Securitization, Liberty, Law

Objectives

This work package has as its objective to examine the law of citizenship and governance from the perspective of civil liberties and security. It will engage the question of legal mechanisms of constitutionalism which set the boundaries of citizen and foreigner. Central to this analysis will be 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. It will be undertaken in four parts.

This work package is intrinsically connected with those of the Universities of Utrecht on the legal nature of borders, Genoa on social security, Sciences Po on definitions of borders, Keele and Kings on the principles of exceptionalism and CEPS in the enlargement aspect. This part of the project is also intrinsically linked to the CEPS work package on enlargement and the changing dynamic of security. We will work with the Central and Eastern European colleagues on the question of the transformation of identity and citizenship of the Union following enlargement. The issue of the management of the external border and relations with the surrounding states brings us into direct collaboration with research institutes outside the EU including in Russia and the southern Mediterranean. Our work will also feed into the work of the University of Athens on stability in the region.

The examination of the elements of citizenship is also central to the work of members of the European Parliament such as Sarah Ludford and Jean Lambert MEP. The concerns of the Civil Liberties Committee of the European Parliament are reflected in this work package. Many non-governmental organizations across Europe have also been involved in these issues. We will build on and share with them this work, specifically with the Migration Policy Group in Brussels and Amnesty International.

There will be four subcomponents of the WP which will examine different aspects of the objectives:

1.Investigation of liberal constitutionalism within the meaning of European Union law: the definition that constitutions are the expression of a certain idea of political power which finds its legitimacy in its founding principles (Badinter: 2002) the legal framework of that definition will be examined.

Political power has traditionally expressed itself in nation states in the context of a legitimate claim to a monopoly of violence; such a monopoly of violence when expressed by the state in respect of the citizens is expressed in criminal law and criminal procedural rules; the constitutional settlements about the exercise by the state of violence against the inhabitants has been the subject of the gradual embrace of the state by the citizen by which means the state’s right to claim the monopoly only enjoys legitimacy if civil liberties protections are present. We will examine the adoption of EU measures in the field of criminal law from the perspective of constitutionalism.

2. Transforming population registers: citizenship, governance and the Schengen Information System: what is role in governance of information on population movements? Among the oldest of the Union’s databases is that which it inherited from the Schengen Implementing Agreement. The differentiation between citizen and foreigner in the system provides substantial insights into the mechanism of constitutionalism. Starting from nationality of a Member State to the other end of the spectrum of third country national, the legal framework and operation of the SIS has been central.

3. Central question of the underlying research is whether the rights and civil liberties of third country nationals seeking to cross Europe’s external borders are in an appropriate way balanced against the legitimate need of governments to control their external borders and to protect the internal security.

4. As the Union becomes increasingly engaged in common security and defence policies and actions the nature of the relationship between the Union and third country nationals outside the territory of the Union becomes important.

Description of work

Part I

Citizenship and constitutions are very much under scrutiny at the moment in Europe. The fields of belonging, exclusion, political participation and governance are all under the microscope as the European Union moves into the 21st century. A series of events have brought about this revival in interest, most of which are directly related to the flux which is currently at the heart of the Union. The issues central to this development are: (1) the establishment and fleshing out of citizenship of the Union; (2) the development of an EU charter of rights and the express transformation of the treaties governing the Union into a constitutional charter; (3) the process of enlargement of the Union with the admission of 10 Central and Eastern European countries, Baltic states and two Mediterranean island states (4) the tensions attendant on developing a common foreign and defence policy and the changing responsibilities of policing and defending in an Area of Freedom, Security and Justice, a «circle of friends» as described by President Prodi. The legal framework, which presupposes the use of the word «citizenship», is the heart of the current European debate on constitutionalism. Inherent to the idea of citizenship is a constitutional framework, which engages the individual and the mechanisms of governance and obedience. At the core of the concept of citizenship is equality between and among citizens.

