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Protecting the door without fencing it in

As the EU struggles to recover from the recent terrorist attacks, while simultaneously trying to address the continued influx of refugees, the fate of the Schengen Zone as well as those seeking asylum hangs in the balance.

Photo by Moyan Brenn (Flickr).

Last month, the Campbell Law Observer reported on the refugee crisis in Europe.  Two hours after that article was submitted for publication, Paris was rocked by multiple terrorist attacks.  In the wake of those attacks, as well as the continued influx of refugees seeking asylum, many EU nations have reinstated border control measures which jeopardizes the continued existence of the Schengen Zone.  Infighting among member nations about how to protect their citizens has created a sense of paranoia among Western Europe.  This added strain borne by the European Union is causing the unity of member nations to crack, threatening the continued existence of the multi-national sodality.  Sadly, there are still hundreds of thousands of refugees seeking safety and a better life in Europe.  The future of the European Union, and the refugees caught within its controversies, is highly uncertain.

In the aftermath of the Paris attacks which left 130 people dead, many are now arguing that concerns [of threatened security] have been vindicated.

While the international media has only recently focused on the possibility that the Schengen agreement could collapse, trouble has been brewing for some time.  In response to the massive influx of refugees, several countries reintroduced border controls, even if temporarily.  German Chancellor Angela Merkel, as well as French Foreign Minister Laurent Fabius, have both indicated that since there is no common solution to the refugee crisis, the Schengen agreement as it currently exists may have to be scrapped.  Chris Bickerton, a politics lecturer at the University of Cambridge, UK, recently said, “I’m pretty pessimistic about the possibility of Schengen surviving . . .  There’s a lot of pessimism amid EU institutions.”  James Davis, director of the University of St. Gallen’s School of Economics and Political Science, has said the EU bloc is “unlikely to survive 2016” in light of the refugee crisis.  “If politicians don’t get ahead of this, the far-right fringes of politics will and they’ll make political hay . . . Voters will punish their leaders if they don’t think they’re taking their concerns seriously,” he said.

For years, a vocal minority of right-wing political parties across Europe have been calling for autonomy, arguing that the EU compromises the future of their countries.  They claimed that the immigration policies and open-borders of the EU would eventually threaten the security of their citizens.  In the aftermath of the Paris attacks which left 130 people dead, many are now arguing that these concerns have been vindicated.  The suspects appear to have used the lack of coordination among security forces, as well as the control-free border practices of the Schengen Area, to their advantage.  Weapons and explosive materials easily crossed borders and at least one suspect possessed a fake Syrian passport.  This has led some in France to call for an immediate halt on all immigration into France.

In response to these fears, a radical solution has been proposed wherein the European countries that border the Middle East . . . would be removed from the Schengen Area and passports would be required to enter those countries.

However, this call was not limited to France.  All over Europe, right-wing politicians have targeted the Schengen agreement, which allows border-free passage within 26 European nations with a combined population of over 400 million.  Many have argued that Europe’s freedom of movement of people, and its failure to control immigration, not only endangers their countries’ economies but also the very lives of their citizens.  In response to these fears, a radical solution has been proposed wherein the European countries that border the Middle East (which include Eastern Europe, Greece, Italy, and Spain) would be removed from the Schengen Area and passports would be required to enter those countries.

Reinstating borders within the EU may alleviate some of these problems, but it is a knee-jerk reaction and can create administrative and economic challenges.  If the Schengen area is dismantled, the imagined community of Europeans would be redrawn.  Their common sense of belonging and shared identities would be weakened and, ultimately, the response to the refugee and terrorist challenges would be even harder.

Should the Schengen Area collapse (or be considerably reduced), the economic results will create a ripple effect that may be felt worldwide.  In Europe, one can cross national borders the way Americans cross state lines.  This is not merely an expression of goodwill among member states, it is an economic necessity.  In areas such as Copenhagen, Denmark and Malmo, Sweden, people routinely cross borders for work.  This open border policy allows workers to freely move to where jobs are available and allows goods to be smoothly transported over land or sea.  Should the Schengen Zone be abolished (or even re-drawn), exports will drop and tourist activity will fall due to the restrictions.  The importation of affordable labor will affect several European countries.  Granted, these workers and goods would eventually make it across the borders, but the added costs, some which are sure to be significant, may force countries to rethink their economic strategies.  This could be good or bad; either way, it will have a worldwide effect.

There are practical steps that Europe can take to increase security and prevent Schengen’s collapse. 

