and Justice, Doc. 14366/3/05 JAI 417 RELEX 628, Brussels, December 2005; Council of the European Union, Progress Report on the Implementation of the Strategy for the External Dimension of JHA: Global Freedom, Security and Justice, 15363/06, Brussels, 20 November 2006. 24 See Council of the European Union, Integrated Border Management: Strategy Deliberations, Strategic Committee on Immigration, Frontiers and Asylum/Mixed Committee EU/Iceland-Norway-Switzerland, 13926/3/06, Brussels, 21 November 2006.

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2007). For instance, whether these services have used torture or other inhumane treatment to obtain the information remains unclear. The absolute nature of the prohibition of torture and other inhumane treatment as enshrined in many human rights treaties of international law needs to be stressed. The interrogation of an individual who is unlawfully detained or who has been subject to extraordinary rendition not only appears hypocritical from a political point of view, but also to be on the legal borderline and most probably beyond it (Geyer 2008b).25 An imminent, inherent risk for the EU and its Counter-Terrorism Strategy in this regard is the use of information obtained by foreign sources through torture. Attention to this issue is particularly important, given that the European AFSJ aims at making relevant security information freely available. Even if some member states and their services strive to move closer to the spirit and intentions of the UN Convention against Torture and human rights obligations by establishing clear agreements for cooperation and intelligence-sharing with foreign services, such efforts would eventually be undermined by the fact that other member states might cooperate less carefully with foreign services. This area is perhaps where robust yet fair policy engagement is required and more research is needed.

25 Geyer (2008b, 13) goes on to state: ‘Furthermore, concerning the use of information the following points have been stressed: First, as a rule, the use of foreign torture information is inadmissible. Only in exceptional circumstances, i.e. to avert imminent threats to life, might it be acceptable; second, security services must under all circumstances avoid making themselves complicit in torture, let alone get directly involved; third, security services are not allowed to be passive consumers of foreign torture information but are under an obligation to reduce the need to use such information and must establish minimum standards for the exchange of information with foreign services; fourth, a certain degree of formality in the making of liaison arrangements with foreign services and the independent scrutiny of these arrangements are deemed crucial.’

Chapter 3

Mapping the European Field of Security Professionals Didier Bigo, Philippe Bonditti and Christian Olsson

Introduction Security practices at the EU level are increasingly fuelled by technologies of control and surveillance of individuals, as well as by exchanges of know-how and mass-data between and within EU members. This complex process involves a wide array of interconnected and interacting institutions and agencies at the national, European and international levels (Bigo et al. 2007b). In this context, one of the initial objectives of the CHALLENGE project was to draw a precise map of the positions of security agencies in Europe in order to see how the professional solidarities and struggles restructure power relations at the national, EU and transatlantic levels. The notion of ‘field of security professionals’ was used to describe the space of competition between agencies and institutions over the pertinent knowledge concerning threats, risks and vulnerabilities. A thorough analysis of this field provides with a practical knowledge on the institutions that share a same vision of threats and risks. It supposes to map the trajectories of EU security agencies, as well as of their structural positions, in order to shed light on the alliances and struggles concerning the evolving relationship between danger, (in)security and freedom. In order to develop this topology of field of security, the initial CHALLENGE proposal concluded that researchers would have to carry out extensive interviews with security professionals at EU and national levels, both in France and the UK. From this point of view, the results produced so far by the project on ‘Mapping the European Field of Security’ allow for important preliminary conclusions.1 However, it is still a work in progress and some of its ramifications need to be further developed.

1 The CHALLENGE Work Package (WP) 2 research project on ‘Mapping the European Field of Security Professionals’ is a collective endeavor aiming at documenting, analysing and understanding the current security dynamics at the European level. It has provided, through the deliverables produced both by the WP 2 (CERI/Sciences Po and Cultures & Conflits) and the WP 5 (CEPS), substantial empirical details and analytical findings concerning the field’s main agencies and institutions.

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Mapping the European Field of Security Professionals: Current State of the Research and the Way Forward Methodologically speaking, the focus has mainly been put on the European security agencies involved in border management as well as on the external action of internal security agencies. Indeed one of our main questions has been how the prevailing intelligence-led logic, based as it is on a rationale of surveillance and anticipation, transforms the role of the EU’s internal and external borders. Indeed the latter are constantly reconfigured by the expanding field of security professionals. Moreover, these borders are the sites at which the struggles between widely different conceptions of control and surveillance (territory or persons, public or private management, collective or individual security, human agents or technological equipment) are being played out. Finally, as we will highlight further on, the current trend in the European field of security is towards logics of policing at a distance, usually beyond borders, through the externalization of the action of internal security agencies. We have hence looked at agencies such as Europol, Eurojust and OLAF, involved in the European sub-field of police and judicial cooperation, as well as Frontex. The role of security technologies and data-bases has also been scrutinized and allowed for crucial insights. Of course, research has also been done on the role of other European institutions (EP, European Commission, Council of the EU) as well as of private actors (security industry), although to a lesser extent. Finally, we have looked at the resistance opposed to some of the trends in the field of security (suspicion, exceptionalism, proactive policing and mass-surveillance) by European and national courts. However, further empirical research and updating might still have to be done, notably as far as the role of intelligence services is concerned. Furthermore, the complex interrelations and interactions with security apparatuses at the national levels are among the aspects that will have to be further integrated into the research, although research has already been done on the case of France and the UK (Bonelli 2005; Tsoukala 2005b). One of the initial aims was to produce extensive graphs over the different institutional positions at the EU level as well as to design a general graph illustrating in a dynamic way the formal and informal relations between the internal security agencies. During the last four years, different versions of this graph have been produced. The graph can be found at http://www.libertysecurity.org/IMG/pdf_ Mapping_30.11.2007.pdf. However work on its graphic presentation as well as on its details remains to be done. The Added Value of the Research Project The general aim has been to understand the interactions between the institutions and agencies involved in the field of European security so as to highlight how policy outcomes are produced. As opposed to many studies focusing on a single institution, our premise has been that security practices had to be understood in

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a broader context while avoiding the pitfalls of a too blind belief in institutional boundaries. Indeed, professional, national or sectoral ‘solidarities’ and struggles very often override the institutional and formal boundaries. Relations between institutions as well as between different professions (both within and between institutions) have to be focused upon in order to understand what is at stake in the construction of the European field of internal security. It is hence important to understand the interdependencies between different professionals (police, military, customs, judges, prosecutors, magistrates, border-guards), while not considering the field of security as a homogenous or unlimited social space. The field of the professionals of security is a fragmented social space that, in spite of its multiple lines of confrontation, can be analysed as being characterized by a set of common beliefs, practices and technologies. These commonalities can be identified through the study of security practices but also through an in-depth analysis of security discourses and threat constructions (Tsoukala 2005b). Such an approach allows going beyond the official organization charts with their often narrow categorizations. Other types of visual representations have to be developed in order to account for the effective relations structuring the field. However, to talk of a European field of security professionals is also to posit that the national spaces of security practices are not closed any longer (if they ever were) and that the fields of internal security and external security are merging. As such, one of the main questions is the one of the boundaries of the European field of security as well as of its intricate relations with the different national levels. For example, the non-negligible impact of the US administration on policy choices at the EU level is often related to its influence on individual member states. Problematique and Policy Relevance of the Research Contemporary discussions on the relation between liberty and security in Europe have been hampered by the fact that practices and institutions of liberty and security have traditionally been analysed separately. During the first two years of the CHALLENGE project we have extensively shown that, while this has changed drastically the last few years, the change has predominantly been detrimental to liberty. Declarations on the need to limit liberty in order to maximize security have been systematic. As a result, the current trend in Europe is towards the promotion of the AFSJ in the name of the fight against insecurity. According to the promoters of this trend, interpreting freedom and justice in the light of security, the development of police and intelligence cooperation at the European level has to be the main priority of the European integration. Indeed, it is deemed to be the best way to realize the vision of FSJ in the context of the rise of the threats embodied in ‘global terrorism’. As a consequence, progress has been achieved in the Europeanization of security cooperation (intelligence, police, prosecution) while, for example, procedural rights in criminal affairs and the right of the defense are still ‘stuck’ at the national levels. The judiciary has offered resistance to this

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move (Guild 2006b), but it has been overrode by trends in the expanding field of security. From a policy-making perspective, the aim of the mapping project has been to analyze the root causes of this imbalance in order to assess the political margins of maneuver that could be exploited in order to remedy some of its most acute expressions. Indeed, while the argument of an ‘impending threat’ to the EU has served to justify the ‘progress’ in matters of security cooperation, this hardly explains the absence of a similar integration in the field of justice and liberty. Our methodological choice has therefore been to offer an alternative to the exclusive focus on threat assessments in order to look at the actual practices of the security agencies at the European level. This approach has proved fruitful since it has allowed identifying other structural causes – and hence potential responses − to the prevailing imbalance. Our research has shown that the imbalance between security and justice at the European level is a consequence of the structure of the European field of security rather than of an ‘exceptional threat environment’ prevailing after 11 September 2001 (Bigo and Tsoukala 2008). The illiberal practices at the European level are indeed being driven by the routinized transactions among the many transnationally-organized agencies, institutions and interests that make up the field of security. Mapping the Informal and Formal Relations between the Different Security Agencies Our research has allowed identifying some of the core elements that are at stake in the relations structuring the European field of security and judicial cooperation. It is important to mention that the current trend is towards intergovernmental arrangements and a dynamic of (re)nationalization, as opposed to the dynamic of integration (Mégie et al. 2006) that has prevailed in the longer term. Indeed, over the last few years we have witnessed the aversion of some member states to seeing a more integrated and harmonized field of European judicial cooperation eroding their prerogatives beyond what is needed for the principle of mutual recognition to be applied. Hence intergovernmentalism currently comes in the guise of the principle of mutual recognition, as illustrated for example by the European Arrest Warrant (EAW) or the European Evidence Warrant (EEW) initiative. Many member states do not want to relinquish their powers to the Community level, to the principle of harmonization or to a more powerful ECtHR. But, at the same time, they want to avoid a ‘regression’ towards an unbridled state sovereignty: they are favourable to a process of Europeanization, understood as the progress of intergovernmental cooperation. It remains to be seen whether (and in this case, to what extent) the Lisbon Treaty might question this development. A second important aspect concerns the issue of transatlantic relations. Indeed the ability to exchange information through formal and institutionalized relations beyond the borders of the EU is often a resource in the professional and interinstitutional struggles within the European field of security. As a consequence, there

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is a trend towards the establishment of transatlantic ties that often raise important questions from the perspective of the AFSJ (Bonditti 2005a). For example, the agreement between Europol and the US, notwithstanding the approval by the Supervisory Board, raises questions concerning the respect of privacy in the US and the accuracy of the data provided by the FBI (Bigo 2007a). General Characteristics of the European Field of Security Professionals When having a quick glance at many of the European agencies that have been scrutinized, one could conclude that they follow radically different logics. Moreover, it is tempting to restrict oneself to the categories imposed by the EU’s still pillarized structure. On the contrary, when approaching these agencies as part of a European field of professionals of security, it appears that, beyond the disagreements and oppositions, many of the agencies’ professional and institutional standpoints share a doxa, a same ‘common sense’ of what is at stake regarding security at the European level. This doxa is not a consensus. It does not preclude, at times very strong, disagreements. However, it implies that there is always agreement on what and how one disagrees. When looking at the agencies from this perspective, it appears that they share many commonalities: •

•

• •

First, as opposed to the traditional stance of military professionals, they do not consider frontiers as the main ‘line of defense’ against threats. They rather focus on the targeted control of populations and the tracing of individuals, especially when they cross borders. The external action of internal security agencies and the policing of both internal and external borders of the EU has therefore become the most important site at which the current transformations in security practices are to be observed (Sinikukka 2006; Bigo 2007a; Cuttitta 2008). Indeed, the aim has become to anticipate and counter the threat before it manages to cross the borders. It implies not only to police beyond the borders, but also to track the traces that individuals leave when, for example, traveling or transferring money. Hence the importance of notions such as mobility and flows (Vlcek 2005); Second, to the extent they become involved in security issues, they all focus on global, transnational or ‘regional’ security, as opposed to local violence. The focus is consequently put, as in the previous point, on ‘policing at a distance’ (Bigo 2007b); Third, although at different degrees, they all focus on mainly technological solutions to threats to security, as opposed to political or diplomatic channels; and Fourth, at an even more general level, they all convey – through their practices and discourses – a sense of centrality of the question of the relevant priorities regarding threats.

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These commonalities, however, do not allow concluding that the field of security is an homogeneous space. To the contrary, many oppositions and cleavages emerge from the relations analysed so far. They are most evident in the field of the professionals of security, as the field is structured around a general competition over the legitimate classifications of threats. Hence, one of the main lessons that could be drawn from the European construction in security matters is that there is not only one meaning or direction emerging from the process of Europeanization. The field of the professionals of security is structured around multiple meanings, cleavages, oppositions and lines of confrontation which preclude a thorough analysis of the field as a whole, and which rather allow to describe it by focusing right on the lines of confrontation structuring the struggles. Here we will try to describe some of the cleavages and characteristics we have identified without, however, being able to provide all of the details (see Bigo et al. 2007b). The (Over)valuation of Informational Prerogatives The (direct or indirect) access to databases plays a central role in the capacity of an EU agency to engage in credible strategic threat assessments and/or risk analysis. The treatment (organization, prioritization, classification and ultimately interpretation and anticipation of the threat environment) of data, and consequently the production of security knowledge, is indeed conditioned upon the access to the relevant data. Agencies that have no access to databases will hence be de facto excluded from this type of activity. The increasing importance of access to databases in the ‘rules of the game’ of the European field of security – structured as it is by the centrality of new information technologies, digitalization and collection of information – is one of the recurrent features which has been revealed by our research. This is illustrated by the fact that some institutions have made requests to access databases without having a direct, or at least evident, need for this data in the pursuit of their institutional activities (Holboth 2007). It can also be seen through the fact that the focus is increasingly put on the access to databases per se, while the necessity of a prior common definition of relevant data or information is generally neglected. Although operational prerogatives remain important, the main trend is hence towards the valuation of informational access. As a result, Europol, for example, appears as potentially central to the field. Although limited, its operational competencies are not negligible. But more importantly, its access to information, because of its possession of databases (through TECS), makes it one of the core actors among the EU internal security agencies. All other things being equal, this trend is detrimental to agencies that have no direct access to information, such as Frontex.

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The Trend towards Profiling and Intelligence-led Rationales One of the conclusions that can be drawn from the analysis of the subfield of judicial and police cooperation in criminal affairs is that the role of intelligence services (mainly police intelligence) and their specific rationale is increasingly attractive and predominant (Bonelli 2005; Bigo 2007b; Bigo and Tsoukala 2008). The logic of intelligence is mainly one of anticipation and of a proactive monitoring of the future. Its aim is indeed to identify and localize a threat before it is actualized and materialized. As such, it can be opposed to the logic of criminal justice focusing on the arrest and the prosecution of the individual perpetrator or suspect of an already committed crime. Simultaneously, the role played by the collection of mass-intelligence, the constitution and interconnection of databases combined with the resort to expert systems and data mining, seems to further approaches operating through the establishment of profiles. The latter are hoped to allow for the conviction of suspects following the criminal justice rationale or the anticipation of future crimes following a rationale of prevention. In other words, the practice of profiling is compatible both with the logic of criminal justice and the intelligence rationale. However, in both cases it operates through the ‘depersonalization’ of the individual by establishing categories of populations following the diverse sets of criteria that are deemed important by the ‘profiler’. Both of the abovementioned dynamics can be seen in the relations between Europol and Eurojust. Indeed, the relations between police and justice at the European level have evolved in favour of the police component. Eurojust’s College is now nearly exclusively composed of national prosecutors (apart from the police officers appointed by some countries in accordance with their national systems and the Austrian member); in other words, of magistrates from the respective member states’ accusatory authorities. This development is crucial here because the latter are increasingly following, or at least submitted to, an intelligence-led rationale. Indeed, although prosecutors focus on deeds of ‘real’ individuals (as opposed to profiles), their main role is to assist the police in transforming the data collected into legally compelling evidence that can be used in a court of law.2 In this respect, given the preventive and profiling logic prevailing in judicial and investigatory police activities, prosecutors are de facto involved in the intelligence approach to threats as opposed to an approach focusing on the rights of the defense. Hence, we are increasingly witnessing a dual judicial subfield at the European level: one mainly linked to prosecutors and a more marginalized one, focusing more on procedural rights.

2 However, this role division differs slightly from member state to member state. In Germany, for example, the law provides that the police assist the prosecutor, who leads the investigation.

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The Role Played by Technological Tools The abovementioned trends have a common denominator that, to a certain extent, seems to determine and orientate them: the resort to security technologies. A belief widely spread in political and academic circles today is that the use of new technologies will improve security of territories and populations. Consequently, in pursuit of security, significant budgets have been allocated to new technologies in Europe and in North America. This association between new technologies and security has been interiorized by various institutions charged with ensuring security: the military uses technological tools to diminish the size of its equipments, to improve its effect and precision, or for identification and location purposes. Intelligence services, police and customs use technological tools to improve data collection and data analysis, but also for identification of individuals and authentication of identity documents. All these actors see in the use of technical tools, primarily informatics, the benefits of precision, advantage of location and savings of time. They assume that these benefits will almost automatically lead to a higher efficiency in the pursuit of their respective institutional missions. The plethora of technological tools used today for security purposes is impressive and ranges from biometric techniques to video surveillance, from sensors for data collection to data and image processing software. These technical tools amount to what many pundits refer to as the technologization of security. They all include, at one or the other level, the use of databases. Databases allow for an almost unlimited accumulation of information and the durable storage of information collected on objects or people. In the use of these technical systems of databases, the issue of information sharing is both central and problematic. Improving the exchange of information in the JHA field is an important issue, also for the EU Counter-Terrorism Coordinator, Gilles de Kerchove. In a discussion paper on the implementation of the EU Counter-Terrorism Strategy, he criticized the fact that the current structures in the Council, with its multitude of different working parties dealing with related files, tended to produce incoherent and sometimes illogical results. He called for the adoption of a ‘Common EU Policy on Information Sharing’ that will build on the results of an assessment of the practical use of EU instruments related to information exchange. At the centre of the information sharing issue are two crucial elements: the access to databases and their interconnection. Both lead to a series of critical questions regarding:3 •

The blurring of boundaries between first and third pillar fields of activities, and also between policing, counterterrorism, border control, immigration control and asylum issues;

3 These are the questions that the research conducted within the WP 2, in close relation with the WP 5, aimed at addressing. See especially Bonditti (2007) and Geyer (2008a).

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• •

57

The competent and actually involved authorities; and The democratic deficit and the lack of democratic control over the use of data.

The research focused on SIS I and II, Eurodac, CIS, TECS, Eurojust files and VIS. These can be regarded as centralized EU systems. As regards mechanisms of direct information exchange between law enforcement authorities (decentralized), fourteen texts have been examined, covering fields like DNA analysis results, football matches, terrorism, passport data, criminal records, money laundering to name but a few. Additionally, the competing proposals on implementing the principle of availability have also been analysed. EU acts that provide common rules on the extraction of genuinely ‘private’ data were compared, that is data gathered by private parties for private purposes like telecommunication companies or airlines. The objective was not to compile an exhaustive list of all the databases that exist at the EU level. Rather it was to show how such techniques are becoming part of a globalized system of digital storage, itself engaged in a huge integrative move challenging traditional boundaries and individual privacy. Uneven Participation of EU and Non-EU Member States Although all the systems under scrutiny can be attributed to the AFSJ,4 they address substantially different issues: on the one hand, migration, asylum and free movement; on the other, police and judicial cooperation in criminal matters, including counter-terrorism. Making a distinction between these issues is not only mandatory in terms of content, but also as regards the EU institutional order. While migration, asylum and free movement is located in the ‘first pillar’ of the EU and subject (in principle) to the community method, police and judicial cooperation in criminal matters is part of the ‘third’, that is the intergovernmental pillar. In contrast to the first, the third pillar does not entail proper involvement of EU institutions, but is regarded as an exclusive matter of member states. While this pillar duality would eventually be changed by the Lisbon Treaty, for the time being, it still governs the current setting of EU JHA − with all its negative externalities (see Guild and Carrera 2005). Several aspects have to be noticed. First, although the systems under scrutiny are essentially ‘EU systems’, whereas not all the EU member states participate, some non-EU states do.5 Moreover, supranationality was the driving force for 4 See Article 2 TEU. 5 This is most obvious in the case of the current SIS: Iceland and Norway, as nonEU states, participate fully, while the EU states Cyprus, Romania and Bulgaria are not yet allowed to take part. On the other hand, the UK and Ireland, which do not participate in the Schengen free travel area, have received permission to be part of the police and criminal law contents of SIS. Practical issues, however, have so far prevented these states from actually getting connected to the SIS system (House of Lords 2007, 11 and 14).

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developing EU fundamental rights and for constantly adding more democratic elements into the constitutional setting of the Union. However, while the Schengen framework is part of this setting, not all Schengen states are part of it. This entails, for instance, that the EU Charter of Fundamental Rights – once binding with the entry into force of the Lisbon Treaty – will not govern the usage of the SIS by these non-EU states. The research showed that the uneven participation of EU member states and non-EU member states in EU systems of information exchange not only poses problems as regards complexity and comprehensibility of the systems, but also as regards democratic control and the coherent protection of fundamental rights: while non-EU Schengen states are involved in the Council proceedings via so called ‘mixed committees’, there are no Icelandic, Norwegian, Swiss or Liechtenstein parliamentarians involved when the EP decides on the acts. On the other side of the coin, attention must be given to the fact that the EU non-Schengen states, the UK and Ireland, do have ‘their’ Members of the European Parliament (MEPs) voting on Schengen immigration and border control matters although their governments are excluded from the Council vote. To establish which states are participating in which systems and mechanisms is consequently a rather unpredictable business. This unpredictability, however, might in itself lead to conflicts with yet another issue: that of data protection, since knowing where personal data are stored and processed, by which authority and for what purposes is an essential part of data protection standards. Competent Authorities and Data Protection Another crucial result of the research relates to the control of data flows. It actually becomes increasingly difficult as national laws differ substantially. Moreover, an increasing number of authorities are lined up to the systems. This development also entails the danger that important information is held back by national authorities and shared only on a bilateral basis of trust. The issue of data control is also rendered problematic and complex as: •

•

Member states’ practice of designating ‘competent authorities’ shows huge discrepancies. This adds to the complexity of the systems and hampers the control of data flows. In addition, this discrepancy might create uneasiness and distrust among the authorities involved. Not every police officer or prosecutor, for instance, might feel comfortable with exchanging information with political bodies of other member states. Data protection standards differ between the various systems, not only because of the disparities of the current institutional setting of the EU (pillar division). Yet although data protection requirements are mainly taken into account, the comparative analysis of the databases and systems reveals a considerable lack of common standards. Furthermore, it appears as if this lack of common standards is only partially due to the fact that while there

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is a data protection directive governing the JHA issues falling under the ‘first pillar’, at present there is no comparable horizontal EU ‘third pillar’ data protection law (the 2005 Commission’s proposal to remedy this gap is making no progress in the Council). Also, it is to be noticed that different time limits for storing data are foreseen within the same subject area. The EU-Canada Passenger Name Record (PNR) agreement provides for a regular storage time of three and a half years and exceptionally a maximum of six years. In the EU-US PNR Agreement, the regular storage time has already doubled to seven years plus a further storage of eight years in a ‘dormant’ database. The EU’s own PNR proposal finally considers five years as appropriate but also intends to rely on a ‘dormant phase’ of eight years. Regarding all these disparities, it is unfortunate that the EDPS has not been assigned the competence to monitor consistently all EU databases and systems of information exchange in addition to the national supervisory authorities. In some databases the EDPS is involved (Eurodac, SIS II, VIS), in others it is not. The Blurring of Functional and Geographic Boundaries The technical systems and their progressive interconnection are being established with the aim of combating terrorism or other serious crime of a transnational nature (Bigo and Tsoukala 2008). But they are applied beyond terrorism and serious crime, they are targeted at minor offences and one might argue that their primary purpose was never terrorism per se. Boundaries between migration and asylum issues, border control, criminal law and counter-terrorism are becoming blurred. This contains the risk that the movement of people across borders is conceived and treated more and more as a security issue and a potential criminal activity. In addition, the majority of data in EU systems to which law enforcement authorities have access relates to TCNs. This entails that TCNs are more likely to be put under criminal investigation, simply because there is no comparable centralized EUdatabase for European citizens. In the case of SIS, this blurring is part of the system as it contains genuine law enforcement information (for example persons wanted for arrest) as well as genuine border control and immigration law information (for example banned TCNs). Nevertheless, in an effort to uphold the boundary each member state has to declare which of its authorities has access to which set of SIS data. Yet in SIS and in other databases and systems these efforts might prove fruitless as member states are essentially free to designate their ‘competent authorities’. In the case of Eurodac, for instance, data should only be entered and accessed by national authorities in charge of handling asylum requests. However, as the first coordinated inspection by data protection authorities has shown, in some member states Eurodac is operated partly or entirely by national police services. Furthermore, the VIS, the soon-to-be operational database on visa applicants, will not only be accessible by

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visa and immigration authorities, but also by ‘competent authorities’ of member states as well as Europol for the purpose of prevention, detection or investigation of terrorist offences and other serious crime. It seems that the primary purpose of these technical systems was to help manage the flow of information concerning foreign travelers. There is a clear pattern whereby all information systems − at first introduced to manage movement across borders − have become or are becoming criminal management systems. They treat all foreigners as if they were criminals or potential terrorists, mainly because they fall under the same technology of biometric identifiers. In other words, the technology that is used reinforces the rhetoric on the (in)security continuum (see Baldaccini et al. 2007). Furthermore, it is necessary to mention that some databases and mechanisms also allow (normally under certain restrictive conditions) the exchange of information with authorities of non-EU states and international organizations. This is the case for CIS and VIS, for the EU-US and EU-Canada PNR Agreements, the EU PNR proposal, Europol and Eurojust. One of the sticking points of the negotiation of the PNR Agreement − just to take one example that is illustrative of many of the particular initiatives toward a greater resort to databases − was likely to be the retention period of the data collected. The US wants the power to retain data for considerably longer than the three and half years under the current agreement. The justification for this seems to be that authorities would want to be in a position to reconstruct the life pattern of someone with no police record at all, not known to the authorities in any way, who suddenly features in a terrorist attack. In other words, data is to be held in the hope that it might one day be useful. Moreover, while implementing such technological tools, many other rationales are progressively found for their implementation. As technology advances, and ever more information is stored electronically, governments increasingly see the huge opportunity of using techniques such as data mining and profiling for law enforcement purposes. New government programmes have currently been unveiled (such as the US Automated Targeting Programme used for airline passengers). They use computer-generated threat scores with the aim of identifying those who may pose a risk to border security. Such programmes raise concerns because they bring innocent passengers under government suspicion without justification. They also raise concern about the intriguing attempt to anticipate an act giving primacy to intelligence-led logics (Bonelli 2005). Conclusions The research has shown that the imbalance between liberty and security at the EU level, and the underlying expansion of the field of security, is not the consequence of a security consensus at the European level. On the contrary, several types of actors, sometimes engaging in strategic alliances, have tried to contest it both from inside and outside the field of security: European ministries of foreign affairs

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suspicious of the increasing autonomy of national police officers, ministries of labor, national and European courts (ECtHR, ECJ), magistrates, humanitarian actors and so on. But precisely the latter actors have often been peripheral to the field of security. Simultaneously, the pervasive anticipatory intelligence and profiling rationale of the prevailing security practices at the European level, partially conditioned by a firmly entrenched belief in technological solutions to the issue of the interconnection of databases, have further undermined the perspective of a Europeanized justice. This is not to say that these processes are inevitable. Conversely, the identification of the different elements involved, combined with the analysis of the overall structure of the European field of the professionals of security, here serves to shed light on the remaining margins of maneuver that could be exploited from a policy-making perspective. Indeed the analysis of the structural factors having led to a predominance of illiberal practices and exceptionalism at the European level highlights that the relevant question in legal matters is not only how legal instruments can best be adapted to the current state of the threat, but also and more importantly how they can be used to restore a more balanced relation between freedom, security and justice.

Pooling of Sovereignty

TGF

Supranational level

Ad hoc creations: Treaty of Prüm

Europol

Eurojust

OLAE Frontex

(with only the 7 countries). Schungen Convention prior

Figure 3.1

The Legal Bases and the European Field of Professionals of Security

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Harmonisation

Corpus Juris / European Chief Public Prosecutor

OLAF Frontex 27 spaces of control

One space of control

Europol Eurojust

EAW

Treaty of Prüm Mutual recognition

Figure 3.2

The Position of Security Agencies and Units in the Process of Europeanization

Access to information

EUROPOL OLAF

EUROJUST FRONTEX

Operational capacity and competencies

European Magistrate networks (call of Geneva...)

Figure 3.3

Prerogatives and Competencies of the European Security Agencies

Mapping the European Field of Security Professionals Practices targeting categories through profiling/logic of depersonalisation

63 Proactive prevention/ pre-emption SITCEN

OLAF Criminal justice logic focusing on acts already committed

EUROPOL (liason files)

Intelligence logic focusing on anticipation

EUROJUST

Traditional policing

Figure 3.4

FRONTEX and EUROPOL (threat assessment, strategic analysis)

Practices targeting individuals

Surveillance of specific individuals

Position of the Security Agencies, Targets of Security Practices and Attitudes towards the Intelligence-led Rationale

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Chapter 4

Assuming Responsibility in the Changing Dynamics of Security? The European Security Strategy and the EU as a Security Actor beyond its Borders Esther Barbé and Elisabeth Johansson-Nogués

Introduction The 11 September is widely held as a point of inflection for the EU as a security actor (Howorth 2002; Haine 2008). Previous to that date the Union’s member states had tended to see security mostly from a national, rather than a European, vantage point and insecurity as stemming from sources close to their borders. The New York and Washington attacks and the ensuing changes in the international security environment would jar these views profoundly. National borders and policies were deemed increasingly insufficient to face large-scale transnational threats, and hence hopes were placed on joint approaches through the EU. Acting together by ways of the Union, also appeared to the member states as the only solution for making European voices heard in view of the US increasingly unilateralist foreign policy, and as the way to patch over the bitter intra-EU divisions which had arisen over the 2003 Iraqi invasion. In consequence, ‘a secure Europe in a better world’, as the ESS of December 2003 would have it, entailed that the Union was henceforth actively to assume its part of ‘the responsibility for global security’ and pay due attention to security challenges such as terrorism, proliferation of WMDs, regional conflict, state failure and organized crime.1 Moreover, in a defiant gesture to Washington’s unilateralist approaches, the ESS stressed that the key stone of the EU’s security actorness was to be ‘effective multilateralism.’ At one fell swoop the EU had thus gone from being a marginal actor in its member states security thinking, to becoming an increasingly central player with an ambitious global security agenda. However, what has happened since with the EU’s ambition of global actorness in the field of security? Is there any substance to the Union’s declarations in the 2008 Report on the Implementation of the ESS

1 Council of the European Union, A Secure Europe in a Better World − European Security Strategy, 12 December 2003.

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to the effect that ‘[t]he EU has made substantial progress over the last five years. We are recognized as an important contributor to a better world.’2 The present chapter will try to assess the post-ESS evolution of the Union as a security actor. The first section will briefly outline our conceptual framework. The second section will examine the EU’s actorness-related capabilities in terms of the three challenges related to the Common Foreign and Security Policy (CFSP) mentioned in the ESS (WMDs, conflict and state failure). The third section will look at actions taken at global and regional level (the area covered by the ENP)3 in terms of these three security challenges and highlight some of the obstacles encountered constraining the EU’s actorness. The final analysis will aim to assess whether the global actorness ambition on the balance ‘has made substantial progress.’ Conceptual Framework The ESS, as we have seen, was a manifesto by the EU and its member states to endow the Union with greater actorness in security matters. Actorness is essentially a measure of ‘a unit’s capacity to behave actively and deliberately in relation to other actors in the international system’ (Vogler 2002). However, this capacity to behave can be enabled or constrained as a consequence of three factors: opportunity, presence and capability (Volger 2002). Opportunity refers to whether the external environment is favorable or not to the agents’ active and deliberate action. Presence can be defined as the third party perceptions and expectations of the EU’s role in world politics. Capability refers to the capacity to design and execute foreign policy, both in developing a forward-looking policy agenda and in order to respond to challenges effectively. Actorness can be said to be positively enabled if there is sufficient supporting developments within each one of these three mitigating factors, otherwise actorness remains inconclusive or inexistent. Two other key concepts used here might also need further elaboration. The EU’s global actorness ambition in the security related context is, as we have noted, essentially embodied in the ESS term effective multilateralism. The premise of effective multilateralism is that the EU should pursue security by ways of ‘the development of a stronger international society, well-functioning international

2 Council of the European Union, Report on the Implementation of the European Security Strategy – Providing Security in a Changing World, S407/08, Brussels, 11 December 2008. 3 The ENP area encompasses Algeria, Armenia, Azerbaijan, Belarus, Egypt, Georgia, Israel, Jordan, Lebanon, Libya, Moldova, Morocco, Occupied Palestinian Territory, Syria, Tunisia, Ukraine and is chosen as a case study here for the importance attached to these neighbouring partners by the ESS, as a vital area in the pursuit of a more secure Europe.

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institutions and a rule-based international order.’4 A host of academic studies have since pointed to that in practice effective multilateralism entails a multilevel approach, whereby the EU networks at different levels with important global and regional partners to achieve its objectives in terms of security. At the global level, analysts hold, the Union is trying to achieve ‘intersecting multilateralism’ by attempting to build up international issue coalitions within international organizations and regimes, the UN system prime among them, in support of its security objectives (Volger 2002). At the regional level, the EU must work to uphold the rules established by the international organizations and regimes and, if necessary, act to defend these if broken. Biscop and Drieskens (2006) have called this ‘enforceable multilateralism’. Here we give the term a slightly broader interpretation, however, holding that, in addition to acting when rules are broken, ‘enforceable multilateralism’ can also be understood as including the Union’s day-to-day active advocacy and/or financial assistance to promote the active implementation of relevant international obligations in partner countries. We will use enforceable multilateralism in the context of the ENP area which, in being developed and put into practice just after the ESS was elaborated, has become the Union’s primary arena for pursuing enforced multilateralism in regards to WMDs, regional conflict and state failure.5 Enabling Actorness: Acquiring Capabilities If the EU prior to 11 September was a rather limited actor in international security matters, it has since experienced a quite substantial development of instruments and mechanisms of coordination. In part this expansion meant boosting existing policies and/or giving them an extended remit (geographical or on substance), but in part there were also some unprecedented departures. In particular, analysts have held the decision of the member states to use the European construction to address their common WMD concerns as ‘something of a historical breakthrough’ (Pullinger and Quille 2003). First, in terms of WMDs, the 11 September had alerted EU member states to the risk of WMDs, whether aimed at their people and/or their interests located in other countries of the world. For this reason, the European Council adopted in early 2003 a set of documents to guide the EU action, such as a Declaration on the Proliferation of WMDs, the Basic Principles for an EU Strategy against Proliferation of WMDs and a related Action Plan.6 On 12 December 2003 a 4 Council of the European Union, A Secure Europe in a Better World – European Security Strategy, 12 December 2003. 5 European Commission, European Neighbourhood Policy: Strategy Paper, COM (2004) 373 final, Brussels, 12 May 2004. 6 Council of the European Union, Basic Principles for an EU Strategy against Proliferation of Weapons of Mass Destruction, 10352/03, 19–20 June 2003.

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Strategy against the proliferation of WMDs set the EU’s more definitive approach and declared the objective to prevent, deter, halt and where possible, eliminate WMDs proliferation worldwide.7 There were also efforts during 2003 to boost the institutional side. In October that year the CFSP High Representative Javier Solana appointed Annalisa Giannella as his Personal Representative for non-proliferation of WMDs to coordinate, help implement and further develop the Union’s WMDs Strategy, and to give sharper focus to these issues in the dialogue with third countries. Finally, there was a Council decision (yet to be acted upon) to create a WMDs Monitoring Centre to create synergic effects between the Council, the Commission and member states in the fight against the proliferation of WMDs. Second, in terms of regional conflict, the EU perceives that ‘conflicts hamper our partners’ development, curtail trade flows and limit political cooperation. They foster extremism and create breeding grounds for terrorist and criminal activity of all kinds’.8 The 1999 Kosovo conflict had to some extent already kindled the EU interest for actorness in terms of resolving regional conflicts.9 However, in the aftermath of the 11 September existing EU instruments were strengthened and used more widely. The EU Special Representative, who previously to 2001 had only been used in the Western Balkans and the Middle East, now began to be employed in an extended geographical remit.10 In terms of the financial assistance, the Stability Instrument was introduced as a novelty as of EU Financial Perspectives 2007–13. The Stability Instrument is designed for a broad range of tasks, such as both for conflict prevention and post-conflict reconstruction. Finally, the 11 September was to create a powerful impetus for developing the EU’s military instruments and cooperation within the field of the European security and defence. The languishing EU Rapid Reaction Force concept (launched in 1999) would be given new lease on life in 2003 in the form of the smaller scale EU Battlegroups. While the Battlegroups have yet to be called upon, ad hoc EU stabilization forces have been deployed at a number of occasions since 2003 (in Africa and Asia).11 7 Council of the European Union, Fight against the proliferation of weapons of mass destruction – EU strategy against proliferation of Weapons of Mass Destruction, 15708/03, 10 December 2003. 8 Benita Ferrero-Waldner, ‘The European Neighbourhood Policy – making Europe more secure’, Speech to the Kangaroo Group, European Security and Defence, European Office of Land Baden Württemberg, Brussels, 28 May 2008. 9 See, for example, European Commission, Communication from the Commission on Conflict Prevention, COM (2001) 211 final, Brussels, 11 April 2001. For a discussion of the document, see Barbé and Johansson (2001). 10 Eleven EU Special Representatives cover today current conflicts in the following countries or regions: Afghanistan, the African Great Lakes Region, the African Union, Bosnia and Herzegovina, Central Asia, Kosovo, the former Yugoslav Republic of Macedonia, the Middle East, Moldova, the South Caucasus and Sudan. Source: Council of the EU . 11 For a detailed discussion of the tribulations of the EU Battlegroups concept, see Barbé and Johansson-Nogués (2008, 295–314).

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Finally, after 11 September the EU and the rest of the world would wake up to the problems related to state failure, state weakness or fragility, that is states which are unable to provide adequate services, protection and the rule of law for their citizens. The ESS would state that ‘the lack of governance in the state encourages instability and a number of threats for all the states of the international community.’12 For this reason, the Union made governance, and specifically ‘good governance,’ a staple in its external relations. Good governance was to be encouraged through anti-corruption campaigns in partner countries and the insistence on transparency in public finances by ways of bilateral agreements or joint political declarations. Moreover, the EU and its member states have established an international precedent in terms of instruments, by offering police, border (customs and surveillance) and justice missions under the ESDP to interested partners (for example Georgia, Moldova, Palestinian Authority). The EU security actorness was, in sum, clearly enabled in the immediate 11 September aftermath. If the EU member states had previously looked elsewhere for responses to security challenges, the Union was now considered as holding great potential for security action. The possibility for ‘politics of scale’, together with the Union’s own experience in multilateralism through the European construction and the Commission’s financial assistance, appeared to hold the key to unlocking the dynamics needed for addressing global security challenges of the day. This faith in the EU unleashed considerable intra-EU effort in developing a forwardlooking policy agenda and an adequate instrumental capability. Effective Multilateralism: Enabling Actorness … or Not? Having acquired an extensive capability arsenal, the EU now needed to mobilize its resources in favor of an efficient strategy to address the challenges inherent in WMDs, conflict and state failure. The EU’s response across the different security ambits was going to be very similar: an attempt to establish effective multilateralism globally and regionally. Effective Multilateralism in Terms of WMDs First, the implementation of the EU’s WMD strategy at global level was to be pursued in a large number of areas and international fora: the UN General Assembly, Security Council and related regimes such as the Organization for the Prohibition of Chemical Weapons (OPCW), the Comprehensive Nuclear Test-Ban Treaty (CNTBT) and the Biological and Toxin Weapons Convention (BTWC); other relevant actors such as the International Atomic Energy Agency (IAEA), or informal multilateral arrangements in the field of export controls, most notably the Nuclear Suppliers Groups and the Australia Group (Kienzle 2008). However, 12 Council of the European Union, A Secure Europe in a Better World − European Security Strategy, 12 December 2003.

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there have been several roadblocks in terms of networking with these international organizations or regimes, hampering the smooth implementation of these measures. In the period between 2000 and 2008 the EU clashed repeatedly with the George W. Bush’s administration on concrete details of non-proliferation regimes. The US, for example, refused to join the EU’s efforts on strengthening the chemical and biological conventions with verification mechanisms. Washington has on several occasions even provided the sole opposition in the international community to proposed WMD-related issues, such as over whether to strengthen the CNTBT, the prohibition of development of new types of WMD, the prevention of an arms race in outer space or the transparency and confidence-building measures in terms of non-proliferation, and, in a broader context, the relationship between disarmament and development (Johnson 2005). The US clear preference for unilateral foreign policy pursuits in the period 2001–08, and the little inclination of successive US ambassadors to the UN to support international conventions, has clearly stripped the EU of the crucial support needed to ensure that intersecting multilateralism could make an advance in international non-proliferation actions. Second, at the regional level, the non-proliferation of WMDs was awarded a prominent place in the political dialogue component of each ENP Action Plan as they were elaborated. The ENP Action plans are essentially non-binding political statements of actions. However, they can be considered as part of the Union’s enforceable multilateralism approach given that they promise financial and technical assistance to partners willing to comply and threat to withhold assistance to non-compliers. The ENP Action Plans have, in particular, encouraged partner countries to meet their international obligations in the WMD-related regimes, with special mention of UN Security Council Resolution 1540,13 the CWC and the BTWC. However, the Union has also targeted individual partner countries to press for regulation of dual-use goods, or the implementation of cooperative threat reduction programs in the former Soviet Union space (Kienzle 2006). On a practical level, the ENP-related cooperation on WMDs has, nevertheless, experienced difficulties with providing real added value over pre-September 11 non-proliferation programs. One major obstacle is the lack of signposts for charting the way ahead for any ENP partner willing to work for non-proliferation. The Action Plans make no clear reference to how export controls and fighting trafficking should be undertaken or checked. Moreover, the Action Plans contain little or no indication of what the EU expect from its ENP partners in terms of concrete non-proliferation measures and in what timeframe the Union would like to see these undertaken. Perhaps the most notable absence in terms of collaboration on non-proliferation projects are the lack of systematic thinking or synergies on 13 The Resolution UNSC 1540/04 was elaborated by the US, the UK and France in the framework of the UN Security Council and calls upon all states, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery and related materials.

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measures related to the strengthening of the rule of law, border control and customs expertise.14 Such notable omissions have led Bauer (2005), in a major survey on WMD export control cooperation between the EU and third countries, to conclude that, apart from Russia, there is simply ‘no overarching [EU] strategy for export control outreach and assistance with countries that do not have candidate status.’ Another important limitation in terms of the ENP’s WMD actorness is the difficulty in providing a true added value over pre-September 11 efforts. The inclusion of a WMD-related paragraph into the EU-Israel ENP Action Plan, for example, can be seen as trying to advance the objective of the ENP and the Barcelona Process for a Union for the Mediterranean of pursuing ‘a mutually and effectively verifiable Middle East zone free of WMD.’15 However, a close reading of the document reveals that EU-Israeli dialogue and cooperation in this context will be developed with due regard to the Israel’s Vision on the Long-term Goals of Regional Security and Arms Control Process in the Middle East (1992) as ‘appropriate.’16 The reference to the Israeli Vision – a staple in Israeli WMD thinking whereby such arms are allegedly considered necessary as means of deterrence and, if needed, defense of the Israeli territory – will inevitably restrict the scope of EU-Israeli WMD cooperation and in essence reaffirm the status quo ante. The failure to make a breakthrough on Israeli WMDs thinking also work in counter to efforts to strengthen international nonproliferation regimes in recent years. The Israeli WMDs have been a ‘central choke point’ − as one analyst defines it − in successive NPT review conferences in order to achieve a more global commitment to the limitations of these weapons and/or create a momentum in international disarmament fora in favor of non-proliferation (Quille 2005). The result has been a continued heterogeneity among EU’s partners in terms of implementation of WMD-related international obligations similar to the 1990s. The WMD Representative Giannella has lamented the scarce progress on WMD non-proliferation regimes due to the ‘underlying climate of mistrust’ and ‘differing understandings and varying perceptions of the obligations and benefits of the system.’17

14 For example, the partner countries could have been asked to identify concrete projects for boosting anti-smuggling customs and police units in neighbouring countries. Or, in the case of export controls, a first necessary step could have been a joint or individual analysis of the existing national export control mechanisms and an overview of the domestic legislative framework. 15 A Middle East zone free of WMD is a jointly defined objective in the EU-Palestine and EU-Jordanian ENP Action Plans. EU-Jordan Action Plan, undated: 6; EU-Palestinian Authority Action Plan, undated: 5, available at as consulted 22 June 2006. 16 EU-Israel Action Plan, undated: 6, available at . 17 Annalisa Giannella, untitled speech delivered at the Seminar on Nuclear Proliferation, Madrid, 6 November 2007, available at < http://www.consilium.europa.eu/ uedocs/cmsUpload/2007-11-06_Madrid.pdf>.

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Effective Multilateralism in Terms of Regional Conflicts First, the EU has tried to pursue conflict resolution by ways of intersecting multilateralism with international organizations (UN, NATO, Organization for Security and Cooperation in Europe) and with the US. In terms of the Middle East, efforts have been channeled by ways of the UN and the Middle East Quartet. However, the Europeans have frequently found the US a difficult coalition partner whether in the UN-setting or in the Quartet. The US has mostly treated the EU as the paymaster of the Middle East peace process as opposed to an equal partner in the pursuit of a sustainable peace settlement. The EU-US collaboration over the conflicts in the post-Soviet space and in the framework of the OSCE has, in contrast, been more fruitful. Within and at the margins of the OSCE, the EU and the US have worked fairly closely together to try to find satisfactory solutions to the various conflicts which affect Eastern Europe. Joint and successful diplomatic pressure by Washington and Solana was, for example, applied on the Moldovan government in 2004 not to accept the Kozak memorandum.18 In Eastern Europe the US has also supported a greater EU involvement, whether in the form of an EU observer role in the ‘five plus two’ format in regards to the Transnistrian imbroglio, or the discrete behind the scene contacts with the OSCE Minsk Group for the Nagorno-Karabakh, to try to settle these conflicts.19 The US has also welcomed the EU closer association with the conflict settlement formats in future ENP partners, such as Georgia, in Armenia, Azerbaijan (Nagorno-Karabakh) and in the 2008 transatlantic cooperation in the aftermath of the Russian-Georgian war. Second, at the regional ENP level, there is perceptibly a higher engagement on the part of the EU in most conflicts afflicting the ENP area, whether the Middle East or Eastern Europe. In the Middle East, one might note the expanded EU Special Representative’s mandate to include meetings not only with high-level governmental officials on both sides, but also to promote regular meetings with Israeli opinion leaders (press, academic, think tank representatives) and civil society groups to enhance the EU’s image in Israel in view of boosting the EU’s standing in that country as an acceptable broker in the conflict (Pace 2006). Moreover, two ESDP missions have been launched: the European Union Border Assistance Mission (EUBAM) Rafah at the border crossing between the Gaza Strip and Egypt and the EU Police Mission in the Palestinian Territories (EUPOL 18 The Russian-backed Kozak memorandum would have given the Transnistrian region an over-powering role within a fragile Moldovan state system, to the detriment of the Moldovan side. 19 The ‘five plus two’ negotiation format is, since September 2005, composed of representatives of Chisinau, Tiraspol (Transnistria), Russian Federation, Ukraine, and the OSCE, together with two observers: the US and the EU. The ‘Minsk Group’ is headed by a Co-Chairmanship consisting of France, the Russian Federation and the US. Furthermore, the Minsk Group also includes the following participating states: Belarus, Germany, Italy, Portugal, the Netherlands, Sweden, Finland, Turkey as well as Armenia and Azerbaijan.

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COPPS).20 The Commission has also stepped up its involvement in the conflict areas since 2003 and significant funds have been earmarked for civil society activity aimed to bridge differences between Israelis and Palestinians. In Eastern Europe, the European Commission has supported peace building mechanisms such as economic rehabilitation, demining activity as well as confidence building activities for NGOs in southern Caucasus (Lynch 2006). The EU has even shown proof of innovation and willingness of applying non-orthodox foreign policy instruments, such as the use of border guard training and monitoring missions (Jeandesboz 2008). In September 2005 a modest EUSR team was dispatched to Tbilisi with the task to reform and train the Georgian border guard (Lynch 2006).21 In November 2005 a Commission-led, 50 experts strong, EU border assistance mission was launched on the Ukrainian-Moldovan border, at the Transnistrian section, to monitor the flow of goods across that border.22 Such EU-sponsored activity, however limited in scope, which may help increase transparency and confidence-building between two conflicting parties, as well as palliate the soft security threats usually generated by an unguarded border area (smuggling, organized crime), is a first in international relations (Barbé and Kienzle 2007). However, despite palpably higher engagement from the Union on conflicts in the ENP area, two elements speak against a significant EU ‘actorness’ in terms of regional conflicts. First, there is certain resistance against greater EU involvement in the resolution of these conflicts coming from actors involved in the conflicts whether directly or indirectly (for example Israel or Russia). Tel Aviv’s view is that the US, not the EU, is the best guarantor that Israeli preferences will be safeguarded in any eventual peace agreement with the Palestinian Authority. The Union is perceived by some sectors of the Israeli society as too biased in favor of Palestinian interests and too fragmented as an international actor to be a solid backer of a peace accord. Moscow, on its hand, has since long insisted that it has, what one analyst has termed, a ‘peacekeeping monopoly’ in Eastern Europe along with being the actor best placed to solve the frozen conflicts in the area 20 The objective of EUBAM Rafah is to work to increase the capacity of Palestinian Authority services at the border crossing to Egypt, to build confidence, and to monitor the implementation of the Framework Agreement between the two parties allowing for the reopening of the border. The EUPOL COPPS has the objective to reform and establish sustainable and effective policing arrangements in the Palestinian Authority. 21 The EU Special Representative (EUSR) border guard specialist team is made up of nine persons. Some EU member states had pushed for a fully-fledged military EU operation to monitor the Russian-Georgian border. However, the proposal had to be shelved in view of Russian objections. 22 The aims of EUBAM Ukraine are: to assist Moldova and Ukraine to harmonize their border management standards and procedures with those prevalent in EU member states; to assist in enhancing the professional training of the Moldovan and Ukrainian customs official and border guards at operational level; to improve the capacity for risk analysis; to improve cooperation and complementarity between the border guard and customs services between each other and with other law enforcement agencies.

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(Mikhelidze 2009). Russia has, for this reason, on repeated occasions frowned on the EU’s attempts to engage in conflict resolution in an area which Russian President Medvedev labels of Russian ‘privileged interests.’ Second, another element constraining actorness is that the Union’s member states have very different views among them when it comes to resolving these conflicts. The close ties between determined EU member states and determined conflicting parties make a solid and sustainable EU role in conflict resolution a tenuous proposition. The EU involvement in the Middle East Quartet has not impeded EU member states from pursuing their own bilateral diplomacy in terms of the Middle East conflict, adding to the fragmentation of the EU discourse. Another illustrative example can be drawn from the aftermath of the Georgian-Russian August war of 2008. While the EU first reacted as a bloc condemning Russia’s recognition of independence for Abkhazia and South Ossetia and by expressing full support for the French-brokered peace agreement, divisions would begin to emerge just months later over the proposed EU-Russia Partnership Agreement.23 Negotiations with Moscow on the Agreement had been frozen when the RussianGeorgian hostilities broke out, and at the end of the conflict the EU took the view that Russian troop withdrawal from South Ossetia and Abkhazia was a necessary prerequisite for resuming EU-Russian talks. This position was later discretely dropped as several member states argued in favor of reopening negotiations with Russia as a way to relaunch EU-Russian relations. Such intra-EU divisions and backtracking on declared principles clearly raises important questions in regards to the Union’s ambitions to be a steadfast broker of peace, not only in Georgia, but in other frozen conflicts in Eastern Europe. In the words of the Lithuanian Deputy Minister of Foreign Affairs Zygimantas Pavilionis, ‘we are questioning the timing and we’re questioning this U-turn of our [EU] positions. ... Is it the right signal to send to Kiev, to Moldova, to Belarus, even to the Baltic States today, that by military force you can change borders?’24 Effective Multilateralism in Terms of State Failure First, in its ambition to pursue intersecting multilateralism on state failure, the Union has tried to concert strategies with the US by ways of the UN and the Group of Eight (G8). The Broader Middle East and North Africa (BMENA) initiative, which came into being at the G8 summit in Sea Island in June 2004, was meant to coordinate transatlantic efforts on improving governance and socioeconomic development in this vital area for both American and European interests. However, although the BMENA initially generated some expectations 23 Council of the European Union, extraordinary meeting, General Affairs and External Relations 12453/08, 13 August 2008. 24 ‘EU Overrides Lithuania to Re-start Talks on Russia Deal’, TopNews.in, 11 November 2008, available at < http://www.topnews.in/eu-overrides-lithuania-restart-talksrussia-deal-286842>.

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that US hard power was to fuse with EU soft power into a successful approach, the initiative came to nothing for the European concern that the BMENA would upstage the Union’s ENP launched the same year. In terms of Eastern Europe, EUUS cooperation has not taken the form of a joint project similar to that attempted in the Mediterranean, but a division of labor has essentially emerged to reform and strengthen state structures in the area. The US supplies military assistance and, by ways of the NATO’s Euro-Atlantic Partnership Council and/or Partnership for Peace structures, training and military security sector reform for interested Eastern European partners. The EU, in contrast, has labored on the front of civilian security sector reform and governance matters. The US and EU efforts in the area can thus be seen as fairly complementary of each other, lending support to state-building in weak states in different ways. However, the transatlantic efforts can hardly be held as coordinated, which objectively would be in the best interest of the partner country, rather more often than not the US-EU assistance has been lacking in the crucial synergy needed to truly encourage reform. Second, in terms of enforceable multilateralism with partner countries, the EU’s efforts to combat state failure have focused on the eradication of corruption and the strengthening of institutions within the JHA area.25 The ENP Action Plans therefore all include long, detailed sections devoted to the strengthening of rule of law and democratic practices; cooperation in the field of FSJ, including border management. However, the strong focus on JHA arguably left other facets of state failure, for example public service provisions, education and so on, relatively unattended, and lamentably to Pardo ‘good governance’ has become a simplistic synonym for absence of corruption. The same author notes that the relation between security, good governance and development is ‘intertwined and constitutive’ and hence cannot be taken in isolation (Pardo 2008, 5).26

25 There are no states in the ENP area classified as ‘critical’ in terms of failing, however, there are a number which are considered borderland cases or states ‘in danger.’ One survey, the 2009 Failed States Index, compiled by the Fund for Peace and the journal Foreign Policy, points to three ENP partners which find themselves in the danger-zone: they are Lebanon, Georgia and Syria. The Report defines a ‘failed state’ as a state whose government is losing physical control of its territory or lacks a monopoly on the legitimate use of force. Apart from loss of sovereignty of state-territory, other symptoms of state failure include the erosion of authority to make collective decisions, an inability to provide reasonable public services, and the loss of the capacity to interact in formal relations with other states as a full member of the international community. Fund for Peace and Foreign Policy, 2005 Failed States Index, available at . The findings are largely consequent with to other surveys such as the World Bank LICUS. 26 For an eminent overview of EU’s role in terms of security sector reform, see Churruca Muguruza (2008, 79–117).

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From the ESS to the Report of Implementation: Is the EU Global Security Actorness Enabled or Constrained? In the light of the above survey of the EU’s activity in the three areas of security explored here, it is possible to affirm that although there has been a concerted attempt to create some new instruments and provide additional mechanisms for coordination between member states on WMDs, regional conflict and state failure, in overall developments have not quite been in tune with bold statements affirming that ‘[t]he EU has made substantial progress over the last five years.’27 Our evaluation is that three factors explain a very mixed record of action. First, whether an ‘opportunity’ for EU global security actorness truly opened up in the aftermath of 11 September or not can to some extent be contested. The ESS presented a worldview based on the belief that growing global interdependence would automatically generate demands from the international community for global organization, norm-setting and regulations at the seat of existing international organizations such as the UN and others. However, as a study by the EU Institute for Security Studies (EUISS) points out, rather than being the single, strong international society centered on Western political, economic and cultural predominance envisioned by the ESS, the international system is and has been increasingly characterized by fragmentation and multipolarity (Grevi and Vasconcelos 2008). As new and resurgent regional players (Russia, China, India, Brazil) strive for more international influence in the global economic and/ or international security context they do so within the UN system or established international regimes, as well as to a large extent outside. The EU’s and ESS push for effective multilateralism might therefore not have been particularly apt for this increasingly heterogeneous international system. The unitary international system which would have enabled the EU’s global security actorness ambitions by ways of effective multilateralism was, in other words, inexistent. Second, the EU global security actorness ‘presence’ in terms of the third party perceptions and expectations of the EU’s role in world politics can be said to be mixed in the period we have surveyed. As noted, effective multilateralism depends on the willingness of non-EU actors to collaborate with the Union and it is fair to say that the EU has put in a considerable effort to create and financially encourage sustainable networks with partners since 2003, both at the global and regional levels. However, the EU’s success record at the global level can be held as fairly meager as a consequence of that intersecting multilateralism meant heavy reliance on US support. The ESS had essentially banked EU actorness on that ‘[a]cting together, the European Union and the United States can be a formidable force for good in the world,’ but with George W. Bush at the helm in the White House transatlantic relations encountered difficulties on many issues. As a consequence, 27 Council of the European Union, Report on the Implementation of the European Security Strategy – Providing Security in a Changing World, S407/08, Brussels, 11 December 2008.

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the necessary mutually reinforcing EU-US cooperation whether in terms of global institutions or over the Middle East and North Africa simply did not come about.28 The cooperation in Eastern Europe was more fluid, but can not be held as coordinated or aiming for synergies. In terms of enforceable multilateralism the EU’s security ‘presence’ in the ENP area is much more ambiguous and wrought with contradictions. The ENP Action Plans appeared to make a strong statement for EU global security actorness. Moreover, there have been a number of EU contributions to international security in the ENP area which can be given a positive reading, such as the over the Kozak memorandum, the French-Finnish peace brokerage over the 2008 Georgian-Russian August war and, arguably, the different border, rule of law and civilian monitoring missions in Georgia, Moldova and the Palestinian Authority. However, at the same time a muddled EU approach (for example for lack of signposts and intra-EU divisions) and the lack of coordination with other actors in the area has garnered the EU a lesser positive rating among its ENP partners. A third and final factor which explains the more than mixed record of the Union’s global security actorness can be found in ‘capability.’ In terms of the Union’s capacity to design foreign policy and to develop a forward-looking policy the ESS in itself is a positive statement of actorness. The document expresses a rather sophisticated security analysis of the international environment.29 However, at the same time such refined analysis creates a complex inter-linkage between different categories of security challenges which in turn does not facilitate the development and/or coordination of the necessary means to address them effectively. The complexity, linked with the fact that there seemed to be considerable impatience within the EU to get the Union started as a security actor – as Solana would have it ‘[t]he world is not standing still and there is no time to lose. The Union has to respond quickly and gain legitimacy by action’ (Solana 2006) – there was no time to put adequate thought into how all the new instruments and mechanisms were to fit together. Adding insult to injury, the Treaty Establishing a Constitution for Europe which was to supply the institutional and legal structure with regard to many of the forthcoming instruments or mechanisms failed, and Treaty revisions since are still in limbo. This uncertainty has meant that the EU 28 Council of the European Union, A Secure Europe in a Better World European – Security Strategy, 12 December 2003. 29 Such as for example expressed by Solana that in the changing, post-11 September world ‘[g]lobalization brings more freedom and wealth, but if not properly managed it can also generate new frustrations. We must be alive to the prospect of new combinations of threats: terrorism capitalizing on the persistence of regional conflicts; criminal organizations acquiring weapons of mass destruction, whether through theft, collaboration with rogue States or the collapse of State structures; collusion between fundamentalists, cyber-terrorists and international criminal organizations,’ Javier Solana, The EU Security Strategy: Implications for Europe’s role in a changing world, Speech S0230/03, Berlin, 12 November 2003, available at .

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and its member states have postponed difficult coordination issues on instruments designed to address WMDs, conflict and state failure to the future and among EU institutional actors. The absence of firm decision making on many of the necessary complementary mechanisms and coordination since 2003 has meant that the work in these three areas developed has proceeded on an ad-hoc basis and not resulted in a fully-fledged, forward-looking and effectively functioning policy. Instead longstanding Council-Commission institutional turf wars over competencies have resulted in open battles, such as for example over the control of the WMDs Monitoring Center (Meier 2008), or over the Ukrainian-Moldovan EU BAM.30 Another example on that adequate institutional backing and coordination for WMDs, regional conflict and state failure was missing is that at times different EU actors acting in the same country or area have failed to harmonize their activity to achieve synergies and an effective response to local challenges. Perhaps the case where this has been the most noticeable is in the context of the EU’s state-building efforts in failing states, which appear to be a concept which has fallen into the existing cracks between TEU, institutions and member states. The Union’s failure to properly define the concept, and identify the means to address it, has left state failure as a security issue rather orphaned. Instead parallel, not always mutually enforcing approaches have been pursued. The Commission has used its established lines of cooperation towards state-building and good governance, while the Council has focused on the JHA component (mostly repressive measures against undocumented migration, asylum, return directives and so on) (Pardo 2008, 5). These inter-institutional disagreements and/or parallelisms of course constrain the EU’s ability to respond to challenges effectively. In light of the above, perhaps it is fair to say that while there are factors pointing to greater EU global actorness on security-related issues (development of coordination and instruments), there are still a lot of factors constraining the EU’s actor capability. External factors which, in particular, appear to indicate constraints on the EU security actorness are the dependency on the political initiative and support of the US and the lack of success of making a qualitative leap forward in ENP partner dialogues and cooperation at the regional level. Internal factors which constrain actorness are the uncertainties surrounding the Lisbon Treaty and intraEU contradictions, whether between the Commission and the Council, or among EU member states. Thus further work needs to be done for the EU’s global security actorness to attain the ‘substantial’ impact over the broad remit of international securityrelated-challenges it aspires to. However, there was little in Solana’s report on the implementation which pointed to a radical departure from this stagnated state of affairs. Indeed, much to the contrary, more fragmentation seems to lurk on the 30 The Commission had insisted on that the Ukrainian-Moldovan EU BAM should be a pure communitarian mission (that is EC BAM instead of EU BAM), but it had to finally concede to a double-hatted head of the EU BAM, the special advisor to the Council’s appointed EUSR to Moldova. See Barbé and Kienzle (2007, 517–36).

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horizon. For example, the dual 2004 and 2007 Eastern enlargement has added new security challenges to the European agenda. The Eastern EU member states have called attention to new challenges such as those related to energy dependence or cyber security. These concerns are, however, not necessarily shared by other EU member states which might want to prioritize focus on ESDP missions in former colonies, global warming and/or international terrorism. The focus of the EU’s security debates can therefore be said to have widened and this may cause further disparity in the EU’s security actorness. Therefore hope must be placed on the eventual adoption of the Lisbon Treaty, the appointment of the new CFSP High Representative, and a newfound political will among the EU-27 to ensure that existing EU capabilities are better coordinated and executed and that the EU security agenda once again finds a greater focus to avoid the EU’s efforts spreading out too thin. Conclusions: Global Security Actorness or … ? We have argued here that 11 September and the related changing security environment did indeed help define the EU as a security actor discursively – most poignantly in the form of the ESS – and provided the backdrop/motivation for the elaboration of a host of new EU security instruments and mechanisms. As a consequence, the most promising development has been an EU more willing and able to engage worldwide on important security matters such as WMDs, regional conflict and state failure. The EU can thus be held as having attempted to assume its responsibility for international security in the changing dynamics of security in the aftermath of 11 September. However, as we have also sustained, the cumulative impact of the EU as a security actor is so far inconclusive. There are factors related to ‘opportunity’, ‘presence’ and ‘capability’ which have constrained the EU actorness to the point that many of the objectives in the ESS today remain unfulfilled. However, the mixed result of the period under survey here does not close any doors for future and fully enabled EU global security actorness. The Union can certainly benefit from the experience gathered so far as it faces a rapidly evolving international security environment at the end of the first decade of the twentyfirst century. ‘Opportunity’ is often imposed on an actor, but can also to some extent be actively created. If the EU manages to harness the forces of the changing international order and pursues in earnest its ambition to engage emerging and resurgent regional players on questions of how to organize the globalized security environment, it may be able to create ‘opportunity’ for actorness. The collaboration among multipolar regional players, the EU among them, might even eventually produce a different type of multilateral cooperation. In such a scenario the Union’s long experience of multilateral contexts can become a decisive political advantage over other actors and hence the Union’s global security actorness stands to be boosted.

