Elspeth Guild and Didier Bigo, “Collectively Specifying the Individual: The Schengen Border System and Enlargement,” in Malcolm Anderson and Joanna Apap, Police and Justice Co-Operation and the New European Borders (New York: Kluwer Law International, 2002): 121-138.
***** ***** ***** ***** ***** ***** ***** ***** ***** *****
Guild and Bigo provide a basic framework for understanding the Schengen agreements and the basic problems of their implementation, continued interpretation, and conflicting national/international claims. More specifically, they explore the way EU Member States specify which individuals constitute security threats and the problem of an international border regime that operates through mutual recognition of national decisions rather than international harmonization [nb: which may, since 2002, be less of a problem than when the article was written].
They note that “[t]he EU objective as regards movement of persons is the creation of a common territory without internal borders (at least not at the frontiers between the Member States) accompanied by one common external frontier” (121). The entire experiment of the creation of the European Union is based in the free movement of goods, persons, services, and capital, and as Guild and Bigo make clear, the initial implementation of an (EU internal) open borders regime in the early 1990s was held up specifically due to disagreements over the free movement of persons – not goods, services, or capital. The stumbling block was the question of security.
Guild and Bigo outline three principles regarding the free movement of persons, “achieved through the deployment of four tools.” The principles are (125-126):
1. “No third country national should gain access to the territory of the Schengen States (with or without a short stay visa) if he or she might constitute a security risk for any one of the States;”
2. “A presumption that entry across one Schengen external border constitutes admission to the whole territory and an assumption (not as high as a presumption in law) that a short stay visa issued by any participating state will be recognized for entry to the common territory for the purpose of admission (there are explicit exceptions justifying refusal specifically on security grounds;”
3. “Once within the common territory, the person is entitled to move within the whole territory for three months without a further control at the internal borders of the participating states (this rule is also subject to exceptions on grounds of security.”
The tools are (126):
1. “The Schengen Information System;”
2. “A common list of countries whose nationals require visas to come to the common territory for short stays (visits of up to three months); and a common list of those excluded from the requirement. The definitive black and white lists were achieved in December 1998;”
3. “A common format, rules on issue and meaning for a short stay visa;”
4. “Carrier sanctions.”
The focus of the Schengen regime, then, is on who is and should be excluded from the entire ‘territory’ of the European Union. It does this, as noted above, by a system based on each Member State recognizing the legitimacy of each other Member States’ claims of security and interests. In other words, if one Member State excludes a specific person, then all other EU members are obliged to uphold that decision, except in circumstances where right (i.e. to asylum) conflicts with arbitrary notions of security.
Schengen articulates three levels of exclusion:
1. Those specific persons appearing in the common list (in the Schengen Information System database) based on prior actions, associations, and/or status; [a priori individual exclusion]
2. Those persons not yet specifically excluded, but accepted as having the potential for risk; a system of visa restrictions keeps these populations in their own countries (away from the physical EU space), effectively moving the border to the embassy/consulate; [a priori group exclusion, allowing individual exceptions]
3. Those persons included in the exclusion lists by virtue of their citizenship in a State facing a group exclusion who are not granted visas. [a posteriori individual exclusion]
Visas in this formulation are a method of shifting the “effective border” from the EU Member States’ physical territories, to the interior of the applicant’s own State. This prevents “risks” from occupying EU space until they are deemed acceptable.
A problem within the Schengen regime has been the definition of risk. As noted, each Member State is able to define their own parameters for what/who constitutes a risk, which leads to conflicts at times between Member States (i.e. the recent event where France stopped the TGV at the Italian border because the train was filled with people fleeing the conflicts in North Africa) (131). Indeed, the only basic category agreed upon by the Member States is that, at some level, risk is defined as poverty: “As regards the identification of risk categories, the Common Consular Instructions states that ‘it is necessary to be particularly vigilant when dealing with ‘risk categories’ in other words unemployed persons, and those with no regular income etc.’ Thus, the most precise categorisation on mala fides persons who are profiled as a risk are the poor. These are the persons who will always menace the security of the Member States” (129).
Significantly, Schengen does not apply to long-term stays (beyond three months), although it has “substantial consequences” for long-stay visas and residence.
What is significant for the entire Schengen regime, one of the constituent ideas of the EU itself, is the fact that in the opening up of borders, the Member States must further codify (beyond day-to-day policing) what is desirable/undesirable in individuals wishing to access the European Union. Although Schengen identifies groups/nations deemed “risky,” the basic functioning of the entire regime is inscribed at the level of the individual body. Schengen does not begin with who is allowed, but rather with a specific category of risky individuals, the poor, who are then mapped upwards based on either human rights claims (as in family reunification, asylum, and so on) or their specific utility to the EU (as in their ability to be productive). In a rather significant way, then, entrance to the EU is determined according to the narrow space of those lucky enough not to be excluded, instead of in some sort of positivity. This means that one of the very founding pillars of the contemporary European Union is the exclusion of risky individuals, wherein risk is most concretely defined as poor.