Much ado about nothing..new? On the latest ‘Schengen governance package’

Any surprise in the Schengen package

Any surprise in the Schengen package?

Finally! After a tortuous two year gestation, Europe’s triumvirate – pardon, Troika (European Parliament/Council/Commission) -has agreed upon a package of proposals aimed at rendering Europe’s border control regime more effective and predictable. The push for reform came in the aftermath of the spat between France and Italy over the handling of migrants crossing the Mediterranean in the wake of the 2011 Arab spring.  The main issue arising from this affair was the need to clarify (and possibly expand) the nebulous rules about the re-imposition of national border controls in cases of “serious threat to public policy or internal security”. At first sight, this seems to be just a technical issue. Only boring policy wonks (like me) could consider interesting (exciting?) questions such as ‘How many days can a member state re-impose border controls?’, ‘Under what conditions?’, ‘How and when should EU institutions be informed?’. What a snooze! Well, maybe not so much. These questions are actually more intriguing than they might seem at first sight. Forget for a moment the technocratic language in which the current public debate about the Schengen governance package has been couched (an art the EU is very good at). If we scratch the surface we can see that at the core this matter is eminently political. And with politics, comes drama! The issue here is the ongoing power struggle among the EU triumvirate over the distribution of competences within the Schengen regime. In other words: who is in charge? How else should we read then the posturing, maneuvering, arm twisting that has characterized the Schengen reform saga in the last two years? (Emblematic here is the EP’s ‘nuclear option’ of boycotting the negotiations over the justice and home affairs agenda if the Council did not withdraw the ‘outrageous’ decision to purge the parliament from the Schengen evaluation process)

This is Schengen politics at its best (or worst, depending on the perspective). Pragmatism, especially the reliance on ad hoc and flexible institutional arrangements and procedures, is in Schengen’s DNA, a trait which Europe’s border control regime acquired in its early intergovernmental days outside the EU and that it has not completely got rid of after its communitarization in the late 1990s. Indeed, I would go a step further and argue that its incorporation in the EU has not really de-Schengenized Schengen; looking at the EU today I see the ongoing Schengenization of the EU, not the other way round…. This pragmatism is only superficially a-political. Political is in fact the move of depoliticizing highly contentious issues by repackaging them as merely technical matters and by sheltering the policy-making process from the public eye.

It is in this pragmatist light that we should read the latest announcement about the Schengen ‘package’. The fact that a compromise was reached (the establishment of an evaluation and monitoring mechanism  jointly managed by the European Commission and member states; changes to the Schengen border code to include new circumstances in which border controls can be re-instated) despite the tensions and reciprocal threats and vetoes from the major actors involved in this saga, is not such a miracle after all. That’s how Schengen ‘normally’ works. In the past, bouts of what seem existential ‘crises’ that periodically hit the regime, have been solved (at least temporarily, until a new crisis erupts) with the proverbial political pat on the back. What this solution  – political one, since political crises cannot be solved if not through political solutions – comes down to is a revamping of old tacit rules, vague enough so that everybody can see what one likes. This sleight of hand, however, might not overcome the very problems it sought to address, possibly creating new ones. Are we sure member states are going to allow EU institutions (the Commission, Frontex) to assess their ability to manage their borders and accept their suggestions?  Will member states really wait for the Commission’s evaluation (which could take up months) before re-imposing internal border controls in the case of another member neglecting to fulfill its duties at the common external border?  If the past experience is of any indication, I would not be so optimistic… Indeed, even if the rules of the game have now been more clearly spelt out, it is obvious that they can be interpreted with substantial latitude. With Schengen, the main culprits are typically member states, but EU institutions are quite apt in the art of liberal (i.e. expansive) reading of agreed upon rules. What do we make of all that? Well, the same old story. Schengen has a capacity to withstand phases of internal turmoil, such as the one that followed the Italo-French spat. The way it manages these recurrent crises is as we humans do when under stress (NB: for those who from time to time stumble upon my blog, you’ve probably noticed my penchant for medical metaphors…). What do we do? Typically, we switch to an ‘emergency mode’. We’re ready for the worst, and act as if the worst can happen. We question our routines, and, if needed, we try to tweak them. We make new resolutions to avoid problems in the future. But this is just a temporary coping strategy. Once we are persuaded that everything is OK, we switch off the emergency mode. And then we return to our previous routine. The Schengen triumvirate seems to be following this path, shaking hands and congratulating themselves for the new deal. Until, of course, a new crisis disrupts the newly achieved consensus and we start hearing calls for ‘clearer rules’… The latest Schengen package reform? Much ado about nothing new…

Making sense of Schengen’s contradictions

What a snub! Last June,  the European parliament (EP),

Twisted & thorny

in an unprecedented move, suspended cooperation with the EU’s other main legislative body, the European  Council, following the latter’s decision to exclude the EP from the supervision of the Schengen free travel zone. This is just the last of what is becoming a long series of bumps in an already troubled journey Schengen has faced in the last year. The attempt by member states to effectively ‘renationalize’ the regime has also revamped long standing criticisms levelled against Schengen, such as the fact that it is a top down system lacking democratic control and input, its flexible method has damaged the EU’s institutional coherence, it over-emphasizes security over freedom, it has a negative impact on Europe’s neighbours and non EU citizens, and its expansionary drive can lead to overstretching…  What a damning list! Bad as they might sound, in reality these are the very features that have rendered Schengen so successful in the first place…But they are also what might lead to its demise in the long run… What follows is my attempt to unpack this apparent contradiction.