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The EU can also usefully engage global and regional partners in a view to change the Union’s ‘presence’ in their eyes for the positive. For example, the wish of the Obama administration to ‘reset’ the US foreign policy might contribute to an upgrading of the US appraisal of the EU as an actor, if the Union shows itself willing to positively contribute to solving new and old security challenges in which the US has a stake as well. It is to be noted that the EU can no longer rely on the US for international security as much as it did in the past decades. The US, doubly weakened by financial crisis and the legacy of the Bush administration, will have to set its own house in order before it can once again aspire to be a leading actor in the global security environment. The Union’s global security actorness of the future will hence probably hinge less on its ‘presence’ in Washington, at least in the short term, than it did in the past. In terms of ‘presence’ at ENP level, as well as EU actor ‘capabilities’ overall, the EU actorness will surely stand to be enhanced if the Lisbon Treaty enters into force and if there is political will among EU member states to explore the possibilities for using the European foreign and security policy in a more concerted fashion. Moreover, if the new framework policies for neighboring countries – the Union for the Mediterranean and the Eastern Partnership – succeed, where the ENP failed, to convince neighboring partner countries of the value of closely collaborating with the EU on WMDs, regional conflict and state failure, the EU ‘presence’ and ‘capabilities’ will blend together in support of the EU’s claim to global security actorness.

Chapter 5

The Security Dimension of EU Policies between Legal Provisions and Living Practice: The European Council as the Key Wolfgang Wessels, Franziska Bopp and Cyril Gläser

Introduction Within the overall objectives of CHALLENGE and the specific aim ‘to facilitate a reconceptualization of the transformation of the international order and the place of the EU within it’ (Bigo et al. 2007a, 2), the approach of the Jean Monnet Chair for Political Science at the University of Cologne has concentrated on the analysis of the EU’s ability to speak with a voice of its own, especially with regard to the impact of the terrorist attacks of 11 September, the wars in Afghanistan and Iraq respectively and the process of globalization. These events have changed the international security environment and challenged the EU’s CFSP and ESDP. Thus, the focus has been on the changing security context in the international system and the EU’s responses to it. The EU’s changing international role and the related question of its identity form essential parts of our objective to find out the implications of the institutional and normative patterns of globalization in the fields of foreign affairs, defence and security policy. The analysis of the EU’s actorness is thus a central element of our research activities. In the academic and political debate, several attempts have been made to conceptualize the EU’s nature and identity, ranging from ‘civilian power’ (Duchêne 1972; Bull 1982; Whitman 1998; Blauberger 2005), ‘superpower’ (Galtung 1973),1 ‘l’Europe puissance’ (Solana 2001; Lefebvre 2004), ‘soft power’ (Nye 2004), via ‘peace power’ (Ehrhart 2005), ‘normative power’ (Manners 2002; 2006; Scheipers and

1 See also Tony Blair’s speech to the Polish Stock Exchange on 6 October 2000, available online at accessed 12 December 2007.

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Sicurelli 2007), ‘model power’,2 ‘smart power’3 to ‘humanitarian power’ (Meyer 2006) and ‘ethical power’ (Aggestam 2008). Our research in this area has concentrated mainly on the institutional aspects of the EU’s cooperation in foreign and security policy as they show how the European member state governments perceive security and security threats, and how they try to construct a common response to the challenges of globalization, thus forming certain governance patterns in the field of security. In this regard, the analysis of the characteristics of treaty reforms – irrespective of their entering into force – provides us with helpful insights. Against this background, the Jean Monnet Chair has undertaken extensive research on the foreign policy provisions of the Constitutional Treaty as well as the Lisbon Treaty (see Diedrichs and Tekin 2006; Wessels and Bopp 2008a). It may be recalled in this respect that both treaties provide for the removal of the pillar structure and the establishment of an integrated framework in order to manage security issues more coherently. Thus, an important part of the research concentrated on the impact of the foreseen ‘de-pillarization’ on the EU’s concept of security. The research on a comprehensive approach of European foreign policy strategy and the EU’s capacity to speak with a voice of its own also included an in-depth analysis of the evolution and perspectives of the CFSP architecture in light of different theoretical approaches. The European Council as the Key Since the creation of the European Council in the 1970s, no other institution has shaped the fundamental developments of the European construction as profoundly as this institutionalized summitry (Wessels 2008). The European Council plays a key role as ‘constitutional architect’, agenda-setter and formulator of concepts and guidelines as well as the representation of member states’ preferences. The European Council has been an important actor shaping the EU’s security perceptions and thus possible patterns of common governance of security policy. The heads of state or government in the European Council frame the mental map(s) of the visions and missions of the EU in terms of the foreign policy identity. The Presidency conclusions and the resolutions of the European Council are both mirrors of the conceptual thinking and setters of general guidelines of the EU.

2 See David Miliband’s speech at the College of Europe, Bruges, on 15 November 2007, available online at accessed 22 April 2009. 3 See Ferrero-Waldner’s speech Die EU-Außenpolitik nach Lissabon delivered in Vienna on 25 January 2008, available at accessed on 12 February 2008.

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Remarks on Validity and Method Though we know that declarations of the European Council and the conclusions of its Presidencies are at most occasions not the product of intensive debates among the chefs who quite often just ratify the text produced by high civil servants or ministers and sometimes they even do not mention issues of highest importance in the debates, we take them ‘serious’ as significant indicators for formulating and shaping polices and understanding concepts and ‘Leitbilder’. Their impact does not depend at all on whether and how the members of the club have discussed the texts. Though the texts do not have any direct legal weight we could expect a special authority and legitimacy based and linked to these words. We take them as top-down ‘messages’ prepared by the lower levels for the top to be send back as authoritative guidelines. They are used to document and manifest: •

• • • •

•

Mapping of the concerns of the heads of state or government as a mirror of the national and European debates: the text from the top are ‘representative’ for the political life – less in the diplomatic formulations as to earmark the issues on the agenda/table; ‘Snap shots’ of the political agenda – at least three times per year – add up over three decades to a political events history. They tell us what the political top thought to be of importance for their activities and work; Shared perceptions, analysis and assessments as well as controversies which add up to a narrative told by the actors themselves in a specific language; The occurrence of the mentions will tell us the emergence and evolution, the ‘career’ of issues; The collective preferences of the heads of state or government, the top representatives of the member state on major policy fields. An evolution – continuity and discontinuity – of the integration-related beliefs, integration strategies, visions and missions of this body over three decades. How did the club of changing office-holders shape the integration construction with their wording or perhaps how they tried to avoid any ‘integration ideology’; De facto decisions for the policy and system making as we assume prelegislative and pre-constitutional functions.

We undertook an in-depth analysis of the Presidency conclusions and other relevant documents. It was based on a computer assisted quantitative and qualitative content analysis employing the software MaxQDA2 (see Früh 2007; Lewins and Silver 2007; Bryman 2008) of a full sample (English versions) of the Presidency conclusions of the European Council from 1975–2008 (109 sessions, including extraordinary meetings) and the communiqués of the meetings of the heads of state or government from 1969 to 1974.

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The Union’s CFSP: Historical and Theoretical Perspectives on a Sui Generis Policy Field The role of the EU as a global actor in the international system has always been a central part of the European integration process. The CFSP and its antecedent, the European Political Cooperation (EPC) are key elements of the European integration and significant points of reference of national foreign policies especially due to the rapid developments in this field since the end of the 1990s, leading some authors to speak about an ‘almost revolutionary change in member state commitments’ (Smith 2003, 556). Thus, the provisions for the CFSP and, increasingly also the ESDP, can be regarded as a cornerstone in the treaty revisions. The subsequent treaty reforms in the area of CFSP and ESDP indicate the EU member states’ perceptions of security (threats) and their institutionalized responses to create and reform governance patterns in security policy. Focusing on the EU’s ability to speak with a voice of its own in terms of external action and based upon the information and data collected by the researchers at the Jean Monnet Chair, a paper on ‘CFSP after the Constitutional Treaty: The Stakes for the Future’ was drafted and subsequently published as a CEPS Working Paper (Diedrichs and Tekin 2006). It focused on the implication of the negative outcome of the referenda on the Constitutional Treaty in France and the Netherlands in 2005 by outlining scenarios of realizing provisions of the Constitutional Treaty on European security and the institutional set-up of CFSP also in the case of the failure of the ratification process. The paper took into consideration that despite – or even because of – critical developments, the scientific preoccupation with CFSP has flourished over the last years, and has grown into a business of its own. In the paper four main dimensions of crucial importance to CFSP were set apart and guided the analysis. Each of them approached CFSP from a different angle and highlighted distinctive questions and issues. These dimensions are: • • • •

The strategic dimension: CFSP as a foreign policy approach; The institutional dimension: CFSP as a system of governance; The social dimension: CFSP as group-building process; and The political dimension: CFSP as a concert of leading states.

The Constitutional Treaty played a major role for our work and analysis, first of all in terms of the EU’s ability to speak with a voice of its own. The related ratification crisis had created a new situation concerning CFSP where it became clear that the Constitutional Treaty had been useful and damaging at the same time: useful as it had prescribed an institutional macro-structure of the CFSP for the following decade and including some clarifying provisions on the relationship between CFSP and ESDP, but also damaging as it narrowed the debate on the fundamentals of CFSP and overlooked the institutional potential and options that existed even without the Constitutional Treaty.

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Consequently, another focus of the activities of the University of Cologne was the CFSP and ESDP in the Lisbon Treaty, the reformed legal basis after the failure of the referenda on the Constitutional Treaty in France and the Netherlands. After the failure of the Constitutional Treaty, the Lisbon Treaty had maintained most of the remarkable changes which might have substantial influence on the interinstitutional balance in this policy field. There are two different possible readings of the CFSP provisions of the Lisbon Treaty: they could be interpreted as a major step forward in direction of a strengthened, more coherent and more effective international actor with more supranational elements; but they could also be seen as demonstrating an ever refined mode of ‘rationalized intergovernmentalism’ (Wessels 2005). Much would depend on the way in which the office-holders of the newly created posts – such as the High Representative and the full-time European Council president – would interpret and use the room of manoeuvre left in the sometimes vague treaty prescriptions. After an in-depth analysis of the constituting ideas and norms, the institutions and instruments, the authors found more evidence for the second interpretation, but also some evidence for a ‘ratchet fusion’ (Wessels 2001; Wessels 2005, 94)4 as a third alternative explanation. While some institutional reforms could indeed be regarded as substantial innovations, some procedural patterns such as the persisting veto options and increased flexibility options can be generally interpreted as a confirmation of the status quo. In the perspective of a ‘ratchet fusion process’ this would mean that the CFSP provisions of the Lisbon Treaty have provided for a major step upward towards the ‘next plateau’ of an ‘integration ladder’, representing a gradual move towards a system with clear supranational elements. This would also mean that the often claimed coherence of the Union’s external action and its capability to act have been enhanced towards a stronger and more coherent international actor with a strengthened identity in the international system and more capabilities to act while internal efficiency and transparency have been enhanced. The Union faces growing international challenges, which require an increasing scope of action across different policy fields, geographical regions and arenas of policy making. In this area three types of foreign interactions intertwine: traditional national foreign policy, the foreign policy of the EU as prescribed in the treaty articles on CFSP and ESDP, and the EC external relations which concentrate on long-standing, mostly economic foreign relations and development policy. The CFSP as a ‘genuine’ foreign policy is thus embedded in a whole range of other policies with implications for external action. This includes not only traditional community policy fields such as trade or development policy with direct links to external action but also policy fields which are comparatively ‘new’ on the EUagenda and whose foreign implications seem – at least at the beginning – rather indirect such as JHA or environmental policy. Crucially, the analysis has to take into account that both the Constitutional Treaty and the Lisbon Treaty have been set up with the aim to finalize the ongoing 4

See also Miles (2003 and 2006).

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reform process of the EU. The Lisbon Treaty should ‘provide the Union with a stable and lasting institutional framework’ with ‘no change in the foreseeable future’.5 Thus, irrespective of their (non-)ratification these core documents are a valuable source of information on the member states perceptions of common institutional structures to respond to global security challenges. When the Lisbon Treaty was signed in December 2007, the European Council stated: We aim at shaping globalisation in the interests of all our citizens, based on our common values and principles. … We must engage our international partners in enhanced strategic cooperation and work together within stronger multilateral organisations. The Lisbon Treaty, in setting a reformed and lasting institutional framework improves our capacity to fulfil our responsibilities ... It will bring increased consistency to our external action.6

The Construction of the Security Dimension in the Legal Framework: Institutional Architecture and Treaty Objectives According to our overall analytical framework, the main findings are divided into the analysis of the evolution of the legal basis (‘legal constitution’) (see Olsen 2000, 7) on the one hand, and the activities of the European actors in the daily practice (the ‘living constitution’) on the other hand. Regarding the development of the legal constitution, the EU heads of state or government have shown increasing efforts to strengthen the institutional architecture of the Union’s foreign and security policies. The most obvious indicator is the establishment of the office of a double-hatted ‘High Representative of the Union for Foreign Affairs and Security Policy’ in the Lisbon Treaty, the post which was labelled ‘Union Minister for Foreign Affairs’ in the Constitutional Treaty. Despite the post’s re-naming after the failure of the Constitutional Treaty, the substance of the provisions was kept, namely the fact that the incumbent is part of the Council structure and at the same time also a vice-president of the European Commission (‘double-hatting’). Even if his/her functions and tasks are not finally settled by the legal text, the creation of this post indicates a perceived need for more efficient action and a harmonization of values and aims in this area. The options for institutional reform without the Constitutional Treaty and on the basis of the Nice Treaty, as discussed in the 2005 CHALLENGE paper by Diedrichs and Tekin (2006, 247), are still valid:

5 European Council, Presidency Conclusions, 16616/1/07 REV 1, Brussels, 14 December 2007, p. 2. 6 Ibid., p. 25.

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… the Council could possibly without Treaty change enhance the tasks of the High Representative; it should thus be checked if the Presidency could delegate to him the chair in the Foreign Affairs and External Relations Council on a regular basis; he could also be allowed to participate in the Commission College meetings, which the Commission rules of procedure would permit … A regular participation of the High Representative in the Commission, coupled with a more intensive cooperation of the Council with the Commission, could lead to a kind of ‘engrenage’ that would remain below the level of “double hatting”, but go well beyond the institutional parallelism practiced so far.

The current planning for the European External Action Service (EEAS) in support of the double-hatted High Representative points in the same direction: given the difficulties regarding the ratification process of the Lisbon Treaty after the negative Irish referendum, reportedly, the debate in Brussels focuses on alternative options to introduce the EEAS, for example through an interinstitutional agreement. Neither the Constitutional Treaty nor the Lisbon Treaty could be analysed in their implementation as ratification failed in the first case and is pending in the second case. Nevertheless, the treaty reforms have shown which areas are perceived as being in most need of reform and what these reforms might be like. Nevertheless and despite these institutional innovations, … the hesitating pooling of national and supranational resources is on the one hand accompanied by ambitious aims and objectives stressing the Union’s claim to be a civilian power and an ever increasing refinement of intergovernmental strategies. At the same time, the increasing importance of defence issues has definitely changed the some authors to claim ‘an opportunity lost’ (Treacher 2004, 66) for the Union to become a distinct, non-military international actor (Wessels and Bopp 2008a, 37).

These institutional innovations and the related debate reflect a change in the EU’s self-perception. The analysis of the preambles as well as the articles on aims and objectives of CFSP has shown that the EU increasingly perceives itself as a proactive, international actor that takes over responsibilities even beyond its immediate neighbourhood. It hints at a changed perception of threats: globalized patterns of economic and political security require global action. In this context, it is important to emphasize that the EU’s concept of security has changed from a one-dimensional, ‘traditional’ concept of security as military-based, state-centred via a two-dimensional concept of ‘internal’ versus ‘external’ security, secured either by police (the former) or military (the latter), to a multi-dimensional concept, embracing virtually all aspects and spheres of political life such as economic, political, social, environmental or energy security. This phenomenon, often referred to as ‘securitization’ (see Waever 1995; Buzan et al. 1998; Huysmans 2000 ), has been severely criticized in terms of subordinating independent political

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aims – such as international development cooperation and the enhancement of human rights – to the aim of fostering (exclusive) European security needs. In this context, it is often overlooked that a comprehensive process of securitization might consequently lead to a dilution of the concept itself (see Wessels and Bopp 2008b). This perception of a multi-faceted, but unclear security concept requires even more efficient and rapid answers to global security threats. The Construction of the Security Dimension in the Living Framework: The Creation of a ‘Communauté de Vue’? As a major priority our research investigated the role of the European Council with a closer look at the Presidency Conclusions as important documents of the collective perception of the heads of state or government. Our analysis revealed that the consensual mode of decision-making and mutual consultations have created common perceptions, a ‘communauté de vue’ on security governance. Research also focused on European governments’ perceptions of security more generally. In line with the overall approach of the Jean Monnet Chair, both the historical treaty reforms as well as the European Council Presidency Conclusions have been analyzed in order to find out how the member states’ perceptions of security have changed since the 1950s and what implications this might have for the future construction of a European security policy. Our research, especially under the broader project ‘Words do Matter: How EU Governments Perceive Security’, analysing the emergence, evolution and transformation of the security concept in the treaties and the European Council conclusions, has shown that the handling of the concept went from the avoidance of the term in a ‘traditional’, military sense over a slow and reluctant introduction towards a very broad use and meaning, including new policy areas which have not been associated with ‘security’ before (see Wessels and Bopp 2008b). This development can be traced both in the European Council Presidency Conclusions and in the subsequent treaty revisions. This seems to indicate that this institution has ‘constructed’ an ever broader concept of security and, related to it, of potential challenges and threats, which then found its reflection in the European treaties, which also implied as a consequence an increase in instruments to tackle the security challenges. The EU’s security concept has both been widened to include more areas and contexts as it had been traditionally associated with, but at the same time the core, traditional security concept of military (defence) security has found its way into the treaties. Nevertheless, this traditional, military concept of security has also been broadened to include not only ‘national defence’ but also proactive engagement in all parts of the world to respond to an increasingly interlinked and interdependent world. The EU was able to find a common definition of the perceived threats and challenges and define a common approach towards them – an effective multilateral system – only a few years after the inauguration of ESDP.

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Nevertheless, this common view should not be overestimated. The old problem of CFSP – to find a common position in actual moments of international crises – persists more than ever in light of developments in Iraq, Kosovo and Georgia. The understanding of ‘security’ has thus been widened but not all of the issues falling under the term can be obtained with military means. Thus, the Union’s security policy has developed in two directions: towards a more ‘traditional’ understanding of military security, which not only aims at securing its own territorial borders, but also to contribute to global, international security. Secondly, non-military threats to the Member States’ internal security have increasingly found attention, which can better be responded to with non–military action such as police and judicial cooperation. In this sense, the EU governments’ perception of European security has been conceptually ‘deepened’ to embrace several security dimensions. The European Council and the Changing Landscape of Migration Policy: Liberty versus Security The research of the Jean Monnet Chair in the final year of the project took up this idea and continued the focus on patterns of security governance (see Webber et al. 2004; Diedrichs 2008; Kirchner 2006) in the EU. As a case study for attempts to construct a common response to the challenges of globalization and a changing international security context, it was analysed and assessed how the European Council has dealt with migration policy issues, especially exploring tendencies to increasingly frame the policy area under the aspect and perspectives of a changing perception of security (see Gläser and Wessels 2009). Especially in the light of developments after 11 September, many studies have stated a ‘securitization’ of more and more policy areas. With our special focus on migration policy, we searched for evidence for the often claimed ‘securitization of migration policy’ (see Givens et al. 2008; Bigo 2001a; 2002; Ceyhan and Tsoukala 2002; Loader 2002; Sasse 2005; Guild 2005b; Huysmans 2006; Karyotis 2007; Chebel d’Appollonia and Reich 2008)7 as well as possible explanations for this development which can be found in official documents. A special centre of attention was the assessment of the role of the European Council as ‘constitutional architect’, agenda-setter and formulator of concepts and guidelines as well as representation of member states’ preferences for migration policy. The first findings of our content analysis of European Council documents qualify the often stated thesis of a ‘securitization of migration policy’ by the European Council. While a tendency to securitize migration policy in the years after 11 September 2001 and 11 March 2004 can be observed, it is currently stagnating or even decreasing. Instead, it seems that a balance can be ascertained between liberty/human rights/equal treatment aspects and illegal/criminal aspects. 7

For a differing view, see Boswell (2007).

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This balance shifts to the one side or the other but throughout its occupation with issues of migration policy the European Council always stressed both of these aspects. While always stressing the liberty aspect throughout its statements, the European Council did not securitize but ‘criminalize’ migration issues. It has to be considered that the connection of the European Council’s conclusions to actual decision making output is the open research task to be accomplished to be able to evaluate the actual influence and weight of the stated framing by the European Council. Conclusions The results of the research of the Jean Monnet Chair within the CHALLENGE project can be summarised in three main findings: •

•

•

First, the development of the CFSP provisions in the Constitutional and Lisbon Treaties can be interpreted as demonstrating an ever refined mode of ‘rationalized intergovernmentalism’ with the perspective of a ‘ratchet fusion process’ as a possible alternative explanation; Second, the EU’s security concept and the perception of security by the governments of the EU member states have considerably been deepened and widened, as it can be shown by analysing the legal as well as the living constitution. It has been deepened to embrace several security dimensions and widened to include more areas and contexts; and Third, the European Council is an important and useful key to comprehend developments in the security dimension of EU policies as well as playing a key role in shaping the EU’s security perceptions and thus possible patterns of common governance of security policy.

Chapter 6

European Governance and the Interplay between Liberty and Security Nikos Scandamis, Kosmas Boskovits, Sofoklis Stratakis and Frantzis Sigalas

Introduction The Objectives of our Research in a Nutshell The objectives of our research may be summarized in two basic propositions: first, at a more theoretical level, to explore the conceptual framework of governance and the interplay of liberty and security in liberal regimes that espouse such type of governance, drawing insights especially from EU governance as a model case and to a certain extent from patterns of global governance. Second, at a more practical level, to point to the implications of our theoretical findings as far as governance, security and the exercise of discretionary power affecting the individual are concerned. The Stages of our Research As a first basic step, our research tried to set up and develop workable conceptual tools in order to look into European and global governance and the specific interplay between liberty and security in liberal regimes. This does not only involve setting aside State-centered concepts which are clearly insufficient in a post-modern context, but which nevertheless continue to be reproduced. More radically, our research involved putting forward new concepts or redirecting the existing ones through ‘crucial shifts of meaning’ in order to capture critical aspects of emerging forms of governance. On the basis of these tools, the main elements of a general theoretical framework on the object of our research were proposed, namely the interplay between liberty and security in European governance, so that more consistent readings of European governance and its implications for the individual could be offered, and so that the terms of the relationship between the market, the types of governing and the individual could be critically reformulated. At a second stage, our theoretical tools were checked against practice with the help of extensive data. By relying on EU official normative texts, policy papers drafted by EU actors and the case-law of the ECJ and other European courts,

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we tried to examine the workability of our conceptual tools and their practical implications in the context of an overall analytical framework. Equally important, by examining specific case studies, we were able to gain an image of the specific ways in which rival securities are actually shaped in European governance and conflicts between competing interests and rights are resolved. Conceptual Tools Normative linkages between interconnected orders and the multiple faces of the individual in the global field The first conceptual tool put forward in our research in order to explain the emerging normative patters of governance in the global marketplace was that of interconnected orders (Klammerordnungen). This enabled us to initiate a shift from governance in its organizational aspects (for example networks) to normative linkages between interconnected orders, especially at the interface of set and spontaneous normative processes. This concept could be of use in the European context as well, namely through the action of EU agencies and independent authorities engaged in constant interaction with other actors and bodies operating in the same policy field. Secondly, by focusing on the individual, instead of the public authority and the ways in which the individual is shaped into a loyal subject, alternative forms of subjectivity which challenge the dominant paradigm of national subject were explored. It was argued that the individual is split into multiple faces, into different ‘masks’ as they are being captured in national, meta-national and global settings. The patterns of governance are reflected upon the different figures of the individual: as market citizen, as civil actor, as political subject of open-ended communities based on the logic of multiple identities, but also as mere fraction of human populations under control and as potential threat in areas without internal frontiers. The interplay between the polity and the market: the set and grown binary Turning to the distinctive features of European governance itself, the binary between set and grown elements of European integration was proposed as an analytical tool in order to bring forward the interplay between the constitutional framework set up by the EC Treaty and the functioning of the European single market as a grown order. This conceptual binary was drawn from philosophical accounts of the interaction between the State and the market and, more broadly, between imposed and self-regulating patterns (set and grown elements respectively). Moreover, the conceptualization of the set and grown binary proposed in our research steered clear of a specifically Hayekian understanding, widely diffused in literature dealing with ‘spontaneous orders’. On the contrary, our own use of the binary was explicitly transferred to an entirely different context, namely that of introducing the ‘rules of the game’ in the form of set elements which may lead to a grown order. The set and grown binary as applied at the current stage of European integration means that European governance aims primarily at the T

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secure enjoyment of economic freedoms, which form the set – and arguably the fundamental – elements of European integration to the extent that they enable the smooth functioning of the single market, the latter conceived as a self-regulating order. The duality between governance and government and the connexity criterion Our research also benefited from the introduction of a new criterion, the so-called ‘connexity criterion’ in order to determine whether a given policy measure (for example exchange of personal data) falls under the overarching legal framework of governance of the single market or of that of (state) government in the field of public security against terrorism. Functioning as a sort of switch mechanism in the case-law of the ECJ, it determines the ambit of each institutional setting, the set of rules applicable to each given case, the legality of the measures adopted by EU institutions in cross-pillar security policies and eventually the level of the protection of the individual. Rival securities Based on the fundamental distinction between Governance and Government, we also suggest that there is a persisting tension between political and economic security which lies at the heart of European integration and governs the division of responsibilities between the Union and its member states. To reframe security in this respect, the EU institutional scheme points to an ever evolving interplay between security as integrity of the State and its basic components and security as preserving welfare in an area without internal frontiers. One may speak of rival securities which strongly affect the process of European integration and define its political and legal contours. The pillar metaphor partially disguises this underlying duality, as it transforms a dual scheme of a profound character into a tripartite one. On the other hand, the transition to a Union without pillars, while implying the removal of certain institutional obstacles to the implementation of truly integrated approaches by the Union in the AFSJ, would not do away with the underlying duality between government and governance and the corresponding forms of security. Finally, we proposed a bi-faced conception of rival securities: rival securities refer not only to the tension between forms of security claimed by government and governance but also to the conflicts between the (individual) right to personal safety against discretionary power and political security in a wide sense (action against terrorism) or internal security (combating criminality and maintaining internal order). Conflicts of rights under the principle of legal equivalence In close connection to this, the European regime of governance, like any other liberal regime, allocates liberties and rights − in our case economic liberties − which are defined through their restrictions and may conflict with other rights or interests guaranteed at the European and the national level. The question that arises concerns the classical gaps of liberalism in relation to exceptionalism and, more specifically, the question

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as to who has the capacity to fill these gaps at the legislative, administrative and judicial level. The outcome of conflicts referring both to the formulation of a right as a bundle of potentially competing interests (conflicts intra rights) and to the relationship between different rights of equal ranking (conflicts inter rights under the principle of legal equivalence), shapes the actual level of protection of the individual under the European regime of governance. These conflicts exhibit acute importance, especially as they play out not only in terms of the EU institutional setting, but also of the national one, including its sub-national levels, that may also be called upon to resolve such conflicts. The tools of individual protection against discretionary power: The rights of the ‘governed’ Conflicts of rights introduce us to more policy-orientated issues pertaining to the tools of protection of the individual at the level of the application of law to the latter. Apart from its sociological connotations, exceptionalism refers to practices by State executive officials, which amount to the arbitrary use of discretionary power. Michel Foucault has drawn attention to the need to reconceptualize what he qualified as the law or the rights of the ‘governed’ as a distinct category from human rights or the rights of the citizens (Foucault 2001a). Whereas Foucault places emphasis on the rights of defense against the operation of state government, our hypothesis, in the policy area of FSJ, is that the right to personal safety of all individuals under the operation of EU executive networks or State law-enforcement agencies should be put forward. In this connection, it is important to consider whether the rights of the ‘governed’, meaning the rights of those under the operation of executive authorities, may assume a function similar or complementary to that of human dignity as an effective shield against the arbitrary use of power by executive authorities. Case Studies In this respect, after proposing the set and grown binary and the concept of rival securities, we examined the case-law of the ECJ on the conflict between freedom of movement (for example the free movement of goods and the freedom to provide services) and fundamental rights (for example the freedoms of expression and assembly). Secondly, the rivalry between the principle of availability of information, introduced for reasons related to public security, on the one hand, and the individual right to privacy and the right to data protection, on the other, was examined as it was posed in the famous PNR judgment (transfer of passenger name records to US security agencies). Thirdly, we looked into the restrictive measures, more specifically the socalled ‘smart sanctions’, adopted by EU and international authorities against individuals and groups of persons in the fight against terrorism, predominantly under the second pillar. The analysis of the relevant judgments highlighted the

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clearly inadequate level of judicial protection offered to individuals in the field of CFSP. The Results of our Research Institutional and Normative Patterns of Governance Our research aimed, in the first place, at the re-conceptualization of institutional and normative patterns of governance, especially in the way they develop in the EU framework. Before we embarked upon the study of European governance itself, we found it theoretically stimulating to examine certain critical aspects of global patterns of exercising power, since the results of this research could be of use in the European context as well. Normative patterns in constituting subjects in an ever-globalizing field By choosing the global marketplace as our preliminary field of research, we tested most usefully our declared goal to disentangle our research perspective from Statecentred concepts. The examination of the global field is all the more interesting since an equivalent to the ‘Community method’ is lacking. However, this does not imply that states as sovereign subjects retain in full their normative power over transnational transactions. A multiform normativity is uncovered at the boundaries of State-determined law, namely through the operation of self-regulated orders by the interested actors. Normative interconnections and linkages (qualified as ‘Klammerordnungen’) between the market, intermediate self-regulated orders and State-originating law are in operation. These findings are also relevant to European governance. For instance, EU independent agencies draw guidelines, standards and normative criteria from relevant professional associations, specialized NGOs, trade unions and global networks. In a more familiar connection, the intensive dialogue developed between the ECJ as the guardian of the autonomy of the Community legal order and the ECtHR as the guardian of the ECHR as a selfcontained human rights regime, shape the actual level of individual protection against State action. From the individual’s viewpoint, the ways in which individuals are shaped into subjects in the double meaning proposed by Foucault (1982), that is, by constructing an identity and, at the same time, by being submitted to some form of control and dependence, provided us with penetrating insights into the possible implications of European citizenship and the articulation between the individual as agency, market citizenship, social solidarity, political participation and, most critically in our perspective, security and the treatment of all individuals as potential threats. In the same vein, the rationale of managing individuals as fractions of human populations, thus transforming them into parameters, undermines the very logic of recognizing each individual as a subject of rights guaranteed by state government, EU supranational rules and other human rights regimes. In the framework of

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managing the global multitude, liberty may be subject to ‘thresholds of tolerance’ and individual guarantees may be sacrificed for the sake of preserving security in open markets and their permeable frontiers, particularly so, if the sacrifices do not exceed critical numbers. It is open to question whether similar trends can be traced in European governance as well and how they might be dealt with. The paths of European integration: Set and grown elements in constant interaction As already stated in our methodological account, we looked into the relationship between set and grown elements under European governance. Thus, it was confirmed that the interplay between the constitutional elements of European integration and the functioning of the single market works both ways. First, the establishment of the single market was based on structural elements set in a uniform manner by the EC Treaty and developed by the ECJ. Law serves as the primary tool for promoting economic integration. The four freedoms of movement as well as the system of undistorted competition laid down in the EC legal order, as complemented by the fundamental principles embedded in the latter, most prominently the principle of supremacy, the principle of direct effect and the principle of effectiveness, function in such a way as to set the prerequisites for promoting market integration by economic agents. On the other hand, it was argued, by referring to specific EU policies (competition policy, common agricultural policy), that the emergence of a unified European market reflects, as a sort of feedback function, upon the scope and style of EU regulation and ultimately upon the orientation and the priorities of the constitutional setting itself. Thus, the ‘European experience’ confirms that the market order is, at the same time, the result and the condition of public intervention: maintaining an open market and competitive markets (market security) provides the measure of EU risk regulation in the single market. Even more interestingly in our perspective, the set and grown binary offers valuable insights into the way conflicts between different rights are resolved by the ECJ whenever they touch upon the operation of market freedoms as structural elements of the EU constitutional setting. The ruling of 12 June 2003 in the famous Schmidberger case1 as well as a series of other cases involving the free movement of persons and personal data, show that restrictions to market freedoms for reasons of protection of basic civil rights (freedom of expression and right to privacy) may be admitted only to the extent that they do not jeopardize the overall functioning of the single market. Rival securities and integrated approaches in a Union without pillars As the EU institutional scheme moves beyond the pillar paradigm, our research confirmed that the tripartite division, set out in the Maastricht Treaty, actually disguises the underlying duality between the patterns of economic and political integration in Europe. The Constitutional Treaty and more openly the Lisbon Treaty do not put into question this fundamental division, which continues to dominate the entire European project. 1

Judgment of 12 June 2003 in Case C-112/00.

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Still, the dividing line is a moving one: organic forms of integration such as the High Representative for EU foreign policy or the provision for a future European Prosecutor’s Office and, most important, the establishment of a single legislative regime, based on the Community model, for all criminal matters, stand as important examples of the progress of European integration into the realm of political security. On the other hand, the Lisbon Treaty also confirms the ‘essential functions’ of the member states as primary executive authorities, in ensuring their territorial integrity against external threats, maintaining internal order and safeguarding national security (Article 4 TEU). It was confirmed that in an area without internal frontiers in which security threats are gradually treated in a common framework, the underlying duality of European integration may be reformulated, in terms of security, as the division between ‘security as integrity of the State and its essential components’ and ‘security as preserving market welfare’. EU governance aims primarily at ensuring and promoting market and, more broadly, economic welfare in a unified market, but, at the same time, it acts in support of state government and national security as invoked by state authorities, especially in the field of counter-terrorism policies. In this connection, the concept of ‘rival securities’ proved its analytical force by pointing to the conflicts and varying interactions between divergent conceptions of security. First of all, this concept captures conflicts between different conceptions of security as the object of governance (for example external macro-security in the field of CFSP and terrorist threats as the model of security challenges defying the inside-outside distinction, market security and the unilateral power of national authorities to disrupt or to restrict transnational transactions for reasons of national security). More specifically, the introduction of the concept of ‘security of the Union as a whole’ marks the intention of Union organs to formulate and implement truly integrated approaches against transversal threats, such as terrorism or cross-border criminality. By exercising their power of definition, EU actors are shaping the normative horizon of European policies. Moreover, these conceptions of security seem to be particularly suited to the evolving institutional scheme: indeed, not only do they seem to defy the division of normative powers between the EU and its member states, but they could be argued to transcend its underlying duality between economic and political security, or, at least, to crucially reformulate its terms. The term of ‘inter-linked challenges’ expresses clearly this fact, namely that no single approach by a member state can be taken to effectively deal with threats that defy locally and functionally specific responses. The dynamic balance between rival securities is being drastically reformulated as the member states have to act in common in an area without internal frontiers. Second and equally important, rival securities also refer to conflicts between the individual right to personal safety, including relevant guarantees of due process, and various conceptions of public security, in the sense of preserving the State and its essential infrastructure. It is quite revealing in this respect that the CFI opposed the individual rights of the persons included in the so-called terrorist lists not only to national security (of the member states) but also to the

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‘security of the Community’ itself.2 As the Union gradually acquires the attributes of a political community, rival securities point to the need of introducing adequate tools of individual protection both at the national and the European level. Core democracy at work in European governance At the outset democracy raises a problem of ‘governability of multiplicities’ and the search for ways and procedures to define common interest: originally, that of the city-state; in modern times, that of the nation-state; and now, that of meta-national entities such as the EU. Dominant literature focuses on the democratic deficit of the Union and the various attempts to transpose principles of representative democracy at the European level. At the present stage of European integration, democracy is formally and actually safeguarded at the national level under the additional threat of political sanctions activated by the EU. European governance introduces a regime of non-sovereign governance with liberal foundations without properly affecting state government as the source of (representative) democracy. However, elements of ‘core democracy’, that is, principles and procedures enabling the definition of common interest in open and multiple systems, are already at work in the framework of European governance. To give an illustration, equality in discourse (‘ισηγορία’) of citizens raises the important preliminary question of the discourse before discourse in a political community, of the right to have rights as a means of debating and, eventually, resolving conflicts between different interests. The institutionally open character of European governance allows for ‘a taste of democratic truth’. As Pericles stressed in his funeral oration to the Athenians, democracy is not simply about free participation in public affairs3 but also refers to the ‘lack of suspicion’ among the citizens in everyday life.4 The absence of constraint and the absence of suspicion as basic features of democratic dignity, represent, perhaps, what is most valuable to European citizens and, arguably, to all persons residing on the Union’s territory, who find themselves subject to new sources of discretionary power. European Governance and the Interplay between Liberty and Security Conflict(s) of rights under the prevailing principle of legal equivalence and its limits The penetrating insights of Foucault into biopolitics in liberal regimes provide us with our starting theoretical propositions. Liberty should not be understood as a universal (universel), in the sense of an ideal type which is progressively accomplished, but rather as the ‘actual relationship between the

2 Judgment of 12 December 2006 in Case T-228/02: Organisation des Modjahedines du people d’Iran v. Council of the European Union. 3 See the citation finally omitted in the preamble to the Constitutional Treaty. 4 ‘There is no exclusiveness in our public life, and in our private business we are not suspicious of one another…’, Pericles’s Funeral Oration, translated by Benjamin Jowett.

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governed and the governors, as something that is constantly being produced, in the status of production’.5 Moreover, security as a practical rationality informs the formulation of rights as bundles of potentially competing interests. To be sure, the idea of rights carries at its heart the need felt by many to resist the logic of a trade-off and to hold some sufficiently important interests as trumps with a view to ensuring individual freedom (Dworkin 1984). On the other hand, however, it is equally clear that rights as formulated in legal provisions have an open texture, they encapsulate bundles of potentially competing claims and they may conflict with one another, at least if we turn away of the somewhat simplistic acceptance of rights as merely negative duties on the part of public authorities. In this connection, security, not in the various conceptions of state security (security as integrity, coercive security or similar categories), but more broadly as the object of any type of governing, is involved in the determination of the scope of each right through the latter’s restrictions. Rights are defined through their restrictions and the latter refer not only to public security but also to the requirement of protection of the same or different rights of others.6 Equally important, in liberal regimes coupled with market economy, the interplay between liberty and security also points to another direction, complementary to that of referring to the production of rights: liberty is about ‘the secure enjoyment of rights’, in particular about ensuring the exercise of a basic set of rights relating to the life, integrity and property of the person under a system in which ‘discretionary power is clearly circumscribed’. Liberties under European governance, in particular the fundamental freedoms of movement, but also access to services of general interest (see Article 14 TFEU), are to be enjoyed under conditions of safety. The right to security permeates the basic freedoms of the person. The thick web of guarantees offered by the European regime of governance against the state’s interventions in the market sphere needs to be complemented by adequate tools of protection against the rise of new sources of discretionary power in the policy area of FSJ. From a legal viewpoint, the TEU and TEC do not only determine the division of powers between the EU and its member states, but they also allocate individual rights, notably market freedoms, construed by the ECJ as the basic component of EU citizenship rights. From this particular angle, the founding Treaties may be analyzed as laying down the ‘normative code of liberalism’ which applies to transnational activities in the European context. The recognition of the binding character of EU Charter of Fundamental Rights completes symbolically this picture, but it is clear that the ECJ, with the help of general principles of law, had

5 ‘So, freedom in the regime of liberalism is not a given ... Freedom is something which is constantly produced.’ Foucault (2008, 65). 6 See Article 52 Paragraph 1 of the EU Charter of Fundamental Rights, which refers to ‘the need to protect the rights and freedoms of others’.

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already substantially enriched the status of the individual as subject of fundamental rights under the European regime of governance. Significantly, the important findings from the relatively recent Community case-law show that conflicts of rights are occurring in various occasions, notably conflicts involving fundamental freedoms of movement and other basic civil rights in an area without internal frontiers. For instance, the ECJ openly acknowledged that not only the objective of free flow of personal data pursued by Directive 95/46/EC may prove to be inconsistent, in some instances, with the protection of fundamental rights of individuals, but also that the freedom of expression through Internet of a person has to be weighed against the protection of the private life of the individuals about whom the person in question placed data on her Internet site. Most important, these inter-right conflicts are resolved without having recourse to a formal hierarchy or strict orderings. One may speak in this respect of ‘conflicts of rights under the principle of legal equivalence’. The Schmidberger case7 was particularly revealing in this respect, since the Community judicature refused to recognize, as asked by the referring Austrian court, that the rights to the freedom of expression and freedom of assembly are ‘of a higher order’ than the TEC provisions on the free movement of goods. Instead, the ECJ examined whether ‘a fair balance was struck’ between the interests at stake. As a matter of fact, the ECJ chose to apply its usual method of control, under which the fundamental freedom of movement stands as the principle and reasons of protection of other fundamental rights as permissible exceptions to that principle, subject to the test of proportionality. This is not to deny, however, that certain civil rights of a primarily negative character may be recognized as laying down absolute prohibitions, mainly those relating to the protection of human dignity, such as the prohibition of torture.8 In the same vein, the German Constitutional Court has rejected any balancing that would deny human persons their intrinsic value (BVerG, 1 BvR 357/05, 15 February 2006). On the other hand, the gradual extension of the scope of these negative rights in combination with the recognition of correlative positive duties, namely procedural and substantial conditions for the compensation of victims of torture, may lead to conflicts with other individual rights and related aspects of general interest (Waldron 1989, 503–19). Furthermore, the scope of ill-treatments covered by torture and inhuman or degrading treatment within the meaning of the ECHR is

7 Judgment of 12 June 2003 in Case C-112/00: Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich. 8 See most notably ECtHR Chahal v. the United Kingdom, 15 November 1996, Reports 1996-V, Paragraph 79; Saadi v. Italy, 28 February 2008, Paragraph 127 (not published yet).

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subject to thresholds, in that it must attain ‘a minimum level of severity’ and that such an assessment is ‘relative… [and] depends on all the circumstances of the case’.9 Thus, the exact scope of these rights and their implications vis-à-vis other rights remain open to interpretation (Rivers 2006, 182–84). The case-law of the ECJ also confirms in a striking way the principle of legal equivalence in the conflict of rights. In the Omega case10 involving a conflict between the Community freedom to provide services and the prohibition of a commercial activity for reasons of protection of human dignity, namely the prohibition of an electronic game inciting to acts of homicide, the Court refrained from acknowledging human dignity in absolute terms. Instead, it limited itself to examining whether the restrictions imposed on the freedom to provide services were necessary and the respect for human dignity could not be attained by less restrictive measures than total prohibition. All in all, conflicts of rights under the principle of legal equivalence, that is, without any rigid orderings, dominate the operation of the European code of liberalism. The contribution of our research lies not in the elaboration of a normative theory of liberal regimes, but in the recognition of the dilemmas involved in such conflicts for what they are, as resulting notably from a careful reading of the relevant case-law. The crucial question which arises in this respect is, of course, about the criteria for assessing conflicts of rights and the values, principles and interests involved in these conflicts. The search for adequate criteria of resolution of conflicts As it may be expected before such a formidable task, our research did not offer definitive answers as to the resolution of conflicts under the European regime of governance, but a series of tentative findings and suggestions for further research. This is all the more so, since the policy area of FSJ is growing at a spectacular pace, conflicts of rights are multiplying in the EU framework and important tools of protection, such as the EU Charter, have not yet come into force. To begin with, in assessing a given type of conflict, one has to determine the relationship between the legal orders involved (national, supranational and international) and to qualify the different rights (and correlative duties) that are being exercised by one or several individuals depending on their qualities according to the legal order applicable in each case. To take an example,11 a person that is placing personal data on an internet site may be qualified as exercising simultaneously the freedom to provide services according to Community law and the freedom of expression according to national law and the ECHR, while the exercise of these rights may interfere with the right to respect for private life, guaranteed by national law, the ECHR and the EU Charter. At the same time, 9 Saadi v. Italy, Paragraph 134. 10 Judgment of 14 October 2004 in Case C-36/02: Omega Spielhallen – und Automatenaufstellungs - GmbH v. Oberbürgermeisterin der Bundesstadt Bonn. 11 Judgement of 6 November 2003 in Case C-101/01: Bodil Lindqvist.

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account must be taken of the objective of the free flow of information, pursued by Directive 95/46/EC at the Community level. The conflicts of rights usually described, in theory, in a purely national framework are singularly more complex when placed in the context of European governance. As the ECJ openly acknowledges, the member states, when transposing directives into national law or implementing other measures of Community law, have to take care that ‘a fair balance… [is] struck between the various fundamental rights protected by the Community legal order’.12 However, this position places an excessively high burden on national authorities, including national courts, and will lead inevitably to divergent solutions throughout the Community as to the level of protection of individual rights, unless it is followed by appropriate or even necessary guidelines by the Community courts as to the decisive criteria and parameters for the resolution of conflicts in each case. At the institutional level, the role of courts in adjudicating conflicts of rights has retained the centre of attention of academic literature, no doubt for legitimate reasons. The ECJ has played a major role in circumscribing interferences by national authorities with the economic freedoms enjoyed by EU market citizens. It is expected to play an equally important role, hopefully on the basis of the EU Charter, in resolving delicate conflicts in the AFSJ. This being so, our research highlighted the significance of EU executive agencies and independent supervision authorities (European Ombudsman, EDPS) in managing conflicts of rights, notably those pertaining to the security and the integrity of the person. First of all, the action of information networks operating under the principle of availability or of EU executive agencies such as Europol and Eurojust, which shall gradually assume a leading role in ‘EU-led law enforcement’, raises formidable problems of adequate institutional and judicial control. Conflicts between public interest, namely internal security, and individual rights but also between individual rights themselves are expected to rise significantly, if this is not already the case. Most interestingly, agencies are inclined to proceed by balancing acts which ‘quantify’ the amount of restrictions imposed on individual freedoms. In this setting, rights may be quantified and be subject to certain thresholds instead of treating them as trumps over general interest. For instance, managing sensitive information with a view to preventing terrorist acts may justify restrictions to the right to privacy (electronic surveillance) and to the protection of personal data (retention of telecommunication data) provided they do not apply beyond a critical mass of individuals and they do not reach a certain gravity (amount of information available to law-enforcement agencies, circle of authorities having the right to access, maximum period in which information may be available and so on). Independent authorities, such as the EDSP in the field of data protection, are expected to guide and, at the same time, to control the action of executive authorities by addressing both general and individual directives to them, normally in the form of guidelines, standards of procedure or 12 Judgment of 29 January 2008, Paragraph 68, in Case C-275/06: Productores de Música de España (Promusicae) v. Telefónica de España SAU.

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best practices, or by adopting decisions as to the appropriate ways of performing balancing acts. Our research also showed that the case-law of the ECJ offers some insights into the structural preferences which underlie European governance with a view to resolving conflicts of rights at the interface of the economic and political sphere. As already demonstrated in the section relating to the set and grown binary, the Community judiciary refuses to draw a clear hierarchy between the Community freedoms of movement and basic civil rights, such as freedom of expression and freedom of assembly. It remains, at least in terms of logical reasoning, that the freedoms of movement laid down in the EC Treaty are viewed as structural elements (‘the principles’) of the Community order aiming primarily at market integration, and restrictions to those freedoms may be tolerated to the extent that they do not imperil the smooth functioning of the single market. Furthermore, this approach enabled the ECJ to apply the proportionality test to genuine conflicts between individual rights, by treating the freedom of expression and the freedom of assembly as legitimate objectives that may justify the restriction of the freedom of movement. Thus, the ECJ escapes the logical objection that the test of proportionality is of no avail in cases of conflict between rights of equal ranking. On the other hand, this did not result in the downgrading of fundamental rights qualified as exceptions to the freedom of movement, since the ECJ held that stricter measures than those actually applied by the Austrian authorities would impose excessive burdens on intra-Community trade flows. All in all, the Court had recourse to the rational justification procedure normally applicable to restrictions to Community freedoms of movement, while adapting its balancing act to the importance of interests at stake. Last but not least, our findings suggest that while conflicts of rights are in principle resolved in a context of legal equivalence, the formulation of certain guiding principles based on the particular features of a given policy area is possible and legitimate. In the AFSJ, there is an urgent need to focus on the rights of all individuals – Union citizens and TCNs – who find themselves under the operation of EU executive networks and especially on the rights of particularly vulnerable groups (for example ethnic profiling). The right to personal safety as the cornerstone of the rights of the governed is to be applied primarily as a shield against the exercise of discretionary power by executive agencies. Moreover, its scope should be readapted; it covers not only the rights of those under arrest or any form of detention and the rights of the accused, but, more profoundly, the lack of suspicion proper to democratic dignity. The consistent application of this conception of personal safety may re-orientate the resolution of conflicts generated by practices of generalized surveillance and practices based on the assumption that all individuals involved in transnational flows or participating in certain target groups must be treated as potential threats.

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Case Studies The regime of data protection and the relevance of the connexity criterion Our research focused on the conflict rising between the free movement and exchange of information required by the application of the principle of availability and the data protection regime in Europe, namely the evolution of data protection as an autonomous right under Community law. In this connection, we tried to shed more light on the famous judgment of the ECJ in the PNR case involving the transfer of passenger data from the EU to the US security authorities.13 At a first stage, our careful study of this judgement enabled us to evaluate the terms of the balance and the relationship between the patterns of European governance, more precisely the distinction between governance and government, corresponding to the duality of paths of economic and political integration. In this respect, a new criterion was introduced, the ‘connexity criterion’, to account for the nature of the policy under consideration, in our case data exchange, and the ensuing regime of individual rights, but that could potentially be of broader use. In fact, by establishing the connexity of a given field with a certain type of governing, the proposed criterion determines the level of protection of the individual under the European regime of governance. The essence of the criterion of connexity lies in determining whether a policy measure falls under the overarching framework of governance of the single market or of that of government in the field of public security against terrorism. Functioning as a sort of switch mechanism, it was in this judgment that the Court implicitly resorted to this criterion, by formulating the elements for its establishment. More specifically, the ECJ pointed, as the first element of the criterion, to the ‘difference of nature’ between data processing activities: depending on whether such activities are necessary for a supply of service, or more generally for a market-related purpose, they should be included in the framework of governance, whereas when the primary orientation is towards the objective of public security and law-enforcement, they should be conceptualized as falling in the framework of government. The second element of the connexity criterion concerns the type of agent responsible for the data processing operation: the Court opts for a functional conceptualization, by dissociating the agent initially responsible for the data collection, in our case, private operators in the course of commercial transactions, from the subsequent processing of the same data for public security purposes. It should be emphasized that the Court scrutinized the policy practice under consideration in substantially abstract terms; the elements of the reasoning employed by the Court remain rather vague, thus giving rise to criticism that the way the distinction between governance and government was formulated in this case was essentially political in nature. 13 Judgment of 30 May 2006 in Joined Cases C-317/04 and C-318/04: European Parliament v. Council of the European Union and Commission of the European Communities. For further details, see Scandamis et al. (2007).

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At a second stage, our findings concern the implications of the approach followed by the ECJ for individual liberties. Given the abstract nature of the scrutiny of the Court, it becomes extremely difficult for affected individuals to protect themselves against a measure which is classified as falling within the realm of government. Not only in the case of the right to data protection, but in many other instances as well, the right to access to Community courts and related guarantees of due process are severely curtailed and the rule of law is primarily guaranteed by the member states themselves and not by an autonomous regime of protection at the European level. The overall findings are quite troublesome: in a liberal regime such as European governance, with elements of both governance and government, divergent provisions amounting to different types of governing regulate the regime of individual protection. To put it more bluntly, the distinction between governance and government in the European scheme gives rise to serious gaps in the protection of individual liberties. ‘Smart sanctions’ and the impact on individual liberties The practice of the socalled ‘smart sanctions’ involves important institutional questions as it is developed at the interface between the Community and the CFSP pillars. At the same time, it illustrates the severe impact of EU policies on individuals and groups on which sanctions are imposed. By analysing the judgments delivered by the ECJ and the CFI in such cases, answers to these serious challenges to the European regime of protection of individuals were attempted. Interestingly, the CFI acknowledges the ‘security of the Community’ itself alongside national security as overriding reasons that may set aside essential elements of due process.14 The CFI, thus, seems to introduce a conception of public security claimed by the Union itself instead of the recognition, through mechanisms such as mutual recognition, of member states’ national security in the European framework. On the other hand, the ECJ stressed most recently, as a matter of principle, that the implementation of UN Security Council resolutions in the Community legal order may not enjoy immunity from Community jurisdiction, but is subject, ‘as the expression… of a constitutional guarantee’, to the strict standards of protection of fundamental rights developed in Community case-law.15 The Community courts engage in various balancing acts between public security at the national and at the European level and the effective protection of the ‘governed’. In this connection, an alternative approach to the often repeated but rather troublesome conception of the trade-off between liberty and security has been rightfully suggested, most recently in the opinion of the Advocate General (AG) in the Kadi and Al Barakaat cases: 14 Judgment of 12 December 2006 in Case T-228/02: Organisation des Modjahedines du people d’Iran v. Council of the European Union. 15 Judgment of 3 September 2008 in Joined Cases C-402/05 P and C-415/05 P: Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities.

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‘when the risks to public security are believed to be extraordinarily high, then the rule of law should be upheld with increased vigilance’ (paragraph 35). In other words, and this is particularly important for the overall findings of CHALLENGE, effectiveness in the fight against perceived terrorist threats, should not undermine but go hand in hand with effective protection of individual rights. Conclusions All in all, our research findings show that some general criteria may be drawn from the case-law of the ECJ concerning the resolution of conflicts of rights in relation to security, as the former are framed in the context of open markets under European governance. The relationship between measures adopted on grounds of internal security and the overall functioning of the single market or the criterion of connexity as a ‘switch mechanism’ between governance and government may be highlighted in this respect. Moreover, it was argued that the implications of certain principles of ‘core democracy’, notably the lack of suspicion proper to democratic dignity, should be further investigated. Last but not least, more focused and case-specific guidelines for upholding the ‘rights of the governed’ at all levels of application of policy measures interfering with personal security should be introduced.

Chapter 7

Transparency and Accountability: From Structuro-Procedural Transparency and Institutional Accountability to Communicating (In)Security in Digi-Space Juliet Lodge

Introduction Transparency and accountability have traditionally been viewed as two sides of the same coin, as the key to the exercise of democratic control over the executive, and as part of the toolbox for preventing the abuse of power by executive agencies. These are seen as essential pre-requisites for maintaining public trust in political authorities and for the sustainability and practice of liberal representative democracy through government institutions in Western models of democracy. The democratic legitimacy of the administration and implementation of public policy are sustained by the institutionalization of transparency and institutional accountability, notably expressed through the sufficient exercise of parliamentary control powers, and through codes and practices that define the limits of openness (such as rules of secrecy). The ability of a parliament elected in free universal elections to ‘control the executive’ (and all its actions in governing and governance) is traditionally seen as the key to inhibiting abuses of and the arbitrary exercise of power and authority. Where this institutional check is non-existent, weak, not credible or failing in practice, a democratic deficit arises. This WP focused on problems of transparency and accountability in the EU, with specific reference to the issues arising in the AFSJ. The work was divided into three phases. The first focused on institutional and constitutional bargains in EU decision-making, and institutional-constitutional changes to supranational decision-making. The second phase focused on the reconfiguration of borders, the implications for conceptions of citizenship and identity through the use of biometric tools in the management of borders using Information and Communication Technologies (ICTs), and the associated moving of border controls to beyond the territorial border of the state in question. The third phase led to a detailed examination of ‘benign’ and second generation biometrics in the service of domestic purposes, tracking and security, and the arbitrary sorting and division of society.

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Each phase confirmed a trend towards the emasculation and progressive insufficiency of the institutional/constitutional design for the ensuring democratic legitimacy, transparency and accountability. This was increasingly evident not just in respect of security and border management, nor in the securitization of domestic politics. It was symptomatic of a profound shift in the conduct and implementation of government and public policy-making attending the often ill-thought-out use of ICTs. By starting with the traditional overview of transparency and openness among EU institutions and the associated doctrine of ‘access to documents’, we moved swiftly to advocate a more realistic, ICT-relevant definition of ‘document’, and called for reassessment of how democratic accountability was to be realized in an age of invisible digi-borders and the privatization or semi-privatization of responsibility for accountability in public policy provision and implementation, and the increasing privatization of responsibility for risk management, including onto the shoulders of individual citizens. There is an endemic problem of insufficient, inadequate and inappropriate politico-legal tools. The research has taken us into a critical examination of the ethics of and the impact of the technologies for realizing FSJ in practice and of the development of such cross border information exchange possibilities with EU agencies and industry. The research has been informed by end-user concerns and has been noted by policymakers. The Joint Research Centre (Seville), and the European Commission (Brussels) took a particular interest in our deliberations on the ethicopolitical aspects. These too were taken up by engagement with natural science and engineering scholars in 2007, as well as with others in broader socio-economic and political academic and think tank circles. From the outset, the research has been noted by policymakers. At the invitation of the EP’s LIBE Committee we made several submissions on biometrics, security and interoperability for crossborder information exchange (as in e-judicial cooperation), and on the future of Europol at public and committee hearings. We were invited to be cross-examined by the House of Lords on the future of Europol in April 2008. Our starting point at the structure-institutional level was the nature of the democratic deficit, as typically portrayed by those claiming such a gap existed especially at the EU level. We did not share this conviction and had made submissions on this even to those preparing the Convention on the Future of Europe, arguing for greater institutional checks on processes of government increasingly subject to conduct through information and communication technology tools that escape traditional political oversight. We therefore initially expected to examine, in later stages of the research, the democratic deficiencies of national parliaments in EU matters relating to borders, but quickly reconceptualized and de-territorialized borders. We began, however, with the EU.

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The Problem of (In)Sufficient and (In)Appropriate Transparency and Accountability The issues of sufficient and effective transparency as a precondition of the effective exercise of accountability have guided the EP’s efforts since its inception, and especially since the first direct elections in 1979, to augment its competence, functions, authority and ultimately constitutionally entrenched powers. Accordingly, the research first examined the institutional balance and structures of accountability that had been traditionally associated with the issues of the EU’s democratic legitimacy and the identification and remediation of the democratic deficits. Consequently, the reconfiguration of authority, the roles of national parliaments in the AFSJ, the expanding power and influence of the EP were reviewed. This was complemented by examining the claims-making to justify exceptions to transparency and openness by national governments and by the EU’s executive, the Commission and the Council of Ministers. Case studies of practice and the administrative-politico cultures of a number of member states followed: Austria, Finland, Spain and the UK, complemented by later reviews in the Netherlands, Estonia and Germany. The EP has been identified as the locus of the democratic deficit since the Rome Treaty but has progressively increased its legislative role and with it, its capacity for holding the executive (Commission and Council of Ministers) to account. Codecision constitutionalizes this. Codecision is not (yet) universal. In the policy sectors falling under the third pillar, parliaments’ ability to ensure accountability and transparency is weaker. The practices of ‘soft law’, bilateral agreements, and variable means of coming to intergovernmental understanding, coupled with the invocation of secrecy codes, exacerbates this. The research found that risks to liberty and security of insufficient and inappropriate transparency and accountability are magnified by a communication deficit. This was explored in relation to structuro-procedural deficiencies, technological automatic information exchange, and the role of parliaments and publics in the AFSJ. The communication deficit exacerbates a sense of fragmented freedom without consolidating a sense of security. What is communicated is not security but (in)security; freedom under threat; and transparency and accountability mechanisms that are insufficient or inadequate to the challenges of a digi-age. Empirical evidence shows how this is embedded in the political and organizational cultures of government; how traditional transparency and accountability control mechanisms – notably parliaments – have contributed to the communication deficit and lag too far behind in their grasp of technology to exercise effective control to ensure freedom; and how transparency and accountability need to be revisited in the digi-era if FSJ are to be sustainable. The privacy versus security dilemma in a risk society needs to be mediated by authoritative political institutions. The EP arguably has inspired other national parliaments belatedly to take on this challenge.

