From Geographic and Territorial Borders to Normative and Personal Borders Rule of Law and the Nature of European Borders

Abstract

The abolition of the internal borders between the Member States of the Schengen area and the definition of European common external borders challenges the traditional correspondence between territory, administration, and people.Inside the Schengen area, EU Member States have intensified their internal police activities so as to track potentially undesirable individuals who, if identified, are returned. Meanwhile, outside the Schengen area, the EU Member States are exercising borders controls directly and indirectly within the territory of other states (through visa rules, return agreements, mobility partnerships) and within the international space of the high seas (via the operations coordinated by Frontex).Hence, the borders of governance are no longer delimited by the geographic boundaries of the State's territory. Instead, border controls are imposed wherever third-country nationals (TCNs) are found: in their own country of origin where they depose a Schengen visa demand; at each path of their trip from their country of origin to the Schengen area Member State they aspire to reach; in the territory of such a Member State. Thus, the borders are where the individuals are.The borders furthermore correspond to the individual situation that each TCN experiences, to the normative status he/she is reduced to by the EU’s categorization of individuals. In the European integration process, the main distinction assured by the use of new technologies and personal databases is between EU-citizens (EU national of an EU member state) and TCNs. And these ones are apprehended via a complex system that consists of multiple categories of persons that relate to different forms of exclusion (see Digier Bigo, Elspeth Guild, Sergio Carrera). The border is the migrant.The problem is that the distinction between safe and potentially dangerous individuals is both obviously unclear and normatively uncertain. Thus, for those concerned with maintaining principles of legality, the transformation of the borders from geographic and territorial to normative and personal must be questioned.The purpose of this communication is to outline some crucial limits that the European Union and its Member States must respect in order to remain in conformity with the rule of law, when they elaborate and implement immigration policy, when they manage the migration flows and define the borders control, when they consider their borders.As far as the problematic is particularly deep and large, the presentation will be focused on the current nature of the EU borders and its deleterious impact on the respect of the right of asylum by the EU and its MS. Then the analysis will be built upon recent developments in EU law (recast of the Common European Asylum system) and on case law, in order to highlight the weak effectiveness of the right of asylum in the EU.