A number of trends can be observed in the development of European constitutionalism. The differentiation which is taking place between the citizen and the foreigner has taken on the dimension of security threat and security object. Among the central characteristics of European constitutional processes over the past four centuries has been the definition of the individual as a visible participant in the system of governance. The principle of equality is central to constitutionalism. [1] Rules apply by reference to classes of persons within which differences of treatment or rights must be justified by exceptions. Outside the class there is no duty of equal treatment and thus no need for individual exceptionalism. [2] The definition of the individual within the legal order and the system of governance is central to the constitutional process. The development within European states of universal suffrage and voting rights for women are some well examined examples. These examples relate to persons whose claims to presence on the territory are not disputed. In the current constitutional discussion in Europe, individuals are differentiated on the basis of class depending on where they come from. Thus the rights of a German in Germany and a German in France are different in the EU legal order (by application of the wholly internal rule). The individual is still at all times a citizen of the Union but his or her visibility as a subject of equality is different. Nowhere is this more apparent than in respect of social policy and solidarity. [3] Current literature on immigration and citizenship seeks to understand the process of inclusion and exclusion from the starting point of a fixed territory and (allegedly) stable legal order. [4] This discourse is used in the EU context as shorthand for Community nationals versus third country nationals. Citizenship as a central element of constitutionalism in the EU is the subject of a different set of terms - convergence, diversity and culture.

The construction of a European constitution is part of the definition of the participants and the excluded. At the moment the fragmentation of rights results in no clear body of individuals who are «citizens» in the sense of enjoying equal treatment in the exercise of the basic right of belonging - protection from expulsion. The field of sovereign exceptionalism extends into the core of citizenship and justifies itself on the basis of the definition of the territory. The restructuring of the concept of citizenship at the EU level also has consequences within the Member States on the concept of belonging. In the Netherlands debate takes place on whether dual Dutch/Moroccan nationals can be expelled; the UK passes legislation permitting the state to deprive nationals of British citizenship in new circumstances. The difference between citizen and migrant is diminishing though not always in the directions expected. Central to the legal definition of the space of exceptionalism is terrorism and threat to security. This requires a very specific legal definition of security beyond the scope of public policy, public security and public health contained in EC measures on free movement of persons. [5] In this project an analysis of the development of the outside in - third country nationals as security threats will be developed.

The issue of citizenship is increasingly central to determining where and how the legitimacy of the Union will be constructed. If citizenship is to become a concept which engages more than immigration rights what will be the change in the political framework of the Union? The delicate balances between the powers of the Member States alone and the Union are under constant pressure. The multilateral actions in 2002-2003 in respect of Iraq have highlighted the differences among some of the Member States and focused international attention on the continuing strength of the nation state in Europe. However, the development of citizenship of the Union is an indicator in another direction. The fact that there can be different and contradictory indicators of what the Union is in existence both at the same time may indeed be an important marker of what a supra national governance structure might entail. It is not clear that the Union is in the traditional process of state formation but rather in fact is engaged in finding a different form of legitimacy which is nonetheless linked centrally with citizenship and the rights of citizenship. Professor Elspeth Guild will undertake this research.

Part II

The transformation of population registers, citizenship, governance and the Schengen Information System is central to the issue of securitization of new technologies and the work of the Universities of Portsmouth and Copenhagen. We will be working closely with them on the issues of continuity and change in the means of data collection and use. The results are of particular interest to a number of European nongovernmental organizations, including the Meijers Committee (Netherlands) and Statewatch (UK). Evelien Brouwer, researcher, University of Nijmegen will undertake this research.

The Schengen Information System (SIS) is a European database based on the Schengen Implementing Agreement (hereafter SIA) of 1990. The SIA regulates the abolishment of border controls between the, at this moment (Feb. 2003) 15 participating states. The SIS, which has been operational since 26th of March 1995, has always been described as one of the tools to compensate for the lifting of internal border control between the European countries.

The SIS includes different categories of data, including objects and persons. Research in 2000 (by the UK NGO Justice) established that the largest part of all the data recorded on persons in the SIS concern third country nationals (non EU or non EEA nationals) to be refused entry. This category, based on Article 96 of the SIA, includes on the one hand persons who are to be considered as a threat to public order, public security or national security, and on the other, persons who are subject to measures of deportation, refusal of entry or removal, based on the fact they did not comply with national immigration law, and whose entry or residence is therefore prohibited. The decision to enter an individual on one of these grounds is thus a national matter, based on national criteria. However, the consequence of this decision is that the person concerned is, as a rule, to be refused entry to the territory of each Schengen State. The effectuation of Article 96 is thus based on a system of mutual recognition of national decisions on the refusal of third country nationals, rather than on the harmonisation of refusal grounds.