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The clash of values and expectations is highlighted by an examination of the nature of transparency and accountability in the AFSJ. Exceptions, Transparency and Accountability Transparency and accountability are often seen as two sides of the same coin: for accountability to be rendered possible, there has to be a degree of openness regarding the exchange of information. For accountability to be effective, there have to be politico-legal, institutional and procedural mechanisms that provide for disclosure of information; and time for reflection and the exercise of scrutiny and control over the agency providing the information. In short, there has to be communication. Traditionally, the area of security policy in member states is one that is subject to exceptions in the name of the ‘national interest’ and ‘national security’, and to official secrets law. Exceptions normally legitimize derogations from a principle of openness and transparency. They are associated with times of crisis and emergency. They are portrayed as the essential preconditions for operational success in the exercise and deployment of military or police power. The sovereign state’s mobilization of the tools of combat in the name of securitizing territorial borders, however that may be justified, is typically done with a high degree of secrecy. States normally have rules and guidelines on secrecy, on the classification of documents by governments in ways which regulate and/or prevent their disclosure to parliaments and the public for sometimes 30 years or more. They also have systems of vetting public servants and officials likely to access or seek partial or full access to a variety of documents and other sources of information produced during the conduct of government business. The EU has followed this pattern in a somewhat ad hoc, disconnected way, focusing primarily on access to documents. More recently, through the EP’s more critical challenges, and mainstreaming of concern over excessive secrecy, the Council and Commission are being forced into greater openness. A notable illustration of this were the rules adopted in the Committee on Constitutional Affairs in April 2008 amending the European Ombudsman’s access to information to replace the clauses on access to information being deniable on ‘grounds of secrecy’. The new text proposed at committee stage set out instead how classified information obtained by the Ombudsman should be handled. The EP’s LIBE Committee in June 2008 followed this with an examination of a Freedom of Information Act. The British House of Lords shortly thereafter in its examination of the new role of Europol (just over a year after that by the LIBE Committee of the EP) was also to address similar issues. Whereas, our starting premise was that there was a democratic deficit at EU level in the AFSJ sphere exemplified by the institutional-politico-legal rules, exemptions and exceptions of third pillar, it has become apparent that the steps

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taken by governments to address this are not only partial and incomplete, they are insufficient and possibly irrelevant even with the Lisbon Treaty improvements in parliamentary scrutiny and accountability. AFSJ issues permeate many facets of daily life. The tools deployed by a variety of public and private agencies on behalf of the sovereign governments and the sui generis EU to give effect to the AFSJ goals magnify a different kind of deficit: a communication deficit. This communication deficit, however, cannot be examined simply in terms of the Commission’s Plan D’s conception of deficit. It is not simply about making citizens more aware of their rights, obligations, entitlements and mobility resulting from being nationals of the EU member states. The communication deficit cannot be construed as a failure of adequate advertizing and information. The communication deficit is more insidious and poses a greater danger to sustainable transparency and accountability than this. The tools to counteract it may paradoxically reside with parliaments but no matter how assiduous they are in making their publics aware of how their freedoms are being undermined, they can only provide partial answers to preventing and deterring their annihilation. Communication: Information versus Ideals The communication deficit has three elements. The first is institutional and relates to the role of parliaments. The second is technological and concerns the role of ICTs for public policy purposes; and the third covers the sociopsychological dimensions of public perceptions of the relevance, trustworthiness and responsiveness of government bodies to citizens. Together the three highlight a communications paradox and compound a communications deficit in an age of ever-more varied, ICT-enhanced communication and public policy possibilities. The multi-faceted communication deficit affects the nature and sustainability of the democratic bargain between the governed and the government in ways that endanger liberty without sufficiently ensuring security. The role of communication is often overlooked or assumed to be a given. Yet the communication of information as a principle is taken for granted with too little attention given to its purpose, necessity or role in upholding both security and liberty. At European Commission level, communication is too often seen in terms of portraying the EU as a ‘desirable’ or ‘good thing’, informing citizens about the EU, and working on the assumption that informed citizens will want to participate in EU political life by voting in European elections and urging their national governments to support further integration (for example, by ratifying the Lisbon Treaty). This is a traditional approach to communication in political culture. We are not concerned with Plan D and its variants. Nor are we concerned with civic mapping, citizen participation in influencing public decisions, or in the tools used to provide information to boost their ‘problem-solving capacity’. While access

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to authoritative sources of information may have this effect, our focus is on the authoritative political agents of communication with the public (parliaments) and institutional-structural arrangements that are designed constitutionally to prevent a potential abuse of power by the government, and so sustain and uphold liberty. Transparency, Accountability and ICT-led Communication Transparency and accountability depend on communication. The research focused on the communication deficit at the institutional and at the technological level. It sought to improve our understanding of the combined impact on transparency and accountability in the AFSJ. At the institutional level, this translates into examination of regulations on transparency and accountability as part of the inter-institutional bargain between governments and parliaments where access to government information is a precondition of parliaments being able to make informed and transparent scrutiny possible and meaningful; on political cultures, and the organizational administrative cultures they subsume, for implementing those regulations; and parliaments’ functions vis-à-vis citizens in liberal democracies, specifically the exercise of the communication function. At the technological level, this requires an examination of the role of ICTs for e-government and border management. In examining communication in the EU, the research focused on its importance in the institutional domain; and its realization through ICTs. Where communication ceases to be seen as a tool to uphold liberty (something that can be seen in the declining importance attached to the exercise of effective parliamentary power), it risks becoming a tool that compromises it (for example, ICT audits and peer reviews masquerading as robust accountability checks). Citizens are confronted with a paradox: ICTs accelerate information flows and permit information exchanges in ways and for purposes over which the guardians of citizens’ public interests (parliaments) seem to have ever-decreasing scrutiny and control powers. As a result, ICT security tools potentially and inadvertently have the capacity to expedite the erosion of liberty because they are not subject to sufficient, open, transparent and accountable controls. Moreover, the absence of appropriate controls in digi-space aggravates an accountability and trust deficit that faster communication should, in theory, have forestalled. The Communication Deficit The communication deficit exhibits failings on three dimensions: the technological, the politico-administrative and the politico-economic. All impact negatively on the message governments convey inadvertently if not consciously about the purpose of prioritizing security over liberty through the application of the false god of allegedly secure and tamper proof ICTs. The communication deficit is symptomatic of fragmenting liberty, fragmented transparency and accountability and fragmenting trust in the agents entrusted with maintaining

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security and justice. The communication deficit needs to be addressed to make transparency and accountability meaningful and powerful in the digi-age. Here we are are not concerned with the means of communication but rather the purpose of transparency and accountability and their realization. The communication deficit is about the weaknesses inherent in not transmitting authoritative, relevant, reliable information in a timely manner. The effect of not doing so, whether inside parliaments, among parliaments, among public administrations, public agencies or public-private partnerships, or from politicians and journalists to the public is to undermine trust in the creators, disseminators and users of that information. This is particularly serious when the users are governments who make contestable claims on the basis of that information, its partial disclosure or its non-disclosure. The implications for sustaining liberty consequent upon an erosion of trust in the public agents charged with holding governments accountable have not yet been sufficiently probed. Below, we make a start by sketching in just some of the main elements of this communication deficit. The importance of politico-administrative cultures and institutional structures Institutionalization of the norms, practices and procedures of accountability and transparency reflects politico-legal values and commitments to sustaining them in ways that are visible, open, embedded, just, legitimate and not arbitrary. Administrative practices and cultures uphold them to a greater or lesser degree as our case studies of Austria, Finland, Spain and the UK reveal. Institutions are not sufficient in themselves to sustain liberty and freedom. New ICTs can be used for diverse private and public purposes beyond social and civic networking computermediated communication. ICTs’ impact on e-government and e-justice are not simply procedural. They may expedite administration and result in ‘efficiency gains’, but they also impact on the practices of transparency and accountability, something underscored by their appropriation by the champions of ‘security’. At the institutional level, parliaments exemplify politico-legal commitments to the practices, values and norms of representative, liberal democracies in the EU. Parliaments traditionally have been seen as having the following functions: legislative; representative and articulation; control powers vis-à-vis checking the executive; financial powers relating to the public purse; and communication, education and legitimation functions. No parliament matches the ideal. The EP since its inception has been seen as insufficiently robust in many respects, though its authority is vastly greater than what it was originally. For our purposes, the communication function is of special interest. It is associated with the exercise of the Grand Forum role; the arena in which the bid issues of the day are articulated, argued and justified. Where this ceases to happen, either because party cohesion is demanded (for example through the whip system) in order to support the government, this communication function can be denuded or robbed of its original purpose: holding the government to account visibly and in a way which is seen to reflect, articulate the public view (in all its heterogenity

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and diversity) and in a way that is timely enough to make a difference to what the government does in the name of the people, in the name of liberty or security. If the communication function is not performed adequately or appropriately (possibly for want of sufficient information in the first place) then national parliaments become the institutional expression, locus and part of the communication deficit. They cease to be able to perform credibly and creditably their function to ‘educate’ the public (as part of the educative function) or to lead to genuine debate and the possibility of change (rather than simply the overthrow of the incumbents). As a result, public trust in the legitimacy of the polity itself or more common that of government may be threatened. Overtime cynicism may lead to disaffection from the political processes underpinning the polity and the norms and values of liberal democracy taken for granted for so long. While the EP clearly champions the issues necessary to uphold democracy and sustain political accountability, its work too often remains invisible outside Brussels. Other issues contribute to its relative invisibility. But particular problems arise in relation to the communication of security. Communicating information ‘for security’: The illusion of the ICT ‘fix’ Beyond institutional arrangements and classificatory codes, the exercise of the communication function is compromised by the availability of insufficient, wrong, late and sub-optimal information. Perfect information is unattainable, but having access to sufficient information of sufficient quality is important in allowing MPs to make an informed opinion and judgment about the quality of the decisions advocated and advanced by government. This is necessarily constrained in matters regarding state security but the securitization of domestic politics and the fudging of the boundaries between internal and external security make this even more complicated. The speed with which ‘information’ can be processed and transmitted across borders using ICTs further challenges and erodes the capacity of decisionmakers and parliaments to demonstrate transparency and accountability. Where internal security policy matters are concerned, it is not just a matter of access to sufficient information. The question of the source of the information is important because differential sources compound the perceptual skewing that is inevitable in crisis decision-making; the tendency towards group think under time pressure; and in the face of misconstrued cultural signals. Moreover, a distinction must be made between information and intelligence. The latter includes not simply factual data but hunches, lies, suppositions – all of which may reflect and magnify earlier choices, unnecessarily restricted options, supine, ill-informed or apocalyptic views. The mixing of information and intelligence is common in security matters, especially in the pursuit of criminal suspects. How this is recorded, normally on paper or in word documents, by individual officers is one thing. How this is to be recorded in formats that can be exchanged between officials in one or more departments in one or more states places substantial demands on the ICT systems of automated information exchange, tracking, data entry, coding, storage, handling and so on.

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While it is possible for states to enter into bilateral agreements on information exchange, and while this may be the only practical option while genuine interoperability of diverse and often incompatible systems is impossible, the practice of bilateral accord-making becomes a route by which it is possible for governments to evade accountability. Indeed, some governments, especially third state governments like the US, may prefer bilateral over supranational arrangements precisely because it enhances their room for manouevre, their scope for discretion, for pushing their own agenda and inserting steps that may be repugnant to other member states. The overall effect is to erode the supranational pact and common weal, and the mutuality of solidarity to which EU member states are legally committed. The citizens’ response, in the advocacy of respect for civil liberties, highlights the need for confidence and trust to be re-established in government and the institutions and tools of government. That is not (yet) happening. What message then do governments communicate to citizens? Governments are evasive on three fronts: the technological, the politico-administrative, the politicoeconomic. All impact negatively on the message they convey inadvertently if not consciously about mutual respect and solidarity. The divergence in political cultures among the member states is both a source of potential difficulty and opportunity. It is possibly only through parliaments, championed by the EP, that the best practices will be honed to produce a European model of accountability in the ICT age. Lessons from our Case Studies Austria (an ICT champion); Finland (a transparency champion and ICT innovator); Spain (a security champion, somewhat fragmented polity where ICT roll-out is lagging); and the UK (a security and surveillance society champion). While other states claim to be the most open and most transparent, accountable e-governments around, they are not (yet) seen as typifying best practice or having practices transferable (yet) to the EU. Small states like Estonia are not strictly comparable since their size puts them on a par with relatively average cities in some other states and comparison with city governance would seem more appropriate. Germany and the Netherlands also reveal cross-cutting patterns and increasing concern with protecting the individual from data misuse with his explicit consent. However, this is a fast-moving field where new court rulings require further reappraisal and where new scientific and technological applications quickly outpace them. Austria The Austrian government has championed the application of and roll-out of ICTs in the name of transparency. A the local level this translates into civil transactions being accomplished online and all legislation being available in official form

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online; legislative tracking online and all manner of civil administrative transactions being conducted online. This is seen to bring convenience, efficiency gains and government openness to the business of public administration. It is deemed mutually beneficial to administrators and citizens alike. However, the advocacy of openness is confused with the idea of the provision of information. While administrative rules on government disclosure of information (when sought by the citizen) rely on self-motivated information seeking by the citizen and government-motivated provision of information online, this is not the same thing as accountability. Accountability is not the primary motor behind this in Austria, or in any other state. Indeed, the historical hierarchical administrative structures and practices in Austrian public administration inhibit openness and make it somewhat discretionary. Coupled with this, Austrian citizens have a relatively high degree of trust in their public servants, low concern over disclosing information via ICTs (which they implicitly trust as secure) and minimal anxiety over using new ICTs to verify and authenticate their identities for commercial, civil, legal or security transactions. Finland Finland has become synonymous with technological innovation, through Nokia and is a champion of government transparency for the purpose of parliamentary accountability. It consciously portrayed itself as such on accession to the EU. Historically, openness is entrenched in public administration. Secrecy or nondisclosure of information is the exception to the norm of openness, and this is reflected in the conduct of public administration and government at all levels for the most part. Public expectations of openness and transparency are endemic. Exceptions evoke questioning of government and a quest for open, explanation and justification. Trust in government is relatively high, bolstered by a tradition of effective ombudsmen and data protection and data privacy legislation, along with trust in the new ICTs used for public and private purposes. Spain Spain is an example of a security champion. It highlights paradoxes in the conduct of public administration and the use of ICTs for public policy purposes. On the one hand, the government has championed security (notably territorial security) and measures to combat illegal immigration, people trafficking, international organized crime and information exchange using ICTs for those purposes. On the other hand, the roll-out of ICT- enabled e-government and access to it by the public is below that in Austria, Finland and the UK even though some regions champion it and aspire to the same kind of government motivated information provision and civil administration online.

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The UK The UK is the most surveilled society in the world. Laws differ in Scotland and Northern Ireland in some respects. The British government champions exceptions to transparency and accountability. Among the most advanced in promoting the concept of ‘every citizen online’, and the provision of government information and civil transactions for public administration online, it faces the greatest public hostility to using ICTs for security purposes of all EU states. The reasons for this are muddied by historical factors and relate to the high profile of big system ICT failures for public policy purposes, and scandals over the loss of personal data by government. Trust in government is low, matched by deep cynicism over government claims as to the security bonus and added-value that greater digitization of information, automatic information exchange and ICTs contribute. England is where the sense of communication failure is greatest, where liberty is seen as threatened by the use of new ‘security’ tools; by the increasing securitization (and attendant invoking of exceptions to rules on openness) of policy areas; and by weak or non-existent, inadequate accountability in public-private arrangements using ICTs for public policy purposes. This is aggravated by scepticism as to the will of government to uphold sufficient data privacy and protection laws and an apparent government willingness to side-step trenchant criticism by the Data Privacy Ombudsman. Recent government initiatives for a bill of rights, publishing the national security strategy, boosting freedom of information, are neither seen as an adequate response to weak executive accountability to parliament and to the public, nor deemed sufficient to ‘protect’ and enhance citizen security given the range of British opt-outs from the Charter of Fundamental rights and under the AFSJ, Schengen and Lisbon Treaty. In short, Britain provides an example of a conflation between transparency and the provision of information. The value of transparency in the service of accountability seems ill-appreciated: transparency is not seen as a necessary tool of accountability in the service of liberty. Instead, it appears to be seen by the public as being viewed by government as a threat to security. In this, parliaments seem irrelevant or less relevant to the way in which transparency, openness and accountability are observed, practiced and upheld than the cultures of administrative practice, technological instruments and the values and norms underpinning the construction of socio-psychological communities inherent in addressing issues of risk management in the name of security. Cultures of Administration and Access to Documents Administrative Practice and Traditions Some cultures of public administration, regardless of legal regulations, are not as conducive to transparency and openness as may be necessary or an essential precondition of the national parliament exercising a genuine ‘scrutiny and control’ role

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vis-à-vis government. Differential rules on secrecy, on which level of civil servant has access to what level and category of information, varies so much that member governments are placed in different positions of being able to negotiate effectively inside the Council, within national parliaments and other agencies where they may seek to advocate a nationally inspired viewpoint. This may mean that there is a need for a degree of approximation in codes of behaviour, vetting of civil servants, definitions of ‘secrecy’ and rules on the disclosure or non-disclosure of specific documents and information, on the creation of new files (such as the Analysis Work Files (AWFs) in Europol) and the re-use or reconfiguration of information or intelligence. This in turn would lead to a far higher level of openness than some governments might find tolerable, not simply in the area of internal security, but more generally in respect of consumer legislation, environmental planning, public health and so on. Technological Instruments In the case of the AFSJ, security becomes the primary goal rather than an instrument to sustain liberty, and the new ICTs become its tool. In some states, there is evidence of a creeping culture of exemptions and exceptions to the rule of openness, in the name of security; and a lack of frankness in the communication to the public of new IT-enabled security measures which, as a side product, have the potential to erode individual and collective liberty. Discourse is framed in terms of insecurity, illegality and control. The tension in open communication of security is accentuated by technological innovations (notably biometric identification applications) and exemplified in: the uneasy relationship between data sharing and data protection; a lack of clarity over the finality principle for data re-use for purposes other than the original, including onward sale of personal data, data minimization, out-sourcing, splicing, re-sale and so on; and imprecision over appropriate accountability mechanisms for public-private data and information exchange for public policy purposes. In examining technological matters, the parameters of the debate are fuelled by the concept of establishing in a risk society a balance between security and privacy. In this debate, security holds sway through the application of new technologies, ambient and tracking enhanced technologies – such as Radio Frequency Identifications (RFIDs), Management Information Format Databases (MIFDs), automatic facial gait and Advanced Neuro Technologies (ANTs) − and the acceleration of the Internet of Things. Where public policy is concerned, the dominant issue for governments and publics alike has been the deployment of biometric identifiers for digi and physical border controls. In some states, this is highly sensitive and controversial, in others, hardly worth a mention. The explanation for such difference is to be found in formal systems of trust and accountability (such as the relative powers of elected parliaments, ombudsmen and information data protection laws) and in the politico-cultural environments. The bridge between the two is provided by understandings of trust: public trust

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in the honesty, integrity and reliability of institutions and politico-legal rules and practices; and trust (or lack of it) in the technological tools of information exchange. The politico-administrative accountability deficit arising from public-private partnerships is not subject to regular detailed parliamentary scrutiny. On top of this, it is the politico-economic nexus where governments become enmeshed in arrangements with industry which evolves ever-new tools and renders expensive systems rapidly obsolete, and hence, insecure. The paradox of the new ICTs for security is how governments and others in seeking to persuade publics about the joys and benefits of adopting them, communicate insecurity rather than security, compromise concepts of collective political accountability, personalize and privatize it, thereby making it ever more difficult, if not possible, for the traditional mechanisms of accountability to operate and ensure transparency, accountability and legitmacy. Socio-Psychological Impact: Defining Inside and Outside Space The often hetereogeneous and sometimes seemingly fragmenting socio-political cultures of the member states reflect concerns with disintegration, disappearing consensus over shared values and norms, distrust of the ‘other’, and public disengagement from political life. Governments have portrayed ‘e-government’ as a solution to the post-national evaporation of the civic ‘town hall’, and as an alternative means of communication to and from publics and governors. Governments tend to dissociate that use of ICTs from their employment of ICT tools for monitoring entry and exit to public services and especially to and from their territorial, sovereign jurisdiction. Governments use ICTs for identity verification and authentication as a security panacea, but disingenuous claimsmaking has heightened public concern about individual and collective identity and security, their personal and private meaning, their collective external expression and the way in which the ability of sovereign states to protect them is compromised by processes of out-sourced automatic information exchange. In digi-space, sovereignty is elusive and as governments semi-privatize responsibility for data handling, personal and collective liberty, security and freedom are compromised, and in and out-groups constantly defined and re-defined often arbitrarily by often invisible agents with little public legitimation. Impact on Society: Division and Insecurity The differentiation permitted by ICTs for identification purposes highlights difference rather than similarity. It is predicated on uniqueness. This uniqueness is supposed simultaneously to ensure ‘security’ by providing a gateway to allow many ‘unique’ individuals into a defined space from which other equally ‘unique’ individuals are to be excluded. The grounds for exclusion, formerly defined in

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relation to criminal law goals which necessarily rest on discrimination and definition of acceptable and unacceptable behaviour, creep into civil domains and accelerate processes of social sorting. This in turn makes it easier for governments and law enforcement agencies to justify and legitimize their own actions and to invoke exceptions and exemptions in the name of security. Often legitimate operational requirements add to the need to minimize the content of any communication to what is absolutely necessary and to limit its dissemination to specified categories of individuals, release time periods, and in so doing to cut the opportunity for open discussion, transparency and political accountability. This both shapes and aggravates a generalized communication deficit. The tools are becoming ever more technically advanced. The impact and implications for the exercise of governance as we have known it is scarcely acknowledged: ICTs and cyborgs; ambient intelligence and nano-technology; the Internet of Things and the internet of nets profoundly change society. RFIDs for tracking and border control (whether territorial or digital for security, leisure or commercial purposes) create or respond to economic vested interests selling technological tools to enhance tracking. However, their unthinking or malevolent deployment potentially risks denuding civil liberties and individual rights of their content. While this is increasingly recognized by governments and parliaments, the appropriate remedy remains elusive, and weak or insufficiently critical public and parliamentary discourse allows for slippage. This imperceptibly but exponentially compromises the sustainability of democratic practices as its core values are stripped of meaning and ICTs used for private, public and commercial transactions transform the justiciability of rules, impact the implementation of law, and demand a re-thinking of what this type of social sorting means for the sustainability of justice. It is imperative to get beyond the hype to understand how technology re-borders Europe in ways that go beyond the shift of physical border controls to third states and third parties in digi-space. Communicating Deficits: Confusion and Implausible Security Claims There is a pervasive sense of confusion among governments as to the risks of deploying new tools for facilitating and monitoring all kinds of activity. Those purportedly designed for ensuring the security of the territorial space (such as RFID tags) increasingly pervade the private realm of the citizen’s personal space. Citizens are often ignorant about how they also compromise it by their use of leisure and social spaces (such as Facebook and Twitter), and equally unaware of the ways in which responsibility and accountability for information on those sites in privatized to corporate interests as well as to the individual user. Not only is this disproportionate, discriminatory and prejudices the weak and vulnerable in society, but it is divisive, endangers and challenges core norms, values and ethical ideals which, by not being communicated and debated in a public space or grand forum, are liable to capture by those able to do so. Consequently, the privatization

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of responsibility and accountability leads to the danger of a commodification and commercialization of privacy. Privatizing Privacy, Accountability and Transparency: The Need for a Political Mediator Public anxiety over the appropriation, reconfiguration and sale of data by and to government authorities and other ‘invisible’ agencies (whether companies or third country authorities) without their consent, for equally invisible or unknown purposes, poses recognizable threats to security. The hard-sell – security to make liberty sustainable within territorialized borders – loses its appeal when combined with a range of technologies that are intrusive and render privacy not simply potentially devoid of meaning but increasingly impossible of being sufficiently accountable to visible political leaders. This in turn means that the notion of liberty and personal liberty and collective freedom needs to be re-visited. What is freedom? How is it expressed and crucially how can it be protected? Transparency and openness may provide benchmarks but increasing exemptions and exceptions curtail their usefulness as indicators of free, open, democratic practice. Therefore, the old procedural steps tracking parliamentary access to government information expressed by freedom as ‘openness and access to documents’ provide but a partial answer. How is it protected in a transparent and accountable way? It is vital to re-assess the riskiness of creeping closure and the dangers of not addressing robustly the need for a political, institutional response to fragmented security, which itself results from securitization of a domestic agenda and the roll-out of ICTs for tracking in digi-space. This must go beyond a technological response, embedding bakedin privacy in enhanced security architectures. It must recognize and address the socio-psychological dimension of accelerating processes of social sorting – the categorization and re-categorization of dimensions of them and us, and evaluate the impact on deriving, creating, asserting and sustaining shared consensual concepts of European values and appropriate, transparent and accountable ways of upholding and protecting them, possibly using ICTs. The need for a powerful political interlocuteur remains. The voice of the champions – the EP and its LIBE Committee – aided by the EDPS, ombudsmen and national information commissioners – needs to be complemented by action and parallel scrutiny and vigilance responsibilities in the Commission, the Council and all EU institutions and agencies, notably Frontex, Europol, Eurojust and the Fundamental Rights Agency. It also needs to be boosted by national parliaments taking up the challenge of this creeping privatization of accountability and privacy, and the erosion of the political public sphere. Sustaining FSJ requires institutional expression; and it needs champions – parliaments informed and backed by EP, Ombudsmen, civil rights organizations, the law, legal entrenchment, a bill of rights as a cornerstone and reference point. Clarity and effective communication of goals, purposes and means is vital to

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eliciting understanding and consent, neither of which can be taken for granted, and for exercizing and demanding public accountability. Compound Communication Deficits and Rising (In)Securitization The case studies coupled with our analysis of tools for managing identity and access to ‘space’ highlight a communications paradox and compound a political communications deficit in an age of ever-more varied, ICT-enhanced communication and public policy possibilities. In theory, they enhance the potential for automatically exchanging increasing volumes of information but, counter to what might be expected, they do not necessarily reduce or overcome either a communications or democratic deficit. Technological capabilities define agendas in ways which allow bureaucrats and vendors of ICTs greater control than elected politicians. Ethical Liberty? Using ICTs as a tool of security begs questions about the nature of liberty? Without security there can be no liberty. Are the right questions being asked when there seems to be pervasive securitization of domestic and private space? Or has the application of ICTs to these spaces blinded us to how security goals can be made to serve the cause of liberty? Is the principle of fielty in exchange for security – the traditional contract between citizen and state – transformed or rendered obsolete by the information society and ubiquitous ICTs? If the notion of security is re-considered and rolled out across domestic policy areas, and expressed through the idea of securitization, then the duty of government to uphold citizens’ security is also domesticized or internalized. Logically, it extends from trade, policing and environmental issues, to social welfare, health (including border health checks on tourists and migrants), childcare and the individual’s daily life in his home. In its exaggerated form, the welfare system becomes the rationale for an interfering state probing the corners of each citizen’s life. This is potentially more corrosive than sometimes daft minutiae of British health and safety requirements, RFID digi-tracking and ubiquitous surveillance modes (to allow parents to observe their children at school throughout the day and so on) – tracking gone mad. Does this perversion of ‘security’ empty risk and liberty of meaning, and does it augur the organization of society according to the precepts of automated information exchange, haptic and ambient intelligences, humanoid robotics and ICT prescriptiveness that renders the individual subservient to ICT processes controlled by agencies invisible to ordinary, socially sorted and endlessly reconfigured citizens in reconfigured digi-defined space? Such scenarios are less fanciful than may be assumed and demand a critical re-assessment of the distinction between the public and the private, about appropriateness, function creep, purpose minimization, data re-use, ownership, sale and identity per se, not

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just the measured ‘identity’ compressed into a biometric identifier which provides simply a way to more speedily, in automated systems, check and verify the purported identity claimed by the individual, claiming his identity, being checked for authenticity. Accountability or Liability for Privacy, Security and Liberty? Our research findings show how the claims made for accountability and transparency stretch the boundaries between individual responsibility and collective responsibility, individual accountability and collective accountability. What is government responsibility towards citizens in digi-space? Have mutual obligations changed? How are they checked? How is abuse of authority to be prevented and liberty and security preserved and sustained as primary goals and duties of government at all levels? The case studies show the need to distinguish between, and separate power for political responsibility and administrative responsibility and accountability respectively. The research into ICTs reveals the need for a requirement of mutual information so that publicly accountable political powers know and understand what is going on, and can bear responsibility for it. This is why transparency is necessary (at their own administrative levels of communication) and vis-à-vis public. If Ombudsmen take on privacy impact assessment reviews, what role should fall to political public communicators? Impact assessments are insufficient per se to affirm and sustain FSJ without political clout to rein in those contravening thoroughly and regularly reviewed, revised and approved norms on an ongoing basis. Weakness must be rectified by swift political action enjoying public consent and trust. Failing this, will the process of securitizing ‘borders’ end in a one-way obligation in which governments make demands of their own and third states’ citizens? Does government accountability to their ‘own’ citizens now imply little more than auditable trails rather than overt, highly visible, contestable and clearly communicated accountability as demonstrated through government ministers being publicly accountable for their actions (and those of private or semi private public partnerships acting on behalf of government) to the elected representatives of the people? Concluding Remarks In examining communication in the EU, we focused on its importance in the institutional domain; and its realization through ICTs. ICTs accelerate information flows and permit automated information exchanges in ways and for purposes over which the guardians of citizens’ public interests (parliaments) seem to have everdecreasing scrutiny and control powers. ICT security tools potentially have the capacity to expedite the erosion of liberty because they are not subject to sufficient, open, transparent and accountable controls. Moreover, the absence of appropriate

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controls in digi-space aggravates an accountability and trust deficit that faster communication should, in theory, have forestalled, and simultaneously re-borders the European border in institutional-administrative, socio-legal, technological and cultural terms. In the past, the concept of a democratic deficit and a legitimacy deficit were inextricably linked to the question of an appropriate balance of power, resting on information exchange and respectful communication between the Council and the EP. Now, as a result of successive institutional reforms, and the European Parliament’s push on transparency and accountability (from the Commission access to documents initiative of 1994 to codecision, subsidiarity and a greater role for national parliaments under the Lisbon Treaty) and the use of ICTs to communicate information to citizens (blogs, online access to documents and so on), the issue is not so much one of inter-institutional relations as the regulation of what type of information exchange can be used (and rendered accountable) as much as the regulation of the acquisition, configuration, transmission, commerce in and processes by which information (and/or intelligence) public authorities have can be shared by them, with whom and for what purposes without explicit and express public or individual consent. Implications for Theory Theorizing the democratic deficit requires an inter-disciplinary re-assessment of the role of communication and mediation. The role of communication is often overlooked or assumed to be a given. Yet the communication of information as a principle is taken for granted with too little attention given to its purpose, necessity or role in upholding both security and liberty. Small wonder that people ask what the purpose of government is when it is seen as unable to hold politico-economic interests to account for security failures (including data losses and theft) and weaknesses that are probably known from the outset. The overall impression is therefore one of governments having something ‘bad’ to conceal; and doing their utmost to minimize the extent to which they have to be open and transparent about the detail of their intentions, modes of realizing them and the latitude they are prepared to tolerate among their parliamentary supporters and the public. Implications for Practice: Delegitimization of Political Claims-making regarding Insecure ‘Secure’ ICTs Public authorities’ claims as to the imperviousness and robust security architectures of information systems and tools they introduce for public policy purposes are undermined and proved to be lacking in credibility with each incursion. Public authorities have a monopoly; citizens cannot opt in and out if they want to participate in society. They have to use public services and possess increasingly biometric documents authenticating and verifying their identity. Without them, mobility is compromised. Exaggerated government claims over the security of citizens’

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private information against insider and outsider interception, fragmentation, theft, and degradation does not help the cause of either the security goals these ICTs are supposed to enhance; or the perceived honesty and trustworthiness of the government. Both are compromised in ways that erode the legitimacy of the government in the eyes of their citizens. The government ceases to be believed to be a just and honest source of authoritative information. This is more than a case of cynicism in the face of ‘spin’. Government implausibility endangers the values and practices upon which the liberal democratic polity is based, challenges its credibility, legitimacy and sustainability. The Politico-Legal Paradigm: Necessary but not Sufficient Political and legal rules and legislation are necessary to ensure the democratic legitimacy and democratic contract designed to entrench citizen fielty or loyalty in exchange for security. Without security, it is argued, liberty is impossible. But what kind of liberty? What kind of security? Liberty from outside oppression and tyranny? Security against territorial sequestration by an external enemy? Security against those inside the territorial boundaries who may be intolerant of difference, malevolent or intent on fomenting disorder or bringing down the state by unparliamentary means? Or who may just articulate dissent and question the dominant paradigm? If the state and its agents seek to use ICTs as security tools to guard against every possible ‘threat’, and track and check movements in person or virtual digi-spaces of individuals inside state borders, questions arise about the balance between liberty and security. Is it possible to conceptualize a point on a liberty-security continuum where security ceases to serve the cause of liberty and erodes it instead? This in turn suggests the need for precision, for purpose limitation and purpose minization of security tool deployment if liberty is not to be corroded. Security tools can be used for good or ill. Is it possible to define and discern the limits of ethical security? And if not of ethical security then of the ethical application of new security tools? The increasing securitization of domestic policy fields over the past decades has been matched by a communications revolution. Its impact on transparency and accountability is ill-understood but has far-reaching implications for the practice and sustainability of the mechanisms, procedures and politicolegal institutions of transparency and accountability characteristic of western, liberal democratic polities. Why does this matter? It matters because it highlights the risks to liberal democratic polities in terms of the effectiveness, relevance and legitimacy of the political values, institutions and practices that have sustained them since 1945. It matters too because a clash of values and expectations impacts on public perceptions of the degree to which governments are seen to be and are believed to be just and legitimate in their exercise of power, in their distribution and allocation of public goods, and in their championing and representing the public will. This clash of values and expectations is highlighted by an examination of the nature of transparency and accountability in the AFSJ.

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In conclusion, our research suggests the need to complement theories of international relations and international society, politico-institutionalist, comparative, cosmopolitan, participatory and socio-legal and philosophy theories with mediatization and communications theories in order to better understand the impact of ICTs for territorial border management and control on the conceptualization of borders and the re-bordering of Europe, and on the concept of a digi-public space and identity amenable to the exercise of political responsibility, controls and accountability. A cross-disciplinary approach to this is needed, grounded in an understanding of the ethical applications of ICTs for public policy purposes, whether relating to individual or collective security, privacy and identity management, in ever-changing, mixed-purpose, opaque, self-reconfiguring digispaces that inevitable elude traditional political mechanisms of accountability. Contemporary scrutiny of problems of transparency and accountability not only involves a review of the decline of legislatures’ traditional functions and powers, it demands critical reflection on the transformational promise of automated information exchange and ‘e-government’. Transparency and accountability conceptualized as a multi-level authority legitimacy transfer, or reconfigured as micro-managerial quick fix peer reviews and audit trails must be recognized as inadequate and insufficient to the tasks of contemporary governance. Making e-government transparent and accountable in any domain, whether legitimized or justified by the ‘security rationale’, requires above all reflection on the ethical use and purposes of ICTs. There is an impelling need to address the impact of ICTs on access to unseen practices of information exchange and virtuality. By focusing on issues of ICT ownership and control, the wrong questions risk blinding us to the need to reduce practices of discretionary non-disclosure and exceptions, to maintain the vigilance of national parliaments, ombudsmen and data protection supervisors, to query the alleged ‘necessity’ of function creep inherent in the unthinking use of ‘exceptions’ for ‘security’ and financial exemptions, to reinforce legal compliance, especially in the multi-tiered complexities of outsourced processes and murky interoperability. As yet, the loss of parliamentary control is not compensated for by the tools of transparency and accountability. Can the erosion of trust in authority and its politico-legal processes be dammed while the democratic deficit is compounded by information access, information management, information classification, technological, institutional and critical thinking deficits? Shifts in governance at Europe’s physical and legal borders and the losses of accountability, partly resulting from disproportionate use of biometric ICTs, result in the emergence of fuzzy, lazy borders that are insufficient to secure democratic decision-making, protect individual or collective rights and freedoms, or sustain liberty and security. Yet, transparency and accountability remain vital for, as the Convention on the Future of Europe insisted in 2002, citizens must be able to understand the system so that they can identify its problems, criticize it, and ultimately control it. The research showed how this has been compromised and what new challenges must be addressed urgently to sustain liberty and security.

PART II Liberty Challenges to Borders

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Chapter 8

The Legal Competence With Regard to External Borders: Examining Coherence Leonard F.M. Besselink, Evelien Brouwer, Galina Cornelisse and Imelda Tappeiner

Introduction At the core of this chapter is the identification of the shifts in governance that have occurred with respect to the legal competence on the control over state borders. Borders have traditionally been an important aspect of the protection of internal and external security. Paradoxically, in the age of globalization they have become more so than ever before. But it is also globalization which necessitated the erection of ‘new’ borders next to the increasingly permeable and – in a sense – irrelevant territorial borders between states. This paradox fundamentally affects our understanding of European integration as an ‘upward’ shift of powers into a much more complex dynamic. This has been studied by our team from the legal point of view. It has done so with particular regard to their consequences for the position of the individual towards competent public authorities in terms of individual rights and political accountability. This chapter sums up some of the results of our work in the CHALLENGE project. Our research has explored the changing manifestations of the notion of state ‘borders’ in an age marked by security concerns, which at least partly flow from a number of diffuse and related processes that have been brought together under the labels of Europeanization and globalization. In this chapter, the implications of these changing manifestations for the rights of the individual have been teased out by distinguishing five ways in which our research has conceptualized borders: national borders, external borders, digital borders, borders of identity and coercive borders. National Borders in an AFSJ Internal Borders and Public Order European integration is to the highest possible extent focused on borders, ostensibly abolishing them internally and creating an external one. Nevertheless, our research

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has showed that this process is not as straightforward as it may seem in theory, as new internal borders have been erected that do not so much follow geographic but personal lines, while the external border creates territorially solidified sovereign entities within. Nor is the process of European integration merely one of transfer of competences from a national to a European level. A transnational process via the institutions of the EU and soft law decision-making has been crucial in the case of police cooperation in the field of the maintenance of order in the public domain. A case study undertaken on EU decision-making concerning exchange of police information on actual or potential football hooligans and demonstrators with a view to maintenance of public order – an area in which the EU does not have an explicit competence attributed in a specific and precise treaty provision – shows how these processes contribute to reinforce the state’s control over this sensitive area1 (Tappeiner 2009). It exemplifies how various rights of free movement and human rights such as the freedom of assembly and demonstration threaten to become ignored or overruled in a tendency by which football hooligans, demonstrators and terrorists are considered to be of a kind and a tendency by which ‘security by prevention’ prevails above these freedoms. TCNs in an Area without Internal Borders Seeing that the notion of borders thus engages what has been perceived as the ‘core of national sovereignty’, shifts in governance with regard to borders and third country nationals in particular have not been smooth. The ensuing legal framework that regulates the rights of movement of TCNs thus mirrors the ambiguity with which European member states have worked towards integration. Paradoxical as it may seem, the importance that national states attach to the national territorial ideal is exemplified by the Europeanization of immigration policy and by the legal framework regulating free movement of TCNs within the EU. The way in which national states have recourse to national sovereignty when it comes to free movement rights of TCNs within the EU implies that an area without internal frontiers has not truly been established. Internal or national borders, although

1 Article 33 TEU: ‘This title [the EU ‘third pillar’] shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’; Article 35 (5) TEU: ‘The Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’; Article 64 (1) TEC: ‘This title [on the AFSJ] shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’; Article 68 (2) TEC: ‘In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 62 (1) relating to the maintenance of law and order and the safeguarding of internal security.’

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they are now free of physical control, still differentiate between various kinds of movement depending on the nationality of the individual concerned. Thus, member states’ reluctance to abolish the function of the internal border with regard to TCNs, and the ensuing consequences for the delimitation of competences between the EU and its member states with regard to the admission of TCNs who are family members of EU citizens, has led to inconsistencies and inequality in the legal regime regulating their rights of free movement (Tekovsky 2007). The ambiguity that until recently characterized case law of the ECJ, exemplified by its judgments in Akrich2, Jia3 and Eind4 is the result of European integration being strongly driven by a wish to maintain and strengthen the ideal of the state as a politically sovereign territorial entity. The way in which the more recent judgment in Metock5 was received by member states shows that they still prioritize their sovereign prerogatives with regard to TCNs over the development of fair and consistent legal norms governing the framework for free movement in an area allegedly without internal borders. An investigation of the motives underlying the Europeanization of policymaking regarding immigration into the EU by TCNs shows that the process of integration in this field is similarly driven by a deeply felt wish to maintain the traditional role of national boundaries in protecting the identity of the nation state (Cornelisse 2007 and 2010). Law and policy-making under Title IV TEC has thus far put strong emphasis on protecting the territorial border by preventing new arrivals and fighting ‘illegal’ migration. This, combined with the fact that member states find it much more difficult to achieve integration in the field of legal migration (which as regards TCNs remains largely a sovereign prerogative), affirms that they prioritize safeguarding the link between territorial sovereignty and national political communities over working towards truly post-national conceptions of political community. The exclusion of long-term legal residents from European citizenship status provides another good example of member states’ reluctance to concede to tendencies which seem to restrict their power to decide over whom belongs to the body politic, as shall be elaborated upon below. The making of a European immigration policy and the shaping of a legal framework regulating the status of TCNs within Europe could have provided an opening to question fixed and reified notions about the link between territorial sovereignty as the basis for political community and exclusion of the foreigner. The link between territorial exclusion and the individual who is defined as the other – an alien – remains a perceived self-evidence. This ‘obduracy of the national 2 Judgment of 23 September 2003 in Case C-109/01: Secretary of State for the Home Department v. Hacene Akrich. 3 Judgment of 9 January 2007 in Case C-1/05: Yunying Jia v. Migrationsverket. 4 Judgment of 11 December 2007 in Case C-291/05: Minister voor Vreemdelingenzaken en Integratie v. R. N. G. Eind. 5 Judgment of 25 July 2008 in Case C-127/08: Metock and others v. Minister for Justice, Equality and Law Reform.

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border’ deeply influences the rights and freedoms of the individual. That is so because the perception of a self-evident relation between territorial sovereignty and exclusion of the foreigner makes us lose sight of the actual individual affected by exclusionary measures in the area of immigration (Cornelisse 2008c and 2010). The dominating logic of territorial sovereignty in matters relating to immigration limits the possibilities to challenge sovereign decisions of the state regarding territorial exclusion of the alien on the basis of the rule of law to a very limited number of cases. This in turn limits accountability, and all the more at the European level, where legislative measures relating to immigration are often concluded in secret and are difficult to have access to and scrutinize, even when the EP is involved and needs to decide over amendments in the infamous ‘trialogues’ (Acosta 2009).6 External Borders: The Europeanization of Policies of Externalization Border control is being externalized beyond the state’s confines. Current mechanisms of management and control of cross-border movement come into operation long before a migrant is present at or within the territorial borders of the receiving state, in some cases even before that person has left his or her country of origin. The aim of such practices is to stem migration flows at their source and ensure that migrants do not reach the territory of receiving states. A particular instance of police à distance that has received considerable attention recently is the way in which several European member states have worked together at sea, intercepting migrants that have departed or intend to depart from the coast of North-West Africa – efforts which are increasingly managed by Frontex, the agency coordinating operational activities concerning external border control by member states.7 European countries like Spain, Germany, France, Italy, Luxembourg and Portugal have participated in these particular operations, based upon bilateral agreements between Spain, Mauritania, Cape Verde and Senegal, and implemented in cooperation with these latter states. Member states’ cooperation in the framework of Frontex entails providing material assistance (ships, helicopters and airplanes) and making personnel available. For instance, within the framework of Frontex, Luxembourg made available a helicopter to Mauritania. This is based in Nouakchott and undertakes air patrols along the Mauritanian coast.8 During 2006 6 This was among several other issues central to our research theme discussed with regard to the SBC and the ‘Returns Directive’ in CHALLENGE Round Tables in Utrecht on 2 June 2006 and 17 April 2007. 7 European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the EU, Council Regulation (EC) No. 2007/2004 of 26 October 2004 (OJ L 349/1, 25 November 2004). 8 Amnesty International, Mauritania: Nobody wants to have anything to do with us. Collective expulsions of migrants denied entry into Europe, 1 July 2008; Frontex Annual Report 2006, available at .

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and 2007, as a result of these operations, thousands of migrants were intercepted in the territorial waters of Senegal and Mauritania, and have been diverted back to the coast of the territories that they attempted to leave.9 Analyses of the legal challenges posed by the interception of migrants have predominantly focused on the rights of refugees and non-refoulement. This strong emphasis on refugee rights whenever externalization is discussed may give the impression that the interception of non-refugee – often called ‘illegal’ – migrants does not raise fundamental questions. A shift of focus to the wider implications of this specific form of externalization and its international legal aspects is much called for. The interception of migrants at sea exemplifies clearly that globalization has caused heightened mobility for some, while resulting in immobility for others (Bauman 1998). The official discourse dealing with interception practices reflects, however, a misplaced belief that such categorization of movement has a clear and unequivocal basis in the law. In Frontex documents, such as its annual or general report and information it makes available to the press on its website, the notion of illegal immigration has been replaced by the notion of illegal migration. These documents create the impression that Frontex’s mission is not merely to coordinate member states efforts to fight illegal immigration in order to protect the external border, but that the scope of its operations covers a far wider field of managing and controlling human movement in general,10 an approach which is incidentally rather uncritically adopted by officials implementing policies of externalization as well.11 However, the use of the term illegality connotes the individual violation of a legal norm, and the assumption is hence that individuals that attempt to leave the coast of North-West Africa by doing so trespass a legal norm. In order to evaluate the current practices of externalization in light of the terminology of (il)legality, an overview of the legal norms regulating international movement in general is much needed. A first step towards establishing such an overview is provided by focusing on the internationally guaranteed right to leave (Cornelisse 2008a and 2010), contained in Article 12 of the International Covenant for the Protection of Civil and Political Rights (ICCPR) and Article 2 of the Fourth Protocol to the ECHR. As externalization by definition concerns extraterritorial action by the state, any exploration of the legal obligations that the right to leave imposes on European states has also to examine the extraterritorial applicability of the ICCPR and the ECHR. Here, we only briefly touch upon the 9 Amnesty International, Mauritania: Nobody wants to have anything to do with us. Collective expulsions of migrants denied entry into Europe, 1 July 2008; Frontex Annual Report 2006, available at . 10 This may conflict with the scope of Articles 62 (2) and 66 TEC on which Frontex is based, and render EC competence in this field questionable. 11 Since June 2006, Spanish ships patrol Mauritanian territorial waters to prevent ‘clandestine emigration’. Eduardo Lobo, the Spanish coordinator of the project: ‘L’objectif est dissuasif. Il faut que les candidats à l’émigration réalisent que les pays Européens sont là, bien présents, et qu’ils ne pourront pas partir,’ Le Monde (12 August 2006).

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ways in which some of these obligations relate to current practices of intercepting migrants and the (il)legality of human mobility and the (il)legality of its regulation by the state. A first question which this raises is whether the concept of public order in both the ICCPR and the ECHR can be understood in such a way as to allow a state to restrict the emigration rights of its citizens in order to protect such a general and ambiguous interest of another state’s public order as the fight of illegal immigration.12 Even if one understands the concept of public order to encompass the economic and social well-being of other states, the problem with current practices is that these constitute ‘in reality an automatic, blanket measure of indefinite duration’,13 which are very difficult to evaluate as to their proportionality vis-à-vis each individual.14 Moreover, the sheer scale of such measures turns the exception into the rule. Also, restrictions on the right to leave need to be provided by law which is accessible and sufficiently precise, also in case these restrictions take the form of interception of migrants leaving the country without proper documentation. The interception of migrants in the territorial waters of Mauritania, Senegal and Cape Verde is, however, based on bilateral agreements between these states and Spain, the content of which is secret. Moreover, at least the domestic legislation of Mauritania does not prohibit leaving the country ‘irregularly’, which is without documentation.15 The question of legality of the restrictions on the right to leave is compounded by the plurality of actors involved: African states, member states and an EC agency. Which legal instruments are applicable? Mauritania and Senegal are state parties to the ICCPR and thus bound to act in accordance with the rights guaranteed therein when acting in their territorial waters, but what about the European member states which assist them? The case law of the ECHR suggests that the delimitation of competences amongst these actors is of importance in order to establish responsibility, but that very delimitation is unclear, due to inaccessibility and secrecy of the agreements between these actors. When it comes to what Frontex calls prevention of illegal migration, practices of factual regulation and control seem to precede the law, although measures which interfere with fundamental rights should not precede the law, but be based 12 In 1948, the British Delegation to the Human Rights Commission asserted that the right to emigrate may be restricted in order to help neighbouring states to fight illegal immigration. See the Report of the Third Session of the Commission on Human Rights at Lake Success, 24 May to 18 June 1948, U.N. Doc. E/800 (28 June 1948), p. 26. 13 See ECtHR, Bessenyei v. Hungary, 21 October 2008, Application no. 37509/06, Paragraph 23. 14 Which is the important difference with the case that restrictions on the right to leave based on public order are applied to persons who constitute a serious danger to the country to which they intend to travel. See Mubanga-Chipoya (1988, 54). 15 Amnesty International, Mauritania: Nobody wants to have anything to do with us. Collective expulsions of migrants denied entry into Europe, 1 July 2008.

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upon it. The current practice of interception of migrants and its lack of legal and democratic control show that as soon as an issue is framed in terms of immigration control, the meaning and function of human rights changes drastically, and the exercise of state power does no longer conform to judicial or legislative modes of exercise (Dauvergne 2004). By portraying these practices as measures that are necessary to protect the external borders of the member states, the fact that they entail emigration control is conveniently obscured.16 Indeed, conceiving of these practices as necessary in protecting the territorial external border of the EU, leads to a situation in which it has become all too easy to ignore the individual interests that are at stake in practices of externalization, let alone to perceive them as rights. Borders of Identity: Developments With Regard to Citizenship For a long time membership of a political community was legally identified with nationality, and a person who is not a member was defined as an alien. Birth and long-term (legal) residence of an alien were title to official membership. In the course of democratization and state formation other requirements for citizenship pertaining to literacy, financial or fiscal means were dropped, thus making the division between citizens and aliens a neat division based on ties of nationality. Nationals had automatic rights of entry and residence within the territorial substrate of a political community, whereas aliens would be admitted only if certain conditions were fulfilled. Only on the margins of the colonial empires subcategories of citizenship were retained – and one of the distinctive characteristics was that these second or third order ‘citizens’ had no rights of residence in the metropolitan country, which was justified by an appeal to linguistic, cultural, religious and economic differences. With the end of the era colonialism also these exceptional legal states of citizenship virtually disappeared, but significantly, traces of such imperial approaches to the political rights linked to citizenship, in particular the electoral rights, still persist in the national legislation, as well as the case law of the ECHR, which has upheld the withholding the right to vote for the legislature which legislates for citizens over former colonies (Besselink 2008c). But new forms of citizenship short of formal status as citizen have been created in a variety of ways, thus reintroducing something quite similar to what existed in empires. One new formal status is a shared EU citizenship for citizens of other member states. With the introduction of EU citizenship a type of citizenship was introduced 16 ECtHR, Xhavara and others v. Italy and Albania, 11 January 2001, Application no. 39473/98, is very brief in dismissing the claim that the measures complained of interfered with the right to leave, as it considered that these measures were meant to prevent them from entering Albanian territory instead. The difference with the interception within the territorial waters in several African states is that the measures complained of in Xhavara did not take place within the territorial waters of Albania.

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that depended not on belonging to one’s own state, but to that of the other EU member states. Although to these citizens certain political rights of abode and voting rights were granted, this did not make them into fully fledged citizens which necessarily and in all respects enjoyed exactly the same status as national citizens. The case law of the ECJ has stressed the ‘primary’ nature of this status of EU citizen. This case law is basically propelled by the principle of non-discrimination between EU citizens of other member states and the nationals of one’s own state, thus gradually extending substantive rights which previously were restricted to ‘nationals only’ to other EU citizens. A substantive approach has also been taken by granting (some) citizenship rights to persons who are not formally citizens, such as for instance TCNs who are family members of EU citizens who use their EC free movement rights, and as ‘privileged’ TCNs share in rights of residence on the basis of the family membership with an EU national. This has been consolidated in Directive 2004/38/ EC, sometimes also referred to as the ‘Citizens’ Directive’. We mentioned above the line of case law as it resulted in Jia and Eind, and basically concerns the question whether such a derivative right of a TCN to move and reside with the EU national who uses his free movement rights, implies an independent right of that TCN under EC law to enter into the member state of origin of the EU national of whom he is a national. More particularly, the issue is whether the possible existence of such a right under EC law affects or restricts individual member states’ competence to have an autonomous immigration policy with regard to TCNs coming directly from a third country to that member state for residence with a family member of this member state. Much is at stake in a context in which the right to refuse entry to TCNs is cornerstone of nationalist tendencies which thrive on populist sentiment. A cosmopolitan inspiration of EC law which somehow extends an idea of a primary right to move within the EU and to move (as privileged TCN) into the EU according to which any limitation to do so requires a special justification, is opposed to a view which is based on the idea of the primary sovereign right not to allow an alien into a member state (or EU) territory according to which any right to admission into a country must have a special justification (Besselink 2007). The case law just mentioned was not clear as to what route the ECJ was to take, but in Metock it has indeed opted for the ‘cosmopolitan’ approach. EC law has also extended certain free movement and residence rights of ‘pure’ TCNs lawfully residing in EU member states. This has been codified in Directive 2003/109/EC of 25 November 2003 concerning the status of TCNs who are long-term residents, and Directive 2003/86/EC of 22 September 2003 on the right to family reunification. Rights of abode being inherent in citizenship, long term residence rights can be considered a substantive citizenship attribute. This, however, has been accompanied by substantive qualifications of such citizenship rights as well. These directives allow, at least in a number of circumstances the imposition of certain ‘integration requirements’ upon which such citizenship rights are made conditional.

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This reveals a further substantive approach: citizenship rights can be withheld for lack of substantive citizenship qualifications, such as knowledge of the local language and society through the new ‘integration requirements’. These have been introduced in national law in a variety of manners in several EU member states (Carrera 2006c and 2009). Substantive citizenship criteria (and tests) have also been introduced as further requirement for obtaining formal citizenship status (naturalization), and sometimes – as in the Netherlands – these requirements are the same for naturalization as for obtaining the right of long term or permanent residence (see De Groot 2006). Here it transpires most clearly how formal status which once preceded the substantive citizenship rights, has now come to be subsequent to substantive citizenship qualifications; the order between formal citizenship and substantive citizenship has been inverted. The Netherlands has been a precursor in this field, with its inburgeringsexamen, civic integration test. Originally, social, cultural and educational integration measures were based on ‘soft law’ instruments aimed at solving a social problem. These turned into a hard law immigration measure, sanctioned with penalties for failing tests. Initially, also certain categories of Dutch nationals were brought within the circle of persons to be subjected to such compulsory citizenship tests. Consistent negative legal advice by the Dutch Raad van State (Council of State) has ultimately led to a situation in which these categories were removed from the list of categories of persons having to undergo compulsory citizenship tests. This was removed on grounds of equal treatment and the prohibition of discrimination (Besselink 2006b and 2008b). From an overview of the various categories, however, it appears that equality is still a huge problem in as much as nationality is decisive for both the obligation to undergo the test and even more so for the exemptions, not the (lack of) knowledge of the Dutch language and society. The categorical exception for non-Dutch, EU and European Economic Area (EEA) citizens is a case in point (Besselink 2008a). Citizenship, as conditioned by integration requirements accompanied by sanctions in the field of rights of first entry into a country and long-term residence, has become a new line of division between persons. Depending on the category of citizen (national, EU/EEA, privileged TCN, non-privileged TCN), one is exempted from integration tests and one can or cannot enjoy and acquire citizenship rights. The new borders are not strictly geographical or territorial; they run between groups of citizens within a political community. Thus, citizenship has acquired the traits of a new imperial citizenship (Besselink 2006c). EC law plays a predominant role in certain respects: on the one hand limiting substantive differentiation on the basis of the prohibition of discrimination between EU citizens, through granting certain rights to certain groups of TCNs with special (especially family) ties with the EU, and on the other hand by acknowledging the primarily sovereign right of determining nationality of a state, and legitimating national tendencies to impose all kinds of substantive limits to rights of residence on TCNs. Thus the dynamic of Europeanization limits powers of member states through measures adopted at EU level, but also reinforces the monopoly of

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member states of determining full membership of the respective polities, and hence EU citizenship, that is personal membership of the EU, both as regards formal nationality and the linguistic and cultural identity of the persons concerned. Digital Borders: Human Rights and Data Protection The recent proposals of the European Commission for a European Border Management Strategy (EBMS) are based on an almost blind faith in the use of large-scale databases, identification measures and biometrics (Brouwer 2007b). The Commission’s Border Package of February 2008, includes the proposal for an entry/exit system, allowing the electronic recording of the dates of entry and exit of TCNs into and out of the Schengen area. This entry/exit system would enable national authorities to identify overstayers and ‘take the appropriate measures’. Another proposal of the Commission includes the introduction of automated gates for ‘bona fide or registered travellers’ enabling ‘the automated verification of travellers’ identity without the intervention of border guards’. A machine will read the biometric data contained in the travel documents or stored in a system or database and compare them against the biometrics of the traveller, ‘accelerating border checks by creating automated separate lanes replacing the traditional control booths’. Persons will be granted ‘registered traveller’ status after appropriate screening on the basis of common vetting criteria, including a reliable travel history (no previous overstays; data to this effect can be retrieved from the entry/exit system), proof of sufficient means of subsistence, and holding a biometric passport. It is clear that these measures entail a risk to the protection of human rights such as the right to privacy and the right to data protection, but also to the freedom of movement of persons and the principle of non discrimination. Furthermore, there are serious doubts about the necessity, efficiency and proportionality of these measures (Guild et al. 2008). The current use of the SIS for immigration law purposes already has established that it is extremely difficult for individuals and their lawyers to remedy a false or unlawful SIS report. Evaluation of Current Rules and the Need for More Information Article 43 (3) of the SIS II Regulation stipulates that the rules on remedies will have to be evaluated by the Commission by 17 January 2009. This evaluation should be used for strengthening the legal position of TCNs in the SIS II. Only by evaluating the current problems and legal obstacles national courts are confronted with, it is possible to develop an effective mechanism in order to safeguard individual rights in the Schengen area. For this purpose, national courts and data protection authorities should be actively involved by submitting information and case-law to the Commission to achieve more information on the current implementation of Article 111 of the CISA (and in the future, Article 43 of the SIS II Regulation). National courts dealing

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with SIS alerts on TCNs should be more aware of their right or even duty to lodge a preliminary reference to the ECJ. Based on the principle of effective remedies, courts have a duty to ensure full application and uniform interpretation of Community law and to eliminate the unlawful consequences of a breach of Community law either directly or by ensuring effective compensation for the damage resulting from it. The system of preliminary references guarantees a clear and coherent interpretation of Community law. On the one hand, the use of preliminary proceedings with regard to questions related to SIS requires the ECJ to analyse the legal problems under Community law submitted by national courts and to provide a generally applicable interpretation. On the other hand, it places an obligation on national courts to ensure that when an issue of Community law is at stake and needs to be clarified, this issue is to be forwarded to the ECJ (Brouwer 2008b). In the important judgment Commission v. Spain,17 the ECJ considered the relationship between the use of databases at the EU external borders on the one hand, and the obligations of EU member states to protect the rights of beneficiaries of the right to free movement within the EU, on the other. More specifically, this case dealt with the Schengen principle of mutual enforcement of national alerts in the SIS on the basis of which TCNs should be refused entrance to the whole Schengen territory. This principle is also referred to as ‘the principle of genuine cooperation between the Schengen states’. As in this case the refuted alerts concerned TCNs who were the spouses of EU citizens, the ECJ had to consider whether the refusal of entry by the Spanish authorities based on these SIS alerts did not infringe the right to family life in relation to the right of free movement of EU citizens. In this judgment, the ECJ ruled that the complainants fell within the scope of EC law protecting the rights of EU citizens and their family members. Therefore, the refusal of entrance could only be lawful after establishing that the presence of that person constitutes a genuine, present and sufficiently serious threat within the meaning of the Directive 64/221/EEC (now Directive 2004/38/EC). Considering the extended use of EU databases such as the SIS and the far-reaching consequences of being registered for the purpose of refusal of entrance, the importance of this decision cannot be overrated. The ECJ, following the valuable opinion of Advocate General (AG) Kokott, clarified the boundaries of mutual recognition of (negative) decisions between the member states in immigration law. As we will see, one could detect a comparable development in the case law of the ECJ with regard to criminal law procedures. In what concerns the use of SIS in immigration law procedures, it is clear that the conclusions reached by the AG and the ECJ in this case only apply to family members of EU citizens. However, there are reasons to argue that the conclusions of the ECJ could be extended to a larger group of TCNs. The first reason is that the protection of EC law extends to other groups of TCNs, limiting the power of 17 Judgment of 31 January 2006 in Case C-503/03: Commission of the European Communities v. Kingdom of Spain.

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national authorities to enforce foreign decisions reported in the SIS (Besselink 2008c). Secondly, the ‘automatic decision making’ on the basis of the SIS is problematic in the light of data protection. Finally, it is important to take into account the new Regulation 1987/2006 on SIS II, as this Regulation also includes general safeguards protecting every TCN reported in the SIS II. One of the important lessons to be drawn from Commission v. Spain is that the Schengen principle of mutual enforcement of national decisions does not discharge national authorities from their duty to verify the lawfulness of their own decisions or measures based on ‘foreign’ information. This is especially the case where there is no harmonization of national criteria for the non-admission of TCN. Considering the complexity of the law at stake, it is clear that the use of SIS requires further scrutiny, both by the administrative and judicial authorities. It is only a matter of time before the ECJ will have to consider the lawfulness of the use of SIS in immigration law proceedings again. Coercive Borders: Detention, Territoriality and the Individual Practices of immigration detention as resorted by almost all European member states are often in violation of established human rights norms. Examples of such frequent and blatant violations of universally accepted legal norms are the lack of due process guarantees such as effective habeas corpus, but also the lack of legal assistance in the case of deprivations of liberty, the lack of a clear and unambiguous legal basis in the law for the deprivation of liberty and in general a lack of regard for the necessity, legality and appropriateness of detaining persons for weeks, months and in some cases years. In addition, flawed decision-making in this area is accompanied with a regime that is characterized by overpopulation, inadequate medical and social care and sometimes even degrading treatment in the form of mental or physical abuse by government officials. In spite of the existence of such spaces of unaccountably within the modern state, there is little alarm in society at large about these practices. Although civil concern has been increasing during the last few years, it remains remarkable that European states can treat a whole category of people in a way that so obviously contradicts the principles underlying constitutionalism, citizenship discourse and human rights without much meaningful political or social opposition (Cornelisse 2008c). From a constitutional point of view, the way in which human rights norms are factually applied to cases of immigration detention by the judiciary is even more surprising. The case law of the ECtHR exemplifies that the protection of the right to liberty for immigration detainees falls far short of the protection in other cases of deprivation of liberty (Cornelisse 2010b). What is more, the dominant approach of the ECtHR concerning the right to liberty of immigration detainees seems to conflict with important general principles that underlie its case law, such as proportionality. A lack of concern for the necessity and proportionality of any deprivation of liberty challenges the very status of the right to liberty as a fundamental right.

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In sum, the practice of immigration detention seems to be immune to the usual forces of legal and political control. Accordingly, the pivotal question is how that practice could have become and remain so insulated against modern constitutionalism, in particular against international human rights law. In addition, we investigate possible venues for overturning this immunization. In order to address these two questions, our research has focused on three arguments. Firstly, the particular development of sovereignty has led to a situation in which the use of force by the state against outsiders is justified in a way which fundamentally differs from the way in which the use of force against insiders is scrutinized (Cornelisse 2010a). Secondly, this general argument has been fleshed out by showing that the contemporary application of human rights norms has not been able to formulate adequate answers to the use of force by the state against those who it perceives as a threat to or as violating its territorial boundaries (Cornelisse 2008c). It is argued that this very failure of modern human rights law is due to an enduring perception of territorial sovereignty as an innocent, neutral and self-evident concept that provides the basis for both the political authority of the individual nation state and the organization of the global political order of nation states. As a result of the way in which territorial sovereignty is taken for granted, modern constitutionalism is blind to the way in which territorial sovereignty implicates the interests of the individuals. In other words, territorial sovereignty is a structural limitation and stands in the way of the very communicability of individual interests. This ‘territorial’ silence is integral to the structure of international and domestic constitutionalism. As such, the detention of irregular migrants and asylum seekers constitutes an inevitable consequence of the way in which we conceive of the relationship between individual rights, territory and the state (Cornelisse 2010a). Thirdly, we develop the argument that, although it may seem paradoxical, the very practice of immigration detention may provide us with the tools through which we can destabilize such a perception of territorial sovereignty. Just as the imprisonment of criminals offered courts a way in which to review the sovereign power to punish, the practices of legal investigation of immigration detention (Cornelisse 2008b) – however minimal they may be – hold a radical promise of bringing about legal claims that unsettle the dominant perception of territorial sovereignty as a neutral institution in which the individual is excluded as a stakeholder and in which there is no place for their interests. The application of human rights in immigration detention may thus induce a transformation of sovereignty’s territorial frame in a process in which it must respond to what was previously an excluded stakeholder: the individual. Only then will human interests, which have thus far remained largely concealed whenever the state justifies the use of force with an appeal to its territorial sovereignty, acquire a platform where they can be addressed in substance and thus be eventually transformed into rights. Such a shift in the stability of territorialized sovereignty will have inevitable ramifications for a number of other contemporary instruments of migration control, the perceived necessity and legitimacy of which is almost exclusively

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based on the self-referential notion of territorial sovereignty. Indeed, deportation will perhaps no longer seem as self-evident and legitimate a response on the part of the sovereign state to those who have violated its territorial boundaries as it does now; and in a similar vein, practices of police à distance may lose their image of necessity and legitimacy, and the constitutional pitfalls of such practices may thus be more easily addressed in a court of law (Cornelisse 2010b). Conclusions The process of European integration has long been considered to be encapsulated by the transfer of powers from the national member state level to the European level. The paradigmatic expression of this is in the ECJ’s original constitutional case law of Van Gend & Loos18 and Costa v. ENEL.19 Sovereign rights are limited to the advantage of the EC and EU. If that were unreservedly the case, then the EU would gather sovereignty and the member states powers would be emptied out. Eventually the EU would take over the functions of the states. Concomitantly, the EU would take over the state’s role towards individuals. Hence, the quest for the development of constitutionalism at EU level. Our research on border issues makes clear that legally this is not as simple as that. On the one hand, transfers of legislative powers, for instance as regards EU citizens, have restricted executive freedom in the states. This is not to say that governance has shifted away from member states. The European route can also increase the powers of national authorities in areas where autonomously they would not be so great, as the case of EU decisionmaking on football hooligans and demonstrators shows. Moreover, some national prerogatives such as the very question who is a citizen and how public authorities can treat TCNs remained largely in the hands of national authorities. Fundamental rights have a role to play in restricting EU authority. To perhaps a larger extent they have a role to play concerning member state action as regards citizens and non-citizens, both when public authorities they act autonomously and when they act in implementing EU measures. At a more fundamental level, the territorial premise of the state, of state authority and in a ‘derivative’ sense also of the EU, and hence their ‘borders’, has previously remained broadly underexposed, to the extent of concealing the negation of the allegedly universal claim to protection of human rights in the practice of public authorities wielding the monopoly of violence against individuals and of the judiciary which was assumed to review human rights claims. To this extent, more constitutionalism beyond borders is called for.

