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The EU-Russia-US Triangle

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The EU-Russia-US Triangle Centre for European CEPS Working Document Policy No. 227/August 2005 Studies Integrated Border Management at the EU Level Dr Peter Hobbing Abstract In times marked by trends as diverse as economic globalisation, international migration as well as fear of terrorism and organised crime, the efficient handling of borders has become an issue of political priority, in the EU and across the world. Modern, economy-oriented states have to rely on a flourishing trade and offer a comfortable degree of security to their citizens. The formula commonly chosen in combining these two objectives is that of ‘integrated border management’, which represents the delicate attempt to marry security concerns with trade facilitation. If the implementation of this innovative approach is already proving to be a challenge to well-established nation states, it becomes a genuine balancing act for an incomplete federation such as the EU, with its sensitive mix of a single external border and 25 separate legal/administrative systems. This working paper seeks to illustrate the difficulties encountered by the EU and develop solutions that should firmly go into the direction of a coherent, communitarian approach in border management, such as that sketched out by the recent Council Regulation No. 2007/2004 establishing the European Border Agency (FRONTEX). Thinking ahead for Europe Peter Hobbing is an Associate Research Fellow at CEPS. His professional background at the European Commission has included relevant positions in the DGs responsible for trade control (TAXUD) and security (JAI/JLS); he also gathered operational experience in border matters as an officer of the German border security services. This paper was prepared for the Challenge (Changing Landscape of Liberty and Security) Conference on Implementing the Hague Programme: Operational and Legislative Functions on Justice and Home Affairs, Brussels, 30 June and 1 July 2005. CEPS Working Documents are published to give an indication of the work within various research programmes at CEPS and to diffuse relevant works from external experts in these fields. Unless otherwise indicated, the views expressed are attributable only to the author in a personal capacity and not to any institution with which he is associated. ISBN 92-9079-586-4 Available for free downloading from the CEPS website (http://www.ceps.be) © Copyright 2005, Peter Hobbing Contents 1. External borders: The ‘skin’ of the Union ...................................................................................... 1 2. A border concept appropriate to the EU.......................................................................................... 2 2.1 IBM concepts outside the EU ................................................................................................ 2 2.1.1 EU enlargement and new neighbours.............................................................. 2 2.1.2 North America.................................................................................................. 3 2.1.3 The customs approach ..................................................................................... 5 2.2 The complex elements of an EU approach........................................................................... 7 2.2.1 A chequered legal landscape... ........................................................................ 7 2.2.2 …and the adverse effects of key decisions from the past ................................. 9 3. Integrated border management ‘EU-style’: Current tools and their deficiencies.................... 10 3.1 The original set of Schengen instruments from 1985-90 ................................................. 10 3.2 From Amsterdam to Laeken................................................................................................. 12 3.2.1 Border-related measures (phase 2): The concept of burden-sharing............ 12 3.2.2 Internal measures (phase 2): Joint centres and other alternatives to border checks............................................................................................................. 15 3.2.3 Measures at the international level and on technical infrastructure............. 17 4. Current initiatives in light of The Hague Programme................................................................. 18 4.1 European Border Agency ..................................................................................................... 18 4.2 Proposal for a European border code.................................................................................. 20 4.3 Proposal for a regime of local border traffic...................................................................... 20 4.4 Statements in The Hague Programme on border management ....................................... 20 5. Conclusion......................................................................................................................................... 22 References ................................................................................................................................................ 24 INTEGRATED BORDER MANAGEMENT AT THE EU LEVEL CEPS WORKING DOCUMENT NO. 227/AUGUST 2005 PETER HOBBING 1. External borders: The ‘skin’ of the Union External borders and their crucial role for the smooth working of the Single Market, the Area of Freedom, Justice and Security and other basic objectives of the Union have long been recognised. ‘Union’ and (common) ‘border’ have formed an inseparable pair of notions since the early days of the common market and the EEC customs union in the 1960s. Of course, one has always discussed the degree to which borders were operated well but their raison d’être as such was hardly ever challenged, almost as little as the importance of skin to the well-being of the human body. It took a little longer, however, before the act of handling such borders (jointly or not) had moved on as a separate issue into the spotlight of public attention. This occurred when people became aware of the daily realities of ‘Schengenland’, e.g. that ‘their own’ borders with the neighbours had disappeared, and that it was not ‘their’ police any more who were in charge of the new common borderline, far away from home. Discussions sprang up, inside the territory, as to whether ‘these foreigners on the border’ would do a good job in keeping the border tight, or create loopholes that allowed organised crime and illicit migration to penetrate all the way through the Union. Right on the border, discussions went in the opposite direction: ‘Why is it just us who bear all the responsibility and the financial burden?’ Weak links in the border chain, the need for burden-sharing and solidarity soon became the keywords and phrases of an EU- wide debate. It was the merit of the Laeken European Council of December 2001 to have sensed these tensions and initiated a discussion on a new topic called ‘integrated border management’, which would take into account the interests of those both on the border and far away from it. Although the identification of the problem did not lead to immediate solutions, the debate was well received and it has stayed in the headlines ever since. It is therefore no surprise that The Hague Programme touches this popular subject; if there was anything surprising about the programme, it would be its assumption that there was something like ‘the integrated management system for external borders’ (European Council, 2004, item 1.7.),1 which existed as a pre-defined concept and has been just waiting for instalment. In reality, integrated border management2 is a term with a rather short history and a wide spectrum of meanings – certainly not a good starting point for a precise programme (Box 1). There is not one ‘run-of-the-mill’ approach for all situations; solutions must be tailor-made in accordance within the economic and political context. 1 This is contrary to the EU Constitutional Treaty of December 2004 (OJ C 310 of 16.12.2004), whose Art. III-265 mentions the introduction of an integrated system. 2 Hereafter referred to as ‘IBM’ for the sake of convenience. | 1 2 | PETER HOBBING Box 1. Brief history of the term ‘integrated border management’ IBM, now definitively en vogue, seemed entirely unknown until the mid-1990s. Currently it provides the keyword for innumerable reform projects around the world and appears on government websites from Azerbaijan to Zambia.* The various contents being as heterogeneous as the regions involved, there is at least the common understanding that IBM relates to ‘lean government’ approaches and that border procedures should be governed by modern economic strategies rather than slow bureaucratic structures. The concept needed for the EU borders is naturally different from that appropriate for the North American NAFTA countries or even from that proposed by the EU for new neighbours in the east. * See for example Zambia (http://www.sars.gov.za/siyakha/about_transformation.htm). The purpose of this paper is to provide greater clarity with regard to determining 1) what one should understand by ‘the’ system of IBM tailor-made for the EU, and 2) to what extent The Hague programme appears helpful in implementing this objective. 2. A border concept appropriate to the EU A tour d’horizon of IBM concepts applied elsewhere shows to what extent these are adapted to the specific needs of their situation, before looking at the EU, whose specific territorial situation with a fragmented borderline and patchwork structure of legal systems requires a particularly complex
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