The availability of large, European wide information systems includes a continuing temptation for participating Member States to widen the use of these databases. At this moment at the European ministerial level, different proposals are discussed to extend the use and content of existing databases such as SIS, but also to set up new databases (the European Visa Identification System) or to interconnect different existing databases (Europol, Eurodac). These proposals are often, especially in the aftermath of the terrorist attacks in the United States in 2001, justified by the need to safeguard the internal security. In the light of these developments, the question on the availability and scope of the legal remedies for third country nationals, including those who have legitimate reasons to seek access to one of the Schengen territories, is becoming more and more important.

Therefore this study examines the availability of legal remedies and the scope of judicial review for third country nationals who are entered on the basis of Article 96 into the SIS. Looking at the national law of selected European countries, an answer is to be found on the following questions:

What is the scope of the competence of national courts to assess the legitimacy of decisions of authorities of other national states. What is the binding force of their judgments in these states against the background of a system of mutual recognition of national decisions, where common EC rules on the applicable law with regard to these decisions are lacking?

What is or has been the added value of data protection law with regard to the judicial protection of individuals, and especially third country nationals, with regard to the functioning of databases like SIS?

Are differences in judicial protection between EU-nationals and nationals of a Member State on the one side, and third country nationals on the other side, justified in the light of the principle of non-discrimination?

The research will include the description of the development, purpose and content of the Schengen Convention and SIS, in particular with regard to Article 96. Future developments, as proposals on the change and extension of SIS will be dealt with as well. The cooperation through SIS will be compared with other European databases. The research will take place through investigation of the parliamentary debates. Further the legislation, as well as the practical measures which are taken in these countries to implement the Schengen Convention will be described. Finally, analysis will be made of the available case law of national courts as well of the national data protection authorities with regard to Article 96.

Part III

Social rights, citizenship and foreigners develops themes, which are also being researched by the Universities of Genoa and Barcelona. The effects of wealth distribution are of central concern to this project. The construction of a European identity as incorporating social security is a theme, which both the European Parliament and nongovernmental organizations in Europe has insisted upon. Dr Paul Minderhoud, researcher at the University of Nijmegen will undertake this part of the project.

Citizen, national and foreigner: the construction of governance through security: standard state theory places the state at the heart of a project to protect the citizen through the provision of physical defence and protection which is accompanied by the extraction of resources from the individual to finance it. The context of state - individual relationship is placed in the field of law - duties of funding the state, rights to social protection from the state. So far the Union’s involvement into this field has been through indirect taxation and coordination of social protection systems which remain in their essence national.

The relation between migration and the nation state is a complex one. Migration challenges the nation state on issues as regulation and control on its own territory, especially in a period of growing récised ions. Present international migration is characterized by an increasing diversity of migration flows. This requires a flexible approach of regulation or control. One of the instruments more intensively used as a mechanism in order to regulate and control migration the last decade is social security. This part focuses on the increasing role of social security in this context. The focus on social security in this proposal will be from two different perspectives. First it will investigate how the social security system and social security agencies are used as (remote) control instruments of immigration and it will look into questions of responsibility, legitimacy and security. Second it will investigate the question how the changing patterns of migration-flows require an adaptation of the social security system. Who is entitled to which benefits and under which conditions?

Controlling migration-flows is one of the most important political issues in the EU at this moment. It is an area in which shifts in governance can be seen very clearly. Until recently it has been almost the sole competence of the central government to control and regulate migration in and out of the country. The last decade, however, a radical shift of governance can be distinguished. Migration policy reforms have incorporated since the 1990s new actors in the policy process that no longer operate at the national level but rather at the local or regional level, at the supranational level and at the societal/private level. There is, according to Guiraudon (2001), a «de-nationalization of migration policy», in which the level of competence and responsibility is shifting. She distinguishes a shifting upwards (competences are transferred from national state to supranational institutions, in particular the European Union), shifting downwards (competences from national state are delegated to local authorities) and shifting outwards (competences from national state are delegated to private organizations).