18 Judgment of 5 February 1963 in Case 26/62: NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration. 19 Judgment of 15 July 1964 in Case 6/64: Flaminio Costa v. ENEL.

Chapter 9

Liberty, Security and Enlargement Judit Tóth

Introduction The EU enlargement processes have presented numerous social and political ramifications. Among others, they have made more visible the hidden shortages affecting the democratic and constitutional frameworks of Central and Eastern European Countries (CEEC). From this perspective, WP 7 (the ‘enlargement research team’) of the CHALLENGE project has analysed the externalization of JHA wrapping into the ENP, the implications of Europeanization over crossborder and regional co-operations and the politically motivated legislative and judicial efforts toward the adaptation by new EU member states to the EU acquis. The enhanced and integrated border management, which has counted with the financial support from the EU, and the visa restrictions, have often made more difficult the access to protection by asylum seekers to this region. These security measures have also favoured the emergence of anti-migration rhetoric, the practice of exclusionary policies towards refugees and the non-development of comprehensive integration policies, which to a certain extent have been based on the continuation of CEEC perceived status as ‘transit countries’. The revitalization of cross-border and people-to-people contacts under the Schengen regime has been accompanied with a kin-state policy providing ethnic preferences in entry, visa and residence proceedings. However, this ‘ethnic exceptionalism’ is not hindering the securitization against (mainly the regional) migrants and Roma citizens. The implemented ethnic profile, the introduction of biometrical identification or verification systems, the growing entitlement of security services and intelligence-driven law enforcement personal data exchange cannot have not been compensated by an effective democratic control. It is true that parliamentary scrutiny and watchdog NGOs, free accession to relevant information on state agents in present and in the past and the effective and autonomous judiciary protecting the fundamental rights of individuals have been under development. However, bilateralism in external relations, fragile democracy and formal rule of law regimes, heterogeneity and missing social cohesion commitments continue being real concerns in the accession processes because of the lack of substantial and objective evaluation criteria. In CEEC the main concerns are of an ethic, political and social nature rather than economic, and this cannot be considered as a common signal of ‘enlargement fatigue’. Instable governance, low level of participation in the elections, scepticism after membership and the high rate of

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xenophobia and racism as detected appearances should be taken into account not only in further enlargement assessment but also in the preparation of the next AFSJ multiannual programme (the Stockholm Programme). On the basis of the results reached in the first years, our work was centred on three major thematic streams of investigation: the impact of the enlargement on neighbourhood relations and on the border and security contexts. The reporting period covers, on the one hand, field research aimed at gathering information through interviews with local community leaders and public authorities in Serbia and in other Balkan countries. At the beginning of 2006 a survey on the visa policies of certain EU member states as applied to nationals of Belarus, Moldova, Russia and Ukraine was finalized. Its result was implemented for advocacy activities, promoting report results and formulating policy recommendations. The short-term results of visa policy were the limitation in the number of visitors. However, visas as a major screening tool did not operate as they were originally supposed to. They rather constituted an inconvenient procedure with totally diverse practices – as showed by refusal rates – implemented at the embassies. Therefore, they need to be seen as a commercial measure in the member states’ hands and, at times, a discretionary area for member states and the ENP to provide exceptions targeting specific groups or categories of people in the move. Furthermore, as the increase in the income from visas fees has been minimal or not registered, it cannot offset the increase in the cost to improve embassy administrative services and facilities as well as to train personnel. Moreover, accession to international protection and reception conditions are restricted as a result of the growth in irregular migration (migrants apprehended in green borders or at sea, those being refused entry because holders of counterfeited documents, absence of visa, overstaying persons) and in parallel the detention rate has increased. The more restrictive conditions for visa issuing and lawful entry are the higher transaction costs and the greater the risks are for ensuring the protection of asylum seekers. Despite certain oscillations in figures (for example, a rise in the number of asylum applications to Malta and Poland and a decrease to Hungary) due to stronger surveillance, visa restrictions, EU accession and the Schengen acquis, in practice factors such as the geographical position, the attitudes of receiving society and the existence of migrants’ networks have played a more significant role. The Western Balkans are still one of the largest instable regions in Europe today. Instability resulted from relatively recent civil wars, and its causes have not been completely settled yet. The basic problem of the region may be found in the border system of the West Balkans, where frontiers do not mean simply borderlines, but lines demarcating societal and economic contexts (such as for instance ethnicity, language, dialect and wealth). The complex, often fragmented and artificially modified structures continuously recreate risks of security that, when reaching a critical mass, create instability. Our research has showed why the EU must play a pacifying and stabilizing role, independently of economic interest. The extremely fragmented structure of the region does not allow the problems to be handled at the level of nation states, making international law enforcement

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necessary in several places. Despite the development gap between the Western Balkans and the EU, an effort from the latter is necessary to achieve stabilty in the region. The Transnistria region and Moldova’s control-free borders also raise concern as to border management, illegal migration and severe erosion of traditional societies as a consequence of (illegal) gaining activities such as: the smuggling of human beings, drugs, weapons, radiating material and gasoline. It has been proved that the risks coming from the ring of incapacity of semi/quasi states in the Balkan regions cannot be offset by the ENP and joint military/law enforcement actions. Moldova, as a new neighbour of the EU, is in a very specific situation. It has traditional economic and political links with the ex-Soviet states; however its relationship with Romania (for example through the dual citizenship and the identity card issued to about 400,000–600,000 persons) has become very controversial. Because of their homeland’s hopeless economic situation, Moldovan citizens are seeking for employment and opportunities abroad, legally or illegally. The local visits and study trips conducted by our research team during 2006 and 2007 proved how the borders with Ukraine, Romania and the Black Sea are porous and how illegal migration and human trafficking and trade of prostitutes are still going on despite the EUBAM efforts. The eastward enlargement has entailed the transposition of the Schengen acquis in two phases by the ten new member states of the EU. While these countries have extended cross-border relations and policy towards kin-minorities living beyond the (external) border of the EU, the Accession Treaties defined a rigid adaptation process regardless of existing economic, cultural and people-to-people contacts. Our research has described not only the stakeholders of this game but also its legal, geographical, political and ethnical circumstances at the Union and the national level. The Schengen regime is fundamentally about re-interpreting national borders and their meanings with regard to the movement of persons. As it does so, Schengen philosophy has been that national sovereignty is no longer a controlling principle for the movement of persons across state borders. Border control has been designed around the absence of borders for some (those nationals coming from other sovereign states which are part of the EU system) and their strengthening towards others, namely those coming from sovereign states which do not participate in that system. This underlying philosophy directly conflicts with a principle that has motivated the border controls in many CEEC: kin minorities and persons coming from kin states should have privileged access to the territory irrespective of the state’s Schengen status. The transformation of border controls from a system based on an individual’s ethnicity to one based exclusively on the individual’s provenance (where they come from) creates new frictions in an enlarged EU.

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Border Management Practices The major results of the analysis of border management practices that has been conducted in a number of places can be summarized in two elements: first, the impact of visa restrictions on access to asylum and international protection, which have hampered entry and stifled cross-border cooperation (including European regions) and other forms of cooperation between local authorities. Second, the specific effects of the enlarged Schengen zone on border management and border-crossing as well as the upgrading of the securitization approach. These in situ analysis and questionnaires cover short-term impacts but the public law framework and institutionalized changes are the basis for medium and long-term assessment. These overlapping trends have come from the ongoing enlargement, including those to Romania and Bulgaria, the adoption of temporary measures to liberalize the labour market, the implementation of Community and bilateral rules on small border traffic, the extended Schengen area and the development of ENP instruments. We observed poor infrastructure, the absence of cooperation mechanisms at the local level despite the change in political climate following manifold efforts to reform public administration, the implementation of frequently changed (harmonized) legal rules and law enforcement in certain states. Summing up, peripheries of the South-Eastern border regions have not obtained social and economic profit from the enlargement of the Schengen area because border crossing, visa and Common Borders Code (CBC) infrastructure has been developed and directed from the central government. This one-sided development of security and surveillance has neglected to improve local roads, railways, bridges, waiting conditions in both sides of the crossing points and information campaigns, to upgrade the language training of consular and border officials and to provide authentic information for passengers regularly. It has been very controversial the way in which border zones were isolated, disintegrated and omitted in the past just for security and policing reasons. Poor employment and depressive economic situation of aged, unskilled population in the border zones cannot be cured with visa policy or better border management. Therefore these peripheries have remained lagging behind while facing a growth in transit traffic, higher pollution and more irregular migration. Burden sharing has been also one-sided, not democratically controlled or transparent, at least as regards financial contributions (from the EU), which were also allocated by the central government to law enforcement units primarily for improving surveillance technical capacities, while training and recruitment of law enforcement personnel and local communities’ mental, legal and economic preparation for tighter or open borders was not supported at all. The upgraded law enforcement and its strong political evaluation have not been compensated by new guarantees for decentralized local, municipal authorities and weak NGO and civil sector presence in countries which have been included in (and excluded from) the enlargement process. Consequently, enlargement supports the power of central state agencies and executive power while parliamentary control,

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ombudsman, constitutional courts or judicial system have obtained neither external nor domestic financial, political or empirical assistance. This fact has inflicted negative effects on tolerance and social solidarity towards protection of asylum seekers, whose number is growing at borders, or among persons in need of protection and integration. Whereas peripheries accept petty traders, illegal labour markets, tobacco and oil smuggling as a survival technique, and persons are kept in detention in transit and border zones, all decisions are taken and measures adopted rather by centralized organs in the capitals. Regional cooperation is rather virtual or ornamental, given the absence of proper public law basis in CEEC (for example missing meso-level, no entitlement to conclude international public contract by local authorities and municipalities, no own incomes or properties). Euro-regions and ENP are an empty promise for non-autonomous or not equal partners. The abovementioned perspectives and conflicts can be seen on border and visa monitoring lessons. Both sides of the Hungarian-Romanian border are facing the same problems in border zones, but there are great differences between the development levels in each of them. Although the two countries share serious concerns (economic structures and infrastructure lagging behind, lack of capital and scarce interest from foreign investors), Romania’s development lag requires that Hungary can evaluate Romania’s different scales and dimensions; however, cooperation is hindered even in cases like this where it is most needed. Geographically, Satu Mare, Bihor, Arad and Timis counties, on the Romanian side of the Hungarian-Romanian border, are twice as far away from their own capital as they are from Budapest, which would inspire further trans-border cooperation in order to achieve common interests in the European integration process. This mutual interest will be achieved when the borders become freely penetrable. This conclusion from 2005–06 is partly behind us after the accession of Romania. In 2007 we witnessed reverse migration: commuters and migrant workers from the border region were employed in the construction of a Romanian road and other development investments attracted ex-migrants back to Romania, while cheaper real estate explains a boom in purchase in the Hungarian edges. Following the inclusion of Romania in the Schengen area, a spontaneous revitalization of regional economic links, building upon the first effects of the enlarged Schengen area, was projected towards both sides of the Slovak-Hungarian and the Austrian-Hungarian borders. Slovak workers and property buyers as well as Austrian property buyers appeared in Hungary. It is interesting to note that this process is spontaneous and based on actual economic advantages and it has nothing to do with policy either at the municipal or at the central level. Furthermore, the reaction from local municipalities has been ambivalent: the arrival of more nonnationals in peripheral areas boosted property and service prices, while newcomers without a regular residence (out of address registry) cannot pay taxes or contribute to offset population ageing; local schools have no access to state per capita student contribution and so on. Also the research stream that included Serbia and Ukraine in 2006 found in economic reasons the major factor behind mobility of people living in (economically depressive) border areas and emphasized that, despite the existence of kin minorities across the borders, cultural ties play a significantly less

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important role. The institutions (border guards, consulates) seem to be prepared for Schengen accession while, conversely, visa applicants and travellers possess little to no information about the changes. People primarily feel afraid and doubtful as to Schengen. The lack of information has eventually caused substantial problems in the ground. Ethnic Policy The ethnic policy has performed a compensatory role in new member states which won independency and sovereignty in recent past. The nation building effort by the majority of society is confronted with the revival of minority nation building and the efforts towards securitization. Although the majority of new EU member states became homogeneous following the twentieth century events, the instauration of democracy has inspired a rebirth of suppressed national, ethnic and linguistic minority groups. The redefinition of national identity in an enlarged Europe is going ahead together with the kin-state policy towards kin-minority, in particular if they are living across the (EU external) borders. It has involved the modification of nationality law, ethnic preferences in visa, residence permit, employment authorization, reception of expatriates, rehabilitation rules for historical injustice (deportation, confiscation and deprivation of nationality) or dual citizenship or a special status for kin-minority members and diaspora. Moreover, minority and language laws have spread across this region, something which can be explained not so much as a result of a multicultural policy but rather in order to maximize the number of votes in new democracies. However, securitization in border-crossing, illegal migration and organized crime fighting, visa restrictions or personal data processing may destroy government’s legitimacy and popularity – and in these games the ethnic preferences and economic patriotism can prove how the ruling power intends to stand for the in-group members against out-groups (migrants, non-nationals, multinational companies, other states) whose interests are represented frequently by Community legislation or Union policy. Perhaps voters’ disappointment or frustration over the enlargement not automatically improving living standards in peripheries can be cooled down by these compensatory measures. On the other hand, ethnicity is an important feature of the law enforcement activity in the meaning of profiling to fight organized crime, street patrolling and migration flows control. According to field research in Hungary, Bulgaria and Spain (2007–08), racial profiling is police tendency to stop people because of their apparent ethnicity rather than actual suspicion, based on ‘reasonable presumption’ of potentiality. Police or societal prejudices will clearly have a negative impact on integration, regardless of State policies. Besides raising moral and human rights concerns, racial profiling might be an ineffective policing strategy, as long as time and resources are wasted on checking innocents instead of combating crime. The three countries in focus have all undergone a relatively recent transition from

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totalitarian to democratic government. Research was done through qualitative interviews with police officers, discussions with the public and with people who have undergone police controls. Throughout the process, evidence for institutional racism was found, although hardly measurable. In Bulgaria and Hungary racial profiling seems to happen mostly in the form of stopping pedestrians. In Hungary, Roma not only are stopped more often, but they also feel as they are subject to more disrespectful treatment. This is coupled with policing of Roma neighbourhoods, while numbers of Roma were reported saying they would prefer a stronger police presence. It was found that ‘Roma as criminal’ was an idea spread not only among the police but also among society at large and even many Roma themselves. A method commonly used in measuring prejudice, consisting in asking people what percentage a particular group accounts for in a population, was used to measure prejudice levels against Roma and other minorities. Hungarian police tended to think the proportion of Roma in the country was around 30%, when in fact it is around 6%. Similarly, guessed proportions of general immigrants were far too high. For instance, the Chinese were estimated to account for around 5% of the total when all the ethnic minorities amount to less than 1% of the entire population. Some conclusions can be drawn from these findings: ethnic profiling can be an indicator of weak social integration of certain minority groups – Roma and immigrants – and an indicator of securitization efforts in Europe which strengthens prejudices by using cognitive and crime prevention arguments. Securitization in an Enlarged Europe Securitization as a ‘speech act’ of political discourse and as the substance of normative measures in fragile democracies has been also of particular concern in our research. Biometrical identification as a tool of crime prevention, intelligence gathering and surveillance strongly affects relationships between state and citizens demolishing trust, efficiency and legality of state actions. The transparency on data storage and a strong culture of data protection have not been established yet in the majority of new member states. For instance, securitization discourses should not be high Poland’s policy agenda, as a country of low immigration. However, this phenomenon might be explained by the socialization and policy learning strategies in the years before the EU accession. Thus accession to the Union and to the Schengen and Prüm regimes may explain how and why securitization is going on ahead in new CEEC democracies avoiding public debates on migration policy, European integration, cohesion, diversity and public order. In the assessment of the Czech, Slovak, Polish, Hungarian, Bulgarian and Romanian transposed rules on biometrics into national passport, ID cards, policing and migration legislation since 2003, it has been observed that a public debate on whether these new techniques speed up identification or verification, enhance security and reduce the probability of fraud or they rather disintegrate personal identity has been postponed. This absence may show a weakness in democratic

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decision-making, financial control on budget and public discourses as well. Limited criticism from NGOs over massive data processing, exchange, interoperability and biometrical identification has also taken place. The instrumentalization of the human body or of parts of the human body is questionable under the right to life, to human dignity and to privacy which have been violated for long by the authoritarian regimes across this region. According to the well known ethical principle, persons shall always be the aims of the acts but never the means for them. The use of biometrics, the massive collection of personal data and the identification or verification process can be regarded as an instrumentalization of certain parts of the human body. Taking the natural physical appearance of an individual simply as a certain amount of reliably identifiable data, and not as the feature of the ‘most superior creature of nature’, means the objectification of the uniqueness of the individual. The right to general personality involves especially the notion of privacy, the intimate sphere, honour and self-determination in connection with personal information. Although the constitutions of each of the new democratic states take into account the psychological fact that an inviolable sphere of privacy is a precondition of the formulation of identity and the selfrespect of the individual, the challenged general integrity of the person by the ‘processing of these features (data) and the intervention of state authority has not been generally and publicly recognized’. The principle of proportionality and necessity in the restriction of fundamental rights is also questioned in the use of biometrical data. For instance, the ‘restriction tests’ developed by the Constitutional Court of Hungary, also respected by the President of the State in the promulgation of acts, has forced the legislative power to amend the transposition laws. However, the right to self-determination in connection with personal information is not protected by the necessity-proportionality test. The international legislation and the national legislation in new democracies also point at the integration of a new notion or new provisions in the data protection framework. For instance, besides the 1992 Data Protection Act, several acts deal with the protection of personal data in Hungary, but none of them mentions the notion of biometrics or includes special provisions on them. The only exception is the 1998 Act on the Travels Abroad which aims to execute Council’s Regulation 2252/2004/EC. The creation and pure existence of large databases containing information on individuals may enable a government to secretly monitor and control persons. The blind faith in data gathering and processing technologies without human control is accompanied by a lack of transparency in the collection or exchange of data. Furthermore, these new technical securitization efforts are accompanied by state reluctance to disclose security archives. A continuation of secrecy in nonrule of law regime in rule of law states that may weaken democratic progress can be noticed in the region. The moral and legal compensation for victims of historical injustice due to unlawful surveillance and removal perpetrated by the security forces (police, border guards, military security units) for instance against dissidents, illegal immigrants and political opponents has been observed throughout the formation process of the refugee regime in Hungary in 1988–89. Also the

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unwilling, reluctant or formal parliamentary scrutiny in case of extraordinary renditions in Poland, Romania and Hungary may draw the attention to the necessity of further development in constitutionalism. The CIA actions that used European states for stop-over by secret flights with alleged terrorists urge to consolidate the legal status of law enforcement and secret agencies which should be regularly controlled by the parliament, the ombudsman and the judiciary according to their political and legal competences. The creation of (personal and biometrical) data exchange networks between European security services and the intelligence-driven cooperation between law enforcement authorities which can be noticed appears to be disproportionate to their democratic control, accountability and transparency in the new CEEC democracies. Another example of the parliament’s weakness is the smooth adoption of the legislation in Hungary that allows shooting a renegade plane down in the context of the ‘war on terror’. Besides the abovementioned regulatory needs, it is certainly important to make biometrics the topic of a political and public debate. Biometrics can be replaced by less intrusive identifiers which raise fewer concerns in the society (in transition). Since the last preparatory phase to the EU enlargement, the following factors have determined the trends of international protection in the eastern and southern edges of the Union: first, frequent modifications in legislation on asylum, partly as a result of harmonization and transposition of Community rules, partly as result of domestic political games; second, changes in regulation on entry and residence of TCNs are related to the abovementioned but also result from the ethnic and neighbourhood policies; third, border management instruments, including readmission agreements, in-depth border-land control and cooperation with countries of origin and transit, aimed at fighting illegal movements of people, as well as other measures resulting from the implementation of the Schengen acquis; fourth, the numerous changes in legislation and administrative procedures indirectly reduced the efforts for effective reception and integration of applicants and refugees; fifth, lack of information in the country of origin. A common frustration results from all these trends: for instance, in Cyprus, Malta and Poland the number of applicants is growing; in Slovakia and Bulgaria an increase in irregular migration has been detected; reception conditions are being improved slowly and prejudices spreading among receiving societies are more evident. Stricter refugee authorization is being imposed and better equipped surveillance services are being implemented as general panacea instead of a comprehensive set of measures on burden sharing including resettlement, family reunification, voluntary repatriation and flexible employment of migrants. The enlargement process reveals that neither the EU nor the accessing countries knew from the beginning how the process would evolve. The first 2004 eastern enlargement had as a conclusion that strategies and mechanisms of accession had to be further developed. It led to the assumption that Romania and Bulgaria were considered as ‘second class’ candidates facing more severe conditionality on accession than the other CEEC. The post-accession developments reveal though that Hungary faces serious institutional shortages in the judiciary

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too. Critics consider that the EU has overrated Hungary’s reforms, which did not develop any verifying mechanism after the accession. In Hungary’s case the EU has played an important role by offering a model of legislation. However the implementation of the reform lies in the hands of the ruling elite. Hungary presented to EU a consolidated justice, a success story which pleased the EU officials. However, if we scratch the surface, the problem of mental independence of judges and, more generally, the justice remains present. Hungary had to pay a high price for the independence of the judiciary due to an orthodox execution in the separation of power. The problem of the increased internal independence in the judiciary reveals the other extreme of the reform. Differently from Hungary, Romania began the genuine reform in 2004. An aspect which reveals that if there is no political will, in spite of a strong EU political conditionality, strategies and reforms proposed by the government are just cosmetic attempts to present to the EU officials that at least ‘something has been done’. Foreign experts did not know the realities of the Romanian judicial system, while the EU impact over the judiciary in Romania does not find a homogenous recognition between the Romanian elite. The EU mechanisms and strategies had a good purpose to introduce reforms in Romania; however they neglected the double challenge the country had to face through the phase of liberalization and democratization. Also the mechanisms and strategies were still undeveloped and insufficiently adapted to the economical and political realities in Romania. The country received financial aid to strengthen its judiciary; however a model of ‘ways of doing things’ has not been presented. It seems that the gate-keeping mechanism has played a huge role in 2004 as the political elite practically forced to pass the laws on the judiciary. However the dismissal of the Minister of Justice in 2007 reveals the fact that Romania still has a house built on a precarious base. The political elite as a rational actor managed to reform the system according to its own rules. The Europeanization as a model to spread functioned just as long as the political elite agreed on implementing the laws. However, the reform of the judiciary has not been completed yet, either in Romania or in Hungary. It includes the special Cooperation and Verification Mechanisms (CVMs) towards Romania and Bulgaria, while the self-purging traditions are missing in this region. Conclusions Growing heterogeneity of member states raises the question of how many ‘Europes’ are developing and of whether a convergent or a divergent Union is most probable in the near future. Border surveillance, migratory movements and personal data exchange may contribute to a type of illiberal law enforcement cohesion and harmonized rhetoric with active supports from new member states as a short-term effect. However, social facts including limited chances for international legal protection and integration, intolerant attitude towards otherness excluding nonethnic groups have remained almost untouched and divergent even in medium-

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term. Experiences from the first post-enlargement period indicate that societies in transition participate in European decision making mechanisms to obtain the most political benefit from European integration as soon as possible; follow a medium or long term, bottom-up strategy to develop constitutionalism (respect for democratic, constitutional state, human rights, transparency and responsibility of public power, autonomy of local and ethnic communities, legality and proportionality in the limitation of freedoms and liberties) and neglected trans-border and regional cooperation. This urges the EU to pursue cohesion through EU legislative measures and policy decisions to avoid that the lack of a strategic approach results in alternative or competing ideas, solutions and normative substance coming from the peripheries that would further hinder the EU decision-making processes.

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Chapter 10

Gateways to Europe: Checkpoints on the EU External Land Border Marta Kindler and Ewa Matejko

Introduction The current approach to border management, which sees border crossing points solely as places separating EU countries from third countries and treats the border primarily through its security function, needs to be discussed. However, the need to change this approach is visible, as it is crucial to allow eligible persons to cross the EU border in accordance with elementary European standards, based on the Schengen acquis and the Community Customs Code (CCC), and above all the ECHR. The conditions for crossing the external EU border, including the standards of travel documents control and customs clearance, are the most important aspect of the functioning of the border from travellers’ perspective. Given the current conditions at border crossing points, the everyday experiences of thousands of travellers moving across borders – whether as drivers, passengers or pedestrians – constitute a serious problem. Regardless of whether the travellers are EU or nonEU citizens, no matter what their reason for travelling, they are waiting in long queues, often in uncomfortable conditions; they and their belongings are subjected to thorough controls; they are quite frequently hard-pressed to obtain relevant, upto-date information about border crossing regulations. According to the results of the research conducted under the CHALLENGE project,1 the standards of functioning of the border need to be visibly improved. 1 Report ‘Gateways to Europe’ is based on data collected just prior to the enlargement of the Schengen area (July–October 2007) at nineteen border-crossing points aspiring to constitute the external EU border. The research was based on surveys and indepth interviews with travellers, checkpoint officials, and local experts. Three hundred questionnaires were conducted at large border-crossing points, 200 questionnaires at small border-crossing points, 366 in-depth interviews with travellers, 89 with local authorities and 64 with border officials. The research teams also carried out ‘hidden’ observations at the border-crossing points, crossing the border anonymously as tourists. The report is the result of a cooperation between research institutions from Bulgaria, Estonia, Finland, Hungary, Poland, Romania and Slovakia. This research is a continuation of the ‘Friendly EU Border’ project carried out since 2002 by the Stefan Batory Foundation in cooperation with the CHALLENGE project. The aim of this long-term project is to monitor the visa

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The main problems concern the quality of infrastructure, as well as communication and cooperation issues, which have a strong impact on the formation of queues, the implementation of the non-discrimination rule and the existence of corruption. For analytical purposes, in this chapter we will focus on two main areas: infrastructure and quality of services rendered by border guard and customs officers. Although this study was conducted before the enlargement of the Schengen area, it identified currently relevant problems. We analyze the main research results giving as a comparative background the regulations of the SBC. Infrastructure The layout and infrastructure of border crossing points, despite being among the most fundamental elements to efficient cross-border movement, were consistently found to be the weakest aspects of the border crossing points assessed during the research. Lanes at Border Crossing Points According to recital 10 of SBC, ‘Where it is deemed appropriate and if local circumstances so allow, Member States should consider installing separate lanes at sea and land border crossing points’. However, at several of the researched border crossing points with heavy traffic there were no separate lanes for EU and non-EU citizens. This problem was noted at the Tiszabecs border crossing point on the Hungarian-Ukrainian border. Officially, the ‘one-lane control’ procedure was in place, which meant that travellers’ cars were stopped at one point to allow for customs control and for the verification of documents. Moreover, as referred to in Article 9(1) of the SBC, member states should clearly signpost lanes at border crossing points. As results from the research, although signs indicated the purpose of each lane, travellers were confused about when to use a particular lane, because during shifts the rules of use were changed by border guard and customs officers. Most problems arose in relation to the use of the ‘nothing to declare’ lane, which often failed to proceed as quickly or efficiently as it should have. While many travellers expected that it would provide the most expeditious way of crossing the border, whether they were crossing the border for professional reasons such as business trips or in order to fulfil duties ordered by an employer, they were somehow regarded as ‘suspicious’ and subjected to similar treatment as informal petty traders. In travellers’ opinion, the major problem was the insufficient number of lanes in relation to traffic intensity. This problem concerned the majority of the researched border crossing points that were established for local or regional traffic and had regime and to improve the quality of services at EU external border checkpoints. For the full text report, see Kindler and Matejko (2008).

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to adapt to international mobility. For example in Zosin, on the Polish-Ukrainian border, there were only two entrance and exit lanes; in Sighetul Marmaţiei, on the Romanian-Ukrainian border, and Tiszabecs, on the Hungarian-Ukrainian border, bridges connect the two neighbouring countries, which allows for one-way traffic only, and cars have to wait for their turns. Our research indicated that some problems appeared in relation to Article 9(4) of SBC, which reads that ‘In the event of a temporary imbalance in traffic flows at a particular border crossing point, the rules relating to the use of the different lanes may be waived by the competent authorities for the time necessary to eliminate such imbalance’. With the insufficient number of lanes, some travellers remarked that border guard officers, instead of being flexible, refused to let part of the nonEU travellers pass through the EU lane when it was free. Many complaints about an imbalance in the use of lanes were received on the Polish-Ukrainian border at Medyka border crossing point. The EU lane was served faster and there were shorter queues, while in the non-EU lane the waiting time was generally considerable. This situation contributed significantly to non-EU travellers’ impression of being discriminated by EU border guard and customs officers. The infrastructure problem concerns also the compatibility of both the EU and non-EU sides of the border crossing points. High standard buildings and lanes on the EU side of a border crossing point do not solve the problem of traffic capacity when third country crossing points do not have a sufficient number of terminals to carry out the control of travel documents and property. This shows that problems of border crossing point infrastructure are complex and require close cooperation with the neighbouring countries. Problem of Queues Queues are the result of an insufficient number of lanes and/or inadequate management of border traffic. Respondents complained about long waiting times. According to the results of the research, the longest waiting times occurred at the external EU borders with Ukraine and Russia. For example, on the PolishUkrainian border there were two checkpoints with very long average waiting times: Medyka – six hours, and Zosin – almost five hours; at the Slovak-Ukrainian border in Vysne-Nemecke the average waiting time was over four hours. A very long waiting time was also observed in Bezledy, at the Polish-Russian border. These long waiting times affect not only the non-EU citizens who are subjected to more thorough inspection procedures according to EU regulations, but also EU citizens. Traveller’s overall negative perception of the quality of services at border crossing points resulted not only from the long waiting times, but also from the uncomfortable and sometimes even dangerous conditions in the queues. Queues form mainly when entering the EU. Border guard and customs officers suggested that one of the main reasons for the creation of long queues was the increased volume of traffic. That is certainly true, especially during particular seasons or

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day times when traffic intensity across the border increases. However, taking a look at traffic intensity at the observed border crossing points in that period, and comparing it with the data on queues, it is clear that the greatest complaints do not necessarily happen most frequently in places with the highest traffic. Additional Infrastructural Problems The conducted research indicated that there were also other infrastructural problems, such as the lack of well equipped waiting rooms and areas before customs clearance and passport control, low quality or utter lack of restrooms, or the insufficient number of buildings to implement detailed controls on persons or vehicles. More precisely, there were cases of no separate bus terminals and terminals for pedestrians. For example, in Zosin, although there was no bus terminal at the crossing point, busses were allowed to cross, which meant that regular vehicles had to wait much longer while the passengers from the bus were undergoing control. The Koidula border crossing point, on the Estonian-Russian border, and Tompa, on the Hungarian-Serbian border, did not have terminals for pedestrians, which meant that those crossing on foot had to wait between cars to have their travel documents checked. The number of buildings was insufficient to carry out control and administrative work, for example on the Polish-Russian border at the Bezledy border crossing point and on the Slovak-Ukrainian border. In the case of Medyka border crossing point, on the Polish-Ukrainian border, there was just one building to carry out detailed inspections on cars. Because of the high intensity of traffic at this border crossing point, customs and border guard officers were forced to perform detailed controls of cars at the open-air car park. The monitoring of border crossing points conducted indicated insufficient restroom facilities, waiting rooms and services for persons with disabilities and for parents with small children. Only four out of 19 border crossing points were equipped with special infrastructural solutions for the disabled and parents with children. For instance, at the Terespol crossing point there was a pay restroom and there was none in Zosin, while the restroom facility for women at the Medyka crossing point was closed. Other border crossing points had toilets but most of them were low standard. In addition, infrastructure before the actual border crossing point was insufficient to meet travellers’ needs. The resulting (long) queues were not appropriately managed by border staff and local authorities. Respondents at the EU-Ukrainian border most often complained about the lack of order in the queues. Travellers skipped queues, forced their way to advance in the queue, paid bribes and used other informal strategies to cross the border faster. While waiting in long queues, travellers needed to use facilities in the checkpoint area, such as food service, currency exchange or restrooms. In the case of Medyka and Bezledy border crossing points, hygiene standards and service quality of such elementary facilities as bars, toilets and waiting rooms have to be improved.

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The infrastructural conditions described above constitute a significant limitation to ensuring a better implementation of elementary human rights at the borders. Between Scylla and Charybdis? Quality of Services Due to high militarization in the past, crossing the borders of countries which are today responsible for the external EU border used to be an unpleasant and often traumatic experience for many travellers. Bearing in mind the restricted international mobility prevailing for half a century at these border crossing points (Stola 2001), the quality of services provided there gain even more significance now in light of current EU human rights standards. Moreover, present, thorough controls and cases of unpleasant behaviour from border guard and customs officers, regardless of whether towards EU or non-EU citizens, breach the personal dignity of travellers. The quality of services provided at the border can be analyzed from three perspectives: firstly, checks efficiency, including communication skills, such as knowledge of foreign languages, and fast border crossing facilitation; secondly, border guard and customs officers’ attitude during controls; thirdly, coordination of activities and communication between border authorities, local government and third countries’ border authorities. All these aspects interact and result in the overall evaluation a traveller leaves the border crossing point with. Article 7(2) of SBC states the following regarding the border checks on persons: ‘The minimum check … shall be the rule for persons enjoying the Community right of free movement’. This means that EU citizens are exempted from more thorough checks, which are mandatory in the case of TCNs. Travel documents control, however, does not have to be an unpleasant experience – this is to be guaranteed by the professionalism of border guard officials inscribed in the SBC, such as respect for the non-discrimination rule, good communication skills and performance of duties in accordance with the objectives pursued. In addition, the preamble to the SBC states that TCNs should also enjoy the right of free movement equivalent to that of Union citizens.2 Thus, both EU and non-EU citizens ought to expect, having complied with legal regulations, a smooth and efficient control of travel documents and belongings at border crossing points. However, the difference in regulations concerning the control of EU and non-EU citizens’ travel documents entails the assumption of TCNs being less trustworthy. This conviction stems from the behaviour of border authorities at some border sections, for whom 2 ‘The definition of common rules on the movement of persons across borders neither calls into question nor affects the rights of free movement enjoyed by Union citizens and members of their families and by third-country nationals and members of their families who, under agreements between the Community and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens.’ Recital 5 of the SBC.

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balancing the rights of, and the restrictions on, non-EU citizens is clearly difficult. ‘Rather be safe than sorry’ seems to be the rule, by pushing controls to an extreme and prolonging waiting times. Thus, it would seem that more security entails less respect for human rights; but is that really a justified trade-off? Efficiency of Controls According to the results of the research, the efficiency of border authorities was in general positively evaluated. Travellers gave negative evaluations to authorities at some of the EU-Ukrainian border sections. Specifically, this occurred at the Polish section, where most of the negative opinions came from pedestrians crossing the border. The negative evaluations provided by Ukrainian citizens were in part reactions to the detailed inspections that they were obliged to undergo. Conversely, at the Hungarian section of the EU border with Ukraine the efficiency of border guard and customs officers was more positively assessed. The opinions at the Slovak section of the border with Ukraine were similar. The negative evaluation is, among others, related to the already discussed long queuing. Travellers claimed that the inefficient control of documents and belongings carried out by the border authorities was the reason for it. Many had the impression that controls on TCNs were purposely longer. The reason behind such thinking could be the lack of information about differences in control procedures with regard to EU and non-EU citizens. According to the preamble to the SBC, ‘Member States should ensure that control procedures at external borders do not constitute a major barrier to trade and social and cultural interchange’. To this end, they should deploy an appropriate number of staff and invest appropriate resources. Nevertheless, groups of participants in cultural cooperation and exchange programmes complained about extremely long and thorough controls implemented at many of the border crossing points analyzed. For instance, at Polish-Russian, Polish-Ukrainian and SlovakUkrainian crossing points all travellers underwent as detailed controls as petty border traders in spite of having informed border guard and customs officers of the purpose of their trip. This indicates that the EU external border is, in some cases, a barrier to cross-border cooperation, which was confirmed by other studies (see Szul 2001; Krok and Smętkowski 2006). One aspect of inefficient controls reported by travellers relates to Article 10 of the SBC, with no clear provisions on how to stamp travel documents of TCNs. In this regard, travellers claim that border guard officers do not optimize the space available on passports’ pages when stamping them, reducing their usability. As a result, travellers are forced to apply for new passports more frequently – a time-consuming and costly procedure. The reduced usability of travel documents resulting from such a practice may constitute a constraint for frequent travellers. Border guard and customs officers are responsible for checking the vehicles used and the goods carried by travellers. This is, among others, provided for in the CCC and the SBC (Article 7(1)). A number of respondents – especially those

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who were engaged in petty trade – frequently complained about the very thorough inspection to which vehicles were subjected. Customs officers in some cases used inappropriate instruments to carry out their duties, damaging some travellers’ vehicles. Individuals who were randomly selected for detailed inspections were surprised by the roughness of the procedure and often expressed concern about the condition of their vehicles. This happened especially at the Polish section of the border with Ukraine. In addition, some respondents reported negative experiences with thorough luggage inspections, as goods and articles were opened and tested by customs officers and often damaged in the process. There is no doubt that, in order to ensure legal and safe cross-border movement, travellers and their goods should be subject to inspections. However, attention should be drawn to the fact that sometimes customs officers use inappropriate, inefficient or otherwise costly practices to ‘expose’ travellers alleged smuggling intentions. Respondents claimed that these excessively detailed, occasionally damaging luggage controls were carried out purely as a ‘warning’ to dissuade cross-border traders from engaging in any illegal activity. All in all, detailed inspections by border guard and customs officers did convey an impression of disrespect for individuals’ personal dignity. Corruption is one of the side-effects of inefficient border checks. However, according to this research, respondents believe that corruption has manifestly decreased in comparison to the way in which the checkpoints analyzed operated in the past. One of the likely reasons for such decrease is the recent establishment of anticorruption institutions and the installation of surveillance systems at most border crossing points. Still, most respondents believed that ‘hidden’ corruption practices still persisted along the borders, that is outside the main area of the cross border points. In their opinion petty traders and smugglers bribe border officials to bring greater amounts of goods with them, and so do businessmen to cross the border faster. The performance of border guard officers was regarded as more efficient than that of customs officers. This was partly linked to the respondents’ inability to differentiate between the roles of border guard and customs officers as well as the protocols and procedures they entailed. Respondents also compared border authorities to their non-EU colleagues, with the quality of the formers’ work being perceived much more positively than that of the latter’s. Additionally, significant differences emerged between the evaluations of border guard and customs officers by EU and non-EU travellers, with the latter often being more critical in their responses. This is especially the case of border crossing points with Russia and with Belarus.

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Non-Discrimination Rule Article 14 of the ECHR sets forth the non-discrimination rule that entitles all citizens to all the Community rights and freedoms.3 In addition, the respect for human dignity during border checks is addressed in the preamble to the SBC (Recital 7)4 as well as in Article 6 (Conduct of border checks): 1. Border guards shall, in the performance of their duties, fully respect human dignity. Any measures taken in the performance of their duties shall be proportionate to the objectives pursued by such measures. 2. While carrying out border checks, border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

However, many travellers did feel discriminated on the basis of their citizenship, which often, but not always, correlated with being of a different ethnicity. In general, border guard officers were reported to behave professionally and politely towards EU nationals, while their behaviour towards non-EU nationals was described as disrespectful, informal and often patronizing. Non-EU citizens and frequent border-crossers (for trade or work purposes) reported receiving condescending or even insulting remarks when having their travel documents checked or being questioned by border guard officers. Tourists and businessmen were treated more respectfully than traders and truck drivers, meaning that the treatment that travellers received might depend on their nationality, ethnicity and/or the purpose of the trip. Such negative experiences were voiced at some border crossing points between the EU and Ukraine in Slovakia and Poland. At the EU-Russian border, the condescending attitude of border guard officers was particularly noticeable when they dealt with petty traders. In Estonia, negative evaluations of border guard’s work were given by respondents who felt that their fellow citizens and other countries’ nationals were being treated differently. According to one respondent: There is a long waiting in the general queue while EU citizens often cross the Estonian side of the border more quickly using a separate window. That creates situations in which citizens of third countries are obliged to queue for longer while the border guard officer at the EU booth is free. 3 ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ 4 ‘Border checks should be carried out in such a way as to fully respect human dignity. Border control should be carried out in a professional and respectful manner and be proportionate to the objectives pursued.’

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At the border between the EU and Moldova, Moldovan citizens claimed that there was a marked difference in the treatment that they received as foreign travellers. Communication Skills Pursuant to national legislation, customs and border guard officers are obliged to be conversant in a few languages, especially those spoken in the two bordering countries. The ability to communicate with travellers is an essential component of the professional service expected at border crossing points. Research indicated three main problems with regard to officers’ communication skills. First, inadequate command of foreign languages: border guard or customs officers resorted to an incomprehensible melange of two languages that was extremely difficult for travellers to understand. Second, refusal to speak foreign languages: border guard officers, although able to speak foreign languages, presumed that travellers understood the language spoken in their destination country and so spoke to them only in that language. This bred much misunderstanding and confusion among travellers who may or may not have had a solid command of their destination country’s predominant language. Third, use of a language that is undesirable for political and historical reasons: Ukrainian travellers from the Ukrainian western borderland and Belarusian travellers were forced by border guard officers to communicate in Russian. Problems with officers’ (lack of) knowledge of foreign languages were mostly evident on the Polish border with Ukraine and Russia, the Bulgarian border with Turkey and Serbia, and the Hungarian border with Serbia. Another important element of communication is the form of addressing travellers. According to the research results, border authorities addressed travellers in general in a polite way. However, again the main problems were noticed at the border crossing points with Ukraine. The main problems with the way of (politely) addressing travellers – especially non-EU citizens – were observed at the border crossing points with Ukraine in Zosin. Over one-third of travellers from Ukraine claimed that the way of addressing them depended on the context in which they met border authorities. In Hungary, although the majority of respondents believed that other countries’ citizens were not addressed differently, at Tiszabecs (border with Ukraine) a higher number of people than at Tompa (border with Serbia) were of the belief that actually there were differences in they way border guard officers addressed people. At the Polish border crossing points with Ukraine, travellers in private cars had more positive opinions than pedestrians crossing the border. The way in which border officials addressed travellers was also influenced by the behaviour of the travellers themselves. For instance, the ‘strategies’ used by travellers proceeding from Slovakia or Poland in the attempt to conceal and protect their smuggled goods during inspections triggered more severe reactions from officials. On the other hand, some border guard and customs officers addressed travellers harshly without provocation.

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Conclusions The above analysis of selected aspects of the functioning of EU external border crossing points allows the conclusion that the border functionality is insufficient when the quality of services provided to travellers is concerned. The management of border traffic, infrastructure and services at border crossing points need to be improved to make them more traveller-friendly. This is especially important in the context of the economic and social meaning of borders, which are the ‘gate’ to the EU for TCNs. Moreover, high standard services at the borders would contribute to spread a positive image of the EU. Some EU institutions have already taken some steps in this direction. For example, Frontex has prepared documents on the education standards of border authorities (Common Core Curriculum) and other solutions are being developed on the basis of debates over the role of human rights in the training of European border guard officers.5 These solutions partly tackle the problem indicated in the study presented above. To achieve high standard operations in border crossing points at the EU land border, a systematic monitoring of border crossing points should be carried out according to the recommendations presented below. Recommendations Infrastructure • • • • •

Improve the quality and number of lanes, restrooms, waiting areas and food services both in the entrance and in the area of border crossing points; Build and/or improve existing facilities for people with disabilities and parents with small children; Given the composition of the travelling population, establish medical posts with first aid and emergency medical equipment at all border crossing points; Improve the management of the border crossing points’ areas. To this end, cooperation between local government, local police and border guard and customs officers is needed; Improve the quality of infrastructure on the EU side. To this end, the recognition of infrastructure conditions on the non-EU side of the border crossing point, and a common strategy for bordering countries to develop existing and to build new border crossing points are necessary;

5 Meeting of representatives of Frontex, the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM) and the International Centre for Migration Policy Development (ICMPD) devoted to the best ways of including human rights in the training of border guard officers in EU member states, Prague, 25 November 2008.

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Improve the legal framework and the infrastructural conditions for the crossing of the EU external land border. In doing so, its importance for the EU trade with non-EU partners, such as Russia, must be taken into account.

Queues Decreasing queuing time requires: • • • •

Improving infrastructure at the border-crossing points; Enhancing coordination between the EU and non-EU border authorities; Increasing border guard and customs officers’ efficiency; Increasing the number of functioning border crossing points.

Communication •

• • •

• • •

Because of frequent changes in customs and passport control regulations – especially those regarding the accession of countries like Estonia, Latvia, Lithuania, Poland, Slovakia and Hungary to the Schengen area – a wellfunctioning information system on this section of the EU external border should be introduced; Translate all the information into the languages of the neighbouring countries and into one of the most widely spoken EU languages (English, French, German); Improve information availability on the non-EU side of the border, in the area (and in the entrance) of the EU border crossing point; Improve border guard and customs officers’ knowledge of foreign languages and introduce training and courses especially designed for these professional categories. Encourage border staff to use foreign languages when communicating with foreign travellers; Create financial and legal instruments to establish and maintain closer institutional ties between local communities, ministries or administrative units responsible for border management; Emphasize the need of communicating professionally and politely; Special emphasis should be placed on the respect for non-discrimination rules and the protection of human dignity.

Non-Discrimination Rules • •

Encourage respectful and non-discriminatory behaviour of border guards and custom officers towards travellers regardless of their citizenship, ethnicity and purpose of their travel; Introduce clear standards for the performance of respectful inspections on persons and their belongings.

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Cooperation • • • •

Ensure equal earnings and other benefits among border guard and customs officers; Improve coordination of shift changes of EU and non-EU border guard, especially on bank holidays in neighbouring countries; Improve the quality of information given to non-EU border guard (especially in Ukraine), as well as of that received by EU border staff, on the border crossing rules of the neighbouring country; Deploy personnel and introduce legal instruments to facilitate good communication between border guard and customs officers from both sides of the border, as well as between other institutions or organizations relevant for the functioning of border crossing points.

Corruption • • •

Continue implementing anticorruption initiatives; Support responsible mass media discussion on the prevention of border authorities corruption; Create effective instruments to stop ‘hidden’ corruption at border crossing points. One of those instruments could be the obligation for border guard and customs officers to submit annual reports on the state of their belongings to suitable authorities.

Local Communities near Border Crossing Points •

Further cooperation within the framework of Euroregions.

Chapter 11

The Constitutional Price of Visa Free Travel: The Experiences of Bulgaria and Romania Angelina Tchorbadjiyska

Introduction The EU has long struggled to reconcile the demand of its citizens for security with the desire to preserve the freedom of movement in Europe. The latest manifestation of this dilemma can be observed in the relations between the EU and the clutch of candidate countries in the Western Balkans. On 18 September 2007, the visa facilitation agreements between the EC and the Western Balkan countries (Albania, Bosnia and Herzegovina, Montenegro, Serbia and Macedonia) were signed and thus the first step on the long road towards visa liberalization was made. As the Commissioner for Enlargement, Olli Rehn noted ‘Now we expect proper implementation of both agreements, so as to pave the way for a dialogue on visa-free travel and its conditions with each of the countries of the region’. Along with the visa facilitation agreements, readmission agreements with the same countries (apart from Albania, which already had such an agreement in place) were also signed, outlining clear obligations and procedures as to when and how to take back people who are illegally residing on the territories covered by the agreement. According to the Commission, the effective implementation of the visa facilitation and readmission agreement will ensure a better management of the migration pressure and will make it possible to envisage a structured dialogue along the path set out by the Thessaloniki Agenda towards a visa-free travel regime also for the citizens of Western Balkan countries.1 The Thessaloniki Agenda clearly states2 that the progress towards liberalization of visa regime is dependant on implementing major reforms in several areas, among which combating illegal migration and strengthening the administrative capacity in border control and security of documents. Moreover, in this process, ‘the EU should also encourage the transfer of the experience of the acceding and candidate countries to their Stabilization and Association Process (SAP) neighbours’. 1 See press release IP/07/1350 of 18 September 2007, available at . 2 The Thessaloniki Agenda for the Western Balkans, Council Conclusions, 10369/03, 16 June 2003, Annex A, p. 6.

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However, the experience of the then ‘acceding and candidate countries’ consists not only of positive examples. Bulgaria and Romania were the only two countries being in the current position of Western Balkan countries in that in 1995 they were placed on the common visa black list and were required to do a lot of reforms before their eventual removal in 2001. The vocabulary used at the time also included among others the objective of ‘combating illegal migration’. This was often interpreted as decreasing the migration pressure towards the EU by ‘coping effectively with illegal migration flows originating on their territory’. However, in a democratic society there is very little a state can do to prevent its citizens from exiting the country and migrating (unless in the cases of clear breach of law). And still, Bulgaria and Romania introduced measures providing for the limitation of the right of exit of some of their citizens who have been found illegally present on the territory of third countries. The legal substance and the practical effect of these measures are the subject of this chapter. Its main focus is on the Bulgarian regulation but some comparative elements with Romania are also presented. The analysis starts with the background of the adoption of the measure, moves on to its key legal elements, and then proceeds to evaluate its application. Assessment of the constitutional and human rights implications follows together with analysis of the post-accession developments and their relation to the EU free movement rules. A Bit of History Once again after the latest round of enlargement, the EU is in a position when there are countries that despite being candidates or potential candidates for membership are also found on the EU visa black list. The only difference is that while in the mid-1990s only two of the then countries on the way to EU memberships (Bulgaria and Romania) had visa requirements imposed on them, now all but one country (Croatia) of the three candidates and four potential candidates are on the visa black list. Thus, once again a process starts whereby visa liberalization is subject to the fulfillment of several conditions linked to border controls, illegal immigration, document security and so on. Conditions that the candidate countries have the incentives to fulfill, considering that some of them will eventually lead to the opening of negotiations for membership. Bulgaria and Romania were subjected to visa requirements in 1995 mainly because of problems of security and illegal immigration.3 Interestingly, this 3 The first visa regulation of 1995 already contains Bulgaria and Romania on its list of countries whose citizens are subject to visa requirements. Council Regulation (EC) No. 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States (OJ L 234/1, 3 October 1995).

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was also the year in which the Europe agreements of Bulgaria and Romania entered into force. Despite the unpleasant fact of imposing visa requirements, both Commission and Council officials made clear at the time that there was a possibility for a change in the visa status of the two countries, provided there is positive development in their security conditions. At the time, there was no further elaboration on the concrete measures staying behind the security conditions. Some hints came from the regular meetings between the EU and the then associated countries ministers of interior and justice and included ‘tightened border controls, streamlined immigration policy and interdiction of the traffic in stolen cars, guns and strategic raw materials and of illegal immigration’.4 By 2001 when a new visa regulation5 was adopted, and Bulgaria and Romania were removed from the visa black list following reports by the Commission on their progress, the criteria used to assess the status of the security condition acquired more concrete contours. The Commission outlined three groups of criteria: those linked to illegal immigration, those linked to public policy and those linked to international relations.6 The focus of this chapter being on the measures linked to illegal immigration, the criterion linked to irregular migration is of special importance. It is defined as: … Illegal immigration: the visas rules constitute an essential instrument for controlling migratory flows. Here, reference can be made to a number of relevant sources of statistics, information and indicators to assess the risk of illegal migratory flows (such as information and/or statistics on illegal residence, cases of refusal of admission to the territory, expulsion measures, and clandestine immigration and labour networks), to assess the reliability of travel documents issued by the relevant third country and to consider the impact of readmission agreements with those countries.7

When recommending to the Council the removal of Bulgaria and Romania from the visa list, the Commission prepared two reports assessing the achievements of the two countries. Part of the Bulgarian report refers to ‘the measures taken by 4 Statement of the then Bulgarian minister of interior, following a joint meeting between EU Justice/Internal Affairs Council and the justice and interior ministers of the Associated countries of Central and Eastern Europe. See ‘Bulgaria’s Position on Visa Black List Meets Understanding’, Bulgarian Telegraph Agency, 2 March 1996, retrievable from . 5 Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ L 81/1, 21 March 2001). 6 European Commission, Explanatory memorandum to the proposal for a new Council Regulation listing the third countries whose nationals must be in a possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, COM (2000) 27 final, Brussels, 26 January 2000. 7 Ibid., p. 9.

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Bulgaria to curb illegal immigration and illegal residence by persons from that country in the member states and for repatriation of those persons’.8 One of the measures explicitly mentioned in the Report was the introduction of sanctions concerning illegal immigration to the member states. A particular reference is made to Article 76 of the Law on the Bulgarian Identity Documents, which in its then valid version imposed ‘a ban on leaving the country for a one-year period on Bulgarian nationals who have violated the immigration law of another country or have been expelled from another country’. Similarly, the Report on Romania of June 20019 contains a part entitled ‘Illegal emigration of Romanian nationals to the member states’. Under ‘Legal Provisions’ the Report describes a system based on the Government Order no. 65/1997 as modified by the Law no. 216/1998 whereby ‘Romanians caught while illegally trying to emigrate towards EU Member States or returned on the basis of readmission agreements can be punished with the suspension of the right to use their passport for a period of three to 12 months’. The Measures The Commission reports made clear that both countries under scrutiny, Bulgaria and Romania, had some kind of administrative measure that resulted in limitation of some of their citizens’ rights to move freely in general and in particular to leave their country. However, in spite of having similar measures in place, with a similar effect, the way in which the legal construction, motives and application was exercised differed and will be studied further below. The comparative analysis is organized along four lines: the legal provisions, the types of restrictions used, the legally relevant facts able to trigger the application of the measure, and the administrative procedure and the judicial control. Legal Provisions This section examines the material law containing the conditions for the application of the limitation on travel in both Bulgaria and Romania by exploring the motives

8 Report from the Commission to the Council regarding Bulgaria in the perspective of the adoption of the Regulation determining the list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt of that requirement, COM (2001) 61 final, Brussels, 2 February 2001. 9 The position of Romania was more problematic. The country was placed on the ‘white visa list’ in the new visa regulation adopted in March 2001. However, for this provision to take effect, the Commission had to present a second report on Romania before 30 June 2001. Thus, the first report on Romania, submitted in February 2001, contains no reference to the measures under discussion here, while the second one does.

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for their adoption, the choice of the type and the number of legal acts for the regulation. Bulgaria In the Bulgarian case all rules can be found in one act: the Law on the Bulgarian Identification Documents (LBID), adopted in 1998. Despite the numerous amendments to the law, it remained the main source of material law rules. Following criticism of the previously used passports (external and internal,10 as well as driving licenses), because of their lack of sufficient security features and the possibility for easy forging, one of the major moves in 1997–98 was the change of all Bulgarian identification documents. Thus, the LBID was adopted in 1998 with motives related to both the internal needs of the state, and the needs of the country’s integration in the EU structures.11 One of the five main objectives of the proposal was ‘[the] implementation of effective control over the migration processes and limitation of the migratory pressure of Bulgarian citizens towards the countries of Western Europe’.12 The motives also mention the introduction of ‘compulsory administrative measures and administrative sanctions’.13 ‘As type, substance and volume they have undoubtedly value in relation to the respect for the law and represent an automatic guarantee for legality, related to the issuing, use and holding of identification documents, as well as for the responsibility of the authorities and the citizens’.14 The compulsory administrative measures linked to the implementation of the LBID are included in Part 1 of Title 7 of the Law. They are divided in two groups according to the identification document they target. The first group featured in Article 74 deals with cases of withdrawal of identity cards of Bulgarian citizens,15 while the second, including Articles 75 and 76, deals with cases of ban on leaving the country and refusal to issue passports or replacing them with documents which allow their owner to cross the state border and stay abroad. The second group is further divided depending on the powers vested in the administration when imposing the preventive measure. Article 75 contains hypotheses which when happen create the obligation for the administrative authority to impose the 10 Replaced later by identity cards. 11 Motives to the proposal for a Law on the Bulgarian Identification Documents, Part 1 – Need for the change of the Bulgarian identification documents and the new legal regulation. 12 Ibid., Part 2 – Main objectives of the proposal for a Law on the Bulgarian Identification Documents. 13 The term ‘compulsory administrative measures’ is the translation of the term used in Bulgarian administrative law. In substance, they are preventive measures. Both terms will be used in this chapter. 14 See footnote 12. 15 The imposition of such measure is allowed only in cases of (1) measure of ‘detention’; (2) imprisonment; (3) administrative measure of ‘detention in the detachments of the Ministry of Interior’ and (4) other cases determined by law.

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compulsory administrative measure.16 Article 76, on the other hand, gives the administration the possibility for assessment whether to impose the measure or not, once one of the hypotheses of the text is fulfilled.17 The texts of Article 76 (5) and (6) have changed over time, but they have kept the overall structure and main elements. Those will be discussed further, starting with the types of restrictions, their duration, the facts or behavior that can trigger their application, and the applicable procedure.18 Romania In the Romanian case the administrative measure was not contained in one act but was regulated by several ones on a different level – government ordinances and laws. The first act which dealt with this field was government

16 The hypotheses of Article 75 include: (1) persons for whom there is enough evidence that by their traveling they threaten directly the security of the Republic of Bulgaria; (2) persons for whom enough evidence exists that by their traveling they threaten the system of protection of the classified information representing a state secret of the Republic of Bulgaria; (3) persons with a ban imposed on the basis of Article 153a of the Criminal Procedure Code, as well as persons sentenced to jail until the serving of their term, except for the cases envisaged in Article 66 of the Penal Code; (4) persons who are sentenced to pay support to someone else and who have not provided it for the period of their stay abroad; (5) tax liable persons, for whom prohibition is required by the order of Article 145, paragraph 8, item 2, letters a and b of the Tax Procedure Code. All references to the text of LBID, unless specified otherwise, are based on its official English translation, available on the website of the Bulgarian Ministry of Interior, . 17 The hypotheses of Article 76 include: (1) persons regarding whom prosecution is instituted for premeditated crime of general nature, which is punishable by prison up to three years and of convicted persons for such crimes until the serving of the term of punishment; (2) persons convicted for premeditated crime of general nature but not rehabilitated; (3) persons with financial liabilities in large sums to Bulgarian and foreign individuals or corporate bodies, established by court order, unless their personal property covers the liability or if they provide due indemnification; (4) persons who at the time of applying for issuing of passport or other documents for crossing the state border have presented false data related to grounds for refusal or to circumstances of losing, theft or destruction of the issued passport or substituting document – for a period of one year from applying; (5) and (6) will be discussed in detail further in the text; (7) persons repeatedly punished for violations of the Bulgarian customs, tax or foreign exchange legislation – for a period of one year from the last punishment; (8) persons who have declared lost stolen or physically destroyed identification document and it is established that they continue to use it – for a period of one year starting on the date on which the fact was established; (9) junior, under-aged and persons under legal disability who do not have written consent for travel abroad by their parents, adoptive parents or guardians. 18 For a detailed analysis of the case law of the Supreme Administrative Court (SAC) of the Republic of Bulgaria on the application of Article 76, see Tchorbadjiyska (2006).

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Ordinance no. 65/1997 on the status of passports in Romania,19 and more precisely Article 14 (1). Some changes, mainly linked to the duration of the limitation, were introduced in 2002.20 In this first phase, similarly to Bulgaria, the Romanian measures were building into the general regulation of passport and the case of Romanians subject to removal or expulsion from another country was put along with other cases of limitation on travel, such as persons being under criminal investigation or standing a trial. This line of regulation was supplemented in 2001 by another government Emergency Ordinance no. 144 of 25/10/2001 on the conditions to be met by Romanian citizens at the time they leave the country when they intend to enter the territory of EU member states or of other countries. It applies only to Romanian citizens that travel for personal reasons to countries that do not require visas. The conditions to be met are the same as those previously required by the EU for obtaining a visa by Romanian citizens: health insurance, a return ticket or green card for the car, and certain amount of money in hard currency for each day of their stay. Thus, although since 2002 Romanian citizens were not subject to EU visa requirements, they were subjected to similar controls, but this time performed by their own national authorities rather than by consular services of the EU member states. However, it seems that a similar measure should have existed prior to the adoption of this ordinance, as according to the Commission Report on Romania from June 2001 ‘the border police is empowered to check whether Romanian citizens leaving their country are in possession of the visa, the residence permit, health insurance and the financial means required by the country of destination’. The Commission Report continues ‘according to the assessment of the migratory risk made by the Romanian border authorities, the persons concerned who are stopped because they do not fulfill the conditions for entry fixed by the country of destination may have their passports temporarily withdrawn’.21 Later in 2005, Law no. 248 of 20 July 2005, dealing with the free movement of Romanian citizens abroad, was adopted. Thus, the preventive measure was extracted from the legal regulation of passports and put into the more general context of free movement. The two key provisions of the new act are those of Articles 38 and 39.

19 Information about the Romanian legislation citied in this chapter was retrieved from Global Legal Information Network at . 20 Government Emergency Ordinance no. 119 of 25 September 2002 to later line e of paragraph 1 of Article 14 of Government Ordinance no. 65/1977 on the status of passports in Romania. 21 European Commission, Report from the Commission to the Council exemption of Romanian citizens from visa requirement, COM (2001) 361 final, Brussels, 29 June 2001.

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Types of Restrictions This section analyses the sanctions applied by the Bulgarian and Romanian authorities, distinguishing them according to their type, duration and effect. Bulgaria Originally, the preventive measure foreseen in the Bulgarian Article 76 LBID could take tree forms: a ban to leave the country, a refusal to issue passports, or to replace them, and the withdrawal of already issued ones. The latter measure has been abolished following the 2006 amendments to the LBID, adopted prior to the EU accession of Bulgaria. The three (now two) forms of restrictions can be imposed independently or can be cumulated.22 Regardless of the combination used, the ultimate effect is that those measures impede the possibility of some Bulgarian citizens to exercise their right to leave the country; a right that is guaranteed both by Article 35 of the Bulgarian Constitution and by Article 2 of Protocol 4 to the ECHR. Moreover, the ban is general: it prevents the Bulgarian citizen from leaving the country, and thus from visiting not only the country whose legislation they have breached, but any other country. Once imposed, the administrative measure, and thus the limitation of the rights, lasts two years. The duration is established in the law and the responsible authority does not have the competence to decide on a different period of validity within the range of up to two years, depending on the circumstances. It can decide only whether to impose the measure or not. The original duration was of one year. However, following an amendment in 2003 it was extended to two years23 without a specific justification. The motives for the adoption of the draft law at the time simply state the change but do not elaborate on the grounds for its introduction. Some indication might be found in a report adopted by the government the same year and stating that one of 22 The case law of the Bulgarian Supreme Administrative Court (SAC) provides examples for the various combinations that are possible: ban to leave the country (Decision 6722 of 12 July 2005 on administrative case no. 11442/2004 of SAC; Decision 9764 of 24 November 2004 on administrative case no. 5078/2004 of SAC; Decision 10122 of 3 December 2004 on administrative case no. 4640/2004 of SAC; Decision 11038 of 12 December 2005 on administrative case no. 2300/2005 of SAC); withdrawal of a passport (Decision no. 94 of 5 January2006 on administrative case no. 5672/2005 of SAC; Decision 4600 of 4 May 2005 on administrative case 299/2005 of SAC); ban to leave the country and withdrawal of a passport (Decision 1610 of 21 February 2005 on administrative case no. 6361/2004 of SAC; Decision 2500 of 18 March 2003 on administrative case no. 200/2003 of SAC, Decision 3977 of 22 April 2003 on administrative case no. 648/2003 of SAC; Decision 9652 of 22 November 2004 on administrative case no. 4636/2004 of SAC; Decision 9653 of 22 November 2004 on administrative case no. 4637/2004 of SAC; Decision 9654 of 22 November 2004 on administrative case no. 4635/2004 of SAC). All cases can be consulted in Bulgarian on the website of the SAC at . 23 The same duration is applied to the case of Article 76 (5).

