Security in European Union External Border Law

Introduction

Safeguarding the security of its citizens is one of the essential tasks of a state. Border control with its real and perceived security function is therefore of great material and symbolic importance. Developments in European Union law, notably the Schengen interpretation of the internal market as an area without internal frontiers, have introduced a logic that renders some form of European Union external border policy indispensable. As a result, this traditional domaine r’eserv’e is turning into a domaine partag’e, a field of shared competence. Although international obligations, practical limitations and globalization processes diminish the effective meaning of autonomous state power, formal and fundamental shifts in competence such as these are still of great significance [1].

The objective of this research is twofold: to analyze the legal expression of security considerations in the control of persons seeking to cross the European Union external border, and to clarify the division of competence with regard to this aspect of the border security regime. Central questions in this investigation are: what is or are the concepts of security that are employed in European Union external border law when it comes to the control of persons seeking to cross that border? What risks are considered and how are they dealt with in this law? At what level are the risks defined and asserted, and what actors are competent to make and judge these assessments?

Legal writing on migration in Europe has focused predominantly on the rights of individuals. Within this research however, questions of constitutional design and governance are central. State and Union Institutions take it as their responsibility to protect their citizens: to provide them with ‘security’. In order to do so, they must have or form an idea of the threats to be faced. These perceived threats do not necessarily correspond to objective risks, or to the knowledge of these. Yet, in the end, perceptions determine policy and law-making. Perceptions thus lead to legal facts, are based upon these facts and create a framework of reference, a view of the world that reflects and determines at least in part our dealing with it. Policy and rules in turn influence people’s lives in a very real way. It is therefore important to analyze the arguments and measures that are produced in the European political discourse on security and migration. Fundamental rights are involved insofar as they are part of the legal regime to be studied, and for the part that is taken to be relevant for the issue of security. Other constitutional aspects concern the division of competence over border control and the determining and maintenance of security in European societies.

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Security in European Union External Border Law

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