The fact that Schengen is an elite-driven and undemocratic enterprise has prevented an open discussion about the actual meaning of ‘European border’ from taking place. In a national context, the legitimacy of the state as main provider of security  is based on the protection of citizens qua nationals. With Schengen, it should be based on shared protection, but the current arrangement lacks a genuine sense of solidarity and shared identity of the protected. This shared identity must emerge for the peoples of Europe to fully accept a common external frontier and the abolition of police controls on frontiers between them. Since the regime’s inception, Schengen’s popular support has been mainly passive, and based on practical results of the policies introduced. Its relative shallowness is reflected in the fact that popular opinion has fluctuated depending on the issue at stake and the mood of the moment. This condition seriously weakens Schengen’s legitimacy, and it could hurt the long-term success of the initiative.

If the lack of popular support has prevented Schengen from gaining greater legitimacy, its reliance on flexible methods has created political and legal fragmentation in the policy-making process. The result has been increased complexity and diminished transparency. These issues were a source of concern before Schengen was incorporated in the EU, and they remain so today, given the undiminished appeal of ‘enhanced co-operation’ arrangements in the area of justice, security and freedom.

Even more worrying is the potentially self-destructive dynamic stemming from Schengen’s ‘internal security dilemma’. According to this logic, security is a necessary precondition for the establishment and expansion of freedom in a given community. The quest for security, however, can never be completely fulfilled, since this is an inherently subjective and unstable condition. As a result, security feeds more security, and the process can potentially go on ad infinitum. One of the side effects of this ‘hyper-securitization’ is that the policies it entails become almost exclusively repressive, since they are aimed at sealing off Europe from potential threats. This explains why Schengen has been opposed by civil libertarian groups in current member states and it has created widespread suspicion and resistance among Europe’s neighbours. It also explain why it has been fiercely contested by critically oriented scholars and activists who consider Schengen a vehicle for the imposition of a particular gendered, raced and classed vision of reality.

The prospect of new states – even current EU members states such Romania and Bulgaria –becoming fully integrated into the Schengen space represents another serious challenge to the regime’s future viability. The quest for expansion was part of this project since the very beginnings, and this feature was maintained with its incorporation in the EU. A potential implication of this ‘bigger is better’ logic is that the system may become overstretched and eventually lose momentum and effectiveness (not to mention its function as laboratory for the EU). Arguably, the EU’s main post-enlargement challenges stem from the increased political, structural and implementation capability diversity that the new members will bring. All these differences will remain after enlargement (if it ever occurs), rendering common decision-making in border control matters more problematic.

Steps have indeed been taken, or at least discussion is ongoing, to address some of these shortcomings. So far there have been proposals to make the policy-making process in justice and home affairs more transparent. These discussions have focused on increasing transparency through better information on objectives and progress to parliaments, the media and the citizens, as well as more effective parliamentary control. Ideas to expand and render more meaningful EU citizenship are going in the direction of creating a sense of solidarity and shared identity among Europeans. The European Commission has been the most vocal in ensuring that concerns over security do not overshadow the ‘freedom’ and ‘justice’ objectives of the EU, thus guaranteeing a better balance in the delivering of these public goods.

Despite these attempts, addressing Schengen’s shortcomings will be difficult. The main reason is that these elements in the Schengen experiment are, ironically, also some of its major assets. These features were instrumental in allowing the border control policy community to go beyond the nationalist commonsense. In terms of participation and democratic control, opening up the debate over Schengen would have weakened the community’s effort in pursuing it. Flexibility was one of Schengen’s major strengths, since it allowed European policy-makers to avoid getting bogged down in legal and bureaucratic wrangles or the vetoing by individual countries, as often occurred in the EU. The emphasis on security, especially at Europe’s external borders, was aimed at soothing popular anxieties that the lifting of internal frontiers was believed to create. Limiting the rights of neighbours and non-EU citizens has become the price paid in order to expand the rights of EU citizens, and more generally a way to externalize the negative implications of the newly created area of free movement. Finally, the continuing expansion of the regime, now including the new EU members, represents a politically expedient means to solidify the regime and to guarantee its survival.

            The tensions within Schengen have so far been contained, because of the political support it has among most existing members. This support, however, has been seriously tested recently (see, for example, the recent brouhaha over the right of individual member states to re-instate borders in cases of emergency ) and that might create problems in the long term, and even lead to the unthinkable, that is a Europe without Schengen.

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