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the three main objectives of the government’s migration policy is ‘to increase the feeling of security of the citizens in their own country and thus to discourage their willingness to emigrate’.24 Romania In the case of Romania the limitation also appears to be cumulative: prohibition to leave the country and withdrawal (or what the Commission calls in its report ‘temporary suspension’) of passports. In the first group of acts adopted in the end of the 1990s, when the measure was placed in the framework of passport controls, it seems that it has been applied in general regardless of the destination of the person concerned. However, the text of Article 39 (8) of the Law of 2005 implies that the passport is actually not withdrawn but a mention is made in it, stating ‘the imposition of the measure, as well as the country or countries for which it is being applied’. Thus, it is possible to limit the application only to the country from which the person was expelled or removed.25 The original duration of the ban in the provisions of 1998 was fixed at three to 12 months, but was extended following an amendment of 2002 to a period from one to five years. The extension was one of the commitments that the Romanian government took prior to the Commission Report of 2001. The Report clearly states that ‘in order to combat illegal immigration of Romanian nationals to EU countries, the Romanian authorities intend to increase the penalties (for example by extending the period of suspension of the passport) to be inflicted to nationals illegally emigrating to the EU Member States and returned on the basis of readmission agreements’. The new Law on the free movement of Romanian citizens of 2005 shortens the period of limitation on travel to three years. The (Legally) Relevant Facts This section explores the facts considered legally relevant and capable of triggering the procedure leading to the ban on travel for some citizens. Bulgaria The text of LBID contains two hypotheses of particular interest to this chapter: that of Article 76 (5) and (6). The text reads:

24 Report of the Ministry of the Interior and the Ministry of Foreign Affairs on the migration situation and the need for amendments in the visa and migration policy of the Republic of Bulgaria for the period 1 January 2002–31 March 2003 (in Bulgarian). 25 Although this seems to be a more just solution, for practical purposes, once the person leaves the territory of Romania, there is no way to prevent him or her from going to the country from which they were expelled, unless there they have an active prohibition to enter.

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Europe’s 21st Century Challenge It may not be permitted to leave the country, passport and substituting documents to be issued of:26 5. persons who, during their stay in another country, have committed offences against its legislation – two years from the receipt of an official letter from the Ministry of Foreign Affairs or the documents for compulsory removal or expulsion, pointing out the committed offence, by the competent bodies of the respective country; 6. persons who are removed or expelled from another country for violation of the entry and residence regime – for a period of two years from the receipt of an official letter from the Ministry of Foreign Affairs for the committed offence or from the date of receipt by the competent authorities of the documents for the compulsory removal or expulsion.

As the case law of the Bulgarian SAC shows, in some instances the administrative authorities used Article 76 (5) and (6) interchangeably, as obviously an offence against the entry and residence regime of a country is also an offence against its legislation. The fact that on numerous occasions Article 76 (5) was applied to cases which otherwise would have normally fallen under the hypothesis of Article 76 (6), in combination with the acceptance of SAC of such administrative practice, shows that Article 76 (6) could be considered as a special application of Article 76 (5). What is more, the case law of SAC shows that if Article 76 (6) would not have existed, Article 76 (5) would be sufficient to protect the social relations in question. Thus, the added legal value of having the special case of Article 76 (6) is not high. However, the text has very high moral value, as it effectively transplants the immigration rules of other countries into the Bulgarian legal order and transforms them into a value worth protection. The mere existence of the text shows the importance vested by the legislator to the immigration concerns of other countries, as it sets to protect them. There are specific conditions putting in motion the preventive measure of Article 76 (6). There should be a violation of the entry and residence regime of another country. Although in the majority of the cases the measure is applied in relation to an EU country, the text does not contain a specification on that, and thus can be applied to offences on the immigration rules of any country.27

26 Before 1 January 2007 the text continued with ‘and the issued to be withdrawn’. 27 Judging by the case law of the SAC, the majority of the cases involves EU countries (particularly Belgium and the Netherlands) but also refers to cases in Mexico, Taiwan and the US.

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The material law conditions of the norm are two and they need to be present cumulatively: on the one hand, there should be compulsory removal or expulsion from the territory of another country and, on the other, this action should be a result of an offence on the entry and residence regime. Thus, in cases when there is an expulsion, but it is based on other grounds (for example, another offence against the legislation of another country), or when the entry and residence regime is infringed, but this has not resulted in compulsory removal or expulsion, Article 76 (6) cannot apply. The case law of the SAC also points to cases when persons are not allowed to leave the country, although the preventive measure of Article 76 (6) is not imposed. In such circumstances, the SAC has not considered the refusal to leave the country as an administrative act (and thus subject to judicial control), but simply an action of performance of civil servant’s professional duties. Similar checks are institutionalized in Romania, where there is a special regulation of the conditions which Romanian citizens have to meet when leaving the country. In order to apply the norm of Article 76 (6), the administrative authority should establish the relevant facts and link them to the hypothesis of the norm. The judgment of whether there is an offence against the entry and residence regime is in the jurisdiction of the foreign authorities, and thus it is sufficient for the Bulgarian authorities only to establish the fact of compulsory removal or expulsion. The presence of the legally relevant facts can be proven in the majority of the cases by reception of a letter from the Ministry of Foreign Affairs confirming the commission of offences against the legislation of other countries. The text, however, also speaks about ‘competent bodies’, most logically the Ministry of Interior. However, in practice, under the readmission agreements signed between Bulgaria and other EU countries, the competent authority to be notified in case of removal is the diplomatic and consular representation of Bulgaria in the country concerned; contrary to the Romanian agreements, where the competent authority is the Ministry of Interior.28 Romania The situation in Romania is different, as there the important element is the return based on the readmission agreements signed between Romania and third

28 Compare the readmission agreements of Bulgaria and Romania with the Benelux countries: Accord entre les Gouvernements des Etats du Benelux (le Royaume de Belgique, le Royaume des Pays-Bas, le Grand-Duché de Luxembourg) et le Gouvernement de la République de Bulgarie relatif à la réadmission des personnes en séjour irréguliers (Accord de réadmission), (M.B., 3 août 2002, Addendum, M.B., 1er mars 2005, première édition) and Accord entre les Gouvernements du Royaume de Belgique, du Grand-Duché de Luxembourg et du Royaume des Pays-Bas, d’une part, et le Gouvernement de la Roumanie, d’autre part, relatif à la Réadmission des personnes en situation irrégulière, et aux Annexes I et II, signés à Bucarest le 6 juin 1995, (M.B., 4 septembre 2003, deuxième édition, Addendum, M.B., 24 août 2006).

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states.29 The fact of readmission is sufficient regardless of its causes. Moreover, according to the Commission Report of 2001, this measure of withdrawal or temporary suspension of a passport is automatically used in case of repatriation of Romanian citizens expelled from a foreign country. The same is applicable to Romanians who commit offences or other law breaches abroad, if Romanian authorities are informed of it. Administrative Procedure and Judicial Control This section discusses the administrative procedure for issuing of the administrative act imposing the measure and the possibilities for its appeal both in front of the higher administrative authorities and in front of a court. Bulgaria The administrative measures under discussion here are imposed in Bulgaria by an administrative authority – either the Minister of the Interior or officials authorized by him, typically the director of the National Service ‘Border Police’, or the Head of the Sector ‘Bulgarian Identity Documents and Foreigners’ of the National Service ‘Police’. In contrast to the previous provisions of the same section on compulsory administrative measures, it allows for what is called in Bulgarian administrative law ‘operative independence’ or discretion. While Article 75 lists behaviour which can trigger a certain administrative sanction, and thus uses the verb ‘shall’, Article 76 uses the verb ‘may’ and thus only creates the possibility for the measure to be applied, but leaves the choice to the administrative authority. With Article 76 (6) the legislator has created the legal possibility (using the verb ‘may’) for the administrative authority, once the facts corresponding to the hypothesis of the legal norm happen, to impose the compulsory administrative measure. In this case the administrative authority acts under the conditions of ‘operative independence’ – it can make a choice from the two possibilities foreseen by the law. In making that choice as to whether to impose or not the preventive measure, the administrative authority has to assess the necessity of its implementation in each individual case. Such assessment is an expression of its free will and internal conviction in the framework of the operative independence, and as such cannot be subject to judicial control. The choice of the authority is embodied in an administrative act-order, which should be motivated. The obligation for motivation of the action of the administrative authority exists also in cases when it acts under ‘operative independence’. However, the motives of the decision cannot be subject to judicial control. It is sufficient that the administrative authority exercised its power as provided by the law and in order to achieve the objectives for which it has been

29 Article 38 (a) of Law no. 248 of 20 July 2005.

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granted. The citing of the legally relevant facts in the order issued represents also the grounds of the administrative authority for its issuing. Under the normal administrative procedure there is a requirement for notification of the person concerned. However, in this case SAC considered that ‘the lack of notification of the person does not represent a serious breach of the procedural rules, as the one could give explanations or present proof in the judicial process’.30 The preventive nature of the measure was cited as an additional argument. ‘The significance of the protected social relations requires limitations of the right of defense of the persons targeted by the measure. However, the guarantee for the legality is the presence of judicial control’.31 The imposition of the measure of Article 76 (6) LBID is subject to judicial control. According to Article 78 (1), ‘the preventive measures are imposed following a reasoned order by the Minister of Interior or other authorities which he has authorized to perform the powers of this title’. Article 79 LBID continues that ‘the issuing of the orders and their judicial control follow the procedures of the Administrative Procedure Code’.32 Thus, following the authorization of the Minister of Interior, the competent court to perform judicial control over such orders will be determined by the authority which issued them. Previously, the competence was with the SAC. A complaint against the order should be lodged within 14 days of its notification and does not suspend the execution of the order. According to SAC Decision no. 1798 of 27 February 2003 on administrative case no. 155/2003, The compulsory administrative measures to which the measure of Article 76 (5) belongs have a preventive nature and aim at preventing the committing of an illegal act in cases of high probability. If the person is notified when the procedure for imposing of the measure starts before the actual ban on leaving the country is imposed, then there is a possibility for actual infringement and prevention of the subsequent imposition of the administrative sanction. Such a situation could render the preventive effect void, as is the purpose of those special norms of LBID. The significance of the protected social relations imposes certain limitations of the right of defense, until the actual imposition of the sanction.

30 SAC Decision no. 6163 of 1 July 2005 on administrative case no. 807/2005. 31 SAC Decision no. 10909 of 7 December 2005 on administrative case no. 4608/2005. 32 The latest amendment to the text of Article 79 LBID was in 2006. The previous version of the text provided for the judicial control to be performed by the SAC, as the Court competent to control the acts issued by ministers.

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Appeal to a higher administrative court and further review by the SAC is also possible but would usually take long (up to three or four years).33 Considering the recourse to review does not have suspending effect on the decision for the imposition of the measure, there is a possibility for serious limitations of rights under this new system. Prior to the entry into force of the Administrative Procedure Code and the amendments of the LBID, the order imposing the restrictions was always considered to be issued by the Minister of Interior. As such it could be appealed directly to the SAC. However, this possibility lead to a bit of a deadlock in the cases it provided for better protection, as the time for reaching a final decision was significantly shorter (one year, on average).34 Romania According to the rules currently in force, the authority imposing the preventive measure, and thus limiting the right of the free movement abroad of some Romanian nationals, is a judge. The administrative authority, in this case the General Directorate of Passports, can propose the measure to be taken, but ultimately it has to be imposed by the district court of the area where the person concerned resides. Contrary to the situation in Bulgaria, the person on whom the measure is imposed is notified as soon as the judge takes a decision based on the request by the administrative authorities.35 Such a decision has to be taken within five days of the request. Once taken, the decision is notified not only to the individual concerned, but also to the General Directorate of Passports, the General Inspectorate of the Border Police and the public services in charge of issuing of ordinary passports. This notification opens the way to appealing. The process of imposing the measure in Romania has a full cycle of judicial control, however with very short time limits. Article 39 of the relevant law foresees the possibility of appeal (within five days of notification of the original decision, to be decided within three days of the launch of the appeal) and the possibility of review (with the same deadlines).

33 In a typical case, the order was imposed by the Head of the ‘Bulgarian Identification Documents’ Section at the National Police on 28 October 2003. Following a judicial review, the district court issued its judgement on 28 November 2005. Following an appeal, the SAC issued the final judgement on 19 March 2007 (SAC Decision no. 2837 of 19 March 2007 on Administrative Case no. 11402/2006). 34 In a typical case under the old system, the order was imposed by the Head of the ‘Bulgarian Identification Documents’ Section at the National Police on 29 May 2002. Following a judicial review, a three-member chamber of the SAC issued a judgement on 2 December 2002. Following an appeal, a five-member chamber of the SAC issued the final judgement on 19 May 2003. (SAC Decision no. 4823 of 19 May 2003 on Administrative Case no. 11402/2006). 35 Article 39 (3) of Law no. 248 of 20 July 2005.

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The judicial review does not have suspending effect on the original decision for limitation on the right to free movement. However, considering the short time limits, it is possible to have a final and irrevocable judgment within 21 days. The Figures As with all migration statistics, it is difficult to come with recent and reliable statistics on the application of the measures discussed here. Another difficulty, particularly linked to the administrative measures, is that they are usually reported together without a breakdown to the specific grounds on which they are imposed. Bulgaria The figures on the application of the compulsory administrative measure for the period 2000–2005, provided by the Ministry of Interior show ten to twenty-fold increase of its application after the removal of Bulgaria from the visa black list. Table 11.1

Number of issued orders based on Article 76 (6) LBID

Year

2000

2001

2002

2003

2004

2005

Number of Issued Orders Based on Article 76 (6) LBID

186

107

1091

2292

1846

1404

Source: Ministry of Interior and Ministry of Foreign Affairs.

For the same period there was judicial review of 174 orders and in 14 cases the orders were annulled. It is difficult to judge whether the high numbers were due to the increased number of expulsions of Bulgarian citizens or to the willingness of the Bulgarian authorities to show that no compromises are made in the protection of the entry and residence rules of other countries, and thus the measure was imposed much more often than before. The second idea seems more probable, especially if one considers how the measure is imposed. Fortunately, one of the cases heard by the SAC provides an interesting example for that. In the 2003 case of deportation of 140 Bulgarian citizens from the Netherlands, based on its correspondence with the Dutch authorities, the Bulgarian Ministry of Foreign Affairs proposed to the Ministry of Interior that the ban to leave the country was imposed to all of the repatriated citizens, either based on Articles 76 (5) or 76 (6). As the case of one of those persons has reached the SAC, one could assume that the Ministry of Interior followed the recommendation. Thus, despite the above defined principle of ‘operative independence’, it seems that at least for a certain period the measure was applied to everyone who had been expelled from another country without an individual assessment of the necessity of the measure in each

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Table 11.2

Application of the Compulsory Administrative Measure (2003– 2006)

Year Total number of persons with ban to leave the country Total number of Bulgarian citizens returned from other countries Countries with the highest number of deportations Number of issued orders based on Article 76 (5) and Article 76(6) LBID

2003

2004

2005

2006

–

11124

12074

13488

7310

6737

5867

5603

BE, NL, DE BE, NL, DE BE, NL,DE

2878

2751

2989

FR, NL, BE

3329

Source: Report on the migration situation in the Republic of Bulgaria in 2004, 2005 and 2006, and Report on the migration policy in Republic of Bulgaria for the period from 1 January 2003 to 31 March 2004.

case. As the figures for the years 2003 and 2004 show, in reality the measure was imposed in approximately 30% of all cases of expulsion. Romania Considering that in the first years of the application of the measure, according to the Commission Report on Romania, the measure was automatically used in cases of repatriation, one could expect that the cases are proportionally higher than in Bulgaria. However, with the entry into force of the new law on the free movement of Romanian nationals of 2005, the automatic character was replaced with discretion, as the exact wording of Article 38 of the law is that ‘the restriction of the exercise of the right to free movement abroad of Romanian citizens may be imposed’. Thus, the number of cases should be decreasing. From 1998 to February 2001, the right to use a Romanian passport was suspended for 59,602 Romanians, returned on the basis of readmission agreements. Furthermore, between 1998 and 2000, 27,409 Romanian citizens were forbidden to exit Romania. These included different categories of persons: persons listed as being under criminal investigation, on trial or wanted for other offences; people using false passports, hidden in means of transport or carrying irregular documents. According to Romanian sources, the number of Romanian nationals repatriated to Romania was equal to 19,714 in 1998 (10,747 from member states), 23,036 in 1999 (10,312 from member states), and 21,411 in 2000 (9,003 from member states).

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The Effects This section explores the effects of the administrative measures under discussion on the rights of Bulgarian and Romanian citizens, both in light of the guarantees provided by the national constitutions of the two countries and of the obligations towards the ECHR. A look at the implications of the accession to the EU is also provided. Unconstitutional Human Rights Abuse? The limitation of the rights described in the previous sections meets the legality criteria, as it is duly enshrined in law. At the same time, both the Bulgarian and the Romanian Constitutions contain guarantees for the right to exit one’s own country. Both countries are signatories to Protocol 4 of the ECHR. Bulgaria In the part of the 1991 Bulgarian Constitution dedicated to the rights and freedoms of citizens there is an article establishing the right of residence and movement. It is Article 35, which reads: 1. Everyone is free to choose a place of residence and has the right to movement on the territory of the country and to leave the country. This right shall be restricted only by the virtue of a law in the name of national security, public health, and the rights and freedoms of other citizens. 2. Every Bulgarian citizen shall have the right to return to the country.

It is clear from this provision of the Constitution that the right to leave the country is a constitutionally guaranteed one. And limitations to this right can be accepted only when they are provided for by law and when they are meant to defend one of the following values: national security, public health and the rights and freedoms of others. As it will be discussed further, the list of accepted justifications for the limitations is significantly shorter than the one contained in Protocol no. 4 to the ECHR.36 It is clear also that the limitations to be found in the Article 76 (6) are provided for by law, an act which has been adopted following the democratic procedure set out in the Constitution. Thus the first condition necessary for the constitutionality of the limitation is present. It is also necessary to note that as we are considering a case of limitation of rights, although not absolute ones, the circumstances in which they can be applied should be interpreted in a limited way. Thus, the list of possible justifications contained in Article 35 (1) of the Constitution is exhaustive. Unfortunately, the Constitutional Court of Bulgaria has not had a chance to pronounce itself on the constitutionality of Article 76 LBID, or to interpret the 36

Bulgaria is a party to the ECHR and has also ratified Protocol no. 4.

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provision of Article 35 of the Constitution, and especially the part dealing with the justified limitations to the right in question. Moreover, there are no cases so far on the conflict between the basic rights of the citizens and the national security.37 Nonetheless, in certain cases it is possible that security considerations exist in the practice of the application of Article 76 (5) and (6).38 Unfortunately, an opportunity to fill this gap in Bulgarian constitutional practice was missed in an administrative case where the SAC had to deal with the case of a complainant claiming that the preventive measure imposed on him was not in compliance with the rights proclaimed in Article 35 (1) of the Constitution of Bulgaria. The SAC held that the argument that the compulsory administrative measure is imposed in breach of Article 35 (1) of the Constitution was unfounded: The proclaimed right does not have an absolute character and can be limited by law for the protection of national security, public health or the rights and freedoms of others. The norm of Article 76 (6) is a lawful norm that limits the right of Bulgarian citizens to leave the country and is not in contradiction with the provisions of … and Article 35 of the Constitution.39

Undoubtedly, the provision of Article 76 (6) meets the legality conditions foreseen in the constitutional text, as it is provided for by law. However, it is difficult to see how the act that triggers the provision, namely ‘the expulsion from another country for an offence against the entry and residence regime’ could fall within the legitimate aims protected by the limitation. It is disappointing that the SAC limited itself solely to the legality check, accepting that the presence of a provision in law is a sufficient condition for limiting constitutionally guaranteed rights without continuing the analysis and establishing whether in the precise case of Article 76 (6) any of the conditions allowing limitations is present. This case was also a missed opportunity to request interpretation by the Constitutional Court. Romania Similar constitutional problem exists in Romania where the right to exit the country is also guaranteed. Article 25 (on freedom of movement) of the 1991 Romanian Constitution reads: 37 In Decision no. 4/200150 the Constitutional Court provides some thoughts on the application of Article 2 of Protocol no. 4 ECHR, as well as on the national security as ground for limitations to basic rights. However, the case deals with compulsory administrative measures in the Aliens Act, which are not subject either to administrative or to judicial control and thus cannot be applied in the present case. Meanwhile, Article 47 (1), the provision in question, was repealed in 2001. 38 In the Procedural Decision no. 84 of 7 January 2003 on administrative case no. 7904/2002, the SAC accepted that, when the justification on which the measure is imposed is a document with special regime of use, the procedure can be classified. 39 SAC Decision no. 6410 of 6 July 2005 on administrative case 11435/2004.

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(1) The right of free movement within the national territory and abroad is guaranteed. The law shall lay down the conditions for the exercise of this right. (2) Every citizen is guaranteed the right to establish his domicile or residence anywhere in the country, to emigrate, and to return to his country.

Apart from the constitutional guarantees provided in the national law, the right to leave a country falls under the general freedom of movement rules which is guaranteed by Protocol no. 4 to the ECHR. As the provisions of the protocol are considered controversial in some states due to their link with immigration policy, the protocol has not been ratified by all parties to the Convention.40 Bulgaria ratified it in November 2000. The right to leave a country is enshrined in Article 2 of Protocol no. 4, which reads: 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of the ordre public for the prevention of crime, for the protection of health and morals, or for the protection of the rights and freedoms of others. (…) The freedom to leave a country is subject to the restrictions set out in paragraph 3.

The type of limitations recalls those to be found in the second paragraphs of Articles from 8 to 11 ECHR, which allow for interference by the authorities with the protected rights under certain prescribed conditions. The analysis of the Court follows three steps in the cases when a state seeks to rely on limitations in one of the articles of the Convention. Post-Accession Changes It was generally assumed that the accession to the EU would put an end to the above described practices at least as far as the expulsions from EU countries are concerned.41 The reasons for that are two: the possibility after accession for citizens of Bulgaria and Romania to travel only with the identity card, without the need to use a passport, and the limited grounds on which member states can refuse the benefits of free movement to EU citizens from other member states. However,

40 Greece, Spain and the UK. 41 About 50% of those returned to Romania and over two thirds of those returned to Bulgaria were expelled from EU member states.

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the acts in force were not repealed, only mildly amended. Thus the question as to what will be the effect of the measures upon accession remains open. Prior to accession to Schengen, border controls between Bulgaria and Romania and the rest of the EU states remains. However, after accession, even with existing border controls, it will be perfectly possible to travel (at least within Europe) on presentation of an identity card. And the cases when an identity card might be withdrawn under Bulgarian law are strictly limited to cases of detention and imprisonment. However, the sanctions envisaged under the Bulgarian and Romanian law do not include only the refusal to issue a passport or the withdrawal of already issued ones, but also a ban to leave the country. In practice the ban means that the name of the person concerned is included in a national database, and whenever they appear at a border check point they might be not allowed to leave the country. The situation will change with the accession to Schengen. Border controls between Bulgaria and Romania and the other member states will be abolished. As there will be no more border controls, individuals will be able to move freely on the territory of the other member states. Thus the preventive measure discussed here will be devoid of purpose at least as far as the Schengen states are concerned. For the remaining ones, the possibility to impede an individual to leave the country will remain, unless the relevant measure is repealed. Of course, even after the accession to the EU and later to Schengen, it will still be possible for Bulgarian and Romanian citizens to be returned on the ground that they are illegally staying on the territory of another member state. This can happen in cases when they have overstayed and, for one reason or another, they are not covered by the provisions on the free movement of persons. What are the exact limits of the provisions will be for the ECJ to decide. In the Jipa case, a Romanian court asked questions as regards the compatibility of the provisions of the Romanian legislation with the principle of free movement of persons guaranteed by Article 18 TEC. Of particular relevance for this chapter is the first question related to whether Articles 38 and 39 of Law 248/2005 (discussed above), which prevent persons (Romanian citizens and now EU citizens) from moving freely in another state (in this case, an EU member state), constitute an obstacle to the free movement of persons upheld by Article 18 TEC. This question is linked to whether a member state of the EU (in this case Romania) imposes a limitation on the exercise of the right of free movement of citizens within the territory of another member state. The answer of the ECJ is the following: A national of a Member State who has been repatriated from another Member State enjoys the status of a citizen of the Union under Article 17 (1) EC and may therefore rely on the right pertaining to that status, including against his Member State of origin, and in particular the right conferred by Article 18 EC to move and reside freely within the territory of the Member States. In that regard, the right of freedom of movement includes both the right for citizens of the

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European Union to enter a Member State other than the one of origin and the right to leave the State of origin. The fundamental freedoms guaranteed by the EC Treaty would be rendered meaningless if the Member State of origin could, without valid justification, prohibit its own nationals from leaving its territory in order to enter the territory of another Member State.42

The ECJ judgment undoubtedly gives some clarity as to the compatibility of the administrative measures analyzed in this chapter with the EU law provisions on free movement. However, such a decision does not answer the question on the constitutionality of those provisions. The lack of clarity creates a situation in Bulgaria and Romania whereby the basic rights of their citizens can be seriously limited. Conclusions The challenge of weighing liberty (or rather freedom of movement) against the perceived imperative of security is particularly strong in the domain of visa policy. Before the 2007 enlargement the EU chose security over liberty by first imposing (in 1995) visa requirements on Bulgaria and Romania and then pressuring these countries to improve ‘the security circumstance’ as a condition for their removal from the visa black list. One of the concerns which repeatedly emerged in the communications from the Commission and the member states was the illegal emigration of citizens of Bulgaria and Romania. In order to deal with this concern, Bulgaria and Romania concluded readmission agreements and introduced new identity documents. But this was not enough; another key measure they had to take was the introduction of preventive measures aimed at decreasing the number of illegal emigrants. The Western Balkan countries find themselves in a similar position as they are advancing on their road towards membership. They are still on the visa black list and they have concluded readmission agreements and visa facilitation agreements as a first step towards visa-free travel. However, again it seems that concerns about illegal emigration remain. The Balkan countries might thus come under strong pressure from the EU (now enlarged to include Bulgaria and Romania) to adopt similar preventive administrative measures aimed at curbing the number of migrants to EU. More generally, the chapter has identified a dilemma: the very measures adopted with a view of meeting the EU expectations in one field (decrease in migration pressure) can go against other principles proclaimed by the Union, such as the protection of human rights which includes freedom of movement. In the case 42 Judgment of 10 July 2008, Paragraphs 17-18, in Case C-33/07: Ministerul Administraţiei şi Internelor – Direcţia Generală de Paşapoarte Bucureşti v. Gheorghe Jipa.

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analyzed here, the concerns of member states over illegal immigration led them to induce candidate countries to adopt restrictions to the freedom of movement which are questionable in the framework of the human rights standards also promoted by the Union. One might call this ‘illiberal practices of a liberal regime’.

Chapter 12

Effects of Exceptionalism on Social Cohesion in Europe and Beyond Alessandro Dal Lago, Salvatore Palidda and Federico Rahola

Introduction The first research theme covered by WP 8 of the CHALLENGE project concerned the central, constitutive role played by war and security in current national and international politics. Attention thus focused on the transformations of the forms of war in contemporary politics, the different subjects involved in these processes, as well as the discursive, political and social forms of legitimization (see Conflitti globali nos. 1, 3 and 6). The basic theoretical assumption was to consider contemporary global politics as being shaped by a continuum between war and security politics, which has progressively abolished any distinction between internal/national and external/ international politics. Therefore, the research addressed the impact of this pervasive and displaced scenario, both at a national and international level, questioning the (dis)order that it has continuously produced, its provisional balances, and the uncertain sovereignty that has characterized it in the aftermath of 11 September. The second research theme specifically concerned security policies and their impact at local and regional level. It set out by asking a series of questions: how far does the idea of security extend today? What are its boundaries? Who are the actors involved, and what kind of power legitimizes them? Who are the subjects targeted by security policies? These questions were developed in order to assess the social and political impact of security politics, and have been thematically assessed in separate issues of the journal Conflitti globali (nos. 2, 4 and 5). Our approach was to consider security policies as constituting a particular ‘politics of emergency’. The underlying premise of WP 8 research was the need to critically reconsider the idea of exceptionalism and to simultaneously trace the emergence of a new governmental scenario in which the ‘politics of emergency’ – in other words the relentless production of insecurity and disorder that differs substantively from the politico-juridical notion of exception – plays a crucial role. The third research theme explored the relationship between the pervasive dimension that security assumes once it is translated into a practice of government and the institutional framework of democracy at the global political scale. The growing governmental dimension of security politics and its various declinations required a more rigorous theoretical reflection and a particular focus on the transformation of power in the global political sphere. In order to understand

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its essential characteristics, governmental power was defined by WP 8 research in terms of the invention and assembly of a whole array of policies that connect the calculations and strategies developed in political centres to the thousands of spatially scattered points in the global political sphere such as NGOs and other private and public actors that are not included in the nation-state architecture. In this new political framework, governmentality operates by opening lines of force across a territory which spans space and time. Its activities are aimed at translating singular standards, individual judgements and conducts into normative prescriptions. Governing no longer means to negotiate a contractual mediation between the different interests of groups, corporations or classes, but to act in accordance with independent, international and local, public and private agencies which promote global and individualized expertise, both of which are regarded as essential for the realization of a democratic regime in those countries marked by conflicts. The Constitutive Role of War In its analysis of the current transformations in security politics, the WP 8 research commenced by addressing the following question: why and for what social, political and theoretical reasons has war, and its relation with the concepts and practices of security, been deleted from social sciences and economic and political theory? At a wider level, and following the approach suggested by Foucault, the WP 8 team provided a genealogy of the absence of war within the self-construction of Western thought, and also defined the theoretical framework within which war – no matter the form it has taken since 11 September 2001 – has deeply modified the epistemological borders between social sciences and economic and political theory. In general terms, war can be defined as a social fact and therefore its changes tend to be reflected in the structure of society and the essence of social life. This assumption brings to the fore the interaction between two dimensions usually deemed opposites: ‘society’, meaning the whole series of relationships gathering human beings together, and ‘war’, the extreme situation where they oppose and kill one another. The argument over the continuity of war and peace, as well as order and disorder, unsettles the long tradition in social sciences of developing a theory capable of explaining how to ensure the assertion of order as stability for security and social peace, and thus the smooth functioning of the political organization of society. The epistemological, theoretical and political continuum between war and peace, abnormality and normality, norm and exception is the object of war considered as a ‘social system of thought’. In this perspective, war and warfare can no longer be considered as an anomaly, an ‘exception’, the detour from humanity’s straight and narrow path or the outcome of an anti-progressive irrationality. On the contrary, war must be considered as the implicit and hidden norms in international

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and national relations. This formulation points to a conceptual pattern that does not need to be organic, explicit or represented by traditional disciplines like philosophy. Nonetheless, it is capable of orienting the theoretical and practical ways of thinking during a certain era. Global Warfare after 11 September Foucault insisted on the necessity of overturning Clausewitz’s principle that ‘war is the continuation of politics by other means’, as it was, up to a certain point, for Carl Schmitt. According to Foucault, politics was the parody of a fundamental civil war between social classes, essentially between the ruling class and a constitutionally unruly social body. This position misinterpreted Clausewitz’s idea of politics as foreign policy – in other words the relationship between sovereign states – but it was nonetheless a felicitous and productive misinterpretation. Indeed, since 11 September, more than ever before, it is impossible to assume a clear distinction between national and foreign policy. And this is not because of a loss of strength on the part of nation states through the yielding of a degree of sovereignty to a global policy making body. Rather, it is exactly the opposite: nation states have been reorganized into more or less variable constellations or coalitions that intervene on the world scene for the purpose of supremacy (see Dal Lago 2006). Foucault brought to the forefront many areas of thought such as the idea of insanity in the classical age, the jailor and modern discipline, and the ‘will for knowledge’ in contemporary sex culture. Above all, he located the essence of the modern military mindset in the ‘racism of the state’, an extremely stimulating idea. However, he considered war to still be limited to nation states and to each society, and it had yet to be extended to transnational and trans-state dimensions, which today fall under the conceptual banner of globalization. The WP 8 research focused precisely on the transnational and trans-state dimensions wherein world politics become the continuation of global warfare by other means. Essentially, the existence of a dimension of continuum can be established between war and world politics. The research included analysis of military mechanisms and systems and their relationship to politics and the global economy. In this case, war seems to be the other face of world politics, a system of options without alternatives, but complementary to the workings of peaceful governments. Given that some of these wars have not been declared, but have not been considered as such either, it would imply that today the state of war is permanent and continuous.

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Questioning Exceptionalism The terrorist attacks of 11 September revealed that a great transformation in warfare had occurred in the post-Cold War era. The majority of current wars are a long way from ideas of typical forms of twentieth century warfare. War is not only restricted to the shadow of terrorism casting over our lives. It has given rise to a state of emergency which, far from establishing a state of exception, has firmly reoriented our habits, in other words how we run our daily lives. Some of these changes are obvious to all and can be considered a form of greater security: the tightening of border and airport controls, the strengthening and ubiquity of intelligence, the general suspicion directed against foreigners, especially North Africans, Middle Easterners, ‘Arabs’ and ‘Muslims’, the creation of prison camps for interns deprived of any status and hence of any security (Guantanamo, prison camps in Iraq and Afghanistan and so on). Since 1999, when the war against Serbia was conducted without the approval of the UN, the principle of Western military interference in all corners of the world has been fully asserted. The justification or legitimization of this global policing plays on the threat of terrorism and those who are presumed to support it (first and foremost, the so-called rogue states), but is chiefly self-referential. Assuming that the West practises law at national and international levels (a perfect legal situation), and has the means to apply this law, would lead to think that there are the foundations for a global military force legitimized by circumstances. Moreover, these circumstances are long-lasting as any expected opposition to the exercise of law will be deemed a form of terrorism. Moreover, the underlying significance of Bush’s use of the enduring freedom slogan is that the fight against terrorism could last for generations. The war against terrorism is therefore not founded on any conventional legitimacy, but rather on power and on the capacity to intervene, which naturally may be justified by a recall to the cultural superiority (economic, social and even military) of ‘Western civilization’. Basically, the power of intervention, or war, assumes a constituent role and is hence able to reshape world power relations. WP 8 research has critically reconsidered the philosophical notion of ‘exception’, suggesting a more contradictory dimension of blurred security policies that involve different actors and goals. It also examined the processes by which these policies are currently being legitimized socially, politically, and ‘morally’. Thus, the analysis focused on the production of a relentless ‘state of emergency’ – or rather of a dis-order – which has come about through the interactions between different security technologies and actors, whose interests are often in conflict and competition.

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Asymmetric Warfare Since 11 September 2001, but also before (as in the case of the armed conflicts that led to the dissolution of the former Yugoslavia), war has radically changed in meaning. Social sciences are faced with a new asymmetric warfare, characterized by a number of illegal war practices that are not defined in international law or in the traditional laws of war. This is the result of an imbalance of power at an international level, whereby groups with little significant power resort to illegal and ferocious warfare as a response to the actions or policies of a group or state with greater power. Asymmetric warfare is not synonymous with terrorism. Rather, terrorism is sometimes used as a tactic or strategy by the weaker side in an asymmetric conflict. However, states, academics, counter-terrorism experts, and non-governmental organizations usually use this term to assert that the political violence of an enemy is immoral, wanton and inexcusable. But it is also used to define subjects who do not belong to any recognized armed forces or who do not adhere to their rules, and who are therefore regarded as ‘rogue actors’. The tactical basis of asymmetric warfare is dependent on at least two positions: if the inferior power is in a position of self-defence, that is under attack or occupation, it may be possible to use unconventional tactics, such as hit-and-run and selective battles where the superior power is weaker, as an effective means of harassment without violating the laws of war. If the inferior power is in an aggressive position, and/or turns to tactics prohibited by the laws of war (jus in bello), its success instead depends on the superior power refraining from similar tactics. Article 44, sections 3 and 4 of the 1977 First Additional Protocol to the Geneva Conventions relating to the protection of victims of international armed conflicts, recognizes combatants who, due to the nature of asymmetric warfare, do not wear uniforms but who openly wield their weapons during military operations. This gave nonuniformed combatants lawful combatant status against countries that had ratified this convention. However, the same protocol states in Article 37 (1) (c) that ‘the feigning of civilian, non-combatant statuses is prohibited by the Geneva Conventions’. Today there are principally two types of asymmetric warfare. The first type is that of Al Qaeda’s 11 September suicide attackers, and is characterized as ‘indiscriminate’, ‘targeting civilians’ or executed ‘with disregard for human life’. The 11 September suicide bombers are considered as civilian, non-combatant belligerents as are those who perpetrate assassinations in Israel, Egypt or Iraq. The second form of asymmetric warfare has been euphemistically termed ‘extraordinary rendition’, the US extra-juridical procedure which involves the transferral of ‘illegal enemy combatants’, generally suspected terrorists or alleged supporters of groups which the US government considers to be terrorist organizations, to countries other than the US for imprisonment, interrogation and possible execution. Since the 11 September attacks, suicide bombing tactics are the most successful way of inflicting damage against an opponent and the least costly to the mujahadeen in terms of casualties. If we consider ‘martyrdom operations’, as defined by Al

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Qaeda leader Ayman al-Zawahiri, as a form of asymmetric warfare, it is also possible to argue that suicide bombing warfare does not simply coincide with the old ‘neo-partisan war’ theorized by Nikolaij Morozov in 1812 and analysed by Carl Schmitt in 1946 in his famous book The Theory of the Partisan. Unlike partisan war, suicide bombing is a form of armed violence that has neglected the difference between war and politics, soldier and civilian, peace and conflict, battlefield and safety. It is increasingly the case that suicide bombings relinquish the principal purpose of asymmetric warfare: the struggle to take power, to free a ‘people’ from the oppression and to accelerate the possibility of social revolution among the population. Nevertheless, suicide bombing is not simply and purely the action of destroying the enemy. It arises from a cost-benefit analysis and is conceived as a process of weighing the total expected costs against the total expected benefits of one or more actions in order to choose the best or most profitable option. Its strategic underlying principle may be military, political or both. The target may be military, in which case the bombing is usually classified as an act of war, or civilian, in which case it is usually considered terrorism. As a political tactic, suicide attacks intend to force the state adversary to expend manpower and money in an attempt to establish order, ideally in such a highhanded way that it merely increases disorder, until the state surrenders or withdraws. The WP 8 research analysis of asymmetric warfare allows for a definition of a new type of war that is more accurate than the simple term ‘global terrorism’. Today there is great confusion over the nature of terrorism. There are twelve international conventions that have tried to dictate norms on this subject. The terrorist is defined as a member of ‘a private’ organization as he does not identify himself with a state. It is impossible for a state to fight a war against a non-state entity such as the ‘terrorist’. On their side, ‘terrorists’ know that they will never win the war against a state. This is why asymmetric war, as it is conceived in the post-Cold War era, presupposes a never-ending conflict in which ‘terrorists’ will never have the military, political and economic means to bring down the state and the state will never arrange legal or illegal instruments to defeat the pirates of the twenty first century. By arguing that war has assumed an ever greater constituent importance, albeit one that is implicit or repressed, the WP 8 research recognized that socio-political and military planning not only perfectly blend together, but also, at worst, the latter influences the rhythm of the former. Here, the discussion is not solely limited to technology which, while perhaps being of military origin, has become part of our daily lives and has transformed into a symbol of peaceful development and even the right to communicate – the Internet being the most obvious example. The military system, seemingly silent or frozen out in peacetime and yet unfurled triumphantly in wartime, was accepted as a necessary evil until 1989, at which point political and legal conventions began to crumble to reveal one great battlefield to the world. Naturally, a vastly changed military scenario has arisen, fully prepared for the path beaten by economics and science in the last few decades. To start with, in the 1990s, the technocrat’s strategic dream was realized with the adoption

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of the Revolution in Military Affairs (RMA). In order to understand the meaning of this, it is important to remember that Western military history is often marked by turning points known as ‘revolutions’. Considering only the modern age, these include the spread of firearms (in the sixteenth and seventeenth centuries), the introduction of the conscript army (between the eighteenth and nineteenth centuries), the adoption of armoured divisions and strategic aviation (the first half of the twentieth century). RMA would highlight another turning point, the most radical of all, whereby the military forces were not only able to use the world as their field of application, but also to realize, at least theoretically, the gradual reduction, if not elimination, of the element of the human combatant. The strategic nucleus of RMA is fundamentally based upon the application of new information technology (computers, communications, and robotics) in military sectors where the human element has been of major relevance: data collection about the terrain and combat. Soldiers would be progressively replaced by automated data systems (infowar) and the major employment of aerial warfare to neutralize enemy forces. From a certain point of view, the 1991 Gulf War represents the transition from twentieth century warfare to the RMA. Although the communications networks and air defences (as well as the Iraqi land defences) were completely neutralized by the allies, the ground forces (armoured divisions and troops) were commanded to ‘finish the job’ and to ‘clean up’ Kuwait of Saddam Hussein’s troops. In any case, the incredible inequality in calculated losses (fewer than 300 for the allies and tens of thousands for the Iraqis) gave rise to the illusion that the incomparable superiority of Western aviation, missile systems and information technology would put ground warfare on the sidelines. This form of warfare, based on the integration of armoured divisions and aviation strategy (flying gun-ships and combat helicopters), would have become a formality. Immediately after the Gulf War the ideology of war with ‘zero losses’ (at least among Western troops) emerged, alongside the propaganda of intelligent missiles that caused few victims (‘collateral damage’) among the civilian population, in other words war with ‘zero human cost’. The height of RMA (a mix of utopia and propaganda) came during the 1999 Kosovo war, where for the first time ever in the history of NATO attacks there was no loss of personnel and only a few hundred civilian casualties (although in reality the figure reached a few thousand) among the Yugoslav Serbs. At the same time, the concept of ‘asymmetric’ warfare came into being. Among the most visionary theorists in America, there began to circulate the idea of the enemy to abandon conventional or traditional warfare in response to Western invincibility (as in the case of the people’s war theorized and practised by the Vietnamese General Giap from the 1950s to the 1970s), and because of the high cost in terms of human lives. The asymmetric response would consist in networked warfare (netwar), where small terrorist cells, independent and without a central command, search to strike nerve centres of the West or the US, by following the well-known rule of swarming; in other words, moving separately to hit together. Undoubtedly, the American strategists had Al Qaeda in their sights from the outset, having been directly or indirectly involved in its creation and therefore

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well acquainted with it. The basic principle is to fight terrorist warfare with counter-guerrilla warfare based on the same strategic tactics. The first response to 11 September, which had been widely predicted by US analysts even though they were unable to pinpoint the attack, was the 2002 Afghanistan war, where RMA seemed to be applied to the fullest: the strategic bombardment of Taliban and Al Qaeda sanctuaries, the delegation of the Northern Alliance to carry out the dirty work (destroying the Taliban on open terrain), the use of tiny swarming units of counter-guerrilla warfare (CIA and British agents, the Rangers, Delta Force, British experts and so on) against Al Qaeda in the mountains at the border between Afghanistan and Pakistan. The US and UK decision to invade Iraq with a relatively ‘light’ force in March 2003 was not only due to the hurried and mistaken military evaluations (nobody was able to foresee Iraq’s decision to hold back its troops from direct combat in light of the known outcome and to wait to fight after the ‘victory’), but also to the overenthusiastic belief in the new way of fighting war. Convinced that the 1991 victory and successive embargo would have wiped out any possible resistance, plus the customary and devastating air attack, the US and UK set out on a task, which revealed to be ultimately more difficult. It is therefore necessary to measure the gap between theoretical strategy and practical application, a divergence that also depends on the clashes between both the civilian advisors (central to the US decision making system) and the military hierarchy, and between the opposing strategic schools, as in the case of the latter. As a tendency, the military hierarchy is much more cautious in espousing futuristic tactical stratagems and more tied to a traditional military culture. There are revealing signs in two recent conflicts: first, the removal of General Wesley Clark, who strongly upheld the need for a ground operation in Kosovo during the aerial war in Kosovo; second, between the American Chiefs of Staff and the Secretary of Defence Donald Rumsfeld. The military believed reasonably that the invasion of Iraq had been prepared in a rush and that the nearly three hundred thousand who took part in it (a third of whom were the combat forces) would not be sufficient to maintain order after the capture of Baghdad. All this shows that RMA is only a theoretical horizon, and quite a controversial one at that, from which we must not draw any conclusions regarding the long term evolution of modern warfare. Governmentality and Democracy in the Global Political Space WP 8 research has also analysed the pervasive dimension that security assumes once it is translated into government practice upon a territory and a population. The governmental dimension of security politics in its various declinations has thus required a more rigorous theoretical reflection, and has involved focusing in particular on Michel Foucault’s last work, namely the lectures at the Collège de France from Securitè territorie population to Naissance de la biopolitique and Le gouvernement de soi et des autres. Indeed, Foucault’s analysis provides a very

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useful theoretical toolbox for detecting the changes in both power’s technologies and strategies of resistance, as well as for drawing a specific and problematic ‘genealogy of democracy’ as outlined in the last of Foucault’s lectures. While taking into account the growing overlap between internal and external national orders as the main trait of contemporary global politics (deeply marked, as it is, by the war on terror and the primacy of security issues), WP 8 research focused in particular on the development of a complex network of actors (public and private, official and unofficial, national and international) who directly manage security policies. At stake, arguably, there is the broader process of redefining sovereignty, which articulates itself through a heterogeneous series of governmental practices, and whose effects become visible in the progressive erosion of national public spheres and forms of political agency. Speaking of security today means being able to measure oneself against the gradual turnover the term has undergone in the last four decades, shifting from an inward-looking declension, formed to give assurances and a material sense to the word ‘inclusion’, towards an outwardlooking projection, consisting in a set of law enforcement devices, and an ever growing control of exclusive borders. To better grasp the idea of border and the decisive role security plays in it, it is worth referring to Foucault, or more precisely to his 1978 course at the Collège de France on Sécurité, territoire, population, which, apart from the famous lecture on the concept of ‘governmentality’, remained unpublished for long. The governmental dimension of security politics, with all its different declinations and the gradual political investment in security which accompanies the ‘securitarian turn’, is a process whose fundamental principles can be traced back to the interlacing of a disciplinary power with an absolute science of government, and to the innovations introduced in eighteenth century France by the physiocrats. According to Foucault, it is at this point that the concept of security really enters into the world of politics. But as opposed to discipline, which works on a (pre)constituted idea of time and space (for example, a calendar, an absolute institution); security is like statistics, indicating optimum possibilities, virtual curves and probabilities. If discipline acts through constant surveillance and hidden punishment, security cannot restrain certain civil uprisings but actually tends to favour them, in order to control their consequences later. Twenty years before the works of Ulrich Beck on the society of risk, and James Rosenau’s writings on the turbulence in international relations, Foucault identified the ‘management of disorder’ as the explosive nature of breakdown introduced by the politics of security: in short, where discipline imposes an order, security allows for control of disorder. This certainly does not come about by eliminating or even reducing disorder, but by moving it and, from a distance, controlling both the chaos it causes and the management of its outcome. It is the distancing of disorder and its in situ management that brings to light the specific essence of the border, the point at which the bare lives of civilians, the victims of the ‘new wars’, are placed. This is effectively a political border, which appears somewhat more definite and determinant than the fault lines of civilization

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predicted by the self-fulfilling trash prophecy of Samuel Huntington. It is a border that current wars exacerbate under the guise of prevention. The hypothesis developed was that beyond this border there merely lay the space ‘inhabited’ by victims; subjects represented solely in abstract terms of excess and whose lives and death became irrelevant, as demonstrated by the Somali civilians tortured by the Italian ‘humanitarian’ troops, the Serbs and Kosovars accidentally struck down during the ‘sky war’ in Kosovo, the unknown number of victims in Afghanistan and Iraq undermined by an exclusive count of ‘Western’ military casualties, as well as by the internees in Abu Ghraib or Guantanamo. Such a space ultimately becomes a (non)place that hypostatises the border, and is incarnated in the various internment camps (refugee camps, temporary camps and camps for asylum seekers and illegal migrants) which crowd the modern world (see Rahola 2003). The WP 8 research also investigated the growing governmentalization of nonstate organizations in managing local and international crises linked to migration and the effects of armed conflicts on civilians. Since the fall of the Berlin Wall, NGOs have played an increasingly important role in the process defined as ‘governmentality’ by Foucault. In particular, the research investigated positions that explicitly transform actors that are not traditionally recognized as the subjects of international law into constitutional subjects in the management of international crises linked to migration and the fight against so-called ‘global terrorism’. WP 8 research highlighted the cooperation between civil and military staff in the new governmental model. The increasingly marked presence of non-institutional and NGO players on the international stage is undoubtedly an immediate and distinctive feature of the ‘global’ present. Transnational subjects aiding victims of ‘humanitarian’ disasters, participating in the reconstruction of areas devastated by conflicts or in the international cooperation often declare their rejection of the ‘inequality and injustice of the modern world’ and by doing so make a decisive move to action, transforming aporetic positions (based on often superimposed attitudes that derive from heterogeneous and generally incompatible assumptions) into an absolute form of agency. Affirming the absolute impartiality of the operations of many NGOs not only belittles the political demands of these organizations, but it seems to underestimate (and implicitly absolve) the complex superimposed structure in which these new ‘global’ players operate. WP 8 research defined this multifaceted structure as the governmental complex that produces, on the one hand, the progressive symbiosis between NGOs and the political institutions and, on the other hand, the contemporary politicization of the ‘humanitarian’ armed forces. Nowadays, it is noticeable how many NGOs mimic politicians (demonstrated by the ways in which they behave like institutional players and how their members speak like official spokespeople, and is also compounded by the fact that they are often managed and directed by former politicians and diplomats). A paradigmatic example of this real empowerment is Bernard Kouchner, former president of Medecins sans Frontiérès and the director of the UN mission to Kosovo. According to Dillon and Reid,

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‘nowadays many humanitarian organizations and NGOs have been recruited into the structures and centres of power that they were originally set up to counter and are now part of an essentially political project’. There is also an evident parallel process of the ‘humanitarianization’ of the armed services. The myth of the good soldier has been replaced by the do-good soldier. All recruiting campaigns for national forces employ advertisements that show soldiers rescuing victims, handing out clothing and aid, holding children. The issue of ethicality is turned into colourless formulae (peace-keeping, peaceenforcing, intervention forces and international mediation) or abstruse logos such as ‘peace support operations’ (PSO) or ‘operations other than war’ (OOTW) which conceal the continual use of armies for the ‘humanitarian’ management of civilian populations. This has escalated from the ‘blue helmets’ of the UN to the NATO troops, to the American, British, Italian and Polish contingents stationed in Iraq. We can draw on the case of the Kosovo war (where the humanitarian emergency of the flight of over eight thousand refugees into enormous camps in Macedonia and Albania was passed from the UN to NATO), but the following wars, even though regarded simply as military occupations, by far exceed this specific situation. Their consequences seem far more complex than those anticipated by the international rules on the interaction between the armed forces and civilians, which refer essentially to the role and restrictions of military power. Instead, security policies confer on them an undefined, ambivalent and therefore almost unlimited range of action. The ‘perverse’ effects of this symbiosis tend to be somewhat paradoxical: there is a frequent use of private security companies, which are subcontracted to the specific ‘humanitarian’ tasks, exemplified by the case of an NGO in Sierra Leone which recruited local militia to distribute aid in refugee camps. Moreover, this close relationship collapses beneath the utter uncertainty of international networks where any distinction between the armed forces and civilians and between political and humanitarian operations becomes impossible. Thus public and private security firms sell arms and ‘security means’ in order to demilitarize political crises, while financial analysts and consultants of cooperative organizations are specialized in security and warfare techniques. The list could be longer, and would inevitably lead us back to present-day Iraq, where bodyguards, soldiers and humanitarian operators work side by side, often carrying out the same tasks and duties. The privatization of aid operations, the collusion between military and humanitarian organizations as well as direct control and coercive territorialization all appear to be the dystopic materialization of the ‘globalist’ dream of a super partes, supranational subject, either institutional or subscribed in an indefinite global civil society, which today seems more realistically to be a carte-blanche proxy given to NGOs and private groups by the UN and UNHCR. In this perspective, humanitarianism betrays a die-hard, and to a certain extent ‘structural’, implication in the political situations where it intervenes, demonstrating a ‘redemptive’ presence, rarely opposing and nearly always linear to the moral legitimization of the quite often illegitimate armed intervention.

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Chapter 13

Exceptionalism and its Impact on the Euro-Mediterranean Area Cristina Fernández, Alejandra Manavella, Iñaki Rivera and Gabriela Rodríguez

Introduction Between the last years of the twentieth century and the beginning of the twenty first, the crisis of welfare culture has produced deep transformations on different spheres of public policies. Especially after the attacks of 11 September 2001 the sensation of constant fear and social insecurity has increased and several measures guided by the security obsession have been deployed in a great part of Western countries. The state of ‘global war’ – which before 2001 was not such explicitly recognized (Dal Lago 2005a) – the ‘preventive’ attacks, the militarization of the penal system, the practice of torture and its transterritorialization, the fight against ‘illegal’ migrants1 and, in brief, the spread of fear and emergencies feed back demands for harder severity. Western Europe and the Euro-Mediterranean countries have been the receivers of such policies. The mentioned global war led to the ‘need’ of securing the threatened cities, to control everything that happens there and the people who stay, enter or exit. So, public spaces (from the city to specific places of transit like airports or border posts), but also individuals, are the centre of the proliferating mechanisms and strategies of control. The conception of politics as a friend/enemy relation, characterized by perverse Schmittian connotations, is coming back along with the referred policies. Several regulations regarding terrorism, migration and even everyday life controls are creating a regime of exceptionality that supposes the restriction of a great part of elementary rights and procedural guarantees. In order to show the impact of exceptionalism upon the balance between liberty and security in the Euro-Mediterranean area, this chapter summarizes the 1 With several NGOs, professionals, and undocumented migrants themselves we consider that, both from a juridical and an ethical point of view, no human being can be considered illegal. In this sense, Balzacq and Carrera (2006) also criticize the use of expressions such ‘illegal immigration’, the ‘fight against’ and ‘combat’ when the EU deals with this phenomenon and its negative implications for the person concerned because it links them with suspicion and criminality.

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five years (2005–09) of socio-legal research carried out by the Observatory of Penal System and Human Rights (OSPDH) of the University of Barcelona in the framework of the CHALLENGE project. It begins with an analysis of three policy fields where exceptional measures are implemented (immigration, citizen’s safety and terrorism). Then, it tackles the consequences of these policies from a rightsbased approach, paying special attention to the human rights situation of people who has experienced the consequences of ‘control measures’ carried out by the EU, regardless of whether they are European citizens or not. As we will see below, practices of institutional violence are a transversal aspect of exceptional/emergency policies (Rivera 2009); today this violence is justified on the existence of threats and public fears that governments have to face. The main theoretical and epistemological postulates which oriented our research were given by the sociology of penal control that analyses the effective operation of criminal justice system of capitalist advanced societies; and the postulates of social constructivism which considers the ‘social construction of reality’ instead of taking it as something natural. Under these approaches, the ‘penal system’ acquires a sociological meaning and it is not only the static field of rules, but also the dynamic field of functions (as criminalization processes) which is affected by the different activities of institutional agencies: from legislator to the agencies of penal control (police, jurisdiction and prison) and the informal mechanisms of social reaction. These postulates allow us to critically analyse the regulations of the mentioned fields and to explain how some groups of people, as migrants, are privileged subjects of control. From our paradigm it is necessary to study the law and the actors that interact in the social, political and economical processes taking part in the creation of the rules and in their implementation.2 This meta-regulatory perspective implies that the study of law is complemented with the study of social reality. In order to do that, we preferentially use a qualitative methodology, but taking into account quantitative techniques too, as statistical sources. In order to devise a theoretical framework to confront theories, discourses and practices, we combine the employment of extensive documentary material (bibliographical, newspapers and statistical data) with a notable field research (semi-structured interviews, surveys and the interpretive reading of informational newspapers clips). In this frame we aim to contribute to the culture of human rights, much threatened nowadays by processes and policies of exclusion and discrimination, and also by the construction of social concern regarding the raise of criminality, violence and insecurity suffered by modern societies. 2 In the study of the mentioned fields we have examined the laws, the political and sociological framework of the legal measures and how they have been implemented. In order to investigate the effects of these measures, we have underlined their adaptation to the principles of the rule of law, to human rights and the legitimacy of new forms of institutional authority. Also, we have emphasized whenever their implementation affects any particular group of people.

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European Migration Policies and the Construction of New Threats and Fears The migratory phenomenon is one of the most controversial policy fields that the EU and its member states have to face. Over the last ten years a number of regulations and political measures have been enacted at the EU level; these policies regulate migrations according to the needs of the EU labour market while aiming to control, prevent and sanction illegal immigration (Fernández and Manavella 2009). Immigration today is managed with coercive instruments instead of social integration policies. As we will see below, on the one hand it should be taken into account the highlighted symbolism of this policy field, and on the other hand the violations of human rights and citizens’ liberties that could result from the implementation of some of these measures. Immigration controls have turned into the way to calm citizens’ demands of safety, to solve different social problems and, of course, to obtain political benefits. It is common that in most countries, society demands from governments the adoption of harsh policies against migrants. Western states, involved in the crisis of sovereignty, affirm their power in the national and in the international sphere3 through the control and repressive management of migratory flows. Insecurity and terrorism have turned into an obsession, immigration is exaggeratedly depicted as a threat to sovereignty, identity and national security and migrant people are criminalized (Palidda 1999; Bietlot 2003). In this scenario, the media play a primary role in the construction of social concerns (Barata Villar 2002), particularly in the case of migration (Cabezas and Velilla 2005; Ortuño 2005). The coverage given by the media contributes to expand and reinforce the main negative stereotypes attributed to migrants. Furthermore, mass media, using their impact over reality, have contributed to the perception of immigration as a social problem. And most frequently, it is precisely this perception which produces a vicious circle that allows the formulation of policies and the adoption of norms to tackle it as a problem, contributing to the perception and perpetuation of migrants as such. Thus, in Southern European countries the media and political discourses tend to associate immigration with delinquency and insecurity, overload of school systems, culture clashes, unemployment or collapse of social security systems (Fernández et al. 2006). One of the ways in which governments have approached poverty, exclusion, marginality and other social problems has been their criminalization through the application of penal answers (Wacquant 2003; Lea 2006a) and immigration has 3 In the frame of a combined ‘state-nation’ and ‘economical-financial’ crisis, these kind of actions have a double face: at the internal level, the governments show their power by ‘doing something’ with the so called ‘illegal’ migrants, who are presented as a threat to national workers; and at the international level, Euro-Mediterranean countries have to reinforce their southern borders in order to be gendarmes of the ‘barbarian border’. See Fernandez (2008).

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not been an exception to this rule. Migrants are associated to multiple security issues not only by the institutional techniques (migratory laws, police controls and so on), but, above all, by the construction of a prejudged image of migrants as a risk category (Brandariz and Fernández 2009). The wide use of the static penal system to manage directly or underhanded the migratory phenomenon has turned it into a criminal matter (Monclús 2005). According to the high rate of police detentions and trials suffered by migrants, and especially their overrepresentation in prison,4 they are also preferential subjects of the dynamic penal system. The discriminations experienced by them could be found in the discretionary use of the criminal law in their trials, their ignorance of the due process of law and the scorn of tortures or ill-treatments that some of them could suffer in case of deportation to their country of origin (Petti 2009). Criminal law and immigration regulations are dangerously confused, causing terrible consequences for some people. For instance, Spanish criminal law, especially the norms relating to clandestine immigration and the expulsion of foreigners who have no regular abode or are involved in a criminal process,5 plays an important role in the management and control of migration flows (Monclús 2008). The configuration of these legal provisions, their implementation, and the way they are used within debates on crime policies indicate that Spanish criminal law is being used – in the framework of the so called ‘criminal law for enemies’ (Cancio 2003) – as an instrument to underline a policy of social exclusion to certain migrants (Fernández and Ortuño 2006). Regarding Spanish immigration laws, while they have officially intended to guarantee the rights and liberties of the migrants and to provide their social integration, as their titles always assure, they have served the opposite purpose in practice: legal and social construction of the ‘irregular migrant’ to whom the recognition of rights is notably shrinked (Silveira 2003 and 2009) and who is forced to live in social marginalization and turned into a non-person (Dal Lago 2004). Immigration laws have a collateral effect: the construction of a dual society where a significant portion of the population is excluded from their rights: problems to access healthcare, education and so on. And, not less important, the possibility of being detained, interned and finally expelled from the country. The analysis of Spain’s immigration policies and its legislative evolution (1983–2005) (Fernández and Ortuño 2005) has showed how legislative treatment of foreigners (as immigrants are traditionally called in Spain) has been addressed towards a punitive direction, and how this orientation has spread a negative image of migrants among public opinion. The legal and socio-political analysis, together with the fieldwork done with several groups of migrants and lawyers, lead us 4 In 2008 foreigners accounted for 35.6% of the incarcerated population of Spain (Spanish Ministry of Home Affairs). 5 See Articles 89 and 108 of the Spanish Penal Code (Organic Law 10/1995) and article 57.7 of the Spanish Foreigners Law (Organic Law 4/2000).

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to affirm that the irregular condition of migrants marks them with a stigma that favours their criminalization (Brandariz and Fernández 2009). And this is very aggravated when they belong to a different culture and religion, as the case of Muslim immigrants in Spain (Ortuño 2006) and France, or the gipsy people in Italy (Colotti 2008). Nevertheless, the line which divides legal from irregular migrants is slender and flexible, since residence permits are temporary: ‘legal and illegal statuses are more accurately moments in time than characteristics of distinct populations, and their numbers can shift dramatically with changes in government policy’ (Calavita 2005). But the condition of regularity and irregularity is often taken by the politicians and some groups of the society as a fix status that characterizes different groups of people. This legal treatment could be defined as exceptional rules, which are difficult to reconcile with the principle of the rule of law. This kind of measures are enforced, not only in Spain, but also in other Euro-Mediterranean countries such as France, Greece and Italy,6 where different ethnic groups are being stigmatized, chased and criminalized. In Greece, migrants from Eastern Europe have turned into one of the main targets of the administration; in Italy, the recent events involving gipsy groups have been used to justify the adoption of legislative measures which criminalize irregular immigration.7 Another important aspect to take into account regarding the implementation of European migration policies concerns border management and the so-called ‘fight against illegal migrants’. The analysis of current international human rights standards, together with the remarks made by different policy actors, scholars and civil society clearly reveal that policies implemented to control migration at the southern Mediterranean and Atlantic sea borders are very far from fulfilling properly the obligations contracted by the states party to the different human rights treaties, or even by EU and national law (Ceriani et al. 2007). For example, the practices of interception and returning of migrants in their little boats, called cayucos, carried out by Frontex in front of the Sub-Saharan Africa’s coast (see Carrera 2007a), the proceedings carried out in each case, certain expulsions and devolutions from the Iberian peninsula to origin or transit countries, or the repression of the ‘illegal emigration’ of these people directly in the departure countries, are some of the ways in which many fundamental rights

6 Refer to Chapter 12 of this Collective Volume. 7 Legislative proposal called ‘Pacchetto Sicurezza’ (DdL 733), according to which: immigrants who go to hospital can be reported to the police if they do not have a residence permit; migrants without a residence permit cannot legally recognize their children; migrants must hold a residence permit for two years before they can marry; migrants must present a residence permit to send money home. It also increases the detention of migrants up to 18 months, introduces a 200 euros fee to have a residence permit issued or renewed and makes illegal entry a crime. See Merlino (2009).