The debate over the future of Schengen comes as European leaders scramble to respond to the recent terrorist attacks.  Security and intelligence forces are facing some hard questions about what more could have been done to prevent the atrocities.  An unnamed French counter-terrorism specialist told AFP (Agence France-Presse) that “someone…screwed up,” and there were three possibilities for what happened.  “Either no one saw anything…or we saw things and we didn’t understand them…or we saw things and despite everything they were able to carry out the attack,” he said.  He further said, “It means we either have a problem of intelligence, or analysis of the intelligence, or of the chain of command among the security services . . . But these guys understand very well the techniques for entering and exiting the Schengen zone.  They’ve practised [sic] it a lot.”

Interestingly, the key to salvaging the Schengen agreement may be easier than many realize.  Schengen’s fatal flaw is that European leaders never finished the job when they crafted the agreement.  As with the recent Eurozone crisis, the Union is facing another area of incomplete political development.  Unlike the modern nation-state, the EU never exerted control over its external borders as the internal borders came down.  Instead, it allowed member states to continue their own individualized border policing policies.  Further, the EU never established a centralized and consolidated internal intelligence service.  Once again, it left the responsibilities of monitoring and surveillance of suspected criminals and terrorists to each individual member state.  The dismantling of internal borders without the construction of a comprehensive internal security regime has exacerbated the humanitarian crisis as well as contributed to the Paris attacks.

There are practical steps that Europe can take to increase security and prevent Schengen’s collapse.  The EU must first focus on collectively hardening its borders to ensure there are no weak links that would allow the Schengen zone to be easily breached by future security threats.  Further, the member states must share real-time sensitive information and develop the capacity to store and analyze that information to prevent future attacks.  Efforts by the European Commission (the executive branch of the EU) to repeal the prohibition on collecting and storing airline passenger name records (PNR data) have failed in the past due in part to Europe’s restrictive privacy laws.  However, in the wake of the Paris attacks, it is likely such measures would now go forward.  Additionally, bureaucratic roadblocks that have hindered information sharing must be improved if European borders are to remain open.

“It is not the refugee outflows that cause terrorism; it is terrorism, tyranny, and war that create refugees”

This task is easier said than done.  Some have stressed the difficulty of keeping tabs on 400 million people over 26 countries covering a 1.6 million square mile area.  “Those with training abroad will probably have the awareness of how to circumvent surveillance, either by avoiding communications altogether or using advanced encryption technologies that are advancing at such a pace that it’s hard for intelligence agencies to stay ahead,” said security analyst Kit Nicholl of IHS Country Risk in London.

At the end of the day, we must remember that the lives of real human beings are also at stake here.  Xenophobia is not the answer.  The fear that radicalized Muslims will infiltrate innocent civilian populations with the intent to do harm is genuine and it is legitimate.  However, to turn our backs on those who genuinely need our help because of the actions of a relative minority of the asking population flies in the face of everything we as developed nations claim to stand for; human rights, human dignity, peace, and the right to live freely without persecution.  To do otherwise conforms to the wishes of the terrorists; they despise tolerance, especially among those of different faiths.  Their whole goal is to disrupt our way of life and to destroy the compassion of democracies.  Antonio Guterres, the UN High Commissioner for Refugees, has said that blaming refugees for the atrocities in France was “absolute nonsense” and that tyranny and war are to blame.  “It is not the refugee outflows that cause terrorism; it is terrorism, tyranny, and war that create refugees,” he said.  “It is clear that the Daesh strategy is not only to set Europeans against refugees, but within Europe, to set citizen against citizen with communities, community against community within countries, and country against country in the Union.”

From a humanitarian standpoint, we should not be surprised that so many refugees are fleeing to Europe.  The horrifying attacks in Paris happen almost daily in Iraq and Syria, where the jihadists have devastated the homelands of those fleeing to safety.  While there are justifiable questions over the future of the Schengen area, those who call for the EU to shut its borders and reject those pleading for help should stop and consider why these people risk their lives boarding overloaded boats or traveling through perilous desert terrain in search of a better life.

Clint Davis, Editor-in-Chief
About Clint Davis, Editor-in-Chief (15 Articles)
Clint Davis is a third year law student and serves as the Editor-in-Chief for the Campbell Law Observer. Before law school, Clint served as a police officer for seven and a half years in Williamston, N.C. He graduated from the University of Mount Olive in the Spring of 2013 with a degree in Criminal Justice and Criminology. During his 1L summer, Clint studied abroad at the University of Cambridge (UK) with a focus on the law of the European Union and comparative data privacy. He has worked for the Honorable Wanda G. Bryant at the North Carolina Court of Appeals, the Honorable Seth Edwards at the Martin County District Attorney's Office, and the Honorable Susan Doyle at the Johnston County District Attorney's Office. Clint is a member of the Campbell Moot Court Team as well as a Campbell Law Honor Court justice.
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