How Shall the Strengthening the EU Borders From within Be Understood? Is It Yet Again about Consolidating Identity Based On Exclusion?

Podstawa, Karolina

Strengthening of external borders was a double-edged initiative. In external sphere, the creation of the external border controls took shape of many (more or less controversial from the legal point of view) arrangements which include visa controls, extra-territorial detention, coastal patrols of transit countries and maritime interdictions, surveillance and intelligence operations as well as diplomatic and cooperation initiatives.[1] Yet, the events of the Arab Spring have proven the extraterritorial border control system inefficient in protecting what was denoted as common and called for elaboration of measures which would reinforce the borderlands; patch the loopholes from within. What followed (though as the process had been initiated earlier) was the adoption of EU policy legal acts addressing the procedures to be undertaken once the external sieve proves insufficient and their implementation in the Member States where in a meantime a strong trend to sanction and penalise unwanted migration[2]started reigning. Hence the strengthening of borders was completed from within of the EU.

It is important to note that in case of the two developments, Charter of Fundamental Rights was an auxiliary document; determining standards to be followed but hardly being a point of departure for decision-makers; struggling to fulfil the breaking function characteristic for human rights instruments in wide understanding of rule of law.

Given the above, this paper strives to examine what is the role of fundamental rights for the EU borders – and in other words - to what extent the ChFR can be a living instrument in the EU migration policy context. In order to be able to answer this question, the paper will focus on the following issues:

- The role of human rights in the ‘external strengthening of borders’;

- The role of fundamental rights in ‘internal strengthening of borders’;

- The overlap of human rights commitments stemming from the ECHR and binding both the EU MS and the third countries.

From the methodological point of view, the paper will focus on the analysis of the presence of human rights/fundamental rights concerns in legal acts governing the two areas (including soft law documents). As the second step it will take on the human rights/fundamental rights controversies and examine the role the Charter has played in facing them.

If it turns out that the role of the ChFR becomes known only in the process of application of the EU law dealing with particular issues, it means that the creation of the borders is a purely excluding initiative denying universality of standards the ChFR draws from and yet again contributing to the creation of the Schmittian enemy.

[1] The classification following: Taylor Nicholson, Eleanor, Cutting off the Flow: Extraterritorial Controls to Prevent Migration, The Chief Justice Earl Warren Institute on Law and Social Policy, University of California, Berkeley Law School, Issue Brief, July 2011.

[2] As opposed to the wanted ‘cosmopolitan’ migration – see: Abdelhalim, Julten, Cosmopolitanism and The Right to be Legal: The Practical Poverty of Concepts, Transcience Journal Vol 1, No 1 (2010).