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might be violated at the Euro-Mediterranean and Atlantic borders (see Fernández and Manavella 2009). The combination of exceptional laws, the empowering of police operations, the coverage given by the media, and the sociological profiles created to facilitate preventive measures have contributed to the stigmatization of migrants (especially Muslims) as a social problem and a threat to security. As we have deeply analysed in other works (Fernández et al. 2008), usually the securitarian obsession reproduces the insecurity it intends to fight. And there are certain groups of people, regarded as dangerous for our safety and considered as ‘enemies’ for any reason, who might easily suffer a lack of guarantees and be victims of several discriminations. The management of fear permits the social legitimization to accept that, in the frame of war against insecurity, terrorism and violence, any kind of intervention is justified (Bigo et al. 2007a). All these elements also make migrants a suitable target of racist and xenophobic assaults, as it happens at present in the Euro-Mediterranean countries (several cases could be reported in Spain, France, Italy or Greece).8 So, in the end, most of the people stigmatized as ‘our’ enemies, who suffer the symbolic measures laid down by ‘exceptional’ laws to calm down the longing of security, became also the very victims (Fernández et al. 2006; 2008). Insecurity, Urban Disturbances and Punitive Measures against Incivilities For some time now, there has been a permanent and broad concern about the sharp increase in the lack of safety in Europe, especially in all major cities. The feeling of a lack of safety and the fear of being victims of crime, together with the proliferation of zero tolerance policies, that restrict urban rights and liberties, are shaping the cities into places where controls are strongly enforced. Modern criminological thought has had great influence in orientating criminal policies, depending on the relationship between the concept of crime control and state ideologies (Fernández and Bergalli 2006). In recent times, urban disorders in Western societies are being tackled by further developing criminal policies. The confusing relationship between crime, anti-social behaviour and social struggle (Bonelli 2006; Rivera 2006) concerns the manipulation of fear of crime and perceptions of insecurity introduced by particular criminological knowledge (like zero tolerance or policies on petty crimes). These orientations have given a substantial support to produce concrete strategies to control and disperse the ‘inconvenient presences’ (beggars, youngsters, migrants or ethnic minorities) (Delgado 2006, 146) which, according to statistics and police profiles, can generate social disturbances. The objective is no more to fight crime, but rather to manage it in a rational way according to statistical and actuarial judgements. It leads to the

8 For the case of Spain, see SOS Racismo annual reports, availabe at .

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emergence of a different criminological knowledge: the criminology of everyday life (Garland 2001). It asserts that adopting a preventive lifestyle and investing in preventive technologies helps to reduce the risk of being victim of a crime. These strategies are changing the idea of control in the twenty first century cities. As to the controlled subjects, the mutation has generated the displacement from the category of penal or administrative offender towards that of dangerous one, and from there to the creation of two groups of controlled people: the nondangerous individuals, whose life as consumers is disciplined, and the masses of risks generators, whose existence is regulated (Rodríguez 2008). This dual control, which Foucault (2008) had designated as ‘biopolitical’, is acquiring a natural status in the cities. The selection of the economic, biological9 and social characteristics of those who integrate these masses has led to the creation of risk’s profiles, which also serve to control the level of integration of consumers. These profiles are nowadays used to develop the public and private activities of control (Rodríguez 2009). We are going to describe these processes through the example of a recent regulation implemented in the city of Barcelona, a place where the right to security has become a fundamental urban right that authorities and city-dwellers defend to the hilt. The citizens’ tolerance threshold is lowering and this leads to the criminalization of several social groups10 and to increasing demands for harder punishment. But what is more worrying is that this intolerance is being promoted by local authorities and the media. This is confirmed with regard to the case of Barcelona (Acosta et al. 2007). The reaction of Barcelona’s city council to the fear of crime, anti-social behaviour, social struggle and the resulting intolerance was to produce a legal instrument to deal with incivilities and promote peaceful coexistence in the city. This instrument is the regulation of ‘measures to encourage and ensure coexistence among city-dwellers in public spaces in Barcelona’, the so called ‘good citizen’s charter’,11 which came into effect on 5 January 2006. The ‘good citizen’s charter’ of Barcelona is an extensive regulation (102 articles and 8 final dispositions) which tries to control all individual and collective 9 Regarding biological profiling, the creation of DNA databases and its commercial and criminal uses, see the dossier published on Le Monde Diplomatique (Spanish edition) of June 2008, with particular references to the French situation. Stefano Rodotà (2003; 2009) has alerted about the criminal derivations of the store of genetics data, and about the possibilities opened by the interaction between technology and genetics in the global-local surveillance. 10 Irregular immigrants, youngsters, homeless, sex workers, street alcohol drinkers, bagatelle street traders, beggars and panhandlers are those actors in the public space who would become potential ‘candidates’ to Barcelona’s bylaw. All these people are considered as central elements of urban disturbances. 11 In Spanish: Ordenanza del Civismo, as it is known by mass media.

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behaviours susceptible of being sanctioned as misconducts or incivilities which could disturb the coexistence within the public space. It deals with some particular social phenomena related to social marginality and to the political, cultural and associated common life of Barcelona’s citizenship.12 This bylaw approaches a wide range of situations from an interventionist and repressive perspective, as from one side it snatches the social space and from the other it forgets the importance of social policies in this field. Regarding the adequacy of this regulation in relation to the rule of law, from the point of view of its strict legality (Ferrajoli 1989, 370–73), a great part of the bylaw does not fit with the norms that regulate the Council’s legal competences (7/1985 Law and 22/1988 Law); this is the case of the articles which ban begging (Article 35), offering and demanding sexual services (Article 39); the obstructive conducts to the control, investigation and sanction by the police in the context of civism and share living (Article 79); the accountability of under-age youngsters for the conducts committed against the municipal bylaw (Article 84); the detention of anybody by police officers in order to be identified (Article 99. 4);13 the confiscation of goods (Article 101) and so on.14 The municipal bylaw manages social exclusion and political dissident behaviours in a punitive way without taking into account the social, economic or political causes of the problems. Moreover, with this regulation authorities clearly bet for a police model to solve city conflicts instead of increasing social aid. But this is not a particularity of Barcelona’s authorities, as we are witnessing the spread of this phenomenon in many other European cities which are to be held responsible for the introduction of practices of exceptionalism as a way to react against incivilities regarded as ‘emergencies’ (Fernández and Bergalli 2006). We have analysed the consequences of the implementation of the bylaw one year after its entrance into force at three levels: the media discourse, the neighbour’s speeches15 and the official discourse of the city Council. A contradiction between the last two has to be underlined. 12 The bylaw regulates the contradiction between the official image of Barcelona supported by the left-wing elites, who want to be in the vanguard of the artistic creation but does not accept the graffiti; who are proud of the protest songs of Manu Chao but does not tolerate street musicians; who want the city to be a European nocturnal capital but do not accept noises at night in its streets and so on. 13 The consequences of these ‘identification policies’ are at the origin of disturbances like the ones which happened in France in 2005, as Bonelli (2006, 174) and Lea (2006b, 183) have explained. 14 For an extensive analysis of the regulation and the problems it poses in light of procedural guarantees and human rights, see Fernández and Bergalli (2006) and Silveira (2006). 15 Between June and August 2007, 301 short interviews have been conducted. They were equally distributed across Barcelona’s 10 districts and the significantly distinct neighbourhoods within each district. Individuals were randomly selected by the interviewers (3), trying to achieve an age and sex balance. The interviews were taped – with the previous

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According to the ‘First annual report on the implementation of the Good Citizens’ Charter’ published by the Council of Barcelona on 19 January 2007, the authorities have imposed 53,851 fines throughout its first year: one third of them were for hawking, followed by fines for sticking bills and graffiti and for drinking alcohol on the street.16 The ‘good citizen’s charter’ of Barcelona punishes a great range of behaviours, even though a great deal of them have not been mentioned as actual grievances by our interviewees. Instead, the bylaw punishes those behaviours which are most likely to be covered by newspapers; such as street trading, prostitution and wayward teenagers (like those who consume alcohol in the streets), as well as graffiti or posting bills. Most of these offences were already sanctioned by previous regulations, but the new one has now specified the types of behaviour that are punishable and has also increased fines (Acosta et al. 2007). The report on the implementation of the ‘good citizen’s charter of Barcelona’ shows a regulation enforced in a specific place (the city of Barcelona), with specified actors (Barcelona’s citizens), with specific problems and under close administration (the city council). In the case of national or international policies, it would be very difficult to establish the cause-effect relationship between certain political discourses and the real grievances of society, and how these discourses penetrate into citizens’ very definition of what worries them to such an extent that it actually legitimizes the enforcement of some measures adopted by the state, which in the case of the ‘good citizens’ charter’ entails the violation of rights and liberties of citizens in general. The Barcelona’s case could highlight and give us a better understanding of power dynamics that are related with events that take place on a global scale. We are referring to the obsession with security propagated by certain sectors of society, at local and global levels, that legitimizes the implementation of certain exceptional measures which permit daily infringement of values such as freedom, human rights and the guarantee of a fair trial.

consent of the interviewees – and fully transcribed for subsequent analysis according to descriptive criteria. 16 Most fines were imposed on unlicensed street traders (17,334 fines, 32.19% of the total); for posters and graffiti (10,340 fines, 19.20%); for drinking alcohol on the street (8,369 fines, 15.54%), for gambling (4,334 fines, 8.5%); for using the street as a toilet (4,302 fines, 7.99%); for offering or demanding sexual services (4,280 fines, 7.95%), and for improper use of public space (2,676 fines, 4.97%). Other fines were imposed on people begging for money (838 fines, 1.56%), people offering unauthorized services on the streets (such as fortune telling, tarot reading, massages or tattooing in public spaces) (828 fines, 1.54%); playing games in public areas (169 fines, 0.31%); refusing or impeding state inspections (165 fines, 0.31%); vandalism (111 fines, 0.21%) and offences against the rights of individuals (87 fines, 0.16%).

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Antiterrorist Exceptionalism: Evolution, Practices and Effects In order to examine exceptionalism and its impact it is essential to investigate about antiterrorist measures. The analysis of the Spanish antiterrorist policies, laws and practices of the penal agencies shows a particular case in Europe characterized by the confluence of legal regulations and practices on domestic and international terrorism. A similar situation can be found in Italy (Petti 2009). The terrorist attacks in Madrid on 11 March 2004 did not demand the production of new exceptional laws, since a whole exceptionalist framework had already been designed and well developed to counter the activities of armed groups, and particularly those of the Basque, pro-independence Euskadi Ta Askatasuna (ETA). In this context, as we will see, the so-called ‘culture of emergency’ (Bergalli 1988) was adopted many years before the 11 September events (Ortuño 2006; Forero et al. 2007 ). Under the slogan of ‘fight against terrorism’ Spain has developed a truly exceptional Penal Law, Penal Procedural Law, and Penitentiary Law – sometimes through simple administrative memoranda, that generated discussions about the effective force of the principles of the rule of law – that is strongly abusive of the persons that may be involved in such kind of crimes (Aranda and Rivera 2005). The Spanish traditional concept of terrorism has evolved in quite a particular way, as a result of the identification of ETA as the internal enemy, and the application of the ‘Criminal Law of the Enemy’ (also called Criminal Law of Police) developed by the German legal scholar Jakobs (Ortuño 2006). Thereafter, terrorism and terrorist acts were always linked, along the democratic period in the most recent Spanish history, to ETA activities. The emergence of new indictable offences, worse procedural warranties, the hardening of penalties, more police power and penitentiary restrictions introduced after 11 September 2001 and, later on, 11 March 2004 have reinforced the already existing ‘exceptional’ legal framework.17 The Spanish antiterrorist measures began to be promulgated after the Spanish Civil War (1936–39). In the 1960s special legislation and a special Court (the socalled Tribunal of Public Order) have been enforced in order to fight against the political dissidence and the political violence. After Franco’s death (1975), the new Spanish Constitution (1978) paved the way to the continuation of the special antiterrorist legislation through its Article 55.2, but now under a democratic appearance. The set of measures that were implemented from that moment on appealed to emergency, consolidating a dual legal framework: one ordinary, one special.

17 In this sense, we cannot forget the changes introduced in Spanish criminal procedure, nine years before 11 September, by the Organic Law no. 1/92 of 21 February on the protection of public safety, regarding the incommunicado detention, the stop and search in the street, the home searches and so on.

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From a socio-legal perspective, we can identify three different periods in the development of this legislation: the first, from the approval of the Constitution in 1978 to 1987, could be called the ‘illegal emergency period’ because several strategies were taken in order to face lefty and pro-independence political violence, acting in violation of the law.18 The second is the ‘legislative emergency period’ (1988–95). The legislative antiterrorist frame has been systematized then favouring the participation of the police in the fight against political violence.19 The Organic Law no. 1/92 of 21 February on the protection of public safety and the Penal Code reform by the Organic Law no. 3/1988 of 26 December against the acts of armed groups and terrorist elements and implementing Article 55.2 of the Constitution, are examples of this period. The third stage is the ‘legal-judiciary emergency’ (from 1996 on), in which there has been an important participation of the Magistracy, punitive measures have been made stricter and a great part of militants and sympathizers of the abertzale left has been criminalized (Forero et al. 2007). All this can explain why in Spain it was not necessary to introduce higher a degree of exceptionality in the legal codes in order to tackle the new ‘international terrorism’. The expression ‘culture of the emergency’ refers to the juridical-penal response (penal exceptionalism), but it also refers to the cultural and the mass media response, which regards different, specific phenomena of the political violence. This was the reason why, after explaining the genesis of the conflict, we have examined the media coverage given to the Basque country frustrated peace process which started on 22 March 2006 and finished 14 months later (see Forero et al. 2007). The analysis of the coverage that the mass media gave to this topic through three different newspapers (Gara, El País and El Mundo) showed that if the process towards the solution of a public conflict is always complex, opinionmakers are responsible for part of such complexity as they contribute both to solve and to exacerbate the conflict. The three newspapers have shown the actors, the 18 Notwithstanding the democratization of the state, in 1978 there has been a great continuity in the personnel, the organizational structures and the politico-corporative culture of the State Security Forces. Along with the adoption of the antiterrorist legislation, several illegal practices took place in this period to counter political violence (the creation of the Anticommunist Apostolic Alliance, known as the ‘triple A’, the Spanish National Action, ETA Antiterrorism, Spanish Antiterrorist Groups, the Spanish-Basque Battalion and the King Jesus Christ Guerrilla). During the period 1979–82, 200 deaths were caused by the extreme right violence. In 1983 another ‘minor organization’, the Liberation Antiterrorist Groups, carried out its first action: the kidnapping and further murder of J.A. Lasa and J. I. Zabala (for a more detailed explanation, see Forero et al. 2007). 19 About this period it is important to outline that police obtained some prerogatives regarding the detention of persons accused of terrorism. The figure of incommunicado detention allows the police to keep those people arrested without any possibility of being in touch with their families, telling the detention place or having access to a doctor or a lawyer. The presence of that ‘no-right’ space permitted the perpetration of torture (Rivera et al. 2006; Rivera 2009 ).

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process and the problems20 in substantially different ways, assuming a role in the definition of the issue about which they informed. When a political conflict is at stake, the way such a role is performed may have an impact over the attempts to find a solution and, ultimately, over their success. The so-called ‘antiterrorists regulations’ have created a regime of exceptionality that, at least in Spain, has entailed the restriction of a great part of the fundamental rights and penal guarantees of those suspected of belonging to or collaborating with terrorist organizations: isolated confinement, the use of violent methods by part of the police forces in order to extort confessions, certain penitentiary policies and impunity towards the responsible of the abuses (OSPDH 2008). Institutional Violence as a Transversal Consequence of Exceptionalism and Illiberal Regimes After five years of research, we can state that institutional violence as the last mechanism of exercise of the power in the frame of sovereignty crisis is probably a key element to understand the global (migration and anti-terror policies) and the local (urban) logics of the ‘culture of emergency’. The condition of and the treatment received by people deprived of freedom as a result of coercive measures, administrative acts or punishment (whether applied by the police in the street, dictated by an administrative authority or by a court of the penal system) play the most dramatic role in the reactive policies that are at the core of neo-liberalism. After 20 years of relative economic prosperity, in which integrated individuals were involved in a growing market and where the large contingent of migrants, poor and youngsters were accommodated at the margins, the current economic crisis makes us look again at the basis of this apparent social balance. The management of immigration, the management of opposition to the socio-liberal economic model and, in general, the activity of the groups described as ‘risky’ will become more critical in coming years, particularly in the urban context.21 This will lead to the exacerbation of social conflict and, with this, to a greater need for control agencies to reduce their costs by increasing the effectiveness in the prevention of insecurity. At the same time, the pressures of economic agents to return to social stability, but also to increase their level of involvement in this kind of actions, will be a greater 20 Following the analysis of Lederach (1997). 21 In this sense, see not only the clashes at the French banlieu (Bonelli 2006), but also the Greek riots of December 2008 (for a brief explanation see Popham at ) or the students struggle against the new regulations of universities, the so-called ‘Bologna plan’, in the Spanish cities of Barcelona, Valencia, Madrid and Seville during the last months (for a detailed analysis of the events see ).

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challenge to the system of individual rights and guarantees. Once again the pair safety/freedom is at stake, and the city is the scenario of this tensional drama. Zero tolerance, emergency and/or exceptionality legislation, war against terrorism or immigration, extraordinary rendition. The current trend seems clear enough: the punitive management of poverty and immigration, the thoroughgoing flexibilization of markets, the growing criminalization of the dissidence and the ‘rolling back’ of state-provided welfare. There seems to be little immediate prospect of restraining the deployment of punitive power. In this frame, institutional violence appears as a functional condition of the ‘global war’ (Dal Lago 2005a; Rivera 2009) to provide a response to the social struggle in the streets, as a measure to investigate or to fight the enemies (Klein 2008), or to contain the surplus working people that looks for a better life. We could find one of the most worrying signs of this violence in the ill-treatment and torture perpetrated in conditions of deprivation of freedom (in jails, detention centres for migrants, police stations, airport detention areas and so on). It seems appropriate to remember that, as Mauro Palma, the President of the European Committee for the Prevention of Torture of the Council of Europe, said: More and more reports have highlighted the possibility that certain … secret detention facilities were located in Europe. The Parliamentary Assembly of the Council of Europe on 27th June 2007 has reached some worrying conclusions concerning the possible involvement of European states in consenting or supporting illegal transfers of detainees by providing unofficial places of deprivation of liberty or hiding flights over their territory (Resolution 1562/2007).

So, the phenomenon not only takes place in the US or Iraq in an ‘exceptional’ way: the unfair and violent treatment of citizens has happened also in Europe. Torture is a transcultural and transhistorical phenomenon that in Spain adopts – among others – the form of structurally and systematically vulnerable and violated subjectivities. Nevertheless, this does not mean naturalizing it, quite the opposite. As we have recently showed in previous works ( Rivera et al. 2006; OSPDH 2008) it is necessary to outline its social and historical characteristic as a technique and a domination rite marking the victim’s mind and body implacably. Torture and cruel treatments that occur in the sphere of deprivation of freedom in Spain do not constitute, despite our desire, isolated or sporadic situations. On the contrary, they have found there a very suitable environment where they can deploy their most irrational violence, institutionalizing very high doses of fatally degrading suffering for the defenceless victims on behalf of the state. According to data provided by public institutions and human rights organizations, 3,600 cases of torture, maltreatment and other manifestations of institutional violence were reported in Spain from 2002 to 2006 (Rivera 2009). This is equivalent to an annual average of over 700 denunciations of torture and maltreatment of prisoners and detainees in the different conditions of freedom deprivation.

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There are a lot of mechanisms that make it possible: from the normative framework22 to the penitentiary architecture or the conditions of deprivation of freedom, as it happens in the overcrowded prisons;23 from the generation of discourses about the ‘other’ to the impunity or decoration of torturers; from politicians’ voices denying or minimizing the existence of torture to certain formal or informal practices of the state security forces (Rivera et al. 2006). Within the victims of torture and institutional violence, who usually encounter also difficulties to denounce and prove the abuse,24 there are some categories that stand out for their special vulnerability. We must pay attention to the so-called ‘sexual torture’ which constitutes the preferred form of abuse against women. In this case, machismo assumes the form of institutional violence. Migrants constitute another particularly vulnerable group that, because of the conditions mentioned before – the precariousness resulting from not holding a residence permit or cultural, ethnical and linguistic aspects (Petti 2009) – suffer exacerbate victimization. European migration policies and the reinforcement of borders have paved the way. to the implementation of punitive control practices in the management of migration flows (even when they are based upon administrative acts) and the introduction of internment centres for migrants, places where inmates awaiting deportation have no rights and where abuses have been verified. This maltreatment is performed by guards and other security personnel. There is no medical and social assistance, entertainment is scarce and inhabitability conditions poor. This means that the subjection of the people confined there – who have just escaped from misery and abuse in their countries – frequently results in inhuman and degrading treatment (Silveira et al. 2008). Minors and people detained as a result of the enforcement of anti-terrorist measures are other particularly vulnerable groups (Rivera et al. 2006; OSPDH 2008).

22 It is right inside the Law structures where the possibility and the probability of practicing institutional violence reside. Even though this last fact can be already verified at the level of the ordinary legislation, such situations happen with much more cruelty in the context of the so-called ‘emergency or exceptionality legislation’. 23 The international legislation applicable to this domain, especially since the pronouncement of the ECtHR in the case of Kalashnikov vs. the Russian Federation (application no. 47095/99), has been very clear in stating that torture or maltreatment do not occur only as a consequence of deliberate action or dolus, but they can result also from structural conditions of freedom deprivation, such as overcrowded prisons. 24 The state of impunity in which the facts related to torture remain is very surprising. As it has been already seen, because of the absence of evidences (witnesses, medical) resulting from the isolation of the victim; the process of filing a denunciation or the fear to do it from whom remains under detention; the impossibility of identifying the aggressors and their exoneration and/or decoration the number of sentences punishing the previously referred facts is very scarce. So, and in spite of the fact that it may sound inconceivable, we could talk about the existence of a ‘juridical framework for torture’ ( Rivera et al. 2006; OSPDH 2008).

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Torture is established and is possible as a radically asymmetric power – dominant/under domain – based upon actual or symbolic violence within a determined order. As it is necessary to watch over and denounce torture, today there is a new instrument that has to be implemented: the Optional Protocol (from 2002) to the UN Convention Against Torture (OPCAT) (Rivera 2009). The efficiency and the durability of the fight against torture depend on the compression of the double face of the ‘emergency culture’: the symbolic one, but also the material one. At the street level, the situation of the repression of the dissidence is not better: the police report on the case of the shooting of Alexis Grigoropoulos in Greece in December 2008 reads that ‘the victim did not show the expected behaviour and personality of a 15-year-old adolescent’25 and this was used as a way to justify the institutional violence. Similar explanations were given about the two adolescent who died in the banlieues of Paris in 2005, and this has been also the discourse regarding the repression of the mentioned ‘Bologna protest’ of March 2009 in Barcelona. According to what we have said here, we can assert that exceptional practices are being adopted to manage migration flows, especially by resorting to the penal system (Monclús 2008); to regulate and control everyday life as well as to tackle terrorism in the Euro-Mediterranean area. We warn that this is not a new phenomenon: the stark return of torture and more generally of institutional violence and the violation of fundamental rights show the re-emergence of the Leviathan, which is in permanent tension with the current legislation. A legislation that sometimes is useful to restrict its effects, and which sometimes hides its consequences or even legitimizes practices which are inadmissible under the rule of law.

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Chapter 14

Securitization, Liberty and Law: The EU’s 21st Century Elspeth Guild, Evelien Brouwer, Paul Minderhoud and Ricky van Oers

Introduction This chapter engages the question of legal mechanisms of constitutionalism which set the boundaries of citizen and foreigner. Central to this analysis are the issues of separation of status in criminal law, legal structures of separation, social protection as a form of separation and the internal/external dimensions of civil liberties. The development of an EU AFSJ impacts on these issues. There are four different aspects of a changing relationship between liberty and security which we examine here: the effect of EU law on member states’ sovereignty, the development of instruments dealing with the use of large-scale databases and the exchange of personal data, controlling immigration via social security, and the introduction of mandatory integration requirements for TCNs in EU member states. These aspects have led to four case studies. The first case study focuses on the changing relationship between EU member states and their citizens and immigrants due to the EU. On the one hand, due to the concept of EU citizenship, the control of member states over their own nationals and those of other member states has receded as regards movement, residence, family relations and so on. At the same time, it has been strengthened through the extension of some police and criminal justice powers beyond the territory of the state to the whole of the EU. On the other hand, the ‘real’ foreigner, that is the non-EU national foreigner, is gradually escaping the embrace of the sovereign European state, for example by marrying to an EU national, or by profiting from a bilateral agreement the EU has concluded with third states. Further, the EU accords a special status to foreign residents in the member states via Directive 2003/109/EC.1 The second case study focuses on the EU information policy, in which the use of biometrics has become a crucial factor. New policies involving the use of biometrics not only envisage border and immigration control but also the fight against terrorism and the investigation of crimes. The use of biometrics on the one hand enables national governments to secure identity documents against theft or fraud. On the other hand biometrics is to be used as a tool to search different 1 Council Directive 2003/109/EC of 25 November 2003 concerning the status of TCNs who are long-term residents (OJ L 16/44, 23 January 2004).

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databases. In the light of these developments, the second case study pays attention to the way in which EU policy makers assess the efficiency and added value of data surveillance mechanisms, the question whether the instruments are not in breach of the non-discrimination principle as recognized within the legal framework of the EU, and the question concerning the relationship between the developments at stake and the protection of individual rights. The third case study addresses the way in which EU member states use the lack of harmonization in the field of social security as an instrument of immigration policy. This has led to an important shift in cross border migration control, since external geographical border control is replaced by internal controls, fencing off the social security system. The question whether the principle of non-discrimination on wide grounds as enunciated by Article 14 of the ECHR can provide an instrument combating the refusal of social security rights, which is based on discrimination by nationality, is dealt with. The fourth case study deals with the recent trend towards the introduction of civic integration tests as a condition for permanent residence or nationality which can be observed in the European member states. A central question is whether the rights and freedoms of TCNs seeking to acquire a secure residence status or the nationality of the state they are legally residing in are in an appropriate way balanced against the desire of governments to protect the collective identity and to restrict immigration. The fourth case study addresses the case of the Netherlands. The First Case Study: The effect of EU Law on Member States’ Sovereignty The relationship of the EU with its citizens and migrants reveals many of the complexities inherent in the reframing of identity discussed by Bigo et al. (2006). In our examination of this relationship the tension between sovereignty and the practices of the state as regards the individual which take place in the allocation of an identity – citizen or foreigner – are changed by the introduction of a further actor – the EU which also makes a claim on the loyalty of the individual and the capacity to allocate identity and rights. The claims of member state sovereignty over their citizens’ lives have been subject to such fundamental reformulation as a result of the EU that they are no longer recognizable. With the allocation of EU citizenship rights, the EU claims all those persons whom the member states designate as their nationals. Thus the more persons a member state recognizes as its citizens the larger the scope of the EU citizenship (Guild 2004b). However, the member states have little control over who becomes a citizen of the Union. While much attention has been paid to the relatively minute numbers of foreigners who naturalize in the member states each year (but with very important implications for the civic justice in some member states, see section four herein), the effects of enlargement of the EU has doubled the number of citizens of the Union over the past ten years. The allocation of the identity of citizen or foreigner is changed by accession – the member states are no longer entitled to

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treat as foreigners the nationals of member states which have joined the EU but instead must treat them in accordance with the EU rules. The principle of the hierarchy of laws places EU law at the top of the legal tree and national law below. The member states must faithfully adopt national laws that express the rights which citizens of the member states are entitled to enjoy on their territory. These rights are no longer determined by the state itself as an exercise of sovereignty in respect of the foreigner but are determined by the processes of EU law – now the status of citizen of the Union. Thus the practices of coercion against foreigners discussed in other chapters of this book (Bergalli and Rivera 2006; Palidda 2006) can no longer be practiced lawfully against citizens of the Union irrespective of their member state of nationality. The rights that the EU citizen enjoys are all to be found once they have moved outside their country of origin. The status, which although called a citizenship status lacks some elements of citizenship, determines the rights of the individual on the territory of any EU member state other than that of their nationality. The citizenship component lacking from EU citizenship is the right never to be exiled – nationals of the member states are still liable to expulsion from one member state (where, as citizens of the Union, they are rights holders in citizenship) to the member state of which they are nationals. This extraordinary facet of EU citizenship is the result of the sovereignty struggle between the EU and the member states over identity. Although expulsion of EU citizens from one member state to another is a rare exception (notwithstanding the rather spectacular expulsions of Romanian nationals in 2007–08 from Italy and France), its existence in law as a possibility provides a fragmentary claim to sovereignty over the national territory. The seduction of the citizen from the member state to the EU has taken place through the capacity of the EU to provide rights which the citizen wants but which his or her member state cannot provide. This explains the importance of the realization of the EU rights of citizenship only once the citizen has left their home member state. The legal rule of the state only extends to the edges of its territory. It cannot as a matter of sovereignty determine the rights of its nationals on the territory of another member state. But it is exactly this possibility which the EU has through the idea of free movement of persons (and economic actors). Thus the individual who is interested in moving to another member state, whatever the reason, enjoys the right to do so by virtue not of their state authorities but the EU. The EU then privileges the individual who moves with various protections against the host state’s authorities, such as discriminatory treatment in relation to nationals of the state in all areas of EU competence. The host state is not entitled to prevent or impede entry of the EU citizen (except on residual grounds jealously and narrowly interpreted by the ECJ). It cannot detain or expel the EU citizen as it can do with other foreigners. Even more importantly, the EU gives its migrant citizens rights in family reunification with non-EU national family members far wider than many member states give to their own nationals. As a result the EU citizen who is refused family reunification by his or her own member state for a TCN family member, such as a spouse, parent, child, grandparent and so on, whether it be on

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the grounds that the EU national has not sufficient income or housing, or the child is too old or the parent is infirm can, by moving to another member state, enjoy exactly that family reunification under more generous EU rules. The issue of family reunification with TCN family members arises much more frequently for families where one of the parties was born outside the state or as a result of his or her family connections has substantial family members living outside the EU. Simply put, citizens who were immigrants or whose parents were immigrants are more likely to seek family reunification with family members outside the EU than other citizens. Thus these persons who are often the object of ethnic and racial discrimination in their member state of origin (Cesari 2006) become the holders of superior rights once they cross the EU border to another member state. Their loyalty is solicited by the EU itself. The ‘real’ foreigner, that is the non-EU national foreigner, is also gradually escaping the embrace of the sovereign European state. First if they are a family member of a migrant EU citizen then they already escaped entirely into the legal framework of the EU citizen. As a result of bilateral agreements the EU has concluded with third states some foreigners have a variety of residence and work protections (for instance Turkish workers). The ‘real’ foreigner may also be the national of a state which is likely to accede to the EU soon – thus citizens of the Western Balkan states although foreigners have been designated via their nationality as potential citizens. Even the Albanian, until recently the figure of the unwanted foreigner in Italy, is now a potential citizen of the Union – only the passage of a few years will bring the realization of their new status. Nationals of most of the countries to the East of the member states have privileged access to the EU as a result of facilitate visa agreements which are intended to make easier access to the territory (Belarus is a notable exception). Foreigners who have resided lawfully in a member state for five years and fulfil the conditions of work and so on over that period also now escape the embrace of member state sovereignty and are entitled to a new status controlled by the EU – long-term resident TCN. In addition to an important list of non-discrimination rights within the territory of the state where they completed their five years, and a high level of protection against expulsion, they also are entitled to move, exercise economic and other activities and reside in any other member state. This has had the odd consequence of privileging for instance, Turkish nationals who have been resident for more than five years in Bulgaria, over Bulgarians as the Turks who enjoy the status are entitled to go and seek work in any other member state (with some limitations) while Bulgarian nationals, according to the transitional arrangements for their accession to the EU, can be excluded from the labour market of other member states for up to seven years (1 January 2014). The image of the ‘real’ foreigner has become more and more restricted. At the moment, the continent of Africa appears to be the focus of the image of the real foreigner (Bigo et al. 2006). At the same time that the control of member states over their own nationals and those of other member states has receded as regards movement, residence, family relations and so on, it has been strengthened through the extension of some police

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and criminal justice powers beyond the territory of the state to the whole of the EU. The EAW, which replaces extradition among the member states, permits the police and judicial authorities of one member state to reach beyond the territory of their jurisdiction into the territory of other member states to pluck out an individual they seek for punishment (Guild 2006b). While for the moment a national judge is still engaged in the process, what they can examine has been limited dramatically. Thus for a list of 32 offences they cannot examine whether the offence is both a criminal act in the host member state and the member state seeking to prosecute or punish. This means that the national conception of criminal activity remains undisturbed by the EU development but the power to pull an individual into any one particular sphere of criminal law has widened. While the powers of the police and criminal justice authorities have been extended, there has been no compensating extension of the rights of the defence or access to bail. The result then is that the coercive state is privileged to the disadvantage of the citizen in the criminal justice system. Nonetheless, the extension of policing and criminal justice powers beyond the borders of the sovereign state has also encountered resistance as regards access for individuals to fundamental rights. As the categories of crime and war have become increasingly blurred in the EU context so supranational human rights law has begun to step in to require accountability by states for the acts of their actors, whether they designation is one of crime or war. The conflict in Iraq has proved a particularly important venue where some of these fundamental questions of the relationship of coercive state power to the fundamental rights of the individual are becoming judicialized (Dieben and Dieben 2005; Guild 2007a; Kerr 2008). The fora for these challenges have been through national criminal justice systems engaged with criminal proceedings against state actors for their actions against civilians in Iraq. In a widening context, the ECtHR has also begun to find that state accountability for human rights protection follows state actors wherever they go around the world. The state border no longer acts as an impermeable seal beyond which state actors are no longer held accountable in human rights and national criminal law for their acts. These developments present an even more fundamental challenge to the relationship of borders to state power and its exercise. The relationship of the individual to state authority has shifted, in a number of critical ways, from one determined by territory: the ability of the individual to occupy space and territory with or without the authorization of the state which claims the territory has been enlarged, and with that right to occupy other rights are acquired. The ability of coercive state actors to apply national rules of punishment extends beyond the territorial border much more easily. But the actions of state authorities beyond their territorial borders are no longer immune from criminal law and indeed are increasingly subject to European supranational human rights obligations which include dispute resolution mechanisms which escape state control.

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The Second Case Study: The EU Information Network and Protection of Individual Rights and Liberties In the Hague Programme on strengthening justice, freedom and security of 2004, the European Council underlined the need to examine ‘how to maximize the effectiveness and interoperability of EU information systems in tackling illegal immigration and improving border control’. Since 2004, many instruments have been developed dealing with the use of large-scale databases and the exchange of personal data (Geyer 2008a). Examples are the adoption of the Regulation 1987/20062 on SIS II including the extended scope and applicability of the current SIS, the establishment of the VIS in which the information on every short term visa applicant will be recorded, and the Directive 2004/823 on the transmission of passenger data. Furthermore, the EU agenda includes different proposals dealing with further use of personal information, such as the proposed Framework Decision on the extended use of Eurodac for law enforcement purposes4 and the draft Framework Decision on the use of PNR data for law enforcement purposes.5 In addition to these separate measures, the Commission proposed with the so-called Borders Package6 in February 2008 an overall information surveillance system, allowing the electronic recording of the dates of entry and exit of TCNs into and out of the Schengen area. This entry/exit system should enable national authorities to identify overstayers and ‘take the appropriate measures’. Furthermore, another proposal within the Borders Package includes the introduction of automated gates for ‘bona fide or registered travellers’ enabling ‘the automated verification of travellers’ identity without the intervention of border guards’ (Guild et al. 2008). In this EU information policy, the use of biometrics has become a crucial factor. New policies involving the use of biometrics not only envisage border and immigration control but also the fight against terrorism and the investigation of crimes. The Prüm Treaty is a clear example of new legislation enabling EU authorities to exchange their national information and giving each other mutual access to their criminal files, including the exchange of DNA of suspected persons (Balzacq et al. 2006a). In the ‘Communication on the enhanced interoperability 2 Regulation (EC) No. 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 381/4, 28 December 2006). 3 Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data (OJ L 261/24, 6 August 2004). 4 European Commission, Proposal for a Council Decision on requesting comparisons with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, COM (2009) 344 final, Brussels, 10 September 2009. 5 European Commission, Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for law enforcement purposes, COM (2007) 654 final, Brussels, 6 November 2007. 6 European Commission, Preparing the next steps in border management in the European Union, COM (2008) 69 final, Brussels, 13 February 2008.

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and synergies among European databases’,7 the European Commission promoted the use of biometrics not only as an identification and verification tool but also as a search tool. According to the Commission, biometric searches would allow for ‘unprecedented accuracy’. The use of biometrics on the one hand enables national governments to secure identity documents against theft or fraud. On the other hand biometrics is to be used as tool to search different databases. In the light of these developments, three questions merit further attention. Firstly, how do EU policy makers, drafting these plans, assess the efficiency and added value of data surveillance mechanisms? Secondly, as many of these data processing measures concern specifically TCNs, one must ask whether these instruments of data surveillance are not in breach of the non-discrimination principle as recognized within the legal framework of the EU. The third question concerns the relationship between the developments at stake and the protection of individual rights. Measuring Necessity, Proportionality and Efficiency The aforementioned measures seem to be based on an absolute trust in the reliability and efficiency of the information held in these systems. The question is however what effectively can be achieved by allowing authorities to collect more and more information. This question arises especially when the practice shows that national databases often are not reliable and authorities lack the financial and human resources to analyze the already available information. Considering information on the accuracy and lawfulness of data held in the current SIS, national evaluations, performed in 2004 for the Joint Supervisory Authority, showed that, in different countries, the SIS included wrongful or unlawful data on TCNs. In particular, the reports of national data protection authorities established that, in many cases, the data were stored in SIS for unlawful purposes, that they were not deleted within the required time limits or that they were inaccurate (Brouwer 2008a). The obligation of recurring evaluations will remain very important with regard to the proposed EU information systems, from the moment they are operational. The Eurodac Regulation,8 but also the new proposals on VIS and SIS II,9 includes such an obligation for the Commission to report on the evaluation of these systems. 7 European Commission, Communication to the Council and the European Parliament on improved effectiveness, enhanced interoperability and synergies among European databases in the area of Justice and Home Affairs, COM (2005) 597 final, Brussels, 24 November 2005. 8 Council Regulation (EC) No. 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention (OJ L 316/1, 15 December 2000). 9 European Commission, Proposal for a Council Decision on the establishment, operation and use of the second generation Schengen information system (SIS II), COM (2005) 230 final, Brussels, 31 May 2005.

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But here again, everything depends on the scope and content of these evaluations. For example, the annual reports on Eurodac of the Commission did not include an overall cost-benefit analysis of the use of Eurodac. The evaluation reports for example did not provide information on whether the implementation of Eurodac results in lower costs for the member states by being able to send asylum seekers back to other EU countries or receive asylum seekers from other countries, or whether it is efficient to ‘redistribute’ asylum seekers within the EU. Looking at the table of hits based on Eurodac, one could ascertain a status quo among the larger countries in terms of receiving or sending asylum applicants (Guild 2007a). Identifying, Tracking or Stigmatizing Immigrants? SIS II, Eurodac and the VIS have the common feature that they are centralized large-scale databases focussing on the registration and the identification of TCNs. The creation of these centralized databases is closely linked to the aim of the EU governments to obtain an extra tool or mechanism for controlling the entry and movement of migrants. This includes persons staying irregularly on their territory and migrants declared inadmissible by national authorities, as well as ‘regular migrants’ such as visa applicants and asylum seekers. SIS II, VIS and Eurodac will not only be accessible at the external borders of the member states, but also within the national territory and at embassies and consulates in third countries. The fact that these databases are to be used for both immigration law and criminal law purposes means that persons registered for immigration law purposes will be at greater risk of being affected by law enforcement measures or secret surveillance. Identity checks and the consultation of the above databases are generally based on data profiling. Using general criteria dealing with the ‘risk factors’ of specific categories of persons, authorities place these groups of persons under extra surveillance. There is an important tension between the nondiscrimination principle protected in Article 14 ECHR and the fact that TCNs risk to be more exposed to supervision and control measures than EU citizens (Brouwer 2008b). The Right to Private Life – Article 8 ECHR Considering the measures at stake and the jurisprudence of the ECtHR, there can be no doubt these measures may under certain circumstances cause a breach of the right to private life as protected in Article 8 ECHR. The systematic collection and storage of personal information fall within the scope of Article 8 ECHR. To protect the right to privacy, national legislation should provide for procedural safeguards as defined by the ECtHR. These safeguards include, for example, explicit limitations on the exercise of powers to store and use personal information; the duty to inform persons in advance with regard to the storage of their information; definition

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of situations in which information may be disclosed to others, and; safeguards protecting the quality of data and protecting sensitive data. Data Protection The criteria developed by the ECtHR on Article 8 ECHR are closely related to the general principles of data protection law. The inclusion of the right to data protection as a fundamental right in Article 8 of the EU Charter of 2000 confirms that data protection is not merely a code of conduct, but an individual right to be considered independently of the right to private life laid down in Article 7 of the EU Charter. In the case of Rechnungshof10 the ECJ advocated a broad interpretation of the EC Directive 95/46 to ensure an effective data protection. In this judgment the ECJ also clarified the close relation between data protection directive and the right to privacy as protected in Article 8 ECHR. With the adoption of the Lisbon Treaty in December 2007, the EU member states confirmed the legally binding nature of the Charter of Fundamental Rights. This means that when developing and implementing measures in the field of data processing, both EU institutions and member states should give due consideration to the impact of those measures for the fundamental right to data protection. With regard to the extended registration and use of biometrics, an important warning has been given by the AG Trstenjak in her opinion to the case of United Kingdom and Ireland against the Council dealing with the Regulation 2252/2004 on security features and biometrics in passports. In a conclusion which was of no particular relevance to the issue raised in this case, Trstenjak explicitly referred to the problems which might arise from ‘the perspective of the fundamental right to protection of personal data when implementing this Regulation on biometric passports’. Rights Deriving from EC Asylum and Immigration Law In the field of asylum an immigration law, adopted on the basis of Title IV TEC, special rights have been granted to different categories of TCNs. This includes asylum seekers, long-term resident TCNs and TCNs who have the right to family reunification. Furthermore, certain categories of ‘privileged’ TCNs gained extra protection, such as the family members of EU citizens, Turkish migrant workers or persons deriving rights from special agreements between the EU and third countries. There is some tension between the rights of the categories of persons mentioned above and the possibility of these persons being reported in the aforementioned data bases. With regard to the use of the SIS this tension became

10 Judgment of 20 May 2003 in Case C-465/00: Rechnungshof v. Österreichischer Rundfunk and Others.

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clear in the judgment of the ECJ Commission v. Spain.11 Here, the ECJ left no doubt about the fact that an automatic refusal of entry or a visa to a TCN who is married to an EU citizen, solely on the basis of a SIS alert, violates the principle of free movement which is central to the communitarian system. To take this negative decision without verifying whether the person concerned imposes a genuine and sufficiently serious threat to the fundamental interest of society implied a breach of the rights which are laid down in Directive 2004/38. Access to Effective Remedies: Three Principles of EU Law The right of an individual to have access to effective remedies with regard to both immigration law and data protection law decisions relating to the use of databases, can be derived from general principles of EU law (Brouwer 2007a). The first of these principles is based on the incorporation of human rights and the ECHR within the legal framework of the EU. It is clear that the standards on the right to effective legal remedies in the ECHR, and further developed by the ECtHR, apply to the implementation of EC immigration and asylum law in cases where human rights are at stake. Secondly, there is the right to judicial protection to enable individuals to enforce their rights under Community law. In the words of the ECJ in the Panayotova case, Member States must provide for ‘effective judicial scrutiny of the decisions of national authorities taken pursuant to the applicable provisions of Community law’. Thirdly, the right to effective remedies follows on from the legal system within the Community which includes the system of preliminary references. Here, the right to remedies is necessary in order to enable both national courts and the ECJ to guarantee a coherent and clear interpretation of Community law. An analysis of recent jurisprudence in the different member states establish that national courts use their powers to scrutinize and whenever possible curtail unlawful data processing (Brouwer 2008b). An important example is the more recent case-law of the German Constitutional Court, in which different measures of data processing (data profiling, storage of vehicle registration plates, data retention) within Germany were held in breach of the constitutional right to privacy (Geyer 2008a). Criteria used for these conclusions were the lack of legal certainty or transparency, the absence of a clear purpose limitation, the disproportionality of the data processing measures and the absence of concrete justification for the data collection. The Future: Striking the Right Balance EU policy makers tend to degrade the meaning of fundamental rights of data protection and privacy by upgrading other public interests or tasks. Privacy and 11 Judgment of 31 January 2006 in Case C-503/03: Commission of the European Communities v. Kingdom of Spain.

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data protection are thus opposed to the ‘collective right to security’ or to ‘the principle of availability’. The new emphasis on ‘securitization’ undermines as well another fundamental principle of European law: the freedom of movement (Bigo and Guild 2005a). Freedom of movement is difficult to achieve if national authorities have the possibility to control people always and everywhere, in and outside the EU territory. It is questionable whether the failure to justify the necessity or proportionality of these measures can be repaired by sunset or review clauses providing the legislator to adopt at a later stage amendments or improvements to the instruments at stake. Also, one could doubt whether the intrusive effects of data systems can be solved by a general reference to applicable data protection rules, or by granting the data subject a limited right to apply for access, correction or deletion of his or her data. The exercise of these rights cannot or only marginally prevent the risk for wrongful use or misuse of data. Nor can they prevent the general loss of privacy and data protection caused by the use of the EU information network. The Third Case Study: Social Security Rights and TCNs – Inclusion and Exclusion Within the context of the EU the Member States still have the sovereign power to define their social security systems. This has once again been confirmed during the negotiations on the Constitutional Treaty. This Treaty, which established the principle of qualified majority voting in a number of important policy fields, including the field of immigration, maintains unanimous decision making regarding social security. The member states did not want to give up their sovereignty of legislative power on the issue of social security. Because of the absence of harmonization, each member state can still determine the conditions for entitlement to benefits, provided it does not hinder the free movement of workers. Over the last years, the member states have used this power to make social security an instrument of immigration policy. An important shift in cross-border migration control has occurred the last decade. External geographical border control is replaced by internal controls, fencing off the social security system. Unwanted immigrants are excluded from several social security and social assistance benefits. Some member states have expanded the concept of residence to restrict the access of immigrants to social benefits. Especially the position of TCNs is vulnerable in this respect. After a lot of resistance from the member states, the EU extended the provisions of Regulation 1408/7112 to TCNs in 2003. The success of adopting this measure

12 Regulation (EEC) No. 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ L 149/2, 5 July 1971).

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must be weighed against the practical limitation that this Regulation 859/200313 is confined to legally residing TCNs in cross-border situations. It does not secure the social security rights of TCNs who have not moved between member states. However, Regulation 859/2003 will become more important now that Directive 2003/10914 on long term residents has been implemented by the member states, establishing the right to free movement for long residing TCNs. The combination of these two measures will probably strengthen the social security position of long term residents in the EU. The long term residents’ Directive, however, does not cover refugees or persons with subsidiary protection yet and leaves substantive opportunities to the member states to set limits on the right to move. If EU legislation fails to provide sufficient protection, Article 14 of the ECHR can provide a powerful instrument combating the refusal of social security rights, which is based on discrimination by nationality. The ECtHR has made it clear that there is an obligation to afford equal treatment to social security without discrimination on the basis of nationality, either in combination with Article 1 Protocol 1 or in combination with Article 8 EHCR. The state’s duty to provide security, including social security in a European context is not an exclusive privilege any more for own citizens. The changing legal framework of citizenship in the EU, but also under the ECHR, and the acquisition of EU residence rights by TCNs challenge the sovereignty argument used by the individual states. Social security systems should be designed with great care in order to ensure the inclusion of immigrants who are already participating in the receiving society irrespective of holding the status of irregulars or regulars according to law. The Fourth Case Study: Whose Freedom, whose Security? Mandatory Integration Requirements for Immigrants in the EU In recent years, a trend towards civic integration programmes with a mandatory character can be observed in the European member states (Carrera 2006a). In several countries, the successful completion of a test is a condition for obtaining citizenship, permanent residence and sometimes even for admission to the country. Immigrants first have to integrate before they acquire a strong legal status, even though equality and the acquisition of a strong legal status (under the headings of long-term residence, family reunion, naturalization and anti-discrimination) are essential ingredients of immigrants’ integration. According to Besselink (2006c, 18), the integration measures introduced in several member states in recent years 13 Council Regulation (EC) No. 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality (OJ L 124/1, 20 May 2003). 14 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ L 16/44, 23 January 2004).

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express the move from social policy measures to immigration measures (‘process of juridification’). He notes a shift away from seeing integration as a basis for positive social measures to mainly repressive ones. Across many member states, immigrants are obliged to pass tests as a condition for a secure legal status and freedom of movement. The acquisition of rights by an individual has been made conditional on his or her learning abilities and possibilities. Further, as Carrera has noted, current policy, institutional and juridical frameworks in various EU member states demand that the non-national abandon their own roots in favour of the dominant mainstream societal model and identity of the receiving state in order to have rights (Carrera 2006d). According to Castells (2004, 30), a nation’s wish to reconstruct its identity on the basis of nationality, always affirmed against the alien, is the expression of the age of globalization, which is also the age of nationalist resurgence. To this can be added that, due the fight against ‘Islamist terrorism’ and discourses of anti-Muslim sentiment, which have intensified since 11 September, immigrants are more and more required to transform into ‘good citizens’ and to abandon their identity. Besides intellectual capacities, the acquisition of rights and freedoms by immigrants therefore also depends on their willingness and ability to abandon their identity and to assimilate to the dominant culture of the host state. A central question is whether the rights and freedoms of TCNs seeking to acquire a secure residence status or the nationality of the state they are legally residing in are balanced in an appropriate way against the desire of governments to protect the collective identity and to restrict immigration. To answer this question, the effects of the integration measures need to be analysed. Below, the effects of the Dutch naturalization test, which was introduced as a condition for acquiring citizenship of the Netherlands in 2003, will be analysed. First, the reasons for introduction of the naturalization test as put forward by MPs in the political debates leading up to the introduction of the naturalisation test will be described. It will then be analysed whether the goals mentioned in the political debates have been attained in practice. Reasons for Introduction of the Dutch Naturalization Test In the Netherlands, the main arguments for introducing a stricter language and integration requirement for naturalization used in Parliament focused on an improvement of integration of immigrants and an enhanced equality in the application of the requirement.15 According to Christian Democratic and Conservative Liberal MPs, the introduction of a higher level of language proficiency, especially by demanding future Dutch nationals to master Dutch language in writing, would 15 The wish to reduce the number of immigrants in general and those with low skill levels in particular did not play a role in the debates in Parliament. The Dutch Government has always maintained that the introduction of the naturalization tests and other measures serve to enhance the (prospects of) integration of newcomers in Dutch society.

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enhance immigrant’s ability to provide for themselves and, hence, improve their integration in Dutch society. By introducing a standardized naturalization test which could only be taken at local educational centres specialized in language examinations, immigrants would no longer be submitted to the interpretation of the language and integration requirement, which varied considerably from municipality to municipality. Hence, according to its proponents, the introduction of a standardized naturalization test would lead to greater equality and fairness in applying the language and integration requirement. On 1 April 2003, passing the naturalization test became a requirement for naturalization. The test is made up of two parts: the first part, the societal orientation test, consists of questions concerning, inter alia, the state, employment, income and financial matters, residence, health care, transport and traffic. The seond part is a language test consisting of four parts: speaking, understanding, reading and writing. The content of the test is kept secret and the government offers no possibilities for preparation. The price of the test is €270 in total. People suffering from a physical or mental disability and illiterates may be exempt from the naturalization test if they wish to become Dutch nationals via naturalization, in case they can prove that they are unable to learn to master Dutch language at the level of the naturalization test within the next five years. Those who can prove that they have sufficient knowledge of the Dutch language may also be exempt from the naturalization test. Only diplomas at secondary school or higher educational level qualify for exemption. Empirical research conducted three years after the introduction of the test has shown that the goals used for the justification for the introduction of the naturalization test are only partially attained in practice (Van Oers 2006). In 2006, a total of 78 interviews were conducted with immigrants and persons charged with the execution of the naturalization test. On the execution side, municipal officials of three big and three medium-sized municipalities have been interviewed, as well as experts working at four different local educational centres. On the immigrant side, staff members of nine immigrant organizations have been interviewed. At the local educational centres, 41 immigrants that took the test have been asked questions. At the desks of the city halls of Amsterdam, Rotterdam and Utrecht and via immigrant organizations, 16 immigrants who wish to obtain Dutch nationality, but who have not yet taken the step of going to a local educational centre to take the test were interviewed. Did the Introduction of the Naturalization Test Lead to a Better Integration? From interviews conducted it appears that, in practice, the goal of a better integration of immigrants who want to become Dutch nationals is not attained as far as two categories of immigrants are concerned. Firstly, there is a category of immigrants for whom the naturalization test is a redundant requirement, since they already are well integrated in Dutch society. One can think of immigrants who have been living in the Netherlands for a very long time and who have worked and raised their children in the Netherlands. Immigrants who have obtained a diploma

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which does not qualify for exemption also fall under this category.16 The obligation to pass the naturalization test merely leads to frustration and incomprehension on the part of these immigrants and of the municipal officials who are no longer authorized to judge whether an immigrant is sufficiently integrated to naturalize. The goal of a better integration is neither attained when the weaker groups among immigrants are concerned. The existence of the test as a requirement for naturalization does not trigger the immigrants that are insecure regarding their knowledge of Dutch language, especially the requirement to master Dutch language in writing, to improve their language proficiency. Due to the secret content of the test, the lack of possibilities for preparation and the high price (€270), these immigrants do not take part in the test and consequently need to give up their wish to become Dutch nationals. Furthermore, interviews with test candidates and employees at the local educational centres revealed that the content of the test is not necessarily suitable for deducing integration. The societal orientation part (part 1) of the test mainly consists of questions that can only be answered in case a candidate has actually experienced the situation. Consequently, an immigrant who has not benefited from unemployment benefits, who has no children and who does not do voluntary work might fail the test, even if he is perfectly integrated in the Dutch society. Moreover, the test features a number of questions of which it is questionable whether they can be linked to integration in the Dutch society. Examples of questions of dubious content are the question concerning the price of loaning a videotape at a video shop, the question concerning the fine which has to be paid when a book is handed in at the library too late and the question where the prohibition to discriminate can be found (in the Constitution, the government agreement or the collective labour agreement?). Did the Introduction of the Naturalization Test lead to Greater Equality? The wish to improve the equality in the application of the language and integration requirement eventually led to the introduction of the standardized naturalization test. Consequently, all naturalization applicants, except for those qualifying for exemption, are submitted to the same test when they want to become Dutch nationals. However, the introduction of the naturalization test has not taken care of all inequality and unfairness in the application of the language and integration requirement. First of all, due to the limited grounds for exemption, persons without diplomas that master the Dutch language at the same level, or even at a higher level, than 16 Diplomas at the completion of training for jobs such as security guard, welder or beautician will not lead to exemption from the naturalization test, even though in order to obtain such diplomas, Dutch texts have been studied. Before 1 April 2007, diplomas obtained in the Dutch speaking part of Belgium and in Surinam did not qualify for exemption either.

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persons who are exempt from taking the test due to obtained diplomas, have to take the test before they can become a Dutch national. When drafting the exemption grounds, no account was taken of the different ways in which someone might learn to master the Dutch language. Only evidence of integration in black and white can lead to an exemption of the naturalization test. This means that a person that has resided in the Netherlands for twenty years, but who does not have diplomas that qualify for exemption, is not exempt from taking the test, while someone who has been residing in the Netherlands for five years and who has successfully taken part in the newcomer’s courses of the Newcomers Integration Act is. Furthermore, the standardization of the language and integration requirement coincided with a considerable increase in the level of knowledge of Dutch language and an introduction of knowledge of Dutch society. Consequently, a category of immigrants chooses not to take part in the naturalization test, especially because of the requirement of sufficient written knowledge of Dutch language, whereas these immigrants might perfectly be able to participate in Dutch society. The fact that the test content is kept secret and the price of the test is very high are also reasons why people are put off from taking the test and choose to continue their stay in the Netherlands as aliens. The road to Dutch nationality is closed off for certain categories of immigrants that due to their age, level of education or position in the family have more troubles integrating into Dutch society. Furthermore, the test discriminates between immigrants that are well-off and immigrants that are not so well-off. Even though language and integration is tested using the same method on all nine test locations, the test has not brought greater fairness in the application of the language and integration requirement. The naturalization test works as a selection mechanism by excluding the weaker illiterate groups in society from Dutch citizenship. The results of the empirical research described above show that the goals of the naturalization test are only partially attained and that the test has the effect of excluding certain groups of immigrants from the most secure residence status, which is citizenship. Certain categories of immigrants are consequently also cut off from the freedom of movement in the EU and from certain political rights, such as the right to vote and stand in national elections. On 1 April 2007, the naturalization test was replaced by the integration exam. As of that date, the same test counts for both naturalization and permanent residence. Since the price, level and content of both tests are comparable, the negative effects produced by the naturalization tests will continue to exist. At the cost of excluding immigrants from permanent residence, the Netherlands tries to protect its identity and to control immigration. This seriously questions whether the Dutch government strikes the right balance between its desire to protect its identity and to restrict immigration and the rights and civil liberties of TCNs seeking to acquire a secure residence status or the nationality of the state they are legally residing in.

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Conclusions The four strands of our research reveal a complex and highly contested field of law, liberty and security in the EU. All four fields reveal tensions at the core of the state: Who is a citizen? Who is a foreigner? What does the difference mean? In respect of access to rights, the EU interferes with state sovereignty over the allocation of public goods within society, the obligation not to discriminate against citizens of other member states and increasingly classes of TCNs. At the same time, some member states have sought to consolidate their grip over the identity of the individual through integration tests which used to exclude the less capable foreigner from social goods. The EU also participates in this struggle to control the identity of individuals, this time through the creation of biometric databases capable of using the individual’s body to betray his or her identity claim. The coercive state through the EU seeks to extend its reach to punish the individual according to national criminal laws, even where under the law of the member state where the individual is physically the act does not constitute a crime. There is reluctance, though, to protect the individual with at least a minimum level of fair trial guarantees across the EU. However, EU law and most importantly European human rights law is seeking to attach itself to state actors wherever they are operating, thus providing human rights protection to individuals irrespective of state borders. The EU’s engagement with securitization, freedom and law is giving rise to very mixed results and unintended consequences.

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PART III Theoretical Perspectives on Challenges to Liberty

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Chapter 15

Violence and Exceptionalism in Contemporary Politics: War, Liberty, Security Vivienne Jabri

Introduction The so-called ‘war against terrorism’ has brought into sharp focus the implications for liberal democratic polities of practices that take place at what might be called the ‘limit space’ between legality and illegality; legal in that such practices are instantiated and legitimized by the sovereign authority of the state, and illegal in that they are deemed to be the exception to the rule, resulting from what are perceived to be exceptional circumstances formative of necessities responsive to emergency conditions. The discourse of emergency that has dominated global politics since the events of 11 September 2001 is suggestive of imminent danger construed both in terms of the immediacy of particular acts of violence perpetrated against civilian populations and, more seriously, in terms of an existential threat existing and ongoing in the midst of society. That the element of ‘danger’ can have such diverse and yet related meanings itself bears testimony to the highly charged atmosphere that surrounds the subject of terrorism and Western responses thereof. The chapter focuses on practices of security – from warfare, to incarceration, to deportation, to anti-terror legislation – all taking place at the limits of legality and illegality, and hence constitutive of politics of exception. The aim is to provide a theorization of this limit space and its implications for the liberal democratic polity with a specific focus on sovereignty and political subjectivity and how these are articulated in a context of globalized social, economic and political relations. Shifting away from conventional understandings of war, confined as these are to the battlefield context of conflict between territorially bounded states, the chapter explores the implications of transformations in violence wherein distinctions between the norm and the exception, the inside and outside, war and security, war and policing seem to disappear. The chapter focuses on the conditions of possibility generative of practices deemed to be necessary in the name of security. It particularly concentrates on violence as an integral part of such practices, articulated variously in the form of interventionist warfare and in relation to violent technologies of power directed at individuals and populations. In highlighting the conditions that generate such practices, the aim ultimately is to unravel their social, political, and juridical implications for the liberal democratic polity and liberalism more generally conceived.

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Theoretically, the aim is to engage with the question of the relationship between sovereignty on the one hand and the Foucaultian notion of ‘governmentality’ on the other. This relationship is significant in the present context in that it highlights the re-emergence of Foucault’s challenge, namely his call for a shift in discourses that seek to understand relationships of power in liberal societies away from the political-juridical and towards the historical-sociological. Where the former stress the significance of sovereign authority, and hence the state as the institutional embodiment of sovereign power, the latter point to the dispersed nature of practices of power that target individual bodies and populations; a form of power aimed more at the shaping of subjects than their outright obliteration. This chapter focuses on one particular aspect of research conducted within WP 1 of the CHALLENGE project. The aim of this research was to draw on social and political theory and to provide innovative interpretations of what Agamben (2005), drawing on Schmitt and Foucault, refers to as the ‘state of exception’. Mapping out the conceptual history of the politics of exception enabled researchers in the team to investigate the political implications of conceptions of the political in terms of the exception.1 In exploring the nexus between philosophical reflections of the exception and its sociological rendering, these authors have placed the lens on discourses and practices that render the exception the dominant currency in readings of the political, how the political is articulated, and how such articulations are manifest in the complex terrain of local and global politics. As Walker (2006a) has shown, the question of sovereignty is core to understanding the politics of exception and its Schmittian interpretation in terms of friend/enemy distinctions (Schmitt 1996). At the same time, this interpretation comes to be challenged, as shown by Neal (2006; 2009), when it is subjected to a Foucaultian archaeological reading wherein the exception is interpreted as a ‘discursive formation’. When the exception is deconstructed in these terms, when it is subjected to close scrutiny through Foucault’s analytics of power, the exception can no longer be conceived in transcendental terms. Rather, the politics of exception come to be interpreted in terms of the government of populations, or to use Foucault, ‘governmentality’.2 In a context replete with decisions to deploy military force, with the use of war as a practice of security and with the primacy of other forms of state-sanctioned violence directed, through torture, incarceration, and exclusion, at individuals and populations, it is all too tempting to conclude that entry into the politics of exception is suggestive of a shift back to sovereign power and the enactment of 1 See in particular Aradau (2008a); Huysmans (2008); Jabri (2008a); Neal (2006) and Walker (2006a). 2 The concept of ‘government’ is used throughout in Foucaultian terms, namely the idea that power in complex, modern societies works through practices of government aimed at the shaping and control of the life of individuals and populations. Foucault’s understanding of ‘governmentality’ encompasses technologies of control aimed, in disciplinary terms, at the individual, and in biopolitical terms, at the population, its welfare, life, distributions and relations. See Foucault (2001b).

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distinctions and discriminations; the inside and the outside, the deserving and the undeserving, friends and enemies, and so on. However, in a late modern context of institutional complexity and the permeation of the seemingly extraordinary into the daily routines of life, the aim is to provide a rendition on the limit space between the extraordinary and the routine, the norm and the exception, practices of war on the one hand and those of security on the other. Foucault himself blurs these boundaries, but such a blurring is itself suggestive of monumental consequences for our understanding of the liberal state, liberalism as such, state-citizen relations, and the realm of the international as a distinct political/juridical terrain where the limit space is constitutively located in the ‘inter’ element. The Foucaultian Triptych We are all too familiar with this triptych – sovereignty, disciplinarity, biopolitics – and seek to somehow locate each form as it is enacted by the machinery of the state and on terrains where the boundary between the public and the private is not so easily discerned (Foucault 2003). The sovereignty of the state and the Schmittian imperative for decision seems to reinforce realist conceptions of the state as the ultimate authority, but come under heavy pressure when locations of sovereign authority somehow shift elsewhere, beyond the immediate reach of the state, even as the state seeks to retrieve aspects of authority and even legitimacy (Walker 2006a). Nowhere is this positioning process, this war of position, more clearly apparent than in the historic relationship between state and market, a relationship that is often somehow forgotten by scholars engaged with questions of ‘security’. Foucault himself regards this relationship as crucial, and engages with it in his lectures, though rather frustratingly, not in fully formed fashion. However, its significance for our purposes here is vitally important, for if liberalism has any core meaning, it is that its historic formation seeks exactly to reconcile the imperative of the territorial state to draw boundaries and to govern well-bounded societies with the imperative of the market to transcend such boundaries, even as markets and those engaging in them are historically intricately related to the state and its capacity to articulate sovereign power. There is much in normative discourse, specifically in liberal political theory, that seeks to establish liberalism’s underlying values, where these values are seen to constitute the meaning of liberalism as a moral and political project (see Rawls 1993). The ontological baseline is the Hobbesian and Kantian rational self capable of self-government and hence author of formations of government that exactly reflect this autonomous remit. While the Hobbesian and Kantian self remains the author of her destiny, the Foucaultian rendition on the liberal self has a historical/ structural starting point – in this case, it is the institutional matrix that is the source of authorship of the self-governing self. In this reversal of legislative capacities, the intricate workings of the state and its bureaucracies on the one hand and the

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market on the other come to define the technologies of control that constitute subjectivity in its individual and collective forms. The move towards the historical-sociological and away from juridical understandings of power, or indeed, of political community, allows exploration of questions relating to liberty and security as these are articulated in social and political life. Just as the notion of ‘security’ comes to be understood in terms of situated practices, so too liberty is appreciated in terms of discursive and nondiscursive practices. There is, in other words, a shift away from normative or metaphysical renditions on the subject, or even the idea that liberty is somehow a product of the sovereign edict ‘you will be free’. While the idea of ‘freedom’ as such can fruitfully be understood in terms of desire, a form of Deleuzian moment to come (Deleuze and Guattari 1977), when the conceptual starting point is the historical/structural, as it is in Foucault, then curiosity is raised in relation to the modalities of this starting point and the form that their articulation takes in situated contexts of lived experience. In a statement that has profound salience in the present context, Foucault asserts: We should not think of freedom as a universal which is gradually realised over time, or which undergoes quantitative variations, greater or lesser drastic reductions, or more or less periods of eclipse. It is not a universal which is particularised in time and geography. Freedom is not a white surface with more or less numerous black spaces here and there and from time to time. Freedom is never anything other – but this is already a great deal – than an actual relation between governors and governed, a relation in which the measure of the ‘too little’ existing freedom is given by the ‘even more’ freedom demanded. So when I say ‘liberal’ I am not pointing to a form of governmentality which would leave more white spaces of freedom (Foucault 2008, 63).