In immigration control, the distribution of responsibilities is changing. Control tasks are delegated to local and social security authorities. The employees of social security agencies but also of private récised ions, like airlines, are made responsible for checking immigration documents of aliens. These employees become the ‘deputy sheriffs’ of immigration policy.

This development touches issues that can be seen as the core tasks of the nation state, i.e. the entrance and expulsion of aliens to its territory. The shift from public to (semi-)private actors and agencies raises questions of responsibility, legitimacy and security. This development also raises questions on the consequences of these shifts in practice for the various actors as well as for different categories of aliens.

Part IV

An analysis of the articulation of military and police in a new constitutional framework takes this work package to a central issue of European identity. The transformations, which are taking place very rapidly in the Union on defense, make this of particular importance. Our collaboration will be primarily with Sciences Po which will be investigating various aspects of this issue. It will also engage collaboration with the University of Athens on the external security of the Union and with CEPS on the management of the borders. Professor Elspeth Guild will undertake this part of the project.

As project 1 in this work-package examines, the claim to a legitimate monopoly of violence over a territory has engaged very specific duties and obligations in the field of civil liberties regarding the exercise of violence within the state. Traditionally, the exercise of violence outside the state has not been subject to the same limitations - those exercising violence - ie military personnel - are not constrained by civil liberties obligations. Rather the conduct of violence is regulated by the treaties on the conduct of war (notably the Geneva Conventions).

Two trends both of which relate to legal frameworks are challenging this tradition perception. On the one hand EU military involvement is in the area of peace keeping, building and maintenance. In effect this has come to mean a form of policing abroad. The institutional discussions about the correct personnel to use for these purposes have given rise to some discussion in military circles in the Union - in particular a new role for police with military status seems to be developing. The second trend is in respect of the obligations on military personnel in action abroad. The European Court of Human Rights has been required to consider whether breaches of human rights contained in the European Convention on Human Rights by European military abroad constitute violations of the European state’s duties under the convention. The judgments so far have gone in both ways - in some of the cases of Cyprus v Turkey the EctHR has found Turkey in violation of its convention duties as a result of breaches of the Convention taking place in Northern Cyprus. The Bankovic admissibility decision of the EctHR indicates a different approach - relating to the 1999 bombing of the Belgrade television tower by NATO troops, the Court set out clearly its appreciation of when the Convention duties are engaged abroad: these are when the member State has:

Effective control of the relevant territory and its inhabitants abroad as a result of:

Military occupation (the situation regarding Turkey and Cyprus); consent, invitation or acquiescence of the state concerned; and

Exercises all or some of the public powers normally exercised by that Government.

Where are these conditions met? It is certainly arguable that the member States participating in KFOR in Kosovo may fulfil these conditions, in which case their activities would be subject to the ECHR duties. These are when the member State has:

Effective control of the relevant territory and its inhabitants abroad as a result of:

Military occupation (the situation regarding Turkey and Cyprus); consent, invitation or acquiescence of the state concerned; and

Exercises all or some of the public powers normally exercised by that Government.

Where are these conditions met? It is certainly arguable that the member States participating in KFOR in Kosovo may fulfil these conditions, in which case their activities would be subject to the ECHR duties. If one returns to the concept of constitutionalism and the claim to a monopoly over the legitimate exercise of violence, one can see a new schema evolving. Individuals who are the object of military action of a peace keeping, building or maintaining nature acquire rights (in the form of human rights rather than civil liberties at least for the moment) as regards the actions and power of those who are performing the actions. The relationship is no longer the one where the military’s duty of protection is to the citizen at home and does not engage except at a very low level the individual in the place where the action is being undertaken. Now there is developing a military duty of protection to those persons over whom the peace related activities are being undertaken. Taking the example of the most extreme form of violence which a European state is permitted to take in respect of its own nationals, detention, this project will examine the legal engagements which are developing in EU external security actions.

The four projects are inter-linked among themselves but are also linked directly with the examination of the status of borders which is being undertaken by the University of Utrecht. The legal meaning of EU borders is central to understanding where and what the constitution means and how it applies. Further project 3 on social protection is linked directly with the work package of the University of Genoa on the effects of wealth distribution, social inequality and poverty.

The whole package of projects will rely for much of the theoretical work of work package 1 of the Universities of Keele and Kings on the principles of exceptionalism. Comparisons will also be drawn with the US system.