There is, in other words, no sense in which there might emerge a ‘balance’ between liberty and security. Rather, we might point to practices that define the limits of freedom in terms of security, as is so apparent in, for example, the treatment of migrants in the European context (Bigo and Guild 2005b). Nor is there ground for claiming that certain contexts and contingencies demand that greater liberties be accrued or, conversely, that liberty must somehow be trumped in conditions of necessity. Rather, liberalism as an ‘art of government’ generates freedom even as it assumes that a number of freedoms actually exist, as reiterated by Foucault. The art of government that is liberalism hence concerns itself with the ‘management of freedom’ and its organisation. For Foucault, ‘Liberalism must produce freedom, but this very act entails the establishment of limitations, controls, forms of coercion, and obligations relying on threats and so on’ (Foucault 2008, 64). As argued by Claudia Aradau (2008a; 2008b), ‘governing through freedom ... and governing through security’ should not be construed in oppositional terms, but are rather, mutually reinforcing.

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As Foucault makes all too clear, the paradox of liberal governmentality is that the production of the ‘free’ subject within this political economy is also conditional upon the government of the totality of life. The liberal society might hence be understood as the total ‘security apparatus’, engaged in the government of populations where such government includes a panoply of technologies directed variously at individuals and populations, seeking to shape and design modes of expression, identities, relationships, tastes, and even conceptions of what it is to be governed. The government of life, or biopolitics, to use Foucault, is hence the remit of liberal government institutionalized in a complex architecture incorporating bureaucracies of state and of supranational bodies such as the EU or the UN as well as a whole array of private agencies functioning as non-governmental organizations. The biopolitics of late modern life is hence not simply coterminous with the state, but works transnationally and across institutions, involving the public and the private sector; an architecture, in other words, that might involve agencies working locally, nationally, and transnationally, constituting what might be referred to as an international civil service at large. The architecture of liberal government reaches far and wide into all aspects of life, from the health of populations to their education, to their movements, lifestyles, interactions, modes of affiliation and the technologies of control are in turn sustained and reinforced by a complex network of surveillance practices that ultimately serve to shape and pacify, not, as is traditionally conceived, in necessarily repressive fashion. Rather, the ultimate function of liberal government is the production of a self-governing self capable of self-discipline and selfscrutiny, all within the limits of liberal government itself. These limits to liberal government are, more often than not, legislated by liberal government itself. When the historical trajectory of liberal government is read through Foucaultian lens, what we see revealed are the various modes of negotiation that seek to identify limits through inclusion and exclusion, through identification of the ‘other’ to liberal society, and through the cooption of the disciplines and the services into a terrain wherein the imperatives of state and market alike come to be at one, if often in rather contested fashion, with those of the rationality of government. This utilitarian picture is revealed when Foucault talks of the juridical self-limitation of liberal government, the political function of which is the negotiation of the ‘republic of interests’ or the ‘distribution of rights’ (Foucault 2008). The drawing of limits and boundaries might be read, as many authors do, in Schmittian existential fashion, a reading that, as Huysmans argues, assumes the collapse of the public sphere into the embodiment of sovereign power (Huysmans 2008). In the Schmittian perspective, limits are drawn by sovereign authority and are, as such, beyond contestation. The moment of the political is the decision that sets the existential limit, the boundary between friend and enemy (Neal 2009). Given contemporary political discourses surrounding the ‘war against terrorism’, it is not altogether surprising that Schmitt’s language appeals to scholars concerned with revealing the ‘darker side’ of liberal rule.

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Seen through a Foucaultian lens, however, drawing the limit is not simply an edict of sovereign power or of sovereign decision. Rather, a plurality of practices emerge, situated in a complex array of not necessarily connected locations, that might be seen as being complicit in modes of inclusion and exclusion that come to constitute the limit space, so to speak, of liberal governmentality. Liberal government is hence concerned at one and the same time with the production of freedom and its management, with the consumption of freedom and its limitation. The ‘principle of calculation’ that underpins liberalism’s capacity to manage freedom is ‘security’ and the ‘culture of danger’ which underpins liberalism’s capacity to govern (Foucault 2008, 67). This juxtaposition and mutual dependence of freedom and security has historically generated a complex set of procedures aimed at ‘control, constraint, and coercion’ which have historically come to constitute the techniques of discipline which Foucault famously highlights and biopolitical interventions aimed at the government of life as such. The biopolitical turn is hence not so much the end of sovereignty, not is it the end of disciplinary power, but rather as the culmination of the historical trajectory of the liberal art of government, a form of power that is all-pervasive and all-encompassing. This understanding of liberalism helps us to investigate the modalities of government in late modern European and global politics. A number of liberal theorists and others, Habermas and Derrida among them (Boradorri 2003), have in recent times, and specifically in the aftermath of the events of 11 September 2001, talked of what they refer to as the ‘idea of Europe’, representing as these authors see it, the traditions of the Enlightenment, the freedom of the individual, and right as the governing principle. This might well be the idea of Europe we might wish to foster. However, reading Foucault’s understanding of liberalism, the shift that takes place is away from the normative and towards the historical-sociological, where the focus is not on freedom as ideal, but rather on freedom as practice and the function of government as its management in all its manifestations, from the economic, to the political, to the personal. Such management calls forth practices that seek to govern freedom through the increasing permeation of surveillance and disciplinary techniques, having so pervasive a reach that government comes indeed to be the ‘government of population’. With this increasing sophistication, therefore, we can no longer assume a temporal trajectory of power in European society, but rather a conjunction of these different modes of power, from sovereignty, to disciplinarity, to biopolitics, defining the liberal art of government. As highlighted by Foucault, … we should not see things as the replacement of a society of sovereignty by a society of discipline, and then of a society of discipline by a society, say, of government. In fact we have a triangle: sovereignty, discipline, and governmental management, which has population as its main target and apparatuses of security as its essential mechanism (Foucault 2007, 107–8).

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The consequences for the state should therefore not be read in terms of the diminution of state power, but rather of its ‘governmentalization’, an articulation of power that is both internal and external to the state, and that is not necessarily territorially defined or even confined. Seen through a Foucaultian lens, therefore, liberty and security are not categories that might be conceptualized in terms that assume quantification and hence balance. Nor is it possible to dissociate practices of security as somehow exceptional to forms of rule. Rather, such practices are exactly constitutive of the liberal society conceived in terms of the all-pervasive government of life. How then does violence fit this picture of liberalism and the liberal state? Foucault perhaps comes to closer to a Schmittian reading of the exception when he conceives of the relationship between the state and other states in the international system. Having provided a picture that reveals the workings of liberal government, the realm of the ‘international’ is left remarkably untouched in his corpus. We do not, for example, see in Foucault’s work any reflection on the implications of the emergence of liberal governmentality in Europe for Europe’s engagements with the rest of the world. This is somehow paradoxical, or even short-sighted, when we consider that the trajectory of liberal governmentality came hand in hand with Europe’s colonial incursions elsewhere (Jabri 2007). When Foucault does venture into the international, the picture he presents is one that pinpoints the state’s capacity to enact exceptional measures when faced with danger to its survival. What Foucault refers to as the ‘coup d’état’ is not, as is conventionally understood, the condition of rebellion or sedition by one group within the state acting against another to affect a takeover of the state. Rather the coup d’état is conceived in terms of the exception – the capacity of the state to transcend the law – in order to ensure its own survival. The coup d’état is always violent and such violence is enacted in conditions of necessity (Foucault 2007, 262–66). Sovereign power is here interpreted in terms of the state’s capacity to use violence against its enemies in order to ensure the continuity of the state, ‘raison d’état’. What is surprising in this very realist (indeed Schmittian) reading of the state is that it remains unconnected to the rest of Foucault’s analytics of power, and specifically his picture of liberal governmentality and the governmentalized state where the law appears simply as another technology rendered in the service of liberal government. The following section seeks to focus on violence in its various forms and as enacted by the liberal polity. Crucially, it situates violence, not as the moment of exception, but as constitutively part of liberal governmentality, running through the interstices of life, targeting as does so both individuals and populations, both domestically and internationally, and in doing so, having profound implications for our understanding of liberalism, the liberal state, and the liberal polity. The picture that emerges is one that is far removed from normative conceptions of liberalism, as propounded by liberal political theory. Where liberal theory presents liberalism as the cradle of rights, respect for the rule of law, and above all, the autonomy of the individual self, elements seen by these authors as the mark of

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civilization over barbarism, the rendition provided here is one that reveals the underlying inequalities, conceived in hierarchical notions of subjectivity, that inform the liberal government of populations. As will become evident below, this hierarchical and hence unequal conception of the subject of liberalism has its constitutive parallels in relation to the government of liberty and security and the inequalities of distribution thereof. My argument is that it is exactly the racial division of populations that renders possible liberalism’s violence and its manifestations onto the global terrain. The Matrix of War The so-called ‘war against terrorism’ has, since the events of 11 September 2001, dominated political discourse across Europe, North America and the rest of the world. In terms of academic discourse on the subject, we might, with a cursory glance at publishers’ manuals, conclude that terrorism is in the contemporary era predominantly interpreted as a ‘problem’ relating to the ‘security’ of the West and hence requiring responses that directly address this ‘security threat’. The minority interpretation interprets ‘terrorism’ as a manifestation of conflict and hence requiring responses that recognise and address the underlying causes of terrorism as a form of violence. It is clearly the case that the former academic view is at once both reinforced by as well as being reinforcing of official renditions on terrorism, and remains as such the dominant view. Much official discourse represents the problematique in terms of a ‘balance’ between liberty and security and, more importantly for the present context, seeks to legitimize war and other practices of violence as serving the imperatives of security and liberty. Since the events of 11 September 2001, much has taken place, avowedly in the name of security, which has had profound impact on our understanding of liberal democracy and its political and juridical institutions. The immediate aftermath of these events saw the introduction into the legislative sphere of measures that enabled enhanced and increasingly intrusive surveillance techniques targeted at individuals and communities, the proscription of organizations deemed to have some association with terrorism, both domestic and international, and the incarceration, without due process, of individuals certified as terrorists. Such measures were especially apparent in the UK’s Anti-Terrorism, Crime and Security Act of 2001, passed through Parliament with exceptional ease and little scrutiny. That this piece of legislation was a landmark event is beyond dispute, in that it seemed to underpin the politics of emergency that came to take hold of political discourse, the role of the executive and the capacities of the legislature, judiciary and civil society to act as checks and balances in circumstances increasingly constructed in terms of necessity. While this particular piece of legislation was later overturned, specifically in relation to the incarceration of foreign nationals without due process, its other elements reappear in subsequent legislative measures

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aimed, in the executive’s discourse, to counter terrorism.3 The capacity to certify an individual as terrorist, or as potentially supportive of terrorism, remains with the Home Secretary, who retains the authority to incarcerate individuals based on secret evidence and in the absence of a trial. The so-called Control Orders resulting from this process may be issued to nationals and non-nationals alike. The immediate aftermath of the attacks on the World Trade Centre also witnessed the invasion of Afghanistan and the overthrow of the Taliban, seen as complicit in providing camp facilities and equipment to Al Qaeda and its operatives. Like the anti-terror legislation briefly described above, this action was also defined as a security measure, sanctioned by the UN, but clearly drawing on the military resources of the US, with the involvement of other European states. Again, like the legislative measures brought into the domestic setting, the war in Afghanistan saw other practices, specifically the incarceration of Afghan and other nationals in secret locations, and some not so secret, subjected to torture, and at times transported, again in secret, to other locations across the globe, including Guantanamo Bay. The story of Afghanistan and the subsequent actions, such as the incarceration of unnamed detainees at Bagram, Guantanamo and elsewhere, if often represented as one that is only applicable to the US and its forces. However, and again as a result of intense scrutiny in the judiciary and in civil society, we now know of the complicity of European partners in torture, incarceration without due process, and extraordinary rendition.4 The story of Afghanistan has evolved further, so that with the involvement of the International Security Assistance Force (ISAF) as a NATO force, and the resurgence of the Taliban, Afghanistan has come to represent the wider significance of the nexus between security and war, and the blurring of boundaries thereof. We might all too easily suggest, despite evidence to the contrary, that while the US is engaged in war, and declaredly so, Europe is engaged in the implementation of security. Nowhere is this differentiation more apparent than in discourses that claim a state-building function for European forces engaged in Afghanistan and 3 The Anti-Terrorism, Crime and Security Act (2001) was replaced by the Prevention of Terrorism Act (2005), subsequent to a ruling of the House of Lords in 2004. It repealed Part 4 of the previous Act, which enabled the detention of foreign nationals suspected of terrorist-related activity, and introduced ‘control orders’. The Terrorism Act (2006) addresses the question of training and the ‘promotion’ of terrorism, among other provisions. The most recent review of the legislative framework resulted in further provisions defined in the Counter-Terrorism Act (2008). For a full list of the UK’s counter-terrorism legislation, see . 4 See the report by Dick Marty on ‘Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states’, Parliamentary Assembly, Document 10957, 12 June 2006. The report’s summary starts with the following statement: ‘Our analysis of the CIA ‘rendition’ programme has revealed a network that resembles a ‘spider’s web’ spun across the globe ... it is only through the intentional or grossly negligent collusion of the European partners that this ‘web’ was able to spread all over Europe’. See .

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Iraq as distinct from what is seen as the US war machine. Such representations are however, all too simplistic renditions, suggestive of banal attributions of ‘soft power’ to Europe (Nye 2004). Irrespective of the intellectual poverty that underpins all such representations, the claim made in this chapter is that no such differentiation (apart from one that seeks to count military hardware) is evident when we use ‘war’ as an analytic of the practices highlighted above, so that every practice of security as such is underwritten by the elements of war, including the construction of enmity, the ‘othering’ and exclusion of individuals and communities through racialized and culturalized inscriptions of threat, and the concomitant profiling of populations (Jabri 2006a; Tsoukala 2008). War on the battlefield, collective punishment, torture, incarceration, extraordinary rendition, deportation, all-pervasive and intrusive surveillance operations, the profiling of individuals and communities through so-called stop and search operations,5 as well as a discursive terrain that reinforces and sustains an us/them scenario, are all indicative of liberalism’s engagement in war manifest in each of these instances and claimed in the name of security, now rendered in global terms. Even when looked at through so-called community cohesion policies and their associated discourses on integration and assimilation, what we see are a set of assumptions and discursive practices that clearly construct recipient communities as potential danger zones and, therefore, as potential terrorist recruits (Jabri 2008a). The securitization, for want of a better term, of entire communities, their iteration in terms of an existential threat, is perhaps one of the most blatant illustrations of the point I seek to make in this chapter – that war, conceived in Foucaultian terms, remains a technology in the liberal government of populations, both domestic and international. When war is conceived as a technology in the government of populations (Jabri 2006a; 2007), its meaning is evocative not just of battlefield contexts involving militaries, but has a wider application suggestive of enmity and antagonism; exclusion; the assumption of clearly defined socio-political boundaries; the association of enemies with existential threat; and the mobilization of material and discursive resources drawn upon in multiple locations that might be local, national, regional or transnational. The agencies that enact the discursive and non-discursive practices constitutive of war as a technology of control are not confined to states, their bureaucracies and armed services, but could involve local governments and their bureaucrats, police forces, intelligence agencies, universities, private security firms, international aid agencies and so on. This should not be taken to imply the existence of a coordinated plan of activity directed by a global sovereign, though some in the literature might suggest this. Nor should it be interpreted as being in 5 The disproportionate application of stop and search powers to South Asians, under Section 44 of the Terrorism Act (2000), is now so widely acknowledged that the Metropolitan Police has recently sought to racially ‘balance’ figures. See The Independent, 18 June 2009. For a statistical overview of the application of stop and search powers in 2006-07, see .

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possession of a clearly articulated liberal intention to transform societies. Rather, the conditions of possibility for such liberal governmentality and the place of war therein are at once both historic and structural. They are of the present and of an enabling set of continuities that are drawn upon by institutions and individuals alike. At the same time, the notion of intentionality should not be excluded from this analysis. There is intentionality in decisions to intervene in other societies – the wars in Afghanistan and Iraq are but two examples of a series of recent interventions – and such interventions have the expressed intention to transform other societies into modern democracies. There is intentionality in the bombing of targets in Pakistan, and this intention is the removal of the Taliban and its sources of support from Pakistan. There is intention in the introduction of antiterror legislation that seeks not simply to capture and incarcerate those suspected of terrorism, but to deter potential others. Practices of war are intended, but they should also be understood, as being structured into the workings of institutions and agencies. The extraordinary time of war come at the same time to be constitutive of the routine and the everyday, the neighbourhood and the battlefield, the university and the training camp. When practices of security are conceived in terms of the category of war, our attention gains a sharp focus upon the consequences for society as a whole and, importantly for the present context, for conceptions of liberty and security in the liberal democratic context, as well as globally in relation to what we mean by ‘international’ and how it is drawn and redrawn as a consequence of the practices described in this chapter. I have argued elsewhere (Jabri 2005; 2006a; 2007) that these practices are constitutive of what I have referred to as a global ‘matrix of war’, wherein war is no longer confined to the battlefield but permeates the social sphere, is drawn upon as a technology of control and regulation of populations and is manifest globally. The matrix of war is constituted, as described above, by a complex array of practices that range from interventionist war to incarceration and deportation, to torture and to state-building. They may involve states and their bureaucracies, international institutions, governmental and non-governmental organizations. Inspired by Foucault’s analytics of war, but taking these further into the realm of the international, the idea of a ‘matrix of war’ that I highlight conceives of war, as is apparent from the above discussion, as a technology of ‘government’, implicated in the discipline, pacification and management of individuals and populations across the terrain of the global, a terrain that is manifest both locally and internationally. In a late modern condition that is interlaced with the matrix of war, distinctions relating to the inside and outside, peace and war, security and war, policing and war disappear in a complex array of discourses and practices where the ‘political’ disappears into governmentalizing practices the remit of which is global in reach and defiant of limits, boundaries and distinctions. Importantly, boundaries do not disappear, but are re-inscribed upon the bodies of individuals and populations through every instance of violence, control and exclusion of the ‘other’, the enemy

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targeted in the name of humanity and its protection. The matrix of war is hence the ‘dark side’ of a liberal cosmopolitanism that seeks to redefine the global in terms of humanity at large. How practices are framed in discourse, and specifically the discourses of the academy, matter in terms of how we engage with the realm of these very practices, and how such engagement might at the same time be constitutive of critical intervention. The argument might be made that the practices I have highlighted are best described in terms of ‘security’ and not ‘war’. While the former are seen to permeate the apparatus of the state and supranational entities, applicable to microcosmic bureaucratic practices, from policing to the control of borders and the gathering of intelligence, the latter concept is traditionally applied to the battlefield context, with defined political enemies and targets, a defined duration of strategic conduct and resources suited to the achievement of eventual victory. The idea of a matrix of war seeks to locate exactly the microcosmic practices of security within a wider terrain of technologies that target an ‘other’, deemed a threat to society. Such targeting might well take place through military operations; however, it is not confined to such operations, as an array of dispersed practices is also implicated in exactly such targeting. While a security framing of the practices described might depoliticize the issues surrounding the targeting of particular sectors of the population, both domestic and international, the suggestion that such practices are constitutive of a matrix of war re-politicizes them. Such a repoliticization immediately recognizes that practices deemed to be necessary in the name of security can in fact be subject to contestation within the wider societies of intervening states and those targeted (Richmond 2005; Jabri 2007; Olson 2008 ). I have further argued that the matrix of war has a racial profile in that its practices rely at one and the same time upon invocations of humanity and the construction of the ‘monstrous’ or the ‘inhuman’, the enemy other against whom society must be defended. When war is deemed to be fought in the name of humanity, it comes to be conceived as limitless in time and space’, but also constitutively reliant upon the division of populations in terms of a racialized or cultural profile, even as a number of practices appear at first hand to have a general application (think of the introduction for all citizens of biometric identifiers). The so-called ‘war against terrorism’ is exactly conceived in generalized terms, limitless in time and space. However, its practices target a distinct other through military intervention, secret and not so secret places of confinement and torture, as well as the seemingly routine practices associated with the ‘government’ of populations, social cohesion, neighbourhood policing and surveillance, citizenship training programmes, and loyalty tests, all specifically targeted along racial and cultural grounds, even as the discourses of legitimization surrounding them suggest general application. Boundaries do not therefore disappear, but are perpetually re-inscribed upon the corporeality of those constructed as other, as enemies and as existential threats. Nowhere is this is more apparent than in the use of torture as an element constitutive of the politics of war. No longer confined to the secrecy of the interrogation chamber, torture aims its effects directly at its victim, but at the same

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time seeks a far wider audience, a community or population located beyond the immediate boundaries of the carceral structure, and a public sphere incorporating populations both proximate and distant. The late modern practice of torture, as we have come to witness it in the context of the war against terrorism, relies on this wider audience for its particular articulation of power. The infrastructural elements that generate this wider audience − the mass media, information technology and so on − at the same time generate the conditions of possibility for resistance against such practices. I have argued elsewhere that torture as a distinct form of violence relies on the inscription of the body, the distinct corporeality of the subject tortured, and the wider body politic, the community and population into which the tortured individual, if they survive, is thrown out (Jabri 2008b). War, Liberty, Security: A Set of Conclusions As European citizens, we have all come to recognize the practices that subject all to ever increasing intrusion, surveillance and concomitant control practices that we know have implications for how we live, interact and respond to the conditions that surround and form our lived experience. Apart from what are evolving to be all pervasive and permeating practices that seek to record and monitor all aspects of life, interaction and movement, other manifestations relate to what might be referred to as an hermeneutic of self-reflection, whereby the very self-understanding and self-definition of what it means to be liberal societies comes under increasing scrutiny from the very populations that liberalism seeks to govern. These populations are, however, divided entities so that the exact modalities of government have differential application where differentiation might variously be defined in terms of class, gender, race and culture, among other forms of discrimination. These forms often overlap and their iteration in itself comes to be constitutive of practices of government. Our curiosity is therefore raised as to how these categories of division are manifest, how they come to be articulated in discursive and non-discursive practices in situated locations, from the battlefield context to the neighbourhood, to the prison, the location of torture, the village targeted, the university setting and the schoolyard. What Foucault refers to as ‘dividing practices’ are in themselves technologies of government applied in different contexts including, for example, stop and search policing operations and surveillance targeted at specific ethnic and cultural groups. There is an overwhelming discourse that assumes a superior form of life that is a product of the European Enlightenment, that exemplifies progress and modernity, and that is universal in its remit and its appeal. That, in other words, everyone across the global terrain wishes somehow to have proximity to this universal aspiration, if not to actually inhabit it in the geographic actuality of Europe. This assumption underpinned the so-called ‘civilizing mission’ of the colonial era, and permeates the actuality and ethos of twenty-first century modes of colonization. They further inform practices that seek to exclude, not just on the basis of an

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individual’s standing and claims, but in terms of the ‘mass’, subjected not simply to forms of exclusion that simply deny entry, but to forms of treatment that reenact, once again upon European territory, practices that confine, incarcerate and deport, as well as practices whereby those targeted somehow have lesser worth. The categories of liberty and security are hence in themselves subject to the dividing practices discussed above, so that the pertinent questions to ask relate to the differential distribution of liberties6 and securities, and more crucially, how these are governed in relation to different sectors of the population. Liberalism, however, builds into its institutions the capacity to self-reflect, to self-scrutinize and to draw limits upon itself. Our curiosity is raised again, this time in relation to how these limits are drawn; how the institutions of liberalism are involved in drawing and institutionalizing the limits, whether through political or juridical means. Within the European context, human rights discourses are clearly formed and institutionalized; so clearly formed and with such precise application that the practices described in this chapter and elsewhere in the CHALLENGE project are often located on the ‘outside’, at the boundaries of what formally constitutes, for example, the EU, so that the confinement of others and their targeting through various means, somehow takes place elsewhere, even if this ‘elsewhere’ might also be situated within the boundaries of member states. Just as the matrix of war has a racial profile, so too the liberties and securities that are constitutive of liberal governmentality. As pointed out by Hindess (2008), there is the realm of liberal theory, that assumes liberty as being defined in terms of autonomy, and there is what he refers to as ‘actually existing liberalism’. The actuality of late modern liberalism has its antecedents in modernity and its paradoxes, the liberties and rights, not pre-given, but borne of struggle and contest in the European context, juxtaposed with colonialism and dispossession. Now in late modernity, these paradoxes have forms of manifestation that are, at once, of the present and the past, where the difference is perhaps one of the form that technologies of government take.

6 Detention centres for migrants, the use of airports in extraordinary rendition and legalized detention of terror suspects through the use of ‘control orders’ are but a few examples where the violation of the rights of others takes place within the European sociopolitical space.

Chapter 16

The Value of Security Peter Burgess

Introduction It nearly goes without saying that the attacks of 11 September 2001 changed the way we understand and communicate ‘security’ and ‘insecurity’ in Europe. First, in relation to the US-led ‘war on terror’, then, after the Madrid bombings of 11 March 2004, and again after the London bombings of 7 July 2005, Europe has embraced a new global discourse of security. However, security has not always been a central concern for European politics. Like many European things, the idea of security has had a unique history in this part of the world, bound to a certain set of traditions, a distinct historical experience and a repertoire of ideas, customs and values. At the moment of the birth of the EU, the threats to Europe were of a different kind than those we face today. The core issues that have marked European construction over the past 55 years have been dominated by economic concerns and largely organized by a kind of economic rationality. The EU that we see today was conceived and has evolved largely as a project of peace. With the horrors of the Second World War freshly in mind, the ancestors of the ‘European house’ formulated the basic idea that the only certain way to prevent future armed conflicts on European soil – and in particular between France and Germany – was not to shelter the nations from each other, but rather to integrate them. The path to that integration was economic. In this sense, Europe’s most clear historical enemy was not some external ‘other’, most commonly embodied today by the migrant, nor an internalized external other, that is the non-‘integrated’ migrant, but rather Europe’s own historical divisions. European ‘security’ politics in the early years of the EU’s construction was formed around the ‘insecurity’ caused by Europe’s own internal oppositions, cultural differences and historically shaped animosities. The quest for peace and security was based on a perceived need for overcoming these divisions. Is there something distinct in European history and culture with implications for how we confront security challenges? Is there a European particularity that makes the European experience of security and insecurity singular? What indeed is ‘European security’? What would it mean to say that Europe is insecure? What does it mean to say that Europe is threatened? Is it the subways, bridges and railways, nuclear plants and other buildings that are under threat? Is it the ships and harbours, the sea-lanes from the oil-exporting Middle East that are in danger? Is it the oil and gas installations in the North Sea? Is it Europe’s communications

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infrastructure that is exposed to attack? Is it Europe’s ‘borders’ or its political leaders who are endangered? Or do threats concern something else, something more fundamental? The challenge in answering questions lies in our basic understanding of what threat is, what predicting it means and what special challenges are brought by the new era of transnational terrorism. The purpose of this chapter is to argue that security is a fundamental question of value, that the new security challenges faced by Europe are not merely technological challenges of the kind we associate with improved surveillance, reinforced border protection and other kinds of fortress measures. Rather, the challenges emerge from the meeting between the human values that make European life what it is and the security technologies required to secure it. What are Values Good for? European values are widely evoked in official EU documents, political debates and, not least, in the discourse of security. And yet there is little clear consensus about the concepts content and reference. What are the values that are apparently so central to the European project? How is it that European values have evolved to play such a central support role in the constitution of the European security landscape? An essential starting point for answering these questions must lie in the EU’s official self-constitution as founder and purveyor of values. In the pages of the draft Treaty for a European Constitution, the centre-piece of European self-constitution, we can isolate at least six types of linkages between European values and the institutional activities carried out in their name: identity, general purpose, unity, membership, rights and security. Even though they emerge and are applied across a wide range of fields and through a variety of modes these linkages are for the most part described as empirical phenomena. Already in the formal sections of the draft Treaty declaring the existence of the EU, the values of the Union come in to play as the foundation for European identity. The paragraph on the ‘Establishment of the Union’ in Article I - 1 of the Draft Treaty described these values in the following way: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of person belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The ‘establishment’ sequence of the draft treaty positions ‘values’ as both the foundation of the European project and the key to group identity. It is the characteristic all member states share and embody in the European project. In a similar vein, the Preamble to the draft Constitution, a page earlier, describes similar values as a source of ‘inspiration’ for the European project: ‘Drawing

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inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’. In other words, values play an essential, foundational role in the constitution and motivation of the EU. Still values, in the perspective of the European project, do not only linger and luxuriate, they are also objectives. The following paragraph of Article I specifies among the ‘objectives’ of the Union, ‘… to promote peace, its values and the wellbeing of its peoples … In its relations with the wider world, the Union shall uphold and promote its values and interests’. Values, in a sense that nearly contradicts the foundational perspective, are the target of the Europeans, are here seen as the objective or finality of the European project, not the place from which it comes, but the place to which it is going, the aim and mission of the Union. From a more practical point of view, the European’s intergovernmental dimension brings values to an applied role. It is to be expected that the workings of the European Council are to be guided by the promotion of shared values (but it must be said) in Articles I - 40 and I - 41. Member states shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene: ‘… the Council may entrust the execution of a task, within the Union framework, to a group of member states in order to protect the Union’s values and serve its interests’. The European values also function as a kind of gatekeeper for entry into the EU. Title IX describes the conditions for membership to the EU: ‘The Union shall be open to all European States which respect the values referred to in Article I - 2, and are committed to promoting them together’. It also specifies the grounds upon which exclusion may take place: ‘… the Council may adopt a European decision determining that there is a clear risk of a serious breach by a Member State of the values referred to in Article I - 2’. Perhaps most naturally, the European values are closely associated with its charter of rights. The annex containing the Charter of Fundamental Rights of the Union describes at length the prescribed European rights, based on a common set of values: The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values … Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law, It places the individual at the heart of its activities, but establishing the citizenship of he Union and by creating and area of freedom, security and justice … The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national

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identities of the Member states and the organization of their public authorities at national, regional and local levels.

Finally, the notion of values is associated, in the draft Constitution, with the enterprise of European security, formulated as foreign policy. In the first lines of Title V on the EU’s External Action: ‘The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to [among other things] safeguard its values, fundamental interests, security, independence and integrity’. The safeguarding of values is thus nearly line one of the determination of the External Action, the fundamental priority of foreign policy. The notion of the assertion of the values of the European was already declared as the aim of EU foreign policy, for example in the Title V, Article 12 TEU: The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be [among other things] to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter.

This constellation of values and security is also formulate in the 2003 ESS, ‘A More Secure Europe in a Better World’, which describes the strategic objectives necessary to ‘defend its security and to promote its values’. How, then, is this complex and deeply-rooted notion of values linked to the security threats that Europe is thought to face in the present and coming time? To answer this question, we must look more closely at the nature of threat itself and its link to values in general. Threat and Social Value What is a threat? A threat is not simply an unknown danger lying in wait, ready to be launched upon us in some unknown way at some unspecified time. Threat is not incidental or accidental, or at least not entirely so. Nor is the effect of a threat independent of those targeted by it. Threat is not determined by others alone. It is co-determined by those who are under threat. Threat is implicitly linked to what has value for us. It is linked to the possibility that what we hold as valuable could disappear, be removed or destroyed. Objects of no value cannot be threatened in the same sense as those that do have value. Therefore, the key to understanding threat lies in understanding the systems which link human interests, values and things. Then, what is the threat of a terrorist attack? Terrorism goes well beyond targeting what has value. It aims in addition to produce a signal effect of meanings from the very insecurities we already possess, insecurities that lie deep within

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the psyche of our societies. These insecurities often have their origins from other contexts, from other times. They breed and mature in the collective imaginary and culture. They have their roots in both past events and current vulnerabilities. Insecurities are caused both by the real, objective presence of threat and by the very effort of out authorities to protect us from threat. How are value, threat and fear linked? The ideal terrorist act tries to find the fit between what we value, the fear of its loss implicit in that value and the political interests sought by those who carry out the act, though this link is never perfect or ideal. While infrastructure experts know and understand technical weaknesses in infrastructures, threat analysis must also take into account the human dimensions of loss associated with these infrastructures. Naturally, this includes the consideration of how our lives would be practically changed by the death of citizens or the destruction of institutions, buildings or infrastructure. However it also includes the consideration of how our lives would be changed by the fear and insecurity created by such events, and how such fear asserts control on our lives and implants insecurity into our relation to both other potential targets and other aspects of our daily existence. In other words, it is not the disrupted train services or oil production, and not even the poisoning of a local water supply in themselves that are significant for the terrorist, as horrible as these things may be. Rather, it is the loss of confidence in rail service, oil production, water supply and in infrastructural services in general. It is not the reality of a computer virus in itself that we have to fear and that a terrorist might use as a tool, but rather the fear of the release of a virus, the presence of a kind of symbolic virus, the contagion of insecurity, which disseminates distrust and fear, both in the world of private commercial services upon which the European society is organized, and in terms of international trust and faith in a globalized market system. Nonetheless, it is in the meeting with these material values and the threats against them that the intangible values of the European project are validated. This validation is nowhere so distinct as it is in the preparation of a political response to the threat against European critical infrastructure. The European Response to the Threat to Critical Infrastructure The concepts and principles that form the basis for the project to protect critical infrastructure in Europe are set out in the Commission Communication ‘Critical Infrastructure Protection in the Fight against Terrorism’.1 It is here that officials first begin to grapple with the challenge of defining the criticality of critical infrastructure, of understanding what threatens it and formulating approaches to protecting it.

1 European Commission, Critical Infrastructure Protection in the Fight against Terrorism, COM (2004) 702 final, 20 October 2004.

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The communication begins with the assumption that motivates the entire project of confronting terrorist threat, namely that ‘the potential for catastrophic terrorist attacks that affect critical infrastructures is increasing’. The political climate of our time, in the wake of both the previous attacks on the US and Europe and the US led war on terror, has increased the likelihood of attack. A subset of such potential attacks either target critical infrastructure or carry secondary effects for them. But what additionally makes the communication’s fundamental assertion more true and perhaps more essential for the well-being of European society is the reality that Europeans, to varying degrees across social, cultural, religious and geographical boundaries, are increasingly dependent upon high-technological infrastructures, first and foremost internet and telecommunications. Infrastructures by very nature are interconnected, ‘synergistic’, as the communication points out. They link other facilities, other kinds of physical installations across broad geographical spaces. They are also synergistic in terms of the way they join different segments of society. Infrastructures traverse any number of sectors of industry, different zones and levels of local, regional, state and inter-state economies, different layers of the life of individuals, cultures, and societies. This is already the case at the national level but, given the cultural variations across national borders, it is even more relevant at the European level. There is also variation across the different types of infrastructures covered by the strategy. The notion of ‘critical infrastructure’ is itself defined in the communication as ‘… those physical resources, services, and information technology facilities, networks and infrastructure assets which, if disrupted or destroyed, would have a serious impact on the health safety, security or economic well-being of citizens or effective functioning of governments’. The understanding of critical infrastructure is necessarily negative. What is in essence critical about critical infrastructure is based on what may be the result of the critical infrastructure being lost or damaged. It is the scenario of the absence of resources, services and facilities that creates their value in the effort to prevent their destruction. Yet the meaning of such absence or loss is highly variable, not only across the variety of social settings where such disruptions are more or less variable, but also across the different types of infrastructures, as they are set out by the official documents. According to the Commission’s communication these substantial types are: energy installations and networks; communications and information technology systems, including software, hardware and the Internet; finance and banking facilities; health care facilities such as hospitals and research facilities; pharmaceutical production; means of food production and distribution, water storage and delivery; transport facilities, such as airports, sea ports, railways transit networks; production, storage and transport of hazardous goods and government services. The variety of types of critical infrastructure leaves one at pains to generalize about their common characteristics in technical or structural terms. Yet what links them all is their transformability into something of value for a society and a culture.

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In addition to the list of substantial critical infrastructure installations, the Commission’s communication also identifies a set of relational aspects of critical infrastructure. These are scope, magnitude and effects of time. These three ‘measures’ of the criticality of critical infrastructure essentially plot the overlapping spheres of value and threat. ‘Scope’ refers to the geographic area that would be affected by loss or unavailability of the infrastructure. It thus measures both actual physical interconnectedness of installations in different geographical areas, but also the economic and social interconnectedness of the areas. The physical overlapping of spheres implies a social interdependency as well. ‘Magnitude’ is meant to measure the degree of weakening or collapse of one infrastructural installation as a function of the other. It is thus another measure of interconnectedness, one which considers the ‘vertical’ penetration of influence, a depth-version of measurement of the value of the infrastructure in one sector of society (civil, economic, cultural, environmental and political) relative to another. Lastly, effects of time is also a measure of the social and cultural resilience of infrastructure. It does not measure the time necessary for replacing potentially damaged infrastructure, but rather the ability of the social function to re-establish itself by the same means or by other alternative means. Thus it measures a kind of culturally determined flexibility, taking into account the emotion and psychological effects of the damage. These socially and culturally determined qualifiers of infrastructure vulnerability provide the basis for what the Commission’s communication calls security or risk ‘management’: ‘the process of ‘understanding risk and deciding upon and implementing actions to reduce risk to a defined level, which is an acceptable level of risk at an acceptable cost’. Risk, like the anticipation of attack or damage by natural cause, is based, to an important degree, on perception of danger, assessment of value and consideration of likelihood. It is not solely a function of calculation but rather also of understanding. It has a socially, culturally and even religiously determined character. In other words, it involves intersubjective reactions to interdependent physical structures. The exception may of course be reactions to the Internet understood as critical infrastructure. Although it exists as a complex physical infrastructural installation, its existence for most is more or less imaginary. And though most have become accustomed to interruptions and slowdowns, the prospect of a total breakdown approaches the unthinkable. Ironically, the Internet was first conceived in the 1960s as a communication system that could withstand nuclear attack (Castells 1996, 45). Towards a European Programme for Critical Infrastructure Protection (EPCIP) The European Council of 17–18 June 2004 followed on its Declaration of 25 March by emphasizing the urgency of acting in a number of priority areas, in particular intelligence and the exchange of information. The Commission was asked to prepare an ‘overall strategy to enhance the protection of critical

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infrastructures’.2 In its meeting of 4–5 November 2004, the European Council affirmed the Commission’s intention to propose both a European Programme for Critical Infrastructure Protection (EPCIP)3 and a Critical Infrastructure Warning Information Network (CIWIN)4 at the same time as it approved the EU ‘Solidarity Fund’5 and the Commission’s communication on ‘Prevention, Preparedness and Response to Terrorist Attacks’.6 The 2004 Commission’s communication concludes by announcing a plan to enhance the EU’s ability to protect critical infrastructure though the institution of a European programme for critical infrastructure protection The document defines the EPCIP as ‘A programme to provide enhanced security for critical infrastructure as an ongoing dynamic national partnership among EU institutions, critical infrastructure owner/operators and EU member states to assure the continued functioning of Europe’s critical infrastructure’. In addition, the communication proposes the organization of a CIWIN, which is defined as: ‘… an EU network to assist Member States, EU institutions, owners and operators of critical infrastructure to exchange information on shared threats, vulnerabilities and appropriate measures and strategies to mitigate risk in support of critical infrastructure’. The coupling of the two programmes, one for the protection of transversal installations and structures, the other for transversal communication expresses the need for interaction across a number of spheres. Transversal communication is not only among the technical needs to assure the effective coordination of critical infrastructure protection, it is also among the very objects of the protection (the various forms of communication and synchronization necessary to give the EPCIP its desired ‘transboundary’ effect will also include protection of the CIWIN). As we have already indicated and will further explore below, it is precisely the transversal dimension that presents the greatest challenge to the coordination of critical infrastructure protection, both on the technical/security level and in terms of the institutional support necessary to make sense of a variety of infrastructure installations across a variety of domains and social, economic and cultural settings. This is because the transversal axes that link similar or identical installations do not necessarily link identical risks. In this sense the shift in the Commission’s 2 Presidency Conclusions, European Council, Brussels, 17–18 June 2004, in Bulletin EU 6-2004, retrievable from . 3 See footnote 2. 4 European Commission, Proposal for a Council Decision on a Critical Infrastructure Warning Information Network, COM (2008) 676 final, Brussels, 27 October 2008. 5 Council of the EU, EU Solidarity Fund on the consequences of terrorist threats and attacks, 15480/04, Brussels, 1 December 2004, retrievable from . 6 European Commission, Prevention, preparedness and response to terrorist attacks, COM(2004) 698 final, Brussels, 20 October 2004, and Presidency Conclusions, European Council, Brussels, 16–17 December 2004, in Bulletin EU 12-2004, retrievable from .

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communication from the concern for horizontal variation in the nature and intensity of risk and threat to the physical and financial similarities between linked installations is reflected again in the EPCIP Green Paper of November 2005. Like so many interstate affairs that fall under the aegis of the EU, the institutional challenges of critical infrastructure are considerable. The 2004 Communication evokes the well-travelled notion of subsidiarity, noting the practical impossibility of protecting all infrastructures by ‘European level measures’ and underscoring that a number of directives and regulations already exist at the European level and that any further action must take the form of assistance to the industry and member state governments. Consistent with the principle of subsidiarity, it constitutes yet another Commission proposal with the aim of enhancing harmonization, coordination or cooperation, but leaving national infrastructures to the responsibility of the national agencies and private owners. What information can and should be shared between member states? On what terms and under what conditions can information about critical infrastructure in one member state, or in one locality or region, for that matter, be relevant in terms of protecting infrastructures in others. To what degree and in what sense is information about threatens to the electrical supply in Portugal useful and transferable to authorities as close by as southern France? Yet the associability of the two cases is clearly limited. And no doubt that associability will have its most comprehensive effect in one domain in particular: the transferral of the image of vulnerability and fear. In other words: the successful execution of terrorism. On 13 April 2005, the Commission established the framework programme on ‘Security and Safeguarding Liberties’ (2007–2013)7 containing a programme for the ‘Prevention, Preparedness and Consequence Management of Terrorism’. One month before the July London bombings, the Council approves the revised Action Plan on Terrorism8 explicitly announcing the intention to establish a general strategy for a programme for protection of critical infrastructure ‘with potential trans-boundary effects’. Finally, following the London attacks, the Council issues a ‘Declaration on the EU response to the London bombings’ in which it reaffirms its commitment to establishing a European Programme for critical infrastructure protection. When the Council sums up progress on the EPCIP in October 2005, it underscores the same need: ‘There is recognition that Member States have ultimate responsibility of managing arrangements for protection of critical infrastructure with their national borders’.9 The political motivation within the Commission and Council is thus solid 7 Communication from the Commission to the Council and the European Parliament establishing a framework programme on ‘Security and Safeguarding Liberties’ for the period 2007–2013, COM (2005) 124 final, Brussels, 6 April 2005. 8 Council of the EU, Revised Action Plan on Terrorism: Update June 2005, 10694/05, Brussels, 27 June 2005, retrievable from . 9 Council of the EU, EU Critical Infrastructure Protection (CIP), 13882/05, Brussels, 28 October 2005, retrievable from .

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and the events make the need for a strategy for critical infrastructure protection no less imperative. After two consultation seminars in the autumn 2005, the Green Paper on EPCIP10 is released. The aim of the EPCIP, as formulated in the Green Paper, is ‘to secure that there are adequate and equal levels of protective security on critical infrastructure, minimal single points of failure and rapid, tested recovery arrangements throughout the Union’. The paper itself takes the form of a set of questions with the aim of obtaining feedback. Like most key documents, the EPCIP Green Paper stands and falls upon its concept and definitions. The political process of developing the EU doctrine on critical infrastructure, which we have briefly charted here, develops a consistent set of definitions, beginning with the basic definition of ‘critical infrastructure’ set out in the 2004 Commission communication ‘Critical Infrastructure Protection in the Fight against Terrorism’ mentioned above. Yet whereas the CIP document of 2004 attempts to provide an exhaustive list of nine concretely related critical infrastructures, the EPCIP Green Paper does not limit the notion of infrastructure to the material objects or facilities from whose loss we might suffer. Instead, it further differentiates three types of ‘infrastructure assets’. This way of forming the conceptual matrix of the EPCIP is prudent. Given the challenges of interactivity, synchronization and harmonization, the concrete differences between infrastructures, and the variation between the criticalness of these infrastructures is formidable. By focusing on the ‘assets’ provided by infrastructures one can more adequately reach their socially and culturally underlying value and thereby begin to understand the meaning of threats to them. Firstly, ‘public, private and government’ assets are variable according to member state governmental structures, political structures and overall makeup of the national political systems of government, in addition to local infrastructural facilities, geographical and economic settings, reach, intensity of use and dependency on internet and so on. Second, the structures of private and public ownership of infrastructure facilities depend upon state and regional laws, regulations and norms, and the particular level of saturation of infrastructure by agencies of control. Lastly, and perhaps most neglected in earlier conceptualizations of the critical infrastructure protection, are the ‘objects having cultural or political significance’. The EPCIP Green Paper thus seeks in its way to take hold of the reality that critical infrastructures do not only include physical installations, oil platforms, railroads, pipelines, generator stations and so on, but also the somewhat less material or physical items that support them or which, as the case may be, are independent of them. These are the networks of socially and culturally determined values which preceded, presupposed, surround and help to operate the heavy physical installations. They are the ‘procedures’, the knowledge-based principles 10 European Commission, Green Paper on a European Programme for Critical Infrastructure Protection, COM (2005) 576 final, Brussels, 17 November 2005.

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of operation, as well as the knowledge itself which form the basis of the existence and operation of critical infrastructure. This also includes the norms and standards of operation on which such operation is based. It is important to underscore the degree to which this third kind of critical infrastructure overlaps not only with the other two ‘assets’ but with the first category of critical infrastructures, the heavy installations. Indeed that one type of critical infrastructure cannot be distinguished from the other. All critical infrastructures have cultural and political significance. That is what makes them critical. There is no critical infrastructure that does not have cultural significance. Or rather an infrastructure that does not contribute in a broad sense to creating or transforming social, cultural and political value is not critical. Moreover, this is the very reason why it is under threat. The threat to Europe’s critical infrastructure is not, or not totally, to be derived from the economic value with which it is associated, not because of the economic value of oil, electricity, service, information it delivers. The distinction between critical infrastructure, on the one hand, and ‘infrastructure assets’ formulated by the Green Paper, which have ‘cultural or political significance’, on the other, is a false one. The cultural and political significance of infrastructure is precisely what makes it critical. All critical infrastructures have cultural and political significance. Indeed it is not the objective or material value of any given installation that makes it an interesting target for terrorist attack, but rather its cultural and political valence. Its value springs from its ability to generate cultural and political meaning. Indeed my suspicion is that targets with higher social, cultural and political value may actually be more attractive to potential attackers than the more apparently vulnerable ones. The threat of terror thus should rightly open a debate on values, about what is valuable and valueless, about what is dispensable and indispensable. What is value and how do we measure it? Conclusion: Material and Non-Material Value Clearly, there is a wide range of theories of value.11 For our purpose, we will simply differentiate between an economics-based notion of value and a cultural or social notion of it. According to neoclassical economics the value of an object is equal to the price it would bring in an open market. It is the worth of something relative to the other things. Historically, the debate on economic value has revolved around 11 Perhaps not surprisingly, the classical modern concept of value emerges from the experience of the First World War (Joas 2000, 34–6) though the basic questions to which it responds are formulated in the texts of Nietzsche, Freud and Marx. By opening the question of values, we are touching upon a lively and important contemporary debate originating in Nietzsche’s The Genealogy of Morals (1887). The classical, sociological positions to which we refer originate in Simmel (1989) and Durkheim (2004). See also Joas (1997) and Mesure (1998). For a general overview, see Edel (1988) and Kuhn (1975).

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the degree to which things have intrinsic value, and such value can be added or transformed. According to the more culturally or socially based conceptions of value, the value of an object is based upon the particular quality that makes it valuable, which can be either principles or standards that are socially accepted or moral ideas about what is good and right. Thus in social terms it is not the materiality of threat that determines its value to society and thus to terrorism, it is rather the social, culturally determined ideas of value, historically, geographically, environmentally, and also economically determined standards and measures. It is therefore not sufficient to refer solely to material or economic measures of value when considering critical infrastructures. The value-based nature of security and insecurity has contributed to a fragmented evolution in European approaches to the challenge. The adaptation of European institutions to this new reality has been difficult, thwarted by the wide variations in cultures of law enforcement, border control, intelligence and diplomacy and, not least, new cultures of fear and prudence. This shift to a new security environment has, at the same time, brought about a shift in the focus areas of security thinking in Europe and, accordingly, a retooling of the roles of security institutions, the scope of their responsibilities, the partners they work with, the regimes of international rights they answer to and the source and nature of the threats they are confronting (Bigo 2000; Grabbe 2000; Boer and Monar 2002; Haack 2006). This new security continuum of internal and external security has created a novel situation whereby concepts and institutional arrangements traditionally aimed at internal security challenges (police, national and local information and administrative authorities, social agencies) become increasingly challenged to address matters traditionally reserved for the external security professionals (military and international police forces, foreign affairs officials, international legal agencies and diplomatic corps) while the latter are increasingly required to deal with matters reserved for the former.

Chapter 17

Delivering Liberty and Security? The Reframing of Freedom when Associated with Security Didier Bigo

Introduction One of the main assumptions in liberal democracies shared both by experts and professionals of security (such as police, intelligence services, customs, immigration services, border guards and the military) after 11 September 2001 has been that security is a core value threatened by ‘global terrorism’. Security is about the protection of the individual, but also of the collective self, of the nation state. Security becomes intrinsically intertwined with survival. This was already the case during the Cold War, but in present times these assumptions claim that it is even more critical. According to them the world has changed, and a small group of ‘terrorists’ with weapons of mass destruction might be targeting a city or an entire country. From this first assumption of a radically new era in which the state cannot pretend anymore to have an effective monopoly on violence, a second assumption according to which security is first, liberty is second has emerged.1 In addition, security is about life and death, about survival, and the conditions of life depend on the existence of life itself. Therefore, liberty and democracy as conditions of life are consequential and derivative, as they depend on security for life to exist. Many academics from structural realism have supported these views, which Morgenthau and Raymond Aron had already suggested back into the 1960s. This literature has advocated that after 11 September 2001 we are facing a new era putting an end to the supremacy of state actors, and giving way to a global world of violence and insecurity; a world that forces states to collaborate among each other and to move beyond purely nationally oriented interests. States have promoted a supranational interest to respond to their local violent contenders globally. This specific combination has diminished the national sovereignty argument in favour of one calling for global security and it has created a certain consensus among the realists, globalists and neo-conservatives. If anyone dares to challenge the discourse of a global insecurity after 11 September, they will be accused to be unconscious about current ‘dramatic changes’. Any opponents of the security first argument, 1 See Bush (2002); Buzan (1991); Coker (2002); Etzioni (2007); Gips (2003); Harris (2002); Hoffman (2002); Lamm (2002); Shultz and Vogt (2003); Tenet (2002).

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coined by Etzioni, will be considered to be ‘idealists’ or, even worse, accomplices with the new enemy: ‘the home-grown terrorist’. Professionals of security are often more direct in their comments. Some professional of politics have often threatened the civil liberties of religious minorities and certain NGOs at times of treating them like allies of ‘the terrorists’. This security strategy however creates more insecurity. By choosing who is to be protected and who is to be targeted, this kind of narrative forgets that a small part of those being targeted could mobilize and engage into physical violence, and therefore lead to more insecurity. They also neglect all the lessons learned from the Cold War about escalation and de-escalation. At times of addressing the discourse according to which ‘security goes first’, a large group of academics, NGOs and ‘enlightened’ professionals of security have insisted on the exaggeration inherent to ‘the novelty discourse’ and of the threat of WMD terrorism after 11 September. They have alluded to the necessity to address the debate from the perspective of democracy and have warned that actually a ‘maximum security’ argument will succeed to destroy the very democratic principles that are intended to be protected in first instance. These voices have also insisted about the need to consider democracy and individual freedoms as the main objectives and premises of life, and that security measures and practices must not endanger liberal democratic principles in order to avoid falling into a totalitarian or a surveillance state. Instead, one of the predominant arguments that have been more often used is that of the balance between security and liberty. The focus has been put in ascertaining what amount of additional security is necessary to preserve liberty. How far or to what extent can this ‘additional security’ infringe individual freedoms? (Den Boer and Monar 2002; Cannistraro 2003; Powers 2003; Etzioni 2004; Darmer et al. 2005). Does the state have the right to argue about danger, risk and emergency in order to use exceptional measures for ‘exceptional times’ or to develop the idea that a ‘balance’ is necessary between fundamental freedoms and security? (Balke 2001; Agamben 2002; Dillon 2002; Bhuta 2003; Byers 2003; Huysmans 2004; Diken and Lausten 2005; Jabri 2006a; Monod 2006; Walker 2006a; Aradau 2007; Bellamy 2007). What freedoms can be limited and which ones cannot because of their centrality to democracy? Are the rights to life and protection against torture absolute so that no worst-case scenario can infringe them? Do we need an offensive, defensive or preventive strategy in relation to security? (Brown 2003b; Record 2003; Dershowitz 2006; Mowle and Sacko 2007 ). The ways in which this debate has been developed might well illustrate why the IR literature has been mainly focused on discussions about security, risk and exception and − marginally − on their consequences on freedom, but not so much on freedom itself. Indeed, the question of what we mean by freedom − or by liberty – has been left so far unquestioned. This is evidenced by the fact that while there are several security studies, and even critical security studies, there are no ‘liberty studies’.2

2 For an approach to the tensions between security and liberty, see Bigo et al. (2008) and Waldron (2003).

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This chapter aims at overcoming this gap by analyzing the most sophisticated and serious arguments that have been put forward about democracy and freedom. Our analysis leaves aside those academic voices claiming for ‘the security first argument’, which have facilitated the emergence of a sort of paranoid scenario of world politics. The chapter begins by insisting on the importance of the social practices of liberal democracies, which imply that freedom, equality, accountability and transparency are fundamental factors. The ‘real world’ should not be understood as a cynical use of power by the state, but rather in relation to the daily political judgements about democracy, change, order and violence that we are obliged to do everyday as citizen and human beings. The first part of this chapter assesses the use of the terminology of security and liberty and their association through the notion of a balance between the two terms by most of the IR specialists. As we will argue, this ‘balance metaphor’ nuances a proper understanding of our contemporary times and constitutes a concept as dangerous as ‘the security first argument’ due to the reframing that it creates of the notion of liberty. The implications of the use of the balance metaphor is the fragmentation of liberty and the expansion of the notion of security to many different forms presenting at times contradictory meanings. In the second part, I will demonstrate how the debate about our condition as citizens and human beings, which has predominated most prominently in the Bush administration but also in other venues, has not been so much structured along the lines of terror, fear, risk and exception. On the contrary, it has rather focused on the reframing of the notion of freedom. A critical reflection about this element becomes especially crucial when taking into account how the current Obama administration is criticizing ‘exceptionalism’ but it is continuing with the same argument about freedom. In order to illustrate this reframing of liberty by the different professional actors of security and politics, I will come back to the contemporary debates in the last six years and the different strategies of reframing the understanding and practices of freedom, which often go beyond a discussion about security and insecurity, and their effects. The third part of the chapter takes a different point of departure from the one traditionally driving IR literature and addresses the question of the practices of freedom. By doing so, I will propose an alternative methodology to the eternal philosophical and essentialist view of liberty. This methodology relates to a certain way to practice history and sociology, and is mainly borrowed from Paul Veyne and its analytics of practices. Balancing Liberty and Security? This section starts by assessing the way in which those ‘security studies’ sensible to the question of liberty have dealt with the relationship between liberty and security, and argues that a more direct discussion about freedom is needed in IR. In our view, the discussions taking place after 11 September 2001 have been mainly oriented towards the right for governments to strengthen coercive and surveillance security

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measures both externally and internally. The argument was justified around the necessity to cope with an apparent high level of threat following up the bombings in the USA, and especially the destruction of the twin towers and the anthrax scare (‘hyper-terrorism’). On the 13 September, the US Congress unanimously accepted to give to the President full power to pass special legislative measures equivalent to wartime. The precise scope and content of that power were debated only later on. Some have considered that the Bush administration went beyond any delegation of power in the name of a state of exception. Others insisted on the emergency dimension or that the Bush administration has just overstretched the legal rules already existing, and has minimally used the possibility given by the framing of 11 September 2001, not as bombings but as ‘attacks’, as ‘first strikes by an enemy in a war on terror’. The initial violence of the bombings and the public response taken by the US government, as well as its proportionality and legitimacy, has been also under scrutiny. Some of the voices supporting the government insisted that the exceptionality of the measures was necessary in order to avoid a complete destruction in the future. The image of a suicide bomber with a nuclear device in a backpack announcing the Apocalypse fed this kind of belief inside the administration. If so, security had to trump any other fundamental democratic values, including that of liberty, because collective survival was the one at stake. ‘What is the value of freedom if you are dead’ became a motto for many US civil servants (from the Department of State, the Pentagon, the Department of Justice and the Department of Homeland Security) interviewed in the context of the research conducted under the CHALLENGE project. A similar argument proliferated at the transatlantic level, but perhaps more as a rhetorical device. Continental Europe, especially France, Italy and Germany, which had already the experience of political violence by clandestine organizations in their national arenas, were less inclined to follow the path of ‘the war on terror’ (Bigo 2001b; Hershberg and Moore 2002; Guittet 2006;). UK and Australia (yet not Canada) were immediately in agreement with this insecurity framing of unprecedented events and a ‘new global era’. They accepted that the most appropriate answer to the exceptional times was exceptional rules. The UK asked for derogations concerning articles of the ECHR, while the Australian and the US administrations played out a more Schmittian strategy. The academic literature addressing these issues has been substantial, even if not much attention has been given to a systematic analysis of the different administrations in charge but too often limited their assessment to the most emblematic or exaggerated phrases given by certain politicians or civil servants.3 In a more systematic way, and especially for the case of Europe (though not only), 3 See Balke (2001); Agamben (2002); Dillon (2002); Bhuta (2003); Byers (2003); Huysmans (2004); Diken and Lausten (2005); Jabri (2006a); Monod (2006); Walker (2006b); Aradau (2007); Bellamy (2007). See also Vander (2002, 152–66); Diken and Lausten (2004, 89–113); Lindstrom and Schmitt (2004).

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the CHALLENGE project has conducted an interdisciplinary study and a mapping of the different discourses from the various administrations, their common sense (or ‘doxa’), the distinctive deviations of their senses of priority and the articulation of the main justifications backing up their role and missions.4 Each bureaucracy has developed specific lines of argumentation and strategic reasoning. The Pentagon for instance insisted on the important role played by foreign states’ support, as well as the necessity to remove by ‘surgical operations abroad’ the infrastructures supporting clandestine organizations and to have a full range of extraordinary powers to extract information from the enemy in order to block its strategy of disguise. They were not the first supporters of large-scale war, and would have preferred very high-tech actions abroad and the conferral of more power to the military inside the US in order to better coordinate the different civil administrations. They were keen to use their surveillance satellites everywhere, including inside the home territory. NATO and the transatlantic network of Echelon were on their side. CIA and Homeland Security, while in competition to each other, shared the idea about the existence of a ‘terrorist network’ as an enemy within. Both insisted on the capacity of individual terrorist to infiltrate in flows of foreigners and therefore called for the need to better control mobility across borders, while not blocking the flow of people. They claimed an expansion of their powers inside the territory for improving the surveillance of foreigners and foreign-born groups at home. This included the reinforcement of surveillance of freedom of (hate) speech, of association, of ‘cultural’, ‘religious’ and ‘minority’ groups. Here transnational cooperation was considered central. The FBI developed a more traditional detective police and justice line of thought followed also by some ministries of interior and justice across Europe. They insisted on the development of proactive policing, infiltration of terrorist networks and enhanced surveillance of criminal milieu and specific ‘minorities’. They refused the high-tech belief of the surveillance industry to catch ‘unknown people’ through their behavioural patterns and criticized the role of intelligence services and the military to try to take over control in the fight against terrorism. They were instead more interested in the development of specific techniques of police investigation, which could be used against terrorists but also criminals and even irregular migrants, and to be subjected to judicial control and the respect for the rights of defence to a lesser extent in order to interrogate ‘the suspect’ properly. Another line of thought consisted in the centralization of surveillance in the hands of analysts (both private and public) and the development of mass intelligence for national security purposes. This materialized in massive financial investment on patters recognition technologies as well as other forms of tracing individuals through high-speed and coordinated exchange of information between relevant bureaucracies. Captured by the phrase ‘there are also unknown unknowns’ by

4

See Bigo (2006b); Bigo and Tsoukala (2008); Bonditti (2008).

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Donald Rumsfeld,5 which introduced the theological into the political, this line of thought has been also central for the development of a mentality of policing and suspicion going beyond bureaucracies and asking private companies of surveillance, and even social welfare agencies, to participate in police-related actions. According to this vision, the entire society needs to be under surveillance through an emphasis on local groups and ‘abnormal behaviours’ masked under the normality of good citizen (Foucault 2003; Dillon 2007; Dillon and Neal 2008 ). Here the freedom of action of an individual is judged by its conformity to a social local norm. Anyone marginally deviant from that norm becomes a suspect and potentially a ‘terrorist’. From a methodological perspective, these lines of thought are the signs of distinctive deviations (écarts distinctifs) that can be explained better by the institutional positions of the people supporting them rather than by their ideology or capacity to do ‘performative acts’ (Bourdieu 1984). They are the result of the actualization of the making by different agents. These struggles have generated a specific ‘doxa’, but each line of thought has given different priorities and articulations of the relations between terrorism, Islam, migration, asylum and tourism. While they have often articulated them in relation to freedom, it has a been around a concept of freedom of the collective self, of protection of the self of the ‘society’, which has been accompanied with a diminution of personal freedom of movement, speech, association and religion of ‘the others’. These different lines of thoughts have considered security as the major value and have pleaded for transnational cooperation in order to achieve a global security against the global insecurity born in the cauldron of Al Qaeda in Afghanistan.6 As a result, a doxa − more profound than any form of consensus − has structured all the debates between the lines of justifications of the different agencies and their conflicts about the best techniques to be used by unquestioning the transformation of the notion of freedom and its relationship with security. This doxa has not versed so much around the necessity of ‘the exception’ but rather on the reframing of the notion of freedom. Indeed, the main lines of struggles have not been between the US and Europe, or between the Iraqi coalition of the willing and the ones against the war. In fact, the struggles and oppositions between different transnational professional guilds (for example, internal security agencies, intelligence services, mass surveillance private companies and tribunals) have structured them. These professionals of the management of unease, grouped under different networks and/or transnational 5 In his US Department of Defense news briefing on 12 February 2002, Donald Rumsfeld proclaimed: ‘As we know, there are known knowns. There are things we know we know. We also know there are known unknowns. That is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don’t know we don’t know’. 6 On the structuring role of collaboration for an identity and beyond a doxic structuration, see Guittet (2004, 441–64).

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guilds, are the brokers at the Western level of a neo-imperial vision of global security constructed on a specific form of freedom ‘for us’ to be spread abroad. It works through the discourses of supranational cooperation, the interests pursued by some agents for the proliferation of specific investigatory techniques and other issues connected with their institutional position, their personal trajectory and their social and symbolic capitals. These factors might explain why all these agents are somehow interconnected and why they are ready to abandon certain specializations. However, they do not necessarily lead towards the claimed goal of enhancing collaboration, but they might rather exacerbate the struggles between transnational networks of intelligence services working for conflicting ‘solutions’ when comparing them with those proposed by the transnational networks of military people or by immigration control authorities and border guards. We may nevertheless group some of these key questions and assumptions along the ideas of the role of borders, state sovereignty, individual and collective security, role of exception and the freedom dimension. The usual critique in IR literature has focused mainly on the first set of questions. While their importance cannot be overestimated, the reframing which has affected the concept of freedom has been even more ‘doxique’ than any other theme. Governments have centred self-criticism on national egoism and poor transnational cooperation. National sovereignty and individual controls of borders have been the object of critiques by those advocating for a ‘global’ war on terror. Sovereignty has been transformed into something ‘bad’ to the great indignation of the traditional IR specialists formed through cynic-realism and principle of selfhelp, national interests and the like. Borders have been subject to a call back to their military functions of barriers, while economic capitalism has refused this claim and the ‘solution’ has been to set up a global policing of filters and sort out at distance giving the illusions of ‘smart borders’. The academic discussion has been also very strong around ‘suspicion and exception’ and their legitimacy. For instance, Guild (2003), Tsoukala (2005a), Brouwer (2006) and Jabri (2007) have demonstrated in an interdisciplinary way in the framework of the CHALLENGE project the various ways in which the justifications of exception have been set up.7 These critiques have spoken of an undefined state of exception, of a permanent state of emergency and an increase of discrimination against foreigners and certain categories of citizens. They have insisted on the risks posed to democracy by new security measures derogating basic rules of habeas corpus and the presumption of innocence that lead to a society driven by suspicion and routinization of derogatory and exceptional public measures. They have considered that the jus cogens, the limited numbers of human rights that no state can violate, has been under serious peril. They have also highlighted the important role played by international and human rights law. Another IR analysis has focused on torture and prisoner abuse in Abu Ghraib and Guantanamo, as well as the ways in which some lawyers were trying to re-legitimize it through black letter law arguments circumventing the spirit 7

See also Guild and Baldaccini (2007); Baldaccini et al. (2007).

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of the absolute prohibition of torture. While Michael Ignatieff tried to justify lesser forms of evil by arguing about the lower limits of coercion acceptable, Dershowitz was discussing the special timing and conditions to use torture (Dershowitz 2002; Ignatieff 2004). The deprivation of freedom linked to indefinite detention, with the use of torture and other inhuman treatments was considered as the main fault of the administration in charge. When the Democrats arrived at the White House, President Obama considered that its first symbolic measure would be to stop torture and to close Guantanamo. However, as it is well known, this is only the top of the iceberg. The debate about more general forms of deprivation of freedom which, while being less shocking in nature, have nevertheless profoundly affected the lives of more people with regard to freedom of movement, freedom of speech and other forms of freedom that can be derogated under certain circumstances by the government on the basis of national security (raison d’Etat) and/or public order, has also been intense since the beginning. There the argument mostly regarded the need to find ‘the right balance between liberty and security’ rather than a theory concerning wartime or necessity of a permanent exception and a reframing of the constitution and the rules through exceptional measures. The way to diminish the value of freedom was to present the situation as if a balance existed with two (and only two) scales of similar values to consider: freedom and security. The balance between liberty and security supposes that liberty and security are ‘eternal values’, that they are easily differentiable, quasiquantifiable and homogeneous. The balance metaphor masks the imbalance that exists between the two dimensions and silences the capacity of political judgement. It has been often used as a bureaucratic argument in different historical periods as well as by many academics. As the CHALLENGE project has showed, it has been one of the most powerful discursive tools at times of limiting the discussions around liberty after 11 September 2001. First, it is clear that some of the authors who have used the balance metaphor had a rhetorical strategy in mind. By using the term freedom − understood as a series of freedoms in competition − instead of the general principle of liberty, they have actually unified the concept of security and fragmented that of freedom. Simultaneously they have referred to the term of security in relation to all the practices of war, coercion and protection, both in their collective and individual meanings and internal/external facets. Their reasoning leads to the fragmentation of liberty, considered mainly at the individual level, and the reunification of security, aggregated to safety, protection and survival and considered ‘global’. The consequence of this framing is that it favours according to which security needs to trump liberty because in fact security may become freedom itself, the first freedom, which is the freedom from fear to live. The second implication of the framing of a unified security and a fragmented liberty is that danger becomes central. The balance metaphor transforms the dual relationship between liberty and security into a triangle where security needs to be enhanced against liberty because of the eventuality of risk, danger and threat.

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In this triangular setting between danger, liberty and security, liberty becomes the problem. The main political actors have insisted on the need for security to be completed, to become global, to be developed beyond traditional cooperation and to become the marker of identity of ‘the civilized values’ against ‘the barbarian ones’. However, this claim for a global security agenda, a total information awareness that means security without limit, facilitates a conception of security as coercion, surveillance, control and dynamic of violence and exclusion. If liberty is a goal advanced by any liberal regime, is security a goal too or just a mean to achieve freedom and democracy? This question has not emerged in public debates and discourses. It has been very rare to find any framing of ‘the balance’ into a triangle between liberty, security and democracy. The reason might have been that from this perspective security becomes the problem not the solution. The balance metaphor has been a way to avoid a discussion between liberty, security and democracy. By choosing freedom (instead of democracy) to frame the discussion, the balance metaphor silences the difficulty to have proper judgement about the most important problem of political violence between adversaries: escalation of violence on both sides. The CHALLENGE project, especially through the work of Walker, has developed many facets of these dilemmas and has provided a critique on how this framing has actually created a hierarchy favouring control, surveillance, policing and war against social change, nomadism and everyday life. More profoundly, those sustaining the balance metaphor have difficulties in understanding that liberty and security may refer to the very same practices depending on the grammar and language used: either a language of social change and opportunity or a language of order and utility. The metaphor of the balance between security and liberty has been, from a pure quantitative perspective, more used than ‘the argument of exception’ in order to justify (both in the US and Europe) the development of a global counter terrorist regime, specific forms of surveillance, new laws on telecommunication and the Internet, new regulations and administrative laws concerning entry, detention and removal of migrants or denied refugees, tougher controls of anyone travelling through the country and so on. In contrast, the ‘war on terror’ argument has appeared as often, especially in courts cases, but it has rather materialized in the emergence of a multiplicity of different regulations, administrative laws and foreigner laws that have been applied in order to escape from habeas corpus or to reduce the agency of the individual. These laws and administrative norms have been used to limit the defence of the individual and to grant to coercive agencies a larger ‘freedom’ to act against suspects. This situation was characterized by the existence of too many regulations and norms, rather than their absence. In this respect, the problem was less for the individual to be subject of limited rights in light of too many (even contradictory) bodies of laws and to be prisoner of the arbitrariness of the face-to-face relations. While still moving within the democratic framework, we have certainly witnessed sterner illiberal practices by liberal regimes at many levels, in many domains, which have invaded everyday routines.

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Therefore, liberty was undervalued, diminished and, perhaps more importantly, reframed by a redefinition of what freedom means and what are the practices of freedom. The main questions for the present stemming from this discussion are what form of self-discipline and obedience is valued as form of freedom? How does freedom change? Do we have a reframing of a specific episteme? Further, what are the daily practices that are enacted as freedom of speech, freedom of movement, freedom of action? Who is entitled to freedom and who is not? How do the practices defining freedom work? These practices of freedom generate different boundaries for autonomy and for reflexivity of the government of the others and of the self. They vary and construct different subjectivities and have an impact on (or shape) governmentality of individuals. It is not an easy task to analyze under what conditions freedom is then transformed into a ‘will to serve’? Under what conditions ‘obedience’ in everyday life is celebrated as enjoying ‘freedom’? How are the capacities of action of certain types of population recognized as forms of freedom, and what is their relationship with governing this category of persons differentially from others? What are the ways by which certain practices are encapsulated under the label of ‘freedom’? One of the main arguments put forward by this chapter is that the only way to address and understand satisfactorily these questions would be through the development of liberty studies within international political sociology. Otherwise, we will continue to be prisoners of the traditional obsessions of IR and political science that have focused on the question of order and the meaning of freedom, without engaging into the question of ‘freedom as practice’. Can Freedom be Re-written? The Social Construction of (Un)Freedom in Liberal Democracies Today For a political sociologist, it is always important to begin with a study of our present practices, even if they might be banal or obvious, and not so much with sacred texts of great thinkers. The social practices often constitute richer, heterogeneous and more valuable elements than any ex post rationalization of great academics. As Rose (1999, 321) has put it, ‘many of these texts which have later become canonical are, in fact, retrospective attempts to codify such minor shifts’. Therefore, in our search for the meaning of freedom it may be actually more accurate to look at these minor sociological shifts instead of looking for the new philosophers and IR academics attempting to rationalize them into innovative theories. This sociology entails the task of looking at the ways in which professionals of politics and professionals of management of (in)security re-write freedom in accordance to a certain context presented as a war, or as a dangerous moment where security is presented as the first freedom. Lakoff belongs to those few public intellectuals in the US who has actually seen and addressed the importance of the question of freedom under the Bush administration. In his popular book Whose Freedom?, he has portrayed the

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political landscape of the war on terror and the battle for the use of (the word) freedom between what he calls ‘the conservatives’ and ‘the progressives’. Apart from a certain style, Lakoff rightly argues that the main strategy of the radical right in the US was not to develop an ‘exceptionalist agenda’ or a security-based discourse justifying its practices of military involvement abroad ‘in answer to’ terrorist attacks, or even in order to prevent new ones. In his view, it has not been under the argument of security and necessary emergency, or even risk management, that the US government justified its practices of surveillance and control of any individual passing through the US and of many minorities living in the country. It was rather through the reframing of the notion of freedom that these measures had such a success. By doing so, he has contradicted many critical thinkers insisting on the importance of exception and emergency (Balke 2001, 71–80; Dillon 2002, 71–9; Agamben 2003, 152; Pasquino 2003, 9–29; Aradau 2007, 23). For Lakoff, the main strategy has been to reframe the notion of freedom by eradicating its linkages with equality, solidarity and social justice, and by emphasizing its links with human rights, civilization, protection of values, security in and a fight for freedom. Then, if for the progressive actors freedom means ‘to be able to do what you want to do’, and is situated at the individual level, it is not exactly the case in relation to what he calls ‘conservative freedom’. They do not abandon the notion, but they reframe it with different ‘qualities’ and speak of freedom as a group characteristic. In our view, it is certainly better to avoid the use of the adjectives ‘conservative’ and ‘progressive’ at times of denominating these two accounts of freedom. The move from the conservative to the neo-conservative account on freedom has been to take it more seriously and to propose a merging between a global imperialist account and a national sovereignty one around the theme of US leadership for all those who possess freedom. This merging has changed the traditional opposition around citizen and foreigner and has permitted some categorization as ‘enemy aliens’ who are neither combatants nor criminals. It has mixed Carl Schmitt’s exceptionalism with a global cooperative Kelsenian agenda. On the other side, the ‘progressive’ account of freedom have been in fact rather conservative as it has tried to maintain an individualist notion of freedom coupled in discourses but decoupled in logic from the call of the same ‘progressives’ for human interventionism and a justification through cosmopolitan modernism to civilize ‘the others’ who are considered to be ‘non moderns’. Therefore, for all of them (‘conservatives’ and ‘progressives’), freedom ends up being ‘the marker’ of a civilized group fighting to preserve its values and principles against Islam which is seen to be characterized by unfreedom, violence, religion and passion. Freedom in this neo-conservative vision is a quality possessed by advanced liberal democracies. In this cosmopolitan account, freedom exists naturally but it needs to be enacted by education. This conception legitimates the engagement into fights and even war ‘for freedom’, or to engage into global policing in the name of freedom. In the two versions, or lines of thoughts, the Western governments have to promote this freedom abroad in order to complement freedom with peace and stability at the world level. Following this logic, the real

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freedom is the freedom from threat, which is in fact real security. Therefore, while freedom can only expand if stability, security and order are ensured, this very freedom actually functions as the condition for order. It is then central to generate, even by force, a positive dynamic. This convergence through global freedom instead of nationalist versus individual freedom explains the promotion of freedom abroad. The individual can be free only in a free/democratic state, and a free state supposes to rally existent democracies, which are the core of the promised heaven of global democracy with one civil society and one transparent hyper-federal government. There is therefore a duty to ‘promote freedom’. The promotion of freedom calls for pedagogy and education, which for the neo-conservative even justifies education through strong coercive elements pushing ‘the unfree men’ to learn what freedom really is all about. As a US captain coming back from Iraq and Afghanistan said quite crudely in a soft voice, but which certainly is far more accurate than many books and academic articles on the subject, ‘we have to win heart and minds as you, in the UK, know. So we have to inoculate them with freedom … .’ The perpetual peace foreseen by Kant is possible only if we succeed the contamination of the ‘virus of democracy and its propagation into authoritarian regimes and failed states … If we do not succeed, they will succeed with religious fanatism, and they have already activated this virus inside us’.8 In a less biopolitical metaphor, but having the same idea in mind, many governments and international organizations as well as academics have insisted that it is important to develop ‘education’, ‘training’, ‘communication’ and ‘universalization’ of freedom in order to accelerate the pace, especially when radical clandestine organizations try to reverse the trend and propose cultural enclosures. Freedom(ization) is a competition (against obscurantism). It is a process whereby people (of other cultures) become free. Human beings are not free in general, but they can learn to be free. The emphasis on training is central, as NATO, the Organization for Economic Cooperation and Development (OECD) and the European Commission keep on repeating ad nauseam. To understand the present conditions, this narrative argues that we need to remember that this competition is harsh and may be lost. Training supposes good will, but what happens if the obscurantist refuses to learn? Freedom and peace for every individual (including those living in liberal democracies) will depend finally on the individuals themselves but also, and mainly, from the collaboration of the interstate system. It is the responsibility of all ‘the free and democratic’ states to perfect the international system with the growth of democratic regimes and their common fight against the evil-doers of mass violence, as now the borders of the state are not strong enough to prevent the irruption of catastrophic violence. So, collaboration between ‘free states’ is seen as absolutely necessary against the potential Armaggedon which might be under preparation by a small handful of 8 Conference held under the Chatham House Rule at Cumberland Lodge on 4 October 2007.

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radical others. The lesson is that we have to fight in the name of freedom and human rights in order to achieve a world order ensuring our own specific security, because if we do not succeed in training ‘the others’, the constitutive free men that we are will be overcome and disappear.9 For these kinds of discourses, the word freedom bears different connotations, and encompasses different practices that are far from what we were usually told to associate freedom with twenty years ago. As Douzinas (2007) explains, freedom has been enrolled into an imperial enterprise. Freedom and human rights are in this way presented as gifts for all human beings that those who are free have to spread. As Blair has put it: ‘We could have chosen security as the battleground? But we didn’t. We chose values … values of freedom, of democracies that we represent’.10 Liberty is a possession, a property of a specific group – us – that the others do not have. This line of thought refuses any constitutive theory of ethics, and promotes that we judge ourselves and the others only through the prism of our criteria and standards. We can always ask ourselves the level of obedience and participation necessary for creating the possibility of such a version of freedom to be developed and become not only an official policy but also a shared belief amongst participants and many international institutions. Hardt and Negri have suggested that Kosovo constituted a key moment for the enactment of this definition of freedom as a specific attribute of a ‘civilized empire’ that has no more enemies to engage into war but which still presents many internal criminals and unwanted people showing bad behaviours to be disciplined (Hardt and Negri 2000).11 Dal Lago (2005b) has argued that this move took place a bit earlier with the first Iraq war and the first Bush administration.12 Indeed, a neo-Kantian argument tainted by a missionary discourse, which reminds us of the Spanish argument for the Conquista of the Americas, has been back to the fore since the 1990s. Governments appear to have forgotten the sixteenth-century’s Valladolid controversy, and see themselves as ‘freedom fighters’ rather than ‘new

9 Is it necessary to say that, as a form of eschatology simplifying the world into two groups, this discourse of neo conservative freedom is not far from the biblical tradition of punishment of the non believers (criticized by the New Testament). It is not far from the Stalinist version of Marxist freedom either, where freedom is the goal to be achieved in the future for the sake of our children and grandchildren, as our sacrifices are not really important in comparison to the shining path leading to a new humanity. The neo conservative has retranslated it into the choice revealing the side you are (good or evil) before Armageddon arrives. 10 Tony Blair quoted by Peter Wilby in ‘Tony Blair means only one thing when he talks about his values’, Guardian.co.uk, 4 August 2006, retrievable from . 11 See also ‘Ruptures within Empire, the Power of Exodus: Interview with Toni Negri’, Theory, Culture & Society, vol. 19 no. 4 (2002): 187–94. 12 See also Dal Lago (2003, 134).

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tutors’.13 The tension between freedom working both as friend-enemy and as civilized-barbarian with the latter account of freedom has not disappeared (Walker 2009b). Therefore, the Attorney General Ashcroft has certainly not been the first and only to present freedom as a value possessed by representative democracies whatever they do (Cynthia Brown 2003, 324). He has followed similar patterns as the ones argued by Blair, Clinton and, in some way, Habermas. The originality of Ashcroft has been to connect the idea of freedom as the quality of a group with the right for this group to act preventively in order to block the attacks of the ‘non-free men’, and not just to react against them. The originality of the Bush period was the association between prevention as necessity to act before the adversary and the notion of freedom as a quality of a group of nations. At the 2004 Republican national Convention Bush constantly invoked the words ‘freedom’, ‘free’ and ‘liberty’. As Lakoff (2006, 8) has highlighted, Bush used the word ‘freedom’ 49 times in his speech, and every 43 words, in order to justify Iraq, Guantanamo and the Patriot Act.14 Skinner has also noticed the peculiar definition of liberty as ‘heaven in earth’ given by President Bush and the implications of his definition of freedom in the 2005 Inaugural Address, according to which ‘freedom is the Almighty’s gift to every man and woman in this world and as the greatest power on earth, we have an obligation to spread freedom’.15 The former Spanish President Aznar delivered a same kind of speech, evoking freedom as an alliance of civilized countries in order to justify NATO operations in Afghanistan. The UK former Prime Minister Blair can also be quoted as one of those leaders who have developed a discourse on freedom as a value opposed to hatred and fear, and as a marker between ‘us’ and ‘them’. He insisted in several occasions on the intrinsic qualities of a global alliance for global values and the necessity for all of the ‘nondemocratic countries’ to learn about freedom in order to join ‘the advanced liberal democracies’. Therefore, Blair distanced himself from Rumsfeld’s ‘war on terror’, and reframed it as a ‘crusade for freedom’. In his own words: We should do all we can to spread the values of freedom, democracy, the rule of law, religious tolerance and justice for the oppressed, however painful for 13 The Valladolid controversy (1550–51) concerned the treatment of natives of the New World. Held in the Spanish city of Valladolid, it opposed two main attitudes towards the conquests of the Americas. Dominican friar and Bishop of Chiapas Bartolomé de las Casas argued that the Amerindians were free men in the natural order and deserved the same treatment as others, according to Catholic theology. Opposing him was fellow Dominican Juan Ginés de Sepúlveda, who insisted the Indians were natural slaves, and therefore reducing them to slavery or serfdom was in accordance with Catholic theology and natural law. Later, de las Casas and Sepúlveda each claimed to have won the debate, but no record supporting either claim exists, and the debate had no clear effect on the treatment of the natives. 14 See also Porter (2006, 70). 15 Quotation from the Lansdowne Lecture on genealogy of liberty delivered at the University of Victoria on 28 October 2008.

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some nations that may be; but that at the same time, we wage war relentlessly on those who would exploit racial and religious division to bring catastrophe to the world’.16

To enrol freedom and human rights under the banner of war may be considered as propaganda and be dismissed by shrugging shoulders. Folks will not believe their politicians and have a better sense of what is freedom. Further along this line of thought, some people certainly think that ‘freedom is freedom is freedom’ in order to reassure themselves. They consider that only one meaning of freedom is possible, because it is a natural behaviour and a value that cannot be destroyed by propaganda.17 It is the point of this apparently trivial discussion, which is central for our understanding of the making of liberty. The language used by the Bush administration to reframe the situation has been more powerful than imagined by its critics (both at the political and academic levels). This is why they have centred their critiques on security and exception, and not so much on a discussion about freedom. The absence of critical assessment around the concept and sociology of freedom by IR specialists has favoured an uncontested continuation of this narrative and doxa of liberty as quality of a group and education. The debate is not anymore centred around ‘the war on terror’, and its coercive tone, but rather on the version of a multi-polar understanding of the world and the necessity of cooperation and education, in relation to pacification, along with an essentialist view of liberty as an attribute of a specific group of population. The two versions are two narratives playing the same game of defining freedom inside a biopolitical way of thinking and differentiating ‘the free men’ from others not considered as such (Rose 1999, 321; Diken 2004, 83–106; Lazzarato 2004, 100–111; Dillon and Lobo-Guerrero 2006). Therefore, critics may be happy with the new US administration restraining from using such a level of arbitrariness regarding the rule of law, the role of constitution and judicial principles, but remain silence about its continuation of the quasi-unchanged vision of freedom to spread.18 The fact that the EU will join even more easily this view will give even more credibility to this reframing of freedom. 16 Tony Blair, ‘The Threat of Global Terrorism: Why Sept. 11 made Iraq’s Liberation Necessary’, 5 March 2004, retrievable from http://www.gees.org/documentos/Documen050.pdf>; Tony Blair, ‘A Global Alliance for Global Values’, Foreign Policy Centre, September 2006, retrievable from . See also Thatcher (1980). For a critical view, see Meierhenrich (2006, 1–40). 17 Lakoff (2006, 9) speaking of Elaine Kamarck echoing the line from Gertrude Stein’s poem Sacred Emily: ‘a rose is a rose is a rose’. 18 In 2007 President Obama, still a candidate, declared: ‘Freedom must mean freedom from fear, not the freedom of anarchy. I will never shrug my shoulders and say − as Secretary Rumsfeld did − “Freedom is untidy”’, retrievable from .

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The liberal practices of freedom can certainly harm violently and develop into illiberal practices including torture and extraordinary renditions in the name of the radical otherness of the others. They can also be more temperate and nevertheless harm by framing freedom into a learning process, a necessity to participate and to integrate to the movement to the global. The biopolitics of (un)freedom are still operative in both cases. The Biopolitical Practices of (Un)Freedom The social constructivist position cannot hide itself into the belief of a ‘return’ to normality once essentialism of a natural common understanding of liberty is thrown away and it is no longer possible to believe that liberty has a fixed core of understanding which will resist any reformulation by the political power. So, from a social constructivist point of view, which we prefer to call an international political sociology perspective, liberty studies need to address the following questions: who are the bearers and promoters of ‘the truth’ around a specific understanding of freedom as a form of classification of specific human behaviours and practices? Further, who succeeds to monopolize the authoritative discourses on freedom? Do this group form a social field of professionals or amateurs, or are they scattered across different sectors of society? Is ‘truth’ about freedom natural, or is it related to a truth regime and thus to specific forms of knowledge? In contrast with (in)security practices, (un)freedom practices are not the result of the micro-competitions between academic specialists of philosophy – even if they play a role as demonstrated by Quentin Squinner − or of a successful rhetoric by professionals of politics. Instead, they form part of a multiplicity of sovereign, disciplinary and biopolitical practices that are transversal to institutions, societies and states. Practices of Education and Freedom As we have argued above, a liberal political imagination continues using a concept of freedom that includes forms of obedience and coercion through ‘education’. This understanding of freedom entails a form of parental family model where discipline and obedience to the oldest (and supposedly the most powerful) is the condition to freedom. Those who benefit from freedom need to teach those who are not free what freedom actually means. This is why discourses around protection and education (related for instance to training, the duty to protect, education and development) appear so often in political discourses. That notwithstanding, and as etymology teaches us, to protect is actually to organize a tutelage over other individuals or groups of individuals considered to be minors (Dobson et al. 2006). To train and educate them involves their reduction and treatment as minors too. Only adults surrounded by minors realize freedom. Freedom is then a mark of superiority and a boundary signifier between two groups (adults and minors or

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two ‘civilizations’: the West and the rest). Freedom therefore does not relate to equality and works against it. Beyond its obvious geopolitical connotations which aim at privileging the interests of the US and other ‘Western’ countries, this strategy also constitutes an effective way to send ‘the others’ back to the past, to a state of pre-freedom, and this is so even when they migrate and live among us. They have to learn the values of freedom, to integrate into the civilization before to move and have access to security of residence and participation. The European Commission has used this language in the scope of its neighbourhood policy by developing also an educational metaphor in relation to the situation of those states who wished to become EU members (Jeandesboz 2007, 387–416). Hindess has explained this liberal governmentality of what he calls ‘unfreedom’. In his view liberal political reason has been as much concerned with paternalistic rule over minors and adults judged to be incompetent, as it has been with the government of autonomous individuals … Western colonial rules has long since be displaced, but its paternalistic perspective remains influential both in the programs of economic and political development promoted by international agencies and in the governmental practices adopted by independent, post colonial states (Hindess 2001, 93–108).

Paternalism, education and training are transformed into key technologies of liberal freedom expressing the possibility of gender and colonial domination through freedom when brutal practices are not possible any more. The war on terror may move to ‘the education of freedom’ once international organizations and post-colonial states have decided to embark into the journey of global freedom that is now proposed. It is the dream of so many liberals from conservative and progressive backgrounds to see their good pupils learning to become proper civilized free men. Nevertheless, this government through freedom will differ only marginally from the present period of more disciplinary and coercive methods used by the US and their allies in their international police operations. This margin is certainly important for many human beings submitted to massive coercion, but education is also a very strong way of framing choices, as all academics know. How far have we reflected on freedom, symbolic violence and education? For example, critical views are not exempted from a valorization of education as truth for freedom. Zizeck has developed at length the example of the ‘choice’ given by the Amish to their teenagers, who are encouraged to travel and experience for some time ‘the American way of life’, and who are then proud to say that 90% of them come back to their ‘Amish way of life’ and criticizes the Amish for not giving their youngest a truly free choice (Zizek 2006, 43). Douzinas agrees with him when saying that ‘These teenagers are offered a formal choice but they are not informed or educated about their options … both ways of preparing people to exercise freedom, lead

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to forced choices. To be free is to choose freely in principle but inescapably in practice what has conditioned you’ (Douzinas 2007, 129). While there might be some degree of truth in these arguments, we can raise the question as to whether education is a way of ‘conditioning’. Is it the ‘conduct of conduct’ by excellence? Does our education restrain us? How far do the habitus and the heterogeneous registers of complex societies work to create uncertainty, indetermination and hazard and destabilize the educational process? Is freedom associated only with complexity and is the ‘not determined’? Finally, when freedom ends up as hazard, as uncertainty or as unknown, is it not an ironic reversal of Rumsfeld definition of evil as the unknown of the unknown? Practice to Move as Freedom A second element of our present series of practices is rooted into a dominant view lining liberty with mobility or movement. Of course, freedom for the individual, against its own state, is certainly the capacity not to be detained and imprisoned without proper justifications and rule of law standards. Freedom has been a struggle against the police state and absolutism. Liberty of movement, as the opposite of confinement, is one of the central rights of the individual. It is in all the core international and regional human rights treaties and forms one of the central planks of national constitutions in current liberal democracies. The rejection of arbitrary detention and the obligation of the state to respect and safeguard the freedom of movement of its citizens is a heartland issue. The ECHR considers in its article 5 that the individual’s freedom of movement is the first central right, followed by the security of individuals against arbitrariness. The freedom to move is the freedom not to be a slave attached to a property. It is this practice of movement of the body, of the mind with freedom of thought, opinion and speech, which is the actualization of what we may call the libertarian element of the liberal modern societies. It is what distinguishes the contemporary forms of national governments in Western societies from other forms of national governments. The liberal reasoning argues that individuals have to be cautious towards their own government. They have to fear the lions of the state but also the wolves that command them. Freedom is seen as opposed to government by the state, but enacts a specific form of governmentality which works not only by coercion but also by ‘conduct of conduct’, and which supposes mobility (Rose 1999, 62–3). It is a very strong communality to see freedom associated with movement. Skinner has insisted on the fact that even if Hobbes, Locke, Bentham and Hegel had very different views about positive and negative liberty, they nevertheless shared this view of liberty as movement (Skinner 2002, 9–28). Henceforth the association of mobility and liberty begun before the capitalist market and the political economy developed the motto of ‘laissez faire, laissez passer’ that was popularized by Jean Baptiste Say. The liberal way of using freedom, in opposition with the Middle Age and pre-renaissance period, relates to the notion of access, non-interference and non-blockade. Freedom relates to ‘motion’ towards a location, an object or a space

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in order to perform an action without the interference of another actor. Liberty is then framed as an absence of opposition and that is the reason why it has been considered to be limited by ‘the liberty of others’ and why it supposes to express itself in an area, a space of order and stability in order to have the capacity to move. Liberty then assumes ‘boundaries’ and limits of defined spaces. Liberty of movement is then difficult to reconcile with protectionism, but not against borders and security as long as they do not block the flows of people, but filter them or channel them in a certain manner. All liberal economists are uncomfortable with immobility. For them if security means blocking or stopping mobility, then security has to be combated. However, if security does not imply slowing down too much flows then it is possible to join freedom of movement with security. Border guards have often a less complex view consisting of the conception of security as stopping or checking mobility, and liberty as the capacity to move freely. However, now the doxa seems to be based on the integration of these two lines of thought. Freedom is so centrally associated with movement that it is often confused with movement itself, something that makes difficult decoupling freedom from movement. Speed in movement is however not a guarantee of freedom, even if it is presented as such. The relationship between fast or facilitated movement and freedom might be one of the reasons behind the widely acceptance by many travellers about security measures over their mobility, and who complain only about waiting time and hurdles. Then travellers accept any forms of controls if they can accelerate their journey because they perceive these controls as providing better comfort and associate them with a better life. Mobility is in this way seen to be consubstantial of liberal economy. The world is a world of passage, of circulation of capital, goods, services, information and persons. This form of freedom as accelerated movement works through the computerization permitting gathering, storage and exchange of data concerning individuals at a higher speed for their information (or data double) than for their physical bodies, circulating in ‘roads’ mapped at local, regional and transnational levels. It works because more and more managers believe in specific bodies of knowledge supposedly capable to derive from non-linear information concerning an individual image about its present and of its future behaviour (Bonditti 2005b, 131–54; Bigo 2009). All these elements determine a mode of subjectification concerning ‘who we are when we are governed in such a way’ and what freedoms we are asked to exercise. The imperative of freedom of movement is overwhelming and penetrates now even places of detention as it is the case in airport waiting zones where the government insists that individuals are free to leave where you don’t want to go and then, you are not detained, you are just retained under your own will to stay there (Bigo 2007c). Mobility and speed in a society of control are therefore considered freedom. Freedom is transformed then into a series of practices framing biopolitics as a form of governmentality (Farge and Foucault 1982; Martin et al. 1988; Foucault 1997; 2004). It is then not possible to analyse freedom without looking at police and disciplinary practices generating obedience and self-compliance. It is equally

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impossible to study freedom without an examination of the existence of a class of professionals of politics and of law and norms who are framing the right of the state to arrest and punish an individual. This right of the state is itself in tension with the claim of the individual to have non-derogatory rights: such as the rights to life and the protection against torture. It is also impossible to analyse freedom without a proper investigation of ways in which people are registered and categorized, and the ways in which these categories are used as units for carrying out calculations. For instance, it is important to look at how certain categories of the population are considered as non-responsible (independent) and cannot not be free (such as for instance those suffering mental illness, ‘madness’, compulsive recidivist criminals, ‘natives’ or ‘indigenous’ populations and so on), or at how different legal categories of populations bear different rights and freedoms (citizens, foreigners, immigrants, tourists and so on). It is also necessary to investigate how development and economic growth are seen as dependent from motion, movement and mobility of capital and population and the uncertainty they create. It is also crucial to look at the way in which the government considers that people’s life is the object of its government and that freedom is good for life. Liberty is ever present, but rarely discussed, in the academic literature. On the contrary, security has been discussed obsessively, but with a little understanding of one of the most crucial conditions under which security has become so problematic. Indeed, critical security studies present as well their own limits. They often introduce a bias by looking firstly at the meanings of security or insecurity or ‘desecuritization’, but they often neglect to ask if it is possible for security to exist as such when liberty of individuals is not the engine and the goal of the government. Security is not discipline. It is neither sovereignty nor biopolitics. So what it is then? Some answers to this central question might well be to change the way we assess security, to look at the social practices of freedom and then to develop (not only critical security studies) but also critical liberty studies. Beyond Critical Security Studies: Developing Liberty Studies Liberty studies are an area completely underdeveloped in IR. It is true that from time to time some philosophers and political scientists have reassured the lines of thought and debates inside the liberal tradition and have updated them by considering doing studies on liberty. Huge classical textbooks have been re-printed. At their best, they do an anthology of philosophy presenting in ‘good order’ the most important texts on negative and positive freedom19 and the relation of freedom with necessity, morality, coercion, equality, mobility, autonomy and truth (Carter et al. 2007). None of these books has discussed seriously the present practices of freedom and their reframing by different authorities and different ways 19 Such as those by Bentham, Berlin, Constant, Hayek, Hegel, Hobbes, Kant, Locke, Marx, Nozik, Rawls Rousseau and Skinner.

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of life of citizens, foreigners and travellers, or even the genealogy of freedom beyond the Anglo-American world. This absence of interest for social practices on freedom is in coherence with a certain approach to freedom as a political thought and as a concept. Rose and Dean, following Foucault and Veyne, have already discussed the difficulty for a large majority of philosophers to understand freedom and liberalism as a form of governmentality and the reasons why the understanding of freedom only as a concept constitutes in itself a fundamental problem (Dean 1999). Freedom is not opposed to government. Freedom is a way to govern by framing some actions as freedom and by letting people act in order to avoid too much weight on policing and coercion. Freedom needs to be seen as another form of governmentality of the liberal capitalist subject. Freedom is then a question of practices being labelled as such, and not so much a question of human nature that has been always there and will be there forever. This tension constitutes the main reason why sociologists have had hard times when discussing with traditional philosophers about these issues, especially because the problem of naturalization of freedom is not exclusively in the discipline of philosophy. Unsurprisingly, political science and IR have ended up reproducing in their own writings the naturalist ‘dogma’ of traditional political philosophy (and theology). Yet, they have applied and extended it here to a realm ‘beyond the state’, a realm of struggles and survival, where either the term liberty becomes the semantic equivalent of representative democracy regimes and the quality of a specific group who possess liberty, or the term liberty is used as a semantic equivalent to human rights, democracy and sometimes global cosmopolitanism.20 For a majority of IR specialists (liberals or realists, rationalists or culturalists) freedom is then a value and many add that freedom has to be analysed as the driving element of history of humanity that is, at the very end, a history of freedomization and a process towards more freedom. Nevertheless, many of these debates share the idea that freedom is an eternal concept that is just embodied differently in different phases of history, and they do with the terminology of freedom as they do with the concepts of state or sovereignty. They substantialize diverse and heterogeneous practices as if they were variations around the same core idea. In that sense, political realism is not in IR a critical discourse concerning freedom and its idealization. On the contrary, political realists are the first to be philosophically idealist and they join their socalled idealist opponents by introducing ethics for the cold state monster, under a very essential way of discussing liberty, sovereignty or power as ‘anhistoric transcendantals’. The key question is then, less their internal debates than their common way to have specific narratives that naturalize the terminology that they discuss. This is why we have a desperate need for more serious attention to liberty

20 For an overview of different ways of framing freedom as a value, see: Goldberg et al. (2002); Heymann (2003); Leone and Anrig (2003); Etzioni (2004); Zakaria (2004); Cornell (2007); Anand et al. (2009); Espejo (2009).

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as the condition of existence of any account of security that claims scholarly pretension. Veyne may be the author to begin with. For him, it is a common problem of historians and philosophers to naturalize their concepts and to be driven by this illusion of an essence, of a ‘natural object’ (and it is especially the case of the ones doing history of philosophical thought or/and of doing political sciences and IR). That is why, he explains, Foucault has revolutionized history, philosophy and political science, and opened bridges with anthropology and sociology. For him, and in accordance with Foucault, doing history (or sociology) critically is above all to be attentive to the heterogeneity of the practices and the scarcity of the possible assemblages of practices in each society, as well as their profound originality that cannot be read through a linear vision of time. Ruptures of episteme exist. Practices and institutions may continue but in very different forms and shapes. In his own words, The illusion of a natural object (the governed throughout history [or the notion of freedom]) conceals the heterogeneous nature of practices (coddling children is not managing flows). Here is the source of all dualist muddles. For ‘the governed’ is neither a unity nor a multiplicity, any more than repression (or its diverse forms) is, for the simple reason that there is not such a thing as ‘the governed’. There are only multiple objectivizations (population, fauna and subjects of rights) correlative of heterogeneous practices (Veyne 1979).

A relation between this multiplicity of practices and unity becomes an issue only if one attempts to ascribe to the practices a non-existent unity. Everything hinges on a paradox at the heart of Foucault’s explanation of this teleological illusion of the philosophers: what is made, the object, is explained by what went into its making at each moment of history, which is the doing or practice. So, in Veyne’s view We are wrong to imagine that the making, the practice is explained on the basis of what is made. Things, objects, are simply the correlate of practices … We too often mistake the end result for a goal, we take the place where a projectiles happens to land as its intentionally chosen target. Instead of grasping the problem as its true center, which is the practice, we start from the periphery which is the object (Veyne 1979).

We have to learn from this methodological posture. The ‘object’ liberty is only the periphery. The practices and the making of freedom are more central. What a society calls freedom is then only for a certain period the result of the multiple objectivizations of action, movement, education, speech, association, consumption and life that are associated with freedom but that are correlatives to heterogeneous practices. In different societies and times, these practices were actually forms of slavery (obedience to a spokesperson of a collective body), forms of major sins

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(pride, arrogance, false pretence, lack of self-discipline, lust and so on) and even forms of abjection. The ‘object’ called freedom in liberal society then simply correlates with these practices of the self, of commercial activities, of morality and of set of interlocked institutions. They are the ones valued for a certain type of ‘light’ governmentality trying to avoid playing only with the power to deliver death, or to put individuals under permanent police surveillance, and developing self-discipline, and attitudes where power relates to conduct of conduct, with ‘auto-discipline’, with restrained violence as explained by Rose (1999). Against a vision of an essence of liberty of mankind deployed through history, or a purely nominalist belief of freedom at the level of the words, liberty studies grounded in political sociology (and not political science) and following this methodology indicated by Veyne, would then ask for a genealogy of practices considered in different spaces and time as liberty. Why is movement considered as freedom? Why is education considered as liberation? Why does our society want to extend life at any cost and consider it is better than to die with honour? How does freedom work and set up boundaries about unfreedom and ideas about slavery, obedience but also obligations and duties? As long as we have already a critical discussion about state and sovereignty, we also need to develop a similar critical discussion of (un)freedom, based on a philosophy of relations instead of a philosophy of object taken as ends or as cause. We need to understand the practices of (un)freedomization that draw the boundaries of what is lived as freedom and what is lived as obedience, and to discuss the boundary itself (Walker 1990, 159– 85; Ashley and Walker 1991, 367–416; Bartelson 1995; 2001; Walker 2006b, 5). To study liberty in IR has to do with a discussion about the present obedience to surveillance and/or to consumerism and/or to rights, and with a research as to the ways by which practices of freedom may be simultaneously practices of active or passive obedience. Then the question of the ‘voluntary servitude’ should be regarded as a second central element for liberty studies. Resistance to the Liberal Ways of (Un)Freedomization? The liberal process of (un)freedomization articulating liberty and obedience is at present mainly structured by the Anglo-American tradition of liberty and its reproduction through a main narrative of positive and negative freedom, independently of the social practices that are at stake globally. As we have briefly explained in this chapter, a certain history of freedom tries to build a linear representation of the idea of liberty instead of insisting on its heterogeneities (Leca 1995, 369–82; Berlin et al. 2002; Crowder and Berlin 2004). This history is seen as the history of freedom under necessity. It has a totemic origin in Hobbes, who was one of the first to challenge the old republicanism and to propose this model. Such a model has been then so much naturalized that we now face major difficulties at times of imagining an alternative one: freedom as freedom(s) in competition, and freedom under the existence of an order supposing

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the emergence of an authority regulating these freedoms. This line of thought is quite hegemonic in its pretension to define ‘the truth’ of what liberty means. Even if by doing so, as Skinner reminds us, all these liberal philosophers miss the key question of the distinction between the free man and the unfree where the unfree is aware of its servitude, but not (always) the free man (Skinner 2008). In that sense, post-colonial studies, critical political theory and liberty studies have a strong point of convergence. They unpack the conditions of obedience, which structure the discourses and practices of freedom of contemporary Western societies. They join the dots with an underground tradition, which disrupts this authoritative model of liberalism of liberty as movement and education, resurfacing in specific periods of ‘troubled’ order, to both ask for more coercion and for extension to others of this freedom. This alternative posture certainly does not have the linearity and the coherence attributed to the liberal framing of freedom. It is more a destructive irony emerging from individuals resisting the state doxa of freedom under necessity. La Boétie and Montaigne have anticipated and disrupted the Hobbesian argument of the Leviathan as condition of freedom and equality (La Boétie 1975; 1976). Stirner, Proudhon, Kropotkine and the anarchists have revived this discussion later on by insisting more on property (Stirner 2002; Welsh 2008). Sala Molins (1977), Deleuze (1971; 1988) and Castoriadis (1975; 1984) have, in a more contemporary way, inscribed desire and power into freedom. While these authors are not well known, especially in the US and in political science and IR, they have contributed towards the displacement of the question of (un)freedom and facilitated the emergence of a different political imagination of the present. All these authors have questioned the idea that for liberty to exist there must be a division between an organic form of power creating a specific area of motion and assuring order in this area − power represented minimally by one member − and the other members of this area, all equals except one. They all challenge the limits and boundaries of freedom with the political, religion, secular belief, sciences and knowledge, and they all insist on ‘practices’ and on their ‘dispositif’ or ‘assemblages’. They discuss freedom as a form of governmentality that enacts specific obedience − called freedom − but enacts also specific resistance called obedience. They then displace ‘necessity’, and by doing so, they dare to question sovereignty as necessity and the limits to liberty. For many of them the central question is the one posed by La Boétie about the ‘servitude volontaire’ (voluntary servitude): how it happens that so many men, so many villages, so many cities, so many nations, sometimes suffer under a single tyrant who has no other power than the power they give him; who is able to harm them only to the extent to which they have the willingness to bear with him, who could do them absolutely no injury unless they preferred to put up with him rather than contradict him? (La Boétie 2007).

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And, as Clastres explains, the strength of the short text of La Boétie lies on asking repeatedly the question, not on the will to answer: The ‘servitude volontaire’ is not just obedience by habits, or a natural will to serve, it is an accident, the malencontre which transforms freedom into will to serve, into wrong calculation of interests, into a self forging of the chains, into the illusion to be free men and equal when they obey to the one or to the name of the one that they have instituted as different and nevertheless representative of them. We can understand the consequences of the loss of liberty but not why it happened (Clastres 1978, 231).21

The genealogy of freedom and the genealogy of state and sovereignty are at the crossroads. The Amerindian societies have certainly something to say to the socalled civilized free men as they embody societies against the state by structuring their rules of power to avoid such a malencontre. And they howl: ‘what you call freedom is obedience. We prefer to die than to live in your world of freedom by state, property, work, speed of movement and consumerist desire’.

21

See also Clastres (1977).

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Index

Abkhazia 74 Abu Ghraib 198, 269 Advanced Neuro Technology (ANT) 118 Afghanistan 14, 68, 81, 192, 196, 198, 245, 247, 268, 274, 276 Africa 68, 205, 220 Agency for Fundamental Rights (FRA) 43 Al Qaeda 193, 195–6, 245, 268 Al Zawahiri, Ayman 194 Albania 135, 167, 199, 220 Algeria 66 Amsterdam Treaty 32, 37–8 Analysis Work File (AWF) 118 Anticommunist Apostolic Alliance 211 Area of Freedom Security and Justice (AFSJ) 1, 4, 21, 23–4, 26, 31–2, 34, 36–40, 43–8, 51, 53, 57, 93, 102–3, 107, 109–12, 117–18, 125, 129–30, 144, 217 acquis 43 external dimension 31, 47 Armenia 66, 72 Ashcroft, John 13, 276 asylum 13, 24, 32, 37, 47, 56–7, 59, 78, 141, 143–4, 146–7, 151, 198, 224–6, 268 asymmetric warfare 193–5 Australia Group 69 Austria 17, 36, 100, 109, 113, 115–16, 147 Azerbaijan 66, 72 Aznar, José María 276 Baghdad 196 Bagram 245 balance metaphor 11–12, 27, 39–40, 265, 270–71 banlieues 215 Barcelona 71, 202, 207–9, 212, 215 good citizen’s charter 207, 209 Ordenanza del Civismo 207

Battlegroups 68 Belarus 66, 72, 74, 144, 161, 163, 220 Belgium 36, 176, 231 Berlin Wall 198 Biological and Toxin Weapons Convention (BTWC) 69–70 biometrics 34, 39–40, 107–8, 138, 149–51 biopolitics 98, 239, 241–2, 278, 281–2 Blair, Tony 81, 275–7 borders 3, 7, 10–12, 14–16, 19, 21, 23–4, 32–3, 35, 37, 40–44, 50, 52–3, 59–60, 65, 74, 89, 107–8, 110, 114, 120–21, 123–7, 129–33, 135, 137–42, 144–8, 155, 157, 159–61, 164, 168–70, 190, 197, 203, 205–6, 214, 221–2, 224, 233, 248, 251, 256, 259, 267, 269, 274, 281 digital 129, 138 electronic 14 smart 14, 269 Bosnia and Herzegovina 68, 167 Brazil 21, 76 Broader Middle East and North Africa (BMENA) 74–5 Bulgaria 15, 25, 41, 57, 146, 149, 151–2, 155, 167–78, 180–85, 187, 220 Constitutional Court 183 Law on the Identification Documents (LBID) 171–2, 174–5, 179–83 Readmission agreement with the Benelux countries 177 Bush, George 70, 76, 80, 192, 263, 265–6, 272, 275, 277 administration 80, 265–6, 272, 275, 277 Canada 59–60, 266 Bill of Rights 21 PNR Agreement, 60 Cape Verde 132, 134 Caucasus 68, 73

324

Europe’s 21st Century Challenge

cayucos 205 Charter of Fundamental Rights 21, 44, 58, 99, 101–2, 117, 225, 253 China 76 Chisinau 72 citizenship 2–3, 5, 8, 17, 23–4, 34, 95, 99, 107, 131, 135–8, 140, 145, 148, 162, 165, 208, 217–19, 228–9, 232, 248–53 civic integration test 137, 218 Clark, Wesley 196 Clinton, Bill 276 coalition of the willing 14, 268 Common Foreign and Security Policy (CFSP) 66, 68, 79, 81–2, 84–5, 87, 89–90, 95, 97, 105 High Representative 68, 79, 85–7, 97 Common Policy on Information Sharing 56 communication deficit 23, 109, 111–14, 120, 122 Community Customs Code (CCC) 155, 160 Community method of cooperation 36, 38 Comprehensive Nuclear Test-Ban Treaty (CNTBT) 69 connexity criterion 93, 104, 106 Conquista 275 Constitutional Treaty 77, 82, 84–7, 96, 98, 227 Convention Implementing the Schengen Agreement (CISA) 15, 138 Convention on the Future of Europe 108, 126 Convention on the Status of Refugees 47 Cooperation and Verification Mechanism (CVM) 152 Council of the European Union 6, 22, 34–8, 40, 45–7, 50, 56, 58–9, 65–9, 74, 76–8, 86–7, 98, 104–5, 109–10, 118, 121, 124, 132, 150, 167–70, 173, 217, 222–3, 225, 227–8, 253, 258–9 mixed committees 58 Counter-Terrorism Coordinator 56 Strategy 48, 56 country of specific security concern 19 coup d’état 243

Court of First Instance (CFI) 45, 97, 105 Organisation des Modjahedines du People d’Iran (T-228/02) 45, 98, 105 Court of Justice of the European Communities (ECJ) 17–8, 31, 38, 41, 44–6, 61, 91, 93–6, 99, 100–106, 131, 136, 139–40, 142, 186–7, 219, 225–6 Akrich (C-109/01) 131 Commission v. Council (C-440/05) 45 Commission v. Kingdom of Spain (C503/03) 139, 226 Costa (C-6/64) 142 Eind (C-291/05) 131, 136 European Parliament v. Council (C133/06) 45 European Parliament v. Council (C540/03) 45 European Parliament v. Council and Commission (C-317/04 and C318/04) 104 Gend & Loos (C-26/62) 142 Gestoras Pro-Amnistía (C-354/04) 45 Jia (C-1/05) 131, 136 Jipa (C-33/07) 187 Kadi (C-402/05 P and C-415/05 P) 105 Laval (C-341/05) 41 Lindqvist (C-101/01) 100–101 Metock (C-127/08) 131, 136 Rechnungshof (C-465/00) 225 Schmidberger (C-112/00) 96, 100 United Kingdom v Council (C-77/05) 45 Critical Infrastructure Warning Information Network (CIWIN) 258 Croatia 168 culture of emergency 210, 212 Customs Information System (CIS) 34, 57, 60 Cyprus 15, 42, 57, 151 data protection 2, 24, 34–6, 58–9, 94, 102, 104–5, 116, 118, 26, 238, 140, 149–50, 223, 225–7 Delta Force 196 democratic deficit 38, 57, 98, 107–10, 122, 124, 126

Index Deoxyribonucleic Acid (DNA) 35, 57, 207, 222 Dutch naturalization test 229 e-government 112, 115–6, 119 e-judicial cooperation 108 Echelon 12, 267 Egypt 66, 72–3, 193 El Mundo 211 El País 211 enduring freedom 192 Estonia 25, 109, 115, 155, 162, 165 Eurodac 34, 40, 57, 59, 222–4 Eurojust 22, 34, 46, 50, 55, 57, 60, 121 College 55 European Anti-Fraud Office (OLAF) 22, 50 European Arrest Warrant (EAW) 52, 221 European Border Management Strategy (EBMS) 138 European Commission 1, 6, 22, 33, 35, 37–8, 45, 47, 67–68, 73, 86, 111, 138, 169, 173, 222–3, 255, 258, 260, 274, 279 Border Package 35, 138 electronic travel-authorization system 35 entry/exit system 35, 138, 222 Directorate-General for Justice, Freedom and Security 22, 45 European Committee for the Prevention of Torture 213 European Community Treaty (TEC) 37–8, 45–6, 99–100, 130–31, 133, 186, 225 European Convention on Human Rights (ECHR) 40, 95, 100–101, 133–5, 155, 162, 174, 183–5, 224–6, 228, 266, 280 Fourth Protocol 133 European Council 22, 38, 40, 45, 65, 67, 81–3, 85–6, 88–90, 222, 253, 257–8 European Court of Human Rights (ECtHR) 25, 52, 61, 95, 100, 140, 214, 221, 224–5 Bessenyei 134 Chahal 100 Kalashnikov 214 Saadi 100–101 Xhavara 135

325

European Data Protection Supervisor (EDPS) 43, 59, 102, 121 European Economic Area (EEA) 137 European Economic and Social Committee (EESC) 39, 40 European Evidence Warrant (EEW) 52 European External Action Service (EEAS) 87 European Neighborhood Policy (ENP) 22, 24, 66–7, 70–73, 75, 77–8, 80, 143–7 Action Plans 70–71, 75, 77 EU-Israel 71 EU-Jordan 71 EU-Palestine 71 European Ombudsman 102 European Parliament (EP) 6, 16, 23, 37–8, 42, 45, 58, 104, 109–10, 113–15, 121, 124, 132, 222–3, 259 Committee on Civil Liberties, Justice and Home Affairs (LIBE) 23, 108 Committee on Constitutional Affairs 110 Members (MEPs) 58 European Political Cooperation (EPC) 84 European Programme for Critical Infrastructure Protection (EPCIP) 27, 257–60 European Prosecutor’s Office 97 European Security and Defence Policy (ESDP) 22, 69, 72, 79, 81, 84–5, 88 European Security Strategy (ESS) 22, 65–7, 69, 76–7, 79, 254 European Union (EU) Border Assistance Mission (EUBAM) 72–3, 78, 145 Institute for Security Studies (EUISS) 76 Police Mission in the Palestinian Territories (EUPOL COPPS) 72, 73 Europol 22, 46, 50, 53–5, 60, 102, 108, 110, 118, 121, 222 Agreement with the US 53 Computer System (TECS) 34, 54, 57 Euskadi Ta Askatasuna (ETA) 210 exile 17 expulsion 17–18, 169, 173, 176–7, 182, 184, 204, 219–20 extraordinary renditions 47, 151, 278

326

Europe’s 21st Century Challenge

Facebook 120 family reunification 17–18, 45, 136, 151, 219–20, 225 Finland 25, 72, 109, 113, 115–16, 155 Foucault, Michel 94–5, 98, 190–91, 197–8, 207, 238–43, 249, 283–4 triptych 239 France 18, 49–50, 70, 72, 84–5, 132, 196–7, 205–6, 208, 219, 251, 259, 266 Franco, Francisco 210 freedom of association 12, 14, 267–8 movement 14, 41–2, 94, 100, 103, 138, 167, 184–8, 227, 229, 232, 270, 272, 280–81 religion 14, 268 speech 14, 267–8, 270, 272 Frontex 22, 42, 45–7, 50, 54, 121, 132–4, 164, 205 joint operations 47 Gara 211 Gaza Strip 72 gendarmes 203 Georgia 66, 69, 72, 74–5, 77, 89 Germany 17, 36–7, 55, 72, 109, 115, 132, 226, 251, 266 Constitutional Court 100 Giannella, Annalisa 68, 71 Giap, General 195 Grigoropoulos, Alexis 215 Group of Eight (G8) 74 Guantánamo Bay 47, 245 habeas corpus 6, 140, 269, 271 Hague Programme 1, 4, 37–40, 222 Hungary 25, 134, 144, 147–52, 155, 163, 165 Act on the Travels Abroad 150 Constitutional Court 150 Data Protection Act 150 Hussein, Saddam 195 immigration 3, 18, 24–6, 32–4, 37, 39–40, 45, 56, 58–59, 130–32, 135, 137–41, 168–70, 176, 185, 202–4, 212, 217– 18, 222, 224–7, 229, 232, 263, 269 illegal 18, 33, 39, 116, 133–4, 168–70, 175, 188, 201, 203, 205, 222

inclusion 16, 18–20, 34, 71, 147, 197, 225, 227–8, 241–2 India 21, 76 Information and Communication Technology (ICT) 107, 108, 111–26 information exchange 7, 23, 34, 47, 56–9, 108–9, 114–19, 122, 124, 126 infowar 195 Integrated Border Management Strategy (IBMS) 33 intelligence services 3, 6, 50, 55–6, 263, 267–9 International Atomic Energy Agency (IAEA) 69 International Covenant on Civil and Political Rights (ICCPR) 133–4 International Security Assistance Force (ISAF) 245 Internet of Things 118–19 Ireland 15, 17–18, 57–8 Northern 117 Irish referendum 46, 87 Israel 66, 71–3, 193 Italy 18, 72, 100–101, 132, 135, 205–6, 210, 219–20, 266 Joint Situation Centre (Sitcen) 22 Jordan 66, 71 Justice and Home Affairs (JHA) 2, 24, 31, 47, 56–7, 59, 75, 78, 85, 143 Kerchove, Gilles 56 King Jesus Christ Guerrilla 211 Koidula 158 Kokott, Juliane 139 Kosovo 68, 89, 195–6, 198–9, 275 Kouchner, Bernard 198 Kozak memorandum 72, 77 Kuwait 195 Lebanon 66, 75 Liberation Antiterrorist Groups 211 Libya 66 Lisbon Treaty 46, 52, 57–8, 77–80, 82, 85–7, 97, 111, 117, 124 Macedonia 68, 167, 199 Malta 144, 151

Index Management Information Format Databases (MIFD) 118 Mauritania 132–4 Médecins sans Frontiers 198 Medvedev, Dimitry 74 Medyka 157–8 Mexico 176 Middle East 68, 71, 77, 251 conflict 74 peace process 72 Quartet 74 Miliband, David 82 Moldova 66–9, 73–4, 77–8, 144–5, 163 money laundering 35, 57 Montenegro 167 Morocco 66 Morozov, Nikolaij 194 Moscow 73–4 Mujahadeen 193 Nagorno-Karabakh 72 nationalism 5 Netherlands 36, 72, 84–5, 109, 115, 137, 142, 176, 181, 218, 229–30, 232, 292 Newcomers Integration Act 232 netwar 195 New York 65 Nice Treaty 45, 86 non-governmental organization (NGO) 24–5, 73, 95, 143, 146, 150, 190, 198–9, 201, 264 Non-Proliferation Treaty (NPT) 71 non-refoulement 47, 133 North Atlantic Treaty Organization (NATO) 12, 72, 75, 195, 199, 245, 267, 274, 276 Northern Alliance 196 Nouakchott 132 Nuclear Suppliers Groups 69 Obama, Barack 270, 277 administration 80, 265 Occupied Palestinian Territory 66 Organization for Economic Cooperation and Development (OECD) 274 Organization for the Prohibition of Chemical Weapons (OPCW) 69

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Organization for Security and Cooperation in Europe (OSCE) 72 Minsk Group 72 organized crime 39, 65, 73, 116, 148 Pacchetto Sicurezza 205 Pakistan 196, 247 Palestinian Authority 69, 71, 73, 77 Palma, Mauro 213 Passenger Name Record (PNR) 59–60, 94, 104, 222 pattern recognition technologies 13 Pavilionis, Zygimantas 74 peace building 73 enforcing 199 keeping 199 support operations 199 Poland 17, 25, 144, 149, 151, 255, 162–3, 165 police à distance 132, 142 politics of emergency 189, 244 Portugal 72, 132, 259 power civilian 81, 87 ethical 82 humanitarian 82 model 82 normative 81, 95 peace 81 smart 82 soft 75, 81, 246 super 81 privacy 2–3, 6, 24, 53, 57, 94, 96, 102, 109, 116–18, 121, 123, 126, 138, 150, 224 Process for the Union of the Mediterranean 71, 80 profiling 55, 60–61, 148, 224, 226, 246 biological 207 ethnic 24, 103 racial 149 Prüm Treaty 36–7, 222 Radio Frequency Identification (RFID) 118, 120, 122 Rangers 196 Rapid Reaction Force 68 Rehn, Olli 167

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Revolution in Military Affairs (RMA) 195–6 rogue states 192 Roma 17, 21, 24, 143, 149 Romania 15, 24, 41, 57, 145–7, 151–2, 155, 167–70, 172–3, 175, 177, 180, 182, 184–7 General Directorate of Passports 180 General Inspectorate of the Border Police 180 Readmission agreement with the Benelux countries 177 Rome Treaty 109 Rotterdam 230 Rumsfeld, Donald 268 Russia 71–4, 76, 144, 157, 161, 163, 165 Partnership Agreement 74 Russian Federation see Russia Schengen acquis 144–5, 151, 155 area 138, 146–7, 155–6, 165, 222 Borders Code (SBC) 42–4, 47, 132, 156–7, 159–60, 162 Information System (SIS) 34, 57–9, 138–40, 222–3, 225–6 Second Generation Information System (SIS II) 34, 40, 59, 138, 140, 222–4 states 58, 139, 186 Scotland 117 security external 22–3, 51, 87, 114, 129, 262 internal 14, 37, 43, 50–51, 53, 54, 89, 93, 102, 106, 114, 118, 130, 262, 268 national 13, 97, 105, 110, 117, 183–5, 203, 267, 270 Senegal 132–4 September 11 1, 4, 22, 27, 39–40, 52, 65, 67–71, 76–7, 79, 81, 89, 189–3, 196, 201, 210, 229, 237, 242, 244, 251, 263–6, 270 Serbia 144, 147, 163, 167, 192 servitude volontaire 286–7 Sierra Leone 199 Sighetul Marmaţiei 157 Slovakia 25, 151, 155, 162–3, 165 societal orientation test 230 Solana, Javier 34, 68, 72, 77, 81

Solidarity Fund 258 South Ossetia 74 Soviet Union (former) 70 Spain 36, 109, 113, 115–16, 132, 134, 139– 40, 148, 185, 204–6, 210–13, 226 Spanish Antiterrorist Groups 211 Basque Battalion 211 Criminal Law of the Enemy 210 National Action 211 Tribunal of Public Order 210 Stability Instrument 68 Stabilization and Association Process (SAP) 167 state of exception 192, 238, 266, 269 Stockholm Programme 2, 24, 144 surgical operations abroad 267 surveillance 11–14, 22, 33–5, 39, 47, 49–50, 56, 69, 102–3, 115, 144, 146, 149–52, 161, 197, 207, 218, 222–4, 241–2, 244, 246, 248–9, 252, 264–5, 267–8, 271, 273, 285 companies 13–14, 268 industry 13, 267 satellite 12, 267 Sweden 72 Syria 66, 75 Taiwan 176 Taliban 196, 245, 247 Tampere Programme 38 Tel Aviv 73 Terespol 158 terrorism 13, 18, 21, 27, 31, 35–7, 57, 59, 65, 77, 79, 93–4, 97, 104, 192–4, 198, 201–3, 206, 210–11, 213, 215, 217, 222, 229, 237, 244, 247, 252, 254, 259–60, 262–4, 268, 275, 277 counter- 32, 57, 59, 97, 193 hyper- 266 war against 192, 213, 237, 241, 244, 248–9 Thessaloniki Agenda 167 third pillar 35, 38, 44–5, 56–7, 59, 109–10, 130 democratic deficit 38 weak judicial accountability 38 Tiszabecs 156–7, 163

Index Tompa 158, 163 torture 48, 100, 201, 211, 213–15, 238, 245–9, 264, 269–70, 278, 282 Transnistria 72, 145 Treaty of Amsterdam see Amsterdam Treaty Treaty Establishing a Constitution for Europe see Constitutional Treaty Treaty Establishing the European Community see European Community Treaty (TEC) Treaty on the European Union (TEU) 38, 46, 57, 78, 97, 99, 130, 254 Treaty on the Functioning of the European Union (TFEU) 99 Treaty of Lisbon see Lisbon Treaty Treaty of Prüm see Prüm Treaty Trstenjak, Verica 225 Tunisia 66 Turkey 18, 72, 163 Twitter 120 Ukraine 66, 72–3, 144–5, 147, 157, 160, 162–3, 166 undocumented migration 78 United Kingdom (UK) 15, 17, 45, 49–50, 57–8, 70, 109, 113, 115–16, 185, 196, 244–5, 266, 274, 276 Anti-Terrorism, Crime and Security Act 244–5 Data Privacy Ombudsman 117 House of Lords 39, 46, 57, 108, 110, 245 Select Committee 46 United Nations (UN) 67, 70, 72, 74, 76, 192, 199, 241, 245 Charter 8 Convention against Torture 48 Optional Protocol (OPCAT) 215 Educational, Scientific and Cultural Organization (UNESCO) 2 General Assembly 8, 69 High Commissioner for Refugees (UNHCR) 164, 199 Human Rights Commission 134 mission to Kosovo 198 Security Council 8, 69, 70, 105 Resolution 1540 70

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United States (US) 1, 2, 4, 6, 8, 12, 14, 18, 22, 53, 60, 65, 70, 72–8, 80, 94, 104, 115, 177, 193, 195–6, 213, 245–6, 251, 256, 271–4, 279, 286 administration 51, 193, 266, 273, 277 Automated Targeting Programme 60 Central Intelligence Agency (CIA) 12, 151, 196, 245, 267 Congress 266 Department of Defense 13, 268 Homeland Security 266 Justice 266 State 266 Federal Bureau of Investigation (FBI) 13, 53, 267 government see administration Patriot Act 276 Pentagon 12, 266–7 PNR Agreement 59–60 White House 76, 270 Utrecht 132, 230 Valladolid controversy 275–6 Casas, Bartolomé 276 Sepúlveda, Juan Ginés 276 visa 18–20, 24, 39, 45, 59–60, 143–4, 146–8, 155, 167–70, 173, 175, 187, 220, 222, 224, 226 black list 18–9, 25, 168–9, 181, 187 facilitation agreement 18 Information System (VIS) 34, 40, 57, 59–60, 222–4 white list 18 Vysne-Nemecke 157 War Cold 192, 194, 263–4 First World 261 Gulf 195 Russian-Georgian 72 Second World 251 Washington 65, 70, 72, 80 weapons of mass destruction (WMD) 22, 65–71, 76, 78–80, 284 Monitoring Centre 68 non-proliferation 68, 70–71 Westphalia Peace 16

330 Yugoslavia (former) 193

Europe’s 21st Century Challenge Zosin 157–8, 163